EQUALITY OFFICER'S DECISION NO: DEC-E/2015/044
Natalija Briceva andLudmila Bistricki
(Represented by Richard Grogan & Associates.)
ISS Ireland Limited
(Represented by IBEC)
FILE NOs: EE/2013/175 & 176
Date of issue: 15 July 2015
1.1 This dispute centres on an allegation by the Complainants that the Respondent discriminated against them on grounds of their gender contrary to the Employment Equality Acts in respect of their conditions of employment, in terms of their shift working arrangements. The Complainants further allege discrimination on grounds of marital status and family status in light of the imposed evening shift arrangements.
2.1 Ms Bistricki and Ms Briceva referred their complaints to the Equality Tribunal on 11 April and 12 April 2013 respectively. In accordance with his powers under section 75 of the Employment Equality Acts, the Director, on 6 March 2015, delegated the cases to me - Gary Dixon, Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date on which I commenced my investigation.
2.2 Written submissions were received from each party. As required by Section 79(1) of the Acts, and as part of my investigation, I proceeded to a Hearing on 10 April 2015.
3. Summary of Complainants’ Cases
3.1 Both Complainants are Latvian citizens who have been working as cleaning operatives at the Hewlett-Packard (“HP”) site in Leixlip, Co. Kildare since 2005. The business in which the Complainants are employed, and which provides cleaning services at the HP plant, was acquired by the Respondent (ISS Ireland Limited) in 2008. Both Complainants are currently employed by the Respondent.
3.2 While both Complainants lodged their complaints of alleged discrimination with the Equality Tribunal on the gender ground, they subsequently submitted that an Irish national would not have been treated in the way that they have been treated. They further submitted that neither an Irish female, nor an Irish female who is married with a child, would have been required to work evening shift work as they were so required.
Ms Briceva’s Allegations
3.3 Ms Briceva states that her contract of employment with Noonan Services Limited, the previous cleaning service provider at the HP plant, was transferred to ISS Ireland Limited (“ISS”) via Transfer of Undertakings Regulations pertaining to the acquisition of the business in 2008. The contract specified that she would work 5 days per week - Monday to Friday - from 8.00 am to 4.30 pm. It also specified that Ms Briceva’s hours of work would not be less than 39 per week with an hourly pay rate of €8.68 (which has since increased to €10.00).
3.4 In 2010 the nature of the service contract between ISS and HP was changed resulting in the need for ISS to rationalise its operations at the plant. This rationalisation was achieved through a variety of cost saving measures, including redundancies and revised shift cycles, as a result of which the Complainants shift patterns were changed from day to evening working arrangements. Ms Briceva was subsequently advised that her hours would be changed and that she would be assigned to evening duty. She formally objected to this arrangement and she has named a male comparator who, she alleges, is not required to work evening shifts. She also states that the male comparator, who is an Irish national, has less service than she has with the company.
Ms Bistricki’s Allegations
3.5 Ms Bistricki states that her contract of employment also specified her hours of work as 8.00 am to 4.30 pm. However, she states that she occasionally worked from 2.00 pm to 10.00 pm when requested to do so. Following a collective agreement negotiated between the company and the relevant trade union (SIPTU), Ms Bistricki states that she was formally reassigned to regular evening shift work (2.00 pm to 10.00 pm). Ms Bistricki, who is married and has a child, submits that this arrangement is not family friendly, nor was it agreed to by her as she is not a member of SIPTU. She has also named the same male comparator, who is an Irish national and who, she submits, is not required to work on the evening shift.
4. Summary of Respondent’s case
Response to Ms Briceva’s allegations
4.1 The Respondent submits that, at the time of transferring to the company on 1 July 2008, Ms Briceva completed the required transfer forms to the new employer as part of the consultation process. She also received a copy of her employment contract and full training was provided which included her receiving copies the company’s employment policies (including its dignity at work policy), the grievance procedure and the equal opportunities policy.
