Complainant

Respondent

Parties

Eoin Deans

Power City Limited

Representatives

Tim Kennelly, Tim Kennelly Solicitors

Karl Hutchinson, LawPlus Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065221-001

06/08/2024

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

CA-00065221-002

06/08/2024

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

CA-00065221-003

06/08/2024

The Complainant is employed as a forklift driver by the Respondent. The Complainant commenced employment with the Respondent in March 2018 and continues in his employment with the Respondent.

The Complainant has submitted complaints under the Employment Equality Act 1998, as amended, and the Terms of Employment (Information) Act, 1994, as amended.

The Respondent rejects the Complainant’s complaints in their entirety.

Background

The Complainant commenced his employment on a part time basis in March 2018 and was told that he would have Sundays and public holidays off. He was also told that he would be given forklift training.

The Complainant commenced full time employment with the Respondent in September 2018 and during that period took part in forklift driving training for which he has never received written confirmation despite having passed the test. The Complainant was promised by the Respondent that an increase in pay of one euro per hour would take place upon completion of the forklift training. At the hearing, the Complainant’s solicitor confirmed that this element of the complaint has been taken under section 12 of the Employment Equality Act 1998, as amended (the “Act”).

As part of the Complainant’s roles and responsibilities, the Complainant is required to lift heavy goods. The Complainant states that up until February 2024 no manual handling courses were provided and in February 2024 an inadequate course was provided in that only dealt with the lifting of light goods. The Complainant states that he was concerned and voiced his concern. The Complainant believes that as a result of voicing his concern, his working hours were changed. At the hearing, the Complainant’s solicitor confirmed that this element of the complaint has been taken under section 12 of the Act.

The Complainant further contends that in his six years of employment with the Respondent he has not been given adequate safety training. At the hearing, the Complainant’s solicitor confirmed that this element of the complaint has been taken under section 12 of the Act.

In October 2020, the Complainant’s family status changed when he was awarded joint custody with day-to-day care of his daughter. It became more important than ever for the Complainant to be off work on Sundays and public holidays to take care of his daughter.

The Complainant contends that the Respondent has not assisted or indeed catered for the Complainant’s change in family status and in fact, has continued to require the Complainant to work at weekends and on public holidays despite being acutely aware of the Complainant’s family status.

The Complainant submits that other employees have fixed hours and are always aware in advance of their working week. The Complainant submits that he has not been afforded such a term and, therefore, that he has been directly/indirectly discriminated against on the grounds of his family status.

The Complainant submits that if his daughter is unwell and he is required to bring her for medical attention that absent confirmation from a medical practitioner, he is penalised by losing a day’s holiday. This is also extended to the Complainant if he calls in sick. At the hearing, the Complainant’s solicitor confirmed that this element of the complaint has been taken under the Act.

Legislation and Case Law

The Complainant relies on section 34 of the Act which he believes requires the Respondent to change his working conditions to cater for his family status.

The Complainant relies on the European Court of Justice case of Bilka – Kaulhaus vs Karin Webber Von Hartz 170-84(1986) ECR 1607 where it was held that indirect discrimination arises where a requirement in relation to employment bears significantly more heavily on persons of one gender/family status relative to that of persons of the other gender/family status. It is the Complainant’s contention that the Respondent’s approach in the full knowledge of his family status is one that would be considered direct/indirect discrimination, and further, is one that cannot be objectively justified.

The Complainant also seeks to rely on the Labour Court determination in Inoue v NBK Designs Limited [2003] E.L.R. 98 where it was found that the requirement to work full-time can be a condition of employment which significantly disadvantages those with certain family status. In that particular case, the Labour Court stated, “the Complainant was unable to work full time, not because she was a woman per se, but because she is the mother of a school going child and the primary carer of that child”. It is the contention of the Complainant that his case is on all fours with Inoue.

