The Equality Tribunal
Employment Equality Acts
Decision DEC-E2013-151
PARTIES
Julian Andoo
(Represented by William John Kelly, B.L.
instructed by O’Hanrahan & Co, Solicitors)
- V -
Pagewell Concession (ILAC) Ltd.
(Represented by Bibby Consulting & Support Ltd.
instructed by Peninsula Business Services)
File references: EE/2012/578
Date of issue: 18 November 2013
Keywords - Employment Equality Acts – Discriminatory Treatment – Discriminatory Dismissal - Family Status – Civil Status - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that that he was subjected to discriminatory treatment and discriminatory dismissal by the respondent on the grounds of his family status in terms of Sections 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred claims of discrimination to the Director of the Equality Tribunal on 9 November 2012 under the Employment Equality Acts. On 20 September 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the cases 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 25 October 2013. Additional information arising from the hearing was forwarded to the Tribunal on 5 November 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SCOPE OF THE INVESTIGATION
2.1 The complainant submitted an application form to the Tribunal indicating that he wished to pursue a complainant on the basis of the Family Status ground. However, his accompanying documentation (and all documentation thereafter) clearly outlined a complaint predominantly on the basis of the Marital Status (now Civil Status) ground.
2.2 The respondent received all the documentation submitted by the respondent and whilst they too referred to the Family Status ground, their defence considered the issues raised predominantly by the Marital Status (now Civil Status) ground. At no time did the respondent object to processing of this case on the basis that it did not relate to the ground cited.
2.3 At the hearing of this matter, following explanation of the relevant grounds, I clarified with both parties that their submissions, though citing the Family Status ground referred predominantly to the Marital Status (now Civil Status) ground. Both parties were invited to make written closing submissions on the case, including the issue of the appropriate grounds. No specific submissions were made on this aspect of the complaint. Having considered the written and oral submissions from both parties, I am satisfied that it is in order for me to proceed on the basis that the complainant indicated both the Civil Status and the Family Status grounds and that neither party is at any disadvantage by so proceeding.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submitted that he was employed by the respondent from 17 December 2011 until he was asked to resign on 19 July 2012.
3.2 The complainant submitted that his wife was employed by the respondent. When she became pregnant, she requested that the complainant be allowed to move from the store where he was located to the store where she was located as this was more convenient for the family. The respondent facilitated this request. The complainant’s wife was on maternity leave from January 2012 until 25 July 2012.
3.3 The complainant submitted that when his wife was due to return from maternity leave, he was told to resign due to a “no married couples” policy at the store. The complainant resigned thereafter and his employment ended.
4. SUMMARY OF THE RESPONDENT’S CASE
4.1 The respondent submitted that the complainant’s wife requested that, while she went on maternity leave, that the complainant be allowed to move to from where he was then working (store A) to the store where she was working (store B) for the duration of her maternity leave. The respondent submitted that the complainant’s wife stated that he would return to his original place of work when she returned from maternity leave. The respondent agreed to that request.
4.2 The respondent submitted that the complainant’s wife was on maternity leave from 25 January 2012 and the complainant moved to store B on 31 January 2012
4.3 The respondent denied that the complainant was asked to leave his employment with the respondent, rather in July 2012 the complainant informed the respondent that he had found another job. He requested days off to begin training for the new position and finished up his employment on 7 July 2012. His wife returned to employment on 24 July 2012
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment and discriminatory dismissal on grounds of family and civil status, in terms of Sections 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
5.2 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.
5.3 At the oral hearing, evidence was given by both parties and a number of witnesses. Some of the evidence presented was contested and contradicted by either the other party or one of the witnesses. Therefore it falls to me to decide on the credibility of various witnesses and the likelihood of various events having taken place.
5.4 When considering the oral evidence of each of the witnesses (especially when contradictory), I am particularly mindful of the credibility or otherwise of the individuals in terms of their demeanour while testifying; their level of recollection of various incidents/facts; the existence or non-existence of bias, interest or other motive; the consistency of their evidence – within their own accounts and when the accounts are compared with one another; and the plausibility of their accounts. I have also taken into account the issues raised by cross-examination by the various representatives.
