DEC-E2012-181- Full Case Report

The Equality Tribunal

Employment Equality Acts 1998-2011

EQUALITY OFFICER'S DECISION
NO: DEC-E2012-181

PARTIES

An Employee
(Represented by MANDATE)

- v -

An Employer
(Represented by Byrne Wallace Solicitors)

File references: EE/2010/640
Date of issue: 20 December 2012

Keywords
Employment Equality Acts - discriminatory treatment - age ground - disability ground -voluntary redundancy scheme - no Prima facie case

1. Dispute

1.1. This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment in relation to access to a voluntary severance package contrary to the Employment Equality Acts by the respondent on the grounds of her age or her disability. The complainant stated that she applied for the voluntary severance package being offered by the company but was advised by her manager that she was unsuccessful. When she requested reasons as to why she was unsuccessful, her manager stated that she did not have to give an explanation.

1.2. The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 23 August 2010 under the Employment Equality Acts. The claim was made on the age ground and disability ground. In accordance with his powers under section 75 of the Acts, the Director then delegated this case to Valerie Murtagh- an Equality Officer - on 24 September 2012 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 20 November 2012.

2. Case for the Complainant

2.1. The complainant commenced employment with the respondent at the Northside shopping centre as a sales assistant on 9 September 1998 aged 47 years. Her hours ranged from 30 - 37 hours per week on average. During 2010/2011, the complainant began to suffer from a debilitating illness namely anxiety attacks and stress which prevented her from attending work. She was absent from work through sick leave which commenced on 4 January 2010. She attended absence review meetings every 6 weeks. On 12 May 2010, the complainant attended an absence review meeting with her manager. Her manager informed her that the company was currently offering voluntary redundancy to staff and staff had until 19 May to apply. She also stated that staff would be notified within 2 weeks and that if individuals were not approved, management was not obliged to state the reasons.

2.2. The complainant applied for the redundancy package and was contacted by her manager by telephone on 3 June and advised that her application was unsuccessful. The complainant's union official wrote to management and requested the selection criteria used to assess individuals and the reasons why the complainant was unsuccessful in her application. However, no response was forthcoming from the respondent. The complainant states that two female colleagues who also worked in grocery checkouts with her whom she was friendly with, had been successful in their application for the voluntary severance scheme. One of her colleagues was two years younger than her and the other colleague was the same age as the complainant. The complainant's union official submitted that her disability may have been a motivating factor in her unsuccessful application for the scheme. The complainant was very anxious to know from the respondent if the reason she was unsuccessful for the voluntary severance scheme was the fact that she was on a long term absence through illness at that time.

3. Summary of Respondent's case

3.1 The respondent states that the complainant applied for the voluntary severance package and was advised by telephone on 3 June by her manager that her application was unsuccessful. Her manager asserts that the complainant said "right then thanks, bye". The respondent asserts that from the outset of the voluntary redundancy scheme, it had been indicated that reasons would not be given for the selection/non selection of candidates. The respondent submitted that at the time the scheme was offered, all staff either on maternity leave or absent through sick leave were informed of the scheme. The HR manager for the respondent forwarded the list of 14 candidates (11 of which were grocery checkout staff) to Mr. M, a senior cost manager for the respondent who was independent of the Northside store. Mr. M then visited the store and assessed the various different departments and examined the situation as to candidates who would be most suitable for selection for the scheme. Mr. M described the economic circumstances that led to the downsizing of staff numbers. Mr. M states that the company was concerned that customer service would not be impacted upon and that there was proportionality across all departments in relation to flexibility of hours for day and evening shifts. Mr. M asserts that the rationale was on reducing hours but allowing for skill set retention.

3.2 In relation to the complainant's colleague who also worked in grocery check-outs, was the same age the complainant and was successful in her application; Mr. M stated that she was chosen as she was on a set three day week contract and therefore was picked for the scheme on that basis. The respondent submits that the complainant was not discriminated against on the grounds of her age or her disability. It also submitted that the senior cost manager, Mr. M had previously attended training on employment equality legislation and was aware of his obligations in that regard. Below is a table provided by the respondent outlining details regarding the 8 successful applicants out of the 14 candidates that applied. Details regarding the complainant who was unsuccessful are at the bottom of the table. The respondent contended that candidates B, D and E were selected over the complainant as the cost of the redundancies to the respondent was taken into account when the final selections were being made. At the material time, candidates B, D and E had approximately 4, 9 and 6 years service, respectively, while the complainant had 12 years service. Consequently, the selection of the complainant for voluntary redundancy would have represented a higher cost to the respondent when compared to candidates B, D and E.

4. Conclusions of Equality Officer

4.1 I have considered all the evidence both written and oral presented to me. 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. In a recent Determination the Labour Court¹, 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.

4.2 The complainant's representative asserted at the commencement of the hearing that the complainant was alleging discrimination on the basis of her age or her disability. Having examined the evidence in relation to discriminatory treatment on grounds of age, it is clear that other colleagues of the complainant, including (i) a colleague 2 years younger, (ii) a colleague 4 years older and (iii) colleagues considerably younger than the complainant were successful in their applications for the voluntary redundancy scheme. Therefore, the complainant has not established a prima facie case on this ground. The complainant also made an allegation of discrimination on the grounds of her disability in relation to access to the voluntary redundancy scheme. Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".

4.3 While this Tribunal has held previously in decisions that stress of itself is insufficient to comply with the definition as outlined in section 2 of the Acts, I am satisfied that the complainant's illness, which she outlined as stress coupled with severe anxiety attacks substantiated by medical certificates, does come within the above definition of disability as set out in subsection (e). In examining the table at 3.2 above, it is clear that another staff member who was also on an ongoing long term absence was successful in her application for the scheme, therefore I am satisfied that the complainant's disability was not a factor in her unsuccessful application for access to the voluntary redundancy scheme. In relation to the 11 applicants from grocery checkout who applied for the scheme, 7 of those candidates were successful resulting in 4 candidates including the complainant being unsuccessful in their application. Therefore, I am satisfied that candidates with no long term absence were also refused access to the scheme. The respondent contended that candidates B, D and E were selected over the complainant as the cost of the redundancies to the respondent was taken into account when the final selections were being made. At the material time, candidates B, D and E had approximately 4, 9 and 6 years service, respectively, while the complainant had 12 years service. Consequently, the selection of the complainant for voluntary redundancy would have represented a higher cost to the respondent when compared to candidates B, D and E. Overall, in taking the totality of the evidence into consideration, I am satisfied that the complainant has not established a prima facie case in relation to discriminatory treatment in relation to access to the voluntary redundancy scheme on the disability ground or the age ground and I find in favour of the respondent.

5. Decision of the Equality Officer

In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that the complainant was not discriminated against by the respondent in relation to access to the voluntary redundancy scheme on grounds of her age or disability, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts.

____________
Valerie Murtagh
Equality Officer
20 December, 2012

^{1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.}