ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000148

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 04/10/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 79 of the Employment Equality Act, 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The fire station was constructed with unisex facilities similar to those in existence in other stations around the country.

The respondent did its best to resolve the issues and implemented changes in facilities in this regard.

The complainant was placed on paid leave whilst these matters were being attended to.

The respondent engaged an independent equality consultant to assess the matters in dispute.

The respondent has implemented the consultant’s recommendations.

The respondent denies discriminating against the complainant as alleged or at all.

Decision:

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

Was the complainant discriminated against on the grounds of gender in relation to her conditions of employment?

Legislation involved and requirements of legislation:

Section 6(1) of the Employment Equality Act, 1998, states:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

1. a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which –

1. exists,

2. existed but no longer exists,

3. may exist in the future, or

4. is imputed to the person concerned.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of these 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”)…

Section 8(1) of the Act states:

In relation to –

1. access to employment

2. conditions of employment

3. training or experience for or in relation to employment

4. promotion or re-grading, or

5. classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 8(6) of the Act states:

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, the employer does not offer or afford to that employee or prospective employee or to a class of persons of which he or she is one –

1. the same terms of employment (other than remuneration or pension rights),

2. the same working conditions, and

3. the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

Decision:

The background to this case is that the respondent built a new fire station which officially became operational in June 2015. The complainant joined the service in 2001 in a retained capacity and was appointed to a full-time permanent position in April 2005. She is paid €1,275.00 per week and works 39 hours per week on a shift basis.

The complainant was the only female firefighter posted to the new station. During the construction period (which was extended over a number of years) the complainant had enquired about female facilities in the new station and was advised that this should not be a problem. When visiting the station for the first time it became obvious to the complainant that there were no separate facilities for males and females. She was then informed that the facilities were designated as unisex facilities. The complainant made it clear that being required to change, shower and use toilet facilities on this basis was impractical and unacceptable. Following further interaction it was suggested that a WC / shower unit that was designed for the use of disabled persons should be re-designated as the female facility. There were, however, issues in the complainant using this unit as it had been designed for persons with a disability. The complainant’s union then became involved and following discussions changes were agreed to by the respondent on an interim basis which were to be implemented during a 3 week period whilst the complainant was on annual leave. The complainant, on her return to work, was dissatisfied that any progress had been made and a further meeting took place on 25 August 2015. At this meeting the respondent proposed remedial actions pending the commencement of permanent works which were scheduled for the end of September. On 9 September 2015 the union wrote to the respondent advising that the situation regarding the complainant was unacceptable, that she was suffering from anxiety and stress and requesting that their member be placed on paid leave pending resolution of the issues. It was stated that the stress arose both from the delays encountered in addressing the complainant’s issues and the fact that she was the subject of remarks being made by her male colleagues.   The complainant attended her own doctor and utilised the respondent’s Employee Assistance Programme in this regard.

Meetings were held on 17 and 21 September 2015 in relation to toilet / showers and dormitory facilities and the proposed alterations were discussed. The complainant was placed on paid leave on 18 September 2015 and this would be reviewed by management on an ongoing basis. The proposed changes were also circulated to the staff committee and issues arose in relation to the segregation of dormitory facilities. The implementation of the proposed changes was therefore further delayed. The complainant lodged her complaint with the WRC on 8 October 2015.

It should be noted that following on from this there were further discussions with all parties and in November 2015 the respondent engaged the services of an Equality Consultant to examine the matter. The Consultant issued a report and recommendations at the end of January 2016. The complainant also lodged further complaints which are the subject of a separate case, ADJ00002519, which was heard in conjunction with this case.

The Labour Court has stated the following in Determination EDA0821:

Section 85A of the Act, as amended, now provides for the allocation of the probative burden as between parties. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination can be inferred it shall be for the respondent to prove the absence of discrimination.

The Court went on to state:

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 that can be drawn from these facts.

In light of the fact that there was direct evidence from the complainant both as to actual events and as to how these events affected her and that there was no direct evidence from the respondent to the contrary leads me to the belief that the complainant has established a prima facie case and that the burden of proof therefore shifts to the respondent in that regard.

The respondents main defence was that this new fire station was designed from the start with unisex facilities and that this was done in agreement with the staff committee and was in line with the practice in other fire stations around the country. The complainant gave evidence of raising concerns in relation to the facilities with a member of the committee and that member in turn stated in evidence that he had brought these concerns to the attention of the committee. It was also disputed that unisex facilities existed nationwide.

It appears to me strange that a modern fire station built to accommodate full-time firefighters would not have been designed with facilities for both sexes. There is not only the matter of WC /shower facilities but also such items as dormitory provision and minimum-dress codes. I note in particular the following paragraph from the Gender Equality in Fire Service Report commissioned by the respondent:

“Most fire stations in use today were planned and built with a single-gender workforce in mind. There are very few women in the fire service in Ireland, a situation that will change over the coming years. Importantly, the circumstances that have arisen in this one location allow us to consider alterations to the facilities not as alterations “for the women” but for better privacy for women and men alike. The ambition must be to improve station design and facilities to provide privacy for both sexes in restroom, shower and changing areas.”

The outcome was that following the opening of the new fire station the complainant had not got access to the various facilities on the same basis as her male colleagues. This led to interim arrangements being put in place which in themselves were unsatisfactory. Timelines for solutions were not met. Ultimately this led to the complainant applying for and being granted paid leave pending the implementation of remedial works. The complainant also had resort to the respondent’s Employee Assistance Programme. I accept that the respondent was attempting to react to the issues raised by the complainant and that issues arose with the other members of staff in this regard but must conclude that the complainant was discriminated against in relation to her conditions of employment on the grounds of gender.

I therefore require the respondent to pay the complainant the sum of €16,500.00 as compensation for the effects of the discrimination. The respondent should also ensure that an independent facilitator be appointed as soon as practicable and as recommended in the Equality Consultant’s report to consult with staff and review the facilities now in place.

Dated:   25^th January 2017