The Equality Tribunal
Employment Equality Acts 1998-2011
EQUALITY OFFICER'S DECISION NO: DEC-E2013-061
PARTIES
MS. ANNE FIGURSKA
(Represented by Mr Brendan Archbold)
-V-
IRONWOOD LIMITED
(Represented by Management Support Services Ireland LTD)
File No: EE/2010/713
Date of issue 25th June 2013
1. DISPUTE
This dispute involves a claim by Ms. Anne Figurska that she was discriminatorily dismissed by Ironwood Limited, on grounds of gender, family status and race, in terms of section 6 of the Employment Equality Acts, 1998-2011 and contrary to section 8 of the Acts when Ironwood Limited ended her employment in September 2010.
2. BACKGROUND
2.1 The complainant commenced employment as a retail assistant with the respondent on the 3rd July 2010. Ironwood Limited is a retail company involved in the selling of bags and associated items. She worked on a part-time basis for a period of nine weeks in the retail unit with three other part-time staff and two full-time. Hours for the following week were posted in the shop on Saturdays. Her employment ended on 7th September 2010 following a dispute regarding changes in the roster of hours.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2011 to the Equality Tribunal on 27 September 2010. On the 30th November 2012, in accordance with his powers under the Acts the Director delegated the complaint to me, Mr. Peter Healy, an Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a hearing of the complaint took place on 27th February 2013.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent in July 2010 as a retail assistant, in a retail unit located in a shopping mall. At her recruitment interview in was made clear that no full-time position existed and that she would work part time in order to cover for full-time staff. The complainant contends that due to her child minding arrangements she came to an arrangement with the then manager of the shop, that she would work up to thirty hours per week and up to six days per week over the busy summer holiday period in exchange for a three day working week of between twelve and eighteen hours from September onwards. The unit had three part time staff members all of whom were Polish females. One other part-time employee also had a child and the manager had accommodated her child care needs by allowing her to work afternoon shifts. During this period of employment the complainant said she had a good working relationship with management and employees.
3.2 On 4th of September a new manager took over the running of the store. The complainant submits that she reported for work on the 5th of September to discover that the new manager's roster of hours posted in the shop presented her with working hours which would have been, in her view, the worst possible working arrangement for her. The complainant says that the other part time employee present at that time was also extremely disturbed by the new arrangement of hours. The complainant states that she telephoned the new manager although they had not met face to face at that point and explained her concerns. She adds that the new manager informed her that in light of those concerns that the company would no longer provide the complainant with work as she was not flexible. The complainant says that the new manager began to shout and hung up. The complainant says that she rang the manager back again directly but that the new manager used abusive language and stated that she was not interested in the arrangement with the previous manager.
3.3 The complainant states that on the basis of the above exchange she considered her employment to be over as she could not work the required hours. The complainant left the store but returned two days later to work out her one weeks notice. She met the new manager face to face for the first time. The complainant states that she found the new managers attitude to be hostile. She asserts that, in front of customers, the new manger confirmed that no more work was available, pointed to the door and told her to get out. The complainant considered her employment terminated at that time but states that she was unaware of any appeals mechanism as she had not been provided with written policies in this regard. She adds that she did not consider bringing the issue to the attention of more senior management (whom she had met infrequently) as she felt they were not approachable.
3.4 The complainant submits that as the family friendly arrangement agreed between the complainant and the first manager did not suit the new manager that she opted to ignore it. The complaint submits that as a result of this decision she was dismissed.
3.5 The complainant also submitted that the absence of a written contract of employment, a disciplinary procedure, a grievance procedure, and any Equality/Dignity at work policy was designed to ensure that the complainant had no formal terms and conditions of employment, no avenue of grievance or complaint and no written statement to fall back on. Such circumstances allowed the responded to present its own version of events as to the complainant's employment and its termination.
3.6 The complainant says that the respondent advertised for more staff following the dismissal of the complainant demonstrating that staff were required following her departure.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that her dismissal was connected to any of the grounds of discrimination advanced. It states the only reason her employment was terminated was because hours of work that would suit the complainant could not be accommodated due to the fall off in sales and the economic outlook for the business.
