Equality Officer’s Decision No: DEC-E/2015/023
Parties
Adejumo
-v-
Noonan Services Group Ltd.
(Represented by Management Support Services (Ireland) Ltd
File No: EE/2012/187
Date of issue: 22May, 2015
Employment Equality Acts, 1998-2011 – Sections 6, 8 and 14A –discriminatory treatment – harassment- family status
1. DISPUTE
This dispute involves a claim by Mr. Kehinde Adejumo (“the complainant”) that he was (i) discriminated against by Noonan Service Group Ltd (“the respondent”) in respect of his conditions of employment on grounds of family status and religion, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts and (ii) harassed by the respondent on grounds of family status and religion in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts.
2. BACKGROUND
2.1 The complainant commenced employment as a Security Operative with a security company (details supplied) in July, 2008 and transferred to the respondent in November, 2010 under a Transfer of Undertakings. He contends that he was originally employed on a full-time permanent basis and that shortly after his transfer to the respondent his hours of work were reduced. The complainant asserts that this amounts to less favourable treatment of him on grounds of family status and religion – he states that he has children and is a Christian. The complainant further contends that the respondent harassed him on grounds of family status and religion during his period of employment. The respondent rejects the assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 23 March, 2012. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 5 June, 2014 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 11 June, 2014 and 29 July, 2014. A number of issues emerged at the Hearing that resulted in further correspondence between the Equality Officer and the parties. In the course of the hearing on 11 June, 2014 the complainant withdrew his allegations of discrimination on grounds of religion.
2.3 The complainant wrote to the Tribunal on 9 November, 2012 detailing a number of other incidents of alleged unlawful treatment of him contrary to the Acts- all of which occurred after the date of referral of his complaint to the Tribunal. The Labour Court held in Hurley v Cork VEC[1]that a complainant could not obtain redress under the Employment Equality Acts in respect of incidents which post- date the date of referral of the complaint to the Tribunal. The Court went on to say however that it was permissible for the complainant to tender evidence on any such alleged incidents which had probative value in relation to the alleged incidents encompassed by the complaint. Having given the parties the opportunity to comment on the Labour Court’s Determination, I indicated that I intended to adopt the approach set out by the Court in the instant case.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that he is a married man with children. He further states that he is a Christian. He adds that he signed a contract of employment with a security company (details supplied) for the position of full-time Security Operative in September, 2007 - although he did not commence employment at that time because of issues connected with a work permit. The complainant states that he commenced employment with that company as a Security Operative in July, 2008. He adds that he signed a second contract of employment at that time and that this contract also stated he was a full-time employee. The complainant further states that during his period of employment with this company he was rostered for around thirty hours each week, although this could change. He adds that on previous occasions during 2008-2010 he had been rostered for thirty-nine hours a week. The complainant further states that as a full-time employee he believed he was entitled to forty hours per week and the respondent was not assigning him that number of weekly hours, even when he indicates he is available for work. He furnished the Tribunal with a number of pay slips covering periods in 2008 -2010. In the course of the Hearing the complainant stated he could not remember if his employer at that time guaranteed him a certain number of hours per week. He states he had an arrangement with his employer at that time that he (the complainant) would let the Operations Manager know what hours he was available for any given week - his wife worked as a nurse and when her roster was known he would notify his availability to his employer as he and his wife shared childcare responsibilities. The complainant adds that this arrangement worked well and he was only rostered for days he had indicated he was available.
