Complainant

Respondent

Parties

Gary Prendergast

Park West Utilities Management Limited

Representatives

Represented by a friend

 Represented by management

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-00053927-001

29/11/2022

Park West Utilities Management is part of the Harcourt company and it was established to manage the maintenance, landscaping and security of Park West, one of Ireland’s largest business and technology campuses.  Mr Prendergast is a general operative in the maintenance section and he commenced working for the company in March 2007.  His main job is to keep the campus in good order by collecting litter and leaves.  He is paid €585 per week.  He has been out sick since October 2022.  He claims that he suffered from stress arising from his sense that his manager was “spying” on him. He said that his manager accused him of not working fast enough and of slowing down.  He claims that he has been discriminated against on the grounds of his age.  

At the opening of the hearing, I explained to the complainant and to his representative that, in the first instance, the responsibility lies with him to set out the basic facts that could lead me, as the adjudicator, to assume that discrimination has taken place.  If these facts can be adequately set out, the burden of proving that discrimination has not occurred transfers to the employer.

From here on, I will refer to Mr Prendergast as “the complainant” and the Park West Utilities Management as “the respondent.”

On the form he submitted to the WRC on November 29th 2022, the complainant described four specific grounds on which he relies in his claim of discrimination:

1.       He claims that, for the four years until October 2022, the operations manager observed him from his car while he is doing his work.  He claims that this occurred about three times daily.  He said that he was compared to a colleague who became ill and wasn’t able to work normally and he said that the manager said, “the others are doing it twice as fast as you.”

2.       The complainant said that a colleague handed him a letter informing him that he was to attend the company doctor.  He said that the letter wasn’t in an envelope and that it was open to his colleague to read the letter.  On October 19th 2022, the complainant said that his manager was in the canteen when, in the presence of another employee he said, “By the way, you’re seeing that doctor on Friday.”  He claims that these instances show that the respondent breached his right to privacy.

3.       Around June 2022, the electric cart that the complainant used to collect litter broke down and was not repaired or replaced.  Since then, he said that he has had to use a hand-cart, which he pushes 15 kilometres a day, picking up leaves and rubbish.  He said that the operations manager commented that “we have noticed you slowing down.”

4.       On one occasion, the complainant said that he was in a tool storage room changing his wet clothes having been working in the rain when the operations manager came in and aggressively, accused him of hiding in the store room for 40 minutes.  He said that he was instructed to be in the manager’s office at 9.00am the following Monday.  The respondent’s witness confirmed that this occurred in March 2021.

On behalf of the complainant, his representative said that before he went out sick in October 2022, he was issued with a written warning.  He did not receive a formal invitation to a disciplinary meeting, he was not offered the right to be represented and there was no proper process leading to the warning.  The manager had observed the complainant slowing down while he was doing his work and he was instructed to attend an appointment with the company doctor.  When he was arranging the appointment, his representative said that the manager suggested to the complainant that “we might have to let you go.”

Evidence of the Complainant

The complainant said that he began to notice that the operations manager was watching him and this was causing him to feel stress.  Some time before he went sick in October 2022, he said that an appointment was made for him to be examined by the company doctor.  He was afraid that if the doctor found him to be unfit for work, he could be let go.  He wouldn’t even be made redundant.   He said that he was too stressed to go to the doctor and that his sister phoned the doctor instead and told him that he was too sick to attend the appointment.

Until the middle of 2022, the complainant used an electric cart to pick up leaves and litter.  When the cart broke down, it wasn’t fixed and the complainant said that he was expected to do the same job with a push-cart, which, he said, makes his job more difficult and tiring.

The complainant described the predicament of a former colleague who, a few years previously, had a problem with his balance.  This employee left his job two years ago.

Describing the incident that led to him getting a written warning, the complainant said that he had been working in the rain when he went to the maintenance store room to change out of his wet boots and clothes.  He locked the door when he was changing.  He said that the operations manager knocked on the door and finding the complainant inside, he instructed him to attend his office the following Monday at 9.00am.  He was given a written warning.

Concluding his evidence, the complainant said that he loved his job, but he can’t work there anymore.  He feels that the behaviour of the management is such that it is “tailored” to possibly getting him to leave. 

The operations manager gave evidence for the respondent.  Hr said that, while the complainant accuses him of “spying,” it is his job to check on staff and to check the campus.  He said that he patrols the campus every hour in the company van.

Referring to the incident in March 2021, when the complainant received a written warning for sitting in a store room for 40 minutes, the operations manager said that the complainant’s supervisor attended this meeting with him.  The complainant said that he was changing his clothes in the maintenance store room, although there are facilities for changing at the head office on the campus.

Referring to the complainant’s allegation that his right to confidentiality was breached when he was given a letter for the doctor by another employee, the operations manager said that the other employee was a supervisor and that the complainant would always let him know if he had a doctor’s appointment.  The operations manager said that he has no recollection of speaking to the complainant in the canteen about an appointment with the company doctor.