4.2 The Respondent states that in July 2010, due to contract changes at the HP site, it commenced discussions with SIPTU in respect of operational restructuring, including redundancies that were necessary in order to achieve cost reductions of approximately €600,000 p.a. which were being imposed by the client. These discussions resulted in 11 redundancies and a restructuring of shift patterns. As the majority of redundant workers were from the evening shift, the Respondent states it became necessary to change the working patterns of some of those employees who were retained. The Respondent denies any discrimination – on the gender ground or otherwise - in regard to these required rationalisation arrangements.
4.3 The Respondent submits that, in early 2013, Ms Briceva was informed by her manager that her working hours would be changed with effect from 11 February 2013 and that she would be required to work evening shifts. While this was accepted by Ms Briceva at the time, on 7th February she wrote to the company expressing a grievance and stating that she was only agreeing to work the later shift under protest.
4.4 The Respondent states that its Customer Services Manager then met with Ms Briceva in an effort to resolve issues; he explained that the changes in shift patters had been negotiated with her union (SIPTU) and that she had signed acceptance of the changes at the time. The Respondent submits that it also facilitated Ms Briceva where possible in assigning her to day shifts when such became available due to other employees being absent on annual leave or sick leave.
4.5 As regards the Complainant’s allegation in relation to employees with less service in the company, specifically the named male comparator who is an Irish national, the Respondent confirmed that the comparator works as part of a multi-skilled team which was recruited to cover a wide range of divisions in the business requiring team members to be flexible in their availability for varying shift patterns at different locations. These locations include plants in Galway where the extra travel time is not accounted for in their set hours. The Respondent states that while positions on the multi-skilled team were advertised and it was open to Ms Briceva (and Ms Bistricki) to apply for same, they did not do so.
4.6 The Respondent submits that Ms Briceva’s complaint of gender discrimination essentially centres on the fact that her shift pattern was changed from days to evenings while a male employee with less service in the company than her was allocated day shifts. However, the Respondent considers that Ms Briceva has not demonstrated that she was treated less favourably than any comparable male employee on the basis of her gender, as the male comparator cited was engaged on specific duties as a member of a separate multi-skilled team as outlined above. The Respondent also denies that the change in shift pattern was implemented without Ms Briceva’s consent as it was fully negotiated and agreed with her trade union and Ms Briceva signed acceptance of same.
Response to Ms Bistricki’s allegations
4.7 The Respondent’s arguments in relation to Ms Bistricki’s allegations are similar to those in respect of Ms. Briceva. However, it accepts that Ms Bistricki was not a member of SIPTU but states that she was given full opportunity to be involved in the consultation process and, although she declined to participate in these discussions, she agreed to signed up to the new shift arrangements. The Respondent again submits that both Ms Bistricki and Ms Briceva had the opportunity to apply for positions on the multi-skilled team of which the named comparator is a member, but neither opted to do so.
4.8 In summary, the Respondent submits that the Complainants have not established a prima facie case of discrimination to the extent that the burden of proof can be deemed to shift to the Respondent. In this regard it refers to precedent cases which demonstrate the requirement on the Complainants, in the first instance, to establish facts from which it can be inferred that they were treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory grounds cited. In particular the Respondent refers to the Labour Court’s frequently-cited findings in Teresa Mitchell v Southern Health Board (DEE11, 15.02.01) which confirm the evidential burden which must be discharged by Complainants before a prima facie case of discrimination can be said to have been established. The Respondent also cites Margetts v Graham Anthony & Company Limited (EDA038) where the Court stated that - “the mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”
4.9 Without prejudice to the above, the Respondent rejects any allegations of discrimination contrary to the provisions of the Employment Equality Acts, in particular, it disputes the relevance of the named male comparator as he is engaged on separate and different duties as a member of the multi-skilled team which is required to be flexible not only in shift patterns, but also to be available to work at different geographic locations.
5. Conclusions of Equality Officer
5.1 In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the Hearing.
Burden of Proof
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint of discrimination. It requires Complainants to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If they succeed in doing so, then, and only then, is it for the Respondent to prove the contrary.
5.3 In Teresa Mitchell v Southern Health Board (DEE11, 15.02.01) the evidential burden which must be discharged by Complainants before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:
“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 on seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and 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. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”
5.4 In evaluating the evidence, therefore, I must first decide whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts. As outlined above, the Labour Court has consistently held 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.