4.2 The respondent says that at no time was the new manager advised that there was any specific agreement in relation to the working hours for the claimant. The respondent submits that the new operating rosters which came into operation from the 6th of September, reflected that the busy season had ended and the requirement to reduce hours due to the general fall off in sales consistent with the wider economic downturn at that time. The respondent says that trading hours were reduced from 141 hours per week to 90 hours per week. The new roster reflected that the shop now operated with two full time staff, who were required to open and close the shop and two part time staff, who were required to provide cover for the full time staff as necessary. Therefore, the respondent submits, the arrangement that the complainant claims to have agreed with the first manager could not have been facilitated by the new manager. The respondent submits that the claimant was not dismissed for disciplinary reasons. It was only when the claimant refused to work a revised roster maintaining that the hours did not suit her, that it became apparent that the company were unable to provide her with hours of work that did suit her. They further submit that the claimant refused to discuss the matter rationally and they reject assertions that the new manger behaved in a hostile manner.
4.3 The respondent acknowledges that the claimant was not issued with a copy of their standard terms and conditions of employment but maintains that this arose as a consequence of the short period of the respondents employment and the change of managers during this period.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was dismissed by the respondent in circumstances amounting to discrimination, on grounds of gender, family status and race, in terms of section 6 of the Acts and contrary to section 8 of the Acts, when it terminated her employment in September 2010. In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 In Melbury Developments v Arturs Valpetters 1 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd 2 that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar [1998] 2 All ER 953)
5.4 The complaint revolves around changes in the roster of hours and the working arrangement that the complainant contends was in place with the management. There is no dispute between the parties that the complainant was dismissed and that it was because the new roster did not suit the complainant. In the course of the hearing the complainant gave conflicting evidence regarding when the arrangement was agreed. In the first instance she states that this arrangement was reached at her recruitment interview when the manager offered it to her as a solution to her child care requirements. Later in the hearing the complainant stated that the agreement was reached a week or two after she had started. The complainant states she had informed the manager that her child care circumstances would change from September onwards necessitating the arrangement but later in the hearing contradicted this directly. Given these inconsistencies, I do not find it credible that such an arrangement existed.
5.5 In regards to the ground of race which the complainant is proceeding with on the basis of her Polish nationality the complainant has advanced no direct evidence that relates to the grounds of race. I have noted that all employees including those acting as managers in the particular shop were of Polish nationality and that the wider company employee profile consists of a wide range of nationalities. When asked directly if she believed that she was treated differently by the company because of her nationality or gender the complainant responded that she "did not know".
5.6 In regards to the ground of family status, evidence from the respondent demonstrates that hours for all part-time employees were altered radically at the same time as the change to the complainant's hours. At hearing, evidence from the complainant is that the other part-time employee present on 5th of September was even more emotionally upset by the change than the complainant. Taking into account the business needs of the company I am satisfied that the change in work patterns was justified.
5.7 Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am not satisfied that the complainant has established facts from which if can be shown that she was treated in a less favourable manner than others. I find that the decision to change the rosters was based on the business needs of the company rather than any race, gender or family status ground. The complainant was a part-time worker who wished to secure a three day a week working arrangement. Her employer was unable to provide such an arrangement. Its clear from the uncontested evidence regarding the hours worked by staff following the complainants departure that the business operated with only one part-time employee who was required to work a varied working week of between 10 and 39 hours over a five day period. It is also clear from this evidence that the other two staff acting in a full-time capacity were required to be in attendance to open and close the shop.
5.7 At hearing the complainant advanced the argument that a hypothetical comparator would be a single Irish male with no children. In Toker Developments v Edgars Grods 3 it was held that "it is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of a particular case. ... It would clearly be impermissible for the Court to reach conclusions of fact based upon mere supposition or speculation.". Having carefully considered the evidence adduced by the complainant in the instant case, I conclude that they have failed to adduce any evidence to support the assertion that such a comparator would have been treated differently by the respondent in similar circumstances. Based on the evidence regarding the change in trading conditions and the actual rosters of hours working following the complainants departure, I do not find it probable that such a comparator would have been accommodated in any way regarding the provision of a special arrangement of working hours by the respondent.
6. DECISION OF THE EQUALITY OFFICER.
6.1 Having considered all of the written and oral evidence presented to me. I find that that a prima facie case of discriminatory dismissal on ground of race has not been established and this element of the complaint fails.
6.2 I find that that a prima facie case of discriminatory dismissal on the ground of family status has not been established and this element of the complaint fails.
6.3 I find that that a prima facie case of discriminatory dismissal on the ground of gender has not been established and this element of the complaint fails.
____________________________
Peter Healy
Equality Officer
25th June 2013
Footnotes:
1 EDA 0917
2 Arturas Businkas v Eupat Ltd (In Liquidation) EDA103
3 EDA105