A WRC decision of August 2019 deals with a case where the part time worker was required to move to full time work. It is an instructive case when you want to understand indirect discrimination.
Indirect discrimination is different from direct discrimination and is defined as:
(a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. (Section 22 of Employment Equality Act, 1998, which was then amended by section 13 of the Equality Act, 2004).
It is noteworthy that discrimination will not occur if the employer can objectively justify (on grounds unrelated to the discriminatory ground) the condition or provision provided that it is in pursuit of a legitimate aim and the means of achieving that aim are appropriate and necessary to achieve a legitimate aim.
Part time to full time work
The Labour Court has previously found that a provision requiring an employee to go to working full time from part time working could be indirectly discriminatory on the grounds of gender.
The employer, to discharge the prima facie case of discrimination, would need to show
- this need is a real need of the employer’s business
- it is an appropriate measure to achieve a legitimate objective
- the provision is necessary to achieve the objective.
In this case the employee was told that a restructuring of the organisation was taking place and they offered her full time work, but that the part time role would be going. Ultimately, the employee brought a claim to the WRC claiming discrimination on the family status ground in relation to her conditions of employment.
She claimed that she was dismissed from her part-time role on 10 September 2018 as a result of her refusal to move to a full-time role.
The Adjudication Officer found
I consider this complaint is one of indirect discrimination on family status grounds. In a line of authorities commencing with Bilka-Kaulhaus v Karin Weber von Hatrz Case 170/84 {1986} ECR 1607, the ECJ has held that indirect discrimination arises where a requirement in relation to employment bears significantly more heavily on persons of one gender relative to that of persons of the other gender. According to the Employment Equality Acts, indirect discrimination occurs “where an apparently neutral provision, criterion or practice would put persons of a particular [ gender / family status ] at a particular disadvantage compared with persons of a different [ gender /family status ] unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.” Based on the evidence heard, I find that the provision introduced by the respondent which would have required the complainant to work full time, amounts, prima facie, to indirect discrimination on grounds of her family status. However, a finding of discrimination only arises if the provision cannot be objectively justified. The onus of establishing objective justification rests on the respondent. (Was there a legitimate aim and were the means appropriate and necessary). The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect by which the objective in view could have been achieved. I am cognisant of the Labour Court decision in Inoue v NBK Designs Ltd. where the complainant contended that the requirement to work full-time is a condition of employment which disadvantages significantly more women than men and significantly more persons of her marital and family status than persons of a different marital and family status.
The AO referred to the Labour Court case, the Inoue case, and decided
In that case, the Labour Court stated “the complainant was unable to work full-time, not because she was a woman per se, but because she is the mother of a school going child and the primary carer of that child.” It accepted that it is the reality in modern society that mothers are more likely to fulfil the role of primary carer of children than are fathers.
She also pointed to the failure of the employer to give concrete examples of how the part time job was not working out and, therefore, did not meet the standard required to meet the objective justification test.
The AO decided,
In the circumstances, I find that the respondent has not adduced evidence to demonstrate that the requirement for the complainant to do the job on a full-time basis was a legitimate aim and that the means to achieve the objective were appropriate and necessary. The respondent did not consider alternative means or less discriminatory ways in which to allow the complainant to remain in employment. Accordingly, I find that dismissal of the complainant is prima facie indirectly discriminatory on the gender and family status grounds and the respondent has not rebutted the case.
I find that the complainant was subjected to indirect discrimination on grounds of gender and family status in the manner of her dismissal.
In considering redress, I find that compensation is the most appropriate form of redress in the circumstances of this case. In accordance with the case of Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891, I am mindful of the requirement that the sanction be “effective, dissuasive and proportionate.” In accordance with my powers under section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant €38,000 by way of compensation for breaches of the Act which represents one years salary. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI code.
Conclusion
The employee was the victim of indirect discrimination by reason of the insistence of the employer that the employee move from a part time to full time role in circumstances where the employer was unable to objectively justify the move.