Complainant

Respondent

Parties

Julija  Makejeva

Ballymaloe Cookery School

Representatives

 Self-represented

David Pearson, Solicitor of  J.W. O'Donovan LLP

Act

Complaint

Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00058878-001

18/09/2023

The Complainant filed a complaint for Adjudication under the Employment Equality Act alleging discrimination on the basis of family status.

The Respondent denies the Complainant’s claims.

The Complainant outlined a series of issues, from her perspective, involving a new management structure and new management personnel, problems with her contract and the assignment of duties and her working pattern (start time, finish time, lunch break, Saturdays).

The Complainant has been working for the Respondent since 2005. She outlined that she had worked a 9 am – 5pm for many years. Then, the business changed its work patterns and she worked 8 am – 4pm. That was her work pattern prior to going on maternity leave in 2020. When she returned from maternity leave in 2021, she was facilitated in a 9 am – 2pm work pattern as she was breastfeeding. She then returned to her previous work pattern, and did successfully work from 8 am – 4pm, for a short period when her mother was visiting from her home country and in a position to support her with childcare. When her mother returned to her home country, the Complainant was unable to achieve an 8 am start, due to her childcare arrangements, and was attending at work late, as a result. There were several engagements with her employer in relation to ways to facilitate the logistics of her situation. The Complainant asserted that her ‘new status as a mother’ seemed to pose a problem for her employer. The changes in management structure were introduced in 2023, with the appointment of new managerial personnel, as was her re-deployment from the production/market kitchen to the cookery school.

The Respondent denies the Complainant’s claims. It submits that no facts have been adduced from which a presumption could arise which would shift the burden of proof to the Respondent, in respect of a complaint on the ground of family status within the cognisable period. It was further submitted that the Complainant identified no comparator. In those circumstances, the Respondent elected not to go into evidence. For completeness, the Respondent further submits no facts on the basis of any protected ground had been adduced in relation to any time-frame, from which an inference of discrimination could be drawn. The Respondent submits that, on the contrary, it actively engaged with the Complainant and facilitated her extensively.

The Complainant, at the hearing, outlined a series of frustrations and complaints she had with her employer. She disputed that she worked for the Respondent, Ballymaloe Cookery School, and said that she worked for Ms. Darina Allen (now a director). She said she was hired by Ms. Allen and she always worked for Ms. Allen. In December 2022, Ms. Allen stepped back somewhat from her day-to-day role and going forward would be ‘more on the operations side’, there was a management restructure, and new managerial staff were installed. The Complainant particularly objects to this and characterises it as ‘discrimination.’ She submits that it is in breach of her contract of employment.

She further raised issues with her contract of employment, alleging that it was not legal, and that it was unsigned. Two contracts were produced and the one the Complainant was relying upon from 2016 as unsigned was, in fact, signed by her. She confirmed that that was her signature. The name of her employer is listed on the contract as Ballymaloe Cookery School, not Ms. Darina Allen. That was put to her on cross-examination, and she did not accept it. She insisted that Ms. Darina Allen was her employer.

Mindful that the Complainant was a lay litigant representing herself, the Adjudication Officer clarified for the Complainant that the word ‘discrimination’ has a specific legal meaning, that it means being treated ‘less favourably’ on the basis of a protected ground than a person who does not possess that protected ground (a comparator), e.g. a woman being treated less favourable than a man, or a person of one race being treated less favourably than a person of another race, by way of example; and that in this instance, the Complainant had filed a complaint on the ground of family status, and therefore she needed to provide evidence that she had been treated less favourably on that basis (as compared against a comparator).

The Complainant outlined that she objected to what she perceived as a lack of communication. She particularly objected to the new manager, ‘always telling her what to do.’ [The Respondent’s submissions outline that the Complainant raised a bullying complaint against her new manager, which was investigated and not upheld.] The Complainant outlined that multiple meetings were held with her, by the management team, which she said she found very stressful, and to which she also objected. On cross-examination, she conceded that those meetings pertained to her time-keeping.

