EMPLOYMENT EQUALITY ACTS
Decision - DEC–E2017-080
PARTIES
A Chef
and
A Hotel
(represented by IBEC)
File References: et-159580-ee-15
Date of Issue: 23rd October, 2017
1. Dispute
1.1 This case concerns a complaint by the Complainant that she was discriminated against by the Respondent on the grounds of Family Status contrary to section 6(2)(c) of the Employment Equality Acts in relation to promotion.
2. Background
2.1 The Complainant made a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 10th September, 2015. In accordance with her powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 19th December, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the Complainant on 18th December, 2015 and from the Respondent on 31st March, 2017. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 12th May, 2017. Final correspondence from the parties following the hearing was received on 13th September, 2017.
2.2 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.
3. Summary of the Complainant's case
3.1 The Complainant commenced employment with the Respondent in 2007 as a Food & Beverage Assistant and was promoted to the position of Bar Supervisor in September, 2008. She then decided to go to University and returned to work with the Respondent in 2011 when she was re-employed as a Food & Beverage Assistant and within a short period was promoted again to the position of Chef-de-Rang. In May, 2012 the Complainant commenced a period of maternity leave followed by additional maternity leave. The Complainant returned to work on a full-time basis on 14th February, 2013 and worked for the next few months mostly on night shifts so that she could look after her child during the day. Once the Complainant became aware that she might be getting overtired and may be putting her child and her wellbeing in danger she had a conversation with the then HR Manager about the possibility of using her parental leave once a week, which was agreed.
3.2 The Complainant subsequently agreed with the Respondent that she would work a 4 day week and take parental leave on a Saturday to look after her child. However, based on that agreement, the Complainant still worked approx. 30 to 37 hours per week due to working longer shifts within the agreed 4 days. In April, 2015 on her return from annual leave the Complainant applied for promotion to the position of Supervisor having previously been employed in that position by the Respondent during her first period of employment in 2008. The Complainant requested that she be allowed to keep the same arrangement, if possible, in regard to working shifts (i.e. 4 days per week) and was told at that time that it should not be a problem. There were also two other Supervisors working in the Kitchen Bar at that time, however, neither had issues in relation to childcare and one had a longstanding arrangement whereby she worked a 3 day week.
3.3 The Complainant submitted that subsequently the position applied for was offered to a male member of staff. The Complainant claims that at the time material to this complaint the Respondent had two Supervisors in the bar, two Chefs-de-Rang and approx. 12 bar staff with one more position open as Supervisor and Chef-de-Rang. One Supervisor was working three days per week and 10 hours per day and her children were adults. The Complainant submitted that the Chef-de–Rang who was promoted to Supervisor was a male who, while being a father, had his child taken care of by the mother on a full-time basis. The Complainant claims that she was subjected to discriminatory treatment on the ground of her family status in terms of the Respondent’s decision to promote her male colleague and the requirement that she be able to work on a full-time basis in order to be considered for promotion.
3.4 The Complainant submitted that this was the second occasion on which she had been overlooked for promotion to the position of Supervisor by the Respondent on the grounds of her family status. She claims that she was also refused promotion in July, 2014 and didn’t even get called for an interview on this occasion because she was on parental leave at the material time. The Complainant claims that she was subjected to discrimination by the Respondent on the grounds of family status in relation to its failure to promote her on this occasion.
3.5 The Complainant submitted that following the refusal to promote her in April, 2015 she was offered promotion to the position of Supervisor in the Barista Bar providing she would give up her parental leave but was unable to accept this offer because of her childminding responsibilities, which resulted in her not being able to be promoted. The Complainant submitted that she was happy with her job but wanted to progress and didn’t see how or why parental leave could stop her as she was working nearly 37 hours per week and her contract was based on a 39 hour week. The Complainant submitted that when it became clear she had to give up her parental leave to get promoted or come back for promotion when her parental leave was finished, she asked if it would be possible to get more regular hours so she could organise after school care for her child as it was difficult to get anyone who would mind the child based on 12 hour shifts. However, unfortunately the Complainant was unable to put such arrangements in place and as a result decided to leave her employment as she was deeply upset as it was the second occasion she applied for promotion and the second time she was overlooked without justifiable reason.
