Complainant

Respondent

Anonymised Parties

Cashier

Electrical retail store

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011248-001

11/05/2017

Preliminary Matters

Anonymising the parties.

The respondent requested that the parties be anonymised. The claimant requested that the parties be publicised.

Request for an adjournment.

The solicitor for the respondent asked for an adjournment as one of his witnesses was not available. Given that the case concerned a request for part-time work arrangements following a period of maternity leave, that the parties seeking and refusing this facility were in attendance, the adjudicator decided that the hearing should proceed. The solicitor asked that his request for an adjournment, originally submitted on 22/9/17, be noted.

Background.

This is a claim of discrimination contrary to section 6(2)(c)) of the Employment Equality Act 1998. The claimant’s complaint is that she was refused part-time work on return from maternity leave in November 2016 contrary to section 8(1)(b) which prohibits discrimination in relation to conditions of employment.

The claimant took up employment as a cashier with the respondent on 10/11/2006 as an evening and weekend worker. In 2010 she volunteered to cover a colleague’s maternity leave which saw her move to a 10-6pm roster, 5 days a week, Monday to Friday. At the time this suited her family circumstances as her husband had lost his job and was available to care for their young children.

The colleague, A, whom she had been replacing did not return to work. The complainant asked to be returned to her old evening and weekend hours in 2010.This, she advises, was declined, her original evening and weekend roster being retained by, B, the person who had slotted into the complainant’s original hours.

She advises that she sought a return to part time work on a number of occasions between 2012 and 2016.

She went on maternity leave in May 2016. She wrote to the respondent’s director on 10/11/16 , prior to her scheduled return on the 14/11/16,seeking evening work in order to meet her family responsibilities and more especially to accommodate the medical needs of her infant who had and has an ongoing medical condition requiring significant medical attention. She advised that she understood that the expression “evening work” also included weekend work. She referred to the director’s note to her dated the 10/11/16, recounting his telephone conversation with her on the 4/11/16 in which he advised that there was no weekend or night work. From this she concluded that there was an either /or option.

The claimant’s written and oral evidence is that approximately around two and a half weeks following her return on 14/11/16 from maternity leave, and due to a retirement, a part- time position became available and she applied for it. There were no interviews for same and a more recent employee got the job. She rang the director and advised him that she had no option but to resign given his rejection of her application. She wrote to the respondent on 29/11/16 advising that she had no option but to resign given their refusal to grant her part- time work and their statement of 10/11/16 that no part-time hours were available. On the 30/11 the respondent, by letter, told the claimant that they wished her to do weekday hours.

She had applied for part- time hours or a return to her 2006-10 hours on a number of occasions; in 2010, 2012 and on a number of occasions between 2012 and 2016. She produced an email request for part-time work on 10/9/2012. She was advised that no part- time positions were available. A company note from 2012 states that while her holiday entitlements are those of a part-time worker, the claimant working 10-6 each day, is effectively working full time.

The complainant was due back from maternity leave on 14/11/16. On 10/11/16 she sent a note to the director asking to be returned to her pre-2010 evening hours which she understood would include weekend work. The responded replied stating that there was no evening work or weekend work available.

The claimant’s infant had and has a medical condition requiring on – going medical treatment and hospital visits which are often offered at very short notice. This compromises her ability to give regular day- time service to the company as the hospital appointments are invariably during day time hours. The company could occasionally allow her to swop shifts so that she could bring her infant for the medical appointment, or she could take leave but the medical appointments were frequent. This is and was the main driver behind her request for evening and weekend working arrangement. She was seeking work at times other than weekdays.

She understood that there was 2 part -time positions available. The claimant states that one of these was given to an employee from the warehouse.

The complainant advised that she gave her agreement to work the evening and weekend roster. Approximately two weeks after her return from maternity leave, she stated that her line manager told her that a part- time position was imminent due to a resignation. The line manager advised the director that the claimant would be applying for the evening and weekend position. The claimant rang the director to say she wanted to apply and he told her to leave it with him and that he would get back to her. At a later date the director rang the line manager to state that he was giving the part time evening and weekend job to another employee C. The claimant stated to the director that she had been seeking part- time work for years, that when a vacancy had arisen she had been refused, and that she now had to resign. The director advised her to put her resignation in writing.

On the 9th December 29016, the director wished the claimant all the best in the future.

CIS, the representatives of the claimant did request a meeting with the respondent to try and resolve the matter. It did take place in January 2017, but no resolution emerged.

The respondent employs 76 cashiers.

   28 are employed on a full- time basis

and work 10am -6pm, Monday – Friday and periodic Sundays.

   48 work part –time ,

                                       Either   two - three evenings a week 5-8pm or 9pm and weekends

                                     Or

                                   10am – 2.30 Monday to Friday and every other Sunday,

These are the only rosters which the respondent offers to employees. The respondent did not furnish evidence on the family status of the occupants of each roster. The respondent defines part- time hours as hours below 10,530 minutes per month or less than 40.5 hours per week. The respondent contends that there is no definition of part-time work other than hours which are less than those worked by a comparable full- time employee.

