Complainant

Respondent

Anonymised Parties

A Manager

A Retail Store

Representatives

Setanta Landers Solicitor

Michael McGrath IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056360-001

27/04/2023

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

CA-00056360-002

27/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00056360-003

27/04/2023

The complainant lodged claims against the respondent under the Employment Equality Act, the Terms of Employment Information Act and the Industrial Relations Acts. The respondent disputes all claims.

The complainant commenced his employment with the respondent as a trainee manager in or around January 2001.  The complainant was furnished with a contract of employment.  The complainant has over 22 years of service with the respondent. The complainant was promoted on the following dates: complainant was promoted to Department Manager assigned to sales in January 2002, he was promoted to Senior Department Manager in January 2003.  In 2006, he commenced his role as EHS Manager/ Facilities Manager and moved to the storeroom.

The complainant has five children born on the following dates: 17 March 2001, 11 June 2003, 27 March 2011, 10 March 2013 and 6 October 2020.  The complainant’s wife is working on a full-time basis.  The complainant was primarily responsible for collecting the kids from school and taking them to them to activities in the evenings and on the weekends.  Prior to the complainant’s first child being born in 2001, he worked irregular shift patterns as a floor manager.   The company transferred the complainant to the Blanchardstown store in or around 2005 on the Sales Floor.   Prior to Christmas 2005 the complainant was moved into the stock room as the stock room manager and undertook these duties over a 15 year period.  The new store manager, Mr M came to Blanchardstown and to facilitate early deliveries asked the complainant to come in at 6am to 3pm Monday to Friday and one Sunday a month.  These shifts broadly have remained the complainant’s work schedule until January 2023. Mr M was the manager when the complainant had his first four children.  The complainant states that some minor amendments were made in around the last five years from 5:45am to 3:15pm when a new store manager Mr D came to the store. Mr D was aware that the complainant had five children as he was the manager when the complainant had taken his most recent paternal leave.  It was submitted that Mr D requested in late 2022 if the complainant could work late nights in addition to working Monday to Friday and Sunday. 

The complainant expressed his concerns in relation to this change as it would affect his work/life balance and severely impact his family life.  It was always understood by the complainant there was an implied agreement between the complainant and the respondent that his working hours would facilitate his family life.  By way of compromise, it was agreed that the complainant would work Friday nights going forward instead of a Sunday which was the complainant’s normal late night.

The complainant states that in or around September 2022, he became aware that the respondent would be undergoing a management restructure. The complainant states that he was informed by the company in late 2022 that his role within the storeroom would no longer exist and that the role would now be subsumed into the role of EHS In-Store Manager.  The complainant states that he was informed by Mr D that he would be returning to the sales floor on January 2023 and that the EHS Manager position would be filled by a subordinate colleague.  The complainant states that he would no longer hold the title of Senior Department Manager under the restructuring.  The complainant maintains that he was demoted and removed from his role without any regard for his years of service to the respondent. It was submitted that the organisation’s restructuring has been used to mask the complainant’s demotion and to rationalise his position into the wider management pool who are subjected to irregular rosters. 

The complainant states that he continued to protest and express his concerns on a weekly basis in relation to the adjustment to his working hours, but his concerns were ignored. There was no recognition for the complainant’s years of service or the implied terms in his contract of employment. The complainant states that he had given over 23 years of loyal service and no reasonable accommodation was even considered.  The complainant states that it has had a detrimental effect on his family life and has cost him thousands of euros in additional childcare costs. 

The complainant states that he raised a grievance with the respondent in or around 22 December 2022.  An investigator was appointed, Ms D (People and Culture Manager).  A grievance hearing was held in or around 5 January 2023 where the complainant expressed his concerns in relation to his treatment by his manager Mr D.  In particular, the complainant expressed that the change of shift did not suit him as he has responsibilities with his children and his personal life was being significantly impacted.  He further raised questions in relation to his removal from his storeroom position when the role had only been re-branded. The complainant questioned the reason for not being offered the re-branded role and was informed that it was offered to someone who had worked previously in a Deputy Manager position. The complainant asserts that this is captured in the notes of the meeting of the 5 January 2023. The complainant states that Ms D (People and Culture Manager) held an investigation meeting with Mr D on 14 January 2023.  Ms D furnished a letter with the subject ‘initial findings of the grievance raised by you’ dated 26 January 2023.  A final outcome issued on 23 February 2023. There was an acknowledgment in writing of the complainant’s years of service and the implied terms of his contract of employment; “You and Mr D [my emphasis} compromised and your late night was set for a Friday to accommodate your family life”.  

