THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC - E2011 - 234
PARTIES
Maria Pedley
and
Champion Sports Ireland
(represented by Leman Solicitors)
File Reference: EE/2008/778
Date of Issue: 12th December, 2011
Keywords - Employment Equality Acts 1998-2008 - Sections 6 and 8 - Discriminatory treatment - gender ground - promotion - career advancement.
1. Dispute
1.1 This dispute involves a claim by Ms. Maria Pedley that she was discriminated against by the respondent on grounds of gender in terms of Section 6(2)(a) of the Employment Equality Acts 1998 to 2008 and contrary to Section 8 of those Acts in relation to promotion/re-grading and training.
2. Delegation of the complaint
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on the 19th November 2008. On the 5th May, 2011, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a hearing of the case on 23rd November 2011, where both parties were in attendance.
3. Summary of the Complainants' case
3.1 The complainant claims that she worked with the respondent from October 2003 in its warehouse facility in Dublin, as a general operative, initially on a part time contract until she was offered and accepted a voluntary redundancy package in 2009. She claims that she worked on the first floor of a two-story warehouse.
3.2 The complainant claims that she had to wait three years for a contract of employment and up to four years for a manual handling course. However, she did not state that the male employees were given a contract of employment or a manual handling course any earlier than she was.
3.3 The complaint claims that she did not get an equal opportunity while she was working with the respondent. She claims that she was not given access to "new positions" that had arisen within the company, even though she had received guarantees that all positions would be properly advertised and proper training would be put in place for all staff. She claims that the respondent failed to hold to their guarantees, "all guarantees were ignored".
3.4 She claims that certain positions arose during her time working with the respondent, namely a position as a Forklift Driver and a Store Processor. She claims that the filling of these positions were contrary to the respondent's own equal opportunity policy. She claims that she always worked hard for the respondent, was very conscientious about her work and just wanted an equal opportunity. However, she felt that she never got that opportunity and as she was not progressing in the company so finally decided to take voluntary redundancy.
3.5 The complainant agreed that she had a meeting in October 2006 with the respondent. However, she claims that she had not refused to do certain duties. She claims that she was asked to "relocate stock" something she had not done before and was not able to lift heavy boxes. She claims that when it was put to her that it was in her contract she again raised the issue that she did not get a contract of employment or a manual handling course. She claims that after this meeting she was given an unfair allocation of duties, mostly sweeping the floor.
4. Summary of the Respondent's case
4.1 The respondent operates 22 retail shops throughout the country employing over 500 staff, 59% of which are female and 41% male. The respondent agrees that the complainant worked as a general operative at its warehouse facility from 2003 to 2009 when she took a voluntary redundancy package. It agreed that she initially started in a part time role and after she approached head office and requested additional hours she was accommodated without delay in July 2006 with a full time position. It claims that the complainant worked with a team of employees on the 1st floor of its warehouse, where, outside of the management and supervisors roles was approximately divided evenly 50:50 between male and female.
4.2 In relation to the issues raised by the complainant on manual handling training, the respondent claims that there was no manual handling training provided for any of its employees until Mr. A, from the warehouse facility and his colleague, from the stores department, were sent on a specific course of training which enabled them to return and provide training for all employees in both the warehouse and the stores. It claims that subsequently the training for all staff was provided for all employees, male and female alike, in the summer of 2007.
4.3 In relation to the complainant's issue regarding forklift training, the respondent said that no new positions were created by the respondent on the ground floor. It claims that staff working close to the main door on the ground floor and with specific responsibility for the loading and unloading of containers from vehicles were requested to assist in the forklift driving duties in busy periods from time to time. It claims that the decision was simply to improve the operational processes at the warehouse door. It claims that one of its employees, a foreign national, already held a forklift driving licence from his country of origin while the other employee worked predominantly at the door on a daily basis. It claims that no new positions were created; there was no additional pay or any other benefits to those staff, it was simply an extra part of their job required of them at busy periods. They were trained by an internal staff member and they did not receive certification or a forklift driving licence from the respondent that they could bring with them to use elsewhere.
4.4 The respondent added that Ms. Pedley had outlined at a meeting in October 2006 that she was not willing to lift heavy boxes and therefore was not asked to work by the main warehouse door as there was a dependency on workers there to do more heavy lifting over eye-level height. It claims that the complainant had the same duties as all the other workers in and around her in the warehouse and this included housekeeping duties, which were a fundamental part of the job requirements.
4.5 In relation to the three new Stock Processor positions created in the warehouse in 2007, the respondent claims that it advertised the positions to all the staff in the warehouse. Mr. A claims that he approached and encouraged all his staff to apply for the positions as there was additional responsibility and additional payments for the successful candidates. It claims that Ms. Pedley was on extended sick leave at the time. The respondent claims that a copy of the advertisement was sent by post to the complainant in advance to notify her of the upcoming competition. The respondent claims that the complainant chose not apply for the positions and three of her colleagues were appointed, two male and one female. The respondent claims that some time later one of the Stock Processors left the company and it was approached by Ms. Pedley who asked it she could apply for the vacant post. Mr. A checked about the filling of the position on her behalf. However, it was management's decision that the post was not to be filled and the duties were to be assigned to the two current job holders.