The Complainant also seeks to rely on the Adjudication Officer’s decision in An Employee v A Healthcare Company ADJ-00017070. In that case, the employee was working on a part-time 25 hour per week basis. She was put through a purported redundancy process by the employer when she refused to make herself available for full-time working hours. The employee asserted that the apparently neutral requirement that the role be performed on a full-time basis had an indirect discriminatory impact on her as working mother and woman due to her caring obligations. The employer’s position was that it had a business need which required that the role in question be performed on a full-time basis. The Adjudication Officer considered whether the indirect discriminatory impact could be objectively justified. The Labour Court decided that the employer did not satisfy the test of proportionality as it had failed to show that the role could not be satisfactorily performed on a part-time basis. The Court found that the employer had failed to explore less discriminatory ways to meet its business needs.

In regard to the failure of the Respondent to provide manual handling and safe systems of work, the Complainant relies on the Court of Appeal judgment in Geraldine Martin v Dunne Stores, the High Court judgment in Louise Barry v Dunnes Stores and places particular emphasis on the High Court judgment Justyna Meus v Dunnes Stores.

In the Meus case the plaintiff was a shop assistant who was required to lift boxes which weighed 13-15kg. The plaintiff injured her back whilst loading the boxes and subsequently brought personal injury proceedings against her employer. One of the key issues which arose in the case was the training that was allegedly given to the plaintiff. There were significant concerns as to the training she received. It was stated that she had been requested to sign documents which purported to show that the training had been provided. Under cross examination, the employer’s health and safety manager, who provided the training, stated that he did not check whether new recruits understood him. In the circumstances, it was found that the training provided was inadequate for the plaintiff’s job. What is of significance is that there was no risk assessment carried out in relation to the lifting duties of the plaintiff and nor had there been a proper follow-up regarding the training which had been provided to the plaintiff.

The Complainant states that he worked for six years in the Respondent company and that it was only in February 2024 that he received any sort of training and that this training was neither appropriate nor adequate. The Complainant states that a colleague of his injured himself whilst lifting and this caused the Complainant serious concern that a similar fate would befall him in the absence of adequate training.

Direct evidence of the Complainant

The Complainant said that he had been discriminated against because he is a single father who, because of his caring duties, cannot work the hours that he has been asked to work. The Respondent wants him to work a six-day week with only Tuesdays off.

The Complainant contends that he notified the Respondent of a change in his family status in 2020 when his daughter started living with him. He needed to reduce his hours.

The Complainant said that his rosters were fine until this year when he couldn’t do Sundays. He had a meeting with four managers, and he told them that he had his daughter one weekend every month.

The Complainant said that he cannot work on Sundays or on public holidays that fall on a Monday

The Complainant said that he ended up in a disciplinary hearing in relation to the manual handling.

In relation to his rate of pay, the Complainant said that the Respondent would not give him his agreed salary because he could not work extra hours.

The Complainant named two of his colleagues as comparators in support of his case – J and E. The Complainant said that they don’t work on Sundays. The Complainant contends that the family status of his comparators is different to his – one does not have dependents and the other has a grown-up family.

The Complainant said that the days he was asked to work were just not feasible. He could not come into work on Sundays.

The Complainant asserts that he notified a manager that he would not be available to work on Sundays.

The Complainant asserts that because he cannot work the required hours, it affects his chance of promotion.

The Complainant said that when he rings in sick, the Respondent takes the days out of his annual leave.

In summary, the Complainant said that he has been treated unfairly by the Respondent due to having joint custody of his daughter and being responsible for her fulltime care. His inability to work the required hours affects his chance of promotion. The conflict between his work and his family status causes him a lot of stress.

Cross-examination of the Complainant by Karl Hutchinson on behalf of the Respondent

The Complainant confirmed that he was awarded full custody of his daughter in 2020. He asserts that he advised the Respondent of his family status at that time.

The Complainant confirmed that he never advised the Respondent of any unavailability except for when he informed them on 7 March 2024 that he could not work every fourth weekend.

