SUMMARY OF THE UNION S SUBMISSION

Transcription

1 1. DISPUTE 1.1 This dispute concerns a claim by the MANDATE Trade Union, on behalf of Mr. Bernard Ivory, that Tesco Ireland Limited (formerly Power Supermarket Limited) directly and indirectly discriminated against him on the basis of his sex on 18th May, 1996 when it suspended him from work because he was wearing an ear-ring. 2. BACKGROUND 2.1 According to the Union the claimant was suspended from work on Saturday, 18th May, 1996 without a formal meeting with management and without representation by a colleague, shop steward or union official. The Union says that the reason for the suspension was because the claimant was wearing an ear-ring. The Union requested a meeting with management and asked that management repond to this request by Friday, 7th June, 1996 but the Union says a response was not received by this date. 2.2 The Union alleges that the Company discriminated against the claimant on the basis of his sex because he was wearing an ear-ring. Therefore on 7th June, 1996 MANDATE submitted a claim to the Labour Court. The Labour Court subsequently referred the claim to an Equality Officer for investigation and recommendation. 3. SUMMARY OF THE UNION S SUBMISSION 3.1 According to the Union the claimant was employed by Tesco Ireland Limited (formerly Power Supermarkets Limited) between 14th February, 1989 and 7th March, He was a full-time worker in the Tesco (formerly Crazy Prices) store in Kilbarrack earning a total of

2 per week, including annual bonus and overtime payments. 3.2 The Union says that the claimant reported to work ten minutes late at 0910 hours on Saturday, 18th May, On his arrival he approached Mr. Byrne, the store manager and, after the following conversation, the claimant went home as directed: Mr. Byrne: What s the story? Mr. Ivory: I missed the bus Mr. Byrne: Only for I m short-handed I d send you home Mr. Ivory: Fair enough Mr. Byrne: You re not shaven, you have an ear-ring. I tell you what, go home Mr. Ivory: Right 3.3 The Union says that, on 28th May, 1996, it wrote to the Company seeking an urgent meeting on the issue. In the letter the Union indicated that it would request an investigation by an Equality Officer if no response was received by Friday, 7th June, According to the Union the Company s letter dated 6th June, 1996 agreeing to a meeting was received after the Union had referred the claim to the Labour Court. The Union says that the Company wrote to it on 13th June, 1996 requesting a withdrawal of the claim under the Employment Equality Act, 1977 and the Union refused to withdraw the claim by letter to the Company dated 19th June, The Union claims that this case is identical to a previous Equality Officer recommendation (Reference EE09/1994) in which the Equality Officer found that three members of Quinnsworth Supermarket, Upper Baggot Street had been discriminated against on grounds of sex. 2

3 The Union says that it is seeking a recommendation that the claimant receive 50 compensation for the loss of one days annual leave and 500 compensation for the hurt and distress. 4. SUMMARY OF THE COMPANY S SUBMISSION 4.1 According to the Company the issue before the Equality Officer concerns a conversation which occurred between the Manager of the then Crazy Prices, Kilbarrack and the claimant on Saturday, 18th May, The Company says that the claimant arrived late for work and unshaven that morning. However the Staff Handbook provides that staff must be clean shaven and consequently the Manager sent the claimant home so that he could present himself properly for work. The Company says that the claimant did not return to work that day but presented himself clean shaven the following Monday and was allowed to commence work. 4.2 The Company argues that the only reason the claimant was sent home from work was because he was not properly presented for work as he was untidy and unshaven. The Company denies that the reason for sending the claimant home had anything to do with the fact that he was wearing an ear-ring and this issue did not arise in the conversation with the Store Manager. 4.3 The Company states that its policy on the wearing of ear-rings is clearly set down in its Staff Handbook. This policy was developed and implemented after the Equality Officer recommendation EE09/1994. The Company says that the claimant wore an ear-ring both before and after the date which is the subject of this complaint. 4.4 The Company argues that the onus to prove discrimination 3

