Benson (Represented by IMPACT) V Mayo County Council (Represented by the LGSNB)
1. DISPUTE
1.1 This dispute concerns a claim by Ms. Honor Benson who is employed by Mayo County Council that she was discriminated against in terms of Sections 6(1), 6(2)(a) and 6(2)(b) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when she was not offered acting-up positions in the respondent organisation and when the offer of the Revenue Collector position was withdrawn. The complainant further alleges that she was subjected to victimisation in terms of Section 74(2) of the 1998 Act when she was transferred to the vacant Clerical Officer (Secretarial) position in the Veterinary Section of the respondent organisation.
2. BACKGROUND
2.1 The complainant is employed with the respondent organisation as a Clerical Officer since October, 1984. She alleges that she has been discriminated against on the grounds of gender and marital status in relation to acting-up positions in 1999, 2000, 2001 and 2002. She also alleges that an offer of a Revenue Collector position was withdrawn and the decision to withdraw the offer was influenced by the fact that she was availing of parental leave. It is her contention that the respondent subjected her to victimisation when it transferred her to a Clerical Officer (Secretarial) position in the Veterinary Section.
2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 14th October, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 21st November, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received and a joint hearing took place on 26th May, 2003. Additional information was received from both parties with the final correspondence received on 18th June, 2003.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant is employed as a Clerical Officer (Ordinary) with the respondent organisation. She commenced employment in that capacity with that organisation in October, 1984. Apart from a career break of three years from 1989 to 1992 the complainant has been in continuous employment with the respondent organisation since 1984. According to the complainant she sought and was approved for parental leave from April, 2001 until 5th November, 2001 and the format was one day per week spread over 5 days with a 3.30p.m. finishing time. From November, 2001 to date the complainant has been taking parental leave on the basis of two days per week spread over five days resulting in a 1.15p.m. finishing time.
3.2 The complainant commenced work in the Revenue Section of the respondent organisation on 1st September, 1995. This Section is staffed by a Grade V Officer, a Grade IV Officer (currently being filled by two job-sharing partners) and two Clerical Officers Grade III. The complainant notes that traditionally the Staff Officer in this Section has taken extended annual leave for a two month period during the summer months. The collective agreement between the Union and the respondent sets out the arrangements to apply in respect of acting-up in such circumstances and this is set out in Appendix A.
3.3 According to the complainant up to January, 1999 the most senior Clerical Officer in the Revenue Section was her male colleague. The complainant says that during the period from 1996 to 1998 this male Clerical Officer was offered and facilitated with acting-up arising from the consequential vacancy resulting from the extended summer leave taken by the Staff Officer and this arrangement conformed with the collective agreement. In January, 1999 the male Clerical Officer left the Revenue Section and was replaced by a male temporary Clerical Officer. Arising from this change the complainant became the most senior Clerical Officer in the Revenue Section but for the years 1999, 2000 and 2001 she was passed over for the acting-up position over the summer months and it was given to male job-sharing Grade IV who reverted to full-time status for the period of acting-up. It is the complainant's contention that the respondent's failure to give her the acting-up position was discriminatory on the grounds of gender and marital status.
3.4 The complainant states that the male temporary Clerical Officer would not have met the eligibility criteria for acting-up on the basis of his temporary status. She says that at no stage during those years was she afforded acting-up which arose as a consequence of the promotion of the job-sharing Grade IV to the acting Staff Officer position. In 2002 the Staff Officer sought and obtained extended leave during the summer and the complainant understands that the acting-up position was offered to a female but she declined the offer. It is the complainant's contention that the acting-up position at Grade V should have been offered to her rather than being offered to the temporary male Clerical Officer which she says was in breach of the collective agreement as he was not the next most senior eligible candidate. According to the complainant if she had been offered the position she would have taken it and reverted to full-time work. The complainant contends that the failure to offer her the acting-up position constituted discrimination related to the fact that she is female, married and availing of parental leave. It is her further contention that this discrimination on the basis of parental leave is related to her gender and marital status as is evident by the profile of workers across the public sector availing of parental leave entitlements.
