EMPLOYMENT EQUALITY ACTS
Decision DEC - E2013- 011
PARTIES
Rothwell
v
Dublin Bus
File references: EE/2010/471
Date of issue: 26 February 2013
Headnotes: Employment Equality Acts - sections 6, 8, 14A(7), 19, 29, 74, 85A - gender - marital status- family status - race - prima-facie case - conditions of employment - equal pay -victimisation - harassment.
1. Dispute
1.1 This dispute concerns a claim by Mr Derek Rothwell, (hereinafter "the complainant"), that he was subjected to discriminatory treatment by Dublin Bus (hereinafter "the respondent") on the grounds of gender, marital status, family status, race in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts in relation to conditions of employment and other. He also maintained that he was harassed and victimised in terms of the Acts. He also made a claim in relation to equal pay.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 22 June 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 18 July 2012, the date the complaint was delegated to me. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 13 September 2012. Further submissions on behalf of both the complainants and respondents were received and exchanged. A number of issues arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties up to 6 December 2012.
2. Summary of the Complainant's Submission
2.1 The complainant is employed by the respondent as bus driver. He submits that, since 1 November 2009 in order to share the care of his newborn child he requested to be facilitated by working late all the time. He was told that he would be facilitated and that there was no problem with this but he was not so facilitated. He states that he has been treated less favourably than his colleagues. He states that a veto by an opposing union on a fair agreement scuppered any closure on this issue although there is no basis for this veto.
2.2 The complainant contends that he was victimised by the respondent. He considers that this is victimisation due to discrimination. The complainant also submits a claim for equal pay against seven named comparators on the grounds that he performed the same work as each of these comparators, or his work was interchangeable with that of each of these comparators.
3 Summary of the Respondent's Submission
3.1 The respondent denies that the complainant has been subjected to discrimination on the grounds of gender, marital status, family status and race, contrary to section 6 of the Employment Equality Acts. The respondent states that the complainant is employed as a bus driver since February 1990.
3.2 In 2009 he approached his manager looking for a change in his rostered work pattern. On 6 September 2009 he began working a 4 day week - resting on Tuesday, Wednesday, Thursday and working late on Friday, Saturday, Sunday and Monday. He worked this roster until 31 October 2009 when he went back on a 5 day week resting every Monday, and working late duties 5 other days a week. During this period concerns were raised locally that arrangements for him were impacting negatively on spare drivers in the garage. An agreement was reached with the complainant in the presence of his trade union representative that he would be facilitated with a change in the agreed 4 day roster in order to facilitate his request to be off every Monday. The complainant agreed to commence working the revised 4 day week roster from the end of November 2009. He worked this roster from 29 November 2009 until being restored to his 5 day week roster on 18 April 2010. The complainant had been advised by his manager that in order for him to avail of the 4 day week roster he would be required to sign a 4 day week contract. He was unwilling to do this as he had a number of issues which he wanted addressed prior to his signing this contact. He wrote to the Human Resources Manager with a list of questions concerning various items on the 4 day week contract. The Human Resources Manager replied in writing to these queries. Having received this reply the complainant was unwilling to sign the contract. The complainant reverted back to his roster and sought to be facilitated in another way.
3.3 The respondent submits that following protracted discussions with both his union and local management it was agreed that the complainant would be released from his early duties and facilitated with late duties in order to address a childcare issue. Concerns were raised at a local level at the impact of allocating late duties to a senior driver on the block and its impact on the rest of the spare panel of drivers in the garage. It was agreed that the complainant should be given a late duty which would not commence before 15.00. The complainant also requested that he be allowed to work his early duty on a Saturday and Sunday as he would not have a childcare issue on these days. This request was examined in terms of its feasibility bearing in mind the rest period associated with the 48 hour working week and was subsequently granted. The complainant continues to be facilitated by the company with a change to his rostered work pattern.
3.4 The respondent contends that it has gone to considerable lengths to facilitate the complainant with suitable working arrangements and he has been treated fairly by the respondent throughout. He has not been treated less favourably than any other employee and he has not been discriminated against under the Employment Equality Acts on the grounds of family status, gender, marital status and race.
