Complainant

Respondent

Parties

Courtney  Carter

Tesco Ireland Limited

Representatives

  self

Niamh Ní Cheallaigh IBEC

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-00061232-002

19/01/2024

The Complainant commenced employment on the 23rd of October 2023 as a Customer Assistant. During her probationary period, she had several absences. Those absences were directly linked to the fact that she has a child who had a chronic illness, and she was required to attend with her child for hospital visits missing a shift and on one occasion the child was hospitalised arising from that illness that gave rise to several days’ absence. The Complainant produced sick certificates that corroborated that account.  She was absent on the 6th of November 2023; the 24th of November 2023 and from the 4th of December 2023 to the 17th of December 2023. During the 13-week period of employment the Respondent operates a strict policy concerning absenteeism. Although the Complainant performed well in her role, she failed the attendance requirement. This meant that she did not pass her probationary period. The same rule was applied to her as to other employees. The Complainant alleges that this practice is discriminatory.

The absence that gave rise ultimately to her failing her probationary review was directly linked to child’s hospitalisation and her dependent requiring her care. The policy failed to have regard to her family status when classifying her absence.

The Company fairly and consistently applied the rule to all employees, and it cannot be shown that direct discrimination has taken place. Similarly, no indirect discrimination has occurred as all employees irrespective of a ground detailed in the Act are treated equally.

The Company applies the same rule to all employees so on that evidence the Respondent argues it cannot be maintained that there was direct discrimination.

A careful review of the probationary records indicate that her absence is being treated as sickness. However, the Complainant isn’t sick rather her child requires medical attention and at a point was admitted to hospital for treatment. On balance the facts show that the dependent’s needs where out of the ordinary. The child was sick, in hospital and ultimately it was this last absence that gave rise to the decision to end the contract.

The Respondent argues that there is no comparator identified where it can be shown that a prima facie case is made out of less favourable treatment on the ground of Family Status. All past employees who failed to meet the required attendance during the relevant 13-week period did not pass their probation. This is the evidence given by the Respondent’s managers at the hearing.

The question then arises was there indirect discrimination arising from the fact that this practice was in fact discriminatory, while appearing neutral in fact weighed more on this Complainant based on her family status when compared to an employee who had no family status.

The fact is this Complainant’s absence was being treated as if she was sick. She wasn’t sick, her child was sick. The absence particularly the last absence when the child was hospitalised gave rise to an overall absence percentage that was deemed to be too high. This in turn gave rise to her failing to meet the probationary attendance requirement. The policy does provide for an extension. The employee in fact finished out her shift during the Christmas period even though her absence had failed the standard set for attendance. She was assessed as a good work colleague other than the absence and in fact the Respondent stated they would reemploy her. 

In logic it must be concluded this Complainant when compared to a work colleague who has no family status, arising from the sickness of her dependent, a sick child, the mother is less likely to meet the attendance requirement set during probation when sickness absence and absence relating to a dependent’s sickness are classed exactly in the same way. This must be so as in her own right she can be sick, and her dependent can be sick requiring special leave, yet the leave in this case for a seriously ill child is classed as if she was sick.

A policy that doesn’t differentiate between these two different types of absence, an employees’ absence because they are unfit to work or choose not to come into work, and the need of a mother to look after a sick child are very different. Treating both absences as the same must place the Complainant at a disadvantage. The Respondent defines indirect discrimination as occurring when a person having regard to the ground being relied upon puts persons based on their family status at a particular disadvantage when compared to other employees.

I note the following Labour Court decision cited by Purdy Equality Law in the Workplace 1st Ed Bloomsbury 2015:

[12.05]

The case of NBK Designs and Inoue, 5 is an example of a case where the grounds of marital status, family status and gender were pleaded. This case was heard before the Labour Court, which decided that the complainant had been unfairly dismissed, pursuant to s 77 of the 1998 Act. The court held that the complainant had been indirectly discriminated against on the gender ground and by reference to her family status and marital status, and she was awarded €10,000 in compensation.

The complainant was a secretary with a firm of architects. She was employed on a part-time basis and she job-shared with another secretary. The directors of the firm decided that the job-sharing arrangement did not suit the demands of the firm and required the complainant to work on a full-time basis. Due to the complainant’s family commitments, she was not able to take up the position on a full-time basis and her employers were aware of this. When the complainant advised her employers that she would not be able to take up the full-time position, she was given notice of her dismissal. The complainant contended that the requirement to work full-time was a condition of employment that disadvantaged significantly more women than men, and significantly more people who came within the grounds of marital status and family status than people of a different marital status and family status. Accordingly, it was contended that this amounted to indirect discrimination on the grounds of gender, family status and marital status.

The court upheld the complainant’s argument and found that the complainant had been indirectly discriminated against, and that there was no objective justification that corresponded to a real need on the part of the company to require the complainant to work on a full-time basis.

No objective reasons have been provided by the Employer for this practice. I have determined that indirect discrimination has occurred relating to an inflexible policy that discriminated against this Complainant based on her Family Status.

It is important that an Employer assesses attendance as part of the probationary review. The issue here is where for exceptional reasons, and most people would accept that a child needing care when in hospital is an exceptional reason, should there be flexibility regarding the probationary review based on the worker’s family status as a mother? A company does not have to meet what others might see as reasonable.  The law requires that I detail where discrimination has occurred and that is detailed in this decision. I have determined that indirect discrimination has taken place based on the Complainant’s Family Status.  A response might have been to extend the probationary period for another 13 weeks and then review attendance based on the exceptional circumstances in this case.

The Act provides for the following redress:

82.— (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission] under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified;

(f) an order for re-instatement or re-engagement, with or without an order for compensation.

(2)

(3) The types of redress for which the Circuit Court may provide on a reference under section 77(3) are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 6 years before the date of the referral;

(b) an order for equal remuneration from the date of the referral;

(c) the orders referred to in paragraphs (c) to (f)] of subsection (1);

and no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation or remuneration which may be ordered by the Circuit Court by virtue of this subsection.

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission] by way of compensation under subsection (1)(c) or (1)(f) shall be

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000.

I order that the Complainant be reengaged within four weeks of the date of this decision and that her probationary period be extended for a further 13-week period, and I order the Respondent to pay €2500 in compensation for the effects of discrimination and the very significant distress caused to her arising from the implementation of a rigid company policy that disregarded her family status.

I determine that the Complainant was discriminated against on the ground of family status. I order that the Complainant be reengaged within four weeks of the date of this decision and that her probationary period be extended for a further 13-week period, and I order the Respondent to pay €2500 in compensation for the effects of discrimination and the very significant distress caused to her arising from the implementation of a rigid company policy that disregarded her family status.

Family Status; Sick Child.