Tesco Ireland Ltd (Represented by Irish Business Employers' Confederation) v Grzegorz Kowalski (Represented by Julia Lawlor, B.L., Instructed by O'Hanrahan Lally, Solicitors)

• Jurisdiction: Ireland
• Court: Labour Court (Ireland)
• Judgment Date: 29 January 2018
• Judgment citation (vLex): [2018] 1 JIEC 2906
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.EDA1812 DEC-E2017-013
• Date: 29 January 2018

Labour Court (Ireland)

FULL RECOMMENDATION

ADE/17/24

DETERMINATION NO.EDA1812

DEC-E2017-013

PARTIES:

Tesco Ireland Limited (Represented by Irish Business Employers' Confederation)

and

Grzegorz Kowalski (Represented by Julia Lawlor, B.L., Instructed by O'Hanrahan Lally, Solicitors)

DIVISION:

Chairman: Ms O'Donnell

Employer Member: Mr Murphy

Worker Member: Ms Tanham

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011

SUBJECT:

1 1. Appeal of Adjudication Officer's Decision No: DEC-E2017-013.

BACKGROUND:

2 2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 9 January 2018. The following is the Determination of the Court:-

DETERMINATION:

Introduction

3 This is an appeal by Grzegorz Kowalski (the Complainant) against Decision DEC-E2017-013 of an Equality/Adjudication Officer in his complaint against his employer Tesco Ireland Limited (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998–2015 (the Act). The Adjudication Officer found that the Complainant had failed to establish a prima facie case of discrimination in terms of access to promotion or conditions of employment on the age ground.

Background

4 The Complainant is employed directly by the Respondent since 1 ^st February 2008 as a warehouse operative in a distribution centre of the Respondent. The Respondent operates a three-shift system. The Complainant works the night shift which is referred to as the Dark Night shift. The Complainant originally worked as an agency worker and was then moved on to a flexible contract as a direct employee of the Respondent. It is the Complainant's contention that he should have then moved on to a full-time contract and the reason he was not moved was because of his age. However, in October 2017 he was moved on to a full-time contract. The complainant's submission indicated that his claim covers the period 2008 to October 2017 when he was placed on a fulltime contract. The Complainant's claim was lodged with the Director of the Equality tribunal on the 31 ^st July 2014.

5 In accordance with the Act the cognisable period for the claim is 1 ^st February 2014 to the 31 ^st July 2014.

Complainant's case

6 In his submission to the Court the Complainant sets out that he was on a flexible contract (22.5 hours per week). In terms of his performance he always attained the...