EDA165

The Equality Officer found that the Respondent did not discriminate against the Complainant on grounds of gender in terms of Section (6) of the Act and contrary to Section (8) of the Act.

The within complaint was presented to the Equality Tribunal on 11^thJuly 2013.

Position of the Parties

The Complainant claims that the Respondent became aware of her pregnancy on 8^thMay 2013 as a result of the Respondent overhearing a conversation between the Complainant and her husband in the shop safe area. The Complainant claims that subsequent to this the behaviour of the Respondent changed and a series of events occurred in May 2013 which demonstrated the changed attitude of the Respondent. The Complainant claims that she formally advised the Respondent of her pregnancy at a meeting on 5^thJune 2013 and that changes were put in place as a result which reduced the number of hours available to the Complainant.

The Respondent denies any discrimination against the Complainant. The Respondent states that he did not at any time overhear a conversation between the Complainant and her husband in the shop safe which adverted to the Complainant’s pregnancy. The Respondent contends that he did not become aware of the pregnancy of the Complainant until he was formally advised at a meeting on 5^thJune 2013. The Respondent denies that any reduction in the working hours of the Complainant occurred between the meeting of 5^thJune 2013 and her commencement of sick leave on 19^thJuly 2013.

Evidence on behalf of the Complainant

The Complainant stated in evidence to the Court that she had, on 8^thMay 2013, had a conversation with her husband upstairs in the Respondent’s premises at which matters related to the pregnancy of the Complainant were discussed. She claimed that the Respondent had arrived in the area where this conversation was taking place. The Complainant stated in evidence that she was 100% sure that the Respondent had overheard that conversation including references to her pregnancy.

The Complainant set out events in May 2013 related to the disconnection of the Complainant’s mobile phone, a disagreement related to the calculation of staff wages by the Complainant, a matter related to a fridge failure, the liability of the Complainant to work Bank Holidays and the calculation of the Complainant’s own wages.

The Complainant stated in evidence that she was invited to a meeting on 5^thJune 2013 relating to serious breaches of work contract and trust. She stated to the Court that at that meeting she was accused of making mistakes with the staff rota. She stated that the Respondent at that meeting also raised issues as regards an interaction between the Complainant and the Respondent following a fridge failure on 15^thMay 2013. She stated to the Court in evidence that the Respondent had, at the meeting of 5^thJune, raised issues as regards calculation of the Complainant’s wages and related matters. The Complainant stated in evidence that at a point in the meeting towards the end of the meeting she had asked the Respondent whether the issues were being raised because of her pregnancy. The Complainant stated in evidence that the Respondent had, following her formally advising the Respondent of her pregnancy at the meeting of the 5^thJune, indicated that she would no longer be able to open the shop as items such as combi’s would be too heavy to lift. She stated that this change to shop opening arrangements was not the result of a risk assessment and had the effect of reducing her working hours. The Complainant stated in evidence that the respondent advised her at the meeting of 5^thJune 2013 that, when required, she would have to arrange cover for herself with staff she considered junior to herself. She stated to the Court that this represented a demotion.

The Complainant’s husband in evidence before the Court stated that he found it hard to believe that the Respondent had not overheard the conversation on the Respondent’s premises of 8^thMay 2013. He also stated that he had attended the meeting of 5^thJune 2013 and that the Complainant advised the respondent of her pregnancy towards the end of that meeting. He stated that the Complainant had never handled ‘combi’s’ on the opening of the shop.

Evidence on behalf of the Respondent

The Respondent stated in evidence to the Court that he could not say that he was or was not in the shop safe area on 8^thMay 2013. He stated to the Court that he had never overheard a conversation between the Complainant and her husband in the shop safe area where any matter related to the fact of the Complainant’s pregnancy was discussed. The Respondent stated in evidence to the Court that he first became aware of the pregnancy of the Complainant at the meeting of 5^thJune 2013.

The Respondent stated to the Court that the meeting of 5^thJune was arranged to deal with a range of issues which had arisen as regards the Complainant’s performance at work. The Respondent stated that at that meeting the Complainant had advised the Respondent of ongoing shoulder problems for which she required physiotherapy. The Respondent stated that he immediately advised the Complainant that she should not lift anything heavy and as a result should not be involved in shop opening where the lifting of newspapers and ‘combi’s’ were a part of the duties. The Respondent confirmed that he had not, as of the 5^thJune, carried out a risk assessment of the duties involved in shop opening.

