EQUALITY OFFICER'S DECISION NO: DEC-E/2012/179
PARTIES
Mr. Stephen Brazil
(Represented by Mandate Trade Union)
Vs
Boots Retail Ireland Limited
(Represented by IBEC)
FILE NO: EE/2010/632
DATE OF ISSUE: 18 December, 2012
1. Dispute
This dispute involves a claim by Mr. Stephen Brazil that he was discriminated against by Boots Retail Ireland Ltd, on the grounds of gender, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to his conditions of employment. Claims of discrimination on the grounds of disability in relation to conditions of employment and of failure to provide reasonable accommodation and harassment were also submitted but were withdrawn prior to the hearing.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 16th August, 2010.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 11th of September, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 9th of November, 2012.
3. Summary of complainant's case
3.1 It is submitted that the complainant was employed by the respondent, for a total of five and a half years. His duties included dealing with goods inwards, stockroom duties and organising lists to be merchandised the following day.
3.2 The complainant has made submissions regarding his disability but has advised the Tribunal that he is not pursuing this aspect of the claim.
3.3 It is submitted that on 13th May 2010 the complainant and his colleagues received a new work uniform consisting of a shirt and tie. The complainant submits that he had to remove his tie and open his top button of his shirt as it was too small and uncomfortable. It is submitted that the Assistant Manager, Ms. D questioned him as to why he was not wearing the correct uniform and after he had explained to her that it was too tight, she told him she couldn't have him on the shop floor without the correct uniform. It is submitted that Ms. D confronted and reprimanded the complainant on the shop floor in front of other personnel.
3.4 It is submitted that the following day the 14th of May 2011 Ms. G (Operations Manager) approached the complainant and asked him to go to the Grafton Street store to help load/unload a delivery. The complainant was told by Ms. G that "there were no lads over there" and when he asked if the other staff could help with the unloading of the truck, he was told "the stock was too heavy". It is submitted that the complainant informed Ms. G that he couldn't go to the other store as he had "anxiety", and that she then turned her attention as to why he was not wearing the white shirt. The complainant advised her that "it was too tight" and that the proper shirt size was being ordered. It is submitted that Ms. G then stated that the complainant had an attitude problem.
3.5 The complainant was called to the office an hour after the conversation with Ms. G and was told by Ms. D that he was being suspended for aggressive behaviour regarding the uniform issue.
3.6 The complainant was suspended from 14th May to 17th May 2010. Following a meeting on 17th May he returned to work where a formal investigation into the alleged aggressive behaviour found no evidence to support the allegation.
3.7 The complainant submits that the only reason he was suspended was not for his allegedly aggressive behaviour on 13th of May but for not agreeing to go to the Grafton Street store on 14th of May 2010. The complainant submits that this constitutes discriminatory treatment against him and that he was treated less favourably on the basis that he is a male worker.
4. Summary of respondent's case
4.1 The respondent, agrees that the complainant was employed with them from the period specified and that his employment ended on 27th May 2011 after he applied for and was accepted for a voluntary redundancy programme.
4.2 It is the company position that the Tribunal has no jurisdiction to investigate the claim as the complainant signed a disclaimer at the time of his redundancy, in full and final settlement of all claims arising out of his employment and the termination thereof" and that this included the Equality Acts. It is submitted that the complainant was paid his statutory redundancy in addition to an ex gratia payment. It is submitted that the terms of the agreement preclude the Equality Officer from hearing the substance of the case.
4.3 It is submitted that on 13th May 2010 the issue of the complainant not wearing the correct uniform was raised with him. It is submitted that as a result of the complainant's behaviour when asked about his uniform he was invited to a meeting on 14th May 2010 to discuss his behaviour.
4.4 It is submitted that on 15th May 2010 the complainant was asked to assist with unloading a delivery at the Grafton Street store. This was a reasonable request and one which falls within the remit of the complainant's role. The complainant would have been assisting female employees with the loading/unloading of a delivery. The function was a part of the complainant's duties as per his contract of employment. The complainant was not treated any less favourably than any other employee.
5. Preliminary Jurisdictional Issues- Settlement Agreement
5.1. It is submitted by the respondent that the Equality Officer has no jurisdiction to investigate the claim as the complainant signed a disclaimer at the time of his redundancy in full and final "settlement of all claims arising out of his employment and the termination thereof" and that this included the Equality Acts. Before I can consider the substantive issues, I have to consider whether this disclaimer amounts to a settlement agreement and whether it means that I do not have jurisdiction to investigate this claim.
5.2 The Labour Court set out an approach to settlements, in Sunday World Newspapers Limited and Steven Kinsella & Luke Bradley, Determination No. FTD066 said:
"It is clear from the authorities that a provision in a statute prohibiting contracting out does not prevent parties from lawfully agreeing to settle or compromise claims based on the statute. There is, however, often a subtle but substantial difference between a genuine bargain to settle or dispose of a claim, which is lawful and enforceable, and an attempt to exclude or limit the Act, which is void and of no effect. The case law indicates that the following considerations are relevant in distinguishing the former from the latter: -
1. The terms of any waiver must be construed strictly against the party from whom it emanated. Where there is doubt the course of negotiations between the parties should be examined so as to ascertain what was intended.
