Complainant

Respondent

Anonymised Parties

A Process Operator

Recruitment Agency

Representatives

  Self-Represented

Ms Lorna Madden BL instructed by John Brooks, Brooks and Company Solicitors

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-00057358-001

26/06/2023

The Complainant is employed by  the Respondent, an employment  agency, and  commenced work onsite as a production operator  at a hirer’s facility (“the Hirer”)  on the 9 May 2022. She earns €709 gross; net €606 for a 39-hour week. The wages are paid by the Respondent. The Complainant submits that she was denied flexible working and training on the basis of her gender due to her  being pregnant. She also claims that she was denied reasonable accommodation on the grounds of her disability. No complaint was brought against the Hirer as  the “provider of agency work” for the purposes of the Employment Equality Acts 1998-2015 (“the Acts”).

The  Respondent’s case is that there is no discrimination as there has been no less favourable treatment. The Respondent submits that the Complainant was not refused the Flexible Working Policy because she was pregnant, nor for any other reason and furthermore that she did not  seek any training from the Respondent, nor was there any formal training program. The Respondent asserts that the Complainant did not show  any proof of disability.  

The Complainant told the Hirer’s supervisor that she was pregnant when she had an emergency medical situation on 25 March 2023. On 8 May 2023 the Hirer advertised flexible working. The scheme allows employees and agency workers to apply to work less days on  shifts, for the time that the policy is in place. Flexible working  started on the 1 June 2023. The Complainant was on sick leave at the time  so she asked the Hirer’s supervisor (“the Supervisor”) when she returned to work  if she could work  three days a week   instead  of four  because she was not feeling well on account of her pregnancy. She was informed that she could only do so with a doctor’s letter.

The Complainant went to her Doctor on 15 June 2023 where she received a letter that she should work reduced hours which stated in its relevant parts that (the Complainant)  “is finding doing nights difficult and that I have recommended reducing the number of nights to three.” The Complainant’s doctor states that “hopefully this is possible.” (exhibited).  She forwarded the letter on 16 June 2023 to the Supervisor and the Respondent. The Respondent told her that the Hirer HR section  will make the decision, so the Complainant waited  for the following week for confirmation that the Hirer approved the application for a three-day week. She had two days’ off and when she returned to work, she was told that her application could not be fulfilled because the Respondent did not agree.

The Complainant submits that the Respondent never cared about her being pregnant nor did they follow up with the Hirer as to how she was being treated. She stated that she had a meeting with the Respondent head (Ms A) when she was twelve weeks pregnant where she asked for different working hours, but the Respondent never followed up on this.

On 19 June 2023 she  rang the Respondent to enquire as  to why the agency refused to agree to allow her work a three-day week. The Complainant submits that she was told that the Hirer cannot provide her with such a short week.

The Complainant accepted in evidence that she did not have a disability as defined under the Acts nor had she  asked the Respondent for training at any juncture. In cross-examination, the Complainant was directed towards her time sheets and accepted that she had shown and  signed  for flexible working from 12 June 2023 onwards, in the material time for her complaint.

Ms A, Director of the Respondent gave evidence that the Respondent company has a hands-on approach with their agency staff and whilst  the agents can bring grievances to the fore using the Hirer’s  polices, the overall approach was one of partnership with the Hirer in sorting out issues  that are brought to the Respondents attention.  On 24 April 2023, the Complainant informed Ms A that she was pregnant. Ms A congratulated her, and they had a pleasant exchange. The Respondent received a copy of the doctor’s note on preferable reduced hours for the Complainant on 16 June 2023.

On  21 June 2023 the Supervisor  contacted the Respondent to say that the Complainant brought in a doctor’s note and requested to work three nights a week, starting that week, due to pregnancy. The Supervisor  said she had no issue with this and she asked would this be processed as sick leave on the Complainant’s time sheet (relevant email exhibited). The witness said that  was the first time that the Respondent was engaged by the Hirer’s supervisor in relation to reducing the Complainant’s working week.

