Employment Equality Acts 1998-2011
Decision No: DEC-E2017-072
Parties
A retail assistant
And
A sports goods retailer.
(Represented by Ronan Daly Jermyn Solicitors)
File No: et-156068-ee-15
Date of issue 25th September 2017
1. DISPUTE
This dispute involves a claim by A Retail Assistant (hereinafter referred to as ”the complainant”) that she was discriminated against by A Sporting Goods Retailer (hereinafter referred to as ” the respondent”), on the grounds of gender and family status contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) in terms of conditions of employment and promotion accordance with section 8 of the Acts
2. BACKGROUND
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2011 to the Equality Tribunal on the 5th May 2015. On the 24th April 2017, in accordance with her powers under the Acts the Director General of the WRC delegated the complaint to me, Mr. Peter Healy, an Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a hearing of the complaint took place on 27th June 2017. Both parties attended the hearing.
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 COMPLAINANT'S CASE
3.1 The complainant submits that on the 10th June 2014 she commenced employment with the respondent as a sports advisor, with a probationary period of six weeks. She reported directly to the store manager, Mr F. At the end of November 2014 the complainant had a meeting with Mr F to discuss her performance, how she was getting on, customer targets etc. The complainant submits that at no point was she told that her performance was not satisfactory. The complainant submits that she expected some discussion about her career development at that meeting, as she had become aware of a position of 3rd key holder for the store. The complainant submits that the key holder is a person who opens and closes the store, is a position of some responsibility and constitutes a promotion.
3.2 At that meeting Mr F confirmed that he was giving the position of key holder to a male colleague who had commenced employment at the same time as the complainant. The complainant submits that Mr F said that she was not considered as a key holder as she had two kids and was not flexible.
3.3 The complainant submits that Mr F also told her that she could be a merchandiser because “customers prefer females”
4. SUMMARY OF RESPONDENT'S WRITTEN SUBMISSION
4.1 The respondent submits that the Complainant is statute barred in respect of her claim of discrimination relating to a promotion on the grounds of family status. The Complainant referred her complaint to the Equality Tribunal on 5th May 2015. It is, therefore, submitted that any claim arising from incidents occurring prior to 5th November 2014 is statute barred.
The Complainant alleges in her submission that the incident giving rise to the alleged discrimination took place at a meeting which was held between 26th-29th November 2014 between the Complainant and Mr. F in Store S. An incident could not have taken place and did not take place during this period as the Complainant only worked in Store S on 27th November, a date on which Mr. F was not present. This is supported by the TMS Records for the store which are provided for the Adjudicators consideration.
The Complainant further alleges that Mr. F made derogatory remarks about the position of women in society and states in her complaint form that the most recent date of discrimination was 20th November 2014. Notwithstanding the fact that any claim arising from incidents occurring prior to 5th November 2014 is statute barred, the Complainant does not refer to the date upon which such derogatory remarks were allegedly made by Mr. F and specifically does not refer to any incident arising between 5th November 2014 and 20th November 2014. Furthermore and of particular significance is the fact that the Complainant and Mr. F only worked in the Store S on the same day for one day only during this period, which was on 19th November 2014. Mr. F was on annual leave between 3rd November and 10th November 2014. Evidence will be provided that no derogatory comments were made by Mr. F on any day during the Complainant’s employment, including 19th November 2014.
4.2 It is further submitted that the temporary position of Third Key Holder was offered to Mr. M on 24th October 2014 and he commenced in the role on 27th October 2014. This is the latest operative date at which any alleged discrimination in respect of a promotion could have occurred. Discrimination relating to a promotion cannot occur indefinitely and the date at which an individual is allegedly discriminated against must, as a matter of fact, be the date upon which one individual secures a role which is, of course, the date upon which the complainant does not secure that same role, i.e. 27th October 2014.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was discriminated against by the respondent on the grounds of gender and family status contrary to section 6 of the of the Employment Equality Acts in terms of conditions of employment and promotion accordance with section 8 of the Acts. I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 The complainant’s referred the complaint to the Equality Tribunal on 5th May 2015.
Provisions of the legislation:
Section
77(5) of the Employment Equality Acts, 1998 to 2011 states -
(5) (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 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 (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such a period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
5.4 Referral of the complaint
The current complaint was received in the Equality Tribunal on 5th May 2015. The date (according to the respondent) of the alleged promotion was 24th October 2014 , which was outside the 6 month wasperiod stipulated in the Acts, but within the 12 month period for which an extension can be granted, for reasonable cause. The date of expiry for referral of the complaint was 5th November 2014.
5.4 The respondent has supplied records that demonstrate that the complainant could not have been at a meeting with Mr F in the time period alleged in the original complaint. At the hearing of this complainant the complaint did not challenge this evidence and could only offer vague recollections regarding any timeframe and commented that she had “left it too late”. I accept the timeframe put forward by the respondent which was backed up by written and oral evidence. The complainant has therefore failed to establish any reasonable cause for the delay in referring her complaint.
5.5 While the respondent has provided unchallenged exact evidence of the locations of the complainant and Mr F which demonstrate that the complaints timeframe must be false, the complainant has provided only her vague recollections. I must accept that the meeting with Mr F must have taken place prior to the six months set out by the Acts.
5.6 I am statute barred therefore from investigating those allegations by the complainant regarding the meeting with Mr F and the position of key holder.
5.7 In regards to any derogatory comments made by Mr F that maybe within the six months allowed by the acts the complainant has not presented any evidence other than her own account. Mr F gave evidence at the hearing and rejected all accusations by the complainant. I accept the respondents account and in contrast I find that the complainants accusations are so vague and without any timeframe that they are not sufficient to raise a prima facie case.
6. DECISION OF THE EQUALITY OFFICER.
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that
The complainant was not subject to discrimination on the ground of gender or family status and her conditions of employment were not affected,
(ii) I am statute barred from investigating the allegations relating to promotion.
____________________________
Peter Healy
Adjudication Officer/Equality Officer
25th September 2017.