The complainant has 36 years of pensionable service and is responsible for the respondent’s HR.  He applied for e-working as he considered it might have assisted him in making the transition to retirement in addition to reducing commuting time and improving work-life balance.  He was refused.  His appeal of this initial decision was likewise refused.  The respondent stated in response to his application “e-working was not intended to be a prelude to or transition to retirement and that planning for retirement was not compatible with the spirit of working remotely.”  The complainant asserted that another female colleague of a similar age (over 50) was refused permission for e-working while two younger colleagues (less than 40) were granted permission.  He also asserted that the younger colleagues who had been granted e-working had not presented reasons for their applications.

The respondent also argued that the complainant’s work and responsibilities did not lend themselves to working remotely and on the basis that his reason for seeking e-working “to make a smooth transition to retirement” was an inappropriate rationale for the respondent to facilitate e-working.

Interestingly, and likely with general applicability, the Equality Officer stated that “insofar as a motive for wishing to e-work is disclosed by a worker which is related to a status protected y the Acts, the rejection of the validity of such a motive by an employer is sufficient to raise an inference of discriminatory treatment within the meaning of S.85A of the Acts”. Note that this may still be rebutted by an employer

The Equality Officer found that as the complainant’s motive for his application was clearly related to his age and was expressly rejected by the respondent.  On that basis in combination with the fact of younger applicants being successful in their e-working applications, he was satisfied that the complainant had established a prima facie case of discrimination on the age ground.

The Equality Officer did not accept the respondent’s main defence during the hearing, that the complainant’s role was not compatible with e-working particularly as he was immediately offered to apply for the Shorter Working Year Scheme resulting in potentially significant absences from the office.  In addition the complainant had already taken up to eight weeks leave in one block without detriment to the organisation.  The Equality Officer stated that if the complainant was as indispensable to the day-to-day operations of the respondent as suggested then “such a long absence ought to have caused havoc”!  He also noted that an option the respondent might have considered was a pilot of several months with the complainant, and perhaps one day instead of the two per week applied for.

The Equality Officer found that the respondent had failed to rebut the prima facie case of discrimination and the complainant was entitled to succeed.  The complainant was awarded €2000 in compensation and the employer was ordered to “Facilitate the complainant to e-work for a minimum of one day per week, for a period of one year” with review arrangements after the year.

Why is this case of interest?

• It sets down a general finding that where a refusal for e-working is found to be based on motives related to one of the discriminatory grounds it will establish a prima facie case.  Could this be extended for other requests for other working pattern arrangements generally?
• The employer was ordered to facilitate the complainant to e-work having previously refused it.
• What training have your managers had in relation to deciding such matters where one or more of the discriminatory grounds are raised?