The complainant states that the outcome of the hearing had no regard for the impact the change of shift had on the complainant’s work/life balance. It was submitted that the outcome report failed to properly consider the complainant’s concerns expressed in his grievance raised.  The complainant states that the initial findings of the grievance were that the company was relying on the contractual terms and no facilitation was offered or would be offered.  The complainant states that an initial letter issued on 26 January 2023. It asked the complainant to make any representations by 2 February 2023 wherein all evidence would be reviewed and an outcome would issue. It was submitted that an appeal was offered within 7 days of the receipt of the letter, however when the complainant attempted to make representations in respect of an appeal, he was told he was out time. 

It is the complainant’s position that by virtue of his performance over a long period of time he has accrued an implied term in his contract that protects his hours. It was submitted that the interference with this contract in his express removal from his role, and by consequence and design, those hours, constitutes discrimination on the basis of family status.  It is the complainant’s position that this was done without any objective justification.  It was submitted that the case of O’ Donnell v HSE, DEC-E2006-023 identified the concept of indirect discrimination on the basis of family status and whether such discrimination could be objectively justified on the facts. The complainant states that a complaint of indirect discrimination on the grounds of marital status and family status was brought by a number of nurses who were required to work a roster of seven days in a row consecutively and 13 out of 16 days. It was submitted that the Equality Officer found that the roster indirectly discriminated against the complainants on gender and family status grounds and found that the maintenance of the roster was not objectively justified and the Equality Officer directed the implementation of a new roster.  

The complainant states that he is not unrealistic to the needs of the business. He refers to the case wherein the Labour Court in Bank of Ireland Group v Morgan set out that it would be manifestly unreasonable to hold that an employer must provide a facility to job share…….. in every case in which such a facility is requested and such a result could not have been intended and that it is self-evident that such facilities can only be made available within the exigencies of the business.  

The complainant states that in the present case, it is not manifestly unreasonable for him to ask that the shifts that he carried out for 18 years be facilitated. The shifts still exist and are being offered to alternatives who do not have children.   It is submitted that once the facts of discrimination are shown to have occurred, that it is on the employer to show that the removal of the complainant from his position and the roster was objectively justified. It was submitted that the respondent has made no attempt to do so in the grievance instead seeking to rely on contractual terms simpliciter without any explanation as to why this was required. The complainant states that the respondent has not made out an objective business case why the complainant’s position was removed and why he was placed on anti-social rosters which significantly impacted his family life.  In this regard, the complainant states that the company were on express notice of and had acknowledged, in writing, in the outcome report that one of the reasons for the fixing of the complainant’s hours was based his family life. 

The complainant states that implied terms are terms, which can be implied into a contract of employment having regard to the custom and practice within the workplace. They are not express terms of an employment contract but can be read as express terms after practice being applied for a long period of time. It was submitted that implied terms are usually required to be read into the contract where they are threatened. They are usually required to be acknowledged in writing by the employer as changing.  It was submitted that in Redmond on Dismissal Law, 3rd Edition, Desmond Ryan, Bloomsbury 2017, p290, “Where an employer has tacitly accepted or condoned a particular practice …… it must give adequate warning to employees that it is taking a new approach.”

The complainant submits that in O’Reilly v Irish Press [1937] 71 ILTR 194 Maguire J referred to custom and practice as “so notorious, well known and acquiesced in that the absence of agreement in writing, it is to be taken as one of the terms of the contract between the parties. It is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it.”

It was submitted that the respondent employer was at all times expressly aware of the complainant’s family status and facilitated him for a long period of time. The complainant contends that this was so expressly tied to his position as the store’s manager that the company artificially removed him from that position to place him in a pool of comparators as general managers on different contractual terms so as to artificially justify the revised contractual terms.  The complainant submits that this was expressly acknowledged by the respondent in writing.

