EMPLOYMENT EQUALITY ACTS 1998-2015
DEC – E2016-135
Darren Cresham
versus
Argos
(represented by Tiernan Doherty, IBEC)
File reference: et-149595-ee-14
Date of issue: 27th September 2016
Keywords: Employment Equality Acts, Family Status, Access to employment, Misconcieved
Dispute
1.1 The case concerns a claim by Darren Cresham against Argos Ltd. His claim is that he was discriminated regarding access to employment on the grounds of family status in terms of 6(2)(c) of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’].
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 5th October 2014. On 7th January 2016 in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 19th February 2016 as required by Section 79(1) of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
Summary of the complainant’s case
2.1 The complainant had previously worked providing cover relief over the previous two Christmas periods. On 3rd September 2014 Mr A (team leader) contacted the complainant to offer him a permanent job. The complainant submits that he was delighted. Mr Cresham went into the store the following day to discuss the details. The complainant was asked for his bank details and PPS Number. He briefly met the Store Manager (Mr B).
2.2 The complainant was invited in for training on Saturday 13th September. Mr B trained him and an other new starter in the online system. After that, Mr B asked him did he have any relations working in the store. The complainant replied he thought a second cousin might work there as they both have the same surname but that he was not certain that they were related. Mr B said that this might be a problem as it is Argos policy for relatives not to work together. Mr B rang him two hours later to say that he could not offer him the position. The complainant was very disappointed. The complainant checked with his parents who said this person was not related to him. The complainant texted Mr A the following day to tell him this and that he was still interested in the position.
2.3 The complainant submits that only after he lodged his complaint to the tribunal Argos wrote to him offering him a position if he withdrew his complaint from the Tribunal. The complainant submits that he could not now take it as he could not have a good working relationship with the respondent after this.
Summary of the respondent’s case
3.1 The respondent acknowledges that the complainant had provided cover for two previous Christmas periods. They do not dispute that Mr A contacted him to see if he was interested in the role as a Customer Advisor in the Castlebar store. The position was also open for application to people who had never worked there. The respondent submits that Mr A told the complainant that Mr B was the hiring manager. The respondent submits that that the role was not formally offered to the complainant
3.2 The respondent maintains that it was their understanding that the person with the same surname as the complainant was a close family relation. Their policy is that relations are not allowed to work together in the same store. This policy is in operation across all Argos stores and implemented on a fair and consistent basis. The respondent submits that the complainant should have contacted Mr B rather than Mr A with the information that he was not related to the person with the same surname.
3.3 The respondent was happy to offer him employment once this was clarified.
3.4 The respondent submits that the complaint is misconceived as family status is defined in Section 2(1) of the Acts.
Conclusions of the Equality Officer
4.1 Before I consider the law as it applies, I will make a few findings of facts. Generally I preferred the evidence of the complainant. I accept that he was approached by the respondent to work full-time at the Castlebar store. Taking bank details and conducting training constitutes an intention to offer employment. In the interests of honesty, the complainant said that he might have a second cousin working there. The respondent’s policy is that a close family relative cannot work in the same store. By any definition, a second cousin is not a close relative. It turns out that the complainant was not actually related to this person. Regarding telling Mr A rather than Mr B, the complainant contacted the Manager for whom he had contact details. When the complainant pointed that he did not have a relation working at the store, he should have been formally offered the position. In fact a second cousin should not have been a stumbling block to his appointment in the first place. That he was only offered the position after he lodged a complaint to the Tribunal does not reflect well on the respondent. The whole debacle was poor Human Resources Management by the respondent.
4.2 Only after hearing the evidence, am I satisfied that Section 77A applies:
77A.—(1) The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
(2) (a) Not later than 42 days after the Director General of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal.
(b) On the appeal the Labour Court may affirm or quash the decision. (my emphasis)
4.3 The Director General has delegated this power to dismiss a complaint to me. A complaint is misconceived if it can have no prospect of success. In a case before the High Court, Flanagan v Kelly (No. 1997 No. 3832P High Court)Mr. Justice O'Sullivan stated that where there is satisfactory evidencethat ‘the proceedings are unsustainable in the sense that they must fail. In these circumstances the Court must stay the action.’
4.4 Family Status under these Acts has a very precise meaning. It differs from the colloquial meaning. The complainant is quite correct that he did not commence employment because the respondent believed that a family member worked at that store. However, a second cousin does not fall within the definition of ‘family status’ in Section 2 of the Acts:
“family status” means responsibility—
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,
and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;
4.4 Therefore, while I have sympathy for complainant in the situation that he was penalised for his honesty in a bizarre interpretation of a company policy, I am obliged to find that the complaint is misconceived.
Dismissal
5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I am of the opinion pursuant to Section 77A of the Acts that that Mr Cresham’s complaint of discrimination in employment against Argos to be misconceived due to the fact that his complaint does not fit within the definition of ‘family status’ within the Acts. Therefore I have no jurisdiction to investigate the matter further, and I dismiss it under the provisions of Section 77(A) of the Acts.
_______________
Orlaith Mannion
Adjudication Officer/Equality Officer