4 under the Employment Equality Act, 1977 Act rests squarely with the claimant. The Company suggests that this onus has not been discharged and it asks that the Union s claim be rejected. 5. CONCLUSIONS OF THE EQUALITY OFFICER 5.1 The issue for consideration is whether the claimant was sent home from work because he was wearing an ear-ring or whether it was because he was unshaven and not properly presented. In making my recommendation I have taken into account all the evidence, both written and oral, made to me by the parties. 5.2 In this case the Union says that the claimant was sent home from work because he was wearing an ear-ring. At the joint hearing in this claim the Union said that the Company changed its policy towards male staff members wearing ear-rings in 1994 following an Equality Officer recommendation (EE09/1994). According to the Union this policy change is not being implemented by all managers throughout the Company because if it was the Company would not have paid 100 to four men in their store in Dun Laoghaire because they had been asked to remove their ear-rings. The Union submitted a letter it received from the Company in In this letter the Company said that poor personal presentation included the wearing of an ear-ring. The Union said that if this was the Company s opinion then, it was the opinion in 1994 and it still is the opinion to-day. 5.3 At the joint hearing of this claim the Company denied the Union s allegation that it had sent the claimant home from work because he was wearing an ear-ring. The Company said that the claimant was wearing an ear-ring before and after 18th May, 1996 i.e. the day he was sent 4

5 home because, according to the Company, he was unshaven and not properly presented for work. This corresponds with the claimant s own evidence that he has been wearing an ear-ring since about 13 years of age. The Company also said that its policy in relation to the wearing of ear-rings changed in 1994 following Equality Officer recommendation EE09/ The main issue of conflict in this claim is whether or not the Company sent the claimant home from work because he was wearing an ear-ring. According to the Union the claimant was sent home for this reason and the Company says that he was sent home because he was unshaven, not properly presented for work and he was late. I am satisfied that both parties agree that the claimant was late for work on the day in question. Having examined the dialogue between the claimant and his manager as set out by the Union (and reproduced in paragraph 3.2 above), I note that the Union did not dispute, either in its submission or at the hearing, the claim by the Store Manager that the claimant was unshaven. The Union also alleged that there had been constant references to men wearing ear-rings in this store. I note that the Union did not present any evidence in support of this allegation. 5.5 I note that the Company disputes the Union s claim that, during the course of this dialogue between the Store Manager and the claimant, it made a reference to the claimant s ear-ring. The Company, in its defence, argued that the claimant had been wearing an ear-ring before this incident and again afterwards and he was never sent home on that account. The Company stated that the onus of proof fell on the Union and that it had failed to discharge that onus. 5

6 5.6 In situations where there is a direct conflict of evidence, as in this case, there is an onus on both parties to show why their evidence is credible. I am satisfied that the Union has failed to do this. It alleged that the Company constantly referred to both the claimant and other male staff members wearing ear-rings but it did not produce any evidence to support this allegation. It accepted that the claimant was in fact late for work on the day in question and it did not refute the claim by the Store Manager that the claimant was unshaven. The claimant said that he has been wearing an ear-ring for a number of years and no evidence was presented to suggest that the Company had sent him home on any previous or subsequent occasion for wearing one. I am, therefore, satisfied that the Union did not present sufficient evidence to claim that the Company directly and indirectly discriminated against the claimant because he was wearing an ear-ring. 5.7 I note that the Union requested a meeting with the Company in relation to this incident with the claimant and the Union gave the Company a time deadline in which to respond to this request. In its letter to the Company the Union said that if it did not receive a reply by Friday, 7th June, 1996 then it would refer the case to the Labour Court for an Equality Officer investigation. According to the Union the Company s response dated 6th June, 1996 was not received by it in advance of the referral to the Labour Court which was dated 7th June, I am satisfied that the date of receipt marked on the letter was 10th June, At the joint hearing of this claim the Union said that it is not its policy to stamp letters with a date of receipt hence no explanation can be given for marking the letter of 6th June, 1996 with a date of receipt. In my opinion it would have been reasonable to lodge the 6

7 referral of the claim with the Labour Court on 10th June, 1996 i.e. the Monday after the date given to the Company to respond. The Company, by its letter of 6th June, 1996 was willing to discuss the issue with the Union and it could possibly have been sorted out without the need to undergo a full Equality Officer investigation. 6. RECOMMENDATION 6.1 Based on the foregoing I find that Tesco Ireland Limited (formerly Power Supermarkets Limited) did not discriminate against Mr. Bernard Ivory in terms of Section 2(a) and Section 2(c) of the Employment Equality Act, 1977 and in contravention of Section 3 of that Act for wearing an ear-ring. Gerardine Coyle Equality Officer 10th March,