5.5 Following referral of their complaints on the gender ground, the Complainants submitted allegations of discrimination on the ground of race. Ms. Bistricki’s complaint also includes allegations of discrimination on grounds of marital status and family status. (Ms.Bistricki is married and has a child).
5.6 The Complainants have submitted that an Irish national would not have been treated in the way that they have been treated, nor do they consider that an Irish female, nor an Irish female who is married with a child, would have been required to work evening shift work. Essentially, therefore, the Complainants have sought to widen the alleged discriminatory grounds to include nationality (i.e. the discriminatory ground of race as defined under section 6(2)(h) of the Acts).
5.7 The Respondent, ISS Ireland Limited, employs more than 3,000 people in Ireland of varying nationalities – and of varying marital status and family status. The Complainants allege that the Respondent would treat Irish nationals differently. Therefore the allegation in respect of the race ground appears to be that non-Irish nationals are treated less favourably than Irish nationals.
5.8 Section 6(2)(h) of the Employment Equality Acts defines the race ground as –
“….… (h) that they are of different race, colour, nationality or ethnic or national origins….”. As both Complainants are Latvian nationals, I consider that the appropriate complaint to be addressed here is an allegation of discrimination on the ground of race in comparison to Irish and/or other nationality (or nationalities). However, in my view no prima facie case has been established in relation to the race ground as no evidence has been presented to show that employees of Latvian nationality have been treated less favourably than any other comparable ISS employees of a different nationality.
5.9 As regards allegations of discrimination on the grounds of family and/or marital status, while I accept that the new shift arrangements may have been less than family friendly, no evidence has been presented to show discrimination against either of these categories when compared to employees of a different marital and/or family status. What has been complained of is that neither an Irish female, nor an Irish female who is married with a child, would have been required to work evening shift work as the Complainants were so required. Essentially, however, this amounts to an allegation of less favourable treatment on grounds of non-Irish nationality, a matter that I have dealt with already. Accordingly, I consider that no prima facie case of discrimination has been established in regard to either of the grounds of family status or marital status.
5.10 The essential issue for decision by me, therefore, is whether the Respondent discriminated against the Complainants on grounds of their gender in terms of Section 6 and contrary to Section 8 of the Acts.
5.11 In 2010 the nature of the contract between ISS and HP was changed resulting in the need for ISS to rationalise its operations at the plant. This fact is not in dispute. The necessary rationalisation was achieved through a variety of cost saving measures, including redundancies and revised arrangements regarding shift cycles, following which the Complainants shift patterns were changed from day to evening working arrangements.
5.12 The named male comparator (who has less service with the company than either of the Complainants) is employed as part of a multi-skilled team to cover a wide range of divisions in the business. This team is required to work on a variety of shifts across a number of different locations, including sites in Galway. Travel time to these sites is not accounted for in the set hours of team members. Positions on this multi-skilled team were advertised and applications were open to all employees. While the Complainants did not apply for such positions at the time, the Respondent states that they are both welcome to apply for any future positions arising.
5.13 Section 6(1)(a) 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 ……”. I do not consider that the male comparator cited in support of the allegations of gender discrimination could be deemed to be in a comparable situation to either of the Complainants for the reasons outlined at 5.12 above. Therefore, I have found no facts from which it may be presumed that there has been discrimination. Accordingly, I consider that no prima facie case of discrimination has been established on the gender ground and that there is no burden of rebuttal on the Respondent.
5.14 I appreciate that the Complainants were significantly inconvenienced by the change in shift patterns. However, I do not consider that such inconvenience constitutes discrimination within the meaning of the Employment Equality Acts on any of the grounds complained of. I also note that both Complainants have since been facilitated by the Respondent with a return to day shift work.
6. Decision of Equality Officer
6.1 I have completed my investigation of this complaint and, in accordance with section 79(6) of the Employment Equality Acts, I hereby make the following decision:
6.2 I consider that the Complainants have not established a prima facie case of discrimination on any of the grounds complained of contrary to the provisions of the Employment Equality Acts.
15 July, 2015