Complainant

Respondent

Parties

Claire Louise  Cranny

Tesco Ireland

Representatives

  In person

Niamh Ní Cheallaigh, 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-00042827-001

04/03/2021

The Complainant commenced employment with the Respondent on 30th November 2015. She was employed as a General Assistant and worked 20 – 25 hours per week.

Employment ended on 25th June 2021 when the Complainant resigned from her position.

This complaint was received by the Workplace Relations Commission on 4th March 2021.

The Complainant worked for the Respondent for almost 6 years.

She was originally a customer assistant and was promoted to team leader on the phone shop.

The Complainant contends that she always gave 100% when she was rostered to work. She took on shifts when nobody else was available. She worked 12 hour shifts a couple of times when she was asked and never complained.

The Complainant worked on the phone shop, on the checkouts and also customer service desk. She has done what she was asked to do when she was asked.

On the 19 February 2021 the Complainant was called by the Respondent and asked to attend a welfare meeting. At the time the Complainant did not know what a welfare meeting was nor did she know that she could have brought a witness or a union representative to this meeting.

At this welfare meeting were her line manager and Deputy Store Manager.

The topic of this meeting was why she had been absent from work for the previous 6 weeks. The first two weeks of her absence was a two week quarantine as she had been a close contact of a positive case of covid. The Complainant had completed a negative pcr test as a precautionary measure however her doctor advised that she quarantine for 14 days.

The Complainant felt that during this 6 week period her childcare had fallen apart due to the level 5 lockdown. The Complainant has two children aged 12 and 14 and they were off school   due to level 5 lockdown and household visits were not permitted.

The Complainant’s normal childcare would have been the children's father who would come over and help with childcare if the Complainant was working late and if she was on the early shift the children would have been in school and various afterschool clubs. Unfortunately, these options were not available to the Complainant as the country was in a level 5 lockdown.

At the aforesaid meeting on the 19th February and the reason for her complaint to the WRC was when the Deputy Store Manager asked her what age her children were. The Complainant answered the question honestly to which the Deputy Store Manager responded “if we were talking about

babies I would understand but we are talking about teenagers here they are old enough to

mind themselves”

The Complainant felt that the Deputy Store Manager was insinuating that the Complainant could come to work and leave her children alone.

At this meeting the Complainant was able to give the Deputy Store Manager a return date of the 12 April 2021 as the schools were due to reopen. She also told the Deputy Store Manager that she was willing to try to work 1 day per week but unfortunately he declined the offer. After the meeting concluded the Complainant contends that she did not see the meeting notes nor was she offered the notes to sign. She did not receive the notes from this meeting until a grievance took place. It was noticed by the employee appointed to investigate the grievance that the notes from the meeting had not been given to the Complainant. The Complainant received the notes. The Complainant noticed that the notes did not contain the passage in relation to her being asked about the ages of the children and the comment that they were not babies……..

The Complainant felt that she was discriminated against for her single parent status and the

suggestion that she would leave her children alone even though it is against the law.

The Complainant contends that the Deputy Store Manager had no right to speak her the way he did.

After this meeting the Complainant had a severe bout of depression as her brother passed away on the same day.

The Complainant attended another meeting on the 3rd March 2021 which she felt was pretty much the same conversation. The Complainant had decided to hand in her notice as she could not see herself working for a company who would suggest these kinds of actions from their staff. The Complainant also stated that when she was hired by the Respondent she never hid the fact that she was a single parent and she never asked for special treatment. She can understand an employer's

frustration in these kinds of cases.

The Complainant also points out she was not paid for any of this time off.

The Complainant received extensive training when she started working for the Respondent. This

included training on the Company Sickness Policy, Grievance Policy and Dignity at Work Policy

The Complainant also received a copy of the company handbook which included content that formed part of the terms and conditions of her employment. The company handbook included a comprehensive Grievance Policy which outlines the procedure an employee can take if they feel that they have been discriminated against in the workplace.

Background to the claim

1. The Complainant commenced a period of absence on 9 January 2021 following confirmation of

her close contact status regarding a COVID-19 positive case. On completion of a two-week self isolation period the Complainant did not return to work and cited childcare issues as an

explanation.

