EMPLOYMENT EQUALITY ACT, 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 09/1996
P A R T I E S
Ms. A. Kirwan
(Represented by Spring, Murray & Co Solrs)
and
PWA International Limited.
(Represented by I.B.E.C.)
1 Dispute
1.1 This dispute concerns a claim by Ms. Kirwan that P.W.A.
International Limited, following the reference of a
claim by her under the 1977 Act alleging discrimination
on grounds of her sex in relation to a promotion,
further discriminated against her contrary to the
provisions of the Employment Equality Act, 1977.
2 Background
2.1 The Company repairs jet engine cases and was established
in 1989. The claimant joined the company in January 1990
as a Financial Accountant. In May 1993 she was promoted
to Assistant Manager of Financial Operations and
additionally took on the role of Management Accountant.
In October 1993 the Company offered promotion to
management posts to four members of staff including the
claimant. She alleged that she was treated differently
to the other three promotees (males) as she was not
File No. EE 25/1994
offered an increase in salary either then or earlier in
the year when previously promoted. The claimant sought
parity of treatment with these Managers and an increase
in line with that given to them and refused the
promotion as offered.
2.2 The claimant referred a claim to the Labour Court (ref
Rec No. EE 08/1996) concerning this matter. The
claimant alleges that subsequent to her informing the
company that she intended to serve this claim that it
excluded her from important meetings, decision making
activities, the circulation of memoranda, that she was
effectively demoted on the company's organisational
chart and subjected to verbal abuse and unacceptable
behaviour from the Financial Controller.
2.3 The claimant submitted this further claim under Section
2(d) (i) of the Act to the Labour Court on 28th
September, 1994 and this dispute was referred to an
Equality Officer on the 6th October, 1994.
2.4 Both the claimant and the company made very detailed
submissions to the Equality Officer both in writing and
at a joint hearing of the case. I have noted all the
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points raised by both parties and have taken them into
account in considering this case prior to issuing a
recommendation. A summary of the main arguments raised
by both parties is below at paragraphs 3 and 4.
3 Summary of the Claimant's case
3.1 The claimant says that she joined PWAI as a Financial
Accountant in January 1990 and reported to the Financial
Controller. A Management Accountant, Mr. McCLave, was
appointed in June 1991. She says that Mr Mc Clave was
promoted to Financial Controller in May 1993 and she was
appointed to the post of Assistant Manager of Financial
Operations with responsibility for both Financial and
Management Accounting when the previous Financial
Controller, a U.S. expatriate on secondment, returned to
the U.S.
3.2 The claimant says that there were further promotions in
October 1993 and four positions as Managers of
Engineering, Production, Quality and Finance were
offered to current members of staff. The claimant was
offered the position of Manager of Finance but was told
4
there would be no increase in salary with this job. The
three other promotees were males.
3.3 The claimant claims that two of the appointees were
given increases in October. The third had a salary
increase in January 1993 when he was given a previous
promotion. The claimant says that she was promoted in
May 1993 but was not offered an increase either in May
or October. The claimant argues that this was the
second time in the space of five months that she was
denied a salary increase following a promotion. She
refused to accept the promotion on these terms but
argues that she was and is carrying out the work of
Manager Finance.
3.4 The claimant says that she indicated to the Financial
Controller that she considered that this was
discrimination on the basis of her sex and told him that
she intended seeking third party advice in relation to
the Employment Equality Act. The Employment Equality
Agency subsequently wrote to the company on her behalf
in November. She argues that subsequent to raising the
possibility of making a claim that she was treated
unfavourably by the company.
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3.5 The claimant argues that she was penalised by the
company when she was denied the position of Manager
Finance subsequent to informing the Financial Controller
that she intended to seek third party advice.
3.6 The claimant says that she was deliberately excluded
from meetings, memoranda circulations and information
which directly impacted upon her work scope and
position. Prior to October 1993 it would have been
normal practice for her to be in attendance at these
meetings.