3.2 The complainant states that the security company he originally worked for lost the contract for the security services at the site where he worked (details supplied) to the respondent in October/November, 2010. He adds that as a result he and several of his colleagues transferred employment to the respondent under arrangements governed by the Transfer of Undertaking Regulations. The complainant states that shortly after he transferred to the respondent he met with Mr. X in his Office. He adds that during this meeting he signed a number of documents and Mr. X advised that he (the complainant) was a full-time employee. The complainant states that the only thing Mr. X did not advise was the number of hours he (the complainant) would be rostered each week. He adds that shortly after this meeting his weekly hours began to reduce and he raised the matter with Mr. X, who replied that the reduction in hours was because of issues connected with his (the complainant’s) availability. The complainant adds Mr. X advised that so far as the respondent was concerned it was allocating him a similar amount of hours to that allocated to him by his previous employer – a position the complainant rejects. He states that he received the roster for a week during mid-January, 2011and noted that he was only rostered for twenty-four hours that week. He adds that he e-mailed Mr. X on 23 January, 2011 expressing his displeasure at the low number of hours he was rostered that week. In the course of the Hearing the complainant confirmed that this e-mail stated (a) that he would always need to confirm his availability in advance of the roster being prepared and (b) that he did not make any reference to his full-time status.
3.3 The complainant states that he met with Mr. X and Ms. A (HR Business Partner with the respondent) on 31 January, 2011 to discuss the contents of his e-mail. In the course of the Hearing the complainant was unable to recall what occurred at this meeting but stated that the issue he wished to have addressed – his full-time status- remained unresolved. He adds that after this meeting his weekly hours went back to thirty hours per week and thereafter generally fluctuated between that and forty hours per week. In the course of the Hearing the complainant accepted the accuracy of the details submitted by the respondent in respect of the weekly hours the complainant was rostered between January, 2011 and the time when he went on long-term sick leave. The complainant submits that the respondent’s actions amount to less favourable treatment of him on grounds of family status and in this regard he refers to two colleagues Mr. R and Mr. S. He states that Mr. R has no children and when he returned to the site where the complainant worked (in late November, 2011) the respondent changed shift patterns which benefitted Mr. R and resulted in him being rostered for forty hours per week. He contends that he (the complainant) should have been allocated these hours. The complainant states that Mr. S (the second comparator) is consistently rostered for thirty-six hours each week and in addition is called in to cover additional shifts as necessary. He asserts that he could do these hours and that the allocation of them to Mr. S constitutes less favourable treatment of him (the complainant) on grounds of family status contrary to the Acts. In the course of the Hearing the complainant was unable to say if Mr. S had children.
3.4 The complainant states that he was extremely unhappy and dissatisfied with the number of hours he was being rostered and he wrote to Mr. X on 9 February, 2012 raising this issue, along with complaints about his employment status, holiday entitlements, payment for public holidays and the condition of the accommodation at the location he worked. He adds that he met with Mr. X on 22 February, 2012 and received the respondent’s written response to the matter a few days later. The complainant states that he took issue with the contents of this response and replied to it on 28 February, 2012. He asserts that this letter in effect was an appeal of the responses he previously received from the respondent and he met with two other employees of the respondent (Mr. Y and Ms. C) on 25 April, 2012 as part of this appeals process. The complainant states that he received the outcome of this appeal in writing on 4 May, 2012. He adds that he was again dissatisfied with the outcome, but did not pursue the matter further internally as he had referred his complaint to this Tribunal by that time. In summary, the complainant contends that he is a full-time employee – his contract of employment from his previous employment states this. Consequently he transferred as a full-time employee to the respondent and he should therefore receive full-time hours – which he states are forty hours per week. He submits that the failure of the respondent to roster him for that number of hours amount to less favourable treatment of him on grounds of family status.
3.5 The complainant states that he was rostered for an eight hour shift on the afternoon of 23 February, 2012 which was due to commence at 3pm. He adds that he had just commenced his shift when another employee arrived and informed him that he was on that shift. The complainant states that he immediately raised the matter with Ms. M in the Staff Support Unit who informed him that he was surplus to requirements and asked if his Supervisor had not contacted him to advise him not to attend work that shift. The complainant adds that no further explanation was given to him. He states that he was extremely embarrassed by the situation and asserts that it amounts to less favourable treatment of him on grounds of family status contrary to the Acts. In the course of the Hearing he was unable to state what the family status of the employee who was retained on shift was or identify any other employee who had been treated differently in similar circumstances.