2. An agreement to wave statutory rights must be supported by adequate consideration.
3. The waiver should normally arise from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given.
4. The waiver should list the various Acts being taken into account.
5. The waiver is only valid if it is based on a free and informed consent given by a person with full knowledge of their legal rights.
6. It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him or her to sign a waiver."
5.3 Firstly I shall look at the issue of 'adequate consideration'. The respondent submits that the complainant was paid his statutory redundancy in addition to an ex gratia payment and that this amounts to consideration. It emerged at the hearing that this ex gratia payment was the same for all who received the redundancy package and that the complainant did not receive any additional payment over and above that received by his colleagues with the same length of service. Accordingly the complainant and circa 100 of his colleagues applied for and received a redundancy package which consisted of statutory redundancy plus an ex gratia payment. This ex gratia payment was not unique to the complainant and could not be construed to be a payment which would form the basis of a settlement of his outstanding claim. Accordingly I do not find that there was any element to this agreement which would constitute "adequate consideration" for the purposes of a settlement agreement.
5.4 It is submitted by the respondent that the complainant had the opportunity of taking the settlement agreement away and taking independent advice on it. The complainant disputes this and states that he signed the disclaimer/agreement on the 27th of May 2011, at the company premises, and was not offered the opportunity to take the agreement away but rather was told that in order to be accepted for the redundancy package these documents had to be signed before the closing deadline which was later that day. The respondent submits that this disclaimer was voluntarily signed by all who applied for the redundancy package. I am satisfied that the complainant was under the impression that a failure to sign the disclaimer would result in a loss of the redundancy package.
5.5 The respondent contends that the agreement was clearly intended to include all claims regarding the complainant's employment including this claim before the Equality Tribunal. The Employment Equality Acts is included on the list of legislation to be covered by the Agreement. It is submitted that the complainant signed this document, as everyone else did, as part of his redundancy package and that he was not aware that it applied to his outstanding Equality claim.
5.6 The complainant did not receive any legal advice on the agreement nor was he represented on the day of signing of the agreement. It is submitted that the complainant did not have any advance notice that such a document was to be signed and was not advised that this would have implications for his outstanding claim. The respondent states that a mandate shop steward was present on the day the agreement was signed and states that the complainant could have asked this person for advice if necessary.
5.7 The respondent submitted that the complainant initially signed the agreement on the 27th of May 2011 but that due to a mistake on the form he had to re-sign it on the 31st of May, 2011 thus giving him an additional four days to change his mind and obtain advice on whether to sign it. The respondent, upon questioning stated that the complainant was only advised of the need to re-sign the agreement on the day it had to be re signed and did not receive any advance notice of this. I am thus satisfied the complainant was not given an extra four days to consider the agreement before re signing but was called in on the day to re sign a document due to a mistake in the earlier signed copy.
5.8 The complainant was not represented at the signing of the agreement and was not at any point advised that his situation was unique, in that, the signing of this disclaimer could have the effect of putting an end to his outstanding Equality claim.
I am satisfied that the complainant's signing of the disclaimer was not based on free and informed consent with the full knowledge of his legal rights and thus falls short of what is outlined at pgh 5.2 above. In addition I am satisfied that the complainant did not receive 'adequate consideration' which could be construed as a settlement of his outstanding claim. Accordingly based on the totality of the evidence adduced on this matter I find that the disclaimer signed by the complainant as part of the Termination Agreement does not amount to "a genuine bargain to settle or dispose of a claim, which is lawful and enforceable" and thus the complainant is not prevented from pursuing his outstanding complaint to this Tribunal. I am thus satisfied that I have jurisdiction to investigate the complaint before me.
6. Findings and Conclusions of the Equality Officer
6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to his conditions of employment. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
6.2 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. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
6.3 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".
6.4 Conditions of Employment
6.4.1 The complainant submits that he was suspended form work by the respondent for failing to attend the Grafton Street store to load/unload a delivery. He submits that he was asked to attend the store due to the fact that he was a male worker and that this constitutes less favourable treatment on grounds of his gender.
6.4.2 13th of May, 2010
The complainant advised the hearing that he was suspended from work on 14th of May 2010 and that this suspension was a direct result of his refusal to attend at the Grafton Street store to unload a delivery. The respondent at the hearing stated that the complainant was suspended for his aggressive behaviour in relation to an incident on the 13th of May where he had been questioned regarding his failure to wear the correct uniform of a white shirt and tie. The complainant when questioned couldn't remember if he had seen any documentation regarding his suspension or the reason for his suspension. The respondent produced a document dated 14th of May 2010 and signed by the complainant, stating that he was being suspended and the reasons given were 'Performance/Behaviour'. The complainant, upon questioning, agreed that he had signed this document on the given date.
6.4.3 The complainant, in his version of the 13th of May incident, stated that he was approached by a colleague and asked why he was not wearing his tie. The complainant told the hearing the he had informed his colleague that he had to remove the tie, which was a clip on tie, and he had to open the top button of his shirt as it was too tight and was sticking into his neck. The complainant stated that Ms. D then approached him on the same issue and advised him that she couldn't have him on the shop floor without his tie. The complainant stated that he heard no more about the matter until the next day after the Grafton Street incident.
