Case Number: ADJ-00008466. Workplace Relations Commission

• Docket Number: ADJ-00008466
• Hearing Date: 17 November 2017
• Date: 11 December 2019
• Court: Workplace Relations Commission
• Parties: A Security Worker An Employer

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. This complaint was heard with another similar complaint where the core matters were identical. I advised the parties that I would set aside the decision on this complaint until I had heard all the evidence in the related case and consider the two cases together. The final submission received on the related complaint was received on 9 February 2019.

During the course of the investigation and hearings it became clear that much of the evidence adduced related to sensitive security information which is of a nature that I have determined is not suitable to be placed in the public domain. Accordingly, I have decided to anonymise the parties and to make general statements as to practices and processes, rather than give specifics information as was presented to me during the course of the investigation in the interest of both the Complainant and the Respondent.

Background:

The Complainant’s case is that four male staff with less service than her were placed ahead of her on the roster for annual leave purposes. The Complainant claims that this amounts to gender discrimination. The Complainant also claims that she was subjected to harassment and victimisation in relation to an incident regarding her performance review and a ‘snapchat’ social media issue. The Respondent denies the same. It claims that there was no gender discrimination, victimisation or harassment as per the Employment Equality Act 1998. It said that the Complainant was placed on its roster for annual leave on the day she joined that roster as was its practice.

Summary of Complainant’s Case:

A substantial amount of oral, written and documentary evidence was presented in this case. The following is a brief summary of the Complainant’s case. Preliminary matter The Complainant made the following submission in response to a preliminary application made by the Respondent arguing that the complaints were statute barred. As regards the primary claim of gender discrimination, the Complainant said that the discrimination in relation to the annual leave roster constitutes a continuum as per Section 77 (5) of the Act. The Complainant referred to the Decision of the Labour Court in the case of Brothers of Charity Services, Galway – v – Kieran O’Toole, [2017] EDA177, in particular where the Labour Court quoted, with approval, a previous decision of the Labour Court in the case of County Cork VEC – v - Anne Hurley, [2017] EDA1124 where it held:- “Sub-Section (5) and Sub-Section 6 (A) of S.77 deal with different forms of continuing discrimination or victimisation. Under Sub-Section 6 (A) an Act will be regarded as extending over a period, and so treated as done at the end of that period, if an Employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the Complainant (Barclays Bank Plc – v – Kapur) [1989] IRLR387). This Sub-Section would apply where, for example, an Employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an Employer pursues a Policy or Practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the Policy or Practise is discontinued. Hence an aggrieved party could maintain a claim in respect of Acts or omissions which occurred in pursuance of the Policy or Practice regardless of which the Act or omission occurred”. The Complainant said that the complaint in relation to one of the incidents referred to as the Snap Chat issue is still ongoing. The Complainant also cites a performance review issue in January 2017 as falling within the timescale allowable. Therefore, the Complainant claims that this is an ongoing situation. The Complainant also referred to the Labour Court decision of Mary Dempsey – v – NUIG, where the Tribunal held: - “Having regard to my findings below, I find that this was a related Act of discriminatory treatment in relation to her conditions. I am also satisfied that the Complainant has established a satisfactory link between all incidents, and they can be considered as separate manifestations of the same disposition to discriminate and constitute an ongoing Act or a continuum of discrimination within the meaning of Section 77. I find therefore that the complaints were referred to within the 6-month time limits provided for in Section 77 (5) (a) of the Acts and that I have jurisdiction in the matter.” The Complainant said that her situation is similar to the case in Dempsey and therefore can be considered by the Adjudication Officer. The Substantive matter The Complainant commenced working with the Respondent on 26 April 2011 and was made permanent from 1 April 2014. The Complainant said that she and three other female staff members had been job sharing/ line sharing since around October 2011 on the permanent roster, Roster 1. The Complainant said that the rosters were re-organised in 2014 and on 1 April 2014, Mr. A, head of security, issued a document with respect to roster changes, and he made a reference to a mirror line. She claims that there was only one roster before the re-organisation. She said that the certainty of her place on the roster for hours of work for family reasons, was very important to her and positioning on the roster for annual leave purposes was essential. She said that when the reorganisation was done, there was little or no consultation with staff or Trade Unions. The Complainant said that Mr. A acknowledged to her that the procedure was not correctly followed, when she and another work colleague, Ms. X, were removed from Roster 1, when the rosters were reorganised in 2014. She said that it is acknowledged and uncontroverted, that when the mirror line was created both the Complainant and Ms. X would be offered the next available positions on the permanent Roster 1, in addition to the creation of the mirror line arrangement. The Complainant said that it is clear from the evidence, that interviews were performed when one line became available. The only interviewees were the Complainant and Ms. X., where she obtained the position on Roster 1 at that stage. It is submitted that this is further evidence of the error made by Mr. A, when the Rosters were drawn up in 2014, and an acknowledgement of same. The Complainant said he promised the Complainant and Ms. X the next available positions on the permanent Roster 1. On 16 December 2014, an amendment is agreed on the rosters in the company and it describes the permanent Roster 1 as being “X” lines plus one shadowing line (the mirror line). On 1 June 2015, a line became available in Roster 1. The line was not advertised, and the only people interviewed were the Complainant and Ms. X, both from the shadowing line. She said that after noticing that her name was not in numerical order on Roster 1 for annual leave and having raised it with Mr. A about the possible implications for her; she said that, on 29 February 2016, she sent an email to Mr. A formally addressing this issue. On 2 March 2016, she issued an email to the Supervisors in relation to the annual leave list issue and requested a meeting. On 9 March 2016, she sent a further reminder email to the supervisors in relation to the annual leave list. On 11 March 2016, she sent a third email to the supervisors requesting a response regarding the annual leave list. In March/April 2016, the Complainant was in an exchange with Mr. D, deputy head of security, and Ms. G, in HR, regarding her seniority position for annual leave purposes. In a meeting at this time, the Complainant claims that Mr. D confirmed to the Complainant that seniority was determined when one joins the roster and she said that she took the matter up formally as a grievance with Mr. A. She said that Mr. A said he would sort it but failed to do so and...