Complainant

Respondent

Parties

Monika  Zacharczyk

Tempside Limited trading as Polonez

Representatives

Self-represented

Peninsula

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-00063055-001

25/04/2024

The complainant was employed by the respondent from 20th March 2019. She was promoted to Store Supervisor and then Operations Assistant, a role covering a number of stores. She returned to the Carlow Store in May 2022 as Supervisor Assistant. She went on maternity leave from this position in November 2022. When the maternity leave ended in May 2023, she was on sick leave up to April 2024. In advance of her return after being out of work for a long period, she requested part-time hours so she could care for her child and work around her husband’s roster. The respondent refused this request. On 25th April 2024, she made complaints of discrimination on family status and conditions of employment to the WRC.

Summary of Ms Zacharczyk’s Evidence

The complainant gave evidence that in April 2024, she tried to reach agreement with the respondent to work part-time prior to sending her complaint to the WRC. Her request was that she be allowed work part-time hours outside of her husband’s rostered hours. This would facilitate herself and her husband with their caring arrangements. This request was refused by the respondent who required her to return on full-time hours as Supervisor Assistant. The complainant put into evidence her email request of 16th April 2024 and the response from management on 22nd April 2024.

She was disappointed with management’s response as she had been flexible and worked additional hours throughout her service. During her sick leave she was required to send in weekly GP medical certs instead of monthly in circumstances where she could not do this through her GP.

The explanation from the company on her part-time work request was that they needed a full-time Supervisor Assistant. As a colleague was undergoing training at that time, she could not understand why the role could not have been shared between them.

She outlined the circumstances of two colleagues as comparators. One comparator started with the company in 2021. She initially worked full-time hours and after a few months was facilitated with a reduction in hours to look after her child. The comparator then later made a successful application to come back full-time. This comparator worked as a Shop Assistant.

The other comparator was also a Shop Assistant, who also started as a full-time worker and successfully applied for part-time work in 2020/2021 to look after her child.

The complainant compared the Shop Assistant role with the Supervisor Assistant role.

She put into evidence a letter she received from the Department of Social Protection informing her of her exact PRSI contributions. She questioned whether the respondent had handled her contributions correctly.

Under cross-examination by the respondent representative, the complainant confirmed that it was her request to return to the Carlow Store in 2022 after a discussion with her manager. She was asked about the different roles of Supervisor Assistant and Shop Assistant.

She confirmed that she went on maternity leave as a Supervisor Assistant, and that there was engagement by the company on her part-time work application. When questioned on the reasonableness of the respondent to plan around her husband’s roster, she responded that it was possible as he got his roster months in advance. She confirmed that she did not raise the PRSI contributions letter with the company previously.

Complainant Closing Submission

The complainant regretted how her issue was handled by the company particularly as she had been very flexible during her service. She felt she could have been facilitated to return on a part-time basis.

Summary of Ms Rusu’s Evidence

Ms Rusu confirmed her role as HR Generalist and gave an outline of her interactions with the complainant. She had advised the complainant that weekly medical certs in English were required as per the company policy, and this was set out in the company handbook.

She reviewed the request to return to work on a two-day basis and this was discussed at management level. Management considered the two days part-time as not feasible, particularly as the other Supervisor was on long-term sick leave. She described the Supervisor role as a more operational and responsible role than the Shop Assistant role.

Although the PRSI letter was not brought to her attention previously, she was aware that issues for some staff did arise back in 2019. These were resolved and there were now fewer issues arising.

Under cross-examination, Ms Rusu was asked why weekly GP medical certs were required when her GP could not facilitate this. She replied that this was company policy for all staff. When asked about the part-time request she referred to previous email responses from the respondent. She stated that it was an unreasonable request as it was not possible to make an accommodation around her husband who was not employed by the respondent.

Summary of Mr Jalbu Evidence

Mr Jalbu role is Area Manager, and he is familiar with the Carlow Store. He had just one Supervisor at the time with the other on long term sick leave. He confirmed that both comparators were Sales Assistants. He said there was no Supervisor Assistant working part-time and the request around her husband’s roster could not be facilitated.

