EDA187

• Employment Equality Acts 1998 – 2015

The Complainant submits that she was discriminated against by the Respondent on the grounds of race.

The Complainant, in her written submissions to the Court particularises her complaint in the following terms

• 
  “The main discrimination made was regarding the roster and the employee that was favoured the most was Sean Kirby. The job was a 24/7 hours job and all the staff should have been working after a fair roster but this was not possible because Sean Kirby was working Monday – Friday from 7.00 am to 3. 00 pm and the rest of the staff had to cover afternoon and night shfits during the week and mornings/afternoon/night shifts in the weekends. Sean Kirby also had the legal days off and he was never asked to cover shifts/hours in his days off and his days off were always linked.”

• 
  “used to work all shifts, usually afternoon shifts from 3.00 am to 11.00 pm. I had night shifts as well from 11.00 pm to 7.00 am(night shifts were not paid more) and I had morning shifts in the weekends sometimes during the week when Sean Kirby was off.”

Burden of Proof

Section 85A of the Act states

• 
  85A.— (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 question that the Court must answer therefore is whether the Complainant has established facts from which it may be presumed that there has been discrimination in relation to her.

Having reviewed the evidence before it the Court finds that the Complainant is Romanian and Mr Kirby is Irish. The Court further finds that the shift patterns of Mr Kirby are significantly better that those of the Complainant.

On the basis of this information the Court finds that the Complainant has established facts from which it may be presumed that there has been discrimination in relation to her. The Court considers those facts substantial and draws that conclusion thereby shifting the burden of proving that the difference in treatment between the two workers was not related to the Complainant’s race.

It is therefore necessary that the Respondent prove the contrary.

Respondent’s Case

The Respondent told the Court that Mr Kirby had come into its employment through a Transfer of Undertakings arrangement. His terms and conditions of employment at the time of the transfer included a provision to the effect that his working week was confined to daytime hours Monday to Friday each week. He also had contractual commitments limiting his obligation to work overtime, fixing the location of his employment and an entitlement to be rostered off duty on Public Holidays. The Respondent told the Court that it honoured those contractual entitlements

The Respondent submits that as a matter of law Mr Kirby had an entitlement to retain those terms and conditions of employment after the Transfer of Undertakings took effect. It submits that the statutory requirement to honour those terms and conditions of employment were the sole basis for his distinct treatment. It submits that all other employees were treated differently to Mr Kirby not because they were of a different race but because they did not come under the protection of the TUPE regulations and he did.

Findings of the Court

On the basis of the evidence before it Court finds that the Respondent did not discriminate against the Complainant on the race ground. The Court finds that the differences in treatment arose out of a statutory obligation and was not in any way related to the Complainant’s race.

Determination

The Complaint is not well founded. The decision of the Adjudication Officer is upheld.

Complaint of Victimisation

The Complainant submits that contrary to section 77 of the Employment Equality Acts 1998 – 2015 she was penalised by the Respondent in the course of her employment.

The Respondent submits that the complaint is misconceived and that it did not victimise the Complainant within the meaning of the Act.

Section 74 of the Employment Equality Acts states

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  For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

  ( a ) a complaint of discrimination made by the employee to the employer,

  ( b ) any proceedings by a complainant,

  ( c ) an employee having represented or otherwise supported a complainant,

  ( d ) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

  ( e ) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,

  ( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

  ( g ) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

  (3) For the purposes of sections 77, 78, 83, 87 and 90 the date on which a case is referred, or an appeal made, under those provisions is the date on which the reference or appeal is received by the Director General of the Workplace Relations Commission , Labour Court or Circuit Court, as the case may be.

However at no point in her submission does she specify a) the complaint to which she refers or b) the person or body to whom she made it.

As section 85A places the burden of establishing the material facts on which a complaint is based on the Complainant and as she has failed to do that in this regard the Court finds that she has not met the burden of proof set out in section 85A of the Act.

Determination

The Complaint is not well founded. The decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Brendan Hayes
JD______________________
16 January 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.