When the claimant asked for part- time evening and weekend work in 2012, there were no part time positions available then.

There was one not two part- time positions in the store. This part- time position as well as evening work included Saturday and Sunday work -a universal feature of this part- time roster. The claimant had told her supervisor that she would be unable to do Saturday or Sunday work because of family recreational obligations. The claimant did request to do three afternoons. The respondent advised that this roster does not exist in the store because it makes no business sense.

The company dispute that she ever submitted a roster indicating her availability to work weekends as contended by the claimant in her evidence. They note that neither they nor the claimant have a copy of same.

The claimant’s line manager/ roster supervisor, the person responsible for doing the staff rosters, described a meeting which occurred on 22nd November 2016 attended by the claimant, the roster supervisor and the cashier supervisor, where she asked the claimant if she would do the upcoming vacant position which would include Saturday and Sunday work. Both the roster supervisor and the cashier supervisor, in attendance at the hearing, stated that the claimant said that she would be unable to do Saturday and Sunday work because she had to take some of her children to recreational activities. The line manager advised the claimant that because she was unable to do Saturday and Sunday work she was putting herself out of the reach of the evening and weekend shift and the vacancy. There is no record of this meeting. The line manager advised the director of the claimant’s inability to work weekends.

The claimant submitted her resignation in an email dated the 23/11/16 to her supervisor.

The respondent’s director questioned why the claimant put a request for a particular pattern of work to the director when she knew that the roster supervisor was responsible for the roster, and had advised the claimant that a 3- afternoon a week roster was not feasible. Both witnesses confirmed that this was the case. The roster supervisor was very clear that the claimant would only work afternoons and that this option didn’t exist within the store.

The complainant submitted her resignation, again, on 29/11/16 to the Director this time, setting out her reasons for the resignation.

The respondent deny that they knew that the complainant was willing to work weekends.

The respondent does not have a policy on access to part- time work, but stated that they do try and accommodate employees when they request same and in the context of vacancies. Such requests are put on file.

The matter for adjudication is whether or not the respondent discriminated against the complainant, and contrary to Section 6 (1) of the Employment Equality Act, 1998. The claimant asserts that she was treated less favourably, and contrary to section 6 (2) (c) of the Act which prohibits discriminatory treatment on the grounds that one has family status and the other does not. The alleged discriminatory act is the respondent’s refusal to allow her to work reduced hours and requiring her to comply with an inessential requirement to work full time. The claimant identified the 9/12/16 as the date of the last act of discrimination which was the date on which she left the respondent’s employment.

Both parties accept that she wanted to return to revert to part- time work or reduced hours following her return from maternity leave in November 2016. They diverge on the hours/rosters which were sought, accepted and refused.

Her contract of employment did not specify a maximum number of hours. It did specify a requirement to work Sundays “as and when the roster requires”. It classified her as a part-time worker, though her representatives state that the change of the word full -time to part-time was done by the respondent. A statement from the wages department dated July 13th 2009 does state that she works one evening a week and one Sunday totalling 9 hours a week It. is accepted that she increased her hours over the years. So that would seem to settle the matter that from 2006-2010 she did come within the ambit of the respondent’s own definition of part-time.

There is a dearth of information as to the transition from part-time to full time work in 2010. The respondent though requested by the claimant could not or did not provide any information re same. She worked from 2010 to 2016 in a full- time capacity though the solicitor for the respondent disputed this stating that her hours which averaged at 35 and were below 40.5 hours per week- the company’s definition of full-time hours- came within the respondent’s definition of part-time hours. A 35 hour week would not be commonly understood as a part-time position nor does it disentitle the claimant to seek a reduced set of part-time hours.

Section 85(a) of the Employment Equality Acts 1998-2015 sets out the burden of proof concerning complaints of discrimination. The complainant must prove the primary facts in seeking to raise an inference of discrimination. Where the complainant establishes these facts and where these facts are of sufficient significance to raise an inference of discrimination the burden of proof moves to the respondent to rebut the inference of discrimination. It presumes that the complainant has been able to establish a prima facie case. If the complainant does not meet this requirement, and fails to discharge the probative burden, her complaint cannot succeed.

The primary facts grounding the complainant’s case are as follows:

1.She had a contract for part- time work from which she voluntarily withdrew in 2010 to take up a full- time position. This is not disputed.

2.She sought unsuccessfully to return to her part- time position in 2010. This is not disputed.

3.She asked the respondent on a number of occasions to return to her part- time position though bar the documented 2012 request and the 2016 requests, this is disputed.

4.It is accepted that she asked again in 2016 to revert to part- time work. The roster to which she agreed is in dispute.

5.There is an absence of a policy on access to part-time work in keeping with   Code of Practice on Access to Part Time Working, S.I. No 8 of 2006.

