Complainant

Respondent

Parties

Dara Kavanagh

Tesco Ireland Limited

Representatives

  N/A

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-00051980-001

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051980-004

28/07/2022

On 30 August 2021, the Complainant commenced work with the Respondent in the Liffey Valley Store, as a Customer Delivery Driver. According to his contract of employment, the Complainant earned approximately €14.62 gross per hour, working 30-35 hours per week. This came to approximately €512 gross per week. The Complainant’s employment terminated in early February 2022.

The Complainant submitted that he was discriminated against and victimised by the Respondent on the grounds of gender and sexual orientation in breach of the Employment Equality Act 1998-2015, as amended.  In his Complaint Form, the Complainant also submitted that the statement of his core terms deliberately contained false or misleading information, in breach of the Terms of Employment (Information) Act 1994, as amended. On 28 July 2022, the Complainant submitted his Complaint Form to the Workplace Relations Commission (the “WRC”).

The Respondent denies the Complainant’s allegations in their entirety.

The Complainant provided detailed written and oral submissions.

In his Complaint Form, the Complainant submitted that he worked for the Respondent from August 2021 until February 2022. He submitted that during that time, he was one of the best rated drivers, according to a team leader. He submitted that he was fitting in well and that he was “excited to remain there for a long time”.

CA-00051980-001 – Complaint under the Employment Equality Act 1998, as amended:

In his Complaint Form, the Complainant submitted that he was discriminated against by the Respondent on the grounds of gender and sexual orientation. In his Complaint Form, the Complainant also refers to victimisation. The Complainant submitted that he has listed himself as “non-binary on all professional and official correspondence since 2020” and that he preferred not to select gender. He submitted that the Respondent addressed all written correspondence to him using the title “Mrs.” In his Complaint Form the Complainant stated that he asked for this to be amended and “it was never changed or brought up”.

CA-00051980-004 – Complaint under the Terms of Employment (Information) Act 1994, as amended:

In his Complaint Form, the Complainant further submitted that he has “paper copy documents received by the out of order manager that sacked me, that are contrary to my terms of employment, contract and this was deliberate to suit an agenda of his I only understand to be discriminatory”.

Complainant – Oral Evidence:

The Complainant submitted that he was discriminated against as the Respondent used the title “Mrs” in its written correspondence to him. He submitted that his colleagues noticed this. The Complainant further submitted that he was “kept busier” on account of his gender and/or sexual orientation. The Complainant submitted that he was very good at his job and that his dismissal came as a surprise.

The Complainant submitted that there were messages in the work “Whatsapp” group which related to his Line Manager discriminating against him. However, he submitted that he did not produce these messages due to GDPR concerns. The Complainant further submitted that his Line Manager used “unprofessional language and tone” to him in front of colleagues.

The Complainant submitted during the Hearing, for the first time, that he believed that he had been dismissed on the grounds of his gender and/or sexual orientation. In his oral evidence, the Complainant submitted that he had “no idea why [he] was let go and [he] feel[s] that it was a result of discrimination.”

The Complainant submitted that he never received his contract despite continuously asking for it. He said that he complained about this to his Line Manager and to a HR Representative, whose name he could not recall.

The Complainant submitted that this experience has impacted upon his mental health.

Complainant – Cross-Examination:

The Complainant was referred to the Respondent’s “Administer Hire” Form which he had completed. The Complainant was asked if his handwritten entry under “Title/Name Prefix” could be read as “Mrs” and that the Respondent had relied on this entry, in its written communications to him. The Complainant denied that his entry could be read as “Mrs”.

The Complainant confirmed that his Line Manager never referred to him as “Ms” or “Mrs”.

Under cross-examination, the Complainant could not provide a comparator who was not of the same gender and/or sexual orientation, who had been treated differently or more favourably than him.

The Complainant was referred to the Respondent’s records regarding two customer complaints about him and about an incident where he drove into another delivery van.  The Complainant disputed the accuracy of the records. He also denied that the conversation with his Line Manager on 24 September 2021 took place. The Complainant accepted that certain meetings did take place. He also accepted that there had been “a performance issue” and that his probation period had been extended as a result.

Under cross-examination, the Complainant denied that he received a copy of his contract.

The Respondent provided detailed written and oral evidence.

CA-00051980-001 – Complaint under the Employment Equality Act 1998, as amended:

The Respondent submitted that the Complainant has not discharged the burden of proof of establishing a prima facie case of discrimination as required by section 85A of the Employment Equality Acts 1998 to 2015, as amended. The Respondent further submitted that the Complainant has “merely speculated upon the possibility of its occurrence.”

The Respondent submitted that the Complainant failed to provide a comparator who is not of the same gender and/or sexual orientation, who has been treated differently or more favourably than he has. The Respondent further submitted that the Complainant has failed to demonstrate a causal link between the gender and/or sexual orientation grounds and his complaint.

The Respondent further submitted that the Complainant never raised concerns of discrimination on account of his gender and/or sexual orientation. The Respondent submitted that the Complainant had performance concerns. The Respondent submitted that managing someone in their probation period in line with company procedures and the Complainant’s terms and conditions of employment cannot be classified as discrimination.

The Respondent sought to rely on inter aliaMelbury v. Valpeters EDA/0917, The Southern Health Board v. Dr. Teresa Mitchell DEE 011 and Margetts v Graham Anthony & Company Limited, EDA038.