The Complainant in her oral evidence also suggested that ‘all this happened since I became a mother’, i.e. that she had been the subject of less favourable treatment connected with her maternity. However, she also adduced no evidence in support of that proposition, and that is beyond the scope of both the complaint filed and the time-line for same, in any event.

The Complainant presented as frustrated and upset. She articulated feelings of betrayal, and expressed that she had always been flexible with her employer, who she submitted was Darina Allen, for years, working on Saturdays or on short notice, as required; and that she felt that, under the new management structure, and new managerial staff, the same flexibility was not being extended to her. She particularly objected to having to report to a new manager, which she submitted was ‘discrimination’ and she objected to ‘them always telling me what to do.’ She submitted they were ‘always telling me the job and telling me how to do the job.’ She further objected to her employer having multiple meetings (pertaining to her time-keeping with her), which she said she found very stressful.

The Complainant outlined the length of time she had worked for the company, that she went on maternity leave in August 2020, her return from maternity leave on a part-time basis, in June 2021 (as she was breastfeeding, at the time), and her subsequent return to a full-time work pattern. The Complainant outlined her personal circumstances – the fact that she does not have family locally, her difficulty in sourcing suitable childcare and the logistical practicalities of the distances she had to drive to do drop offs and pick ups etc.

In response to a query from the Adjudication Officer, the Complainant confirmed that she had successfully worked her previous full-time work pattern and her previous hours (8 am start), subsequent to her return from maternity leave (and subsequent to the temporary part-time work pattern facilitating breastfeeding), for a period when her mother was visiting from her home country and was providing in-home childcare. The Complainant explained that when her mother returned to her home country, she was no longer in a position to do that.

She explained that she had started working for the Respondent in 2005, initially as a cleaner, and then having completed the twelve (12) week cookery course, she was working in her current role (market cook/teacher). She said that she worked for the market until 2018 and that her role was fulltime. She went on maternity leave in August 2020. In June 2021, she returned from maternity leave. She said that the job was different due to Covid-19. She said that she had a new manager on return. She said that previously she had no manager. [However, she also said in her evidence that she worked for Darina Allen]. She said there was a lot of change.

She explained that in 2023, she had a knee injury and was off work for a period of a few weeks. That period ran into her pre-booked annual leave. When she returned, she found that she was being assigned to teach in the cookery school, whereby previously she had been largely based in the market/production kitchen. That move took place on August 31st and she was notified of it in writing on September 6th.

[The cognisable period for this complaint is 27th October 2023 – 26th April 2024. The Complainant had previously submitted an inchoate complaint.]

The Complainant outlined that she is a mother and that she wanted flexible hours/time. She asked for a 9 am start.  

She said that she did not ask for the change, for the swap from the production kitchen to the cookery school. She said that she did not request it. She said that she was ‘not ready’ and ‘did not feel comfortable.’

The Adjudication Officer asked the Complainant to clarify her complaint because her oral evidence seemed at odds with her written narrative on the complaint form she had submitted. In her oral evidence, the Complainant said that in the production kitchen she had flexibility and then, in the school, she had no flexibility because there are students arriving [and the teachers have to be on site in advance of that]. Her complaint form indicated that she had insufficient flexibility in the production kitchen as she could not make a start time prior to 9am. Her start time was 8 am (and then by agreement, 8.30 am in the production kitchen.) The Complainant said that her production kitchen job had flexibility and that she was happy with the level of flexibility.

She said that she was teaching during that six month period, flexible hours were not possible.

The Adjudication Officer enquired as to how that constituted discrimination in relation to the Complainant’s family status? The Complainant said that her contract was not legal, that it was not signed by her employer. She said that she was ‘constantly meeting people who is not legally on my contract’ and that ‘people who are not on my contract constantly tell me about the job and tell me about the job I need to do. That is my discrimination. What time I need to come, to go, what I always need to do.’

The question of not identifying any comparator was put to her.

She said that ‘everything is not legal.’ She said that things came from the managers and not the directors. She said there were ‘no papers signed’, that she was told to move from her position, that they ‘constantly’ held meetings with her, and ‘constantly stress me about the hours.’ She re-iterated that she wanted a 9 am start. She said that it was ‘half an hour.’ She said that she was a mother, that she was not in the same position as some of the other employees, who have support, family close by or children who are adults. She disputed the idea that the employer’s approach was required out of fairness to other staff. She said it was ‘not fairness because I am a mother. I have a small child.’