6.The claimant cited Morgan v Bank of Ireland, DEC-E2008-029 in support of her claim.

The November 2016 request for part-time hours

It is for the employer to demonstrate that their refusal to grant her a return to part-time hours, hours compatible with her family status and the medical needs of her child     was attributable to non-discriminatory criteria. But before that stage is reached, it must first be established that the respondent did refuse to consider and accept her request to return to part-time work.

The claimant identified family status and family status only in her complaint form as the ground for her complaint against the respondent.

The respondent’s evidence was presented by 3 witnesses at the hearing. They stated that on foot of the line manager’s notification to her of the vacant evening and weekend position, they met her on 22/11/16.They wished to establish her willingness to work weekends. The respondent’s witnesses were clear in stating that she put forward a roster of 3 afternoons a week and advised that she could not do weekend work due to having to take her children to recreational activities. The claimant disputes that she ever said this. The claimant maintained that she put forward a written roster indicating her availability to do evening and weekend work but did not retain a copy of this roster. The claimant’s line manager stated, as well, that they advised the claimant that she was putting herself beyond the reach of the vacant November ‘16 position. This is disputed by the claimant who tendered her resignation on 23/11/17 by way of an email. There is no record of this meeting but there was a credibility in the clarity of the witnesses’ oral evidence. The claimant disputes the accuracy of this, and asks that the respondent’s credibility be questioned in circumstances where the director omitted to say that she had requested part-time work in 2012.

The respondent’s response is that no discrimination occurred as they would have responded similarly to the same request, that is for a three afternoon a week roster from all employees irrespective of their status. But that does not necessarily answer the within complaint.

The claimant did not argue that the person who was offered the part-time work in November 2016 did not have family status, and she accepted that the successful appointee worked weekends.

The claimant didn’t explain how the morning shift was unsuitable on family status grounds

The issue is the claimant’s assertion that she was denied the evening and weekend work combination while the opposite was claimed by the respondent.

There is a certain incongruity between, on the one hand, the claimant recalling that the line manager tipped her off about the upcoming November 16 vacancy, even before the incumbent had handed in his notice, and before the Director knew of this upcoming vacancy, and on the other, the same line manager inaccurately attributing the claimant’s unwillingness to work weekends as the reason why she couldn’t get the evening and weekend job. The claimant’s resignation via an email on the 23/11/17 pre-dated her discussion with the Director according to her own evidence and again pre-dated, if going on her own written evidence, the notification to her of her unsuccessful application and is inconsistent. The email of the 23rd does not mention the refusal of the weekend and evening shift as the cause of her resignation nor that she would be willing to do this work. Her letter of resignation to the director of the 30/11/17 does specify that she is resigning because she could not get part-time work which she needed due to her daughter’s illness.

There is a lack of consistency concerning the dates. A discussion on her availability to work weekends occurred just one day before her emailed resignation and a week in advance of the date on which the claimant states she was advised of the vacancy. The meeting of 22nd November concerned itself with her availability to take on the imminent vacant post.

There is a conflict between the claimant’s representatives and the respondent in that they understood that the director might speak to her on the 9/12/16, her last day of work about possibilities. He stated that he understood that she might raise the issue with him. She did not address the matter with him Policy on access to part-time working

The absence of a policy in keeping with S.I No 8 of 2006

This is a frailty in the respondent’s case but is insufficient to cancel out the clarity of the respondent’s evidence that she ruled herself out of the type of part-time position which they offer by declaring herself unable to work on Saturdays. When asked about their policy, the respondent advised that they accommodate requests as best they can in terms of their business requirements. Currently 63%of their employees work reduced hours that is either

10-2pm Monday - Friday

Or

2 evenings a week and 3 weekend days over a fortnight

The respondent stated that they file requests for part-time work and accommodate these requests as vacancies arise.

The respondent should develop a policy in conformity with the provisions of S.I. No 8 of 2006.

Morgan v Bank of Ireland, DEC-2008-029 .

The claimant requested that this case be used in making a decision. This case was overturned by the Labour Court in Determination EDA096. The respondent in that case did not dispute that she had been refused a job sharing position for a period of time.

In both Tesco v Walsh, DEE -062 and Tesco v Swift EDA 0514, the Equality Officer found that while the complainants may not have got the exact arrangements specified by them, there was no outright denial of part-time hours and the respondent had in both cases offered reduced hours in some form. The complaints of discrimination on gender grounds were not upheld.

While the claimant was understandably aggrieved at the challenges posed in reconciling her working arrangements with her child’s medical needs and her perception that the respondent responded inadequately to her circumstances, I find that the facts set out by the complainant lack consistency, are insufficient to raise an inference of discrimination and insufficient to discharge the probative burden required of the complainant.

I find that the respondent did not discriminate against the complainant contrary to the provisions of the Employment Equality Acts 1998-215.

Family status, refusal to offer part-time hours, probative burden.