The Complainant said that he felt that the agreement of 7 March 2024 which he reached with the Respondent was a trial run. He was going to try it out to see if it worked for him.

The Complainant said that on some Sundays when his daughter was with her mother, he got her back at 2pm. He doesn’t always know when he will get her back.

The Complainant confirmed that the only grievance he ever raised was in relation to his pay.

The Complainant confirmed that the Respondent accommodated him in picking up his daughter from school during work hours.

The Complainant said that he could not do the hours that other employees do. The Complainant said that he never gets a weekend off because he cannot work on Tuesdays.

Re-examination

The Complainant said that he was the only single parent working in the Respondent’s premises in Naas.

The Complainant said that he was not being given the same opportunities as other colleagues as a result of not being able to work on Sundays. He says that he has been overlooked for promotion even though he carries out the same duties as his colleagues.

The Complainant said that he does not have set times and hours when he will get his daughter.

The Complainant says that he is not being difficult – he has obligation and responsibilities outside of work. Because of this, he has asked the Respondent not to roster him for Sundays.

Conclusion

The Complainant submits that it is very clear that he brought the change in his family status to the attention of the Respondent and that it only became an issue in March 2024.

The Complainant has been employed by the Respondent for over six years. He is a genuine, earnest and sincere employee whose difficulties with his employer arose as a result of miscommunication.

The Complainant asserts that no employee should have to resort to the WRC and that the Respondent did not make any effort to try to remedy the situation.

Background

The Respondent is a retailer of home appliances. It owns and operates 11 retail stores and currently employs 240 people, very many of whom are parents. The Respondent’s stores are open 7 days a week.

Due to the nature of its business, the Respondent has a requirement for weekend work as a large amount of the Respondent's business is done at the weekends. As a result, the Respondent operates a roster/rota system to ensure that there are sufficient employees in each department every day.

The Complainant commenced part-time employment with the Respondent in March 2018, working in the warehouse at its Naas store. The Complainant became a full-time employee with the Respondent in September 2018. A full-time position requires that an employee work 10,530 minutes per month (equivalent to 40.5 hours per week). Paragraph 3 of Complainant’s Terms and Conditions of Employment states as follows:

 "All employees will be required to work Sundays as and when their roster requires"

The Complainant alleges he was told by the Respondent that he would have Sundays and public holidays off. The Respondent denies that the Complainant was told this. A copy of the Complainant's time and attendance record from March 2018, which was opened at the hearing, shows that the Complainant worked a rotation of Sundays and public holidays from the commencement of his employment.

In July 2023, the Respondent's Operation Team communicated issues around employee time and attendance and rosters to the Management Team. A considerable number of employees across the company were not fulfilling their roster obligations, specifically arriving late, leaving early, not presenting for rostered shifts and having uncertified absences. This resulted in undue pressure on colleagues and on the Respondent's resources.

The Interim MD sent a memorandum to all staff on 28 September 2023 in relation to the Respondent's timekeeping policy. This was followed by a company-wide review, which led to the Respondent having meetings with all staff whose hours worked did not meet their rostered obligations. This is an ongoing process. The Complainant was one of these employees.

The Management Team met with the Complainant to discuss his time and attendance and roster on 7 March 2024, as his attendance and hours worked were falling far short of his contractual obligations of an average of 40.5 hours per week. As of the date of the meeting, the Complainant had worked an average of 29.7 hours per week in 2024. He had worked a total of 30 days year to date. Of the 30 days worked, he left early on six occasions. In 2023 the Complainant worked an average of 32.7 hours per week. He had two no-shows and 18 sick days, of which 10 were covered by a sick certificate.

The Respondent currently employs 5 people in the warehouse at the Naas store (2 part-time and 3 full-time, including the Complainant). For health and safety and operational reasons, the Respondent has a requirement for a minimum of 3 employees to work in the warehouse every day. This includes Sundays and public holidays. All current warehouse staff work Sunday rotas, save for the Complainant, who refuses to do so.