The production kitchen hours are 8 am – 4 pm, and the teaching kitchen hours are 8.30 am – 5pm and the Complainant said they could be longer.

The Complainant said that she wanted to stay in the production kitchen. She outlined that the hours had previously been from 9 am, and then the decision to change them to an 8 am start had occurred prior to her going on maternity leave.

There were three contracts of employment. The Complainant had requested a new contract in December 2024, which was provided. It was put to her, on cross-examination, that her job title was the same in the 2024 contract, as in the 2016 contract. It was put to her that she had requested her start date be clarified and recorded as 13th June 2005, which was done. That request stemmed from the fact that she had not had a contract when she started. She had a contract since 2016.

It was put to her that her objection to the contract is that she does not agree with the identification of the people she is reporting to.

It was put to her that the move in 2023 was explained. She disputed this and said: ‘Nobody explained.’

The meetings which were held at that time were put to her, as were the documented references to those meetings.

The meeting took place on August 31st, between the management team (Rory O’Connell & Adrienne Forbes) and the Complainant.

She was asked who her employer was. She insisted it was Ms. Darina Allen. Her contracts were put to her where the Respondent company is clearly listed as her employer. She rejected this.

She said that her role changed from 31st August 2023. She said that pre-maternity, she worked for Darina Allen. She said she always worked very hard and did everything for the company.

She said that when the changes occurred, there was no explanation, no email. The email setting out the changes was put to her.

She said, of the new management team: ‘Who are these people?

Her time-keeping was put to her. It was put to her that she was persistently late until 9 am? She said that it was ‘three (3) times.’

She said that the discrimination actually happened when she returned from maternity leave – June 2021. It was put to her that she had given no evidence in relation to that discrimination.

It was put to her that subsequent to her return from maternity leave, she was persistently late, that she usually arrived at work c. 9 am for an 8 am start. She said that Darina Allen gave her permission to start at 9. The Adjudication Officer enquired in relation to the period of part-time work the Complainant had done subsequent to returning from maternity leave. She explained that it was to facilitate breastfeeding, and that she had worked from 9 am – 2pm during that time. She said she was informed it was not possible any more, and she returned to full time work. She said that for a short period she did the 8 o’clock start; then on a short-term basis, she had an 8.30 am start. The employer agreed to this. Her mother had gone back to her home country and the Complainant had no family locally to assist with childcare.

The Complainant outlined her difficulties in finding a babysitter – she said it was so hard. She said that when her daughter started school, she had to drive twenty (20) minutes from house to the school. [When the Complainant was picking her child up on her lunchbreak, this represented a 40 minute round trip.]

It was put to her that management were constantly talking to her about her time keeping.

The Complainant said that she had been offered a part-time role. She said: ‘If I like, I can work from 9 - 2.’ However, she said: ‘But I can’t understand the difference, why can’t I work 9 - 5?’

Submission at hearing by the Solicitor for the Respondent

The identified the cognisable period as 26/4/24 – 27/10/23, and submitted that no direct evidence was given of any discrimination based on the ground a family status within that time frame. He said that all of the complaints being set out start from the time the Complainant came back from maternity leave. He further submitted that even if those complaints came within the relevant time frame under the Act, that they do not constitute discrimination based on a protected ground. He emphasised the requirement to identify a proper comparator and pointed to the fact that the Complainant had identified no comparator. He submitted that she was ‘feeling disentitled’, that ‘she was treated in a way she doesn’t like.’

He submitted that there is no direct evidence given of any discrimination which occurred within the time limit at all. He submitted that the Complainant alleges that her work changed on 31st August 2023 but that there is no evidence that that work was beyond the scope of her employment contract.

He submitted that no facts had been adduced within which the Adjudication Officer could begin to consider that discrimination had occurred.

He said that the requirement of a comparator was a principle set out in the Employment Equality Act, under s. 6(1) – ‘For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds 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.’

