Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

John Farrell 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00039175-001

13/08/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under section 16 of the Protection of Employees (Part-Time Work) Act 2001 and has submitted that she has been treated less favourably than a comparable full time employee (CA-00039175-001).

The Complainant commenced employment with the Respondent on the 31st October 2017. The Complainant was employed as a customer service representative. In February 2020 the Complainant sought to work part time as she was seeking a college placement. The Complainant worked part time from February 3rd 2020 until the 16th March 202 and following the outbreak of the pandemic returned to full time work  from home. The Complainant was to work full time until and this would be reviewed on the 31st July 2020.

The Complainant sought to return to part time work from home but was informed that she would have to return to the office unless she could provide proof of an underlying condition which would prevent her returning to the office.

The Complainant provided a letter from her Doctor confirming she had asthma but the Complainant submitted the Respondent sought confirmation of her level of asthma and when she would be able to return to the office.

The Complainant stated that, at this juncture, she contacted her team leader and human resources and informed them that she felt she was being treated differently from her full time colleagues who were allowed to continue to work from home. The Respondent informed the Complainant that due to operation reasons and clients request that the laptops provided to employees to work from home are to be used for 39 hours and thus if working less hours there was a requirement to be in the office. The Complainant stated the only difference between full and part time employees was the number of hours worked (39 for full time).

The Complainant submitted that she informed the Respondent she believed she was being treated differently to full time employees and further outlined she did not feel comfortable returning to the office as due to her underlying condition and the ongoing pandemic. The Complainant accepted in the course of her evidence that she did not log a formal grievance before resigning.

This Complaint was received by the Workplace Relations Commission on the 13th August 2020. Ultimately, the Complainant resigned her position on the 18th August 2020 due to the refusal to allow the Complainant to work from home in the absence of the requisite letter.

The Respondent accepts the background facts and timeline in relation to the Complainants employment.

The Respondent is an essential service provider and at the outbreak of the pandemic there were forced to make adjustments to their operational model. The Respondent stated that the aforesaid adjustments had a direct and immediate impact on their employees which included the capacity offer flexibility in working hours to staff.

The Respondent submitted that, under normal circumstances, they would accommodate staff requests for flexibility in working hours. Such flexibility was reduced due to requirements from some of their main customers. This included the use of laptops whereby in essence the reality became that an employee could work from home if full time but in the office if part time. The Respondent stated that in the particular circumstances of the Complainants case it was not possible to allow her to work part time from home continuously.

The Respondent submitted that in relation to the Complainants medical condition they were prepared to be flexible but she did not provide any proper medical evidence. Further, the Complainant did not avail of any formal grievance procedure prior to her resignation.

It is the Respondents position that this complaint is not well founded.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of the hearing by both parties.

The Complainant claims that in respect of her conditions of employment she has been treated less favourably than her full-time colleagues.  The complainant relates to the Complainant not being permitted to work from home on a part time basis due to her underlying condition.

Section 9 of the Protection of Employees (Part-Time Work) Act 2001 1997 provides

9.— (1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee. 

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated

Further Section 12 provides, in relation to objective grounds for less favourable treatment:

12.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.  

I have carefully considered the written submissions and oral evidence in reaching my conclusions.   I accept the Complainant’s evidence that she made a request to work full time due to her underlying condition. I accept the Respondent was prepared to accommodate the Complainant upon receipt of medical information but such details were not forthcoming.

In order for the Complainant to succeed in this matter she must prove that she has been treated in a less favourable manner than a comparable full time employee. In the circumstances of this case the  Complainant has failed in this regard.

Further, in consideration of the onset of the pandemic and the adjustments the Respondent had to make to its operational model, I am of the view that the  Respondent has put forward objective reasons for the Respondents management of part-time staff. In that regard I am mindful of the decision in C-307/05, Del Cerro Alonso -v- Osakidetza-Servicio Vasco de Salud (2007) IRLR 911

“.. that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”

In consideration of the above, I find the Respondent did not treat the Complainant less favourably than a comparable full-time employee.

I find that the Complaint (CA-00039175-001) made pursuant to Section 16 Protection of Employees (Part-Time Work) Act 2001 is not well founded.