At the meeting on 7 March 2024, it was agreed by both the Complainant and the Respondent that going forward, the Complainant would work a full day Monday, off Tuesday, full days Wednesday to Saturday and a rotation of Sundays.

The Complainant states that his family status changed in October 2020 when he was granted joint custody with day-to-day care of his daughter. It is unclear to the Respondent as to the family status of the Complainant, and the Complainant is put on full proof of same.

At the meeting on 7 March 2024, the Complainant advised the Respondent of personal circumstances that necessitate him taking a Friday, Saturday and Sunday off once a month.

Following on from the meeting on 7 March 2024, the Complainant worked on Sunday 10 March 2024. The Complainant failed to present for subsequent rostered Sunday shifts as follows: Sunday 5 May 2024; Sunday 26 May 2024; Sunday 16 June 2024; Sunday 7 July 2024; and Sunday 25 August 2024.

The Complainant did not provide any reason for his non-attendance, except for Sunday 26 May 2024. When the Respondent queried the Complainant about this, he referred the Respondent to his solicitor.

The Respondent is not aware of any family circumstances which prevent the Complainant from working a rotation of Sundays in accordance with his contract and as agreed at the meeting on 7 March 2024. On the Complainant's own admission, his family status requires that he take a Friday, Saturday and Sunday off once a month, and the Respondent has facilitated (and can continue to facilitate) this requirement, which can be accommodated by management at store level. Rosters are scheduled monthly in advance and shared with employees, and the roster can be adjusted to facilitate this requirement. The Respondent puts the Complainant on full proof that it is, in fact, his family status, as alleged, that prevents him from working a rotation of Sundays as agreed on 7 March 2024.

The Complainant alleges that the Respondent has not assisted or indeed catered for the Complainant's change in family status. The Respondent submits that this is untrue. The Respondent has at all times sought to accommodate the Complainant in relation to his working hours and continues to do so. The Respondent would specifically reference how the Complainant has been accommodated in relation to previous requests for changes in his working days. Anytime the Complainant approached his manager looking to have his working days changed, every effort was made to accommodate him.

The Respondent has also continuously accommodated the Complainant to enable him to collect his daughter. In August 2022, the Complainant approached his manager and said he needed to consolidate his breaks and lunch hours on certain days to facilitate him collecting his daughter from school. His manager accommodated this request. Most Mondays and Wednesdays and certain Thursdays, the Complainant takes an extended lunch break to do the school run. The time the Complainant leaves and the duration of his absence varies.

The Complainant states that he was concerned about manual handling courses and that as a result of those concerns, he believes a change of his working hours came about. The Respondent denies this allegation and states that the reason for any changes to the Complainant's working hours is as set out above.

The Complainant states that other employees have fixed hours and are aware of their working week in set periods. The Complainant states that he has not been afforded such a term and, therefore, he has been directly/indirectly discriminated against on the grounds of family status.

This claim is denied. It is clear from the Complainant's time and attendance record that he has regular working days. As stated above, the Respondent has certain operational requirements, and this requires rostering. Most in-store employees are required to work a Sunday roster. These rosters are subject to change from time-to-time depending on the operational needs of the Respondent, but all rosters are agreed monthly at store level. The onus is on the employee to advise their local manager (or HR) of any conflicts or difficulties with their roster. The Respondent works to accommodate employees where it is possible to do so.

The Complainant states that if his daughter is unwell and he is required to bring her for medical attention, absent confirmation from the medical practitioner confirming the Complainant's attendance, he is penalised by losing a day's holiday. The Respondent is not aware of any instance in which the Complainant was required to bring his daughter for medical attention and provided the required absent confirmation, and therefore, cannot comment specifically on this, save to say that any issues in relation to sick leave or absence resulting from a family need for medical attention, are managed in accordance with the Respondent's Sick Leave Policy, Medical Care Policy and other such policies. The Complainant may also be eligible to avail of other statutory leave entitlements such as Parents Leave; Parental Leave; or Force Majeure Leave. However, the Respondent has no record of any such requests being made by the Complainant.