The Respondent stated in evidence to the Court that no reduction in the working hours of the Complainant occurred in the period between 5^thJune 2013 and her departure on sick leave on 19^thJune 2013. The Respondent stated that any reduction in the Complainant’s working hours had occurred before 5^thJune and was a reduction applied to all staff and was in response to the arrangements applying to the operation of the Londis franchise as regards staff costs as they related to turnover.

The Respondent stated to the Court in evidence that the Complainant, in the period prior to 5^thJune, had worked 24 hours per week. He stated in evidence that in the period around 5^thJune 2013 the complainant’s working hours were as follows

Week beginning Hours worked

3^rdJune 16 hours plus 8 hours paid leave

10^thJune 24 Hours

17^thJune 17 hours [Physio appointment on Mon. and 11.00am start on Friday]

24^thJune 24 hours

1^stJuly 24.5 hours

7^thJuly 21.5 hours

15^thJuly 11.75 hours (Complainant’s availability curtailed through absence)

Ms Mullins, a supervisor in the Respondent’s premises, gave evidence to the Court that the working hours of all staff in the shop were reduced prior to June 2013 and that the reduction was a cause of dissatisfaction to all staff. She stated to the Court in evidence that the staff were aware that the reduction in hours arose from the trading position of the store.

The Law

This case falls to be considered by application of Section 6(1) and 6(2) of the Act. The Act at Sections (6)(1) and 6(2) states as follows :

• 6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

  (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

  (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

  (b) that they are of different marital status (in this Act referred to as “the marital status ground”),

  (c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

  (d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

  (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

  (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

  (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

  (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

  (i) that one is a member of the traveller community and the other is not (in this Act referred to as “the traveller community ground”).

Discussion and Conclusions

Section 85A of the Act provides for the allocation of the burden of proof in cases involving allegations of discrimination. 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[DEE011].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 central primary fact upon which the Complainant in this case relies in grounding her claim of discrimination between 8^thMay 2013 and 5^thJune 2013 is that the Respondent became aware of the Complainant’s pregnancy having overheard a conversation on 8^thMay. Conflicting evidence was presented to the Court as to whether the Respondent did in fact overhear the Complainant and her husband referring to her pregnancy in a conversation on 8^thMay 2013. The Court, on the balance of probability, prefers the evidence of the Respondent and accepts that the Respondent did not overhear references to the Complainant’s pregnancy in a conversation on 8^thMay 2013. It is common case that the Complainant informed the Respondent of her pregnancy at a meeting on 5^thJune 2013. The Court accepts that the Respondent was not aware of the Complainant’s pregnancy until that date. All events preceding that date therefore cannot be described as relating to or arising from the Respondent’s knowledge of the Complainant’s pregnancy. In these circumstances and on the established test the Complainant’s claim of discrimination related to events occurring between 8^thMay and 5^thJune 2013 cannot succeed.

The Court has considered the events which followed the meeting of 5^thJune. The Complainant asserts that the Respondent took certain steps after the meeting of 5^thJune including changing arrangements for opening of the shop which had the effect of reducing her hours for reasons directly related to her pregnancy. The Court has heard evidence as regards the working hours of the Complainant in the weeks following the meeting of 5^thJune 2013. The parties asserted to the Court that the normal working hours of the Complainant were 24 hours per week. The Court has heard evidence that in the weeks between the meeting of 5^thJune and her departure on sick leave on or about 19^thJune 2013 the Complainant worked approximately 24 hours per week other than a week on which she was absent from the workplace for part of a week.

The Complainant also stated to the Court that the Respondent advised her on 14^thJune to use what she considered junior staff if she required cover. She asserted to the Court that this act of the Respondent was a demotion. The Complainant has not set out to the Court any evidence of the material impact on the Complainant of this act of the Respondent.

The Complainant wrote a detailed letter to the Respondent on 20^thJune 2013 regarding the performance issues raised with her on 5^thJune. However, she did not make any reference in the letter to these issues being raised because of her pregnancy.

In the circumstances set out above of the evidence made available to the Court and on the established test the Complainant’s claim of discrimination in the period after 5^thJune 2013 cannot succeed.

Determination

The Court determines that the Complainant has not established a set of facts from which it can be inferred that discrimination has occurred. The Recommendation of the Equality Officer is affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court



Kevin Foley
31st March 2016______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.