The Equality Tribunal
Employment Equality Acts
Decision DEC-E2012-030
PARTIES
Brenda McMenamy
(Represented by James Doran, B.L.,
instructed by Frank Ward & Co, solicitors)
- V -
Dublin Airport Authority
(Represented by Byrne Wallace Solicitors)
File reference: EE/2008/801
Date of issue: 13 March 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Harassment - Victimisation - Gender - Civil Status - Family Status - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Ms Brenda McMenamy that she was subjected to discriminatory treatment, harassment and victimisation by the respondent on the grounds of Gender, Civil Status and Family Status in terms of Sections 6(2), 14 and 74 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 20 November 2008 under the Acts. On 6 May 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 1 September 2011. Additional written information was received from both parties up to 17 January 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant commenced work on 21 October 1991 with what was then Aer Rianta as an Airport Police and Fire Officer (APF). Initially she started in police service and two years later trained in the fire service. She worked as a rotator - a person who carries out both the police duties and the fire officer duties. Her employment continued with the establishment of the Dublin Airport Authority.
2.2 The complainant was employed in the fire service when she became pregnant in 1994. She was required to leave the fire service and transfer to police duties which she did reluctantly. She was aggrieved and believed that she had no option but to do so.
2.3 The complainant submitted that she was one of the first APF's to take up job sharing in the police service and its job sharing scheme has run successfully. Over the years, the complainant has, through her union, had numerous meetings with the company over the implementation of job sharing in the fire service where she has been refused job-sharing on numerous occasions. The main arguments for the refusal for the application were that a job sharer would not be in the fire station often enough for training and also that manning levels would be affected.
2.4 The complainant submitted that she brought her grievances to the union again in 2005 and a claim was submitted to the LRC regarding the non introduction of job-sharing for members working in the Airport Police/Fire station. The union were asked to drop the complaint on the basis that the issue would be resolved locally. As a result the respondent suggested to the union that they would introduce job sharing but would exclude rotators.
2.5 The complainant submitted that she decided to apply to go back working as a permanent whole time worker in the fire service in or about January 2006 as it became clear to her that this was the only way to get back into the fire service. She was told that she would have to do the full 12 week training course again. The complainant submitted that previously a male colleague was allowed to return from a job sharing position with the full requirement of training that was required from her. In that case all that was required was a one week refresher course on the use of breathing apparatus.
2.6 The complainant brought this to the attention of the Senior Airside Manager in June 2006 and in response he stated that because she had changed her preference from rotator to permanent fire officer, under the existing union agreement, it had the effect of dropping her to the bottom of the list. The complainant also asked the Senior Airside Manager to address the discrimination as between her return to a full time position vis-à-vis her male colleague. This was not addressed in her replying letter.
2.7. On 12 June 2008 the complainant again wrote to the Chief Fire Officer seeking job sharing in the Fire Station. By letter dated 27 June 2008, the CFO refused this request and the complainant formally entered her complaint to the Tribunal dated 25 November 2008.
2.8 In January 2009, a male colleague phoned the complainant to state that he had met the CFO and requested a job sharing position in the fire station. The CFO did not contact the complainant until mid February 2009 stating that, she would have to undergo the 12 week course starting in March and that if she wished to take up the offer of job-sharing she would have to let him know by 4 March 2009. This gave her only two weeks to find a full-time carer for her four children and ultimately she could not and had to decline the offer.
2.9 The complainant also submitted that further evidence of discriminatory treatment can be seen from the failure of the respondent to provide her with maternity wear. Eventually a maternity uniform was issued which was in use for two years only. For later pregnancies, the supply of maternity wear improved but remained deficient and unsatisfactory.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that the complainant makes reference to events which occurred outside the 6 month time-frame envisaged by the Acts and that no application was made by the complainant to extend that time-frame in accordance with the provisions of the Acts. In addition the respondent submitted that the complainant makes reference in her submission to matters which post-date the filing of the EE1 form with the Tribunal and that these matters are outside the jurisdiction of the Tribunal.
3.2 The respondent introduced job-sharing in 1982 but made it clear that rotators who sought to job-share would be confined to police duties for the period of a job-share arrangement. The complainant took issue with this and asked to be permitted to carry out fire duties while employed as a rotator on a number of occasions including on 4 may 2006. This request was refused and any complaint relating to this decision is clearly out of time.
3.3 The respondent submitted that notwithstanding that the complainant had no reason to believe that the respondent's position had changed, she made a further application to carry on fire duties in June 2008 which she remained on job-share. The respondent also submitted that she did so with a view to bringing the complaint with the timeframe envisage by the Acts. The respondent further submitted that the confirmation given by it in June 2008 was a restatement of its earlier decision rather than an act of further consideration.
3.4 The respondent accepts that the complainant was advised in 2006 that she would have to undergo a 12 week training course before being allowed to undertake fire duties. The respondent submitted that the named male comparator mentioned in the complainant's submissions returned to duties in 2001 and that, following on from an accident in 2005 and the subsequent Health and Safety investigation, its procedures changed and thereafter, any officer returning to fire duties after a break of two years or more had to undergo the longer training course.