In relation to days when the Complainant calls in sick, such days are dealt with in accordance with the Respondent's Sick Leave Policy which covers the requirements in relation to any employee who contacts the Respondent reporting their absence. In summary, the Respondent defines sick leave as "a day on which an employee would ordinarily work but is incapable of doing so due to illness or injury where that employee provides a medical certificate from a GP certifying them asunable to work". The policy further states "Until a medical certificate has been provided, absence will be allocated as an annual leave day. On receipt of a medical certificate, this leave day can then be reviewed". Where an employee fails to comply with this policy, or the Respondent is not advised of an absence by an employee, any day of absence is treated as an annual leave day.

Legal Context

Section 85A of the Employment Equality Act requires that the Complainant must first establish facts from which discrimination may be inferred. Such facts must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which any inference of discrimination can be drawn. Section 85A places the burden of establishing primary facts fairly and squarely on the Complainant, and the language of this provision admits no exceptions to that evidential rule.

The Respondent submits that the comparators named by the Complainant work on Sundays.

Direct evidence of Ms Sinéad McKenna, the Interim MD

Ms McKenna said that the Respondent’s employees are required to work a six-day week, and that Sundays are one of its busiest days.

Ms McKenna said that the Respondent does not ask employees about their children but would expect staff to go to management if they had any issues.

Ms McKenna said that the first time the Respondent was aware of the Complainant’s family status was at the meeting on 7 March 2024. She said that the Respondent was never made aware that the Complainant could not work on Sundays.

Ms McKenna confirmed that the Respondent has had no vacancy at manager level in its Naas premises.

Cross-examination of Ms McKenna by Mr Kennelly on behalf of the Complainant

Ms McKenna confirmed that there are no part-time positions available in its Nass premises.

Ms McKenna said that the Respondent was engaged in an ongoing process as some staff across all stores were delinquent in their hours.

Ms McKenna asked why the Complainant did not raise a grievance about the issues arising from his family status. She did not understand why the Complainant just ignored his roster and did not turn up for work.

Conclusion

The Respondent asserts that the Complainant was not discriminated against on the basis of his family status.

The Respondent asserts that at the meeting on 7 March 2024, the parties reached a mutual agreement. It was mutually agreed that the Complainant would work one Sunday in three. At no point did the Complainant advise the Respondent that he would not be able to work the agreed roster.

The Respondent submits that the Complainant was rostered for work on Sunday 10 March 2024 and that he attended for work on that day. He was not rostered for the following week despite his claims to the contrary. The Complainant did not attend for any of the subsequent Sundays on which he was rostered. He only provided an excuse for his non-attendance on Sunday 26 May 2024. Apart from that, the Complainant failed to provide any communication to HR.

The Respondent submits that the Complainant did not raise a grievance about his difficulties in attending for work on Sundays.

Family Status

The first matter for me to decide is if the Complainant comes with the scope of the Employment Equality Act 1998, as amended (the “Act”) due to his family status.

Section 6(2)(c) of the Acts defines the discriminatory ground where one has family status and the other does not (in this Act referred to as “the family status ground”).

Family status is defined under section 2 of the Employment Equality Act, 1998 as follows:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;”

From the evidence before me, it is clear to me that it is not in dispute between the parties that the Complainant is a father and is, therefore, a person who falls within the protections of section 6(2)(c) of the Act.

Burden of Proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a presumption of discrimination is established and the burden of proof shifts to the Respondent.

In the case of Melbury Developments and Valpeters (EDA 917)the Labour Court stated as follows:

"Section 85A of the Act 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. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The Labour Court in the case of Southern Health Board v. Dr Teresa Mitchell (DEE 011)considered the extent of the evidential burden which a Complainant must discharge before a presumption of discrimination on grounds of gender can be made out. The Labour Court stated that the Complainant 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 was no infringement of the principle of equal treatment.”