The complainant highlights the caselaw relating to GAP Personnel Franchises Ltd -v- Robinson UK EAT/0342/07. It was stated that where employees do not accept a variation by the employer, especially one that has an immediate impact they should make it clear, preferably in writing, that they do not accept the change and are working under protest otherwise the employee may eventually be held to have implicitly accepted the change.  

It was submitted that in the present case, the complainant made his displeasure known to the respondent. He opened a grievance. He informed the respondent in good time and the respondent did not even conclude the grievance process. The complainant states that he has continued to work the revised roster in express protest pending his hearing in the WRC. 

The complainant cites the caselaw in Melanie Campbell -v- Arbour Care Group [ADJ-00040718] which considered the question of whether rental accommodation was an implied term in the complainant’s contract of employment.  It was submitted that the Adjudication Officer, after considering the ‘reasonableness’ test upheld a claim of unfair dismissal due to the employer’s conduct, it refers to where “the respondent conducts himself or his affairs so unreasonably that the complainant cannot fairly be expected to put up with it any longer, then the complainant is justified in leaving”. It was submitted that in reaching the decision, the Adjudication Officer referred to the decision of the Supreme Court in Berber v Dunnes Stores [2009] IESC 10, which incorporated the views of Lord Denning in Western Excavating (ECC) Limited v Sharp [1978] ICR 221.   

It was submitted that examining the common law breach of contract of repudiation, Justice Finnegan held that; “In determining whether there has been a breach of the implied term of mutual trust and confidence in employment contracts, the test is objective. The test requires that the conduct of both the respondent and the employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at.  The conduct of the respondent complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.” The complainant states that it was held that it was unreasonable of the respondent to not take any consideration of the following: “the 20 years of unblemished service of the complainant, that the complainant was originally a foreign national brought to Ireland to work for the prior company and that accommodation had been a key part of that agreement, that no written accommodation rental agreement existed between the parties, that the majority of the renovation work was to the main building, the effect of moving the complainant out of the accommodation she had lived in for nearly 20 years, that her income could not afford to rent another property nearby (even if one was available), the fact the complainant could not drive and bus routes were not readily available for night shift duty, the difficulty of finding a short term rental and that the complainant had no means of getting to and from work from a place much further away (if she could have found one) for mainly night duty.”

The complainant submits that in the within matter, the same logic should be applied. It was submitted that the respondent expressed no consideration or made any reasonable acknowledgement of the complainant’s over 20 years of service or made any practical application of the years of service to the issues raised. The complainant submits that there had been a well established and long lasting implied terms between both parties that the respondent would facilitate the complainant’s obligations to his family. The complainant asserts that the changes to his work schedule ignored these implied terms and was given without adequate notice or reason. The complainant states that he put his manager on notice of the adverse effects of these changes on his family life, however these were routinely dismissed. The complainant contends that his complaints were ignored in subsequent investigations. The complainant submits that the respondent did not consider the costs of childcare or the effects on the complainant’s family life.

It was submitted that the complainant has been treated differently to other staff members, in that, his role and title were removed and he was moved to the sales floor. The complainant states that his role was effectively subsumed into the EHS function without consultation and no explanation given. The complainant reiterates that the change of work shifts has impacted his work/life balance and personal life and family responsibilities.

Industrial Relations Claim

The complainant states that the grievance process and outcome were unfair and unreasonable and did not deal with his concerns. It was stated that the respondent failed to make findings in relation to the complainant’s grievance. The complainant maintains that the outcome report of the investigation referenced certain sections of the complainant’s employment contract without explanation as to the revisions to his role. The complainant states that the outcome report identified him as a manager. He states that this is incorrect as the title of senior department manager was removed per his removal from the stockroom role. The complainant states that the outcome report failed to answer the complainant’s concerns about his mental health and work/life balance. The complainant states that no referral to occupational health or assessment was made. The complainant states that the investigator failed to decide whether the complainant’s grievance was founded/unfounded.      