3.6 The Complainant submitted that she was subjected to both direct and indirect discrimination by the Respondent on the grounds of family status in relation to promotion. The Complainant submitted that it was clear she was unable to work full-time, not because she is a woman per se, but because she is the mother of a small child. The Complainant contends that it is still the reality in modern day society that mothers are most likely to fulfil the role of primary child carer. The Complainant contends that none of the actual Supervisors employed by the Respondent at the material time had small children or were the primary carer of a child. The Complainant claims that the promotional position which she was offered in the Barista Bar was a full-time position and contingent on her being able to work a five day week and having to give up her parental leave. The Complainant submitted that the job in the Barista Bar was subsequently filled with a person who doesn’t have children and as a matter of fact all three Supervisors employed by the Respondent at the material time aren’t and weren’t the primary carer of a child. The Complainant contends that this leads to the conclusion that she was at a disadvantage in having a child and wasn’t promoted because of her family status.
4. Summary of the Respondent’s case
4.1 The Respondent operates a hotel. The Complainant has had two periods of employment with the Respondent and she initially commenced employment in May, 2007 and was employed as a Food and Beverage Assistant. The Complainant was promoted to Chef-de-Rang in October, 2007. In May, 2008 the Complainant was promoted again to the position of Bar Supervisor and she resigned from her initial period of employment in September, 2008. In March, 2011 the Complainant applied for, and was appointed to, the position of Food and Beverage Assistant on a part-time contract in her second period of employment. In 2011 the Complainant was promoted to the position of Chef-de-Rang.
4.2 In May, 2012 the Complainant commenced a period of maternity leave followed by additional maternity leave and her expected return date was 11th January, 2013. In advance of her return from maternity leave the Complainant had a conversation with her Department Manager regarding her wish to avail of her statutory parental leave entitlement on the basis of one day per week for a period of 70 weeks upon her return. The Complainant was employed to work five days per week. The Respondent agreed to accommodate the Complainant in her request. Over time the Complainant increased the hours she was working during her four days per week to between 30 and 37 hours. In November, 2014, the Respondent with the Complainant, clarified that the parental leave entitlement would cease on 26th September, 2015.
4.3 The Complainant was on a period of annual leave in April, 2015. On 22nd April, 2015 the Respondent advertised a number of vacant positions in the company which coincided with her leave. The list of vacancies included seven vacancies under Food and Beverage, including a role of F&B Supervisor Kitchen Bar. The Respondent submitted that it notifies all staff of their vacancies through the company “Facebook” site. The Complainant had visibility of the positions which were advertised and the Respondent submitted that it is the employees’ obligation to keep themselves apprised of vacancies as and when they arise and to apply, if interested. The Complainant while on annual leave spoke to the Respondent’s HR Manager who encouraged her to apply for the vacancy of Kitchen Bar Supervisor which was advertised if she was interested.
4.4 Upon her return from annual leave the Complainant was interviewed on 10th May, 2015 for the role of Bar Supervisor by the Food and Beverage Manager (Mr. A). Whilst the Complainant was not successful in the interview, Mr. A was impressed with her and appreciative of her work with the company. Mr. A proposed the creation of a new supervisory position for the Complainant. The role was to be that of Day Supervisor in the Barista Bar which was being developed and which would be opening in the hotel in the September, 2015. The role would have provided a commensurate increase in the rate of pay as the Bar Supervisor role and would have been at the same level of responsibility as the advertised role. There was no competition for the role or any other internal or external candidates. The role was an opportunity for the Complainant if she wished to accept it, and there were no implications for her if she did not wish to take it up. The role was created to be a full-time role with regular hours as the Complainant had indicated a preference for these hours to meet her personal commitments. The Complainant was also contracted to work a full-time role at this time. However, the Respondent was open to discussing what hours or days could have been worked by the Complainant. As the Respondent were creating the role specifically for the Complainant it would have been irrational for them to create a role which was contrary to her express wishes.