6.4.4 Witness for the respondent Ms. D told the hearing that she had on the given date approached the complainant and asked why he wasn't wearing his tie. She stated that the complainant reacted very aggressively to her and lost his temper. She advised the hearing that she had to walk away as she was shocked at the complainant's aggressive reaction to her question. Ms. D stated that she then phoned HR in order to ascertain what she should do in the situation and stated that she was advised that suspension was an option in the circumstances.
6.4.5 14th of May, 2010
The complainant advised the hearing that he was asked by Ms. G to go to the Grafton Street store as there was a truck there with a delivery and it was heavy work. He advised the hearing that Ms. G had said that "there were no lads/fellas over there" at the time. The complainant advised the hearing that he had refused to go to the Grafton Street store as requested as he had underlying reasons for not wanting to go. The complainant told the hearing that he didn't go over as he suffered from social phobia and that he told Ms. G he couldn't go for this reason. Witness for the complainant Ms. G told the hearing that she had received a call from the Grafton store asking if the Jervis store could spare any lads to help with unloading a truck as the female staff were having trouble with it. Ms. G stated that there were three male staff members on the floor at the time and that she had approached the complainant as he wasn't busy at the time. Ms. G stated that she asked the complainant to go and help with the delivery and that he had responded to her in a very aggressive manner and had refused to go. She stated that she didn't insist as he was very confrontational and she was upset so she walked away and went straight to the office and reported the matter to Ms. D. Ms. G stated that she knew the complainant had suffered from depression but had never been told anything about a social phobia nor had she ever been advised as to what the complainant could or couldn't be asked to do. Ms. G added that in any case it didn't excuse the aggressive way he reacted to her simple request. Ms. D advised the hearing that Ms. G was visibly upset when she came into the office after the incident with the complainant and that this confirmed to her that suspension of the complainant was necessary.
6.4.6 The respondent's submission and Ms. D's evidence was that the decision to suspend the complainant was due to his reaction to her during the uniform incident on the 13th of May. However, the complainant contends that he was suspended solely for his refusal to attend the Grafton Street store on the 14th of May. Ms. G evidence is that the Grafton Street incident occurred sometime between 1 and 2 pm on the 14th of May 2010 and it is accepted that the complainant's suspension was effected from 2.30pm on the same day. Having heard all of the evidence on this matter I am satisfied that the decision to suspend the complainant was influenced by both his behaviour regarding the uniform incident on 13th of May, 2010 and the Grafton Street incident on 14th of May, 2010.
6.4.7 The complainant advised the hearing that he was asked to go to the Grafton Street store to help out with the delivery due to the fact that he is a male. The complainant contends that his refusal to attend the Grafton street store resulted in his suspension and that this constitutes less favourable treatment on grounds of gender. I have concluded at pgh 6.5.6 above that the complainant's suspension was influenced by the Grafton Street incident but that it was not the sole reason for his suspension.
6.4.8 The complainant has submitted that his duties included dealing with goods inwards, stockroom duties and organizing lists to be merchandised the following day. He also advised the hearing that he had in the past been asked to carry out these duties at other stores. It is the respondent's contention that asking the complainant to help out with a delivery at the Grafton Street store falls within the remit of his duties. The complainant did not dispute this but argued that the only reason that he was asked to assist with the delivery was due to the fact that he is a male worker, and that his refusal to do so resulted in a suspension which constitutes discriminatory treatment. The complainant also told the hearing that the reason he refused to go to the Grafton Street store was due to his anxiety and social phobia. He did not argue that it was outside of the remit of his duties. I am thus satisfied that asking the complaint to go to the Grafton Street store to assist with the loading/unloading of a truck was a reasonable request and one which falls within the complainant's duties. I am also satisfied that asking a male member of staff to assist female staff with loading and unloading a truck, a task which falls within the range of his duties, is not unreasonable.
6.4.9 I am satisfied that the complainant's refusal to carry out this request in addition to his the behaviour towards Ms. D regarding the uniform incident all contributed to the decision to suspend the complainant. The notice of suspension signed by the complainant on the 14th of May 2010 lists the reasons for which a staff member may be suspended and includes Performance/Behaviour. This is contained in the respondent's disciplinary procedure which is contained within the company handbook a copy of which the complainant received on commencing his employment. I am satisfied that the respondent in the circumstances followed its own documented disciplinary process. I am also satisfied that a female worker in the same circumstances who refused to carry out a reasonable request from a manager and who had also had a previous black mark against her for an incident the previous day, would have been treated in the same manner. Accordingly from the totality of the evidence adduced on this matter I do not find that the complainant has established a prima facie case of less favourable treatment on grounds of gender in relation to his conditions of employment.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(ii) that the respondent did not discriminate against the complainant on the gender ground pursuant to section 6(2)(a) of the Acts in relation to his conditions of employment .
__________________
Orla Jones
Equality Officer
18 December, 2012