3.5 The complainant states that in September, 2002 she was offered the opportunity to act as Revenue Collector - a position which is currently analogous to Grade IV for pay purposes and is traditionally filled in an acting capacity by Clerical Officers. According to the complainant the offer was made on Friday, 6th September, 2002 and withdrawn on Monday, 9th September, 2002 when an existing Grade IV post-holder expressed an interest in the position. The complainant states that she was extremely aggrieved at the withdrawal of this offer and complained to the Director of Human Resources on 9th September, 2002. At that meeting she took issue with being constantly passed over for the Staff Officer acting-up position since 1999 and she sought a transfer out of the Revenue Section as she considered that her position there had become untenable. According to the complainant she sought a transfer to a Clerical Officer vacancy in the Castlebar Area Office. She states that the Director of Human Resources stated that he could see no reason why she could not be facilitated with the transfer within days.
3.6 The complainant submits that the matter was delegated to the Senior Executive Officer in Personnel to whom her complaints in relation to acting-up had been conveyed. According to the complainant the Senior Executive Officer was adamant that she had no grounds for being aggrieved and insisted that she submit her transfer request in writing. In her written request for a transfer the complainant clearly indicated that her grievances would be pursued. At this point the respondent advised the complainant that she would be transferred to the Veterinary Department of the respondent organisation with effect from 30th September, 2002. The complainant challenged this appointment stating that she had no typing skills and she was told by the respondent that there was no difference between Clerical Officer (Secretarial) and Clerical Officer (Ordinary). The complainant notes that the respondent undertakes separate selection and recruitment arrangements for these posts. The complainant states that she raised her reservations with the Director of Human Resources who advised her that she would have other duties like "filing". According to the complainant she was forced to accept this position under the threat of disciplinary action from the respondent. It is the complainant's contention that this move constituted further discrimination as the move did not match her skills and experience and in effect was a demotion. The complainant notes that the post had previously been filled by temporary female workers.
3.7 According to the complainant the move to the Veterinary Department meant that she was now in an office where there was no opportunity of acting-up as there was only one administrative officer assigned to this office. In addition to alleging that this move represented victimisation the complainant also notes that this position would not have been offered to a male member of staff. It is further contended that the complainant's transfer is related to her parental leave and accordingly there are grounds of complaint in respect to direct and indirect discrimination.
3.8 The complainant makes the following arguments in support of her claim:
(1) The practice of consistently passing her over for temporary promotion (i.e. acting-up) constitutes both direct and indirect discrimination and was contrary to the provisions of the Employment Equality Act, 1998. It is the complainant's contention that she should have been offered the acting-up position for extended annual leave for the years from 1999 to 2002 as the most senior Clerical Officer working in the Revenue Department and in accordance with the collective agreement.
(2) The complainant contends that she was not consulted or given any explanation for her non-appointment to act up and felt humiliated and distressed by this treatment. When the complainant made a complaint about this to the respondent on 6th October, 2002 the Staff Officer stated that in relation to 2002 he had thought that he had offered it to her and in relation to previous years he stated that acting-up arrangements were inappropriate as the higher level post was occupied by two job-sharers.
The complainant contends that she should have been afforded an opportunity to act up at Grade IV during the period 1999 to 2001 on the basis of the full-time Grade IV vacancy arising as a result of the annual leave periods taken by the female job-sharer at Grade IV which co-incided with the acting-up assignment afforded to the male job-sharer who acted-up for the Staff Officer. It is the complainant's submission that it was irrelevant whether the higher level post was filled in a full-time or job-sharing capacity.
(3) The complainant contends that during the summer periods 1999 and 2000 she was denied an opportunity to act-up because of her gender and this constituted direct discrimination and less favourable treatment than had been afforded to her former male colleague who was afforded the opportunity to act-up.
(4) The complainant contends that she was denied acting-up positions in the years 2001 and 2002 because of her gender and because she was on parental leave. She states that these factors related to her gender and marital status and are directly relevant to her claim of indirect discrimination in respect of these periods of leave. The complainant submits that her experience, skills and seniority rendered her the most suitable person within Revenue to act at Grade IV level and that her seniority in itself raises the presumption of discrimination against her.
(5) The complainant contends that the respondent has not provided sufficient evidence to rebut the inference of discrimination raised in these cases and the balance of probabilities favours her.
