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Latest in Employment Law>Case Law>Henry Denny and Sons (Ireland) Ltd v Rohan [2013]
Henry Denny and Sons (Ireland) Ltd v Rohan [2013]
Published on: 09/08/2013
Issues Covered: Discrimination
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Background

The complainant in this case was a woman with children, one a daughter with Down’s syndrome. Her complaints on grounds of gender, family status and disability before the Equality Tribunal failed and she appealed to the Labour Court. She commenced employment with the respondent in September 1988 and worked as a Senior Manager from 1991 until her dismissal on grounds of redundancy in September 2008, some months prior to the total closure of the plant in which she worked in February 2009. 

The complainant applied for parental leave in July 2003. She took five consecutive weeks and the balance of nine weeks was to be taken at one day’s leave per week. However, in fact she continued to generally work a four day week until her employment ended, except when her employer requested her to work a full week. In 2003, the respondent had introduced a bonus scheme for Senior Managers and in February 2004, the complainant received a payment under this scheme. However, she did not receive any subsequent payments, though other managers did. Her employer argued that this was because she had ceased to hold a position in the management structure later in 2004, to which the bonus scheme was applicable. 

However, the evidence showed that the complainant had sought an explanation in 2006 as to why she no longer qualified for the bonus but no specific reason was given. The complainant therefore contended that the real reason that she was no longer included in the bonus scheme was the fact that she worked a four day week; a matter that she argued was directly related to her role as the primary carer of her disabled child.

Around April 2008, the complainant again applied for further parental/carer’s leave to care for her daughter. The respondent’s Factory Manager suggested redundancy as an alternative but the complainant declined this offer. In early July, her application for leave was refused and instead she was told that she was to be made redundant. In brief, the headings of her respective complaints can be summarised as follows:

- Failure to pay her a bonus after 2004
- Failure to pay her ex-gratia redundancy lump sum by reference to her contractual hours of work
- Failure to include ‘festival day’ pay in her lump sum in the same as other employees made redundant
- Premature dismissal on grounds of redundancy when there was still work relevant to her position to be done before the plant finally closed


THE COURT’S CONCLUSIONS:

1. The grounds relied upon:

The Court began by noting that the complainant had argued, amongst other grounds, that she had been treated less favourably because she was unable to work full time due to the necessity to care for her disabled daughter – in other words discrimination on the ground of disability by association. It examined the definition of family status in the legislation and concluded that the meaning ascribed to it for the purpose of the Act is sufficiently wide to encompass the complainant’s role as a carer of her disabled child and it was therefore unnecessary to consider them by reference to the disability ground.


2. Establishing comparators:

The Court then considered the necessity for the complainant to establish that a real (as opposed to hypothetical) comparator to ground her equal pay claims – those relating to the payment of the bonus and her ex-gratia redundancy payments. In relation to the payment of the bonus, it was clear that given the complainant received a payment in 2003; all other managers who received a similar payment were potential comparators. 

It determined that there was no evidence to suggest that her range of duties and responsibilities had changed between the time she received that payment and the termination of her employment. It also concluded that the fact that the complainant no longer reported to the General Manager, in contrast to other Managers who continued to receive bonus payments, was not a factor in determining whether jobs are of equal value and here the Court reiterated its decision in Health Service Executive and Twenty-Seven Named Complainants (EDA0720). 

In relation to the calculation of redundancy payments, the Court determined that all employees working a five day week, performing work of equal or lesser value, and who were also made redundant were valid comparators.

On the question of what it termed the alleged ‘premature redundancy’ of the complainant, the Court decided that this raised an issue of equal treatment and that therefore the complainant could rely upon a hypothetical (as opposed to real) comparator to ground her claim. 

To construct a hypothetical comparator, the Court observed that it must establish the factual criterion for the ‘impugned decision’ i.e. the suggested basis for the alleged discrimination, and consider whether it would have been similarly applied to a person without the ‘protected characteristic’ in question (as outlined in the case of Shamooon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, paragraphs 8-12). Thus, a valid comparator in this case would be a person who did not have the same family responsibilities as the complainant and who did not apply to work reduced hours by reason of his or her family status. Thus, the Court therefore determined that this aspect of the claim was also properly grounded.


3. The burden of proof:

In Mitchell v Southern Health Board [2001] ELR 201, the Court first established the test for applying the shifting of the burden of proof in equality cases. The Court noted again Section 85 (1) of the Act (as amended) which laid down that test in legislative form in 2004. Thus, a complainant is initially obliged to establish facts from which it may be presumed that there has been discrimination (direct or indirect) in relation to him or her. Only if these facts are established does the burden of proving that there has been no infringement of the principle of equal treatment pass to the respondent employer. If such facts are not established, the complaint automatically fails.

