EDA1812

This is an appeal byGrzegorz Kowalski (the Complainant) against Decision DEC-E2017-013 of an Equality/Adjudication Officer in his complaint against his employer Tesco Ireland Limited (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Act). The Adjudication Officer found that the Complainant had failed to establish aprima faciecase of discrimination in terms of access to promotion or conditions of employment on the age ground.

Background

The Complainant is employed directly by the Respondent since 1^stFebruary 2008 as a warehouse operative in a distribution centre of the Respondent. The Respondent operates a three-shift system. The Complainant works the night shift which is referred to as the Dark Night shift. The Complainant originally worked as an agency worker and was then moved on to a flexible contract as a direct employee of the Respondent. It is the Complainant’s contention that he should have then moved on to a full-time contract and the reason he was not moved was because of his age. However, in October 2017 he was moved on to a full-time contract. The complainant’s submission indicated that his claim covers the period 2008 to October 2017 when he was placed on a fulltime contract. The Complainant’s claim was lodged with the Director of the Equality tribunal on the 31^stJuly 2014.

In accordance with the Act the cognisable period for the claim is 1^stFebruary 2014 to the 31^stJuly 2014.

Complainant’s case

In his submission to the Court the Complainant sets out that he was on a flexible contract (22.5 hours per week). In terms of his performance he always attained the required efficiency levels and he was a good performer. The Complainant indicated that he was aware of other staff who had joined the organisation at the same time or after he had and who had been moved to full-time contracts (37 hours per week). It is his submission that they were of a different age to him. He indicated that on numerous occasions other people were given overtime and he was sent home. He contends that was because of his age. In relation to acts of discrimination within the cognisable period the Complainant’s representative informed the court that their claim was that there was ongoing discrimination. The particular incident they were relying on within the cognisable period was that at the Complainant’s review meeting in July 2014 he had requested a transfer onto a full-time contract and that had not been facilitated at that point in time.

Respondent’s case

The Complainant works on a night shift where there is very little movement. Staff are moved from flexible contracts to full-time contracts as vacancies arise. When vacancies arise all staff on that shift pattern are considered eligible and a selection matrix made up of a number of key performance indicators is used. This process was agreed and developed by management and the internal staff forum. During the cognisable period there was no vacancy on the Dark Night shift so no staff on that shift moved from a flexible contract to a full-time contract. It is the Respondent’s positon that the claimant has failed to establish a prima facie case of age discrimination.

The applicable law

Section 85A of the Act provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: -

• “(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

• • “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. 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 which can reasonably be drawn from those facts.”

The Respondent has informed the Court that they have an agreed process for moving staff from flexible contracts to full-time contracts. However, during the period in question the process was not used in relation to the Dark Night shift as no vacancy occurred during the period. It was not disputed by the Complainant that during the relevant period no staff member on the Dark Night shift was moved from flexible to full-time contracts. As set out by the court inSouthern Health Board v Mitchell[2001] E.L.R. 201cited above it is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. It is the opinion of the Court in the instant case, no such facts were established. As the Complainant, has failed to establish a prima facie case of age discrimination the appeal must fail.

Determination

For the reasons set out herein, the Court is satisfied that the Complainant was not discriminated against on the ground of age. The Complainant’s appeal cannot succeed and it is dismissed. The Decision of the Adjudication Officer is affirmed.

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
29 January 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.