3.6 The complainant states that he contacted the respondent as usual on 19 October, 2012 advising of his availability for the next rostered period. He adds that he would usually receive details of his rostered hours with his pay-slip every week. He further states that he received no roster on 25 October, 2012 and that he contacted the office seeking an explanation. The complainant adds that he was requested to attend a meeting with Ms. B the following day. He states that in the course of this meeting (which was also attended by Ms. C) he was told that the client at the site where he worked had requested a change in the staff working there. The complainant adds that when he asked for written confirmation of this request they were unable to produce same. In the course of the Hearing the complainant stated that he was the only one called to such a meeting but later stated he did not know if any of his colleagues were treated in similar fashion. He subsequently challenged the documentation advanced by the respondent in respect of this matter, asserting that the client would not behave in such a manner. He submits that this amounts to less favourable treatment and harassment of him on grounds of family status contrary to the Acts. In the course of the Hearing the complainant confirmed that later in the afternoon of 26 October, 2012 he received a telephone call from the respondent offering him shifts at an alternative site. He further confirmed that he refused the offer because the location was not suitable for him. The complainant stated that he immediately went on a period of annual leave (which was granted by the respondent) and that he subsequently went on sick leave and never resumed work.
3.7 The complainant states that he received a letter from the respondent dated 2 November, 2012 informing him that he would be placed on short-time with effect from 26 October, 2012. The complainant asserts that this was a pre-planned action by the employer in an attempt to force him out and argues contends that this is a further example of discrimination of him on the basis of his family status.
3.8 The complainant also asserts that he was subjected to harassment during the course of his employment on grounds of family status and religion. In the course of the Hearing he submitted that the meeting with Ms. B on 26 October, 2012 constituted harassment of him on grounds of family status as it was denying him the right to work and thus preventing him from providing for his family. The complainant did not advance details of any other alleged incidents of harassment on the family status ground. The complainant stated that during a meeting with Mr. X on one occasion (in January, 2011) when they were discussing issues around the weekly hours of work he (the complainant) was entitled to, he (the complainant) felt Mr. X had formed the view that the complainant was “making up a story” about what had happened with his previous employer. The complainant stated that he is a Minister in his Church and in order to allay any fears Mr. X had in this regard he used the phrase “as God is my witness”. He added that Mr. X responded by saying something along the lines of “let’s leave God out of this”. The complainant submits that this comment was offensive to him on grounds of religion and therefore amounts to harassment of him on that ground contrary to the Acts. He did not advance details of any other alleged incidents of harassment on the religion ground.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent states that the complainant transferred to its employment in November, 2010 under the Transfer of Undertaking Regulations when it took over responsibility for the contact on the site where he worked. It adds that as part of the transfer process the complainant’s previous employer furnished relevant details of all staff transferring, including the complainant. It states that this information indicated the complainant was a permanent employee whose weekly working hours were twenty-four. It adds that it also received a copy of a contract of employment dated 3 July, 2008 purported to be signed by the complainant. It states that this document did not specify the complainant’s status (full-time/part-time) or his weekly working hours. The respondent further states that it was aware of the arrangement the complainant had with his previous employer in respect of notification of his availability on a weekly basis before the rosters being finalised and adds that it was happy to accommodate this arrangement and did so. In this regard it argues that the complainant is treated more favourably than any of his colleagues as he is the only employee who is facilitated in this fashion. It adds that it rostered the complainant for at least twenty-four hours every week and based on the information available to it from the complainant’s previous employer, it was honouring the terms of employment he previously had. In this regard it notes Section 1D of the contract of employment furnished to it by the complainant’s previous employer provides that “hours and place of duty shall vary from week to week as per roster or as per Operations Manager or Duty Controller…”.