(6) According to the complainant she has established facts from which it can be presumed that the principle of equal treatment has not been applied to her. The complainant's former male colleague (the most senior male Clerical Officer) had been afforded acting-up positions during extended annual leave periods up to 1999 when he left. It is the complainant's submission that, after this, she was not afforded the opportunity to act-up at either Grade IV or Grade V level. Furthermore in 2002 a junior male colleague was afforded an acting-up opportunity for two separate periods of one month's duration over the summer period. The complainant contends that these facts cannot be disputed by the respondent and that she was thus established a prima facie case of discrimination on the grounds of gender.
(7) The complainant contends that her experience was comparable with that of the complainant in the case of Ms. Boland v Eircom2.
(8) The complainant submits that she has never been advised at any stage that her work is anything less than satisfactory. She has never been subject to disciplinary action and has always held a satisfactory record.
(9) Taking all the facts into account the complainant contends that in order to be afforded acting-up promotion the Revenue Section of the respondent organisation a person needs to be a man, a practice which is contrary to the provisions of the Employment Equality Act, 1998.
(10) The complainant contends that the reason for denying her acting-up opportunities during 2001 and 2002 related to the fact that she was taking parental leave and this she states relates to her gender and marital status and also constitutes indirect discrimination in accordance with the provisions of Section 22 of the Employment Equality Act, 1998.
According to the complainant the respondent imposes a requirement that to act-up in the Revenue Section one must be male. The complainant considers that the respondent has failed to submit valid objective reasons for her non-promotion to an acting-up position.
(11) The complainant argues that her claim is supported by the findings of the Equality Officer in the case of Ms. O'Callaghan v Department of Defence3.
(12) The complainant contends that she was the subject of indirect discrimination and argues that this contention is supported in the European Court of Justice findings in the case of Enderby v Frenchay4. It is the complainant's contention that, in respect of acting-up in 2001 and 2002, the respondent imposed a requirement that an employee should not availing of parental leave to act up in a promotional position within the Revenue Section. According to the complainant such a requirement constitutes indirect discrimination and is supported by the findings in the following cases:
- Voilet Mulligan vs Eastern Health & Social Services Board5
- Gillen vs Scottish Power6
- Robinson vs Oddbins7
- Puttick vs Eastern Borough Council8
- Gerster vs Bayer9
The complainant contends that the claim of indirect discrimination is also supported by the arguments advanced in Black vs Tesco10
(13) According to the complainant the less favourable treatment of atypical worker has been supported by the Labour Court as recently as June, 2002 in the case of the Western Health Board and A Worker11 where the Court took account of the principles established by the European Court of Justice judgement in Hill and Stapleton. The complainant also cites recent figures from the Irish Congress of Trade Unions with respect to the gender profile of workers availing of parental leave which is 84% female and 16% male.
(14) The complainant states that she was transferred to a secretarial post in the Veterinary Section of the respondent organisation under threat of disciplinary action. She challenges this assignment on the basis that it did not represent an equivalent level of post to the position she was vacating in the Revenue Section. This new post was of a predominately secretarial nature and did not match her competencies. The complainant considers that this was traditionally a female post and she was assigned to it on this basis even though she did not have the necessary typing skills. It is the complainant's contention that this position would not have been offered to a male employee and therefore she was discriminated against on the basis of her gender.
(14) The complainant further contends that she was assigned this work area because she was availing of parental leave, that such an assignment represented discrimination and that it involved assigning her to less attractive work than was available throughout the wider pool of vacancies in the respondent organisation.
(15) The complainant contends that the respondent acted contrary to the provisions of the Employment Equality Act, 1998 by assigning her to a post which was totally inappropriate to her skills and experience and that it was motivated by an intention to victimise her because of her expressed proposal to further pursue her claim for discrimination.
(16) The complainant argues that the handling of her grievance with respect to her transfer resulted in her being less favourably treated on the grounds of gender than a male colleague who had pursued a similar grievance concerning a transfer in November, 2001. The complainant states that she was coerced into transferring to the Veterinary Section under the threat of disciplinary action whereas the male colleague had his transfer deferred pending negotiations with the Union.
