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WRC Orders Re-engagement of Employee Dismissed Due to Discriminatory Workplace Policy on Absence

In Courtney Carter v Tesco Ireland Limited (ADJ-00049889), the Complainant brought a complaint to the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998 – 2015 claiming that she was discriminated against on the ground of family status.

Facts: The Complainant began working for the Respondent on 23rd October 2023 and was dismissed on 17th December 2023, after just 13 weeks of employment. This was during her probationary period. 

The Complainant was absent a number of times during her short employment due to her chronically ill child needing care and attendance at hospital visits and, on one occasion, hospitalisation. Despite producing medical certificates corroborating this, the Respondent dismissed her due to her inability to adhere to a strict attendance policy which it applied to all employees. There were no performance issues, and her dismissal was directly related to her absences to care for her child. The Respondent was able to show that it applied the relevant policy equally to all of its employees and that it was consistent in its approach.

Decision: The Adjudicator, Brian Dalton, considered firstly whether or not there was direct discrimination in this case. Given the consistent application of the policy to all employees who failed the absenteeism requirement, and the absence of a comparator, it was clear that there was no direct discrimination.   

He turned his consideration to whether or not the Respondent’s practice and application of the policy  indirectly discriminated against the Complainant, i.e, if it “weighed more heavily” on the Complainant because of her family status when compared to an employee with no family status. 

The Adjudicator noted that the Respondent had classified the Complainant’s absences as illness when they were in fact absences due to caring responsibilities. The Adjudicator referred to the decision in NBK Designs and Inoue cited by Purdy, Equality Law in the Workplace (1st edition, Bloomsbury 2015) in which the Labour Court determined that an employee who was dismissed because she could not change her working arrangements from job-sharing to a full-time role due to her family commitments was indirectly discriminated against. The Labour Court in that case upheld the complainant’s argument that the requirement to work full-time was a condition of employment that disadvantaged significantly more women than men, and significantly more people who came within the grounds of marital status and family status than people of a different marital and family status and therefore amounted to discrimination on the grounds of gender, family status and marital status.

Turning to the instant case, the Adjudicator found that the practice of applying an “inflexible policy” indirectly discriminated against the Complainant because of her family status and he found that no objective reasons had been provided by the Respondent for the practice. In finding for the Complainant, the Adjudicator ordered the Respondent to re-engage the Complainant within four weeks of the date of the decision and extend her probationary period for a further 13-week period. He also made an order for compensation of €2,500 in line with section 82(1)(f) of the Act for the effects of the discrimination.

Takeaway for Employers: It is not enough for a policy not to directly discriminate against an employee(s), employers must also exercise caution in terms of the application of its policies. This decision shows the importance of applying workplace policies consistently yet flexibly when circumstances require it. The rigid application of a policy will not be appropriate where there are extenuating circumstances and employers must be particularly careful to ensure that they apply their policies in a way that does not indirectly discriminate against a particular employee(s). There are a number of different redress options open to an adjudicator, including re-instatement, re-engagement and/or compensation and the effects of a successful complaint can be costly for employers.

Link:  https://workplacerelations.ie/en/cases/2024/july/adj-00049889.html

Authors- Nicola MacCarthy and Jenny Wakely

29th August 2024

Anne O’Connell Solicitors

19-22 Lower Baggot Street,

Dublin 2

www.aocsolicitors.ie



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