The witness said that the  issue raised by the Supervisor on  21 June 2023 was not whether the Complainant could avail of the Flexible Working Policy, but whether she could reduce her shift days and whether this could be documented as sick leave. The witness said to the Supervisor that no employer can pre-approve sick leave and that any flexible working offered has to be described as “flexible working”. It was the witness’s contention that this was the expressed refusal of the Respondent to mislabelling for payment purposes which was misconstrued by the Supervisor as an objection to flexible working per se. Unfortunately, the witness said, this misunderstanding was communicated to the Complainant as the Respondent declining an opportunity to the Complainant of working flexibly, which was never the case. The witness gave evidence that the Complainant never approached the Respondent about training of any kind, and she was not aware of any formal training program at the Hirer.

Ms B, the Recruitment Process Manager for the Respondent gave evidence that  on 23 June 2023 the Complainant rang the Respondent to discuss the matter. On several occasions during the course of the phone call the witness  advised the Complainant that she could avail of the flexible working policy. The witness  informed  the Complainant that she  could reduce her working hours by applying for the policy with her supervisor. The witness  advised the Complainant that she could be facilitated by working day shifts or evening shifts and she could also use the flexible working policy to work three days or three evenings. The witness  then followed up with the Complainant, setting out the options available to her by email (exhibited).

Respondent’s Legal Argument:

The Respondent cites section 6(2A) of the Acts where it provides that in order for discrimination to occur, section 6 of the Act requires a person to be treated less favourably than another person is. In relation to pregnancy, section 6(2A) specifically provides that:

Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

The Respondent’s position is that the Complainant was not treated any less favourably  than any other workers. The Respondent submits that the  Complainant appears to be aggrieved as other employees were availing of the flexible working time policy, but she was not. The Respondent argues that the  fact of the matter is that the Complainant was never refused the Flexible Working Policy, on the basis that she was pregnant or any basis, but in fact she never applied for it. The Respondent highlighted the policy to the Complainant on several occasions and explained the policy. Ultimately the Complainant did avail of the policy and was happy with this. The Complainant was not treated any less favourably than any other worker. The Respondent wishes it to be noted that  the Complainant did not work any full weeks after the week ending the 12 June 2023 and points out that whatever way her absence was labelled, the effect of it was the same as if she had been on the flexible working policy. The Complainant was not adversely affected and there was no actual less favourable treatment.  

The Respondent argues further that  when the Respondent first became aware of the Complainant’s request, it was in the context of requesting a reduced shift due to her pregnancy; it was not a request for flexible working time. Any employee who asked for a reduced shift due to pregnancy or due to another reason, such an ill family member, or illness themselves, would have been treated in the same way as the Complainant, as the only shifts available from the hirer  are five-day shifts.

The Respondent opened  Harrington v Board of Management Scoil Chríost RíDEC-E2005-022 where the complainant argued that she had been subjected to unlawful discrimination on grounds of her gender when she was not permitted to withdraw an application for a career break. The complainant had changed her mind about taking a career break when she found out she was pregnant. The Equality Officer compared the situation of a teacher seeking to cancel a career break because of a subsequent pregnancy with the situation of teachers seeking to cancel a career break taken in order to look after an elderly relative, because of the subsequent death of that relative. He concluded from the responses of the employer that it would have granted the deferral in the latter situation and therefore concluded that the real reason for the refusal of the deferment stemmed directly from the pregnancy. The Respondent asserts that Harringtonis a useful case to demonstrate the Respondent’s position. Unlike in Harrington, the Complainant was not treated differently by reason of her pregnancy.

In relation to the responsibility of the Respondent and of the Hirer  under the Employment Equality Act, the Respondent cited Section 8 of the  Acts where it  provides as follows:  

8. Discrimination by employers etc.

(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

The Respondent submits that pursuant to section 8, the Hirer  as the provider of agency work,   also has a duty to the Complainant under the Act. The Respondent’s position is that it can only deal with the issues and facts that it was aware of. The Respondent does not know about matters that occurred outside their control. Any issues which were dealt with by the Hirer  are the Hirer’s responsibility. Additionally, the Respondent is aware that the Hirer  has a range of policies and procedures in place and an active HR section, and the Respondent is entitled to assume that the Hirer  will conduct themselves in accordance with these policies. The Respondent can also be contacted by agency workers if they have any issues, and it makes its workers aware of this. The Complainant did not raise an issue or make any complaint with the Respondent.