4.5 The Complainant had enquired as to whether she could carry out the role on a four days and ten hours per shift basis. The Respondent did not agree to the Complainant working on such a basis as the normal shift duration and also her contracted shift length was eight hours. The Respondent submitted that in this situation requiring a shorter length of shift does not constitute discrimination, either direct or indirect, on the grounds of family status, as the requirement to work a shorter length of shift would not disproportionately affect women more than men. The requirement to roster employees for eight hour shifts was an effort to foster a positive working environment and to ensure that employees remained within the parameters of the Organisation of Working Time Act 1997.
4.6 On 3rd July, 2015 the Complainant submitted a complaint to HR regarding her internal promotion to Supervisor in the Barista Bar. Subsequently, on 6th July, 2015 the Complainant handed in her resignation. On 9th July, 2015 the Complainant met with Mr. A and the HR Manager to discuss her grievance regarding her proposed promotion. The Respondent submitted that during the meeting the Complainant acknowledged that the Respondent was doing its best to accommodate her desire for a promotion and that Mr. A had been very helpful. The Complainant indicated that she could not wait to be promoted as her child was starting school and that she needed more regular hours and had no help with childcare. It was pointed out to the Complainant that they had discussed the creation of a supervisor role for her which would have hours that would suit her family requirements. It was suggested that this was the ideal opportunity as the role would not require late night/early morning finishes as was the case with the Bar Supervisor role which her colleague had been promoted to. The Complainant was informed that the building work had not commenced on the new Barista Bar at that point but it was hoped that the role would be available from September, 2015. It was expected that this would coincide with the Complainant’s request to work regular hours when her son commenced school.
4.7 The Respondent submitted that the Complainant stated at this meeting on 9th July, 2015 that while Mr. A had been “excellent” she was aggrieved over other colleagues who had been promoted in the past. The Complainant was assured by the Respondent that these employees were promoted on the basis of their ability to do the role. The Respondent submitted that regarding the Bar Supervisor role in April, 2015, as had previously been explained to the Complainant, the employee was successful on the basis of his skills and also due to the fact that the Bar Supervisor role would require early morning finishes which the Complainant herself had indicated was not suitable to her. The Complainant indicated at the meeting that she understood but felt it was time to move on and wanted a job with more money and had to consider her son was starting school in September. The HR Manager asked the Complainant to take the weekend to think over her decision regarding the Barista Bar role which the Complainant stated that she would. The Respondent submitted that the Complainant ultimately chose not accept the promotion and resigned from her employment as originally tendered.
4.8 In response to the alleged discriminatory treatment in relation to promotion the Respondent submitted that the Complainant was on leave in 2014 when a position was openly advertised and which she did not apply for. In 2015 the Complainant was again, on annual leave when a number of roles were openly advertised. The Respondent submitted that while the Complainant is openly aggrieved that the roles were advertised coinciding with her period of annual leave, the Respondent submitted that this clearly does not amount to discrimination. The Respondent submitted that employees are frequently on leave while roles are advertised and the fact that this happens does not indicate a prima facie case of discrimination. The Respondent submitted that the Complainant did not apply for the role initially but following a conversation with the HR Manager, who encouraged her to apply; she applied and was unsuccessful for the position. However, based on her interview and her work in the company up to that juncture the Respondent sought to promote the Complainant into a role which was suitable to her skill and also which had hours which would be acceptable to her given what she had indicated she could and could not do. The Respondent submitted that the company were endeavouring to provide the Complainant with a promotion. In doing so, the Respondent was treating the Complainant more favourably than most employees. The Respondent submitted that any claim of discrimination is unfounded.