3.9 The complainant asks that the Equality Officer finds in her favour and award her appropriate redress with the discrimination, financial loss and distress suffered by her.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent denies the contention by the complainant that she was, in any way, discriminated against and it requests the Equality Officer to find in its favour.
4.2 The respondent notes that the complainant refers to the Section where she worked as the Revenue Section whereas the respondent refers to it as the Rates and Service Charges Section. The respondent disputes the staffing of the Section as set out by the complainant at paragraph 3.2 above and states that the Section was staffed by a Grade V Officer, a Grade IV Officer, 3 Clerical Officers Grade III (permanent) and a Clerical Officer Grade III (temporary). According to the respondent the Staff Officer in the Section took one month's authorised annual leave during the summers of 1996, 1997 and 1998 and two months authorised annual leave during the summers of 1999, 2000, 2001 and 2002.
4.3 The respondent states that the Staff Officer was on annual leave between 3rd August and 3rd September, 1996 and that during his absence, in accordance with established acting-up arrangements, the Assistant Staff Officer who was female acted Staff Officer and a male Clerical Officer acted Assistant Staff Officer. It is the respondent's submission that this male Clerical Officer did not act as Assistant Staff Officer or Staff Officer during 1997 or 1998. The respondent denies that the complainant was passed over for acting in a higher capacity during 1999, 2000 and 2001. During the Staff Officer's annual leave period in 1999 a male Grade IV working as a job-sharer acted Staff Officer in a full time capacity in accordance with established acting-up arrangements. This male Grade IV employee job-shares with the female Grade IV Officer who acted-up in the Staff Officer position in 1996. When the male Grade IV Officer acted in the position of Staff Officer in 1999 there was no full time acting position of Assistant Staff Officer to be offered to a Clerical Officer. This had been the situation in 1997 and 1998 and this was also the position in 2000 and 2001.
4.4 The respondent states that during the 2002 annual leave period the Staff Officer was on leave from 5th June to 7th July, 2002 and again from 3rd August to 2nd September, 2002. According to the respondent the acting position was offered to the female Assistant Staff Officer but she declined it. The respondent states that the position was then offered to the complainant who also declined it. It is the respondent's contention that the complainant was present when the acting position was offered to the Assistant Staff Officer and vice versa. The respondent states that it was only after the complainant refused the offer to act-up that the position was offered to the permanent male Clerical Officer. It is the respondent's submission that no discrimination took place against the complainant, the position had been offered to a female who was more senior to the complainant in the first instance and when she refused it was offered to the complainant who also refused it before being offered to the male Clerical Officer. The respondent also denies the contention that the complainant was discriminated against on the grounds of her marital status and says that the complainant was offered the position after another more senior married female refused it. The respondent further denies the allegation that the complainant was discriminated against because "she was availing of Parental Leave" and says that the complainant refused to act in the position after another more senior married female on parental leave had refused it.
4.5 The respondent states that a male employee employed as a Revenue Collector was killed in a road accident on 5th August, 2002. At the time the Staff Officer in the Rates and Service Charges Section was on annual leave. On his return from annual leave on 2nd September, 2002 the Staff Officer asked all staff in the Section if they were interested in the Revenue Collector job. Four staff members stated that they would not be interested in the job as they did not have a car or could not drive, hence they would be unable to carry out the duties. The respondent states that the female Assistant Staff Officer and the complainant did not express their interest or otherwise in the position. According to the respondent the Staff Officer again asked the complainant on Friday, 6th September, 2002 if she was interested in the Revenue Collector position and she asked to be allowed to consider it over the weekend. The female Assistant Staff Officer was on sick leave at this time (from a.m. on 2nd September, 2002 until Monday, 9th September, 2002) and on her return to work on 9th September, 2002 she informed the Staff Officer that she was interested in the Revenue Collector position. The respondent states that the complainant also indicated that she was interested in the position. It is the respondent's submission that the complainant considered that she was entitled to the position as it had been offered to her the previous Friday. According to the respondent the Staff Officer, when discussing the matter with the complainant the previous Friday, had informed her that he would have to check with the female Assistant Staff Officer if she was interested. The Staff Officer informed both officers that he would discuss the matter with Personnel. The respondent states that at approximately 12.30p.m. that day (Monday, 9th September, 2002) the complainant telephoned the Staff Officer and stated that she was no longer interested in the position. The following day (10th September, 2002) the complainant discussed the matter further with the Staff Officer and told him that she was going to apply for a transfer with immediate effect. On 11th September, 2002 following a discussion with the County Secretary, the Staff Officer made a recommendation for the female Assistant Staff Officer to be assigned the duties of Revenue Collector on a temporary basis and the complainant be appointed acting Assistant Staff Officer. The respondent states that it was the practice that a Clerical Officer filled the position of Revenue Collector temporarily in an acting capacity. However, on at least two previous occasions Assistant Staff Officers had been assigned the duties of Revenue Collector in a temporary capacity.