He submitted that in the absence of bringing forward any evidence that supports that contention, in the absence of any identified comparator, the Respondent does not have to go into evidence.

In relation to the burden of proof under s. 85A, he submitted that the Respondent is not required to go into evidence where the Complainant fails to establish even prima facie facts from which the presumption can move to the employer to be rebutted.

He submitted that there is no evidence of any direct discrimination within the cognisable period, that no comparator was identified, and that the Respondent has no case to answer

Written submissions on behalf of the Respondent

The Complainant has claimed that the Respondent has discriminated against her contrary to the Employment Equality Act 1998 on the grounds of the Complainant’s family status. The Complainant is a mother to a child under the age of 18.    

The Complainant’s complaint form specifically states that she was discriminated against in relation to: -  

(i)             Promoting her and; 

(ii)           Conditions of employment.

The Respondent denies all allegations of discrimination made by the Complainant.

Time-frame

The Complainant submitted her WRC complaint form for adjudication on 26th April 2024. The decision to assign the Complainant to additional teaching hours in the teaching kitchen of the cooking school was made for operational reasons in or around August 2023 and was formally communicated to the Complainant in person on 31st August 2023 and by email on 6th September 2023.

In accordance with section 77(5)(a) of the Employment Equality Acts 1998–2015, the statutory time limit for bringing a complaint is six months from the date of the alleged discriminatory act. On that basis, the relevant cognisable period for this complaint is 25 October 2023 to 26 April 2024. The Respondent respectfully submits that the decision giving rise to the Complainant’s allegations — namely her reassignment to the teaching kitchen — was implemented outside of this cognisable period. The Complainant has continued to work primarily in the teaching kitchen since that time, but any change to her role or responsibilities occurred more than six months prior to the date of complaint. Accordingly, the Respondent submits that the complaint, insofar as it relates to the reassignment in September 2023 equating to alleged discriminatory treatment (which is denied), is out of time and falls outside the jurisdiction of the Commission for consideration. 

Factual Background

The Respondent is a privately run cookery school based in Shanagarry, County Cork, established in 1983. The school delivers a 12-week certificate course alongside short courses, private classes, cookery demonstrations, a sustainable food programme, and a farm school. It also produces food for sale in the Garden Shop at Ballymaloe Cookery School and at the Midleton Farmers Market. 

It is submitted that the Respondent employs a diverse team, including many parents. Staff who have taken maternity or paternity leave have returned to work and have continued their careers within the cookery school without issue. The Respondent aims to facilitate flexibility where possible, particularly around family responsibilities, while ensuring teaching requirements and student experiences are not compromised.

The structure of the cookery school includes several kitchens, including the production or market kitchen, and the teaching kitchens.

During the 12-week course in the cookery school, there are typically 12 working teaching staff supporting approximately 66 students per course—an average of one teacher for every five or six students. The school day begins with student arrival at 8:00am, a teaching staff meeting (now referred to as an “assembly”) at 8:30am, and student cooking begins at 9:00am. It is critical that teachers are present for the 8:30am meeting to ensure adequate preparation and coordination for the day ahead.

The Complainant, commenced employment with the Respondent on 14 June 2005. She initially worked as kitchen assistant, and after being put through the Respondent’s 12-week cookery course, was offered the position of Market Cook/Teacher in 2016. She has remained in this role to date.

The Complainant’s Contract of Employment reflects the flexible nature of her role. It states:

“You are required to be flexible in this position and must be prepared to undertake such other work as may be assigned to you by your employer.”

The contract further provides:

“You will be required to work as per your contract based on business demands. Your normal working hours will comprise of a five-day week based on business demands. Occasionally, you may be required to work on a Saturday or Sunday on a rota basis but, as ever, we will endeavour to facilitate members of staff as far as possible.”

This is also stated in the Respondent’s Employee Handbook.

The Complainant was on maternity leave from August 2020 to June 2021.

The Complainant returned from maternity leave on 29 June 2021 on a part-time basis.