3.5 The respondent submitted that the complainant has failed to show that she is at a disadvantage because she has not been permitted to carry out fire duties during the period of her job-share arrangement. The fact that a rotator is confined to police duties during a period of a job share arrangement does not in any way affect a rotator's remuneration or other terms and conditions of employment.
3.6 The respondent submitted that if the Tribunal were to find that its arrangement in relation to job-share places women at a particular disadvantage, it submitted that the practice is objectively justified by reference to a legitimate aim, i.e. to ensure that firefighters are adequately trained and competent at all times to carry out their duties. The respondent submitted that rather than impose a blanket refusal on rotator's job sharing, it did take steps to ensure that they can job-share.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against, harassed or victimised the complainant on grounds of gender, civil status and family status, in terms of Sections 614 and 74 of the Acts and contrary to Section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
Preliminary matters.
4.4 The respondent indicated that it considered most of the issues raised by the complainant to be out of time in relation to the provisions of the Acts. Having regard to the oral and written submissions of both parties in relation to this case, I consider that the various aspects of the complaint raised by the complainant can not be categorised as a chain of events. Accordingly, I consider that any issues raised by the complainant connected with her pregnancy and maternity periods in 1996, 1998, 2000 and 2004 are outside the time-frame laid down in the Acts.
4.5 In relation to matters which post-date the submission of the complaint, I am inclined to consider these along with any evidence adduced in relation to the victimisation aspects of the complaint before me. In this regard I note that the respondents are in receipt of the complainant's submissions on those issues and have, in their turn, made their own submissions on those matters.
Substantive issues
4.6 Having considered the written and oral evidence before me, I consider that the complainant's requests to job-share as a fire fighter in 2006 and 2008 are linked as the same policy was in operation on both dates. I note the following: (i) job-sharers are two thirds female and one third male, (ii) all applications for job-share have been granted, (iii) male job-sharers have indicated family commitments as reasons for job-share, (iv) all job sharers are required to undertake police duties only, (v) since the 2005 review, all job-sharers seeking to return to fire-fighting duties on a full-time basis have been required to undergo a 12 week training course - if absent from those duties for more than 24 months.
4.7 The issue may be summarised as follows, the complainant sought to job-share and was granted that request. The respondent did not consider some duties suitable for job-sharing positions. The complainant sought to undertake those duties on a job-share basis but was refused. No other applicant was granted that request either on gender, civil status or family status basis. The complainant was not treated differently to others and I am not satisfied that she has established that the treatment given to her would impact in a disproportionate manner upon anyone in the complainant's position on either gender, civil status or family status grounds.
4.8 Section 14A (7) (a) of the Acts, inter alia, defines harassment as
"any form of unwanted conduct related to any of the discriminatory grounds ... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.9 In relation to harassment aspect of the complaint, I am not satisfied that the complainant has adduced any evidence or established facts from which harassment may be inferred.
4.10 In relation to the victimisation aspect of the complaint, having considered the issues raised and the evidence presented to me by both parties, I find that no evidence has been adduced to substantiate a claim that victimisation, as defined by the Acts, occurred prior to the date of the submission of the complaint. In relation to the events of January and February 2009, I have considered the evidence brought before me by both parties. The timetable for the recruitment and training of new fire-fighters was already established when the respondent was approached by one of its employees seeking to job-share. From the evidence presented, I find that it is the respondent's standard practice that applicants for job-sharing positions are required to find their own job-sharing partners. I note that when the employee came with a prospective job-share partner, he was advised to contact the complainant in the first instance and another colleague thereafter to ascertain their willingness to job-share, because they had previously expressed the desire to job-share. This employee was informed that his application could not be considered until the respondent was apprised of the complainant's position in relation to job-sharing. That employee then contacted the complainant, informed her that he wished to job-share and that he had been asked to call her. I consider that the complainant was, therefore, on notice from this point onwards regarding the possibility of the job-sharing position becoming a reality. She was also aware at that point of the need to undertake a 12 week full-tme training course in order to return to fire-fighting duties. The complainant informed her colleague that, due to ongoing legal action, it would be inappropriate to discuss the matter further with him. The complainant did not then seek to pursue the matter with the respondent. Two weeks later, the respondent wrote to the complainant outlining the circumstances in which a possibility of job-sharing had arisen, and deadline that it was operating within. The respondent asked the complainant to apprise it in writing if she was still interested in a job-sharing position. The complainant wrote back two weeks later through her legal representatives to indicate that she would not be taking up the offer at such short notice due to personal constraints and seeking that she be offered job-sharing at the next possible opportunity.
4.11 In the circumstances, I do not consider that facts have been established from which victimisation may be inferred.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that discriminatory treatment on the grounds of gender, civil status or family status, within the time limits envisaged by the Acts has not been established and this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment on the gender, civil status or family status grounds has not been established and this element of the complaint fails.
5.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of victimisation has not been established and this element of the complaint fails.
Conor Stokes
Equality Officer
13 March 2012