The Respondent’s case is that there is no discrimination as there has been no less favourable treatment. The reason the Complainant was not able to avail of the Flexible Working Policy sooner is because she did not apply for it. The Complainant was not refused the Flexible Working Policy because she was pregnant, or for any other reason. When the Respondent became aware that the Complainant was looking to reduce her shift from five nights to three, the policy was suggested on multiple occasions as an appropriate solution. As it is a voluntary scheme, the Respondent could not unilaterally transfer the Complainant to the scheme, and in any case, it required the Complainant making an application to the Hirer’s supervisor.. The Complainant ultimately applied for the policy and was happy with this. It is unclear why the Complainant did not avail of the policy before this and it is the Respondent’s position that this was simply due to a misunderstanding on the Complainant’s part. The Respondent argues that the last full week worked by the Complainant ended on the 12 June 2023, and she suffered no actual detriment.

The Complainant did not bring a case against the Hirer, the provider of agency work as defined under section 8 of the Acts, but against the recruitment agency. The Respondent accepts that it is the Employer for the purposes of this case but argues that it cannot step into the shoes of the Hirer in defence of any purported  discriminatory  action alleged by the Complainant.

The Complainant alleges that she was discriminated against by the Respondent on the grounds of gender in that she was treated less favourably because she was pregnant. The Acts provide  at section  6(2A):-

Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

The Complainant specifically refers to less favourable treatment as being a denial of flexible working and a block on access to training.

The Complainant stated in her complaint form  that she had a disability which was was not reasonably accommodated by the Respondent but accepted at the hearing that she did not have a disability as defined under the Acts, therefore I will not be considering this dimension of alleged discriminatory behaviour in my decision.

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

 The  test for establishing a ‘prima facie’ case was set out by the Labour Court in the case of Southern Health Board v Mitchell [2001] E.L.R. 201 as follows:

‘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 indicated 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 those 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’.

 When  considering the primary facts adduced by the Complainant I must  take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the respondent. In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.

The Complainant’s primary case is grounded on what she terms was a refusal by the Respondent to accommodate her for flexible working whilst she was pregnant. She contends that an    arrangement she had agreed with the Supervisor, outside of the formal flexible working policy, was not ratified by the Respondent. The Supervisor contacted the Respondent on 21 June 2023  seeking permission that any flexible days taken off, could be returned on the  timesheets as sick leave. However, Ms A gave convincing  evidence that the Respondent had no objection to the Complainant beginning flexible working but that when the time sheets were submitted, they had to show time off as under “flexible working” and not “sick leave”. She stated that no employer could preapprove sick leave. I am satisfied that this was not a refusal of flexible working  but a misconception by both the Supervisor, and a view ultimately communicated to  the Complainant, that the Respondent had objected to flexible working. I would have preferred if the Supervisor was present to give evidence for further clarity on this matter but the Respondent can only respond to what it has control over and ultimately cannot override the decision of a supervisor at the Hirer.

The Complainant did not give evidence that other agency workers, or indeed directly employed colleagues at the Hirer, were treated differently when applying for flexible working arrangements. Moreover, the Complainant did not forward any evidence of detriment and it is clear from the  exhibited time sheets that she did avail of a shorter working week, from 12 June 2023 onwards, before ultimately applying for the formal flexible working arrangement. Furthermore, the uncontested evidence in this case was that the Complainant did not apply to the Respondent  for training  during  the material cognisable period  for this complaint.

In line with the direction given by the Labour Court in Dyflin Publications Limited , I took  all  the evidence and submissions from both sides into account when considering  section 85A of the Acts as it applied in this case , and  I  am satisfied that the Complainant did not establish a prima facie case  that she was treated less favourably on account of her pregnancy  than another employee has been, or would be treated.   

CA-00057358-001: For the reasons outlined above, I find that the Complainant did not establish a prima facie case that the Respondent discriminated against her on the grounds of gender.

Employment Equality Acts 2008-2015, Gender, Pregnancy.