4.2 The respondent (Mr. X) states that the complainant e-mailed him on 23 January, 2011 raising issues about the number of hours he was rostered and a meeting to discuss the matter took place on 31 January, 2011. The respondent (Mr. X) states that at this meeting the complainant was informed that full-time employees had set hours each week and that they must be accommodated first. It adds he was further advised that as he was not able to be flexible in terms of his availability the respondent was restricted it what it could offer him but would see if it could increase his hours to thirty hours per week - a position the complainant understood. The respondent (Mr. X) adds the complainant was advised that the respondent was of the view that it was honouring his terms of employment as communicated to it by his previous employer and that he understood the respondent’s position on the matter and accepted same. It further states that these outcomes were communicated to the complainant by letter dated 1 February, 2011 and he did not take issue with matters at that time. The respondent (Mr. X) emphatically rejects the assertion that the complainant’s employment status was discussed at this meeting.
4.3 The respondent states that the complainant raised the issue of his hours again in April, 2011 when a colleague retired and the complainant believed he should be assigned those hours. It states that this was not possible because (a) the hours available overlapped with hours the complainant was already rostered; (b) the complainant was not always available to cover additional hours and (c) the company was attempting (in the interests of fairness) to maintain a reasonable number of hours for other staff. The respondent (Mr. X) states that he re-iterated what had been said to the complainant previously and rejects the assertion that any failure on its part to assign these hours to him constitute less favourable treatment of the complainant on grounds of family status contrary to the Acts. The respondent states that the complainant’s query was responded to by letter dated 27 April, 2011 setting out the foregoing. It adds that subsequently the complainant was generally rostered for thirty/forty hours per week- which exceeded what it believed it was obliged to provide him – and in this regard it furnished the Tribunal with a schedule detailing the complainant’s rostered hours during 2011 and the period in 2012 that the complainant worked.
4.4 The respondent states that the complainant wrote to it on 9 February, 2012 wherein he raised his dissatisfaction with his rostered hours along with complaints about his employment status, holiday entitlements, payment for public holidays and the condition of the accommodation at the location he worked. The respondent (Mr. X) adds that a meeting was held on 22 February, 2012 during which the complainant argued that he was a full-time employee and should therefore be rostered full-time weekly hours and produced a contact of employment in support of this contention. The respondent (Mr. X) states that this contract was different to the one furnished to the respondent under the Transfer of Undertaking arrangements in two respects – (i) it indicated the complainant was a full-time employee and (ii) he did not contain his current address. The respondent states that this was the first occasion it had sight of this document and it remained of the view that it was honouring the terms it had been advised of as part of the transfer arrangements. The respondent states that this position was communicated to the complainant by letter dated 23 February, 2012 and he was afforded a right of appeal of the decision – which he subsequently availed of by letter dated 28 February, 2012.
4.5 The respondent states that the complainant’s appeal was heard on 25 April, 2015 by Mr. Y and Ms. C. It adds that in order to address the complainant’s assertion he received full-time hours from his previous employer he was requested to produce wage slips or some other documentary evidence which supported this. The respondent adds that the complainant furnished several payslips in respect of the period, but these were not particularly helpful in the exercise. It further states that the complainant also furnished copies of his P60 for each of the years 2008-2010. The respondent states that applying the flat JLC Rates for the industry for each of the years in question to the details contained in this documentation yielded the following results – that the complainant worked (on average) just over 10 hours per week in 2008, 19 hours per week in 2009 and 24 hours per week in 2010. The respondent argues that the hours it was assigning the complainant were consistent with this and with the details supplied to it under the Transfer of Undertaking arrangements – indeed it exceeded them in many instances. It submits that in those circumstances it did not treat the complainant in a less favourable manner contrary to the Acts. The respondent states that the complainant’s appeal was disallowed and this was confirmed to him in writing by letter dated 4 May, 2012.