In Graham Anthony and Co Ltd v Mary Margretts EDA 038, the Labour Court remarked:

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

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination on the family status ground has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

I note from the Complainant’s evidence that he contends that his is unable to work on Sundays and public holidays because he is a parent who has to care for his daughter who lives with him and for whom his has been granted joint custody.

I have been provided with a copy of a letter from the Respondent to the Complainant dated 8 March 2024 which confirms the arrangements that were made between the parties regarding the Complainant’s roster. The letter states as follows:

“Thank you for attending a meeting with … on Thursday 7th January 2024 in … The transcript of this meeting will be sent to you in due course.

At this meeting, we discussed amongst other issues:

·       Your Timekeeping

·       Your Attendance

·       Your hours worked per week

·       Following instructions

We confirmed that your roster going forward is a full day Monday, off Tuesday, full days Wednesday to Saturday and a rotation of Sundays.

We acknowledge that you confirmed that you will strive to fulfil your roster going forward.

You informed the meeting of personal circumstances that necessitate you taking a Friday, Saturdayand Sunday off once a month …

You also mentioned that these circumstances may change, should this be the case please contact head office.”

For the evidence put before me, it appears to me that the Respondent facilitated the Complainant’s request not to be rostered for one weekend each month due to his family status. The Complainant did not provide any evidence to show that he had informed the Respondent that he could not work any other Sundays due to his family status. In fact, the contents of the Respondent’s correspondence of 8 March 2024, which was not disputed by the Complainant, suggests that he agreed to work a rotation of Sundays. It was only after agreement was reached between the parties, that he decided to treat the arrangement as a trial and, without informing the Respondent, did not turn up for work on Sundays for which he was rostered. When the Respondent asked for an explanation for his no-shows, the Complainant referred the Respondent to his solicitor.

The Complainant also claimed that he was discriminated against by Respondent when he was unable to attend work if his daughter was sick. If he did not provide medical certification supporting his absence, his absence was noted as annual leave. The Complainant has not provided any submission or evidence to support this element of his complaint.

Equality law is based on comparison – how one person is treated by comparison to another who does not possess the relevant characteristic which in this case is the family status of parent. It is therefore necessary to support 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.

The Complainant nominated two comparators J and E who, he claimed, have a different family status to him and, unlike him, are not required to work on Sundays and have regular rosters.

At hearing, the Respondent said that both comparators are required to work on a Sunday when rostered. The Respondent also said that the Complainant had a regular roster and provided documentation in support of its position. The Complainant did not dispute the Respondent’s assertions.

Having carefully considered the matters raised by the Complainant, I find that the Complainant has not established primary facts to support a claim of discrimination on the grounds of his family status. Therefore, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment in this regard.

Indirect discrimination

Indirect discrimination occurs in the situation where the policies adopted by an employer which apply to everyone in its employment result in certain people being put at a disadvantage due to a protected characteristic. The Complainant asserts that he was subjected to indirect discrimination by the Respondent due to his family status of parent.

The Complainant has not provided any submission or evidence in support of this element of his complaint.

Accordingly, I find that the Complainant has not established primary facts to support a claim of indirect discrimination on the grounds of his family status. Therefore, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment in this regard.

Vocational training

The Complainant’s representative was afforded an opportunity at the hearing to clarify the legislative provision under which each element of the claim was referred. The Complainant’s representative confirmed that the Complainant’s complaints in relation to the certification of his forklift training and the manual handling training provided to him have been referred under section 12 of the Act.

The issue that I must address, therefore, is whether the Complainant was discriminated against due to his family status within the meaning of section 12 of the Act, cited below, which prohibits discrimination in the provision of vocational training and provides a definition of vocational training for the purpose of the Act.