The respondent states that it is a retail group and operates a total of 345 stores across 11 countries and has 37 stores in the Republic of Ireland. It states that maintaining competitiveness and price leadership in the Irish market and indeed across all international markets is fundamental to the success of its business model.

The respondent states that the complainant commenced work as a trainee manager on 22 January 2001. He commenced employment in the respondent’s Mary Street Store and worked there for a number of years and worked in all departments within the store. He then transferred to the respondent’s Blanchardstown store in line with the mobility clause in his management contract. The complainant transferred as a Senior Department Manager (SDM). Additionally, the complainant also covered the store in Naas for a period of 6 months.

The respondent states that in line with its contracts, all retail managers can be transferred (within reason) between stores. Retail management can also be assigned to work within any department in the store and working hours are not fixed. Hours are a maximum 48 hours per week. Rosters are variable and change depending on the needs of the business. This is applied to all managers throughout the business.

It was submitted that the complainant primarily worked in the stockroom in the Blanchardstown store and that his start times have varied over the years in line with the requirement of the business. The roster in the stockroom was different to the salesfloor due to delivery times of trucks and therefore the complainant’s roster was dependent on when the deliveries arrived in store. Deliveries in the Blanchardstown store were in the early mornings and therefore the complainant was required to work mornings in line with the needs of the business. As a result, he was not rostered to work evenings as rosters did not allow this due to the early starts. The complainant also covered Sundays on the salesfloor on a rota basis in line with all other management. The respondent asserts that all management are interchangeable between departments and this is standard in all of the respondent stores. It was submitted that the complainant’s working hours changed on a number of occasions to meet the business needs as outlined in his contract of employment.

The respondent maintains that at no stage did the complainant hold the title of EHS/ Operations Manager.  He has always held the role of Senior Department Manager while working in both the stockroom and salesfloor. The complainant has worked on average two days monthly on the salesfloor.  The complainant is one of approximately 500 managers in the Republic of Ireland, the vast majority of whom have spouses/partners who also work full time and are subject to the same contractual provisions as the complainant in terms of mobility and flexibility of hours.  

Background to the Claim

The respondent states that on 9 May 2022, the store manager reviewed the rostering arrangements within the store and made an operational decision that the complainant, along with the other management, would be required to work some evenings on the salesfloor. There was no operational requirement for all the complainant’s hours to be worked in the stock room. In fact, it was the contrary. The store also needed cover on evenings and the complainant started to do this shift. The complainant, in previous years has also worked hours on the salesfloor.  The respondent asserts that the complainant was not satisfied with this arrangement and it was agreed that he would be put on a set evening (Friday) to take into account his concerns. The complainant was given 6 weeks’ notice of his change of hours. 

The respondent submits that there was never an agreement either explicit or implicit that the respondent would structure the complainant’s roster to ‘facilitate his family life’. It states that the complainant’s hours have varied due to the business needs of the respondent in the same way they do for all managers in the company. The respondent states that management will always support colleagues where required in terms of support for a better work life balance (not just in relation to family status) and will do so in line with operational requirements. 

Global Management Restructure

It was submitted that on 29 June 2022 all 500 members of management in the 37 stores in Ireland were communicated with in relation to the new management structure which was rolled out globally for the company in over 400 stores.   The new structure would ensure:

•        One simplified management structure throughout the business with more clearly defined roles and responsibilities.

•        Reduced management hours from an average of 48 weekly to 40 hours weekly.

•        Rosters are given to colleagues a minimum of 4 weeks in advance; this was previously a week or two weeks in advance.

•        Greater opportunity for career progression into managerial positions.

•        Better management cover on the shop floor and increased support on the shop floor for retail assistants.

•        Greater flexibility and support for managers.

•        The introduction of this new structure would also create more clearly defined responsibilities and accountabilities for all other management roles.

•        Introduction of a new Team Manager role – a new entry level management position and a key role in supporting the smooth running of the stores.

•        The Trainee Manager role would no longer exist in the new structure. Therefore, all current Trainee Managers automatically mapped across into Team Managers.

•        The Senior Department Manager (which the complainant was) and Department Manager roles were consolidated into one Department Manager role with no change to current T&Cs and no change to salaries.

