Complainant

Respondent

Parties

Thomas  McDonagh

Mylan Teoranta

Representatives

Vivian Cullen SIPTU

Aisling McDevitt Ibec

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-00030601-002

02/09/2019

The Complainant contends that he was discriminated against on the grounds of Gender and Civil Status and that he suffered Victimisation when the Respondent instructed him to change his working hours after he submitted a grievance.

The Complainant works as a Machine Component Washer.  He has been in the employment since January 2004.  In his complaint form he stated that he was instructed to change his hours of work, following a grievance he had raised that he was not paid a shift allowance and he disputed the assertion by the Respondent that he had a temporary arrangement that when his wife returned from maternity leave, the allowance would revert to her.   He contends that this constitutes discrimination on the grounds of civil status following the resolution of a grievance raised by his wife, to the effect that a shift allowance paid to her should not have been withdrawn and paid to him during her maternity leave. He was subsequently instructed to return to day work hours.  He contends the instruction to change his hours is victimisation under s 6 (1)(b) and s 74 (2)(a) of the Acts.

A summary of the history of the claim was submitted.  The Complainant and his wife both work in the employment.  The Complainant’s wife submitted a grievance about not receiving a shift allowance while a male colleague working the same shift hours was in receipt of the allowance.  As a result of this, the Complainant’s wife was given the shift allowance and both the Complainant and his wife were told that the ‘temporary arrangement’ whereby the Complainant received the allowance while his wife was on maternity leave would now cease. The Complainant was then instructed to work day hours, from 8.30am – 5.00pm Monday to Thursday and 8.30am – 4.00pm Friday.  It is submitted that the Complainant was thus penalised for having raised a complaint related to discrimination on the grounds of civil status, being married.  

The Claimant commenced employment with the Respondent as a Temporary Production Operative in 2003. On 19th January 2004 his employment was made permanent.

The Claimant initially worked the morning shift I.e., from 8:30am to 5pm.

The Claimant’s wife later joined the Respondent company as an employee. She commenced employment as a cleaner on 6th March 2006. Her contractual hours as stated in her contract were 7am-2pm, 35 hours per week. This role would not normally attract a shift premium and indeed no such entitlement is outlined in her contract of employment.

The Respondent’s shift payments are outlined as follows;

•         08:30 – 17:00 = basic hours only 

•         07:00 – 15:30

•         11:00-19:30

•         14:00 – 22:30

•         17:00 - 01:30 = 20% Shift Allowance 

•         22:30 – 06:30 = 30% shift Allowance

The above applies to Production & Engineering employees only.

From time to time the Claimant and his wife requested to swap their roles and/or shift times to accommodate their home life. For example in December 2008, at the request of the Claimant and his wife, they swapped roles, with the Claimant taking on his wife’s role as Cleaner. This meant that his work no longer attracted any shift premium.

In 2012, the Complainant raised a grievance that he should be paid a shift allowance and he was advised by HR that the position he held did not carry a shift allowance and that his working nights was accommodated for his domestic needs.

In February 2017, the Claimant and his wife once more swapped roles. At this juncture, both the Claimant and his wife requested if amendments could be made to their working hours on a temporary basis to assist them in dealing with a family situation. Specifically, their request was that the Claimant’s wife would work early (this would not attract a shift premium), and that the Claimant would then receive a shift premium. 

However, as this arrangement was only ever intended to be a temporary one, the production supervisor notified both employees in June 2017 that it must come to an end. 

The result of this was that the Claimant’s wife would revert back to the afternoon shift and the Claimant would revert to the morning shift. The Claimant expressed his dissatisfaction that this would result in him losing his shift allowance, however it was made clear to him that the

previous arrangement was a temporary one and that and that he would have to go back to his normal shift. 

Following this, the Production Manager spoke to the Claimant’s wife. She appealed to him to leave the shift allowance with the Claimant and not with her. While such a request would not normally be granted, on an exceptional, temporary basis, the Respondent agreed to facilitate same. The Claimant thus received a shift premium and his wife did not. This arrangement was ultimately more financially favourable to the Claimant’s family due to the fact that his wife was absent on sick leave for ten weeks between June-December 2017 and was further absent on maternity leave between January 2018 and August 2018. As maternity leave is not paid by the Respondent this arrangement benefitted them. The Respondent’s sick leave and maternity leave policies do not provide for shift premium payments to me made during these absences therefore “moving” the shift premium to the Claimant in this manner enabled them to continue to receive a shift premium between them, notwithstanding that the Claimant was not technically entitled to same. 

