FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : BORDER, MIDLAND, AND WESTERN REGIONAL ASSEMBLY (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - GERRY LAVELLE (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal Under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. This is an appeal under Section 83 of Employment Equality Act, 1998- 2011. A Labour Court hearing took place on 29th January 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Border, Midland, & Western Regional Assembly against the Decision of an Equality Officer in a complaint made by Mr Gerry Lavelle under the Employment Equality Acts 1998-2011 (hereafter the Acts). The parties are referred to in this Determination as they were at first instance. Hence, Mr Lavelle is referred to as “the Complainant” and Border, Midland, & Western Regional Assembly is referred to as “the Respondent”.
The Complainant alleged that he was discriminated against on the ground of age contrary to Section 6(2)(f) and Section 8 (1) of the Acts when the Respondent refused to allow him avail of its policy, known as “e-working”, which allows employees to work partially from home. The complaint was investigated by an Equality Officer of the Equality Tribunal. The Equality Officer found that the Respondent had discriminated against the Complainant regarding his conditions of employment on the ground of age. He ordered the Respondent to facilitate the Complainant to e-work for a minimum of one day per week, for a period of one year, with a review meeting on the feasibility of the arrangement at the end of that period, and with the Complainant’s Union representative at the meeting if the Complainant so wished and awarded him compensation in the amount of €2,000 for the effects of the discrimination.
The Respondent appealed against the Equality Officer’s Decision.
The Complainant submitted his claim of discriminatory treatment to the Equality Tribunal on 18thJuly 2011. The Equality Officer held a hearing of the case on 12thMay 2014 and his Decision was issued on 11thAugust 2014.
Background
The Respondent is one of two Regional Assemblies established in 1999 under the Local Government Act, 1991 (Regional Authorities) (Establishment) Order, 1999.
The Complainant has been employed by the Respondent as a Programme
Executive, Corporate Affairs for the last 14 years. He works in HR and Corporate Affairs and also has responsibility for certain EU activities.
The Respondent has an e-working policy (the policy) in operation informally since 2004 and formally since 2010. Applicants must apply each year to avail of the policy and approval is given at the discretion of the Respondent’s Director. Pursuant to the policy, on 5thNovember 2010, the Complainant made an application to the Respondent to be allowed to e-work for two days per week during 2011 only. His request was refused on 12thNovember 2010. The Complainant unsuccessfully appealed against this decision. One of the reasons the Complainant gave for his application was that e-working might assist him in making a transition to retirement from a social perspective in case he opted for early retirement under the Public Service Agreement 2010-2014, which provided an incentive to those over 50 years of age opting for early retirement up to 31stDecember 2011, this deadline was extended to 29thFebruary 2012. As it transpired the Complainant did not avail of the early retirement scheme.
The Respondent’s Decision on his application request was given on 12thNovember 2010 and both the Assistant Director and the Director specified the reasons for the refusal. The Assistant Director stated as follows:-
- i."The nature of the work and responsibilities of the applicant (Programme Executive) do not in my view lend themselves well to working remotely. This senior position requires overseeing various administrative activities undertaken by staff of the Assembly, requiring the position to be office-based to ensure the effective performance of these duties.
- ii.The justification provided for the application, which is to enable the applicant to plan and adjust to retirement, is not a valid one, in my view. As stated in the BMW Assembly’s e-working policy, e-working arrangements do not give rise to a reduction in the responsibilities or workload or working hours of an applicant.
However, the applicant may be interested in participating on a retirement planning programme, without obligation, as a means of planning and transitioning to retirement at some stage over the coming years. I would recommend that this option be provided, with the support of the Assembly’s training budget. Other arrangements such as a shorter working year, could also be considered as appropriate, as a transition to retirement mechanism.”
- “Application for e-working is not being approved based on nature of work not being suitable to working remotely & planning for retirement is not compatible with the spirit of working remotely”
- "The facilitation of e-working by employees is not intended to be a prelude or as a transition to retirement for employees and my view remains that his is not a sufficient justification for approval of e-working arrangements.