The Complainant alleges that, upon her return from maternity leave, her role in the production kitchen had been reassigned and that she was subsequently moved to the teaching kitchen "as a last resort." The Respondent disputes this. The Complainant’s duties have always included both teaching and cooking, and her assignment has varied depending on operational needs. Her reassignment formed part of a broader realignment of staff to support business demands.

From September/October 2021 onwards, the Complainant began raising concerns regarding her working hours. On 27th October 2021, she was invited to put her requests in writing to avoid confusion. Extensive efforts were made by management to accommodate her needs, including discussions about pick-ups and drop-offs, facilitating absences for childcare, and even exploring alternative childcare options.

Despite these accommodations, timekeeping became a persistent issue. She was scheduled to attend work at 8am in the production kitchen but often arrived to work an hour late at 9am. On 24th  May 2023, the Complainant was reminded to accurately record her hours. On 12th June 2023, a meeting was scheduled to discuss her hours and her work location. That meeting was held on 14th June 2023. The importance of attending work on time, in either the production kitchen or teaching kitchen, was reiterated to the Complainant. 

On 31st August 2023, the Complainant attended a meeting with Rory O’Connell (Director) and Adrienne Forbes (General Manager). During this meeting the Complainant was informed that the cookery school was in the process of moving staff around to different areas of the kitchens and the Respondent wished to move her role from the production kitchen to the kitchens teaching, demo, weigh up, and Wednesday lunch. She was informed that teachers must be on site by 8am or 8.30am, depending on the rota, and this was required so that a morning briefing could occur prior to teaching the cookery school’s students. The Complainant expressed that cannot start work before 9am. In response, she was reminded that staff in the production kitchen start at 8am so in the interests of fairness, it was best that everyone starts at the same time. Ms. Forbes and Mr. O’Connell made suggestions about childcare and informed her that the move to the teaching kitchen would take place the following Monday. 

In an email dated 6th September 2023, Adrienne Forbes (General Manager) stated:

“We have decided to move you to a teaching role for the foreseeable future for operational reasons and also to give you the opportunity to develop your skills in that area. We are currently relocating a number of other members of staff also for similar reasons.”

In that email, Adrienne Forbes also addressed concerns raised by the Complainant, outlined the relevant workplace procedures, and encouraged her to make use of the Respondent’s policies if she wished to pursue any formal complaint.

On 8th October 2023, the Complainant submitted a formal complaint regarding Adrienne Forbes. An informal meeting was held on 13th October 2023 with Darina Allen (Director) to explore further childcare options, though no practical solutions were found.

A formal grievance meeting followed on 31st October 2023, during which the Complainant set out to Toby Allen (Director of the Respondent company) her concerns regarding changes to her duties. On 2nd November 2023, Adrienne Forbes (General Manager) provided a summary of the duties the Complainant had declined or said she was unable to perform. A formal response issued on 6th  November 2023 which included steps to improve communication and address the concerns raised.

On Friday 9th February 2024, the Complainant made a late request for a delayed start the following Monday, which was not accepted due to the lack of notice. The Respondent reiterated the importance of written requests in line with policy. On 11th March 2024, she was reminded not to make misleading representations to staff about part-time requests being refused. The Respondent reaffirmed its willingness to discuss such arrangements.

Timekeeping and tardiness issues persisted and on 1st May 2024, the Respondent queried the Complainant’s continued late attendance. On 2nd May 2024, she requested to return to the production kitchen. The Respondent responded that this reassignment did not amount to a demotion and was consistent with standard business practice. Additionally, the production kitchen hours of work start at 8am and there is a requirement to work Saturdays (usually two within the month) which the Complainant confirmed she was unable to do.

On 3rd May 2024, a disciplinary meeting was convened in relation to her continued failure to attend at 8:30am. The Complainant went on certified sick leave shortly afterwards.

The disciplinary meeting was rescheduled several times due to sick leave. On 20th May 2024, the Respondent paused the process pending her return. A “cease and desist” letter was then received from her former solicitor on 27th May 2024 stating that the Complainant was not to be contacted while out sick. She returned to work on 28th May 2024, and the disciplinary meeting proceeded on 31st May 2024.