It was submitted that the complainant’s job title changed from Senior Department Manager (SDM) to Department Manager (DM) in line with the simplified organisational structure. The respondent states that the complainant had a ‘one to one’ meeting with his manager to explain the organisational change and what, if any the impact would be. It was submitted that the rationale for and the effect of the restructure was explained to the complainant. The respondent states that the complainant was assured that he was not being demoted and that his terms and conditions would remain the same.  The respondent states that as per the new structure, management would be required to be trained in all aspects of the role including stockroom, but they were to be assigned into different areas on a rota basis.

The respondent states that in September 2022, management met with the complainant to confirm that he would be assigned to work on the sales floor from January 2023 (this was giving the complainant 16 weeks’ notice).  On 22 December 2022, the complainant lodged a grievance due to these changes. On 5 January 2023, the grievance was heard by the People & Culture Manager, Ms D. On 23 February 2023, the outcome of the grievance was issued to the complainant and the finding was that as per the complainant’s contract, he had no fixed hours of work as the work would vary to suit the needs of the business. It was also found to be a common practice in the stores for managers to move departments to gain experience in all aspects of running the store.

It was submitted that the complainant was provided with the outcome of the grievance on 23 February 2023 and he was provided with the right to appeal the outcome within 7 days. The respondent states that the complainant did not make contact with the appeal officer, Mr M, Area Manager, to whom he could submit an appeal.  On 9 March 2023, (2 weeks later), the complainant asked Ms D how he should appeal.  Ms D confirmed that he needed to email the appeal officer directly as per the letter. The respondent states that the complainant did not submit this appeal. At no stage did Ms D inform him that he could not appeal.  Ms D followed up after her conversation to the complainant with an email dated 9 March 2023, with email address of the appeal officer Mr M. The respondent states that on 27 April 2023, the complainant submitted his claim to the WRC. 

The respondent maintains that the complainant is currently working the same pattern as all management in the store. He can be rostered mornings, afternoons, evenings and weekends.  He is fully flexible – like all other management personnel.  Management, including the complainant are given 4 weeks’ notice of their roster.

Claim under the Terms of Employment Information Acts

The respondent submits that there has been no breach of the legislation as there has been no change to the complainant’s terms of employment, such that there was no requirement to notify the complainant in writing of any change.  The complainant’s contract of employment clearly states;  

‘The company shall be entitled to vary the terms of your employment from time to time whenever reasonably required by the changing circumstances of the company or yourself.  There are no fixed hours of work. Your working hours shall be such as may be requisite for the proper discharge of your duties.’ 

The respondent states that notwithstanding the contractual provision, the complainant was provided with extensive consultation in respect of any changes which were pending.  

Claim under the Employment Equality Act

The complainant has alleged that he was discriminated against on the grounds of family status.  The respondent rejects the allegation that the complainant was discriminated against on the above ground as defined in the Employment Equality Acts 1998. 

Section 6(1) of the Employment Equality Act 1998 states that discrimination shall be taken to occur where on any of the grounds in subsection (2), where one person is treated less favourably than another is or would be treated. The “family status ground” for the purposes of this legislation is where between two persons one person is treated less favourably than another is, has been or would be treated on the basis that one has ‘family status’ and the other does not. 

The respondent states that direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of family status grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed. It is the company position that the complainant has failed to establish that he was treated less favourably than another person on the basis of his family status.

Indirect discrimination is deemed to occur where an apparently neutral provision puts persons of a particular race at a particular disadvantage compared with other employees. The respondent submits that there is no evidence to show that the complainant has been indirectly discriminated against either.  It has been the well-established practice of the Equality Tribunal, WRC and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when he has discharged this burden to the satisfaction of an adjudication officer that the burden shifts to the respondent to rebut the inference of discrimination raised. As such, the company would argue in the strongest terms possible that the complainant has failed to discharge this burden of proof.

With reference to the recent Labour Court determination of the Court in the matter Melbury Developments Limited v Valpeters (EDA0917) Section 85A 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 speculation 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 establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule. In this case, it was submitted that the complainant was treated ‘less favourably’ by the respondent and the adjudication officer is being asked to infer that he was so treated because of his ‘family status’. It was submitted that such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different family status were or would be treated more favourably. This has not been provided.