I also consider that the nature of the current work and responsibilities of the applicant require that he be based in the Assembly office, with the exception of periods when he is required to be in a place other than the office of the Assembly.
Many of the key tasks listed in the application as being amenable to remote work e.g. Annual Report and Annual Work Programme, in my view, require sustained collaboration and interaction with other staff members for their efficient delivery, as the content of these is largely contributed by other sections in the organisation. Many of the duties of the position also require the applicant to work in tandem with the Staff Officer which would be difficult to deliver in a remote working environment. "
In his Decision dated 20thJanuary 2010, the Director gave the following reasons for his rejection of the Complainant’s appeal:-
- “Discussed with [the Complainant]. Confirmed to him that I considered that the nature of his duties and his reasons for seeking eworking were not covered sufficiently in the eworking policy. Applicant was therefore refused.”
Summary of the Complainant’s Case
Mr Padraig Mulligan, IMPACT on behalf of the Complainant contended that over the period of the Policy’s existence, five employees had applied for e-working, three under 50 years of age (all were under 40 years of age at the time) were approved whereas the Complainant and one other applicant who were over the age of 50 were refused. He contended that the criteria which applied to those granted e-working was primarily based on reasons other than the work they carried out. He submitted details of the three named comparators whose application for e-working had been approved, one of whom was on an identical grade to the Complainant and two who were on analogous grades to him. Mr Mulligan contended that all three named comparators granted e-working arrangements were approved due to the distances involved in their travel to work and family circumstances rather than the type of work they were engaged in.
Mr Mulligan contended that there was no consistency between the criteria which applied to the Complainant in refusing his request for e-working and the criteria specified in the policy itself. He held that there was a complete lack of transparency and general unfairness in the selection process of how the three younger employees were granted e-working. The reasons given for refusal were subjective, inconsistent with the policy, discriminatory and lacked transparency in their application.
Mr Mulligan submitted that the primary reason for not granting e-working to the Complainant was based on the fact that he sought to have a phased withdrawal from the office environment in preparation for eventual retirement, which was viewed both by the Director and the Assistant Director as an insufficient, if not improper motive for e-working. The rejection of the validity of such a motive, which was directly related to age, coupled with the fact that those employees over 50 who applied were refused while the three employees under 50 were granted e-working, this in Mr Mulligan’s opinion, was sufficient evidence to raise an inference of discriminatory treatment within the meaning of the Acts. He stated that the younger colleagues would not have been in a position to avail of the Public Service Early Retirement Scheme as they were all less than 50 years of age.
He submitted that the Respondent’s exclusion of him due to the reasons he sought the e-working arrangements placed a particular disadvantage on older employees as typically it would be older employees who would seek e-working in preparation for eventual retirement.Therefore excluding this reason from the policy had anadverse impact on older people. Accordingly, he contended that older staff members were less likely to be able to avail of the policy than younger staff members.
Mr Mulligan disputed the Respondent’s contention that the Complainant was responsible for overseeing various administrative activities undertakenby staff. He said that all thirteen staff of the organisation have a definite reporting structure, supervisedby their line managers, not the Complainant, he has onlyone employee (Staff Officer) reporting directlyto him.
Mr Mulligan stated one of the reasons why the Complainant sought e-working arrangements was to assist with a planned and gradual alienation and separation from interaction with other employees and not to seek a diminution in the quality of his work, duties or responsibilities.He surmised that the Respondent was of the view that a person planning on retirement and of the Complainant’s age was less adaptable and would not have the enthusiasm to work at home compared to his younger colleagues and insinuated that the Complainant’s intention in seeking to avail of e-working was as means of reducing his workload.
In support of the claim under the Acts, Mr Mulligan, cited EDA051-Portroe Stevedores and Nevins, Murphy, Flood,Labour Court Determination EDA051, wherein the Court determinedthat “ evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of a particular case".
The Labour Court went on to say:
- " Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices"
"Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age.It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken.Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration".