He was cross-examined on how the store previously operated with no Supervisor. He replied that he needed the Supervisor role filled for operational reasons. On moving the complainant to another role, he replied that this was not requested and therefore was not considered at the time.

Respondent Closing Submission

The respondent representative denied that there was discrimination due to family status and conditions of employment. The complainant had not identified appropriate comparators and the roles were different as per the testimony from the respondent witnesses.

The respondent recognised that the complainant was hardworking and a valued employee with previous good service. He said the company would assist the complainant on the PRSI contribution issue, if requested.

The Law

The Employment Equality Act promotes equality in the workplace and provides protection against discrimination. An employer cannot discriminate against an employee in relation to several areas including conditions of employment. The Acts prohibit discrimination on nine grounds, including family status. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on one of the nine grounds. The employee must demonstrate that they have been treated less favourably than a comparator.

Section 85A(1) of the Acts provides:

“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.”

The Complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged does the burden shift to the respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden and held:

“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 indicates 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 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 prove that there is no infringement of the principle of equal treatment.”

Applying the Law to the Facts

The complainant contends that she has been discriminated against on family status and conditions of employment. The issues mainly arose over the period leading up to April 2024 when the complainant sought to return to work on a part-time basis. Another issue was the frequency of medical certs which arose from July 2023.

The complainant is covered under the definition of family status as per the Act. The facts of her request to return to part-time are also not in dispute. Both sides gave evidence on the email exchange in April 2024.

Therefore, the only issue to be considered is whether the complainant was treated less favourably than another person in similar circumstances who does not have the protected characteristic of family status.

Comparators

The complainant put forward two comparators. Both were granted part-time work by the same employer in circumstances where they were caring for their child. Both comparators have the same protected characteristic of family status as the complainant. The complainant did not give evidence on a comparator or hypothetical person without family status. Nevertheless, as a comparator is an evidential tool, there was sufficient evidence from the primary facts to raise a presumption that unlawful discrimination could have occurred. Therefore, it was necessary to hear the testimony of the respondent and their witnesses to allow them to prove there was no discrimination on family status and conditions of employment.

Respondent Evidence

The respondent witnesses gave testimony that the comparators put forward were not like for like. The role of Sales Assistants differed in many respects to the Supervisor role. The job descriptions were put into evidence. Testimony was given that management considered the part-time request, and it was declined for operational reasons. The reasons included the need for a full-time Supervisor and the impracticality of organising a roster around her husband’s shift pattern. The respondent witnesses also gave testimony that the other Supervisor role was vacant due to long term sick leave.

Conditions of Employment

Three issues emerged during the hearing on conditions of employment. The failure to grant part-time work like the named comparators. The insistence of management for the complainant to submit weekly GP medical certs instead of monthly certs. And finally, the PRSI contributions letter which was raised for the first time at the hearing.

Findings

Having considered the evidence, I find that the respondent has rebutted any presumption of discrimination on family status and conditions of employment. Although the complainant felt harshly treated despite her previous dedicated service, I consider the reasons for refusing her part-time work were not related to her family status. I am satisfied with the respondent’s witness testimony that operational issues were at play when considering the part-time request.

On the conditions of employment complaint, there was insufficient evidence to demonstrate that other staff without family status were treated in a more favourable manner than the complainant. A respondent witness gave testimony that weekly medical certs applied across the organisation. There was no evidence to show the complainant was singled out in this regard.

Similarly, on the PRSI contributions issue, there was no evidence of less favourable treatment compared to other staff. As this issue only arose at the hearing, the respondent has offered to assist the complainant on this, if requested.

For the reasons outlined, I decide that the complainant has not been discriminated against on family status and conditions of employment.     

I decide that the complainant has not been discriminated against on family status.

I decide that the complainant has not been discriminated against on conditions of employment.

I decide that the complaints are not well-founded. 

Discrimination, Family Status