In Melbury Developments Limited v Valpeters (EDA0917) the Court further highlighted that “These observations on the requirement to prove the primary facts relied upon apply with equal force in respect to the complainant’s submissions regarding both his claim alleging discriminatory treatment and his dismissal”. It is the respondent’s contention in this matter that the complainant has not offered any supporting evidence to show that others not covered by the family status ground were treated differently in either respect.

The respondent argues that the complainant has failed to establish a prima facie case of discrimination in relation to the ‘family status’ ground; therefore, the onus does not shift to the respondent to prove that there was no infringement of the principle of equal treatment. The complainant has failed to identify a specific comparator to whom he is suggesting he was treated less favourably. The respondent submits that in the absence of doing so the complainant cannot establish prima facie claim of discrimination and the claim must be dismissed on this basis.

The respondent states that the complainant has also made a claim that the company discriminated against him on the basis of failing to provide ‘reasonable accommodation’. The respondent states that reasonable accommodation for the purposes of the Employment Equality Act is specific to a claim of discrimination on the grounds of a disability and as such is misconceived in respect of a claim under the family status ground. 

The respondent states that notwithstanding the above position, the company disputes any suggestion that the complainant was discriminated against on the grounds of his family status. It submits that the complainant has the same contractual provision as all managerial contracts which permits the varying of hours and location. All the 500 plus managers in the company in Ireland were affected by the management restructure, the majority of which have families and children. In the store in Blanchardstown there are 30 managers 18 of which (60%) would fall under the of definition of ‘family status’.  The effect on those managers, is not related to their ‘family status’ or otherwise, it is related to their working pattern prior to the restructuring. The majority of those with families worked hours which were variable in nature and were not set as the complainant’s were.  

The respondent states that in relation to the Blanchardstown store specifically, there were 2 SDM’s in Blanchardstown whose title was changed from Senior Manager to Manager (again with no change to their terms and conditions).  The respondent states that all management had changes to their roles which meant all levels of management were required to work in various areas across the store including cash office, salesfloor, security, stockroom. This has meant other managers also have to work late shifts and in various areas of their stores depending on business requirements. The respondent asserts that were the complainant to remain solely working in the stockroom, this would restrict other management from gaining experience in this role and therefore limit their opportunities for promotions.

Indirect discrimination

The respondent states that indirect discrimination occurs where an apparently neutral provision puts persons of a particular family status at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer. It is noteworthy that discrimination will not occur if the employer can objectively justify (on grounds unrelated to the discriminatory ground) the condition or provision provided that it is in pursuit of a legitimate aim and the means of achieving that aim are appropriate and necessary to achieve a legitimate aim.

The respondent states that notwithstanding the company position as set out above, were the adjudication officer to explore whether indirect discrimination has occurred the company position is as follows. The company had a genuine operational requirement of the complainant, as a manager, to work on evening shifts on the salesfloor to provide managerial cover for that period. It was submitted that the complainant has worked on the sales floor as part of his role previously. Furthermore, as part of the management restructure, which was being implemented globally, all management had changes to their roles.  This included all levels of management being required to work in various areas across the store. This includes cash office, salesfloor, security and stockroom. If the complainant remained working exclusively in the stockroom, it would restrict other management colleagues from gaining experience in this role and therefore limit their opportunities for promotions. It would also limit their ability to provide cover or work in other stores where being rostered in the various areas within the store was a fundamental part of the role.  The requirement for managers to carry out the stockroom role on a rotational basis meets the business requirement of allowing all managers to upskill in that area and to cover operational requirements.

Therefore, the requirement to roster the complainant for varying hours and location in-store was based on a real need of the respondent. The respondent states that it is important to bear in mind that the complainant’s contract and all manager contracts state the following when evaluating whether there was a legitimate aim of the company and whether the company’s action were appropriate and necessary in achieving that aim; “There are no fixed hours of work. Your working hours shall be requisite for the proper discharge of your duties.”