5.5 Having regard to the foregoing, I am satisfied that on the balance of probabilities, the following issues have been established:
- the complainant moved from store A to store B to provide maternity cover for his wife for the duration of her maternity leave
- the complainant’s wife sought the move for her husband
- the complainant was only employed on a one day a week basis in store A but was working a minimum of four days per week in store B
- One of the managers, Mr P, conceded that he might have said to the complainant that married couples couldn’t work together
- the respondent has a policy, decided on a case by case basis, that related persons may not work together
- the complainant was due to revert to his former level of employment, i.e. one day per week
- the respondent had raised a number of disciplinary issues with the complainant while he was working in store B
- the complainant found alternative employment some three weeks before his wife was due to return from her maternity leave
- the respondent was aware that the couple were married while they were still in employment with the company and before that were aware that they were in a relationship
5.6 Having regard to the foregoing I am satisfied that the complainant was employed in store B for a fixed term only, i.e. for the duration of his wife’s maternity leave. Furthermore I am satisfied that the company has a policy that related persons may not work together, but that this policy does not prohibit only married couples from working together.
5.7 At the hearing, the evidence was that the complainant sought out employment in store B on the basis or that it was both more convenient and also that there was a financial bonus as it meant that the complainant would be working substantially more days. It is possible to infer from the evidence presented at the hearing that the complainant did not want to transfer to a different location and sought out alternative employment in the same geographical area approximately one month before his wife returned from maternity leave and his appointment to store B would come to an end.
5.8 The complainant resigned from his employment on 7 July 2012. On the basis of the foregoing information, I am not satisfied that the complainant has established facts from which constructive discriminatory dismissal may be inferred. Therefore, this element of the complaint must fail.
5.9 In relation to the alleged discriminatory treatment, no evidence was presented that the complainant was treated any differently from persons who had no children under the age of 18 therefore I am not satisfied that the complainant has established facts from which discriminatory treatment on the family status ground may be inferred.
5.10 In relation to alleged discriminatory treatment on the civil status ground, the complainant alleged that he was told that he could not remain in his post as he was married and Mr P, one on the managers conceded that he told the complainant that married couples couldn’t work together. Having considered the written and oral evidence in relation to this issue, I am satisfied that the complainant was told that married couples couldn’t work together. I am not satisfied that the policy in its entirety was explained to the complainant including that there were circumstances where couples or related persons could continue to work together. I am also satisfied that three non-marital couples were working together. Therefore, I am satisfied that the complainant has established facts from which discrimination on the Civil Status ground can be inferred and, therefore, the onus to rebut this inference falls upon the respondent.
5.11 Having considered the evidence from both parties, I am satisfied that one aspect of the policy, i.e. that married couples cannot work together was told to the complainant. However, at no stage was the policy in its entirety explained to the complainant and no direction was given to him as to how and when the exceptions applied, or that there were exceptions to that policy as may be the case relating to his colleagues in the three couples who were working together. Having considered the foregoing, I am not satisfied that the respondent has rebutted the inference of discrimination raised and the complainant in entitled to succeed.
6. DECISION
6.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the family status ground has not been established and this element of the complaint fails.
6.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of either the family status or the civil status has not been established and this element of the complaint fails.
6.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the civil status ground has been established by the complainant and that this has not been rebutted by the respondent, and therefore this element of the complaint succeeds.
6.4 On the basis of the foregoing I find that the respondent did subject the complainant discriminatory treatment on the grounds of civil status gender in terms of section 6(2) of the Employment Equality Acts. In accordance with section 82 of those Acts, I award the complainant €500 in compensation for the discriminatory treatment suffered. The level of the award reflects the fact that the complainant was not left at a material disadvantage by the discriminatory treatment. However, as this award does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
18 November 2013