On 7th June 2024, Toby Allen wrote to the Complainant confirming that no disciplinary sanction would be imposed at that time. Instead, the Respondent proposed a temporary flexible working arrangement to support her family circumstances to include: 

·        3-day working week,

·        2 days starting at 9:00am (teaching),

·        1 day at 9:00am (non-teaching),

This was proposed with the understanding that full return to 8:30am starts would resume in due course. She was asked to confirm her agreement by 19 June 2024.

The Complainant declined the arrangement by email on 7th June 2024 and reiterated her allegations of discrimination, breach of contract, and bullying. She requested reinstatement to her prior role and that she be allowed to start at 9:00am until June 2025, with a new contract. The request was not approved and the Complainant continued to arrive late to work.  

On 20th June 2024, the Respondent issued a verbal warning for persistent failure to adhere to her start time. This was recorded in line with the disciplinary policy. 

During the meeting on 20th June 2024, the Complainant advised that her circumstances had changed and that she would shortly be in a position to commence work at 8:30 am. The Respondent welcomed this and requested confirmation of her proposed start date.

From that point onward, the Complainant’s timekeeping improved. In November and December 2024, there were further discussions around whether she was expected onsite before 8:30am. The Respondent confirmed that she was not. 

On 11th December 2024, the Respondent issued the Complainant with a revised contract of employment. Mr. Toby Allen in a letter to the Complainant, confirmed that she would not be required to work before 8:30am.

The Respondent has continued to accommodate the Complainant’s requests where feasible. In June 2024 the Complainant requested that her workday end at 5pm (sharp) and expressed that she could not stay at work later than 5pm. The Respondent approved this request and that arrangement remains to date.  

Then on 4th March 2025, the Complainant requested reduced hours from 28th April to 1st July 2025 due to a change in her family circumstances. This request was granted without issue. 

Legal Principles

The Complainant’s WRC claim form has set out a claim of discrimination in respect of which the Complainant seeks adjudication under Section 77 of the Employment Equality Acts (“EEA”). The Respondent denies that the Complainant was discriminated against on the grounds of her family status during the course of her employment.

Section 6(1) of the EEA 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 (2)."

Section 6(2) of the EEA defines the discriminatory grounds of family status as follows: 

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- …..

(c) That one has family status and the other does not (in this Act referred to as "the family status ground")

It is submitted that "family status" is defined in Section 2(1) of the EEA as follows:

''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;

It is accepted that the Complainant is a mother to a child who has not attained the age of 18 years. 

Section 85A of the EEA refers to the shifting of the burden of proof from the Complainant to the Respondent states as follows:

"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the complainant.

In Southern Health Board V. Mitchell DEE011 [2001] the Labour Court considered the extent of the evidential burden which the Complainant must discharge before a prima facie case can be made out. It held, inter alia as follows: 

“The first requirement is that the Complainant 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 Complainant must prove, on the balance of probabilities, the primary facts from 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 provide that there was no infringement of the principle of equal treatment.

In Melbury Developments Limited V. Arturs Valpeters EDA0917, the Labour Court in its determination stated: 

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The WRC in the case of 2 Named Complainants V. A Catering Company DEC-E2017- 054 analysed the above quotation from the Valpeters decision and stated:

“Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.”

In Graham Anthony & Company Ltd V. Margetts EDA 038, the Labour Court further commented on the potential burden which must be discharged by an Complainant before a prima facie case of discrimination can be said to have been established and stated as follows:  

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the [EE Acts] is not sufficient in itself to establish a claim for discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

Having regard to the above dicta, the mere fact that the Complainant falls within one of the discriminatory grounds (i.e. family status) under Section 6 of the Employment Equality Acts does not automatically give rise to a presumption of discrimination. The Complainant must still discharge the onus of adducing other facts from which discrimination can be inferred and it is submitted that he has failed to do so in this case. 

Furthermore, and of great significance, the Complainant has not identified a suitable comparator for the purposes of illustrating any less favourable treatment within the Respondent’s business.