4.6 The respondent accepts that Mr. R transferred to the complainant’s site in late 2011 when the site he had been assigned to closed. It (Mr. X) accepts that at that time another of the complainant’s colleagues ceased employment with the respondent and his hours were to be divided out. It further states that Mr. R had transferred from the same employer as the complainant (under the Transfer of Undertaking arrangements) with an entitlement of thirty-six hours per week - which included defined or specific patterns - and as such he had first entitlement on the hours which became available. The respondent states that he was therefore obliged to assign him some of those hours. It adds that Mr. R had children and consequently any difference in treatment could not be on the grounds of family status. The respondent (Mr. X) states that a similar situation exists in respect of Mr. S – he was entitled to thirty-six hours each week with defined days. It was unable to say if he had children. In summary, the respondent states that the complainant was a permanent part-time employee who was entitled to twenty-four hours rostered work per week – as per the documentation it received as part of the arrangements under the Transfer of Undertakings arrangements. It adds that apart from one or two occasions it honoured these terms, generally exceeding them. It further states that the material produced by the complainant to support his assertion that he transferred as a full-time employee, did not in fact bear this out when examined. The respondent submits that it did not discriminate against the complainant on grounds of family status and contends that he was treated more favourably than colleagues as he was the only employee whose shifts were allocated to facilitate his family commitments.
4.7 The respondent can offer no information on the alleged incident on 23 February, 2012 other than to say it was a genuine mistake on the Rostering Unit’s part and that it was in no way connected with his family status. The respondent submits that in any event the complainant is unable to identify the family status of the person who remained at work or any other person who was treated differently in similar circumstances.
4.8 The respondent states that the contract it had with its client to provide security services at the location where the complainant worked contained a mobility clause – which the respondent states is a standard provision in such contracts – which permitted the client to request the assignment or removal of certain personnel to/from that site. It adds that the client moved from a static guard service to a customer focus role and in that regard it conducted a number of audits of the site, which included asking staff a series of questions. The respondent states the client subsequently advised that three personnel – the complainant, Mr. S and another employee (details supplied) had failed these audits and requested that they be removed from the site, pursuant to the mobility clause. It adds that Mr. R was also subjected to the audit but was retained on the site at the request of the client. The respondent states that the complainant was requested to attend a meeting on 26 October, 2012 during which he was advised of the foregoing. It adds that the complainant was understandably not happy with the situation. The respondent further states that the complainant was due to commence a period of annual leave and it agreed to source shifts for him at other sites, as permitted by his contract, which he could commence on his return to work. It adds that it offered the complainant shifts at an alternative site and he refused them, because the location was unsuitable to him. The respondent further states that the complainant subsequently went on sick leave and never resumed work, so the matter did not arise again. It submits that the treatment of the complainant in this instance does not amount to discrimination of him contrary to the Acts.
4.9 The respondent states that in light of the situation set out in the previous paragraph it was struggling to find alternative employment for the complainant. It adds that consequently it had no option but to place the complainant on notice of short hours with effect from the 26 October, 2012. It states that it informed him of this situation in writing (in accordance with the minimum notice legislation) on 2 November, 2012. It further states that the complainant subsequently went on sick leave and never resumed work, so the matter did not arise again. It adds that this was the practice operated when work could not be found for employees for a variety of reasons. It submits that the complainant was treated no differently to any other employee in similar circumstances and argues that the treatment of him does not amount to discrimination of him contrary to the Acts.
4.10 The respondent (Mr. X) denies the complainant’s assertion that he harassed him on grounds of religion contrary to the Acts. He strenuously rejects that he made the comment attributed to him. The respondent states that it has a Dignity at Work Policy which, inter alia, covers allegations of harassment on grounds of religion. It adds that the complainant was aware of this policy and never invoked it. Moreover, there was no reference to such a comment in any of the letters or e-mails the complainant issued to it from 2011 onwards. The respondent argues that the content of the meeting between the complainant and Ms. B on 26 October, 2012 could not be interpreted as constituting harassment of the complainant on grounds of family status.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) harassed the complainant on grounds of family status and/or religion in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 - 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he 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 his case cannot succeed.