12. Vocational training

(1) Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise)—

(a) in the terms on which any such course or related facility is offered,

(b) by refusing or omitting to afford access to any such course or facility, […]

(c) in the manner in which any such course or facility is [provided, or]

(d) by publishing or displaying, or causing to be published or displayed, an advertisement in contravention of section 10(1) in respect of any such course offered.

(2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity …

I note that the training provided to the Complainant was very general in nature and would be provided in any similar workplace. In fact, the Respondent provided evidence that it felt that the Complainant did not require training in manual handling as he had already received such training in a previous employment.

In Commissioner of the Garda Síochána v Singh Oberoi [2014] E.L.R. 17. it was held that:

‘The correct reading section 12 two of the Employment Equality Act requires that for vocational training to be within the meaning of that section, such training must be considered as being exclusively concerned with training for such an occupational activity.’

In Oberoi, Feeney J. emphasised that the requirement contained in subs. (2) that, for the vocational training of a Garda Reserve to be covered by the section, such training must be “exclusively” concerned with training for the carrying on of an “occupational activity”.

Also, in Kelly v UCD DEC-S2005-006 it was held that a master’s in social science degree course was outside the definition of vocational training even though in that case the degree involved 50% academic work 50% practical work. It was held that the degree ‘was not exclusively concerned with perfecting the knowledge or technical capacity to carry out an occupational activity’.

The Complainant did not provide any evidence to support his contention that the training provided to him by the Respondent came within the ambit of section 12 of the Act.

In my view, the training provided to the Complainant does not meet the definition of vocational training within section 12 of the Act as it does not provide the ‘knowledge or technical capacity for the carrying on of an occupational activity’ and is not ‘exclusively concerned with training for such activity’. The training provided to the Complainant is a very generic, general type of training at a basic skills level which is not exclusively concerned with the training for a particular occupation.

Furthermore, the Complainant’s issues with his training appear to relate to the fact that (i) he did not receive written certification when he passed his forklift driving training and (ii) he alleges that the manual handling training provided to him was inadequate. The Complainant has not provided any submission or evidence to show that these alleged shortcomings represent an act of discrimination based on his family status as a parent.

I find, therefore, that the Complainant’s reliance on section 12 of the Act is misplaced and I find that the Complainant has not established primary facts to support a claim of discrimination in the provision of vocational training on the grounds of his family status. Accordingly, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment in this regard.

Section 34

The Complainant submitted that he relies on section 34 of the Act, the relevant part of which is cited below, in support of his claim of discrimination.

34.Savings and exceptions related to the family, age or disability

(1) In relation to the discriminatory grounds specified in paragraphs (a) to (h) of section 28(1), nothing in this Part or Part II shall make it unlawful for an employer to provide—

(a) a benefit to an employee in respect of events related to members of the employee's family or any description of those members,

(b) a benefit to or in respect of a person as a member of an employee's family,

(c) a benefit to an employee on or by reference to an event occasioning a change in the [civil] status of the employee, or

(d) to an employee who has family status a benefit intended directly to provide or assist in the provision, during working hours, of care for a person for whom the employee has responsibility as mentioned in paragraphs (a) and (b) of the definition of “family status” in section 2(1).

(2) In subsection (1) “employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to an employee include—

(a) a person seeking or using any service provided by the employment agency,

(b) a person participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

(c) a person who is a member of the regulatory body ...

Section 34 provides certain exemptions to an employer against whom a complaint of discrimination has been made. Section 5-134 of the textbook Employment Equality Law 2nd Ed. 2022, Bolger, Bruton and Kimber, provides the following definition of these exemptions:

“There is a provision within the Acts that permits positive treatment in respect of the granting of benefits to employees intended to provide or assist in the provision, during working hours, of care for a person for whom the employee has responsibility. Effectively this allows for employers to provide for crèche facilities for carers or time off and flexible working hours for employees with children. There are no specific exemptions relating to the family status ground …”

The Complainant has not provided any submission or evidence to establish the relevance of section 34 to his complaint.