It is submitted that the burden of proof only shifts to the Respondent where the Complainant establishes primary facts from which an inference of discrimination can be drawn. In order to establish a prima facie case, the Complainant must demonstrate that she was treated differently to a comparator in similar circumstances. As outlined above, speculation or unsubstantiated assertions are insufficient to meet this threshold. It is submitted that the Complainant has not discharged the initial probative burden and has failed to produce any evidence of differential treatment on the ground of family status when compared with her colleagues.

It is the Respondent’s position that all staff members at Ballymaloe Cookery School are required to carry out duties in accordance with the needs of the business, as set out in their respective Contracts of Employment. This requirement applies equally to all employees, regardless of family status. Accordingly, the Complainant’s reassignment and associated working arrangements do not amount to discrimination on the grounds of family status.

In a comparable decision involving an allegation of family status discrimination, A Chef V. A Hotel (DEC–E2017-080), the WRC cited the Labour Court’s reasoning in Tesco Ireland V. Swift, wherein the Court held:

“The European Court of Justice in the case of Julia Schnorbus V. Land Hessen (C-79/99) has stated that direct discrimination can only arise where the difference in treatment complained of is based on a criterion which is explicitly that of sex or is necessarily linked to a characteristic indissociable from that of sex. As this Court stated in Tesco Ireland and A Worker DEE014, while the responsibility for child care may in practice fall to a disproportionate degree on women, it cannot be said to be a characteristic indissociable from a woman’s gender. The Court cannot therefore accept the complainant’s complaint is one of direct discrimination.”

In A Chef V. A Hotel, the WRC ultimately found in favour of the respondent, stating: “I am satisfied that the Respondent was open to dialogue with the Complainant in terms of putting in place a mutually agreeable working arrangement in terms of the offer of promotion to the position of Supervisor in the Barista Bar.”

The Respondent submits that the Complainant remains employed in the role of Market Cook/Teacher. Regardless of whether a staff member is rostered in the production kitchen or the teaching kitchen, all employees are required to adhere to the working hours assigned to them. Full-time staff in the production kitchen are typically required to start work at 8:00am. Similarly, full-time teaching staff are expected to be present on site no later than 8:30am to attend the mandatory daily staff assembly and prepare for the commencement of classes at 9:00am.

The Respondent further submits that the Complainant shares a range of duties with other members of the market/production and teaching teams. These duties are routinely assigned based on operational requirements and are interchangeable across the kitchens. For example, should the production kitchen be short-staffed, the Complainant may be required to assist to ensure market orders are fulfilled. Equally, if additional support is required in the teaching kitchen due to, for example, staff absence or increased student numbers, staff may be reallocated accordingly. The Respondent respectfully submits that the nature of the business demands a flexible workforce capable of responding to evolving operational needs.

The Complainant also claims that she was discriminated against in respect of her conditions of employment and opportunities for promotion. The Respondent denies that the Complainant has been demoted or that her terms and conditions have been adversely affected in any way. On the contrary, the Respondent notes that the Complainant has received multiple pay increases in recent years. The Respondent has also continued to accommodate her requests for flexibility, including her recent arrangement of reduced hours to facilitate childcare.

Conclusion

The Respondent respectfully submits that the Complainant has failed to establish a prima facie case of discrimination under the Employment Equality Acts. The decision to assign the Complainant additional duties in the teaching kitchen was made solely on operational grounds and was entirely unrelated to her family status.

The Respondent maintains that the Complainant has been treated no differently from other staff members with parental or caregiving responsibilities. She has terms and conditions consistent with her colleagues and has received flexibility and support where possible.

In all the circumstances, it is respectfully submitted that the Complainant has not demonstrated any unlawful discrimination, and accordingly, is not entitled to redress under the Employment Equality Acts.

I accept the Respondent’s submission that the Complainant is employed in the role of Market Cook/Teacher. This is also consistent with the documentation the Complainant submitted. I do not accept the Complainant’s proposition that the duties to which she was assigned were outside the scope of her employment contract, or constituted less favourable treatment, on any protected ground or as measured against any comparator (none identified).

