Stephen Noonan (Represented by Mandate) -v- Tesco Ireland
The complaint concerns a claim by Mr. Stephen Noonan that Tesco Ireland directly discriminated against him on the marital and family status grounds in terms of section 6(2)(b) and (c) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in relation to the conditions attaching to the operation of the Privilege Card scheme. The complainant also claims that he was indirectly discriminated against in terms of section 31 of the Employment Equality Act, 1998, on the marital and family status grounds and in contravention of section 8 of the Act.
2.1 The complainant is an employee of the respondent and was given a Privilege Card when the scheme was introduced four years ago. The card entitles him to a discount of 10% with some exceptions. The complainant used the card to avail of a discount on purchases for two households which the respondent alleges is an abuse of the card. The complainant was given a final written warning in respect of his use of the card and he was disqualified from the scheme for 12 months. The complainant alleges that the conditions attaching to the operation of the staff discount scheme are discriminatory and that he was discriminated against on the marital and family status grounds as the operation of the scheme did not take account of his specific personal circumstances. The respondent denies the complainant's allegation of discrimination.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 10 April 2002. On 3 October 2002, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 20 June 2002 and from the respondent on 2 September 2003. A joint hearing of the claim was held on 3 December 2003.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that in March 2002, he was suspended for the alleged abuse of the Tesco Privilege Card. The respondent alleged that on 23 February 2002 and on 27 January 2002, the complainant used his Privilege Card to avail of a total discount amounting to €67.44 and €45.88 respectively.
3.2 The complainant accepts that he used his Privilege Card to avail of a discount for more than one residence which Tesco maintains he is not entitled to do. The respondent claims that he can only avail of the discount for the address where he permanently resides.
3.3 The respondent wrote to the complainant on 24/04/2002 stating that they were satisfied that the complainant's actions constituted serious misconduct warranting dismissal but that on that occasion, the company decided to stop short of dismissal and issued him with a final written warning and disqualified him from the staff discount scheme for 12 months when the situation would be reviewed by the store manager.
3.4 The complainant submits that he looks after his invalid mother in the family home which is the address on the Privilege Card. The complainant also cohabits with his partner and his daughter at another address. For personal reasons, the complainant's partner and daughter are not in a position to live with the complainant's mother and because of the complainant's mother's invalidity, he is unable to live with his partner and daughter on a permanent basis.
3.5 The complainant submits that under the Employment Equality Act, 1998, the interpretation of 'Family Status' means responsibility (a) as a parent or as a parent in loco parentis in relation to a person who has not attained the age of 18 years, or (b) as a parent or the resident primary carer in relation to a person of or over the age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis.
3.6 The complainant submits that the rules in regard to the staff discount scheme where it limits its use to partners and immediate family members who permanently reside at one address which is held on company records discriminates against the complainant's specific family status situation and circumstances. The respondent's unwillingness to accept that the family unit may be other than their narrow focus clearly is a breach of the Act which could have resulted in the complainant's dismissal. He submits that it is also his belief that if the complainant had been married to his partner, the respondent would not have adopted the same stance.
3.7 The complainant believes that he is entitled to be treated in the same manner as any other member of staff of the respondent, regardless of his particular family status or marital status. He submits that the conditions attached to the staff discount scheme are therefore discriminatory.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant is employed as a Sales Assistant since 23/03/84. The respondent introduced the Privilege Card as an additional staff benefit to the Tesco Ireland reward package. Staff receive a Privilege Card after one years service and the card can be used in any Tesco store. This is a benefit of employment and not a condition of employment which has rules that must be abided by in order to protect the value of the scheme. Staff sign for and accept the conditions of use attached prior to the card being issued.
4.2 Where entitled, each employee can have one card with one person's name. The staff member is the only one that can use the privilege card if it is in their name. The staff member can also use the card to make purchases for either their partner or immediate family who permanently reside at their home address as held on company records. The rules of the Privilege Card scheme state:
'The Privilege Card is issued subject to and must be used in accordance with the Staff Discount Scheme and is intended for the benefit of Company employees. The goods purchased using the privilege card must be for either your personal use or for the use of your partner or immediate family member permanently residing with you at your address as held on Company records.'
4.3 As an employee who has completed one year's service with the company, the complainant was issued with a Privilege Card four years ago when the scheme was introduced. The card entitles him to a discount of 10% on all goods (with some exceptions).
