Complainant

Respondent

Parties

Jonathan  Cahill

Cork County Council

Representatives

  Self-Represented

Niall O'Keeffe HR Department, Cork County Council

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-00056803-001

23/05/2023

The Complainant is employed as an executive engineer in the Traffic and Transportation Section with the Respondent and works a standard 35-hour week on a salary of €76,038 p.a. The Complainant is a divorced father of one child.  The Respondent implemented a “Blended Working Policy” after the Covid-19 pandemic . This is a national  Civil Service/Local Government Collective Agreement policy, whereby a staff member can apply for home working for some of their working week. The Complainant submits that the operation of the policy by the Council has led to  direct and indirect discrimination against him on the grounds of family and civil status. He also submits that the Policy is a collective agreement with discriminatory provisions.

The Respondent denies any claim of discrimination on the grounds of family or civil status. The Respondent  submits that the policy is operated without any reference to civil or family status. The Respondent asserts that the  operation of the Policy  never envisaged, nor allows, for permanent set  days off every week but instead flexible days  are allowed in line with operational exigencies.    

The Complainant gave evidence under affirmation. The Complainant is divorced and the parent of one child. A  Circuit Court order from 2020  allows him access to his child on weekends on a Friday to Monday basis. The Complainant stated he was allowed to take Mondays and Fridays off every week prior to the change in policy on 4  May 2023 when an email was received from his executive engineer, Mr Ciaran O’Callaghan, advising that the same  set days off every week could  no longer be facilitated. He sought information on this change and the reasons for it, but none were forthcoming. This change affected him deeply. He believes the change  is discriminatory on family and civil status grounds because it greatly  impacts  his ability to look after his daughter from Friday to Monday. The Complainant is now availing of parental leave whereby he has a half-day on Friday and Monday.

Mr Niall O’Keeffe, Senior Executive Officer, gave evidence under affirmation. He said that the Policy was implemented in March 2022 but that the Complainant only availed of seven  Fridays and this does not suggest that  a permanent arrangement was in place for the Complainant. He said the Policy had not changed but that the email of 4 May 2023 was a  reiteration of the terms of the Policy and was sent, not just to the Complainant, but to all the team.  He said that the Policy is implemented regardless of civil or family status throughout the Council,  which has circa. 2,600 employees, barring those in outside work roles. He said that the Policy is not geared towards the needs of  carers or those with other  family responsibilities but instead there was a raft of other policies in place including Parental Leave, Parents Leave, Work-Sharing, Shorter Working Year, Bereavement Leave Carer’s Leave and Career Breaks.

Mr Ciaran O’Callaghan, Senior Executive Engineer, gave evidence under affirmation. He said he sent out the email of 5 May 2023 to members of his team to ensure that no pattern should be established when availing of the Policy and that it was about ensuring that flexibility is maintained for operational needs. The Policy is operated whereby one can only apply for days at home on the  following week and that  there is  no  pattern of days  set in advance. He said that the mail was sent out without any intention of discriminating against colleagues. Whilst he was aware that the Complainant was divorced, he was not aware of the court order confining  the Complainant to access to his child at weekends only.    

The Complainant alleges that he  was discriminated against, both directly and indirectly, by the Respondent on the grounds of family status and civil status in the operation of the  “Blended Working” policy.  He particularly refers to the rejection by  his line manager on 4/5 May 2023, of  his application to work certain days on  the following week  from home. The Complainant also contends that “Blended Working” is a collective agreement which has discriminatory provisions, contrary to the Acts.

Applicable Law:

Section 6(2) of the Employment Equality Acts 1998-205 (“the Acts”) provides in its relevant parts:-

 As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…(b) that they are of different [civil] status (in this Act referred to as “the civil status ground”,…

(“civil status” means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved)

…(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

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,…

The Act outlines various sections that define indirect discrimination, while the fundamental concept remains consistent. Indirect discrimination occurs when a seemingly impartial provision, criterion, or practice related to employment places individuals with protected characteristics at a disadvantage in terms of employment opportunities.

Section 9 of the Acts refers to collective agreements :

Provisions in certain agreements and orders

(1) In a case where—

(a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and

(b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person's contract of employment,

then, subject to subsection (4), that provision shall be null and void.

(2) If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination in relation to any of the matters in paragraphs (a) to (e) of section 8(1) then, subject to subsection (4), that provision shall be null and void.

(3) This section applies to the following agreements and orders, whether made before or after the coming into operation of this section:

(a) collective agreements;

(b) employment regulation orders, within the meaning of Part IV of the Industrial Relations Act 1946 [as amended by the Industrial Relations (Amendment) Act 2012]; and

(c) registered employment agreements, within the meaning of [Chapter 2 of Part 2 of the Industrial Relations (Amendment) Act 2015].