4.6 The respondent states that the only vacancy which existed in the Castlebar Area Office at the time of the complainant's request for a transfer was a maternity leave vacancy. This position was vacant for a few months and the permanent holder of the position was a Clerical Officer (Secretarial). According to the respondent it is established practice to allow a person on maternity leave to return to the section where they worked prior to their maternity leave. Hence the respondent submits that it could not have transferred the complainant to fill this position because, apart from it being a short term vacancy, the respondent was committed to allowing the person on maternity leave to return to that position. The respondent denies that any undertakings were given to the complainant by the Director of Services other than he would consider the matter (paragraph 3.5 above refers). The request by the Senior Executive Officer in Personnel to the complainant to put her transfer request in writing was, according to the respondent, only complying with custom and practice in relation to all such requests.
4.7 The respondent states that substantial re-organisation took place within its organisation over the past two years with many of the functions being devolved and delegated to staff in seven area offices. Up until Better Local Government (BLG) the Environment Section was headed administratively by one Administrative Officer but after BLG this position went elsewhere. The respondent says that the Director of Services had intended that many of the tasks performed in the Environment Section would be transferred to other Departments and a number would be assigned to the Veterinary Department. It was envisaged that the duties of the Clerical Officer in the Veterinary Department would comprise general clerical duties as there were very little typing duties carried out in that section. The respondent states that the complainant had requested a transfer out of Rates and Service Charges Section with immediate effect and the only vacancy available was in the Veterinary Department and the Director of Services assured the complainant that she would not have to undertake typing duties. The respondent denies that allegation that the complainant's transfer to the Veterinary Department 'constituted effective demotion' and discrimination as she had the opportunity to use her skills and experience to expand the role of the Veterinary Department. The respondent also denies the allegation that the complainant's transfer to the Veterinary Department constituted victimisation 'for making her complaints known to her employer in the first instance' and says that the transfer took place following a request from the complainant for a transfer with immediate effect.
4.8 In relation to the reference by the complainant that she "was forced to take up this position under the threat of disciplinary action" the respondent states that, from time to time, an occasional person would indicate their unwillingness to move to another section. Generally after some discussion the reluctant person would agree to move. However the respondent says that on occasion it has been necessary to point out that a refusal to comply with the request could have serious consequences. It was for this reason that the County Secretary pointed this out to the complainant in his letter to her. The respondent submits that it has encountered individuals who were reluctant to move to another section but were later very happy with their new positions. Also in a limited number of cases a transferee has been unhappy following a transfer and the respondent states that, in these cases, the individual is moved within a short period of time to a position more acceptable to them. In this regard the complainant will be moved to another section on 1st April, 2003. The respondent notes that since the introduction of BLG it is more difficult to transfer staff to their preferred locations as there are fewer vacancies at Headquarters consequent on many positions being located in nine area offices and three town Councils. Having said that the respondent states that it is established policy to transfer staff from time to time in the interest of staff development.
4.9 In relation to the complainant's transfer to the Veterinary Department the respondent denies the Union's contention that "the position would not have been offered to a male Clerical Officer" and says that the Union has given no evidence whatsoever to back this up. It is the respondent's submission that it has never applied a transfer policy based on the gender of the individuals being transferred. The respondent also denies the Union's contention that "the transfer of the complainant was related to the fact of her parental leave" and says that no evidence has been advanced by the Union to substantiate this contention. The respondent further denies that the complainant was passed over for promotion or that she was subjected to any direct or indirect discrimination.