2. After four weeks of additional absence the Respondent arranged a welfare meeting with the

Complainant with the aim of forming a better understanding of the support which the

Complainant required in order to fulfil her return-to-work process. The welfare meeting took place

on 19 February 2021 and was conducted by Deputy Store Manager. At the meeting the Complainant informed the Respondent of ongoing childcare issues that she was experiencing and suggested that she may return to work on reduced hours and possibly one day per week. However, the Complainant could not commit to an exact arrangement.

During the meeting the Complainant stated that she was not willing to leave her children and

would not be available for any hours of work until 12th April 2021 as this was when her children

were scheduled to return to school. The Respondent pointed out to the Complainant that this

proposal would result in 12 weeks out of work (14 weeks if the COVID-19 self-isolation period was

accounted for) and that her absence could not continue indefinitely. In turn, both parties agreed

to arrange a meeting for the following week (24 February 2021) to confirm the Complainant’s

return-to-work arrangement.

3. The follow up return to work meeting was rescheduled to 3 March 2021 and was again conducted

by Deputy Store Manager. Ms. CB also attended the meeting as a Union Representative. The Deputy Store Manager asked the Complainant if her position had changed regarding her availability to return to work. The Complainant responded that her position had not changed due to ongoing childcare issues. The Deputy Store Manager asked if it was possible for the

Complainant to carry out 4 hours of work per shift. The Complainant rejected the Respondent’s

reduced hours offer. The Deputy Store Manager pointed out that a conclusion needed to be reached regarding the Complainant’s return to work arrangement as her job could not be kept open indefinitely. The Complainant stated that she would hand in her notice in response to the Respondent’s concern.

The Deputy Store Manager stated that he did not want the Complainant to resign but needed to confirm an arrangement that would allow the Complainant to fulfil her contract. The Complainant rejected this offer and restated her decision to resign before leaving the meeting.

4. On 4 March 2021 the Respondent received an email from the Complainant containing a doctor’s

note which stated that she was unfit to return to work due to anxiety and bereavement. The email also contained a three-month career break request.

The store manager discussed the career break request with the Deputy Store Manager on the

5 March 2021 and with her representative on the 8 or 9 March 2021 and informed the representative he would look favourably on this request. It was agreed to arrange a meeting

with the Complainant after 22 March as all concerned had annual leave within that timeframe.

However, the Complainant had already raised her complaint through the Workplace Relations

Commission which the respondent received on 22 March 2021 and the company appointed a

grievance officer, Colleague Relations Partner to hear the Complainant’s grievance.

5. On 22 March 2021 the Respondent received notification of the WRC claim lodged by the

Complainant in relation to discrimination on the grounds of family status. The Complainant did

not utilise the Respondent’s internal policies before submitting her complaint.

6. On 23 March 2021, Ms.AL, Colleague Relations Partner wrote to the Complainant

to introduce herself and in this letter the Complainant was asked to make contact on receipt of

the letter to arrange a suitable time and date for a meeting to discuss the contents of her

complaint with the focus of resolving the Complainant’s workplace concerns.

7. On 31 March 2021, Ms AL invited the Complainant to attend a meeting on 8 April 2021.

The Complainant tendered her resignation on the 31 March 21 by email to the Store

Manager.

8. On 1 April 2021 the Store Manager informed the Complainant that the Respondent was not able to accept the Complainant’s resignation request due to the ongoing investigation into the Complainant's concerns and ensured she understood that her issue could be resolved for her.

9. The Complainant’s grievance was fully investigated by Ms. AL who conducted

interviews with the Complainant and the Complainant’s colleagues, the Deputy Manager, the Customer Experience Manager, and the Store Manager and Ms CB, Shop Steward.

10. Ms AL issued the investigation outcome on 11 May 2021 and found that as she did not

find any evidence that the Complainant was discriminated against and as the Complainant had

not provided any evidence that she was discriminated against nor could she provide any evidence

to demonstrate how she was treated less favourably than any colleague in the store, the complaint

was not upheld. Ms AL did however conclude that the Complainant should have been supported via the “Time away from Work” policies rather than the “Supporting your attendance” policies. Ms AL advised the Complainant that she could apply for a lifestyle break or career break, that her application would be considered favourably, and that the Customer Experience Manager would be in touch to arrange a meeting to discuss options.