The respondent maintains that it is the practice in the company that managers do not have fixed hours of work. This applies across the board and is recognised by all staff to whom it applies. It was submitted that the complainant had multiple variances to his hours over the years. He had worked on the salesfloor and has worked weekends and evenings.  It is the company position that in respect of any allegation of indirect discrimination the company can show that the provision to require the complainant to be rostered for shift other than early start in the stockroom was in furtherance of a legitimate aim and its actions were both proportionate and necessary, i.e. that it was objectively justifiable.

In conclusion, the respondent states that it is noteworthy that the complainant has been able to carry out his hours according to the revised rosters and has been doing so for the past year. 

Claim under the Industrial Relations Act

The respondent states that the complainant submitted a grievance to the company on 22 December 2022. The grievance was explicitly in respect of the complainant’s hours and the company decision to alter them. The respondent submits that it conducted a thorough grievance process which complied with the principals of natural justice. An outcome letter was provided to the complainant on 23 February.  The outcome of the Grievance stated that; 

“as per your contract of employment there are no fixed hours of work as hours of work vary to suit the needs of the business. It is also standard practice in stores for managers to move departments to gain experience in all aspects of running the store.

I.                 Clause 2.01, The Company shall be entitled to vary the terms of your employment from time to tome whenever reasonably required by the changing circumstances of the business or yourself.

II.                Clause 2.02 There are no fixed hours of work. Your working hours shall be requisite for the proper discharge of your duties.

III.              Clause 4.01 Transfer from one location to another (in the Republic of Ireland) while in our employment and as the exigencies of the business demand.

IV.              It is standard practice in stores to move managers to different departments to ensure an overall knowledge of all areas in the store.

V.               Mr D [my emphasis] gave you 6 weeks’ notice prior to commencing your late night and ensured your late night was on a Friday as this suited your family life and only impacted one of your shifts.

VI.              Mr. D [my emphasis] then met with you in week commencing 18 September 2022, and gave you 16 weeks’ notice of your department move and change to your working hours.

 The respondent states that an opportunity to appeal was provided in the outcome letter confirming that the complainant could appeal within 7 days of receiving the outcome. It was submitted that the complainant did not appeal the outcome or findings. The respondent position is that the grievance process was fair and the outcome was rational and reasonable.  It was submitted that as a result of the complainant’s failure to appeal the outcome, he has not exhausted the internal procedures available to him in advance of submitting his claim to the WRC. The respondent asserts that the internal processes are required to be exhausted prior to submitting an IR claim to the WRC.

The respondent states that in relation to any purported allegations of bullying or harassment; the complainant has not raised any such a complaint at local level using the appropriate policy available to him. The respondent states that it is clear from the grievance process and the complainant grievance letter as to what the complainant’s issue was and he articulated that through to the process. The respondent states that any attempt to raise such issues now or to characterise his grievance as a ‘complaint of bullying and/or harassment’ must be dismissed.  The respondent states that the appropriate route to address any such claim is through the company bullying and harassment policies. The respondent states that this was not done and accordingly the IR claim should be dismissed in its entirety.  

Terms of Employment Information Act

The complainant has alleged that the respondent is in breach of the Act as he was not notified of the changes in his terms of employment. The respondent has stated that there was no requirement to notify the complainant in writing of any change as the complainant’s contract clearly states; “The company shall be entitled to vary the terms of your employment from time to time whenever reasonably required by the changing circumstances of the company or yourself.  There are no fixed hours of work. Your working hours shall be such as may be requisite for the proper discharge of your duties.”

I have carefully examined this matter. I note the wording as above in the complainant’s contract of employment. I am also cognisant of the global restructuring which took place in 2022 which involved extensive consultation and relevant training provided to all managers including the complainant regarding the upcoming changes. I note that the respondent was in consultation with the complainant regarding the impending changes and facilitated one to one meetings with his manager in this regard. I also note that the complainant was assured by management that his terms and conditions would remain the same.  It is also noteworthy that the complainant was given extra lead in time to commence the new roster vis a vis the other managers. In the circumstances, having examined the totality of the evidence adduced on this matter, I find that there is no breach of the Terms of Employment Information Act, accordingly I find that this complaint is not well-founded. 