However, it emphasised again in this case that at this initial stage, the complainant is ‘merely seeking to establish a prima facie case’. It is not therefore necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is up to the Court in each case to decide whether a presumption of discrimination ‘is within the range of inferences which can reasonably be drawn from those facts’. Where such a conclusion is reached, the burden passes to the respondent who must show that the protected ground relied upon (in this case broadly the family status ground) was no more than a trivial influence in the impugned decision as decided in Wong v Igen Ltd (EWCA Civ 142). 

The Court then proceeded to consider each of the complainant’s claims by reference to each of her grounds of claim.


4. The payment of the bonus:

The Court concluded under this heading that the facts relied upon by the complainant were more consistent with a claim of indirect rather than direct discrimination. It was not being alleged that bonus payments ceased because of her family responsibilities directly. Rather, it was suggested that bonus payments ceased because the complainant went from working a five to a four day week. A requirement to work full time in order to be entitled to a payment in employment was a provision, criterion or practice which may constitute indirect discrimination if it operates in practice to disadvantage a person on the family status ground. 

In this case, the Court decided that it was entitled to conclude from its own experience (rather than statistical evidence) that women having the family status of the complainant as a carer of a disabled child would find it more difficult to be available to work full time than a person without that family status. 

The Court thus concluded that the primary facts raised by the complainant under this heading were sufficient to raise an inference of discrimination which the respondent was obliged to rebut. It noted that a number of witnesses on behalf of the respondent failed to provide direct evidence of the reason for the complainant’s exclusion from the scheme and that the person who actually decided to remove her did not give evidence. The Court thus concluded that there was no cogent evidence brought to discharge the onus of proof to show that the complainant’s exclusion was objectively justified on grounds unrelated to her family status. The complainant therefore succeeded under this heading.


5. Calculation of ex-gratia redundancy lump sum:

It was clear under this heading that all employees had their redundancy entitlements calculated by reference to their actual earnings at the time of termination of their employment. However, counsel on behalf of the complainant argued that her entitlements should have been calculated on the basis of a five day, not a four day week, even though she had ceased to work a five day week for some considerable time. 

Reliance was placed in this regard on the decision of the Court of Justice of the European Union (CJEU) in Meerts v Proost NV [2009] All ER (D) 259. However, the Labour Court noted that the decision in that case related to the interpretation of the Parental Leave directive, which it had no explicit jurisdiction to consider. In any case, it remarked in passing that the Meerts case concerned an employee dismissed whilst on parental leave, whose entitlements were calculated by reference to her earnings reduced because of that leave. 

The complainant on the other hand appeared to have long exhausted her parental leave entitlements. The Court concluded under this heading that the complainant was treated in the same way as all others made redundant and this aspect of her claim failed.


6. Festival leave claim:

The respondent objected to this aspect of the complaint arguing that it had not been raised in the form originally submitted to the Equality Tribunal. The Court rejected this argument holding that the form used to submit a claim to the Equality Tribunal has no statutory basis and can be amended at any stage in the procedure provided that the nature of the claim remains the same. 

It was clear that ‘festival leave’ applied only to those employed before 1981 and the complainant was employed after this date. It was also clear that those entitled to festival leave received an additional 1.5 days per year of service in their redundancy package whereas those not so entitled only received 0.5 of a day. However, the respondent accepted that at least one employee not entitled to festival leave received the full 1.5 days entitlement although it was argued that this was because he remained on until the eventual closure of the plant. 

No direct evidence of this was provided however by any of the respondent witnesses. As a result of these inconsistencies, the Court decided that there were sufficient facts to raise an inference of indirect discrimination on the family status ground. The onus to objectively justify this difference in treatment shifted to the respondent and since no adequate explanation was provided, the complainant succeeded under this heading.


7. The timing of redundancy:

The complainant argued that her dismissal on grounds of redundancy in September 2008 was premature in that at the time of her dismissal work appropriate to her role remained to be done until the eventual closure of the plant in February 2009. She was also asked to train others assigned to carry out that work and the Court accepted that this was the case. However, it also accepted that the requirement for the substantial parts of her job had ceased at the time the redundancy took effect. 

The Court considered that the appropriate test to consider this aspect of the claim was to determine how a hypothetical comparator – a person whose job had become substantially redundant but who did not have similar family responsibilities – would be treated. It concluded that there was no evidence from which it could be inferred that such a person would not have been made redundant at the same time as the complainant. This aspect of the claim therefore failed.


8. Redress:

The complainant was awarded arrears of bonus measured at 7.5% of her salary for each of the three years preceding the date of her claim, as the legislation places a limit of three years on equal pay claims. She was also awarded arrears of ex-gratia redundancy lump sum in respect of festival leave, being the difference between 1.2 days per year of service (80% of the entitlement of a full time employee) and 0.5 days, namely 0.7 day’s pay per year of service.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 09/08/2013
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