(4) In the case of a provision which—

(a) is contained in an agreement or order made before the coming into operation of this section, and

(b) is discriminatory on a ground other than the gender ground,

subsection (1) or, as the case may be, subsection (2) shall not apply until the first anniversary of the date on which this section comes into operation; and, accordingly, until that date, the equal remuneration term or equality clause in a person's contract of employment shall not override any such provision of an agreement or order which relates to that person.

This section in this case  could render “Blended Working” null and void if it is shown that it discriminates against employees on the grounds of civil status and/or family status.

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”.

Direct Discrimination:

The Complainant has established he is of divorced status and a parent of a child under eighteen. He must now establish primary facts to show that the principle of equal treatment has not been applied to him, contrary to the Acts. The Complainant submitted evidence that the terms of a  court order restrict him to access to his daughter to alternative weekend days,  therefore it would suit him to have Monday to Friday home working , which he believed he had enjoyed to some extent before 4 May 2023. However, the Respondent gave convincing evidence that the Complainant had only availed of seven Fridays in the period since he first availed of   “Blended Working” in August 2022. Evidence was given that the Respondent  had approximately 2,600 employees, some presumably with the  same status as the Complainant, and others of different status, but significantly a statement of civil or family status is never required by the Respondent. I note that the Complainant submitted  no comparators to show that he was subject to  less favourable treatment. His line-manager admitted that though he knew that the Complainant was divorced, and a parent,  he was not aware of the terms of the court order outlining the access conditions. I note also that the Respondent has nine family-friendly policies which can be availed of by employees to accommodate their specific needs regarding responsibilities when it comes to civil or family status. The Complainant has since availed of the parental-leave facility on Monday and Friday half-days.

I am satisfied that the specific requirements of the position of the Complainant  in the role of Executive Engineer was one which did not allow a specific pattern of days off. The email of 4 May 2023 was sent  to all the team and re-iterated, rather than changed the terms of how the “Blended Working” policy operated. I have sympathy for the Complainant’s plight at the material time, but he is now availing of a family-friendly policy that was always open to him to accommodate  the child  access arrangements  imposed upon him by a court order.  The first requirement of the Complainant is that he   must establish facts from which it may be presumed that the principle of equal treatment has not been applied to him, according to the Labour Court in  Southern Health Board . The Complainant made assertions but ultimately produced no facts where he could establish less favourable treatment in comparison to those possessing a different family or civil status. Therefore,  I find he did not establish a prima facie case that he was  discriminated against in reference to his terms and conditions of employment on the  grounds of civil status and family status. 

Indirect Discrimination:

As well as establishing a provision, practice or criterion that puts members of a protected group at a disadvantage, a complainant must also establish that the disadvantage they suffer is a “particular” disadvantage. The Complainant established that a particular disadvantage to him, albeit not directly discriminatory in nature,  at a specific period in time i.e., the refusal of set days of home working on  Monday and Friday of  the following week, on 4 May 2023.  He  did not establish  the primary fact  that the refusal of a set two days at home in a week was of a particular disadvantage to those who have a similar civil or family status, where a comprehensive list of alternative family friendly policies were available. I did not expect the Complainant to produce a matrix of a figures to back up his assertion, but I cannot accept his bare  assumption that his particular needs in this case, as laid down by a court order,  were reflective of the general requirements of the protected group. Even if there was such evidence, I am satisfied that the Respondent objectively justified the implementation of a legitimate and proportionate post-Covid operational system,  which works in tandem with  a number  of family friendly policies.  I find that the Complainant did not establish primary facts to show that the protected group were at a disadvantage by the operation of the “Blended Working” policy.   

Collective Agreement Discrimination:

The Complainant made an assertion that he believed that the collective agreement that is known as “Blended Working” has a discriminatory provision or is otherwise discriminatory in its operation, so that it disadvantages those who have  a certain family or civil status. Referring to my findings above, the Complainant made this assertion without pointing out a specific provision of the collective agreement in question nor did he give evidence of a discriminatory implementation of the agreement. Nor can I establish, by general observation, that the policy contains terms that might be interpreted as being discriminatory. I find he has not made out a case that the collective agreement was contrary to section 9 of the Acts.  

I find that the Complainant did not establish a prima facie case that he was directly, or indirectly discriminated against on the grounds of family or civil status nor did he establish primary facts to show that the “Blended Working” policy operated by the Respondent was a collective agreement with discriminatory provisions.

Employment Equality Acts 1998-2015, Family Status, Civil Status, Direct Discrimination, Indirect Discrimination.