When the Claimant’s wife returned to work following her maternity leave, she requested to work 5pm to 1:30am to suit her domestic arrangements. This request was facilitated. The Claimant continued to receive his wife’s shift allowance at this time, an arrangement that ought not to have continued once his wife returned to work.

Following a grievance raised on 7th November 2018, that she was not paid a shift allowance while a male colleague was, the Respondent acknowledged to the Claimant’s wife that the arrangement that had been in place whereby the Claimant received his wife’s shift allowance ought to have come to an end upon her return to work. The Claimant was notified of same, and informed that the arrangement would be reversed from 11th March 2019.

On 26th March 2019, Siptu wrote to the company indicating that both the Claimant and his wife wished to raise a grievance, and further indicating that no such temporary arrangement existed.  The outcome was;

“As discussed during our meeting, to accommodate your domestic circumstances I have allowed you to alter your working hours over the years. However as the change in hours were driven by your needs and not the business no shift allowance would apply. This was communicated to you in writing on the 23rd October 2012 following a previous grievance you submitted...in relation to the non-payment of shift allowance”

Clearly the Claimant was aware that no shift allowance is payable within the company other than when the unsociable hours which attract the premium payment are worked at the request of the company. 

The grievance outcome further outlined that while the Claimant’s shift premium would not be reinstated due to it being “reverted” to his wife, the company would not seek to claw back the amount paid to him in error between 20th November 2017 and 10th March 2019. 

In the period of time between the lodgement of the grievance and the outcome of same, the Claimant had indicated to his supervisors that he would refuse to attend work at 6am into the future if he did not receive a premium payment for same, and would only attend work from 8:30am onwards.  

Concurrently an EHS issue had arisen resulting in an operational need to change the time during which certain chemicals (Spor-Klenz) were used. This, combined with Claimant’s clear confusion and lack of clarity over his working arrangement led the company to believe that it would be in the interest of all parties to revert the Claimant to his usual day shift hours. It is important to note that the issue regarding the change in schedule for the use of certain cleaning agents was implemented across the site, and did not only impact the Claimant’s work area. 

On 1st May 2019, Siptu wrote to the company requesting that the instruction for the Claimant to revert to his usual working hours ought to be withdrawn. This letter additionally alleged that Mr. McDonagh’s previous grievance was related to “discrimination on the grounds of civil status”. For the record, no such allegation was made at the time that the Claimant initially raised his grievance and indeed the documentation submitted by the Claimant, and by Siptu at that time simply stated that his grievance was related to the non-payment of shift allowance. No allegation of discrimination was made out at the time.

The outcome of this grievance was communicated to the Claimant on 17th June 2019 and stated the following;

“I am satisfied that the decision to change your working hours was made because of the following:

(Production Supervisor) confirmed that on at least three occasions (during March 2019) you had threatened if you did not receive a shift allowance you would not continue to come in at 6am. You mentioned on each occasion that it would not affect you in any way by coming in at 8:30-17:00. The impression was that you were saying this in a threatening manner hinting that you thought your actions would affect the business in a negative way.    (Production Manager) also confirmed that a similar threat was made to him. As we are an Aseptic/ Sterile facility, contamination control is crucial to our business, your threats not to complete the task highlighted a vulnerability to the business that needed to be addressed.  

In addition, discussions between EHS and Production were already underway in relation to the Spor-Klenz sterilisation activity that you conducted. Due to the product leaving a residue and to avoid slips/trips/falls, EHS recommended that the task should be conducted late at night or very early in the morning.   Given your threats not to continue to come in at 6:00am and taking into consideration the EHS recommendation for this task to be conducted earlier, the decision was made to assign this task to be conducted during the night shift. Taking the above into consideration I am satisfied that your hours were not changes solely as a result of you raising a grievance. This task was initially assigned to you as you were on-site before 8:30am for personal reasons. The fact that this task, for business reasons, is now required to be conducted earlier, and in light of your threats, the decision to change your working hours to 8:30-17:30 Monday-Thursday and 8:30-16:00 Friday was made.”

The Claimant makes two allegations under the Employment Equality Acts, the first is that he has been victimized as a reaction to his complaint, which he now alleges was a complaint of discrimination on the grounds of civil status. The second is that his has suffered discrimination by association related to his wife’s gender. 

The Respondent refutes these allegations in the strongest terms and in particular would note that they are not supported by the overall chronology associated with this case. In relation to the Claimant’s complaint of victimisation, the victimisation he alleges is that a complaint he made, on grounds of civil status, was “used” to bring about a change in his working hours.  However the complaint was never framed as one of discrimination on the civil status ground but rather as a simple grievance relating to the removal of a premium payment. No reference to the Claimant’s marital/ civil status was made until after the decision to move him back to a regular shift pattern had already been made. 