5. Conclusions of the Equality Officer
5.1 The issues for consideration by me are (i) whether or not the Complainant’s claim of discrimination in relation to promotion in July, 2014 was referred within the time limits prescribed at section 77 of the Employment Equality Acts and is therefore within my jurisdiction to investigate and (ii) whether or not the Respondent discriminated against the Complainant, either directly or indirectly, in relation to promotion. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.
Jurisdictional Issue – Time Limits
5.2 The Respondent has submitted that the claim of discriminatory treatment in relation to promotion to the position of Supervisor in July, 2014 has not been referred within the time limits prescribed in Section 77(5) of the Acts. The Respondent submitted that this incident is totally unrelated to the alleged incident of discriminatory treatment in relation to promotion in April, 2015, and therefore, these two incidents cannot be considered as separate manifestations of the same disposition to discriminate or a continuum of discrimination. The Respondent submitted that the complaint in relation to the earlier incident in July, 2014 was not referred to the Equality Tribunal until 10th September, 2015. It was submitted, therefore, that the complaint in relation to this incident is statute barred as it has not been referred to the Equality Tribunal within either the period of six months provided for in Section 77(5)(a) of the Acts or the extended period of twelve months as provided for in Section 77(5)(b) of the Acts from the date of the alleged act of discrimination.
5.3 The Complainant disputes the Respondent’s contention that the alleged act of discrimination in relation to the incident in July, 2014 has not been referred within the prescribed time limits in Section 77(5) of the Acts. The Complainant submitted that the two alleged incidents of discrimination in July, 2014 and April, 2015 are related in that they both arise from the Respondent’s refusal to promote her to the position of Supervisor on the grounds of her family status. She contends that both of the alleged acts of discrimination are sufficiently connected so as to constitute a continuum of discrimination.
The Complainant submitted that the latter act constitutes the most recent occurrence of the discriminatory treatment, and therefore, that the present complaint, which was referred to the Director of the Equality Tribunal on 10th September, 2015 complies with the required time limits under section 77(5) of the Acts.
5.4 Section 77(5) of the Acts provides as follows: -
(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director….may, for reasonable cause, direct that in relation to the complainant paragraph (c) shall have effect as if for the reference to a period of 6months there were substituted reference to such period not exceeding 12 months as specified in the direction…..”
This subsection requires a Complainant, in the first instance, to refer a complaint to this Tribunal within six months of the alleged act of unlawful treatment, or if the alleged treatment forms a series of individual connected acts, the most recent of those.
5.5 Section 77(6A) of the Acts provides as follows:-
For the purposes of this Section –
(a) Discrimination or victimisation occurs –
(i) If the act constituting it extends over a period, at the end of the period,
(ii) If it arises by virtue of a term in a contract, throughout the duration of the contract, and
(iii) If it arises by virtue of a provision which operates over a period, throughout the period.
This section pertains to a single act extending over a period of time and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the Complainant.
5.6 In the case of County Cork VEC –v- Ann Hurley1
the Labour Court has interpreted the provisions of sections 77(5) and 77(6A) of the Acts in the following manner: “Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion”.
5.7 In considering the issue of whether the matters complained about constitute ongoing discrimination or a continuum of discrimination within the meaning of section 77(5) of the Acts, I have again taken cognisance of the Labour Court’s interpretation of that provision of the Acts in the Hurley case where it held that: “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum ….. It is clear for the passage just quoted that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit”.
5.8 In the present case, the Complainant claims that the two alleged incidents of discrimination arise from the Respondent’s refusal to promote her to the position of Supervisor on the grounds of her family status. In my view, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which is clearly the case, I am satisfied that I can take into consideration the previous occasion in which the Complainant was allegedly discriminated against on the same ground. Accordingly, I find that I have jurisdiction to investigate both of the alleged incidents of discrimination.
Discriminatory Grounds claimed in the present case
5.9 It is necessary to clarify that the family status ground is the only discriminatory ground in respect of which I have jurisdiction to consider the alleged discrimination in the present case. The Complainant referred her complaint to the Equality Tribunal on 10th September, 2015 and she subsequently forwarded a written submission on 18th December, 2015 which elaborated further on the details provided in the initial Complaint Referral Form. I am satisfied that it was clear from both the initial Complaint Referral Form and the written submission that the claim of discrimination was confined exclusively to the family status ground. In the interests of fair procedures the parties were afforded the opportunity to forward written submissions on the issue of indirect discrimination in the context of the present case following the oral hearing in the matter. In the Complainant’s written submission on this matter (which was received on 12th September, 2017) she sought to extend the scope of the complaint to also include the gender ground for the first time. In the circumstances, I am satisfied that the Complainant is precluded at this juncture from seeking to extend the scope of the complaint in such a manner as any such action would clearly fail to comply with the prescribed time limits in Section 77 of the Acts. Accordingly, my investigation in this matter is confined strictly to the claim of discrimination under the family status ground.
Substantive Issue – Direct Discrimination or Indirect Discrimination
5.10 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
5.11 Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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)…..”. Section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not".
“Family status”
is defined in Section 2(1) of the Acts as follows:
(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;
5.12 The first issue that I must address in the present case is whether the alleged discrimination by the Complainant should be considered in the context of direct or indirect discrimination. The Complainant claims that she has been subjected to discrimination on the grounds of her family status in relation to promotion opportunities to the position of Supervisor which arose in July, 2014 and April, 2015. The Complainant claims that she was not selected for promotion to either of these positions because she was on parental leave at the material time, and therefore, was not available to work on a full-time five day per week basis. The Complainant also claims that following the Respondent’s failure to promote her to the position of Supervisor in April, 2015 she was subsequently offered promotion to the position of Supervisor in the Barista Bar on the basis that she would be required to return to work on a full-time position which would have resulted in her having to terminate her parental leave. The Complainant contends that she was unable to return to work on a full-time basis because of her child care responsibilities.
5.13 The Labour Court held in the case of Tesco Ireland –v- Swift 2
as follows: “The European Court of Justice in the case of Julia Schnorbus v Land-Hessen C79/99 has stated that direct discrimination can only arise where the difference in treatment complained of is based on criterion which is explicitly that of sex or is necessarily linked to a characteristic indissociable from that of sex. As this Court has stated in the case of Tesco Ireland and A Worker DEE014, while the responsibility for child care may in practice fall to a disproportionate degree on women, it cannot be said to be a characteristic indissociable from a woman's gender. The Court cannot therefore accept the complainant's complaint is one of direct discrimination
I am satisfied that the reasoning in this case is equally applicable to the family status ground which is the ground being relied upon by the Complainant in the circumstances of the present case. In essence, the central plank of the Complainant’s complaint is that the alleged requirement by the Respondent to work on a full-time five day per week basis in order to secure a promotion to the position of Supervisor amounts to discrimination on the grounds of her family status. Accordingly, in applying this reasoning in the Tesco Ireland case to the present case, I am satisfied that the Complainant’s claim is one of indirect discrimination rather than direct discrimination on the grounds of her family status.
5.14 In considering the issue of direct or indirect discrimination in the context of the present case, I have also taken cognizance of the fact that the successful candidate for promotion to the position of Supervisor in April, 2015 was a male colleague of the Complainant’s who was also the parent of a child under the age of 18 years, albeit that he was not the primary carer for the child. In accordance with the definition of “family status” in the Acts a person can be regarded as having family status under either paragraph (a) or (b) of the relevant provision. In terms of subsection (a), which is the relevant provision in the context of the instant case, a person can claim family status as a parent or person in loco parentis. Therefore, in terms of a claim of direct discrimination the Complainant who has family status can only compare herself with someone who does not have family status. It is clear that the successful candidate for this promotion also had family status within the meaning of subsection (a) at the material time of the alleged discrimination. The Complainant has not adduced any evidence to suggest that she has been treated less favourably than someone who does not have family status. Accordingly, I am satisfied that the alleged discrimination in the context of the present complaint is one which falls to be considered under the provisions relating to indirect discrimination.