Conclusions of the Equality Officer
4.1 The issues for decision by me are whether or not the respondent discriminated against the complainant on grounds of gender, marital status, family status, race in terms of Section 6 of the Employment Equality Acts in relation to conditions of employment, harassment, victimisation and equal pay.
Section 6(1) of the Employment Equality Acts 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 terms of subsection (2)...".
Section 6(2) of the Acts defines the discriminatory grounds "as between any two persons.. (a) that one is a woman and the other is a man .. (.."gender ground")
(b) that they are of different marital status..(.."marital status ground")
(c) that one has family status and the other does not..(.."family status ground")
(h) that they are of different race, colour, nationality or ethnic or national origins(.."race ground")"
Thus the complainant must the subject of less favourable treatment in comparison to another person on grounds of gender, marital status, family status, and/or race.
4.2 Section 85A of the Employment Equality 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. The test for applying that provision is well settled in a line of Decisions of this Tribunal1 and the Labour Court2. It requires the complainant to prove the primary facts upon which he/she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him/her, his/her case cannot succeed.
4.3 There are three key elements which need to be established by a complainant to show that a prima facie case exists are (i) that s/he is covered by the relevant discriminatory ground(s) (ii) that s/he has been subjected to specific treatment and (iii) that this treatment is less favourable than the treatment to which someone, who is not covered by the relevant discriminatory ground, has been or would be treated. In the instant case, in relation to the first element the complainant is male; at the hearing he stated that his marital status is single; he has a young child and his nationality is Irish. In relation to the second element regarding the specific treatment he has been subjected to, at the hearing the complainant confirmed that there had been ongoing discussions and negotiations with the respondent in relation to his request to work lates. From the evidence of both parties at the hearing it is apparent that the complainant was unsatisfied with the various responses of the respondent to his various requests to work specific hours and days. In particular he objected to a requirement in April 2010 to sign a 4 day week contract in order for him to avail of the 4 day week roster. In relation to the third element that he was subjected to less favourable treatment than others not covered by the relevant discriminatory ground, the complainant alleged that the comparators named by him were allowed to work similar hours to which he had requested and did not have to sign the 4 day week contract and thus were eligible to more working hours, more shift allowance and more overtime payments than he. The respondent denied this and provided evidence that drivers on 4 day week roster had signed the 4 day week contract agreed with the unions in 2009.
4.4 In order to establish a prima facie case of discrimination under the employment equality legislation the complainant must demonstrate that he suffered a less favourable difference in treatment as compared with others in a similar situation, and that this treatment was influenced in some way (other than in a trivial manner) by the discriminatory ground cited. As previously stated at 4.3 above, the complainant is Irish, single, male and has one dependent child. At the hearing, the complainant stated that, as far as he was aware, six of the named comparators were Irish. one of the comparators was single and the others married; one of the comparators was female and all of the comparators had dependent children. Subsequently the respondent confirmed that two of the comparators had no dependent children. Consequently there is no evidence to suggest that any purported differences in treatment or remuneration of the complainant compared with the other employees named by him was influenced in some way by any of the discriminatory grounds cited by the complainant. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in respect of these elements of his complaint. In addition I can find nothing in the evidence available that leads me to make any inference that the complainant was subjected to harassment on any of the discriminatory grounds nor to make any inference that the complainant suffered adverse treatment as a reaction to a complaint of discrimination under these Acts. I therefore find that the complainant has failed to demonstrate a claim of harassment or a claim of victimisation in terms of the Acts. Therefore the complainant's case fails. Accordingly, I find in favour of the respondent in this matter.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, I issue the following decision
(i) the respondent did not discriminate against the complainant on the gender, marital status, family status, race ground pursuant to section 6(2) of the Acts in terms of his conditions of employment, contrary to section 8 of the Acts.
(ii) the respondent did not discriminate against the complainant pursuant to section 6(2) of the Acts contrary to section 19 and/or section 29 of the Acts in relation to his remuneration.
(iii) the respondent did not discriminate against the complainant by permitting his harassment on grounds of gender, race, marital status or family status contrary to section 14A(7) of the Acts
(iv) the respondent did not victimise the complainant contrary to S. 74(2) of the Acts.
___________________
Deirdre Sweeney
Equality Officer
26 February 2013
1 Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-20
2 Southern Health Board v Mitchell AEE/99/8