(REPRESENTED BY MANDATE)
MR. EAMON O'MALLEY & MR. MICHAEL O'MALLEY
T/A THE YACHT PUBLIC HOUSE
This dispute involves a claim by Ms. Vera Boyle that she was discriminated against by The Yacht Public House on grounds of age, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when it altered her shifts in favour of younger staff members in January, 2004.
2.1 The complainant is employed as a waitress by the respondent and its predecessor since June, 1990. The licensed premises were sold as a going concern in December, 2003 and the complainant contends that within weeks of the new owners taking over her shifts were altered, resulting in her weekly hours being reduced and these hours were assigned to younger employees who had considerably less service than her. She submits that this treatment constitutes less favourably treatment of her on grounds of age contrary to the Employment Equality Act, 1998. The respondent denies the assertions and states that changes to the rosters were necessary and were based on business reasons.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 29 June, 2004. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Submissions were received from both parties and a Hearing of the complaint took place on 23 May, 2006. A small number of points arose at the final hearing which required further clarification and this process concluded on 4 August, 2006.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the then owners of the Yacht Public House in June, 1990. She is employed as a waitress working the same three shifts every week as follows -
Monday 12 noon - 3pm 4pm - 9.30pm
Wednesday N/A 4pm - 9.30pm
Saturday 1pm - 3pm 4pm - 9.30pm
She states that in December, 2003 the licensed premises were sold as a going concern to Mr Eamon O'Malley and Mr. Michael O'Malley, although it continued to trade under the original name. She adds that she continued doing her normal shifts in the weeks following the transfer of ownership. The complainant states that the new Manager Mr. Dolan, informed her on 10 January, 2004 that there were going to be changes in the roster and she indicated to him that she would prefer to retain her normal shifts, although she agreed to take his comments on board and revert to him after the weekend. The complainant states that when she reported for duty on 12 January, 2004 her shifts had been changed. Her lunchtime shifts had been retained but her evening shifts (which involved serving a la carte customers as distinct from carvery at lunchtime) had been removed, effectively reducing her hours in half and more particularly denying her access to the financially lucrative shifts. She asserts that two younger members of staff had their hours increased to cover her evening shifts. She further asserts that three other members of staff, all of whom were younger than the complainant, had no alterations to their hours.
3.2 The complainant states that she contacted Mr. Dolan on his mobile telephone that afternoon to enquire as to why her shifts had been changed. She contends that he replied to her "that's the way things are, you can take it or leave it" and they would speak the following Wednesday. The complainant states that her husband subsequently informed Mr. Dolan she was terminating her employment with the respondent and she never spoke with Mr. Dolan again. The complainant submits that this treatment of her constitutes discrimination of her on grounds of age contrary to the Employment Equality Act, 1998.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against her on ground cited. It states that it was decided by the new owners that changes needed to be made - there was an impression that staff ran the roster to suit themselves - and it was decided to change the rosters to bring the business forward to the benefit of all concerned. It states that lunch time trade was busy whereas the evening time was less so. The respondent adds it decided to concentrate on building up the lunch time trade and in that regard it was agreed between the owners and senior management that the more experienced staff, which included the complainant, should be assigned lunch time duties. Consequently, Mr. Dolan approached the complainant to discuss changes to her roster and she asked if she could think about it over the weekend. A provisional roster was prepared by Mr. Dolan which rostered the complainant on lunch times and when she saw this (on Monday) she was unhappy. The respondent states Mr. Dolan was unavailable that day and spoke with her by telephone. He suggested that she meet with him the next day before she started her shift to discuss things, but she rang him on Tuesday and told him she did not want to work for them again.
4.2 The respondent accepts that two members of staff did not have their shifts changed and states that this arose because they were experienced and always worked lunch times. It adds that any increase in hours assigned to other staff arose because the complainant was unwilling to do those shifts. It submits that the changes to the rosters were necessary for business reasons and rejects the assertion that she was treated less favourably on grounds of age.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the Yacht Public House discriminated against Ms. Vera Boyle on grounds of age in terms of section 6(2) of the Employment Equality Act 1998 and contrary to section 8 of that Act, when it altered her working arrangements in January, 2004. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 At the time of the alleged incidents the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (1) set out the out the procedural rules to be applied as regards the burden of proof to be discharged by the parties in claims of gender discrimination. This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the basis of his gender. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. It is the well settled practice of both this Tribunal and the Labour Court to apply a procedural rule concerning the burden of proof in non-gender claims of discrimination which occurred before the coming into force of the Equality Act, 2004 (18 July, 2004) similar to that applied in gender based claims and I intend to adopt that approach in the instant case.
5.3 I note the complainant worked the same three shifts for over twelve years for the previous owners of the licensed premises and indeed continued to do so for a few weeks after the transfer of ownership. It is common case between the parties that when approached by Mr. Dolan she asked to be given time to think about things over the weekend, yet Mr. Dolan changed her hours on the roster in any event. I have examined the documentary evidence submitted by both parties and I am satisfied that the complainant was removed from the evening shifts, which were financially more lucrative to staff and was rostered to work lunch times only. These rosters support the complainant's assertion - and indeed this was attested to at the Hearing by Ms. X (a work colleague of the complainant) that the hours taken from her in the evening were assigned to a younger employee immediately. I find therefore that the complainant has established a prima facie case of discrimination on grounds of age and the burden of proof shifts to the respondent to rebut that inference.
5.4 The respondent must therefore provide a convincing non-discriminatory explanation for what occurred which must be sufficient to satisfy me, as a matter of probability, that the less favourable treatment complained of was in no sense whatsoever on grounds of age. Since the facts necessary to prove such an explanation can only be in the possession of the respondent, this Tribunal should expect cogent evidence to discharge the burden of proof placed on it(2) . The Labour Court also stated "that it must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution" (3) The respondent states that it wished to concentrate on lunch time trade and assign experienced staff to these shifts yet it has adduced no evidence to support this assertion. It removed the complainant from evening shifts yet in the weeks following her departure the number of staff assigned to those shifts increased significantly. I find therefore that the respondent has failed to discharge the probative burden placed on it and it therefore discriminated against the complainant on grounds of age.
6. DECISION OF THE EQUALITY OFFICER.
I find that the respondent discriminated against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, in the manner it adjusted her working arrangements in January, 2004. As the complainant no longer works for the respondent I consider compensation to be the most appropriate form of redress. In assessing the quantum I note that the complainant rather hastily terminated her employment with the respondent and never really explored, to any appreciable extent, any options on reviewing her working arrangements. I am of the view that her failure in this regard should be reflected in the award of compensation. I therefore order, in accordance with section 82 of the employment Equality Acts, 1998-2004 that the respondent pays the complainant the sum of €8,000 by way of compensation for the effects of the discriminatory treatment on her. This award does not contain any element in respect of loss of income on the part of the complainant.
5 September, 2006
(1) S.I. 37 of 2001
(2) See Barton v Investec Henderson Crosthwaite Securities  IRLR 322, the decision of the Court of Appeal for England & Wales in Wong v Igen Ltd & others [2005 IERLR 258 and the decision of the Labour Court in Walsh, Jackson and Acton v Ballinrobe Community School EDA 065
(3) Nevins, Flood & Murphy v Portroe Stevedores  16 ELR 282