5.15 Indirect discrimination is defined in Sections 22 and 31 of the Acts as where an apparently neutral provision puts persons at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
5.16 The apparently neutral provision which the Complainant claims put her at a particular disadvantage in relation to promotion was the alleged requirement to work on a full-time five days per week basis. The Respondent disputes the Complainant’s contention that it imposed a requirement on any of its employees to work in a full-time capacity in order to be eligible for promotion to the position of Supervisor. The Respondent argued that the successful candidates for promotion to the positions of Supervisor in July, 2014 and April, 2015 were selected purely based on merit and there was no requirement to work on the incumbents of these positions to work on a full-time five day per week basis. Therefore, in order for the Complainant to establish a prima facie case of indirect discrimination it is necessary for her to establish facts from which it could be presumed that the impugned requirement actually existed and was applied by the Respondent as a factor in terms of her attempts to secure promotion to the position of Supervisor in the Barista Bar.
5.17 In terms of the promotion opportunities that arose in July, 2014 and April, 2015, I find that the Complainant has not adduced any evidence from which I could reasonably conclude that the reason why she was not promoted at that juncture was in any way related to the fact that she was on parental leave or that she was not available to work on a full-time five days per week basis at the material time. Based on the evidence adduced, I am satisfied that the Respondent did not impose any requirement that would have required the successful candidates for these positions to be available to work on a full-time basis. Indeed, I note the Complainant’s own evidence whereby she confirmed that one of the Supervisors employed by the Respondent at the material time of the present complaint that was a female who was working on a three-day per week basis. I have not been presented with any evidence of unfairness in the selection processes or manifest irrationality in the results arising from the promotions in 2014 and 2015. I accept the Respondent’s evidence that the successful applicants for these positions were selected purely on merit and ability to perform in the role of Supervisor. In the circumstances, I find that the Complainant has failed to establish a prima facie case of indirect discrimination on the grounds of family status in relation to promotion opportunities that arose in July, 2014 and April, 2015.
5.18 Next I will consider the Complainant’s claim that she was subjected to discrimination on the grounds of family status in relation to the Respondent’s offer of a promotion to the position of Supervisor in the Barista Bar which arose after her unsuccessful application for promotion in April, 2015. The key area of contention between the parties in relation to the Supervisor’s position in the Barista Bar relates to the issue of whether or not the Respondent imposed a requirement on the Complainant to return to work on a full-time five day per week basis in order to avail of the offer of promotion to the position. The Complainant, on the one hand, contends that the offer of promotion to this position was contingent on her being available to return to work on a full-time five days per week basis which would have required her to terminate her parental leave arrangement. The Complainant also contends that the Respondent was not willing to allow her to work the full-time hours (39 hours per week) over four days which would have allowed her to continue her parental leave and facilitated the status quo in terms of her existing childcare arrangements.
5.19 The Respondent, on the other hand, contends that the proposed Supervisor’s position in the Barista Bar was being specifically created for the Complainant and was an opportunity for her to avail of a promotion to a supervisory position with regular hours which would be compatible with her personal parental commitments. The Respondent contends that there was no stipulated requirement that the position be carried out on a five day per week basis and it refutes the Complainant’s contention that there was any requirement being imposed on her to terminate her parental leave arrangements in order to avail of the promotion to this position.