I find that the Complainant was assigned to duties that are encompassed within her employment contract, and which she had performed previously during her employment, based on operational need, i.e. that she was not re-assigned to a role or duties in breach of her employment contract, nor was she demoted or discriminated against.

Based on the Complainant’s own oral evidence, I find that she successfully returned from maternity leave into the role she had previously performed, Market Cook/Teacher, and was supported with a part-time work pattern for a period of time, while breastfeeding, before returning to her full time hours which she acknowledged required an 8 am start, as it had also done prior to going on maternity leave. She outlined that she successfully fulfilled those hours and work pattern, subsequent to her return to full-time work (and post her period of maternity leave) during the period when she had childcare support from her mother.

I accept the Respondent’s submissions with respect to rostering across a range of duties, which are shared with other members of the market/production and teaching teams and the requirement for responsiveness based on operational need.

I further find that the Respondent has extensively engaged with the Complainant, listened to her concerns, considered them, responded with considerable flexibility and patience. The documents submitted indicate that the Complainant showed up late and finished early, with some regularity, despite undertaking to re-engage with her employer again when she was in a position to revert to the required start time (8.30 am), which she failed to do. In the interim, and on an agreed and short-term basis, she was working an agreed flexible work pattern, in ease of the Complainant, after which she was to re-engage with her employer. I further note that her employer has confirmed an 8.30 am start time in writing, rather than the earlier previous time of 8 am.

An offer of part-time work (9-2pm) was also offered to her and continues to be offered to her, which she has declined.

I find that the Complainant has failed to establish a prima facie case.

I find that the Complainant has adduced no evidence of discrimination based on any protected ground. I find that she has adduced no evidence of discrimination based on the protected ground of family status, under which this particular complaint has been filed. The Complainant was unable to identify any comparator, when requested to do so at hearing.

I accept the submission on behalf of the Respondent that the Complainant feels ‘disentitled’, i.e. that she has been treated in a way that she does not like. In particular, it is clear from the documents submitted that the Complainant had a very good working relationship with her previous boss cultivated over many years; and that the Complainant did not like the new management structure introduced in 2023, and that she objected (and objects) to having to report to a new manager. She alleges that this is both unlawful and discrimination. I find that it is not.

It is also clear from the paperwork submitted that some of the new more systemic changes introduced are more formalised than previously informal structures or approaches. Again, that formalisation does not sit well with the Complainant and she has either simply failed to comply, e.g. with the system notifying absences to an identified person by email, as required; or has expressed humiliation at being required to consistently train/upskill in line with all other similar staff, as a matter of course.

Where the Complainant raised concerns, management has engaged with her, taken her concerns on board and adapted, where appropriate. In particular, it was accepted that communication could be better in terms of notifying staff of changes and things that were about to happen/be introduced. It was also accepted in the Complainant’s case, that given her long-standing service and experience, that the training that she would be required to attend would be more tailored, i.e. if there were things with which she was already very familiar, she would not be required to re-do the training in those. Standardisation of staff training is not a humiliation – it is a system that ensures that the employer knows all staff have been afforded the same training, recently.

The Respondent has clearly outlined for the Complainant its operational needs, and the reasons underpinning them, in relation to the requirement for an 8.30 am start in the cookery school. The start in the production kitchen is earlier (8 am) although it was agreed that the Complainant could start there at 8.30, as an accommodation. It has actively considered her requests, as she has raised them, and responded.

It further provided flexibility on a short-term basis in order to accommodate her particular personal circumstances (as pertaining to her childcare situation, and personal logistics re: driving distances, pick ups, drop offs etc.).

Finally, it offered (and continues to offer) a part-time work pattern to her, if she wishes to avail of it.

It is very difficult to see how the Respondent could have been more responsive to the Complainant, short of simply acceding to her requests to pick her own duties and pick her own hours. It has been very clear at all times that she is a valued member of staff whose contribution it recognises and values and who it wishes to retain, and has made considerable effort to retain her.

As the Complainant has adduced no evidence of discrimination on the basis of family status, in breach of the Employment Equality Act and further has identified no comparator, I find for the Respondent.

Employment Equality Act; Family Status; Prima Face case;