CA-00051980-004 – Complaint under the Terms of Employment (Information) Act 1994, as amended:

The Respondent submitted that the Complainant’s contract of employment accurately reflects the terms and conditions that applied to him in his employment. The Respondent further submitted that the Complainant received a copy of his contract of employment on the first day of his employment.

Robert Kelly – Oral Evidence:

Mr. Kelly outlined that he is the Respondent’s Store Manager at its Liffey Valley store. He outlined that he has worked for the Respondent for 37 years and specifically in the Liffey Valley store for 5 years. He outlined that he has anywhere up to 300 colleagues. He further outlined that diversity is really important to him. He outlined that he has colleagues who are non-binary, who would indicate how they would like to be addressed. He outlined that the Liffey Valley store is a good store and that he is proud of it.

Mr. Kelly further outlined that he had not been aware of any discrimination complaints made by the Complainant or by anyone else against the store. He outlined that if discrimination complaints had been made, he would have been made aware of them. He further outlined that the Complainant had a Line Manager and a Senior Manager and that anything so serious would have been brought to his attention.

Mr. Kelly confirmed that during his last conversation with the Complainant on the date of his dismissal in late January 2022, there was no mention of discrimination on the grounds of gender and/or sexual orientation.

Mr. Kelly further outlined that on an employee’s first day, the employee is presented with three copies of their contract of employment to sign. One contract of employment is given to the employee to keep, while two are kept on file by the Respondent.

Cross-Examination:

Under cross-examination, Mr. Kelly confirmed that if the Complainant was not satisfied with his Line Manager’s response to a complaint, the Complainant could have approached the Senior Manager or him.

Mr. Kelly outlined that he could recall the short meeting with the Complainant and his Line Manger on the date of his dismissal in late January 2022. He outlined that it was not a formal meeting and that there were no witnesses. He confirmed that the Complainant had not passed his probation period.

CA-00051980-001 – Complaint under the Employment Equality Act 1998, as amended:

The Law:

Discrimination:

Section 85A of the Employment Equality Act 1998-2015, as amended (the “EEA”), provides:

“(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”.

Therefore, the burden of proof is on the Complainant to show that was treated less favourably on account of his gender and/or sexual orientation.

In Southern Health Board v. Mitchell (2001) E.L.R. 201, the Labour Court held:

“The first requirement … is that the claimant 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 is no infringement of the principle of equal treatment”.

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Victimisation:

Section 74 of the EEA provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

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

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in thepreceding paragraphs.”

In Tom Barrett v. Department of Defence, DEC-E2015-017, the Equality Tribunal set out the following requisite three components of a victimisation complaint under Section 74(2) of the EEA:

(i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”;

(ii) the complainant must be subjected to adverse treatment by his/her employer; and

(iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

Findings and Conclusion:

The Complainant alleged that he was discriminated against and victimised on the basis of his gender and/or sexual orientation. The Complainant submitted that he was discriminated against as the Respondent used the title “Mrs.” The Complainant stated that he asked for this to be amended and “it was never changed or brought up”.  The Complainant submitted that there were messages in the work “Whatsapp” group which related to his Line Manager discriminating against him. The Complainant further submitted that he was “kept busier” on the basis of his gender and/or sexual orientation.

The Respondent submitted that Complainant was referred to as “Mrs.” in its written correspondence due to a misreading of the Complainant’s “Administer Hire” Form. The Respondent further submitted that the Complainant never raised any discrimination complaints throughout his employment.

On the facts of this case, and in applying the test outlined above in Melbury Developments Ltd v. Valpeters, I am satisfied that the Complainant makes only mere speculation or assertions of discrimination, unsupported by any evidence. The Complainant has not established a prima face case that he was discriminated against because of his gender and/or sexual orientation. Therefore, I find that the Complainant was not discriminated against.

As regards the Complainant’s victimisation complaint, I find that no action was taken that constituted a “protected act” and/or that the Complainant was subjected to adverse treatment by the Respondent. Therefore, I find that the Complainant was not victimised.

Therefore I find that this complaint is not well founded.

CA-00051980-004 – Complaint under the Terms of Employment (Information) Act 1994, as amended:

The Law:

The Terms of Employment (Information) Acts 1994, as amended, provides that employers must give employees certain information about their employment, such as a contract of employment, a job description, rate of pay and hours of work.

In his Complaint Form, the Complainant submitted that he has “paper copy documents received by the out of order manager that sacked me, that are contrary to my terms of employment, contract and this was deliberate to suit an agenda of his I only understand to be discriminatory”. The Complainant did not indicate what terms deliberately contain information which was “false or misleading”. He provided no evidence to substantiate this allegation.

The Respondent submitted that the Complainant’s contract of employment accurately reflects the terms and conditions that applied to him in his employment.

In the circumstances, I find that this complaint is unsubstantiated and is not well founded.

CA-00051980-001 – Complaint under the Employment Equality Act 1998, as amended:

For the reasons outlined above, I find that the Complainant has not established a prima facie case of discrimination on the ground of gender and/or sexual orientation. Therefore, I find that the Complainant was not discriminated against. I also find that the Complainant was not victimised. I find that this complaint is not well founded.

CA-00051980-004 – Complaint under the Terms of Employment (Information) Act 1994, as amended:

For the reasons outlined above, I find that this complaint is not well founded.

Employment Equality Act 1998, Discrimination, Terms of Employment (Information) Act 1994.