3.7 The claimant says that she was part of a select computer
committee since June 1993 working on a new computer
system and that she was the financial representative on
the team. She claims that immediately following the
events of October 1993 that Mr McClave began attending
all meetings of the computer committee and thus
undermined her ability in front of the rest of the team.
She further claims that she was excluded from an
"implementation schedule" meeting in January 1994 and
that she had always been involved over the previous year
in all meetings concerned with the system
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implementation.
3.8 The claimant says that the Financial Controller Mr.
McClave has publicly undermined her authority to run the
finance department on at least 3 occasions. She claims
that as one of the two senior Managers in the company he
is in an influential position to exercise his control
and autonomy.
3.9 The claimant says that in November 1993 each of the
three Managers were requested to document their 1994
work objectives. A meeting was held in April 1994
between the three Managers, the Financial Controller and
the General Manager to discuss these objectives. She
claims that she is on par with the other three male
Managers and that the Company's revised organisational
chart in November 1993 (appendix 1) recognises this. She
was not included in these discussions and she considers
that she should have been.
3.10 The claimant argues that at a meeting in December 1993
the previous General Manager Mr. Konrad explained that
the "new organisational structure" was intended to see
the company through the next couple of years. She
considers she has been penalised in terms of her
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progress and development in PWAI and her opportunity for
future promotion has been adversely affected by being
denied the position of Manager of Finance.
3.11 The claimant says that the unacceptable behaviour of the
Financial Controller towards her and his deliberate
attempts to exclude her from the mainstream of
management activity has lead her to make two official
complaints about him to the General Manager who agreed
to investigate them in order to promote a return to
proper communications and professionalism.
3.12 The claimant says that she was effectively demoted on
the company organisation chart subsequent to making the
original claim.
3.13 The claimant says that a performance appraisal system
was established in June 1994. She maintains that she
was appraised as Assistant Manager of Financial
Operations but comparisons were drawn between her and
the other three Managers during her appraisal. She
maintains that management did not take into account her
achievements during the previous year and that they used
the appraisal to reinforce their dissatisfaction with
8
her pursuance of a claim under the Employment Equality
Act 1977. She further argues that following this she
received a 2% increase while Mr Furlong, who according
to the company took on no additional responsibility in
October 1993 was awarded a 12% increase.
4 Summary of the Company's arguments
4.1 The Company says that PWA International was established
in 1989 and is a joint venture between Pratt & Whitney,
the U.S. jet-engine manufacturer, and Airmotive Ireland.
The Company repairs jet engine cases in its facility
near Rathcoole, Co. Dublin. This is a high technology
operation involving advanced processes in welding,
machining and metal finishing, providing a high quality
competitive service to the aviation industry world wide.
4.2 The Company rejects the allegations made by the claimant
that she was penalised for referring a case under the
1977 Act, (when she was not offered a salary increase
9
when offered the position of Manager of Finance) ref
Rec. No EE 08/1996. The Company rejects the
allegation that it discriminated against the claimant on
the grounds of her sex, and argues that it did not
penalise the claimant in any way as a result of her
pursuing this claim.
4.3 The Company rejects the allegations made by the claimant
under the 1977 Employment Equality Act that she was
penalised for taking action in pursuance of her
entitlement under the 1977 Act. The Company denies all
of the allegations made by her in her submission. The
Company says that the position of Manager of Finance was
not denied to the claimant subsequent to her telling the
company that she intended seeking third party advice but
that she did not accept the terms and conditions
attaching to the position and therefore, denied the
position to herself.
4.4 The Company maintains that she was not excluded from any
meetings or memoranda circulations and information as a
result of her claim. The Company argues that the
Financial Controller has the right to talk directly to
and request information from all the employees in the
10
Finance Department without having to refer to the
Assistant Manager Financial Operations prior to doing so
and consequently, he has in no way undermined her
authority due to this discrimination claim.
4.5 The Company further emphasises that the claimant has
never been excluded from anything that she has an
entitlement to attend. In reference to the point she
made concerning a meeting in April 1994, the Company
argues that the reason she was excluded from this
meeting was because only new Managers were in attendance
at this meeting and as she was not one of this group,
she had no entitlement to attend. Other people within
the organisation with subordinates did not attend this
meeting either.
