Complainant

Respondent

Parties

Sinéad Ward

Dun Laoghaire Rathdown County Council

Representatives

Keith Irvine – Local Government Management Agency

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-00028562-001

20/05/2019

The Complainant sees herself as being discriminated against on the grounds of her family status as her Employer has directed that she must work a four day week.

The Complainant gave oral evidence on her own account. The Complainant made the case that she was discriminated against on the grounds of her family status when her Employer reversed its previously held policy which had heretofore seen the Complainant being accommodated on the work share scheme (which allowed the Complainant work 50% of the hours normally associated with a working week).

The Respondent presented with Representation from the Local Government Agency. I heard from a witness from the HR department and was provided with a written submission

I have carefully considered the evidence adduced in the course of this oral hearing. The Complainant gave me an account of her working history with the Respondent County Council. The Complainant commenced her employment in 1998 in a full-time position. In 2003 the Complainant asked for and was granted a shorter working week which allowed her to work for five mornings every week. This pattern continued up to 2017 and has allowed the Complainant to work and to rear two children in a balance that has proven very satisfactory to her. By this time the Complainant was working in the Planning Department.

It is noted that any person desirous of working less than a five-day week is obliged to fill out the appropriate application form (“the work-sharing scheme”) every October setting out the reasons for the application (the “Operational case”) and the preferred times being sought.

The Complainant agreed with me that the fact that she had to apply every year was evidence that there were no Guarantees from year to year and that the guidelines for each annual scheme was subject to change depending on in-house demands etc.

The Complainant herein filled out this form in October 2018 looking to work for two and a half days a week for the year commencing January 2019.

The Complainant was advised that the hours being suggested by her were no longer sustainable for the Building Control Section wherein she worked. The Section was described as “struggling” to cope with additional fire regs, building regs and taking in charge operations. I was advised (and it was not disputed by the Complainant) that all the Staff Officers who were already in situ in the Department, were advised that there was a minimum expectation that they would work a four-day week starting from January 1st 2019. I was further advised, and it was accepted by the Complainant that other Staff Officers who would have applied for shorter working weeks on the basis of family commitments were also denied this facility and were prescribed the four-day minimum.

The Complainant appealed this decision and the decision was rejected on the 2nd of November 2018.

In her evidence, the Complainant was clearly very upset that her previously accommodated working pattern was brought to such an abrupt stop. She emphatically rejected the notion that the workplace was suddenly overwhelmed with work and that there was a struggle to keep abreast. I would observe that the Respondent should have made available a witness to lend credibility to these assertions instead of which I was obliged to rely on the bald assertions contained in the said letter refusing Appeal. It is, however, worth noting that the Complainant did not lodge a Grievance, nor did she go to her Union in the aftermath of the decision and in fact did ultimately return to work from the 1st of January 2019 on the basis of a four-day week.

I accept that the Complainant may not have been happy with this new arrangement and that she felt the inconvenience to her home life acutely. It does seem to me, however, that the Complainant’s sense of outrage was fired up again in March of 2019, when she came to realise that a newly recruited member of staff had just transferred in from the Parks Department on the basis of a three and a half day week. She saw this as most unfair and was resentful of the fact that her Line Manager who had declared that there was a department-wide expectation that everyone would work for four days was now giving preferential treatment to the newly arrived employee.

In it’s response, the Respondent stated that it had indeed taken on a new member of staff in March of 2019 on the basis of a three and a half day week. It was explained to me that that lady had sought the arrangement in October 2018 when she had still been working in Parks and that the Parks department had been able to sanction her request. When, some five months later, she was being transferred into the Complainant’s department it was decided that it would not be practical or fair to interfere with her arrangements and that she could see out 2019 on the basis of the 3.5 day sanction and that she would be subject to the same guidelines as everyone else come October 2019 when the applications were being made for 2020.

The Complainant was really bothered by the perceived unfairness of this situation. Though a somewhat emotive argument, she could not understand why that lady’s children were been treated differently (and preferentially) to hers. Even to have been given 3.5 days would have been preferable to the 4 being imposed on her.

I note that the Complainant took the drastic step of taking a year leave of absence from June of 2019. This was in direct response to the situation she found herself in.

I have given a lot of thought to the Complainant’s situation herein. I can see why she is upset, and I understand the upheaval that the change has made. However, I cannot see that the Complainant has made out a Prima Facie case of Discrimination.

The Labour Court (and the WRC) approach to this issue (and the test applicable) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):

“the 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 where 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.”

On balance I cannot see that the Complainant has demonstrated a discrimination on the Grounds of her Family status has occurred herein. I fully accept that everyone in the Department (regardless of family status or other defining criteria) was brought up to a four days week in response to a changing need in the workplace. This was not an unlawful decision and was presumably within the parameter of the Contract of Employment and within the context of the guidelines operating the scheme which were always subject to change in response to workplace demands. I can find no evidence of direct or indirect discrimination in the facts established.

Again, I am bound by the case law here. So that in Melbury v Valpetters (EDA 917) the Labour Court held that the facts adduced must be established as such on credible evidence. “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

For the avoidance of doubt, I confirm that I agree with the Complainant’s assertion that she is entitled to take the 1st of January 2019 as being a date on which the perceived discrimination was taken to have occurred and that this brings her within the six month period allowed for the bringing of the complaint. Whilst the dates for the decision and the Appeal of the decision might also ostensibly be seen as acts of discrimination (per the Respondent’s case) I also recognize that the first day she returned to work under the new arrangement can be perceived as a date of an actual act (as against a decision to act).

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00028562-001

The Complainant herein fails. The Complainant has not established a Prima Facie case of discrimination.