FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : EIRCOM LIMITED - AND - BRIDGET BOLAND (REPRESENTED BY O'MARA GERAGHTY MC COURT SOLICITORS) DIVISION : Chairman: Mr Flood Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Appeal against Equality Officer's Recommendation DEC-E2002-019.
BACKGROUND:
2. The worker was employed by the Department of Posts and Telegraphs, in 1966. In 1984 the claimant was transferred to Telecom Eireann. Telecom Eireann changed its name to Eircom in September, 1999. The worker claims that she has been consistently passed over for promotion since 1995. She claims that she was discriminated against on grounds of gender. The employer rejects the claim.
- The dispute was referred to an Equality Officer for investigation. The Equality Officer issued her recommendation on the 19th April, 2002. She found that Eircom discriminated against the claimant on the grounds of sex in terms of section 2(a) of the Employment Equality Act, 1977 and contrary to section 3 of that Act.
Eircom appealed the Equality Officer’s recommendation on the 22nd May, 2002. The claimant appealed the Equality Officer’s recommendation on the 4th June, 2002.
- The Court heard the double appeal on the 18th October, 2002. Both parties made written and oral submissions. The following is the Court’s Determination.
DETERMINATION:
Both sides appealed against Equality Officer’s Recommendation DEC-E2000-019 dated the 19th April 2002.
The Company (the Respondent) appealed on the following grounds:
1. That the Equality Officer erred in law and or in fact in deciding that the appellant discriminated against the respondent therein on the grounds in terms of Section 2(a) of Employment Equality Act, 1977 and contrary to Section 3 of the Act.2. That the Equality Officer erred in law and or in fact in deciding that the respondent herein had established facts that raised the prima facie case on the grounds of sex.
3. That the Equality Officer erred in law and or in fact in deciding that the appellant had failed to demonstrate that it was justified in finding the respondent herein unsuitable for assignment to an acting position.
4. That the Equality Officer erred in law in deciding that she had jurisdiction to determine whether the appellant was required to demonstrate that it was justified in finding the respondent herein unsuitable for assignment to an acting position for any reason other than the sex of the respondent herein.
5. That the Equality Officer erred in law and or in fact in recommending that the appellant engage the services of a professional human resources practitioners to assist it in implementing the recommendations of paragraph 5(2)(c)(d)(e) of the Equality Officers recommendation.
The claimant (the Appellant) appealed the recommendation on the grounds that:
(1)The Equality Officer did not recommend that the Appellant be appointed to an acting-up position at Tex VII level with effect from the 3rd of May 1999.
(2)The complainant also sought the implementation of the recommendations of paragraph 5(2) of the recommendation.
Appellant’s Case:
The Appellant’s case is that she had greater experience skills and seniority then the male appointees and therefore these made her a more suitable person for the position in question. She further argued that the fact that she was not chosen for the position despite her greater experience skill and seniority was prima facie evidence of discrimination. She claimed that she had extensive experience at Tex VII level and had amply demonstrated competence in her position and in particular her ability to take on responsibility.
She claimed that for many years she had been responsible for managing staff at various levels and had been involved in training of redeployed receptionists.
The Appellant argued that when she first applied for an acting up position she had been advised by the Respondent initially that the reason for her failure to be appointed to an acting up position was as a result of a poor sick leave record. She claimed that it was the policy of the Respondent to discount sick leave of the type she had, when assessing the suitability of candidates for promotion.
The Appellant also argued that when she subsequently applied for an acting up position and queried the position in relation to the claim that it was her sickness record which prevented her being promoted, the Respondent then claimed that it had been informed by the head of Credit Management that she lacked the necessary assertiveness needed to deal with the higher level of work involved and that a company report had stated that she was considered by line management not to have sufficiently developed a competency profile required for assignment to a Tex VII position.
The Appellant argues that she was never informed of this assessment and was not aware that was the reason she had not been promoted. She argues that she was assessed for a promotional competition in September 1999 by management. This assessment form provided an overall rating of 3 for the Appellant, indicating that her performance met the requirements of the job and on occasions exceeded them. Her personal strengths were noted to be that she was an excellent worker, had good interpersonal skills, was very flexible to change, and had a good attendance record.
The Appellant further claimed that she was deemed unsuitable for such an acting-up position because she was a woman who came from a traditional female working area. She had further claimed that she was denied any opportunity to undertake the functions of a higher grade.
The Appellant submitted that in all the circumstances she had established a prima facie case of discrimination on the grounds of sex and that the onus was therefore on the respondent to rebut the inference of discrimination raised.
The Law
Burden of Proof
For an allegation of discrimination to be upheld under the Employment Equality Act, 1977, the complainant must show prima facie evidence of discrimination. Once a prima facie case is established the burden of proof falls on the respondent to show that discrimination did not take place.
This principle is enshrined in the case law of the European Court of Justice which was given a statutory authority in Council Directive 97/80 EC on the Burden of Proof in Cases of Discrimination Based on Sex which sets out the procedural rules to be followed in applying the evidential burden in discrimination cases and is transposed into Irish Law by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001.
Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC, provides as follows
"3(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary"
In Southern Health Board v Mitchell AEE/99/8 the Court considered the application of Article 4 of the Directive and concluded as follows:
"[A] complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Court accepts as fact in this case:
1.At the complainant's initial application the respondent first of all confirmed that she was deemed unsuitable on the basis of her sickness record.
