EDA194

This is an appeal by Ms Whelan (the Complainant) against the Adjudication Officers Decision ADJ-00007460 in her complaint of discrimination on the ground of family status by her then employer Power city (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Act).

The Adjudication Officer found that the complaint was not well-founded.

Background

The Complainant commenced employment with the Respondent in November 2006 working evenings and weekends. In 2010 she moved on what she understood to be a temporary basis to a Monday to Friday work pattern with the odd Sunday. In 2012 the Complainant requested a return to her previous work pattern, but the Respondent was not in a position to facilitate that. The Complainant went on maternity leave in May 2016. In November 2016 in advance of her return to work following maternity leave the Complainant sought to return to work on a different work pattern that the Monday to Friday pattern. The Complainant was advised that she could not be facilitated and returned to work on her existing pattern or around the 20th November 2016.

Complainant’s case

It is the Complainant’s case that shortly after she returned to work a vacancy arose where the work pattern was evenings and weekends which was her preferred work pattern. She contacted the manager and expressed an interest in moving to that vacancy. A couple of days later she heard that Ms X had moved into the vacancy. It is the Complainant’s contention that the reason her request to transfer was not facilitated was because of her family status. In response to a question from the Court the Complainant confirmed that Ms X had the same family status as she had.

Respondent’s case

It is the Respondent’s position that they did not discriminate against the Complainant. The Respondent confirmed that Ms X has and had at the time of the alleged Act of discrimination the same family status as the Complainant as defined by the Act. Ms X was moved into the vacancy as the hours attached to the post were less than the hours being worked by the Complainant.

The law

The definition of family status is set out in s2(1) of the Act and states:

family status” means responsibility—

( a) as a parent or as a person in loco parentis in relation to a person who has not

attained the age of 18 years, or

( b) as a parent or the resident primary carer in relation to a person of or over that

age with a disability which is of such a nature as to give rise to the need for care or

support on a continuing, regular or frequent basis, and, for the purposes of

paragraph (b), a primary carer is a resident primary carer in relation to a person

with a disability if the primary carer resides with the person with the disability;

Discrimination in accordance with the Act is set out in s6 and states

6.— (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,

( b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not

so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds

would, by virtue of paragraph (a) , constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are—

( a) that one is a woman and the other is a man (in this Act referred to as

“ the gender ground”),

( b) that they are of different F15 [ civil status ] (in this Act referred to as

“ the F15 [ civil status ] ground ”),

( c) that one has family status and the other does not (in this Act referred to as

“ the family status ground”),

( d) that they are of different sexual orientation (in this Act referred to as

“ the sexual orientation ground”),

( e) ………

Decision

In Equality law it is necessary to ground a claim of discrimination by pointing to how another person not having the protected characteristic relied upon was, is, or would be treated in a comparable situation. The Complainant in this case citied Ms X as her comparator however in line with the definition of family status as set out in the Act Ms X has the same family status as the Complainant and therefore her claim cannot succeed.

The Court finds that in the circumstances of this case the Complainant has not made out a‘prima facie’case and therefore her claim cannot succeed. The Adjudication Officers Decision is upheld.

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
CH______________________
19th February 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.