4.6 With reference to the organisation chart referred to by
the claimant (appendix 1), the Company says that it is
incorrect to imply that it recognises the claimant as
being on a par with the three middle Managers. It
argues that this chart was prepared by the Technical
Department and does not accurately reflect the levels of
people within the organisation as it was not prepared by
the Human Resources Department. Not all the people
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listed in a vertical axis would be regarded as being at
the same level in the company. The Company also points
out that in one such chart it shows senior management
positions and a middle management position on the same
vertical axis. The Company does not view these
positions on the same level. Furthermore, the claimant
is named as Assistant Manager in the organisation
charts, compared with Mr. Murphy, Mr. Furlong and Mr.
Geoghegan who are listed as Managers. Notwithstanding
the above, the Company acknowledges that placing Ms.
Kirwan on the same vertical axis as the three middle
Managers was misleading and says "that steps are being
taken to rectify this". It says that this led to the
revised organisational chart which shows only the
Managers in the new management level on the chart. Thus
the Company claims that what it did, when revising the
organisation chart, was to clarify that it did not
recognise the claimant as being on a par with the three
Managers in the new management tier and that it did not
penalise her in any way for pursuing her claim under the
1977 Act.
4.7 The Company argues that the claimant was offered the
promotion but refused to accept the terms and conditions
12
attached. It says that she has not been penalised in
terms of her progress and development in the company and
in opportunities for future promotion because of her
sex or because she has pursued an equality claim. The
Company claims that the official complaints the claimant
made about the Financial Controller to the General
Manager were in fact about the Financial Controller's
behaviour towards her staff and secondly, concerning a
meeting which the Financial Controller asked her to
attend in his office when she arrived accompanied by one
of her staff saying she would not talk to the Financial
Controller henceforth without a third party being
present. The Company argues that this working
arrangement was impossible to sustain and the Financial
Controller asked her to leave his office. Subsequent to
this, the General Manager was notified by the Financial
Controller of this issue and he in turn told her that
there should be one to one contact between herself and
the Financial Controller concerning work issues. Thus,
the Company claims, what happened in this incident had
nothing whatsoever to do with the fact that Ms. Kirwan
had made a claim under the Employment Equality Act
against the company.
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5 Equality Officer's Conclusions
5.1 In investigating this case concerning the claimant's
allegations that she was penalised by the company for
taking a claim under the terms of the Employment
Equality Act 1977 I have taken into account the total
evidence made available to me i.e. the oral submissions
made in the course of a hearing attended by both parties
and the written submissions made by them, both before
and after the hearing.
5.2 The claimant alleges that she was discriminated against
by the company by being excluded from meetings and
thereby decision making activities, the circulation of
information, by demotion on the company's organisational
chart, in the performance appraisal carried out in June
1994, the fact that the Financial Controller undermined
her position by attending computer implementation
meetings where previously she had attended as the
financial department's sole representative and from
verbal abuse by the Financial Controller, subsequent to
indicating to him that she considered that she was being
discriminated against and that she felt she had a case
under the Act.
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5.3 I note that the claimant initially indicated her intent
to make a claim verbally in October 1993 to the
Financial Controller and the company has agreed that it
had received written confirmation of this in November
1993.
5.4 The claimant alleges that she was deliberately excluded,
subsequent to that date, from attendance at, or in the
preparation for meetings she had previously been
involved in. In particular she referred to the
preliminary audit meetings and she claims that she
attended these in previous years. I note that she
continues to be responsible for all the preparatory work
necessary to assist the auditors. From copies of the
relevant correspondence supplied, I note that in
previous years she attended the preliminary audit
meetings. I further note that although the claimant was
not at the 1993 meeting the auditor wrote to her
confirming the arrangements made at it, on the 26th
October 1993.
