Complainant

Respondent

Parties

Hazera  Begum

Arlington Novas (Ireland) Limited

Representatives

 SIPTU

 Tiernan Lowey B.L. instructed by Hayes Solicitors LLP

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-00061053-001

17/01/2024

The complaint was submitted to the Workplace Relations Commission on 17th January 2024. The complainant alleges that she was discriminated against on the grounds of her religion and was also victimized by the respondent. The discriminatory treatment relates to the assertion that the complainant was not facilitated with prayer times while at work and disciplined when she raised the issue.

The cognisable period of the complaint is from 18th July 2023 – 17th January 2024. While the respondent argues that many of the issues complained of occurred outside of the cognisable period of the complaint, the complainant’s representative argued that it was ongoing and therefore the complainant was also discriminated against during the cognisable period of the complaint.

Post hearing submissions

At the conclusion of the adjudication hearing held on 14th June 2024, the complainant and her representative were given two weeks to consider the respondent’s written submissions. This additional time was given as the respondent’s submissions had not been provided in advance of the hearing for reasons that were explained on the day.

As the complainant did not give evidence, it was clarified to the complainant’s representatives that if there were any factual disputes in respect of the respondent’s submissions, which would require evidence or if the complainant wished to give evidence, a further hearing could be convened. The additional time was not for further submissions to be lodged in respect of the complaint itself. There was no request for a further adjudication hearing.

The respondent stated that it is only the six months prior to the referral of the complaint that is reckonable for the purpose of the within complaints relating to discrimination and victimisation. The respondent stated that the complaint relating to victimisation arose because of a disciplinary process that commenced on 13th December 2022. In respect of the discrimination complaint, the respondent does not accept that the conclusion of the appeals process in November 2023 is an act of discrimination that would bring the complaint within the statutory time limits for the referral of same.

The complainant alleges to have been the subject of a number of disciplinary processes as a direct result of seeking support in respect of prayer times and being facilitated with same while at work. The complainant asserts that she was discriminated against and victimised by the employer.

The complainant alleges that she was discriminated against on the grounds of her religion and was victimised for raising issues in the workplace relating to the less favourable treatment she was experiencing.

The complaint was addressed by way of written and oral submission by the complainant’s representative and the complainant herself. Much of the submissions relating to discrimination and victimisation relate to matters that were outside of the cognisable period of the complaints. The submissions also focussed heavily on the fairness or otherwise of grievance and disciplinary matters that the complainant was involved in throughout her employment. These issues are the subject of another referral to the WRC and will be addressed separately.

While the complainant stated she was not supported with prayer times while at work and was subject to disciplinary processes for raising the issue, the respondent stated that the complainant was provided with breaks to pray, was provided with a room to pray in and was given a separate locker to store the items she required to pray. It was the unannounced breaks, unavailability to her colleagues and not providing cover at prayer times that was the issue for the respondent.

Attendance of complainant at work 18th July 2023 – 17th January 2024

The trade union official representing the complainant clarified at the adjudication hearing that the complainant was subject to less favourable treatment for the entirety of the cognisable period of the complaint and hence the complaint was in time.

Further information from both parties has clarified that the complainant was in fact absent on full pay during the disciplinary process from December 2022 until 11th December 2023.

Between 11th December 2023 and 12th January 2024 when the complainant was deemed unfit for work her attendance is as follows:

12th December 2023 - 2pm – 4.30pm

13th December 2023 – 11.15am – 1.15pm

14th December 2023 -   2pm – 4.30pm

18th and 19th December 2023 – 11.30am -17.00pm

20th December 2023 – Did not attend. (Occupational Health Referral before return to work)

22nd December 2023 – 5th January 2024 – Closed for Holidays

The complainant did not attend work after 20th December 2023 and was then certified as unfit for work due to pregnancy related illness from 12th January 2024 until commencing her maternity leave in February 2024.    

For the complaint to succeed, the complainant must show that she was subject to less favourable treatment between 12th December 2023 and 19th December 2023 during the times stated above as the complainant was not at work at any other time during the cognisable period of the complaint.

The Applicable Law

Discrimination

Sections 6 (1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

(a) - (d) not relevant…… 

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

Victimisation

Section 74(2) of the Employment Equality Acts, 1998- 2015 defines victimisation as follows:

74(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

85A (1) Where in any proceeding’s 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 Authority to the F156[Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority 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.

Time Limits

Section 77(5)(a) and (b) of the Employment Equality Act, 1998 provides as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

I note that the complaint of victimisation relates to a disciplinary process against the complainant which commenced on 13th December 2022. This is outside the cognisable period of the complaint. I further note from the complainant’s submissions that the issues which led to a complaint of discrimination occurred prior to 18th July 2023 and are also outside of the cognisable period of the within complaint. The complainant’s representative argued at the adjudication hearing that the discrimination against the complainant was ongoing, and that the entirety of the period should be considered.

On this point I note Labour Court Determination EDA 179 Dunnes Stores v Breda Mulholland which states as follows:

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.

The Court also stated that:

“Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.

While the complainant argues that the most recent date of discrimination is 22nd November 2023, this is the date that the appeal decision relating to a disciplinary process involving the complainant was issued. I do not accept that the disciplinary process which commenced in December 2022 was an act of victimisation against the complainant or that the conclusion of that process in November 2023 was an act of discrimination for the purpose of meeting a statutory time limit in respect of her complaint.

The complainant was absent from work for the majority of the cognisable period of the complaint and has not established that she was treated less favourably on any occasion in that period where she was in attendance at work. On that basis, I find that the complainant has not established a prima facie case of discrimination and accordingly, the complaint cannot succeed.

For the reasons stated above, I find that the complaints are not well founded.

Key Words:Discrimination, victimisation, prima facie