EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012- 141
(Represented by Cathy Hamilton, B.L. instructed by Richard Grogan & Associates, Solicitors)
File references: EE/2010/128
Date of issue:25 October 2012
Headnotes: Employment Equality Acts, 1998-2008 - sections 6, 8 - gender - marital status- family status - conditions of employment - prima facie case - discriminatory dismissal.
1.1 This dispute concerns a claim by Ms Malgorzeta Sudol (hereinafter "the complainant") that she was subjected to discriminatory treatment on the ground of gender, marital status, family status and/or race in terms of Sections 6 (2) (a), (b), (c) and (h) of the Acts and contrary to Sections 8 of the Employment Equality Acts by Thomas Ennis (hereinafter "the respondent"). The complainant also maintains that she was discriminatorily dismissed.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on 24 February 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 3 August 2012, the date the complaint was delegated to me. Submissions were received on behalf of all parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 5 September 2012.
2. Summary of the Complainant's Submission
2.1 The complainant who is a Polish national states that she was employed by the respondent. She submits that she did not receive a contract of employment, health and safety documentation or training. The complainant states that she came back from maternity leave her hours were reduced and she had to leave as the hours were reduced so much. No reason was given for the reduction. She complains that she was discriminatorily dismissed. The complainant contends that this constitutes unlawful discrimination on grounds of gender, marital status, family status and race contrary to the Acts. The complainant referred to a number of cases in support of her case, including Southern Health Board -v- Dr Teresa Mitchell, Campbell Catering Ltd -v- Rasaq (EED048) and 58 Complainants -v- Goode Concrete (DEC-E2008-020).
2.2 At the hearing the complainant stated that she did receive a contract of employment. The complainant's representatives withdrew her claim in relation to training and her claims of discrimination on grounds of race. At the hearing the complainant stated that the named respondent had taken over her place of employment in a transfer of undertakings in July 2009. The complainant stated that she had worked for the previous owner from August 2006. However her contract of employment submitted after the hearing sets out her start date as 25 February 2007. The complainant stated that she went on maternity leave from September 2008 to March 2009. On her return from maternity leave her hours were reduced - previously she had worked 35 hours per week and on her return she worked 18-22 hours per week. All of the staff employed there were women, some of these were married, others were single and some of the women had children. She stated at the hearing that, before she went on maternity leave, the employer had wanted to reduce the staff's hours and while others had agreed to this she had not. Notwithstanding this, when she returned from maternity leave, she was rostered for less hours. The complainant stated that when the respondent took over her hours were further reduced and she was left in a position that she had to leave and get another job. Her representative contended that her original contract of employment was for 39 hours per week, that her hours would not have been reduced if she had not had a baby and that she was constructively dismissed.
3. Summary of the Respondent's Submission
3.1 At the hearing the respondent agreed that there had been a transfer of undertaking when he took over the store in which the complainant worked in August 2009. He stated that he had appointed a manager to the store. As far as he was concerned nothing changed in relation to the hours worked by staff. He took the rosters as they were and tried to keep them going. He stated that no one was rostered for 35 hours.
3.6 In response to the complainant's claim that the manner in which she was dismissed was discriminatory the respondent states that he did not dismiss the complainant rather she chose to leave of their own accord. The complainant had requested additional hours but he was not in a position to increase her hours. If he could have facilitated her he would have. He had no problems with the complainant's work and he would be happy to re-employ her. He stated that he had offered her job back when she was unemployed. He stated that he had given her a glowing reference and had had no difficulties with her performance.
4. Conclusions of the Equality Officer
4.1 The only issues for decision in this case are whether or not the respondent discriminated against the complainants on the grounds of gender, marital status and family status in terms of section 6 of the Employment Equality Acts, 1998 to 2008 as regards conditions of employment and discriminatory dismissal.
4.2 Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where "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.....". Section 6(2) of the Acts defines the discriminatory grounds of (a) gender - "as between any 2 persons, ... that one is a woman and the other is a man"; (b) marital status - "as between any 2 persons, ... that they are of different marital status" and (c) family status : - "as between any 2 persons, ... that one has family status and the other does not".
It follows therefore that the complainant must be the subject of less favourable treatment in terms of gender because she is a woman or on grounds of marital status because she is single and on grounds of family status because she is a parent of a young child.
4.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he/she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him/her, his/her case cannot succeed.
4.4 I now turn to the complainant's case that the reduction in her rostered hours constitutes less favourable treatment on grounds of gender, marital status and/or family status. She stated that on her return from maternity leave in March 2009 her hours were reduced and continued to be reduced to October 2009 when she resigned. Payslips from 24 February 2008 to 7 September 2008 were submitted on her behalf in evidence. These show that in this period her weekly hours worked ranged from 18 hours to 34 hours, averaging 30 hours per week approximately. In addition payslips from March 2009 (when she returned from maternity leave) to 14 April 2009 were submitted and show she worked from 18 hours to 24 hours per week, averaging 23 hours approximately. Payslips from 2 August 2009 to 18 October 2009 were also submitted on behalf of the complainant and show the weekly hours she worked in that period ranged from 18 hours to 25 hours, averaging 22 hours per week approximately. The complainant in her evidence at the hearing stated that the other staff had had their hours cut both before and during her maternity leave. She stated that they had agreed to this and she had not. On the basis of the complainant's evidence I find that she was not treated less favourably than other staff. I am satisfied that the complainant has not established a prima facie case from which discrimination on the grounds of her gender, family status and/or marital status grounds may be inferred and her complaint must therefore fail.
4.5 Turning to the complainant's case of discriminatory constructive dismissal, the complainant resigned from her employment with effect from 18 October 2009. Prior to this she had asked for more hours of work and the respondent had advised her that he was not in a position to provide her with more hours. She explained that she was unable to live on the salary she was getting from the respondent and she resigned when she got another job providing more hours of work. As I have found that the reduction in her hours of work does not constitute discrimination for the purposes of the Employment Equality Acts, I do not find that the complainant has established a prima facie case that her resignation from the respondent's employment constitutes constructive dismissal for discriminatory reasons. Accordingly the complainant's case of discriminatory constructive dismissal must also fail.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision.
(i) the respondent did not discriminate against the complainant on the gender, marital status or family status grounds pursuant to section 6(2) of the Acts in terms of her conditions of employment contrary to section 8(1) of the Acts.
(ii) the respondent did not discriminate against the complainant on the gender, marital status or family status grounds pursuant to section 6(2) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts.
25 October 2012