ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00015821
Parties:
| Complainant | Respondent |
Parties | Kerrie Gunning | Arthur Cox Law Firm |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives |
| Cian Beecher Arthur Cox Solicitors |
Complaint(s):
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-00020534-001 | 13/07/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00020540-001 | 13/07/2018 |
Date of Adjudication Hearing: 12/10/2018
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
|
Summary of Complainant’s Case:
The complainant applied for the role of HR business partner with the respondent. She was called for interview. She was interviewed by the Director of Human Resources and the Human Resources Manager. She arrived at the respondent’s premises and was greeted by the two interviewers. She had a glass of water and sat down. The Director of Human Resources asked most of the questions. She was asked how she found her journey into the city centre. The respondents stated that her husband does that commute daily and has no issues with it. She went on to say that her husband does the creche run every morning and then hops on the Dart and there is never an issue. The Director of Human Resources then asked, “what time does the creche close at?”. The complainant was a little taken aback by this question but she answered it and said that it closes at 6pm. The interviewer replied by asking if she would have to be back in time to collect the children by 6pm daily. The complainant was anxious to answer the question and stated that she was very lucky to have two sets of grandparents close by who did the pickups when needed. The complainant felt that her answers to these questions would result in her not getting the position. The complainant also stated that she is an experienced HR manager and has done hundreds of interviews with potential employees. She knew that she did not have to answer this question, but due to her nerves, she kept talking. Following the interview, the complainant went back to the agency and ask them for feedback from the respondent. She was never given any. The complainant is of the view that the respondent having elicited the information they did about her family life, discriminated against her based on the fact that she had two children who needed to be collected from the Creche by 6 p.m. daily. |
Summary of Respondent’s Case:
By two Workplace Relations Complaint Forms (duplicated but amalgamated into reference ADJ-0015821) filed with the Workplace Relations Commission on 13 July 2018, the Complainant makes a complaint against the Respondent under the Employment Equality Acts 1998 to 2005 (the ‘Acts’). The Complainant claims she was discriminated against by the Respondent in the context of an interview process for a role with the Respondent and has specifically alleged discrimination on the basis of family status. The claims are denied. The Respondent is a service company which inter alia employs, non-legally qualified employees who provide business support and related service to the law firm. On 18 May 2018 the Complainant attended for interview for a Human resources role. The interview was conducted by the Director of Human Resources and the Human Resources Manager. The Complainant was in the company of both at all times. The Complainant recounts that in the early stage of the interview the Director of Human Resources engaged the Complainant is a casual discussion about how she got to the interview and how she found the “commute to town”. The Complainant’ account is that she responded to disclose that her husband undertakes a similar commute to the city centre every day and also undertakes what she described as the “crèche run”. The Complainant alleges that the Director of Human Resources then asked an inappropriate question, contrary to the Acts, in that she asked “What time does your crèche close every day”. The Complainant says she responded to indicate the crèche closed at 6 p.m. and Ms Dalton replied to say “So you would need to be back by 6?”. The Complainant alleges the question contravened the Acts and indicated discrimination on the ground of family status. This is the only allegation made in the Complainant’s complaint form capable of being considered under the Acts and is the only complaint addressed by the Respondent, by her own admission within her complaint form “[her] complaint however is in [The Director of Human Resources ’s] question regarding my crèche times”. The account given the Complainant is denied in its entirety. It is denied that the questions the Complainant alleges were asked in the manner she alleges or at all. As the Director of Human Resources and the Human Resources Manager were bringing the Complainant to the interview room, they made the usual efforts to engage the Complainant in a general conversation to both welcome her and put her at her ease. As the day in question was particular warm, a general discussion took place about the weather and the Complainant’s journey to the City Centre in the heat. This occurred as all three we walked in to the room, took seats and poured beverages; this discussion took place before the Director of Human Resources and the Human Resources Manager, introduced how the interview would be structured and what would be covered. The Complainant was not solicited to provide particulars of her private life or family status. The Complainant voluntarily shared a number of points at this point including: (a) she took the DART into the city; (b) she was not used to doing so; (c) her husband does so after he carries out their “crèche run” at 8 am. The Complainant was never asked about her chosen crèche’s operating hours. However, unprompted the Complainant raised the point that her chosen crèche closed at 6 pm. Neither the Director of Human Resources nor the Human Resources Manager commented on this. The Director of Human Resources specifically stated in evidence that she felt very uncomfortable about the information the complainant was divulging. The Complainant divulged an unusual amount of personal information at interview which was not solicited. Both the Director of Human Resources and the Human Resources Manager took notes of the interview. The preliminary exchanges, which took place prior to the start of the interview are not recorded in the notes. The interview lasted more than 50 minutes. Afterwards, the Director of Human Resources and the Human Resources Manager accompanied the