4.6 In relation to the claim that Ms. Pedley did not receive a contract of employment, the respondent claims that none of the employees received contracts of employment at the time. Ms. B from the Human Relations department claims that when she joined the company in late 2005 she noted that anomaly and set about correcting it. She claims that every worker, both male and female, were given contracts of employment which were completed in 2006.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man (in this Act referred to as "the gender ground")".
5.3 The onus rests with the complainant to establish a prima facie case of discrimination on one of the grounds covered by the Acts. In this case the complainant claims that she was not given the same opportunities as her male colleagues. She cited two instances where she claims opportunities arose and that she was not considered for the positions which she claims was because of her gender. She also claims she did not get a contract of employment or a manual handling course. Accordingly, the issues for decision in this case are whether or not the complainant was discriminated against by the respondent contrary to the Employment Equality Acts on the grounds of her gender. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
Contracts of Employment and Manual Handling Training
5.5 Firstly, I will consider the issue that has been raised by the complainant in relation to the respondent's alleged failure to provide her with a written contract of employment and the manual handling training which the complainant has contended constitutes unlawful discrimination of her on the grounds of gender contrary to the Acts. In the first instance, it should be noted that there is no general obligation on an employer to provide an employee with a written contract of employment. There is, however, a statutory requirement on employers to provide employees with a written statement of certain terms of their employment under the Terms of Employment (Information) Act, 1994. Enforcement of rights under this statute rests with the Rights Commissioner (at first instance) and not the Equality Tribunal.
5.6 In considering this issue, I note the complainant did not dispute that initially no one in the warehouse was issued with contracts of employment and no one was provided with manual handling training until the respondent changed its position and addressed those two anomalies in 2006, where, I note, that these anomalies were corrected for everyone at the same time. I accept that the complainant has adduced evidence to suggest that she (and others) may have been treated badly by the respondent in terms of the provision of a contract of employment and a manual handling training. However, I do not have any jurisdiction to decide whether or not the respondent was in breach of its obligations under the relevant employment and/or health and safety legislation. Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. In the circumstances, I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that she was treated less favourably than other workers of a different gender in terms of the respondent's failure to provide her with a written contract of employment or manual handling training. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of her complaint.
"New Positions" within the company
5.7 In relation to the new Stock Processor positions, I am satisfied that these positions were advertised by the respondent and the complainant was on long term sick leave at the time. The respondent claims that it sent a copy of the advertisement to the complainant whereas the complainant claims that she did not receive it. Notwithstanding I am satisfied that the complainant did not apply for the positions. Accordingly, as the complainant chose not to compete for one of the positions she has no locus standi with regard to that competition. However, I am satisfied that the three positions were filled internally and one of the places was filled by Ms. X, who gave evidence at the hearing. I note after some time had passed one of the other Stock Processors left the company and it was decided not to continue with three posts and accordingly, when Ms. Pedley approached Mr. A about applying for the vacant position she was told the same. It has not been demonstrated to me from the evidence adduced where the alleged instance of discrimination lies in this aspect of the case. Ms. Pedley did not apply for one of the Stock Processor positions when they were available and then asked about the position when it was not available anymore. Accordingly, I am satisfied that the complainant has failed to establish a prima facie case in respect to gender discrimination regarding this aspect of the complainant.
5.8 In relation to forklift training and the subsequent position, I note and am satisfied that no new position was created at the main door by the respondent in relation to this. I accept the respondent's evidence that from time to time it requires staff to help with some duties when times are busy. I note that one staff member already in employment with the respondent had the skills and qualifications to drive a forklift and I note that it approached another staff member who worked close to the door on a daily basis to see if he would assist with some driving duties when times were busy. I note that they attended a few informal in-house training sessions to ensure he had the skills to assist when required. I accept the respondent's evidence that there was no additional benefit to the employees in taking on the additional duties. The complainant did not adduce any evidence to contradict or oppose those facts. I also accept that the respondent simply set about improving is operation through better management of its available resources and no new position was created. It has not been demonstrated to me from the evidence adduced where the alleged instance of discrimination lies in this aspect of the case. I accept that there was a somewhat strained relationship between the parties in their past dealings with each other. However, as stated at the outset the onus is with the complainant to establish the facts from which the occurrence of discrimination may be inferred and that it must be of sufficient significance before a prima facie case has been established. Accordingly, I am satisfied that the complainant has failed to establish a prima facie case in this instance in respect to gender discrimination.
Conclusion:
5.9 I am satisfied that contracts of employment and manual handling training were provided to everyone working in the warehouse at the same time, irrespective of gender. There were no new positions created at the main door of the warehouse. The new positions that were created in the warehouse were advertised to all staff and an open competition was provided, which the complainant chose not to apply for. Accordingly, I am satisfied from the evidence adduced that the complainant has failed to establish a prima facie case of discrimination on the gender grounds.
6. Decision
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with Section 79(6) of the Acts. I find that -
- the complainant has failed to establish a prima facie case of discrimination on the grounds of gender contrary to Section 8(6) of the Employment Equality Acts 1998 to 2008.
- I find in favour of the respondent in this case.
______________
James Kelly
Equality Officer
12th December 2011