Accordingly, I find that this element of the Complainant’s complaint is not well founded.

Having considered the submissions of both parties and all the evidence put before me at the adjudication hearing, I decide that:

·       The Complainant has failed to establish a presumption of direct discrimination on the grounds of family status.

·       The Complainant has failed to establish a presumption of indirect discrimination on the grounds of family status.

·       The Complainant has failed to establish a presumption of discrimination by the Respondent in the provision of vocational education contrary to section 12 of the Act on the grounds of family status.

·       The Complainant has failed to establish the relevance of section 34 of the Act in the context of his complaint.

Accordingly, I decide that the complaint is not well founded.

The Complainant submits that when his employment changed from part-time to fulltime, he was not notified in writing of a change to his terms of employment.

The Respondent submitted a copy of the written statement which it provided to the Complainant when his employment classification was changed from part-time to fulltime with effect from 10 September 2018. This document was signed by the Complainant.

The first matter I must decide is if I have jurisdiction to hear this complaint.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The time limits for submitting claims to the Workplace Relations Commission are set out in section 41(6) of the Workplace Relations Act 2015, as amended, which provides that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

I note that the Complainant’s employment status changed from part-time to fulltime on 10 September 2018. Therefore, under section 41(6) of the Workplace Relations Act 2015, as amended, the initiating complaint referral form must be submitted to the WRC by 9 March 2019.  In this case, the initiating complaint referral form was received by the WRC on 6 August 2024.

I find, therefore, that this complaint has been lodged outside the time limits prescribed by section 41(6) of the Workplace Relations Act 2015. 

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Complainant did not seek an extension of the time limit for the referral of this complainant. Even if he had, and an extension had been granted, his complainant would not have been lodged within the time limits imposed by section 41 of the Workplace Relations Act 2015, as amended.

Accordingly, I find that I do not have the jurisdiction to hear this complaint.

I declare that this complaint is not well founded.

The Complainant submits that he was not provided with training free of cost in contravention of the Terms of Employment (Information) Act 1994, as amended (the “Act”) or that that training was not counted as working time and should have taken place during working hours.

The Respondent submits that all training referenced by the Complainant has been provided to the Complainant at the Respondent's expense. Further, all such training has been provided to the Complainant during the working day as follows:

·       3-dayforklift training course, which concluded on 22 August 2018

o   20-08-2018 – The Complainant clocked in at 9:30 and clocked out at 16:00

o   21-08-2018 – The Complainant clocked in at 8.45 and clocked out at 15:50

o   22-08-2018 – The Complainant clocked in at 9:47 and clocked out at 19:01

The Respondent submits that the Complainant was paid for his training time.

·       7.5-hour forklift refresher training course on 6 April 2022

o   06-04-2022 – The Complainant clocked in at 08:15 and clocked out at 18:00

The Respondent submits that the Complainant was paid for his training time.

·       Manual handling on 8 February 2024

The Respondent submits that this training occurred during work time in PowerCity Naas.

Section 6G of the Terms of Employment (Information) Act 1994, as amended (the “Act”) makes the following provision in relation to mandatory training:

“Mandatory training

6G.— Where an employer is required by law or by a collective agreement to provide training to an employee to carry out the work for which he or she is employed, such training shall —

(a) be provided to the employee free of cost,

(b) count as working time, and

(c) where possible, take place during working hours.”

In response to the Complainant’s assertion that he was not provided with training free of cost and that the training did not take place during working hours, the Respondent provided a detailed breakdown of the training provided to the Complainant showing the dates on which training was provided and the clock-in record for the Complainant on those dates.

The Respondent has submitted that the Complainant received payment for all the training time and that the training was provided free of cost to the Complainant.

The Complainant did not contest the Respondent’s evidence.

I declare that this complaint is not well founded.

Failure to establish a presumption of discrimination. Out of time complaint under the Terms of Employment (Information) Act. Not well founded complaint under section 6G of the Terms of Employment (Information) Act.