Mr. Mulligan contested the Respondent’s rationale for assessing the Complainant’s suitability for e-working, stating that it had failed to observe the requirement tocomplete an assessment based on a detailed questionnaire as contained in the revised national guidelines for Local Authorities on e-working.Summary of the Respondent’s Case
Ms Sarah Hearns, LGMA, on behalf of the Respondent stated that the Complainant's application was rejected on the basis that e-working was not an appropriate arrangement to facilitate a smooth transition to retirement; and, on the basis that the nature of his work did not lend itself to e-working. The Respondent held that the nature of the Complainant's role was incompatible with e-working. She stated that"making a smooth transition to retirement", was an inappropriate rationale to facilitate e-working. The Respondent did, however, suggest that the Complainant should be facilitated by attending, without obligation, a retirement planning programme. It also suggested that other arrangements, such as a shorter working year, could be considered as appropriate. She said that these were possible options presented only for consideration.
Ms Hearns stated that the principle of e-working is based on providing a facility to employees on occasions when such type of working suits the exigencies of the organisation. It is not primarily a family-friendly initiative. Family reasons may be taken into account in terms of allowing e-working but only in circumstances where the work is suited to working remotely from the office. She said that the Complainant was offered the option to avail of the Shorter Working Year Scheme, which she suggested was the most appropriate family-friendly policy available to an individual who wishes to ease their way to retirement without having to attend at the office every day.
Ms Hearns stated that the decision not to grant e-working was entirely based on the incompatibility of the Complainant's duties as HR Officer and responsible for running the organisation's corporate affairs. His duties require:-
- •interaction, collaboration and face to face contact with staff on an ongoing basis,
•access to office files, resources and facilities,
•ongoing supervision of staff.
Mr Hearns stated that the Complainant did not wish to reduce his workload, responsibilities or working time, however, she contended that if his request was granted, then due to the incompatibility of his duties to e-working, there would be ade factoreduction in his workload. She said that while two of the named comparators were paid at an analogous salary scale to the Complainant, the nature of their work was quite specialised, they worked in Research and IT respectively, which involved tasks which were portable, and undertook these duties on a limited e-working basis.
Ms Hearns stated that the e-working policy expressly states that it is intended to retain skilled staff that might otherwise leave, not facilitate the phased withdrawal of staff from work responsibilities. The rationale for the initial application by the Complainant was therefore fundamentally at variance with the object of the organisation's e-working policy. It was for these reasons alone that the Complainant's application was refused.
She suggested that should the Complainant wish to instigate measures to ease into his retirement then there were a number of appropriate alternative options available includinginter aliaShorter Working Year Scheme, Work-Sharing and/or pre-retirement planning.
Ms Hearns refuted the Union’s contention that the reasons for the Complainant’s refusal under the Policy were subjective and inconsistent. She said that the assessment of suitability by management was always based on the nature and portability of the work responsibilities of the employee and the need for interaction with fellow staff and that age was never a factor taken into account.
Finally, Ms Hearns briefly mentioned the changing nature of the Organisation and the Complainant’s duties and responsibilities.
The Law
The legal principles applicable in a case such as this are well established. They were most recently set out by this Court in Determination EDA131,Dr Eleanor O’Higgins v University College Dublinand, for the sake of completeness, should be set out again in this Determination. Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. InA Worker v A Hotel[2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -
- The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board [2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged 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 which she bears, her case cannot succeed.
The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court inKieran McCarthy v Cork City CouncilLabour Court Determination EDA0821 (December 16, 2008)).
Where aprima faciecase is made out the onus shifts to the Respondent to prove the absence of discrimination. This requires the Respondent to show a complete dissonance between the discriminatory ground relied upon and the impugned act or omission alleged to constitute discrimination. Thus, inWong v Igen Limited[2005] IRLR 258 (a decision of the Court of Appeal for England and Wales), Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a “trivial influence” in the impugned decision the complaint will be made out.
As was pointed out by this Court in Determination EDA0821,Kieran McCarthy v Cork City Council, at the initial stage the complainant is merely seeking to establish aprima faciecase. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
Findings and Conclusions of the Court
The Complainant asserts that his application for e-working was refused due to his age whereas younger colleagues were approved for e-working. The Respondent denies that there was any nexus between the decision to refuse the application and the Complainant’s age.
