ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00027364

Parties:

Complaint(s):

Date of Adjudication Hearing:  23/09/2020

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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

The complainant submitted that she had been discriminated against by the respondent by reason of not promoting her because of her family status.

The complainant submitted she commenced employment with respondent on the 4th of February 2019. She worked 37.5 hours per week, and she was paid €2247.50 gross per month.

Summary of complainant’s position

The complainant submitted.

1. That she had some sick leave incidents during first six months for which she was disciplined even though (she) the complainant had appropriate doctor certificates.
2. That she was promoted on the same day, she was given verbal warning, to the position Site Support Specialist in August 2019 on a Temporary Contract for 6 months duration to expire on the 31st December 2019.
3. That she became pregnant on the 18th of October and had no absences up to this point
4. She informed work on the 26th of November of her pregnancy.
5. This Site Support Specialist position was advertised again as a temporary on the 23rd of January ‘20 with a lifting requirement of ten pounds which was never a requirement before, and this became a further bar for the complainant fulfilling the role.
6. That she applied for this position on the 24th of January
7. That on the 24th of January she received a disciplinary warning for leaving work early due to pregnancy related illness on six occasions.
8. Complainant appealed the written warning on the 27th of January by email.
9. On the same day she passed the assessment to apply for the Site Support Specialist that was advertised.
10. She went out on sick leave for 3 weeks due to the stress of the situation on her doctor’s instructions on the 27th of January and the position was filled during her time out.

Summary of Respondents position

The respondent submitted that the complainant did not meet with the “family Status” requirement as she had no children at this stage.

The respondent rejects the complainant’s assertions that she was treated less favorably than someone with different family and the complainant has not put forward any evidence to support her argument.

The respondent stated that while the complainant was issued with a written warning and the fact that she (complainant) had appealed it, the written warning had no status, and it did not prevent her (complainant) passing the assessment to apply for the Site Support Specialist position that had been advertised.

In response to the lifting of ten pounds, the respondent submitted that this was requirement for all positions including the position the complainant had received a temporary contract for previously.

Findings

Section 85 A (1) of the Employment Equality Acts 1998-2011 provides, where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

Family Status definition

Section 2 of the Employment Equality Act, 1998 defines

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

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.

This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

I find that Section 6(1) of the Employment Equality Acts, 1998 -2015 provides as follows; - (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 grounds specified in subsection (2) in this Act referred to as the ’discriminatory ground’

Prima facie evidence has been described as “evidence which in the absence of any credible contradictory evidence by the respondent would lead any reasonable person to conclude that discrimination has probably occurred.

The discriminatory grounds in this case were the failure by the respondent to promote her (complainant) because of her family status.

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 Act.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent. 

I find based on the evidence that 10 lbs weight is a factor in all position of the respondent including the position the complainant held on a temporary basis from August to 31st to December 2019.

I have concluded my investigation of the complaint and

I find that the complainant does not meet the criteria as set out in the Act for family status.

I find that complainant was provided with the opportunity to make additional applications at the hearing but failed to do so.

Decision:

Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to the complaint.

I find, pursuant to section 79(6) of the Act, that the complaint is not well founded and falls

Dated: 03-03-2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Key Words: