THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2014 – 057
Mr Gerry Lavelle (represented by IMPACT)
Border, Midland, and Western Regional Assembly (represented by LGMSB)
File References: EE/2011/548
Date of Issue: 11th August 2014
Keywords: age – discriminatory conduct – prima facie case not rebutted
1.1. The case concerns a claim by Mr Gerry Lavelle that the Border, Midlands and Western Regional Assembly discriminated against him on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2011, in terms of his conditions of employment.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 18 July 2011. A submission was received from the complainant on 4 April 2012. A submission was received from the respondent on 21 May 2012. On 14 April 2014, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 12 May 2014. Additional evidence was requested from the respondent at the hearing and received on 16 June 2016.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he made an application to the respondent to e-work for 2 days each week for 2011 on 5 November 2010. This was refused by management on 12 November 2010. The complainant appealed this decision, but was advised verbally on 21 January 2011 that the appeal had been refused. On 4 February 2011, he received this decision officially by letter dated 20 January 2011.
2.2. The complainant submits that e-working has been available in the organisation since 2004. He states that he applied for 2 days e-working per week to reduce commuting time, avoid traffic congestion and improve his work-life balance. The complainant had 36 years of pensionable service at the time of his application and considered that e-working might also have assisted him in making the transition to retirement from a social perspective, in case he would opt for retirement under the Croke Park Agreement in place at the time.
2.3. In the respondent organisation, e-working needs to be applied for for each new calendar year. The complainant states that two colleagues, both younger than him, were granted e-working for 2011, despite the fact that they did not give reasons for their applications at all. The complainant states that he was informed and submitted correspondence from his manager to this effect, that “e-working was not intended to be a prelude to or a transition to retirement and that planning for retirement was not compatible with the spirit of working remotely.”
2.4. The complainant also received communications that “e-working arrangements do not give rise to a reduction in the responsibilities or workload of working hours of an applicant”. The complainant disputes having ever mentioned anything to the respondent regarding reduced responsibilities or workload.
2.5. The complainant submits that the difference in treatment to his younger colleagues who were approved for e-working constitutes discrimination in his terms and conditions of employment on the ground of age.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the refusal to permit the complainant to e-work was not in any way linked to his age, but rather, to the tasks demanded by his role as Programme Executive, Corporate Affairs. Within this role, the complainant’s main responsibility is the HR function of the Assembly.
3.2. The respondent further states that e-working is not an employee benefit, and as such, employees are not guaranteed or entitled to the opportunity to e-work. Its policy states clearly that staff applying for e-working must be engaged in duties which are compatible with remote working and that the reasons for e-working must be appropriate and consistent with the policy. The respondent states that the complainant’s application was rejected on the basis that his work and responsibilities do not lend themselves to working remotely, and on the basis that his reason for seeking e-working, “to make a smooth transition to retirement”, was an inappropriate rationale for the assembly to facilitate e-working.
3.3. With regard to the comparators cited by the complainant, the respondent disputes that they perform similar work to the complainant. One of these employees is responsible for the respondent’s IT systems, including its website. Most of these tasks can be carried out remotely, and this staff member is currently working remotely for one day per week. The other staff member is the respondent’s Policy and Research Officer. This staff member is approved to work remotely up to 3 days a week.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. The respondent organisation is a small operation with 13 full-time staff, ten of whom are permanent, and three on contracts. It supports the delegates to the Border, Midlands and West Assembly and liaises extensively with institutions of the European Union over funds and projects. The complainant, who began his career in local government in Mayo County Council on 30 December 1974, has worked for the respondent since 2000. His roles are HR and Corporate Affairs. He also drafted the respondent’s original e-working policy, years before he applied to be allowed to e-work for himself.
4.5. The respondent’s argument for rejecting his application, respectively arguing their position before the Tribunal, can be condensed as follows: The complainant has not shown that he has a valid comparator and has therefore not established a prima facie case of discrimination; the complainant’s motive for applying for e-working is not a valid motive; and that the demands of the complainant’s role do not permit e-working. I will address each of these in turn.
4.6. In terms of the complainant’s comparator, the complainant was aware, by reason of having been responsible for HR within the respondent organisation for many years, that all people who had been approved for e-working had been younger than him. This was confirmed from information supplied by the respondent after the hearing. It was also confirmed that one female colleague who was close to the complainant in age was also denied e-working. As noted, the respondent organisation is small, and only five staff members in total ever applied to e-work after the introduction of the scheme in 2004. I find it of significance that only staff members younger than the complainant and his colleague were approved for e-working. These staff members were all under 40 years of age, whereas the complainant and his colleague were over 50 years of age.
4.7. I further note that from the respondent documentation supplied in evidence, as well as the direct evidence of the respondent’s Director, Mr F., that the complainant’s stated reason for applying to e-work, namely, a phased withdrawal from the office environment in preparation for eventual retirement, was viewed by the respondent as an insufficient, if not improper motive. Mr F. noted verbatim on the complainant’s application form: “Planning for retirement is not compatible with the spirit of working remotely”.
4.8. The complainant’s representative submitted, and I accept, that it is not for the respondent to evaluate the motives of a staff member to e-work, especially since the respondent’s e-working policy does not request an applicant to furnish one. I also agree with the complainant’s representative that an older worker is likely to have a different motivation to want to e-work than a worker with family status, for example, or a worker with a disability. I am further satisfied that insofar as a motive for wishing to e-work or work remotely is disclosed by a worker which is related to a status protected by the Acts, that the rejection of the validity of such a motive by an employer is sufficient to raise an inference of discriminatory treatment within the meaning of S. 85A of the Acts.
4.9. In the case on hand, the complainant’s motive for his application, which is clearly related to his age, was expressly rejected by the respondent. Accordingly, I am satisfied that the complainant has succeeded in establishing a prima facie case that the respondent’s refusal to let him e-work amounts to discriminatory treatment on the ground of age.
4.10. The respondent’s main defence during the hearing of the complaint was that the complainant’s role was not compatible with e-working, due to the amount of liaising with other people that his role in HR and Corporate Affairs required. The respondent said that the two people approved for e-working were in research and policy, and in IT, respectively. The respondent also pointed out that e-working is not a right, and that business exigencies must in all cases be a prime consideration for approval or rejection. However, the respondent’s argument is weakened considerably by the fact that when the complainant was rejected for e-working, he was offered instantly to apply for the Shorter Working Year scheme, which could have seen him being out of the office for block of between two and 12 weeks of unpaid leave in addition to his annual leave.
4.11. Furthermore, the complainant stated in evidence, and the respondent did not dispute, that the complainant had already taken up to eight weeks of leave in one block in the past without any detriment to the respondent organisation. If the complainant had been as indispensable to the day-to-day operations of the respondent as the witnesses of the respondent submitted at the hearing, such a long absence ought to have caused havoc, and certainly greater difficulty that one or two days per week of the complainant logging on remotely and being contactable on his phone.
4.12. Finally, I note that even if the respondent had concerns that the complainant’s work performance would drop as a result of working from home, the respondent could have easily agreed to a pilot of several months, and perhaps with one day of remote working instead of two as applied for by the complainant. However, there is no evidence that such options were ever explored.
4.13. For all of these reasons, I do not find that the respondent has succeeded in rebutting the prima facie case established by the complainant, and that the complainant is entitled to succeed in his complaint
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the Border Midlands West Assembly has discriminated against Mr Gerry Lavelle in his conditions of employment, on the ground of his age, contrary to S. 8(1) of the Employment Equality Acts 1998-2011.
5.2. In accordance with Section 82 of the Acts, I hereby order that the respondent:
(i) Facilitate the complainant to e-work for a minimum of one day per week, for a period of one year, with a review meeting of the feasibility of this arrangement at the end of this period, and with the complainant’s union representative present at the meeting if the complainant so wishes; and
(ii) Pay the complainant €2000 in compensation for the effects of the discrimination. The award is not in the nature of pay and therefore not subject to tax.
11 August 2014