11. The Complainant was given the opportunity to appeal the findings of the grievance however she chose not to and therefore it was assumed that she had accepted the findings.

12. In line with the grievance outcome the Complainant was invited to a meeting on 9 of June

2021. During the welfare meeting the Complainant stated that she would like to return to work, that she could work 3 days per week and would confirm the times.

13. On 19 June 2021 the Complainant was invited to a follow up welfare meeting to take

place on 25 June 2021. The purpose of this meeting was to agree how the Respondent could support a return to work on 3 days per week.

14. On 22 June 2021 the Complainant contacted the Respondent stating that she would be forwarding her notice as she had got a new job and she requested a reference.

15. On 25 June 2021 the scheduled welfare meeting took place at 2pm with no attendance from or prior contact from the Complainant. At 4pm the Complainant emailed her

resignation to the store manager.

16. The Respondent scheduled an exit interview, the Complainant failed to attend.

Respondent Position

Prima Facie Case of Discrimination

The Complainant has failed to establish a prima facie case of discrimination as required by the Act

and has merely speculated upon the possibility of its occurrence which is vastly removed from the

onus the legislation places on the Complainant.

Section 85A (1) of the Act provides “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”.

A considerable amount of case law exists to elaborate on the onus Section 85A places upon a

Complainant who is alleging discrimination; In Melbury Developments v. Valpeters EDA/0917 it

was stated that section 85A "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….…. 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.”

The Southern Health Boardv. Dr. Teresa Mitchell DEE 011 where the extent of this evidential burden was also considered when it concluded that “it is only if these primary facts are established to thesatisfaction of the Court, and they are regarded by the Court as being of sufficient significance toraise 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 Margetts v Graham Anthony & Company Limited, EDA038 the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of thediscriminatory grounds laid down under the Act is not sufficient in itself to establish a claim ofdiscrimination. The complainant must adduce other facts from which it may be inferred on thebalance of probabilities that an act of discrimination has occurred.”

Comparator

It is the well-established practice of the Equality Tribunal and the Labour Court to require a

Complainant to present, in the first instance, facts from which it can be inferred that s/he was treated less favourably than another person is, has been, or would be treated, on the basis of the

discriminatory ground cited. The Respondent submits that it is only when the Complainant has

discharged this burden to the satisfaction of the Adjudication Officer that the burden shifts to

the Respondent to rebut the inference of discrimination raised.

 The Complainant has failed to even identify a comparator to whom she alleges she was treated

less favourably than on the grounds cited by her as required under section 6 (1)(a) of the Acts

which defines discrimination as – 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’).

Section 6(2) of the Acts clearly set out that discrimination is defined as occurring 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”. That comparator must be someone who does not have

family status.

The Complainant has failed to cite any comparators within the Respondent company against

whom it could be established that they were treated less favourably in comparison. In the

case Toker Developments Limited and Edgars Grods (Determination No EDA105) on the issue of hypothetical comparator the Labour Court stated:

It is settled law that in cases ofequal treatment a hypothetical comparator can be relied upon but only where there is someevidential basis upon which it could be concluded that such a comparator would have been treatedmore favourably in the circumstances of the particular case. No such evidence was adduced, andit would clearly be impermissible for the Court to reach conclusions of fact based upon merely supposition or speculation.

No evidence exists to support a complaint of discrimination vis-à-vis a hypothetical or actual

comparator. Therefore, the Complainant has failed to establish any discrimination as defined by

the Act.

It is appropriate that the Respondent be obliged to specify suitable comparator(s). In the case

of Melbury Developments Limited v Valpeters EDA 0917, the Court further determined: “...Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court’s view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based. […] the Court cannot accept that the peculiar knowledge principle can avail the Complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with Section 85A of the Act.”

Elements for Equality Claim

Direct discrimination consists of two elements. The first is the less favourable treatment of the

Complainant and the second is the existence of family status grounds for such treatment.