Furthermore, in relation to his complaint of discrimination by association, the Respondent company has been more than reasonable in allowing the Claimant and his wife to swap and alter their working relationships but has, at all times, maintained that a) a shift premium is only payable in circumstances where the shift attracting same is worked at the company’s direction and not the employee’s request and b) that the company has a right to revert both the Claimant

and his wife to their regular working patterns, and has done so in the past prior to any discriminatory complaint of any nature being raised. 

On this basis, the Respondent puts forward a preliminary argument that the Claimant has failed to shift the burden of proof to the Respondent. 

The following cases were cited as evidence of the Labour Court’s position on the burden of proof:  Melbury v. Valpeters EDA/0917, The Southern Health Board v. Dr. Teresa Mitchell DEE 011 and Margetts v Graham Anthony & Company Limited, EDA038.

Without prejudice to this preliminary argument, and in the alternative, the Respondent puts forward the following substantive arguments in relation to the Claimant’s complaints;

The Respondent is within its rights to require staff to work within their contracted hours. The Respondent went beyond what would be expected of a reasonable employer in allowing the Claimant and his wife to switch roles at times to suit their domestic life. The Respondent further went beyond what would be expected of a reasonable employer in allowing the Claimant to amend his start and finish times on occasion, to hours which were not aligned to any of the Respondent’s shift patterns. If anything, the Claimant was treated more favourably than other non-married staff members in this regard. It cannot be said that requiring him to revert to his normal working hours is discriminatory in nature, nor does it constitute victimisation or discrimination by association. 

The Respondent has been consistent in its view that shift premium only applies in circumstances where a) the employee works a shift that attracts a premium payment, and b) that they do so

for operational reasons, rather than at their own request. This is a point that had been clarified to the Claimant on a number of occasions prior to his own grievance or that of his wife, most notably in 2012 and 2017. Therefore, it cannot be said that “but for” the 2019 grievances the respondent would not have taken such a position. Furthermore, the position was taken for legitimate reasons outlined to the Claimant.

The Complainant contends that he was discriminated against on the grounds of gender and civil status and that he was victimised for having submitted a grievance in relation to an instruction to change his hours of work. He contends that he was discriminated against by association as provided for in Section 6 (1) (b) of the Act by association with his wife and that he was victimised as provided for in Section 74 (2) (a).

The history of the dispute and claims in this case is that the Respondent has accommodated both the Complainant and his wife with changes in their working hours to assist them at various times in relation to domestic responsibilities.  The issue for adjudication is whether the actions of the Respondent constituted discrimination or victimisation of the Complainant on the grounds of Gender or Civil Status and whether the Complainant has been victimised as a result of making a complaint to his employer relating to discrimination.

Section 6 of the Act provides:

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 civil status (in this Act referred to as “the civil status ground”)

…

In this case, the Complainant submits that he has been discriminated against on the grounds of gender and civil status.   In order to succeed in his claim, the Complainant must demonstrate in the first instance the primary facts upon which he relies in order for the Respondent to then prove that it has not discriminated against him. 

Section 85A of the Employment Equality Acts sets out the burden of proof as follows:

“(1) Where in any proceedings 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.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must :

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a 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 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”.

In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.  However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, the evidence shows that the Respondent has accommodated both the Complainant and his wife with changes in their working hours to assist them at various times in relation to domestic responsibilities.  The Complainant was clearly unhappy when the shift allowance was withdrawn from him and restored to his wife.  The fact that she worked a shift where the allowance was applicable and he worked a shift where shift allowance was not applicable is the salient point in this case.     The question arises was the principle of equal treatment applied to the Complainant by the Respondent.  The evidence shows that the hours worked by the Complainant did not attract a shift allowance.  There was no comparator cited that would demonstrate that the Respondent treated the Complainant less favourably on any of the grounds cited.  The burden of proof has not been discharged as provided for and therefore I find the complaint to be not well founded.

In relation to the complaint that the Respondent victimised the Complainant in the meaning of Section 74 (2) (a), I find as follows:

Section 74 (2) (a) provides:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee occurs as a reaction to –

(a) a complaint of discrimination made by the employee to the employer,

…

The evidence in relation to the grievance shows that the Complainant did not make a complaint of discrimination to the Respondent when he raised his grievance about the shift allowance.  The grievance submitted on 26th March 2019 was in relation to the non-payment to him of shift allowance.  The issue of whether this constituted discrimination against him on the ground of civil status was not raised by him at the time.  In this case, I do not find that adverse treatment of the Complainant occurred because of a complaint of discrimination. 

Discrimination on Gender and Civil Status ground. Prima facie case not established.