Complainant as she left the office to the street exit. As all three were in the lift, the Director of Human Resources asked the Complainant where she travelling to and the Complainant indicated she was going home to Portmarnock but was planning to take some time to go into the city centre before heading home. A general discussion ensued about the advantages of being close to XX Street and the group parted company. The Complainant was not successful at interview for the role. Factors considered by the Director of Human Resources and the Human Resources Manager included: (a) The Complainant’s recent experience was working for XX, with solid HR experience on a practical level working in an organisation that required an ability to deal with issues across a pan-European basis; (b) No experience of working in a professional services/law firm; (c) No knowledge of or familiarity with law firms/the Irish legal market place when discussed at interview. The Complainant was unable to identify competitors of the Respondent or identify any law firms in a meaningful way; (d) No obvious experience of dealing with senior members of management (other than her manager) disclosed during the interview; (e) The Director of Human Resources and The Human Resources Manager questioned the Complainant about her current reporting line (as she had not mentioned it to that point). She indicated her manger had recently become Site Manager and had taken on a greater role in the XX organisation. However, the Complainant did not elaborate on her personal experience of dealing with senior management, differing personalities/management styles, etc. The Complainant’s family status was not considered and had no influence on the decision made to not progress her to second stage interview. It simply did not feature, regrettably the Complainant was not the right person for the role with the respondent based on her professional experience. It is denied that feedback was not provided to the Complainant post-interview. While not forming any part of the claim under the Acts, the Human Resources Manager provided feedback to the recruitment agency in question. the Human Resources Manager has several calls with the recruitment agency. When seeking to fill the vacancy in question the Respondent interviewed nine candidates. Aside from the Complainant, who volunteered that she was a parent, neither the Director of Human Resources nor the Human Resources Manager are aware of the family status of any other candidate. One candidate volunteered she had taken a career change at a certain stage because she was undergoing IVF treatment, neither the Director of Human Resources nor the Human Resources Manager know if she was successful at that time as she did not volunteer the information and she was not asked. Of the nine candidates interviewed, two progressed to the second round. All of the nine candidates were female. Ultimately none of the candidates were offered the role. While it was felt the two candidates at second round did have the requisite skillset, there were a number of significant projects being undertaken by the HR Department over the following six months with a number to be completed over the period to mid-June 2018. A decision was taken that this was not the correct environment into which to introduce a new recruit as the necessary level of support they would require from HR colleagues would not be available. Two existing employees share the additional duties in addition to their existing duties. The Director of Human Resources is a HR professional of over 20 years’ experience and has conducted hundreds if not thousands of interviews. The Director of Human Resources denies that she made the comments in question and has never once had any type of comment or complaint raised about her interviewing. As the Human Resources Director, the Director of Human Resources has championed numerous diversity initiatives with the Respondent’s workplace including: the Respondent’s Gender Diversity Strategy, Shared Parenting leave (amongst the first employers in Ireland to do so), paid paternity leave before it was legally enacted, professional assistance to working parents to get individual tailored support when seeking childcare and adopting a maternity leave policy that includes half days working for the first two weeks on return to work with no reduction in pay. Numerous members of the HR team, including HR Managers, undertake long commutes and are parents, this presents no issues for the Respondent and various accommodations have been worked out over the years, for long-standing team members and new recruits, to accommodate work/life balances. The HR team currently comprises 11 team members all of whom are female. The Respondent understands that 4 of the team have families (employee are not asked – however team members’ family status generally becomes known). Female HR Managers on the team, with families commute/have commuted from Sallins and Kildare town, without issue. Flexible working relationships operate at a practical level. The Respondent has undertaken significant efforts to support Inclusion and Diversity in the work place. Two senior partners of the firm act as Diversity Partners to ensure that this topic is considered at all times in all decisions taken. 30% of the firm's partnership comprises of women. Seven of the last twelve partners appointed (58%) were women. The firm has also won a series of awards for its work in this area, including, but not limited to, our Women Mentoring Initiative and our Shared Parenting policy. The firm also runs Maternity Coaching for all professional employees taking maternity leave to ensure that their career is not negatively affected throughout this transition. The firm also operates a gender quota (supported by the full partnership) to ensure that a minimum of three women partners sit at all times on the two most senior management committees in the firm. |
Findings and Conclusions:
Section 6 of the Acts sets out what discrimination is for the purposes of the Acts. It provides: “(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where (a) 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) (in this Act referred to as the “discriminatory grounds”) which (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,… …(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are… …(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),” Section 8 provides as follows: In relation to (1) (a) access to employment… an employer shall not discriminate against an employee or prospective employee… …(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee (a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, […] (b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different[, or] [(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) insofar as such advertisement relates to access to employment. In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out. It provided inter alia as follows: “The first requirement is that the Complainant 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 Complainant must prove, on the balance of probabilities, the primary fact from 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 provide that there was no infringement of the principle of equal treatment.” In A Worker v A Hotel [2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: ‘The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination in Mitchell v Southern Health Board [2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed. The entirety of the complainant’s claim rests on the asking of one question in relation to her childcare responsibilities. The respondent denies asking any questions in relation to her childcare responsibilities. Whilst the complainant accepts giving information in relation to her husband doing the creche run in the morning, she denies that she volunteered the information in relation to the creche pick up time. I find on the balance of probabilities that the respondent did not ask the Complainant about her creche pick up times, but that the complainant, possibly due to nerves, volunteered that information. I must now consider whether the respondent, knowing the complainant’s child care arrangements, discriminate against her because of that. The complainant was not able to give any evidence other than her own gut feeling that the respondent discriminated against her in not offering her the position because of her child care arrangements. The respondent on the other hand, was able to show that they have very flexible working hours both in and out of the office for all their employees. The Director of Human Resources herself has championed numerous diversity initiatives with the respondent workplace including but not limited to, the Respondents gender diversity strategy, shared parental leave, paid paternity leave before it was legally enacted, professional assistance to working parents to get an individual tailored support when seeking childcare and adopting a maternity leave policy that includes half days working for the first two weeks on return to work with no reduction in pay. Furthermore, the respondent was able to demonstrate that they have in the past made various accommodations for individual members of staff to suit their work life balances.
I accept the respondent’s evidence that having been voluntarily told about the complainant’s childcare arrangements, those arrangements, or the fact that she had children at all, had no bearing on their decision not to give her the job. The complaint fails. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complaint fails.
|
Dated: 5.11.18
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
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ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00015821
Parties:
| Complainant | Respondent |
Parties | Kerrie Gunning | Arthur Cox Law Firm |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives |
| Cian Beecher Arthur Cox Solicitors |
Complaint(s):
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-00020534-001 | 13/07/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00020540-001 | 13/07/2018 |
Date of Adjudication Hearing: 12/10/2018
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
|
Summary of Complainant’s Case:
The complainant applied for the role of HR business partner with the respondent. She was called for interview. She was interviewed by the Director of Human Resources and the Human Resources Manager. She arrived at the respondent’s premises and was greeted by the two interviewers. She had a glass of water and sat down. The Director of Human Resources asked most of the questions. She was asked how she found her journey into the city centre. The respondents stated that her husband does that commute daily and has no issues with it. She went on to say that her husband does the creche run every morning and then hops on the Dart and there is never an issue. The Director of Human Resources then asked, “what time does the creche close at?”. The complainant was a little taken aback by this question but she answered it and said that it closes at 6pm. The interviewer replied by asking if she would have to be back in time to collect the children by 6pm daily. The complainant was anxious to answer the question and stated that she was very lucky to have two sets of grandparents close by who did the pickups when needed. The complainant felt that her answers to these questions would result in her not getting the position. The complainant also stated that she is an experienced HR manager and has done hundreds of interviews with potential employees. She knew that she did not have to answer this question, but due to her nerves, she kept talking. Following the interview, the complainant went back to the agency and ask them for feedback from the respondent. She was never given any. The complainant is of the view that the respondent having elicited the information they did about her family life, discriminated against her based on the fact that she had two children who needed to be collected from the Creche by 6 p.m. daily. |
Summary of Respondent’s Case:
By two Workplace Relations Complaint Forms (duplicated but amalgamated into reference ADJ-0015821) filed with the Workplace Relations Commission on 13 July 2018, the Complainant makes a complaint against the Respondent under the Employment Equality Acts 1998 to 2005 (the ‘Acts’). The Complainant claims she was discriminated against by the Respondent in the context of an interview process for a role with the Respondent and has specifically alleged discrimination on the basis of family status. The claims are denied. The Respondent is a service company which inter alia employs, non-legally qualified employees who provide business support and related service to the law firm. On 18 May 2018 the Complainant attended for interview for a Human resources role. The interview was conducted by the Director of Human Resources and the Human Resources Manager. The Complainant was in the company of both at all times. The Complainant recounts that in the early stage of the interview the Director of Human Resources engaged the Complainant is a casual discussion about how she got to the interview and how she found the “commute to town”. The Complainant’ account is that she responded to disclose that her husband undertakes a similar commute to the city centre every day and also undertakes what she described as the “crèche run”. The Complainant alleges that the Director of Human Resources then asked an inappropriate question, contrary to the Acts, in that she asked “What time does your crèche close every day”. The Complainant says she responded to indicate the crèche closed at 6 p.m. and Ms Dalton replied to say “So you would need to be back by 6?”. The Complainant alleges the question contravened the Acts and indicated discrimination on the ground of family status. This is the only allegation made in the Complainant’s complaint form capable of being considered under the Acts and is the only complaint addressed by the Respondent, by her own admission within her complaint form “[her] complaint however is in [The Director of Human Resources ’s] question regarding my crèche times”. The account given the Complainant is denied in its entirety. It is denied that the questions the Complainant alleges were asked in the manner she alleges or at all. As the Director of Human Resources and the Human Resources Manager were bringing the Complainant to the interview room, they made the usual efforts to engage the Complainant in a general conversation to both welcome her and put her at her ease. As the day in question was particular warm, a general discussion took place about the weather and the Complainant’s journey to the City Centre in the heat. This occurred as all three we walked in to the room, took seats and poured beverages; this discussion took place before the Director of Human Resources and the Human Resources Manager, introduced how the interview would be structured and what would be covered. The Complainant was not solicited to provide particulars of her private life or family status. The Complainant voluntarily shared a number of points at this point including: (a) she took the DART into the city; (b) she was not used to doing so; (c) her husband does so after he carries out their “crèche run” at 8 am. The Complainant was never asked about her chosen crèche’s operating hours. However, unprompted the Complainant raised the point that her chosen crèche closed at 6 pm. Neither the Director of Human Resources nor the Human Resources Manager commented on this. The Director of Human Resources specifically stated in evidence that she felt very uncomfortable about the information the complainant was divulging. The Complainant divulged an unusual amount of personal information at interview which was not solicited. Both the Director of Human Resources and the Human Resources Manager took notes of the interview. The preliminary exchanges, which took place prior to the start of the interview are not recorded in the notes. The interview lasted more than 50 minutes. Afterwards, the Director of Human Resources and the Human Resources Manager accompanied the Complainant as she left the office to the street exit. As all three were in the lift, the Director of Human Resources asked the Complainant where she travelling to and the Complainant indicated she was going home to Portmarnock but was planning to take some time to go into the city centre before heading home. A general discussion ensued about the advantages of being close to XX Street and the group parted company. The Complainant was not successful at interview for the role. Factors considered by the Director of Human Resources and the Human Resources Manager included: (a) The Complainant’s recent experience was working for XX, with solid HR experience on a practical level working in an organisation that required an ability to deal with issues across a pan-European basis; (b) No experience of working in a professional services/law firm; (c) No knowledge of or familiarity with law firms/the Irish legal market place when discussed at interview. The Complainant was unable to identify competitors of the Respondent or identify any law firms in a meaningful way; (d) No obvious experience of dealing with senior members of management (other than her manager) disclosed during the interview; (e) The Director of Human Resources and The Human Resources Manager questioned the Complainant about her current reporting line (as she had not mentioned it to that point). She indicated her manger had recently become Site Manager and had taken on a greater role in the XX organisation. However, the Complainant did not elaborate on her personal experience of dealing with senior management, differing personalities/management styles, etc. The Complainant’s family status was not considered and had no influence on the decision made to not progress her to second stage interview. It simply did not feature, regrettably the Complainant was not the right person for the role with the respondent based on her professional experience. It is denied that feedback was not provided to the Complainant post-interview. While not forming any part of the claim under the Acts, the Human Resources Manager provided feedback to the recruitment agency in question. the Human Resources Manager has several calls with the recruitment agency. When seeking to fill the vacancy in question the Respondent interviewed nine candidates. Aside from the Complainant, who volunteered that she was a parent, neither the Director of Human Resources nor the Human Resources Manager are aware of the family status of any other candidate. One candidate volunteered she had taken a career change at a certain stage because she was undergoing IVF treatment, neither the Director of Human Resources nor the Human Resources Manager know if she was successful at that time as she did not volunteer the information and she was not asked. Of the nine candidates interviewed, two progressed to the second round. All of the nine candidates were female. Ultimately none of the candidates were offered the role. While it was felt the two candidates at second round did have the requisite skillset, there were a number of significant projects being undertaken by the HR Department over the following six months with a number to be completed over the period to mid-June 