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-00023555-001

26/11/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998 and has submitted that she was discriminated against by her employer by reason of her gender, family status and other means (CA-00023555-001).

The Complainant commenced employment with the Respondent Company on the 16th April 2007. The Complainants current role is a Clerical Officer and her gross pay is €713.00 per week for 30 hours worked. The Complainant is a work sharer in the Respondent Department and works a pattern of a 4 day week.

The Public Service Stability Agreement (hereinafter referred to as the PSSA) 2018-2020 (dated June 2017) provided, in relation to Working Hours,

“it is the view of Government that increased productivity measures, including additional working hours, agreed by the Parties in the Haddington Road Agreement make a significant and ongoing contribution to a modern public service.   However, in recognition of particular work-life balance issues that may arise, it is agreed that an opportunity shall be offered between 1 January and 1 April 2018 and after the expiry of this Agreement (1 January to 1 April 2021) to permanently revert to the pre-Haddington Road Agreement hours. Any individuals exercising this option will have their pay reduced commensurately, in line with previous arrangements. The application of this arrangement at the sectoral level will depend on service delivery requirements and business needs”

On the 8th December 2017, the Department of Public Expenditure issued the following:

“Arising from the PSSA 2018-2020, it has been agreed that civil servants shall have an opportunity to permanently revert to pre Haddington Road Agreement hours during the time frame of 1 January to 1 April 2018, with a commensurate reduction in pay. People working on reduced hours of attendance will have their salaries reduced pro-rate, using gross annualised hours of attendance. The ability to avail of such reduction will depend on the business needs of the organisation. As this is part of the national agreement, it will be necessary to allow anyone who has already opted for a shorter working year during 2018 to apply for the pre Haddington Road hours. This is a departure from the normal procedure where those who have opted for a shorter working year are not permitted to alter their work sharing pattern.”

Following the above, a notice from the Respondent department, dated December 2018 and issued on the 9th February 2018, indicated that this option was only open to permanent full time staff and the ability to avail of the reduction of hours will be dependent on business needs.

The Complainant sought to avail of this opportunity but was informed by the personnel officer on the 18th April 2018 that “the decision not to allow pre-HRA hours for work sharers was taken so as to avoid a proliferation of work-sharing options….the option is not available to staff and we will not be making exceptions on an individual basis.. I hope you understand that our reason for taking this position is that we ourselves have to reconcile the business needs of the Department with the understandable desire of may staff for greater flexibility and family friendly options”

It is submitted on behalf of the Complainant that equality law is based on comparison and this claim points to all male civil servants who would not be treated in the same way in a comparable situation. It is accepted that the aforementioned policy applies equally to all part time workers of which there are some men, this claim is based on the fact that part time workers are predominantly women with children. Women are predominantly the primary carers for their children as it is mainly women with children who seek part-time or family friendly work arrangements as in the circumstances of this case.

It is submitted that the Labour Court and Equality Tribunal have tended to require that an employer treat applications for family friendly hours reasonably and the Industrial Relations Act 1990 (Code on Practice ion Access to Part-Time working)(Declaration) Order 2006 requires an employer to establish evidence of having acted reasonably in relation to any request for reduced working hours.

It is submitted that there is no evidence to support the premis that the employer acted reasonably in the request for reduced working hours given the terms of the PSSA and the instruction from the Department of Public Expenditure and Reform . However, it is accepted that there is case law to support the fact that the refusal to grant reduced working hours may be based on objective reasons relating to the ‘proper operation of services’ or the ‘exigencies of the business’ and not relating to the employees gender or family status but that is not accepted in the circumstances of this case. The Respondent has specifically treated part time workers less favourably which is directly related to their gender and family status. Further, there is no evidence to suggest that it is necessary for the Complainant to be in the workplace environment for 2.5 hours a week more than they would be if they were facilitated with pre-HRA hours and no evidence to suggest that it would impact the proper operation of the service to the public.

It is submitted that the Respondent should have considered whether it was an absolute requirement that the Complainant would remain on HRA hours or if the alternative was an option. In referencing O’Brien v Cork University Hospital DEC-E2008-021 it is suggested the alternative was never an option for the Complainant.

Ultimately, the Complainant submitted that the policy adopted by the Respondent has indirectly discriminated against her on the basis of her gender and family status and the Respondent cannot objectively justify that the policy is unrelated to a discriminatory ground, corresponds to a real and legitimate need on the part of the undertaking, an appropriate means of achieving the need or that there were no less discriminatory means of achieving the need.

In particular, it is submitted that not only would there be a savings in childcare costs if the Complainant was facilitated but the greatest advantage would be the precious time gained at home which would have a significant impact on the Complainants family life. There is no evidence to suggest that the Respondent gave any consideration to the Complainant’s home life and situation.

This Complaint was received by the Workplace Relations Commission on the 26th November 2018.

The Respondent Company accepts the timeline in relation to the Complainant’s employment and the correspondence referred to above.

The Respondent indicated that the Complainant has been facilitated in relation to work life balance options since the commencement of her role with the Respondent. In that regard, the Complainant was facilitated with 90 days parental leave from January 2010 to March 2014. Two weeks shorter working year leave was approved from the 11th August 2014 to the 22nd August 2014 and her application for work sharing on the basis of a four day week was approved from the 11th August 2016.

The Complainants working hours increased form 6.57 hours to 7.24 hours per day and this equated to an increase in 2 hours and 15 minutes from the 1st July 2013. Arising from the PSSA 2018-2020 the opportunity to permanently revert to the   pre-HRA agreement had to be applied for before the 1st April 2018 and a total of 178 full time officers reverted to the pre -HRA hours.

Following the PSSA 2018-2020, a decision was made at senior management level that based on service delivery requirement and business needs, those officers, who were already being facilitated with a work life balance (current worksharing staff) could not be facilitated with further reduction in their working hours. In that regard, it is submitted, that a large proportion of the Respondents business is customer facing in public offices. The Respondent has to ensure that adequate staff are available at all times to deliver service to customers during business hours.

The Respondent indicated that due to the nature of their business, the Respondent had previously taken the position that that they could not facilitate all the workshare options that may be available top officers in other departments. The only patterns approved were 80% 4 day week, 75% three weeks in in one week off, 73% 9.00 to 9.20, 60% 3 day week and 50% week on/week off split week.

It is submitted, that the aforementioned notice issued on the 9th February 2018 cannot be construed as discriminatory. It is suggested that the Respondent opened up an additional option for the departments full time staff who are not availing of work sharing or who may be on a waiting list to work share. It is suggested that as the Complainant had applied before the closing date and still wishes to avail of the 6.57 hours option she can opt to resume work on the basis of a 5 day week working daily hours of 6.57.

It is submitted that 17% (1096/6245) of the Respondents employees have been approved for a work share option demonstrates that they are proactive in trying to facilitate the work life balance of officers. Of this 1096 figure, 1020 (93%) are female and 76 (7%) are male.

Ultimately, it is submitted that the Respondent tries to balance the business needs with the work life balance needs of all staff. The decision to not permit officers who were not full time officers to revert to the pre-HA hours was a decision made solely on the Respondents business needs which is provided for in the PSSA 2018-2020.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”.  

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy [EDA 0821] as follows:

  “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 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.”

Further, in Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts 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.

In the circumstances of this matter, I accept the bona fides of the Complainant and the all to common difficulties in maintaining a work life balance, however, having considered the evidence from the Complainant and the Respondent, I have to find that the Complainant has not discharged the initial probative burden in respect of the allegation of discrimination by reason of gender and/or family status.

In particular, in coming to this decision, I have considered that Section 2.12.1 of the PSSA 2018-2020 expressly provides that the application of the aforesaid arrangement at the sectoral level will depend on service delivery requirements and business needs. The acceptance on behalf of the Complainant   that there is case law to support that fact that the refusal to grant reduced working hours may be based on objective reasons relating to the proper operation of services or the exigencies of business. Further, the fact that 17% of the Departments employees (both male and female) have been approved for work share options and the acceptance on behalf of the Complainant that the policy applies equally to all part time workers, I conclude that no prima facie case exists.

I find that the Complaint (CA-00023555-001) made pursuant to Section 77 of the Employment   Equality Act, 1998, fails

Reduced Working Hours – Discrimination