EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E2017-013
PARTIES
A Warehouse Operative
(Represented by Rostra Solicitors)
AND
A Supermarket Chain
(represented by IBEC)
File reference: EE/2014/422
Date of issue: 15 February 2017
HEADNOTES: Employment Equality Acts Sections 6, 7, 8, - Age, Promotion & Conditions of Employment.
1: Background
This dispute concerns a claim by Mr.K , that he was discriminated against on the grounds of Age , Access to Promotion and Conditions of Employment by employer Respondent X in their distribution depot.
The Complainant referred a claim to the Director of the Equality Tribunal on the 31st July 2014 under the Employment Equality Acts.
On the 19 January 2017, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the claim to me, Michael McEntee, an Adjudication / 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 received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to an initial hearing on the 23rd of January 2017.
2: Summary of the Complainant’s Submission
2:1 The Complainant commenced employment with the Respondent on the 1st February 2008 as a Warehouse Operative on a flexible 22.5 hours per week contract. During his employment, he has always attained the required levels of operating efficiency and good performance.
Other employees who commenced at the same time or later have been offered permanent positions. He has never been offered any explanations for his failure to be promoted to a permanent full time position.
For the past number of years, he has effectively been doing the work of a full-time worker on 39 hours per week.
The only reason he can see for his failure to be promoted to a full-time contract is his age. The colleagues promoted to full time positions have been younger than him. A list of employees was presented at the oral hearing to substantiate the claim.
At the time of lodging the complaint the Complainant was 51 years of age.
Accordingly, he feels that he is being discriminated against, contrary to section 6 (2) (f), “the age ground “of the Employment Equality Acts.
3: Summary of the Respondent’s Submission.
3:1 The Respondent operates a large distribution Warehouse in North Dublin employing some 460 staff across a three-shift pattern of two (2) day shifts and one (1) night shift.
Three types of employment contracts are used, Agency, Flexible and Full Time.
Movement or progression between the Contracts is by means of a process called “Select the Best” which was agreed with the staff forum. This is a multi-faceted scoring system.
As needs arise but generally quarterly the Staff /Manpower situation is reviewed and progression through the Contract grades is possible. However, it is dependent on your Personal scores on the “Select the Best” matrix.
The Complainant has never achieved the necessary ranking to allow a movement in his grade. The situation is complicated by the fact that the Night Shift where the Complainant works, and wishes to remain, has a very low staff turnover and accordingly progression opportunities are infrequent.
In October 2015, only one employee moved to a full-time position on the night Shift and there was a Recruitment freeze in 2016. In the last competition, the score of the Complainant placed him at position 5 in a group of 9 potential candidates.
The Complainant has not identified a suitable Comparator as required by the Employment Equality Acts.
The Complainant is obliged in keeping with Section 85 (a) of the Employment Equality Acts to establish a prima facie case of age discrimination. He has failed to do this and the case should fall.
4: Findings and Conclusions:
4:1 Burden of Proof.
In this regard, I consider that it is appropriate for me to consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”.
The Labour Court continued
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
4: 2 Key Question
The key question in the case at hand is whether or not an act of discrimination on the Age Grounds took place.
4:3 The evidence presented
Considerable oral evidence was given by the Respondent Managers from the Warehouse in relation to the operation of the “Select the Best” matrix system. It has a multiple factor scoring system. None of the factors had, to my observation, any obvious age-related elements.
The infrequency of vacancies on the Night shift was also explained. With very few vacancies the progression bar would automatically be set high -this had nothing to do with any one factor such as age.
In relation to Comparators, the Complainant produced at the oral hearing a lengthy list of fellow employees whom he alleged had been better treated than himself. The list of employees presented by the Complainant was looked at by the Shift Manager, Mr. ZX, and the Operations Support Manager, Mr. ZY, for the Respondent Warehouse. It was obvious that they were familiar with most of the names on the list. Some of the names were those of staff who had moved from another Respondent Warehouse in Tallaght, South Dublin, that had closed a number of years ago. They had obviously brought their service from there to the North Dublin site.
A lengthy discussion of the list took place between the Managers, the Complainant and a fellow employee who had come to support him.
From this discussion, I found that no discernible pattern of age discrimination was apparent. This Comparator evidence was also open to challenge and cross examination from the Complainant’s Legal Representative.
I found the Shift and Operations Managers knowledgeable and indeed sympathetic to the Complainant.
A complaint from the Complainant at the oral hearing was that he was never given an opportunity to query his “Select the Best” scores or appeal particular ones was noted. An alleged Appeal to the Company Internal Web/employee Observation system which again allegedly went unanswered in 2014 was noted.
The Managers undertook, at the suggestion of the Equality Officer, to immediately follow up on this. The Complainant was also encouraged to meet with his Manager to discuss his scores. It was also noted that the Respondent Company had internal grievance procedures that the Complainant could avail of if he still felt aggrieved by his scores.
4:4: Conclusion
In conclusion and having reviewed all the evidence both written and oral I came to the view that the Complainant had failed to establish a prima facie case of age discrimination.
5: DECISION
This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
There was not sufficient evidence presented to substantiate a claim for Age Discrimination or Discrimination in access to Promotion and/or Conditions of Employment on the Age Grounds. Accordingly, the claim fails.
_________________________
Michael McEntee
Equality / Adjudication Officer
15 February 2017