Complainant

Respondent

Anonymised Parties

{A Sales Assistant}

{A Department Store}

Representatives

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-00048817-001

27/02/2022

The Complainant was employed by the Respondent from 13th December 2021 until 7th January 2022.

The Complainant was employed as a sales assistant with the company.

She alleges discrimination and discriminatory dismissal by the company on 31st December 2021 due to her family status. The Complainant was living with her son and another family in a homeless family hub. The other family tested positive for Covid-19. She was advised by her manager to carry out an antigen test on her break. The test was inconclusive and the manager told the Complainant to go home and phone HR the next day to find out what to do. The Complainant telephoned HR after two negative antigen tests the following day, with no symptoms and they advised her to go into work.

When the Complainant went into work, she was asked to meet a manager to clarify what happened. The manager was told the Complainant carried out the test in the canteen which was not true and the Complainant said this did not occur and that another member of staff would confirm this. She said the test was done prior to going into the canteen, the test was inconclusive. The manager asked the Complainant about discussing her living situation with other members of staff, the Complainant said she did not lie if asked. She was told another member of staff was upset for her and she can’t have other staff upset. The manager told her to go back to the shop floor. Later the manager asked the Complainant is there a family in your home with Covid-19? The Complainant said yes but they had been moved into isolation and she did not share any facilities with the family.  The Complainant had spoken to three managers about the situation but believed another member of staff was listening to her call.

The Complainant said the manager told her she had staff walking off the floor because the Complainant is in work and said she would ring HR. The Complainant started having an anxiety attack. Two managers then questioned her again about the issue, and she was told to go home as a member of staff was threatening to go to the Trade Union about it.  She was asked to go home until she had a negative antigen test.  She was told she can’t have her colleagues upset about her situation. The Complainant said she hadn’t talked about her living situation since the first day and said she had two negative antigen tests that morning. She was told she would be given a week’s notice.

Another manager told her she was being let go because she carried out an antigen test and so many people had seen it. On 11th January 2022 the Complainant phoned HR and spoke to the Senior Manager. He said she was let go as they did not need the staff. The Complainant said she was contracted staff not hired just for Christmas.  She later found out all staff were kept on except her.

The Complainant alleges she was treated less favourably due to her living situation.

There was no appearance by or on behalf of the Respondent at the hearing.

I am satisfied that the Respondent was given notice of the hearing. There was no appearance by or on behalf of the Respondent.

I heard and considered the written submission and evidence of the Complainant. Given the personal nature of the information in my determination, I am anonymising the identity of the parties.

The Complainant alleges she has been (i)discriminated against in terms of S6 (2) of the Employment Equality Acts 1998-2015 due to her family status and (ii) in dismissing her for discriminatory reasons.

The Complainant is a mother of one child living in a homeless hub.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs 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 discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

The “family status ground” is defined in the Act in S6 (2) (c ) and is on the basis that one has family status and the other does not.

The Complainant provided a copy of her contract of employment which is a week to week contract with the Respondent. She was employed as a sales assistant from 13th December 2021 until 7th January 2022.

The Complainant says was living with her son and another family in a homeless family hub. The other family tested positive for Covid-19. An issue then arose in the workplace about her return to work. Following negative antigen tests, she returned to work. There was dispute about whether she carried out the antigen test in the canteen. The Complainant says the Manager said staff were upset for her about her living situation. She was told staff threatened to walk off the floor as she was in work. She was asked to go home until she had a negative antigen test. The Complainant says she was given a week’s notice and was dismissed.

The Complainant alleges less favourable treatment due to her family status as a mother of a child. There was no evidence provided of less favourable treatment due to the Complainant having a family, or treatment of a comparator without a family. The Labour Court in its determination in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act and 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.”

The Complainant has not adduced a prima facie case of discrimination on the family status ground. The complaint fails.

The complaint fails.

Family status