2018. A decision was taken that this was not the correct environment into which to introduce a new recruit as the necessary level of support they would require from HR colleagues would not be available. Two existing employees share the additional duties in addition to their existing duties. The Director of Human Resources is a HR professional of over 20 years’ experience and has conducted hundreds if not thousands of interviews. The Director of Human Resources denies that she made the comments in question and has never once had any type of comment or complaint raised about her interviewing. As the Human Resources Director, the Director of Human Resources has championed numerous diversity initiatives with the Respondent’s workplace including: the Respondent’s Gender Diversity Strategy, Shared Parenting leave (amongst the first employers in Ireland to do so), paid paternity leave before it was legally enacted, professional assistance to working parents to get individual tailored support when seeking childcare and adopting a maternity leave policy that includes half days working for the first two weeks on return to work with no reduction in pay. Numerous members of the HR team, including HR Managers, undertake long commutes and are parents, this presents no issues for the Respondent and various accommodations have been worked out over the years, for long-standing team members and new recruits, to accommodate work/life balances. The HR team currently comprises 11 team members all of whom are female. The Respondent understands that 4 of the team have families (employee are not asked – however team members’ family status generally becomes known). Female HR Managers on the team, with families commute/have commuted from Sallins and Kildare town, without issue. Flexible working relationships operate at a practical level. The Respondent has undertaken significant efforts to support Inclusion and Diversity in the work place. Two senior partners of the firm act as Diversity Partners to ensure that this topic is considered at all times in all decisions taken. 30% of the firm's partnership comprises of women. Seven of the last twelve partners appointed (58%) were women. The firm has also won a series of awards for its work in this area, including, but not limited to, our Women Mentoring Initiative and our Shared Parenting policy. The firm also runs Maternity Coaching for all professional employees taking maternity leave to ensure that their career is not negatively affected throughout this transition. The firm also operates a gender quota (supported by the full partnership) to ensure that a minimum of three women partners sit at all times on the two most senior management committees in the firm. |
Findings and Conclusions:
Section 6 of the Acts sets out what discrimination is for the purposes of the Acts. It provides: “(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where (a) 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) (in this Act referred to as the “discriminatory grounds”) which (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,… …(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are… …(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),” Section 8 provides as follows: In relation to (1) (a) access to employment… an employer shall not discriminate against an employee or prospective employee… …(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee (a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, […] (b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different[, or] [(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) insofar as such advertisement relates to access to employment. In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out. It provided inter alia as follows: “The first requirement is that the Complainant 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 Complainant must prove, on the balance of probabilities, the primary fact from 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 provide that there was no infringement of the principle of equal treatment.” In A Worker v A Hotel [2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: ‘The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination in Mitchell v Southern Health Board [2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed. The entirety of the complainant’s claim rests on the asking of one question in relation to her childcare responsibilities. The respondent denies asking any questions in relation to her childcare responsibilities. Whilst the complainant accepts giving information in relation to her husband doing the creche run in the morning, she denies that she volunteered the information in relation to the creche pick up time. I find on the balance of probabilities that the respondent did not ask the Complainant about her creche pick up times, but that the complainant, possibly due to nerves, volunteered that information. I must now consider whether the respondent, knowing the complainant’s child care arrangements, discriminate against her because of that. The complainant was not able to give any evidence other than her own gut feeling that the respondent discriminated against her in not offering her the position because of her child care arrangements. The respondent on the other hand, was able to show that they have very flexible working hours both in and out of the office for all their employees. The Director of Human Resources herself has championed numerous diversity initiatives with the respondent workplace including but not limited to, the Respondents gender diversity strategy, shared parental leave, paid paternity leave before it was legally enacted, professional assistance to working parents to get an individual tailored support when seeking childcare and adopting a maternity leave policy that includes half days working for the first two weeks on return to work with no reduction in pay. Furthermore, the respondent was able to demonstrate that they have in the past made various accommodations for individual members of staff to suit their work life balances.
I accept the respondent’s evidence that having been voluntarily told about the complainant’s childcare arrangements, those arrangements, or the fact that she had children at all, had no bearing on their decision not to give her the job. The complaint fails. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complaint fails.
|
Dated: 5.11.18
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
|