Complainant

Respondent

Parties

Jess  Quinn

Source & Supply Logistics Limited Ssl Ltd.

Complainant

Respondent

Anonymised Parties

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Representatives

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-00057498-001

03/07/2023

The Complainant alleges that Respondent discriminated against her in relation to her getting a position withing their company on grounds of gender. The Respondent contests the claim.   

The Complainant after taking the affirmation gave her evidence as follows:

The Complainant alleges that she was discriminated against in relation to securing employment on gender grounds.

The Complainant’s contract was due to expire on March 3rd. She was informed that there was a new role coming up in Merlin Park. It was a Manual handling role. It required lifting boxes around the premises. It required going up and down stairs with the boxes. The boxes were approximately 15kg.  She was informed that the job was only open to males. Eilish Murray and Ann Marie Flaherty to the Complainant at their meeting that it was only for men because of the weight of the boxes and the stairs that would have to be climbed with the boxes. The Complainant said that the restrictions on the role were sexist. They referred to the HSA guidelines on manual handling. They did not offer any accommodations. She applied for the role anyway. She was not called for interview. The two males who applied got the role. The guidelines are just guidelines. They didn’t even give her an opportunity to try it. Prior to this role she drove an HGV and was lifting much heavier items than the boxes.

The Complainant emailed the HSA. She was informed that the HSA guidelines were just that, guidelines.

It has affected her confidence and she felt humiliated by it. The two lads that she had trained got the role and she wasn’t even considered.

Pearse O’ Donohue after taking the Affirmation gave his evidence as follows:

Ms. Quinn was an excellent employee. It is unfortunate that they all are where they are. There is some understanding why she feels the way she feels. Her contract was coming to an end. There was additional work available in a different area. A risk assessment was done. The outcome was that the work needed to be done by two people who were able bodied and stronger. Not necessarily male. Just stronger.  It is denied that Ms. Flaherty said that the role was only available for men.

 Lifting aids were considered. They are readily available in the warehouse. In this case we were working in the customers location. It was not possible to bring the lifting aids in those circumstances. Health and Safety is a crucial part of the role. The emphasis for the role was safety given the tasks that had to be carried out. The decision was made in the interests of health and safety.

The HSA guidelines set out the lifting capacity. The weight of the boxes was 7kg and 15kg. It is accepted that no assessment was carried out to see if the Complainant could lift the boxes without risk of injury.

She handed in her notice and said she would leave on 3rd March. The Respondent asked if she would stay on for one week so that they could find her a new role. She didn’t want to stay, so she left on the 3rd March.

The Complainant alleges that she was discriminated against based on her gender in relation to a new role that was available with the Respondent.

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"TheComplainant 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 85 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 Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows: 

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to provide that there was no infringement of the principle of equal treatment”.

The Complainant commenced working for the Respondent on a temporary contract in December 2022. That contract was due to expire on 3rd March 2023. She was given notice of the expiration of the contract on 21st February and was informed that it would not be renewed. Later that week she and the other team members were informed that there was a role available with the HSE in Merlin Park. It was a manual handling role requiring them to move boxes weighting between 7kg and 15 kg around a HSE building. She was informed by Ms. Flaherty that due to the nature of the role and in line with the HSA guidelines on lifting, that only males would be considered for the role. The Respondent stated that whether someone was a male or a female wasn’t the issue, it was the person capabilities in relation to lifting boxes. They did not ask the Complainant if she was physically capable of lifting the boxes. They did not give her a trial run. They simply said that she would not be suitable. The Complainant has carried out roles of this nature in past employment and is well trained in manual handling and has lifted item much heavier in previous roles without issue.  

I am fully satisfied that the Complainant has established a prima facia case of discrimination on the grounds of gender.

The Respondent stated that it did consider lifting aids but quickly ruled it out as the role was to be carried out in a premises not belonging to them. It would not have been possible to move the lifting aids into the client’s premises. They denied that they ruled out women completely for the role but did heavily rely on the HSA guidelines. However, I note that they did not carry out any assessment of the Complainant prior to making the decision that she would not be physical capable for the role.

Having considered all of the evidence I find that the Complainant has established a prima facia case of discrimination on the grounds of gender and the Respondent has failed to establish that there was no infringement of the principle of equal treatment.

I am awarding the Complainant €7,500.00

The Complaint is well founded. I award the Complainant €7,500.00

Discrimination. Gender. Physical strength. Accomodation.