Both elements must be satisfied for a claim of discrimination on the ground of family status to

succeed. It is respectfully submitted by the Respondent that the Complainant has provided no

evidence of less favourable treatment. The Complainant’s allegations are grounded on incorrect

facts and are unfounded. The Complainant has not identified any other employee who they had

been treated less favourably than. Thus, the Complainant has provided no evidence of

discrimination.

The Respondent submits that it is an Equal Opportunities employer and has a policy in place to

ensure that everyone is welcome in the Respondent’s business. The policy covers all prospective

and current colleagues. For the purpose of the instant complaint the Respondent submits that this policy was applied in full.

The Complainant has submitted that she feels she has been discriminated however the Respondent rejects this allegation in its entirety and submits that no evidence of discrimination has been demonstrated.

The Respondent takes allegations of discrimination very seriously and has a comprehensive

bullying and harassment policy and grievance procedure in place. These policies apply equally to

all colleagues. The Complainant failed to properly utilise these policies in relation to the alleged

discrimination referenced in her complaint. Instead, she referred her complaint to the WRC. When

the Respondent was notified of the Complainant’s grievance which was on receipt of the WRC

referral form, the Respondent launched an investigation and found no evidence of the alleged

actions referred to in her complaint.

There is an onus on any company to understand issues preventing colleagues to come to work and

in doing so support them during period of absences. Welfare meetings were held with the

Complainant to understand what support measures could be put in place and if a compromise

could be reached. At each stage her role was kept open for her in circumstances where she could

not come to work.

Whilst the findings of the investigation concluded that the Complainant was being supported

under the incorrect policy, this in itself does not amount to discrimination.

If the Adjudication Officer finds that the Complainant has discharged the evidential burden

required to raise a presumption of discrimination, the Respondent respectfully submits the

Complainant has failed to prove that she has been treated any less favourably than another person

is, has been or would be treated in a comparable situation on the ground specified in section

6(2)(h) of the Employment Equality Acts 1998 to 2015 and, consequently, the claim must fail.

Conclusion

Based on the evidence presented throughout this submission, the Respondent respectively submits

that the Complainant has not provided facts from which a prima facie case of discrimination can be

established. Furthermore, the Respondent has acted reasonably and fairly in relation to the

Complainant’s absence and return to work process. Therefore, it is respectfully submitted that there

is no case to answer by the Respondent and accordingly the claim should fail.

Equality Law is based on comparison; how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore 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. This is referred to as a comparator. A Comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon. In the instant case the Complainant has not named a comparator.

The representative for the Respondent has correctly quoted Section 85A (1) of the Act which states “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”.

This section very firmly places the burden of proof on the Complainant and this is what is commonly referred to as a ‘prima facie’ case.

In Margetts v Graham Anthony & Company Limited, EDA038 the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of thediscriminatory grounds laid down under the Act is not sufficient in itself to establish a claim ofdiscrimination. The complainant must adduce other facts from which it may be inferred on thebalance of probabilities that an act of discrimination has occurred.”

In the instant case the Complainant has stated that the Deputy Store Manager made the following comment, “if we were talking about babies I would understand but we are talking about teenagers here they are old enough to mind themselves”.

The Complainant has pointed to this remark and has claimed such a remark constitutes discrimination in relation to her family status.

Whilst such a comment should not have been made the Respondent representative has clearly pointed out the following;

If the Adjudication Officer finds that the Complainant has discharged the evidential burden

required to raise a presumption of discrimination, the Respondent respectfully submits the

Complainant has failed to prove that she has been treated any less favourably than another person

is, has been or would be treated in a comparable situation on the ground specified in section

6(2)(h) of the Employment Equality Acts 1998 to 2015 and, consequently, the claim must fail.

Having given the matter considerable thought I think that the Respondent has been fair to the Complainant throughout a difficult period and have not discriminated against the Complainant. For this reason, I find that the complaint as presented is not well founded and therefore fails.

Having given the matter considerable thought I think that the Respondent has been fair to the Complainant throughout a difficult period and have not discriminated against the Complainant. For this reason, I find that the complaint as presented is not well founded and therefore fails.

Employment Equality Act, 1998.