The operations manager said that, around June 2022, the complainant told him that he had to have a surgical procedure done on his eye.  He said that they discussed the possibility that the complainant might move to a different business park and reduce his working week to three days.  He said that a decision on this depended on the company doctor’s opinion regarding the complainant’s fitness for work.  He said that it took a few weeks to get an appointment with the company doctor.  When the appointment was made, the complainant didn’t attend.  Two weeks later, another appointment was arranged, but the complainant didn’t attend that appointment either.  He has submitted medical certs indicating that he is suffering from stress and anxiety.

The operations manager said that the agency contracted to maintain the electric cart no longer operates in Ireland and the entire cart would have to be sent back to the manufacturer in Germany to be repaired.  He said that the cost of this is not economic.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”). 

“…discrimination shall be taken to occur where –

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section (2)(f), the “the age ground” islisted as one of the nine discriminatory grounds.  The complainant’s case is that he was discriminated because of his age is based on the following:

1.       He feels that his manager treated him less favourably than others by observing him from the company van.  He claims that this occurred three times a day for four years.

2.       He claims that his manager suggested that he was slowing down and that others could work faster than him.

3.       He claims that his right to privacy was breached when he was handed a letter by a colleague informing him of an appointment with the company doctor.  He claims also that the operations manager mentioned this to him in the company canteen.

4.       An electric cart was not repaired or replaced when it broke down, with the result that he had to resort to using a hand cart.  He pushed the hand cart up to 15 kilometres a day picking up litter.

5.      In March 2021, he got a written warning for changing out of his wet clothes and sitting in a store room for 40 minutes.

Time Limit for Consideration of a Complaint of Discrimination

Section 77(5)(a) of the Employment Equality Act provides that a complaint of discrimination must be referred within six months from the date of the occurrence of the alleged act of discrimination.  As the written warning was issued in March 2021 and, as this complaint was submitted to the WRC on November 29th 2022, I have no jurisdiction to consider that grievance as evidence of discrimination.   

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (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.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, he was treated less favourably than a younger person.  The decision of the Labour Court in Arturs Valpeters v Melbury Developments, [2010] 21 ELR 64, sets out the onerous nature of this burden of proof:

“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.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Primary Facts

The complainant argues that he was “spied on” because he was slowing down and that the operations manager compared him to a colleague who left two years previously due to illness.  The operations manager said that he patrols the campus on an hourly basis to check on staff and the facilities and that the complainant was not treated any differently to any other employee with regard to this level of supervision.

There is some dispute regarding the remarks that the complainant alleges the operations manager made about him slowing down and not working fast enough.  Where the facts of this allegation lie are difficult to establish, and it is regrettable that the complainant provided no other witness to corroborate his claim in this regard. 

The operations manager’s evidence is that, before he went out sick in October 2022, he had a discussion with the complainant about surgery that he was due to have on his eye.  The manager said that he knew that the job was becoming too strenuous for the complainant and he offered him the option to move to a different site on a three-day week.  The site proposed was closer to the complainant’s home compared to the Park West site.  The complainant declined the offer.

Discrimination must be grounded on less favourable treatment or some disadvantage inflicted on a person because of their age.  There can be no argument that, from the perspective of the quality of working life, there is a significant advantage for a person with the job of picking up litter to use an electric cart rather than a hand cart.  For someone working on the largest business and technology campus in Ireland, piling litter into a hand cart and pushing it back to base must get more difficult as the load gets heavier during the working day.  For an employee of any age, the use of a manual hand cart is more physically demanding than an electric version, but for the complainant, who is a few years away from retirement, this was particularly laborious and physically demanding.  No evidence was presented by either side that a person younger than the complainant was required to do the same job with the same outdated equipment.

I accept the evidence of the respondent’s witness that it was economically not feasible to send the electric cart abroad for repair.  Having considered this matter however, it occurs to me that there must be alternative options available in the logistics, agriculture and facilities management business, where suitable battery powered or motorised carts are available for lease or hire.  It is my view that the failure of the respondent to provide a motorised cart like the one the complainant used before he was consigned to using the hand cart, caused a significant disadvantage to him specifically because of his age.  It is my view also that this treatment may have had the objective of encouraging him to leave his job.

Conclusion

I have reached a conclusion on this matter, not simply because of the failure of the respondent to provide the complainant with suitable modern equipment to do this job, but because, the modern equipment that was previously available to him was replaced by a manual hand cart.  It is my view that, by not giving any consideration to the effect that this would have on the complainant’s quality of life at work, it had the effect of discriminating against him on the ground of his age.  I find therefore that, on the primary facts, the complainant has established that he was discriminated against.  The respondent has failed to rebut the allegation and I find therefore, that the complainant’s claim is well founded.

I have concluded that the complainant was discriminated against on the ground of his age.  I decide therefore that, in accordance with section 79 of the Employment Equality Act, this complaint is well founded, and I direct the respondent to pay the complainant compensation of €15,000, equivalent to approximately six months’ wages.  In accordance with s.192A of the Taxes Consolidation Act 1997, this award is exempt from statutory deductions of PAYE, PRSI and USC.  

Discrimination, age