Employment Equality Act

The complainant has alleged that he was discriminated against on grounds of family status in relation to his conditions of employment. The complainant also alleges that the respondent failed in its obligations to provide him with reasonable accommodation on the basis of his family status.

Section 6(1) of the Employment Equality Act 1998 states that discrimination shall be taken to occur where on any of the grounds in subsection (2), where one person is treated less favourably than another is or would be treated. The “family status ground” for the purposes of this legislation is where between two persons one person is treated less favourably than another is, has been or would be treated on the basis that one has ‘family status’ and the other does not. 

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 prima facie case is established and the burden of proof shifts to the respondent.  In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  In relation to the circumstances in which the probative burden of proof operates, the Labour Court in previous determinations has held as follows –

"Section 85A of the Acts 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. However, they must be established as facts on credible evidence. Mere speculation 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 establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

Based on the evidence heard, I note that the complainant has the same contractual provision as all managerial contracts which permits the varying of hours and location. I note that all of the 500 plus managers in the company in Ireland were affected by the management restructure, the majority of which are parents with families/in loco parentis.  Evidence was provided stating that within the store in Blanchardstown where the complainant is employed, there are 30 managers 18 of which (60%) would fall under the of definition of ‘family status’.  I note the evidence of the respondent where it was stated that the effect on those managers, is not related to their ‘family status’ or otherwise, it is related to their working pattern prior to the restructuring. It was submitted that the majority of those with families worked hours which were variable in nature and were not set as the complainant’s were.   The respondent stated that in relation to the Blanchardstown store specifically, there were 2 SDM’s in Blanchardstown whose title was changed from Senior Manager to Manager (with no change to their terms and conditions). 

I note that all management had changes to their roles which meant all levels of management were required to work in various areas across the store including cash office, salesfloor, security, stockroom. I note that as a consequence, other managers also have to work late shifts and in various areas of their stores depending on business requirements. I note the evidence given by the respondent that if the complainant was to remain solely working in the stockroom, this would restrict other managers from gaining experience in this role and therefore limit their opportunities for promotions. I note that the respondent stated that with the roll out of the new organisational restructure, the aim was to enable all managers to be trained up in all of the various different departments to bring efficiencies and ensure there is interchangeable cover with the effect of having more management cover for staff.  I note based on the evidence heard that the complainant was given an extra 16 weeks lead in time/ notice for him personally before he commenced the new roster. In that regard the changes came into effect for the complainant in January 2023.  

Having carefully examined all of the evidence adduced on this matter, I find that the complainant has not established a prima facie case of discrimination on grounds of his family status either on the basis of direct discrimination or indirect discrimination.

I find that the complainant’s claim that the respondent discriminated against him on family status grounds by its failure to provide the complainant with reasonable accommodation to be misconceived. In that regard, reasonable accommodation pursuant to the Employment Equality Act is specific to a claim of discrimination on the grounds of a disability.

Based on the foregoing, I am satisfied that the complainant does not meet the burden of proof required by Section 85 A (1) of the Act.  I find that the complainant was not discriminated against by the respondent on grounds of family status in his working conditions and therefore this complaint fails.   

Industrial Relations Act

I note that the complainant raised a grievance which was processed by the respondent. While the complainant states that he was not satisfied with the process or the outcome. I note that his grievance was heard and he was given the opportunity to appeal the outcome but he chose not do so. Having heard all the information on this matter, I find that the actions of the respondent in relation to the manner in which it dealt with the complainant’s grievance together with the outcome of same was reasonable in all of the circumstances. Therefore, I do not recommend in favour of the complainant.   

Terms of Employment Information Act

I find that the complainant has not established a breach of the Act by the respondent and therefore this complaint is not well-founded.

Employment Equality Act

I find that the complainant has not established a prima facie case of discrimination by the respondent on grounds of family status in his working conditions.

Industrial Relations Act

I find that the actions of the respondent in relation to the manner in which it dealt with the complainant’s grievance together with the outcome of same was reasonable in all of the circumstances. Therefore, I do not recommend in favour of the complainant.   

Terms of Employment Information Act, Employment Equality Act, family status ground, Industrial Relations Act