2.When that decision was challenged the respondent stated that she lacked assertiveness with customers and general experience in credit management. The respondents however had never indicated to the Appellant that they were in any way dissatisfied with her performance.
3.The Appellant was assessed in September 1999. At that time her performance met the requirements for promotion and on occasions exceeded them. Despite this she had not been previously promoted.
4.The plaintiff's experience skills and seniority were certainly equal to, if not greater than those of the male appointees.
In the circumstances, the Court finds that the Appellant has established a prima facie case of discrimination and that the onus falls on the Respondent to rebut same.
Respondent’s Case:
The Respondent stated that promotion to different levels within the organisation is in accordance with collective agreements with the recognised Trade Unions. Appointments on an acting-up basis, which carry no entitlements to substantive promotion, are generally confined to staff working in the immediate area. Selection is made by the prospective line manager on the basis of suitability with due regard to seniority.
The Appellant had claimed that she was deemed unsuitable for such an acting-up position because she was a woman who came from a traditional female working area. She had further claimed that she was denied an opportunity to undertake the functions of a higher grade. The respondent denied all of these allegations and claims.
In relation to the June 1999 assignment of a Telecom Executive VII to an acting-up position, the Appellant being the senior Executive VII in the area was first considered but deemed unsuitable as she lacked assertiveness with customers and general experience with credit management. Another Telecom Executive VII in the area, a male, was also considered unsuitable on the basis that he too lacked the necessary skills.
On the 10th June 1999 another position became available and the appellant again decided to fill the position by means of an acting-up appointment. Again the complainant was considered but deemed unsuitable.
The appellant rejects the complaint that the failure to appoint the Appellant to an acting-up position discriminated against the complainant on the basis of sex. The complainant was considered for each appointment but deemed not suitable solely on the grounds of her suitability to carry out the duties of a higher grade and not to her sex. Another Telecom Executive VII in the area, a male, was also considered unsuitable for the appointments.
The appellant submitted that there was no evidence to justify the Equality Officer's conclusion that the appellant had failed to demonstrate objective non-discriminatory reasons for the Appellant’s exclusion from the September promotional competition.
In the event of the Labour Court upholding the conclusions of the Equality Officer that the Appellant was discriminated against on the basis of sex, the appellant submitted that the level of compensation recommended by the Equality Officer was unreasonable having regard to all the circumstances of the case.
Findings:
The Appellant had a good employment record apart from her sickness level. Her appraisal markings were good and she had received her increments as appropriate.
The Respondent raised a number of reasons for her being passed over for an acting-up position, i.e. her sickness level, her lack of credit experience and her lack of assertiveness.
In relation to her sickness record, there were two lengthy periods of sickness. If either of these had been discounted the plaintiff would have been deemed eligible for an acting up position, but because management discounted neither she was not eligible to go forward. The Respondent initially appears to have stated that it was the doctor who made the decision on the claimants eligibility but it was accepted in the Court that it was management who decided not to discount.
The Court accepts that it is management’s prerogative to decide whether or not to discount particular cases. The Respondent in response to questions from the Court did accept that it was unusual for management not to discount in similar circumstances.
In relation to her application for the second acting up position Management's perception of her lack of assertiveness with customers was based on information supplied to her superior by her subordinates. It was alleged that she had not been firm enough with customers who had not paid bills.
The Manager who had ultimate responsibility for the decision not to sanction her appointment to the acting up position, was new to the job, and based his decision on the information supplied by her superior to this effect.
The Court in considering this case finds it unacceptable that such a decision, with career limiting consequences for the complainant would be taken on such a basis, particularly as Management accepted that these accusations were never put to her nor was she made aware that they had been made.
On the issue of lack of experience in credit management, the Court finds it difficult to understand how someone in a post such as the Appellant could get this experience other than in an acting up position.
The Court is not satisfied that the respondents had produced any reasonable argument to support its case that the Appellant lacked assertiveness. Indeed, the Court would strongly support the Equality Officer’s comments on this matter. The respondent has not in the view of the Court advanced sufficient reasons to rebut the presumption of discrimination in this instance.
The Respondent put forward the defence that a male employee of similar grade was also passed over for the acting-up position and therefore there could be no case of sexual discrimination. The Court does not accept this argument as no information on the capabilities of this person was put forward and no indications were given to the Court that the individual’s experience or appraisals rankings were similar to the Appellant. It is possible that the individual concerned was totally unsuitable for the position involved. It is not sufficient to say that because a male individual was passed over that there can be no discrimination. The male involved in this case has not been shown to have been of similar status, either in performance or appraisal as the Appellant.
Determination
The Court rejects the appeal of the respondent in its entirety and upholds in its entirety the recommendation of the Equality officer.
The Court in part upholds the appeal of the appellant and recommends that the appellant be appointed to the next acting up position that becomes available. The Court further awards the appellant the sum of €4000 as compensation in respect of arrears of pay she would have received had she been promoted to an acting up position in 1999.
Signed on behalf of the Labour Court
Finbarr Flood
24th January, 2003______________________
CMcM/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Caroline Hayes, Court Secretary.