The claimant has also argues that in previous years she
was involved in the preparation for the post audit
meeting to the extent of ensuring that questions raised
15
at it could be clarified if necessary. She was not
informed of the 1993 post audit meeting. I consider
that the claimant was excluded both from the preparation
for and attendance at these meetings contrary to
previous practice.
In relation to attendance at other meetings I note that
the claimant was not informed of certain meetings
attended by the Managers appointed in October 1993. The
company argues that she was notified of and attended all
meetings that she had a right to attend as an Assistant
Manager. However the claimant argues that she is
carrying out essentially the same work as Assistant
Manager as if she had been promoted to Manager. The
company has not disputed this fact and confirmed at the
hearing that had she accepted the promotion on the terms
offered the only difference would be that she would have
had greater involvement in decision making.
I consider that as the claimant is carrying out the work
that the company envisaged for her at managerial level
as an Assistant Manager then it follows that the
claimant should continue to be informed of developments
within the company and absence from significant meetings
can block this flow of information. I note that the
claimant alleges that this practise arose after October
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1993 and that the company in its defence did not dispute
this but argued that she was at all meetings that she
had a right to attend as an Assistant Manager. I
consider that the only change in the claimant's status
since October 1993, is the fact that she took a claim
under the 1977 Act against the company after first
indicating to the Financial Controller her intention to
do so and consequently I consider that this exclusion
from meetings and thereby information arose from the
fact that she had made a claim against the company.
5.5 The claimant argues that the Financial Controller
undermined her position on the computer implementation
committee by attending these meetings subsequent to
October 1993 where previously she had attended them to
represent the financial department. Both sides have
given detailed arguments, concerning the minutes of
these meetings, in relation to his attendance/non
attendance at them. I note that the claimant had
attended these meetings as representative of the
financial department and that her perception is that his
attendance at them undermined her position at these
meetings.
I have been supplied by the company with the minutes of
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some of these meetings.
I note that between June 17th and September 28th 1993
there were 10 meetings which have minutes extant. The
Financial Controller attended one of these (17th August)
to address a specific item that had been raised at the
previous meeting.
I note that only three sets of minutes were made
available to me by the company in relation to meetings
between October 1993 and February 27th 1994, (21st Oct,
4th Nov & 18th Nov). I note that previously these
meetings were generally held at weekly intervals. I
accept the point made by the claimant that the purpose
of the minutes was to keep senior management informed of
the activities and progress of the committee and that
there was no need for minutes when the Financial
Controller attended as he is a member of senior
management.
I find that there is a certain conflict of evidence
between the parties on this issue. I note that in her
original submission the claimant alleged that the
Financial Controller began to attend "all" the meetings
of the committee after October 1993. The company has
claimed that the claimant has sought to mislead the
investigation by using the word "all". I note that there
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were two meetings (4th & 18th November) that the
Financial Controller did not attend. I note that
although he was at a board meeting on the 4th and unable
to attend, he had suggested what should be debated at
the meeting, while on the 18th November he was absent
due to holidays. Other than a memo following a meeting
held on the 11th January 1994 (that the claimant was not
informed about) there is no record of any meetings from
this point onwards until the end of February and I am of
the opinion that this is because the Financial
Controller was in attendance at them as alleged by the
claimant. I consider that as the claimant's
responsibilities have not altered, that her involvement
in this committee was changed due to the claimant making
the first claim.
5.6 As I have already noted the claimant's duties and
responsibilities did not change due to her non
acceptance of the promotion in October 1993. It follows
that the claimant who refused the promotion because she
considered that she was being discriminated against by
the attached terms, finds that she is carrying out
essentially the same work as if she had accepted the
promotion and the status that went with it, if not the
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salary increase. In her first submission the claimant
referred to the fact that the company recognised her as
being on a par with the other three male Managers. The
company disputed this and as a direct result the
claimant was reduced on the company's organisation chart
subsequent to the company's first submission, see
paragraph 4.6 above, where in relation to the claimant's
position on this chart it stated "steps are being taken
to rectify this." This organisation chart is on
circulation to all company staff. When it updated it by
repositioning the claimant, because this was the only
movement on the chart at that time (there were no new
appointments/departures, or promotions) it emphasised
the new status of the claimant and this updating was
made totally in the context of this claim. I consider
that this demotion of the claimant on the organisational
chart, was made as a direct result of her making a claim
that she was discriminated against by the company in
relation to the promotion offered in October 1993.