4.4 Staff may exchange the card that they have been issued for one made out in the name of their partner or immediate relative if they permanently reside at their home address as held on company records. In that instance, the old card must be handed back at the time of issue of the new card. The rules of the scheme detail staff responsibilities under the scheme in terms of who to contact in the event of losing the card, what to do when the employee leaves the company and that the staff member has responsibility for ensuring that if the card is transferred to a family member that they understand the conditions of use. The rules are company rules and are consistent across all 77 stores, head office and distribution in Ireland and across the group internationally.
4.5 The card is not a condition of employment and the overall objective of the scheme is to provide a benefit to staff. The Privilege Card rules which are clearly stated are the same for all employees regardless of marital status or family status and staff agree in writing to accept the card benefit under the scheme rules. The complainant accepted the benefits of the scheme and he signed that he accepted them. He was not obliged to accept the scheme. The complainant used his privilege card for purchases for more than one residence which he was not entitled to do.
4.6 The company rejects the allegation of direct discrimination on the marital status ground. The company does not request any information on marital status and the Privilege Card may be used to purchase goods for the employees use or their partner's use. The complainant has not been treated less favourably on the basis of either family or marital status and the company was unaware of the complainant's marital or family status until the information was provided at a disciplinary meeting. The Privilege Card is offered to all staff with the required service both single, married with or without family or marital status.
The rules of the scheme are the same for all staff regardless of their family or marital status.
4.7 The respondent also rejects any allegation of indirect discrimination. Indirect discrimination occurs when the requirement is to the employees detriment because s/he cannot comply with it. The Privilege Card Scheme is neither a condition nor a requirement of employment but rather a benefit of employment and the employee can choose not to accept it.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent discriminated against him on the marital and family status grounds in relation to the conditions attaching to the operation of the Privilege Card scheme when it did not take account of his personal circumstances of residing at two households. I must consider whether the respondent directly discriminated against the complainant on the marital and family status grounds in terms of section 6(b) and (c) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. I must also consider, in the alternative, whether the respondent indirectly discriminated against the complainant in terms of section 31 of the Employment Equality Act, 1998, on the marital and family status grounds and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties
5.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated 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 was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden.
If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the complaint cannot succeed.
5.3 More recently, the Labour Court has stated in relation to the burden of proof:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board  ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."2
5.4 I will firstly consider the issue of whether the complainant has established a case of direct discrimination on the marital and family status grounds. Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(b) that they are of different marital status (in this Act referred to as "the marital status ground"),
(c) that one has family status and the other does not (in this Act referred to as "the family status ground"),
5.5 All employees become entitled to a Staff Privilege Card after one years service with the respondent and the card is issued automatically. The card is sent to the Personnel Manager of the store where the employee works and s/he gives the card to the employee who then signs the conditions of use in the presence of the Manager. The rules of the Privilege Card are clearly set out in both the Rules of Use which accompany the card and they are also detailed in a question and answer format in a document headed 'Privilegecard - Conditions of Use'. Paragraph 2 of the Rules of use provides that the goods purchased using the card "must be for either your personal use or for the use of your partner or immediate family member permanently residing with you at your address as held on Company records." Paragraph 4 provides that the card could also be exchanged for a card in the name of the employees partner or immediate family member. Subject to the requirement of permanently residing with the employee, there is a choice of three persons for whose benefit the card may be used and also a card in the employees name may be exchanged for a card in the name of a partner of the employee or an immediate family member. Paragraph 5 provides that the card is non-transferable and can only be used by the person who is the registered holder and whose signature is on the card.
5.6 Section 8(6) of the Employment Equality Act, 1998 provides that:
Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one-
(a) the same terms of employment (other than remuneration and pensions rights),
I consider that when the employee accepts the Privilege Card, it becomes a term of employment.
5.7 For the purposes of the Act, "marital status" means 'single, married, separated, divorced or widowed;'
The complainant who was not married is alleging that he was treated less favourably in the operation of the rules of the Privilege Card scheme than someone who was married. The rules of the operation of the Privilege Card specifically provide that the card may be used by the employee or his/her partner. The complainant could therefore have used the card for his own personal use or the use of his partner subject to the permanent residence requirement. The rules of the scheme do not restrict the cards use to the benefit of a wife or husband of any employee and clearly refer to 'partner'. Additionally, under paragraph 4 of the rules, the complainant could have had the card transferred to his partner's name. I find that the complainant has not adduced any evidence to show that he was treated less favourably because he was not married and I therefore find that the complainant has failed to establish a prima facie case of direct discrimination on the marital status ground.
