Complainant

Respondent

Anonymised Parties

A Customer Care Guru

An International

Representatives

Matheson Solicitors

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-00028951-001

11/06/2019

The complainant has submitted claims of discriminatory treatment on the ground of civil status in respect of access to employment, conditions of employment, dismissal and other on the 11th of June 2019 under Section 79 of the Employment Equality Acts, 1998 – 2015 against the respondent.      

The cognisable period for the claims submitted on the 11th of June 2019 dates from the 12th of December 2018 to the 11th of June 2019.  These claims were heard on the 17th of December 2019.

I have decided to exercise my discretion to anonymise the names of the parties within this decision given the sensitivities involved in this case.

The complainant submits that

She was discriminated against by the respondent on the civil status ground in respect of access to employment, conditions of employment dismissal and other,

She had secured employment with the respondent while living in Northern Ireland but was later advised that the respondent could only employ gurus who were based in the Republic of Ireland

The complainant relocated to the Republic of Ireland at great inconvenience and financial cost to her and causing great distress to both her and her family.

The respondent submits that

The complainant was employed by them as a Customer Care ‘Guru’ from 28th of May 2018 up to her resignation on 27th of December 2019,

The complainant has now submitted a claim of discrimination on the ground of civil status,

The complainant was not discriminated against on ground of civil status or any other ground.

The complainant submits that she was discriminated against by the respondent on the civil status ground in relation to getting a job, conditions of employment and other.

The issue for decision by me whether or not, the respondent discriminated against the complainant on the ground of civil status in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015.

Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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) ….”

Section 6(2)(b) of the Employment Equality Act 1998 is intended to prohibit discrimination on the grounds of a person’s civil status.

Section 2 of the Acts defines the civil status ground in the following terms:

“civil status’ means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved;”

In accordance with the legislation, it is unlawful for an employer to discriminate against an employee or a prospective employee based on them being single, married, separated, divorced, widowed or in a civil partnership or no longer in a civil partnership.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.   It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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 evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, 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 continued:

“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 prove that there was no infringement of the principle of equal treatment”.

The respondent at the outset raised an issue in respect of the ground of ‘civil status’ being relied upon by the complainant.   The respondent asserts that the Complainant does not fall within any relevant protected ground, nor has she established that she was subject to any treatment that was less favourable to any comparator.     The respondent in advancing its case relies on the case of A Senior Staff Nurse v Nursing Home (ADJ-00013739) and submits that the Commission in that case neatly summarised the necessary proofs a complainant must show in order to succeed in any claim under the Acts as being that:

“The complainant must establish that she is covered by the protected ground, establish the specific treatment has allegedly taken place, and the treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.”

The Respondent advised the hearing that the complainant was employed by them as a ‘guru’ from 28th of May 2018 to 27th of December 2019. The respondent stated that its “Gurus” work remotely and do not report to any physical office for work. The respondent stated that at the time that the Complainant was hired, for commercial and operational reasons, it was not possible for the Respondent’s “Gurus” to operate from addresses outside of the twenty-six counties of the Republic of Ireland.    The respondent told the hearing that upon being made aware that the Complainant was located at an address in Northern Ireland the Respondent’s HR team outlined this issue to the Complainant and notified her that the only way that her employment could proceed was if her home (and therefore work) address was within this jurisdiction.    The complainant following this secured an address in the Republic of Ireland which the respondent acknowledges caused disruption and inconvenience to the Complainant, which it sates is regrettable.     The respondent advised the hearing that the complainant resigned her employment voluntarily by letter on 18 December 2018 giving nine days’ notice and her final day of employment with the Respondent was on 27 December 2018.   The respondent added that the complainant’s resignation letter makes clear that she was resigning specifically to take up a new position, which she found more suitable for her and her particular professional experience, her letter raises no complaint of discrimination, or any other complaint, and concluded with an expression of gratitude to the Respondent.

The complainant advised the hearing that her complaint centered on the fact that she had secured employment with the respondent on 28th of May 2018 while living in Northern Ireland but was later advised that the respondent could only employ her if she was based in the Republic of Ireland.   The complainant stated that she had then found herself in a position where she and her family had to relocate to the Republic of Ireland which caused them great distress and upset as well as financial hardship.   The complainant outlined the distress caused to her and her family and the circumstances they found themselves in as a result of having to relocate from Northern Ireland and the struggle they endured whilst trying to find suitable accommodation in the Republic of Ireland.   The complainant when asked at the hearing how her claim related to the ‘civil status’ ground acknowledged that she may have submitted her claim under the incorrect ground and stated that she was discriminated against by the respondent as they had advised her that they were unable to employ her while she was based in Northern Ireland.

In seeking to establish a prima facie case I am satisfied that the Complainant must establish that she is covered by the relevant discriminatory ground and must then establish that the specific treatment alleged has occurred before finally showing that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.   This is set out in Halligan v Moy Valley Resources DEC-2008-025 which sets out the criteria to be established by the complainant in order for the burden of proof to shift to the respondent.

Having regard to the totality of the evidence adduced in relation to this matter I am satisfied that the complainant in this case has failed to establish a prima facie case of discrimination on the civil status ground in relation to these matters and the claim therefore fails.

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find that–

the complainant has failed to establish a prima facie case of discrimination on the ‘civil status’ ground in relation to these matters and the claim therefore fails.