5.7 I note that the circulation of a memorandum on the 18th
October is the first instance of discrimination, in
relation to exclusion from information, documented by
the claimant. I note that this memo concerned a
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particular phase in the implementation of the computer
system. The claimant had been actively involved in this
project from its inception until then. The memo was not
circulated to the claimant. The company claims that it
was circulated to those in areas where this particular
aspect of the computer system had a direct impact. The
claimant alleges that this phase directly impacted upon
her as "the collection of and accounting for `labour
time' (contents of memo), was under my direct
supervision". I consider that the claimant had an
ongoing involvement in this committee from its
inception. This fact together with the fact that the
memo directly impacted on her sphere of work points to a
new departure in relation to her involvement in this
committee. I am also taking into account that after this
time the Financial Controller began attending these
meetings and she was not informed of them. I consider
that this exclusion from information arose as a direct
result of her making a claim that she was discriminated
against by the company in relation to the promotion
offered in October 1993.
5.8 The claimant has alleged that she was subjected to
verbal abuse by the Financial Controller, to whom she
21
reported, subsequent to the claim being mentioned and
also that she was discriminated against in the
performance appraisal carried out in June 1994. I note
that this appraisal was carried out by the Financial
Controller. I also note that the working relationship
between the claimant and the Financial Controller had
broken down to the extent that she was not kept informed
of vital information. To illustrate this I refer to the
fact that in January the General Manager brought to her
attention three issues that he had communicated to his
three new Managers and that the Financial Controller had
not relayed to her and in turn the staff who reported to
her. In relation to the appraisal carried out on her by
the Financial Controller I note that prior to her making
the first claim on the company, there was no evidence of
any dissatisfaction on the company's part concerning the
work performance of the claimant, in fact it had
promoted her and given her additional responsibilities
in May 1993, and offered her a further promotion in
October 1993 which obviously acknowledged its
satisfaction with her and confirmed that there were no
problems with her work. I note the Financial Controller
downgraded the claimant generally in relation to her
interaction with other members of staff. I consider
22
that as the company was sufficiently satisfied with the
claimant's performance prior to October 1993 to have
offered two promotions within 5 months, (in the period
under review) that the fact that she took a claim under
the 1977 Act against the company led to this
unfavourable appraisal.
5.9 I note that the company has claimed in its defence that
incidents that took place either before the first claim
or after the second claim was referred to the Labour
Court cannot be taken into consideration when examining
this claim made by the claimant. I consider that such
incidents particularly those on an ongoing basis
subsequent to the company having been notified of a
dispute under this Act are relevant.
5.10 The company has argued that these allegations made by
the claimant have no connection with her first claim. I
consider that the company were aware of this claim in
October 1993 as the claimant had indicated to the
Financial Controller then that she was considering
taking a claim on the basis of the discriminatory
treatment of her by the company in comparison with three
males who were promoted at the same time. I consider
23
that as the company was aware of the existence initially
of the possibility and then of the reality of the first
claim it should have been vigilant in its treatment of
the claimant to ensure that no further allegations of
discriminatory treatment could be made. Instead the
claimant was demoted on the company organisation chart,
was not informed about meetings, was excluded from
information, undermined in relation to a computer
project committee subsequent to serving notice of intent
to lodge a claim.
6 RECOMMENDATION
6.1 In view of my conclusions in the previous paragraph I
find that the claimant was discriminated against by
P.W.A.I. contrary to the provisions of the 1977 Act. The
claimant has sought monetary compensation as a remedy. I
consider that this is the appropriate remedy in this
instance.
6.2 I recommend that P.W.A.I. make an award of £2,500 for
the upset and anxiety caused to the claimant.
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--------------------
Mary Solan Avison
Equality Officer
11th April, 1996.
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