5.8 For the purposes of the Act, 'family status' means 'responsibility -
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;'
A person can therefore be regarded as having family status under either paragraph (a) or (b). The complainant has a daughter and is alleging less favourable treatment than someone who does not have a daughter. The rules of the Privilege Card scheme clearly provide that the card may be used to make purchases for the use of an immediate family member permanently residing with the employee. The complainant could have used his card for the benefit of his family at their particular address if they permanently resided with him. However, the complainant in his submission accepts that he was "unable to live with his partner and daughter on a permanent basis." The complainant has not adduced any evidence to show that he was treated less favourably than someone who does not have family and I therefore find that the complainant has not established a prima facie case of direct discrimination on the family status ground.
5.9 The complainant is also claiming family status in accordance with paragraph (b) as the resident primary carer of a person with a disability. In any case, it is not necessary for me to make a finding in relation to whether the complainant has family status under paragraph (b) as even if he had, no evidence has been presented to show less favourable treatment than someone who does not have responsibility as a resident primary carer and the complainant has therefore not established a prima facie case of discrimination on this ground.
5.10 The complainant could have opted to use the card to avail of the discount for the benefit of himself, his partner or an immediate family member permanently residing with him at an address as held on company records. Alternatively, he could have exchanged the card for a card in his partner's name or an immediate family member's name if they permanently resided with him. The complainant submits at the top of page 2 of his submission that he "is unable to live with his partner and daughter on a permanent basis." It would appear therefore that he is not entitled to avail of the option of making purchases for the benefit of his partner and daughter on the basis that they permanently reside with him as required by the rules of the scheme. Whilst, in this case, the complainant has acknowledged that he did not have his permanent residence with his partner and daughter, I have some concerns in relation to the appropriateness of the use of the word 'permanent' in relation to residence and question whether there might be a more appropriate word which could be used in the rules of the scheme. The complainant was treated in the same manner as other employees in that he had to elect to use the card to make purchases for the benefit of one of three people or to allow one of three people to use the card. In considering the totality of the claim, it would appear that the complainant was seeking more favourable treatment because of his particular personal circumstances in relation to a combination of his marital status and family status which there is no obligation on an employer to provide under the Act.
5.11 Part IV of the Employment Equality Act, 1998, deals, inter alia, with indirect discrimination. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. Section 28 of the Act provides that C and D represent two persons who differ in relation to any of the eight grounds. In relation to the marital status ground, this means that a comparison may be made, for example, between a person who is not married and a person who is married.
Similarly, in relation to the family status ground, a comparison may be made between someone who has children and a person who does not have children. Alternatively, a comparison may be made between someone who is a resident primary carer in relation to someone over 18 with a disability and someone who is not a resident primary carer.
5.12 Section 31 of the Act, prohibits indirect discrimination and provides that where a provision relating to employment applies to all employees or prospective employees and operates to the disadvantage of one person compared to another and in practice can be complied with by a substantially smaller proportion of employees or prospective employees of a particular category relative to persons of a different marital status, family status, etc. and cannot be justified as being reasonable in all the circumstances, it shall be regarded as indirect discrimination. The complainant would have to show that a provision (whether in the nature of a requirement, practice or otherwise) relating to employment which applies to all employees operates to the disadvantage of him on the basis of his marital status or family status and in practice can be complied with by a substantially smaller proportion of the employees having the same marital status and family status as him. The complainant alleges that the requirement of partners and family members to reside permanently with the employee indirectly discriminates against him on the marital and family status grounds. However, he had failed to adduce evidence to show that such a requirement impacts disproportionately on unmarried persons or persons with family status. I find, therefore, that the complainant has failed to establish a prima facie case of indirect discrimination on the marital and family status grounds.
6.1 On the basis of the foregoing, I find that the complainant has failed to establish a prima facie case of direct discrimination on the marital and family status grounds in terms of section 6(2)(b) and (c) of the Employment Equality Act, 1998 contrary to the provisions of section 8 of the Act. I also find that the complainant has failed to establish a prima facie case of indirect discrimination in terms of section 31 of the Employment Equality Act, 1998 in contravention of section 8 of the Act.
15 December 2003
1 DEE011 15 February 2001
2 Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003