5.3 The discriminatory treatment element of the complainant’s case can be described as follows-: the complainant asserts that he was a full-time employee with his previous employer and was rostered forty hours per week. He transferred to the respondent in November, 2010 under a Transfer of Undertaking arrangement and the terms and conditions he enjoyed previously transferred with him. Accordingly, he was entitled to those terms from the respondent. He did not receive these terms and the failure of the respondent to afford them to him constitutes less favourable treatment of him on grounds of family status contrary to the Employment Equality Acts, 1998-2011. The respondent states that the documentation it received from the complainant’s previous employer indicated that he was a permanent part-time employee who received twenty-four hours work each week. Apart from a couple of occasions (between his transfer and the end of his employment) the complainant received at least twenty-four hours a week and generally exceeded that number of hours. The respondent states that when the complainant queried why he was not receiving forty hours per week it investigated the matter and was satisfied that the complainant had transferred as a part-time employee; that it had honoured the terms and conditions notified to it and had not discriminated against the complainant.
5.4 The first thing I must examine is whether or not the complainant worked forty hours per week with his previous employer as alleged by him. In this regard he furnished a number of payslips and a P60 for each of the years 2008-2010. From perusal of the payslips submitted it is clear that there were weeks in 2008 and 2009 where he worked thirty-nine hours per week. However, this pattern changed in late 2009/ early 2010 where it drops to thirty-thirty five hours per week and in the period immediately before the complainant transferred to the respondent it was down to thirty hours per week. The P60 documentation submitted is also consistent with such an attendance pattern. The respondent was furnished information as part of the Transfer of Undertaking arrangements which indicate that the complainant was a permanent employee whose average working hours was twenty-four per week. The contract of employment it received as part of this process was silent on the matter but provided that that “hours and place of duty shall vary from week to week as per roster or as per Operations Manager or Duty Controller…”. In the circumstances I am satisfied that the respondent was entitled to rely on the documentation it received and that its actions in assigning the complainant at least twenty-four hours per week at the outset of his employment was reasonable. Moreover, I note the complainant accepted (in the course of the Hearing) that details of the weekly hours he was rostered between January, 2011 and September, 2012 which were submitted by the respondent were accurate. From an examination of this material it is clear that the complainant generally worked between thirty-forty hours per week, apart for two occasions. I am of the view that these minor deviations do not alter the complainant’s attendance pattern to any significant degree. I am satisfied therefore that the complainant was assigned hours which were broadly similar to the hours assigned to him by his previous employer and significantly above the average weekly hours advised to the respondent as part of the Transfer of Undertaking process.
5.5 The complainant makes specific reference to two colleagues with whom he contends he was treated less favourably. The respondent states that these employees were not in similar circumstances to the complainant, in that they had an entitlement to thirty-six hours per week and any hours available were allocated on that basis. In addition, it states that Mr. S had children and therefore had the same family status as the complainant. I have carefully considered the evidence adduced by the parties on this matter and, on balance, I prefer that of the respondent. Consequently, I am satisfied that there are reasons unconnected with the family status of the complainant which offer a credible non-discriminatory explanation for any difference in treatment between the complainant and the two named comparators. Moreover, in circumstances where the complainant and the one of the people with whom he seeks to compare himself have the same family status, it follows that any difference in treatment cannot be based on that characteristic.
5.6 It is common case that the complainant’s shifts were not assigned to him until he confirmed his availability to the respondent, having regard to his wife’s working patterns any particular week. This arrangement was afforded to him because of his family responsibilities and was not a feature provided to any other employee. In the circumstances I find it difficult to accept that an employer who affords an employee what might be regarded as more favourable treatment in comparison to his colleagues, would subsequently discriminate against that employee because of those same family responsibilities. The complainant makes specific reference to an alleged incident on 23 February, 2012 where he reported for duty and was sent home and contends that this constitutes less favourable treatment of him on grounds of family status. The respondent submits that it was a genuine mistake. I am satisfied that the incident occurred. However, I note the complainant was unable to indicate the family status of the colleague who was permitted to work the shift and was also unable to identify any other employee who was treated differently in similar circumstances. In essence, the complainant merely asserts he was subjected to less favourable treatment on this occasion. It is settled law that mere assertions are insufficient to discharge the initial probative burden required[2]. In light of my comments in this and the preceding two paragraphs I find that the complainant has failed to establish a prima facie case that he was treated less favourably on grounds of family status contrary to the Acts in respect of the allocation of hours to him and this element of his complaint cannot succeed.