5.20 I have found the Respondent’s evidence on this issue to be more compelling and I therefore find that there was no requirement on her to return to work on a full time basis or to terminate her parental leave prematurely in order to avail of the promotional position in the Barista Bar. In coming to this conclusion, I have found the evidence of the Respondent’s Food and Beverage Manager, Mr. A, to be particularly persuasive and credible in terms of the circumstances surrounding the offer of promotion and the interaction that he had with the Complainant in relation to the supervisory position in the Barista Bar. I accept Mr. A’s evidence that he considered the Complainant to be a very competent employee and in recognition of her work with the company the Respondent offered her promotion to the new supervisory role in the Barista Bar which was scheduled to open in September, 2015 in order to facilitate her ambition to progress within the organization.
5.21 I note that Mr. A stated in evidence that he had made it clear to the Complainant that while the role was initially intended to be a full-time role with flexible hours, the Respondent was open to discussing what hours or days she could work to accommodate her personal commitments. It was also common case that the Complainant’s statutory parental leave entitlements were due to end on 26th September, 2015 and that she would have been obliged, in any event, at that juncture to resume working work on a 39 hours per week over five days under the existing terms and conditions of her employment. I am satisfied that the Respondent made several efforts to engage with the Complainant in relation to the new Supervisor’s role in the Barista Bar with a view to putting mutually acceptable arrangements in place which would have facilitated her in accepting the offer of promotion to this position. I also note that the Respondent convened a meeting with the Complainant after she had submitted her letter of resignation on 6th July, 2015 in an effort to further clarify the position in relation to the proposed promotion and to try and dissuade her from leaving her employment in order to take up the new supervisory position in the Barista Bar. However, it is clear that notwithstanding the efforts on the part of the Respondent to try and retain the services of the Complainant, she decided to resign from her employment.
5.22 Having regard to the totality of the evidence adduced, I find that the Complainant has failed to establish facts from which it could reasonably be presumed that the Respondent imposed a requirement, either generally on its workforce or exclusively on her, to work on a full-time five days per week basis to avail of the promotion opportunities that arose in the context of the present case. Accordingly, I find that the Complainant has failed to establish a prima facie case of indirect discrimination on the ground of family status. Since I have found that the Complainant has not has not established a prima facie case it is unnecessary to address whether or not evidence has been presented that would amount to objective justification in terms of Section 22(1)(b) of the Acts.
5.23 In conclusion and for the sake of completeness, it is necessary for me to mention that I afforded both parties the opportunity to make written submissions on the issue of indirect discrimination in the context of the alleged discrimination in the present case. In their respective written submissions both parties addressed the relevance or otherwise of the case of Marie Inoue –v- NBK Designs Limited3 to the instant proceedings. In this case, the Labour Court also considered the issue of indirect discrimination in the context of an employee who was employed as a part-time secretary/personal assistant but was dismissed by her employer due to her inability to undertake a full-time position on account of her child minding responsibilities following the merger of her job-sharing position into a full- time position. The Labour Court accepted as a general proposition that women who have children and are single, divorced or separated find it more difficult to work full-time than fathers who are single, separated or divorced or men who are not parents. Therefore, the Labour held that prima facie the requirement to work full-time constituted discrimination on grounds of gender, marital status and family status. However, in arriving at my decision in the present case, I would draw the following key distinction between the facts of the Inoue case from those that pertained in the present case. It was not in dispute in the Inoue case that there was a strict requirement that the role in question be carried out by the employee on a full-time basis. However, I have found that such a requirement to work on a full-time basis did not exist in the context of eligibility for promotion in the present case. Furthermore, I am satisfied that the Respondent was open to dialogue with the Complainant in terms of putting in place a mutually agreeable working arrangement in terms of the offer of promotion to the position of Supervisor in the Barista Bar.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the Complainant has failed to establish a prima facie case of indirect discrimination in relation to promotion contrary to Sections 22 and 31 of the Acts. Accordingly, I find in favour of the Respondent.
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Enda Murphy
Equality Officer/Adjudication Officer
23rd October, 2017
1 EDA1124
2 EDA0514
3 EED0212