The Court must firstly consider whether the facts relied upon by the Complainant are of sufficient significance to raise an inference of discrimination, and if that question is in favour of the Complainant, the Court must then consider whether the Respondent can prove, as a matter of probability, that the Complainant’s age was in no sense whatsoever a factor that influenced the decision to refuse him a facility for e-working.
The Court notes the following:-
•According to the Respondent the fundamental reason for the Complainant’s requirement to work from home for two days per week revolved around consideration of his retirement, which rationale it held, was at variance with the object of its e-working policy and“it was for these reason alone that the complainant’s application was refused”. However, it simultaneously held the view that the Complainant's duties were incompatible with e-working arrangements and as the facility for e-working was not a guaranteed benefit, it retained the right to refuse it on that ground.
•When the Complainant was rejected for e-working, he was instantly informed he could apply for the Shorter Working Year scheme, which would have seen him being out of the office for a blocks of between two and twelve weeks of unpaid leave in addition to his annual leave.
•The Respondent is a small organisation of 13 employees, three employees under the age of 50 (all were all under 40 years of age)were granted approval to e-work whereas two employees over the age of 50 years were refused.The Court fully accepts that the business exigencies must in all cases be a prime consideration for approval or rejection. However, the Court concurs with the Equality Officer’s conclusion that the Respondent’s argument is weakened considerably by the fact that when it offered to apply for the Shorter Working Year scheme to the Complainant in lieu of approving e-working, the former arrangement could have seen him being out of the office for a block of between two and twelve weeks of unpaid leave in addition to his annual leave. The Respondent stated that such an offer was made on the basis that the latter arrangement was an unpaid arrangement, whereas e-working was a paid benefit. This seems to contradict the arguments centered on the exigencies of the business needs in respect of the Complainant.
The Equality Officer concluded that the Complainant’s motive for his application, which was clearly related to his age, was expressly rejected by the Respondent and accordingly found that the Complainant had succeeded in establishing aprima faciecase that the Respondent’s refusal to let him e-work amounted to discriminatory treatment on the ground of age. The Court concurs with this conclusion.
Furthermore, the Court concurs with his conclusion that insofar as a motive for wishing to e-work or work remotely is disclosed by a worker which is related to a status protected by the Acts, the rejection of the validity of such a motive by an employer is sufficient to raise an inference of discriminatory treatment within the meaning of Section 85A of the Acts. Furthermore the Court concurs with the Equality Officer’s final conclusion that even if the Respondent had concerns that the Complainant’s work performance would drop as a result of working from home, the Respondent could have easily agreed to a trial period. However, this or other e-working options were never suggested to the Complainant.
As inCork City Councilwhile it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved, it is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. The Court is satisfied that age was more than a “trivial influence” in the Respondent’s decision not to approve the Complainant’s application for e-working. Accordingly the Complainant has established aprima faciecase of discrimination. The onus then switches to the Respondent to prove that there was no connection between their actions and the discriminatory ground relied on. In the Court’s view the reasons advanced by the Respondent were not sufficient to discharge the onus which it bears and the Complainant must succeed.
Determination
The Court determines that:-
- i.The Respondent discriminated against the Complainant on the grounds of age, in December 2010 and January 2011, when he submitted his application / appeal in respect of an application for e-working arrangements, in terms of Section 6(2)(f) and Section 8 (1) of the Employment Equality Acts 1998 - 2011.
ii.The Court orders the Respondent to amend its e-working Policy to align it closer to the national guidelines contained in the Local Authorities July 2002 template which include a sample application form and guidelines on identification of suitable jobs and awareness of potential equality implications. The Court determines that in the event that the Complainant makes a further application for e-working arrangements his application should be assessed in accordance with these national guidelines, based on the nature of the duties and responsibilities of his role at the time of application.iii.The Court upholds the Equality Officer’s Decision to award the Complainant compensation in the sum of €2,000 for the effects of the discrimination. This award is in respect of non-pecuniary loss.
Accordingly, while the Court varies the Decision of the Equality Tribunal in the terms of this Determination, the appeal must nonetheless be disallowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th February 2015______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.