5.7 The complainant also alleges that he was harassed on grounds of family status and religion contrary to the Acts. I note that the (single) alleged incident of harassment on grounds of religion took place before the complaint was referred to this Tribunal whereas the (single) alleged incident of harassment on the family status ground took place after that date. At the Hearing the complainant stated that the alleged incident of harassment on grounds of religion took place sometime in January, 2011. The complaint was referred to the Tribunal on 23 March, 2012 – approximately fourteen months later. This is clearly outside of the timelimits prescribed at section 75 of the Acts. As the alleged incident is a single one and there is no unlawful treatment during the period(s) prescribed at section 75 of the Acts which might render the incident within time, I have no jurisdiction to investigate this aspect of the complainant’s claim as it is statute barred. The complainant proffered no evidence of any alleged incidents of harassment on the ground of family status except what transpired at the meeting with Ms. B on 26 October, 2012. This matter is addressed in the next paragraph.
5.8 In the interests of completeness I will now address the alleged incidents of discriminatory treatment and harassment which occurred after the complaint was referred to this Tribunal. These allegations refer to circumstances connected with the complainant’s removal from the site he was working at in October, 2012. The respondent states that three personnel, including the complainant, were removed from that site at the request of the respondent’s client on foot of a mobility clause contained in the contract between the respondent and that client. I have carefully examined the evidence adduced by the respondent and I am satisfied that this was the case. Consequently, the complainant has failed to establish a prima facie case of discrimination in respect of this element of his case and it fails. It is common case that the complainant was informed of this position at a meeting on 26 October, 2012, an issue I will return to shortly. It is also common case that following this meeting the complainant was offered shifts at an alternative site and refused same because the location did not suit him. I note the complainant’s contact of employment provided that he could be assigned work at a variety of locations at the discretion of the respondent, based on operational requirements. The respondent states that as a result of this refusal it had no option but to give the complainant notice of short-time, a practice that it applied to all employees where it was unable to secure suitable work. The complainant adduced no evidence that he was treated any differently to any other employee in similar circumstances. He has therefore failed to discharge the initial probative burden required of him and this element of his case cannot succeed. Finally, the complainant contends that the meeting he had with Ms. B on 26 October, 2012 in which she communicated, inter alia, the news that he was to be removed from the site he was currently working at, constitutes harassment of him on grounds of family status. The complainant offered no further details in support of this contention. I find therefore that it amounts to a mere assertion on his part and as previously noted this is insufficient to discharge the initial burden of proof. Moreover, the respondent furnished the Tribunal with a note of what occurred at this meeting. The complainant did not take issue with veracity of this document. Having examined its contents I can see no comment that could be construed in any manner as constituting harassment of the complainant on the ground alleged. In light of the foregoing I am satisfied that this element of his complaint is unfounded and must fail. Consequently, I am satisfied that the alleged incidents of less favourable treatment and harassment which occurred after the complaint was lodged with this Tribunal have no probative value as regards the alleged incidents which occurred prior to that date.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find -
(i) that the complainant has failed to establish a prima facie case of discrimination on grounds of family status in terms of section 6(2) of the Employment Equality Acts,1998-2011 and contrary to section 8 of those Acts in respect of his conditions of employment,
(ii) that the complainant has failed to establish a prima facie case of harassment on grounds of family status and/or religion in terms of section 6(2) of the Employment Equality Acts,1998-2011 and contrary to section 14A of those Acts,
and his complaint fails in its entirety.
_______________________________________
Vivian Jackson
Equality Officer
22 May, 2015
Footnotes
[1] EDA 1124
[2] EDA 0917 Melbury Developments v Arturs Valpetters