4.10 According to the respondent no meeting took place on 6th October, 2002 with the complainant hence the respondent states that she had no reason to feel humiliated or distressed. The respondent notes that the complainant had been assigned to the Veterinary Department since the previous 30th September, 2002. However the respondent is aware of a meeting that took place between the Staff Officer and the complainant on Tuesday, 10th September, 2002. It was at that meeting that the complainant complained that she was never offered acting up by the staff officer but this is denied. The respondent notes that during the Staff Officer's leave period in 1999, 2000 and 2001 the person acting in his position took leave of short periods and it is not normal practice to appoint Clerical Officers in an acting capacity for such short periods and no payment for acting would have accrued for continuous periods less than four weeks.
4.11 The respondent denies the complainant's contention that, during the summer of 1999 and 2000, she was denied the opportunity to act-up because she was a woman or that less favourable treatment had been afforded to her than had been to her former male colleague. The respondent further denies that complainant's contention that "she was denied acting-up during the years 2001 and 2002 because she was a woman and consequently treated less favourably as a result of her gender and also because she was on parental leave a factor related to her gender and marital status and a factor relevant to her claim of indirect discrimination with respect to these periods". According to the respondent the complainant was offered acting-up during 2002 but she declined and it contends that this demonstrates that it had no problem with the complainant's skills, experience and seniority. It is the respondent's contention that the complainant has not established any facts from "which it has to be presumed that the principle of equal treatment has not applied to her".
4.12 The respondent denies the complainant's contention that "in order to be afforded acting-up promotion within the Revenue Section, a person needs to be a man, a practice which is contrary to the provisions of the Employment Equality Act, 1998". It is the respondent's submission that the female Assistant Staff Officer acted-up and the complainant was offered the opportunity of acting-up but she declined the offer as did the female Assistant Staff Officer on occasion. The respondent also notes that a female officer acted-up in the Revenue Section during defined periods in 1993 and 1994.
4.13 The respondent denies the complainant's contention that it intended to victimise her by transferring her to the Veterinary Department as alleged at paragraph 3.8 (14) above. According to the respondent the complainant was transferred to the only position available consequent on her request for a transfer with immediate effect. The respondent denies that there is any comparison between the complainant's transfer and that of the male officer referred to in paragraph 3.8 (16) above. Rather this male officer sought a transfer to Belmullet and has since gone there. However the issue referred to by the complainant related to expenses.
4.14 The respondent states that it has not discriminated against the complainant either directly or indirectly. In that regard therefore it submits that the cases cited by the complainant are not relevant to this claim.
4.15 The respondent brings to the Equality Officer's attention its Corporate Plan, 2001-2005 in which it sets out its Corporate Values which states "That we are committed to securing our mission and goals by communication with and the involvement of out staff and customer base" and its Corporate Objectives are "To maximise the potential of all our staff". Also set out in this document is the respondent Corporate Strategies. The respondent also brings to the attention of the Equality Officer the respondent's Policy on Equal Opportunity with particular reference to its commitment as an equal opportunity employer, its training and development, home and work, positive action policy programme and management support. The respondent notes that since 1997 it has consistently obtained the "Excellence Through People" Award. This award recognises organisations which aim for excellence by concentrating on training, development and involving people at
all levels in the organisation's core business.
5. SUMMARY OF THE COMPLAINANT'S RESPONSE TO THE RESPONDENT'S SUBMISSION
5.1 The complainant notes that the collective agreement between the Union IMPACT and the respondent in relation to Acting-up arrangements does not contain any provision for minimum period of acting-up and it is standard practice in the respondent organisation for acting-up to apply for periods as short as one day, in the absence of the substantive post holder. According to the complainant the reality is that short-term Acting-up is the norm in the respondent organisation and opportunities for Acting-up for periods in excess of four weeks (the standard qualifying period for payment purposes) are less frequent.
5.2 The complainant does not accept that the fact that there was a job-sharing arrangement within the Revenue Section during the annual leave period of 1999 was the basis for precluding her from acting as Assistant Staff Officer. It is the complainant's submission that there is no reference to job-sharing precluding Acting arrangements within the collective agreement between the Union and the respondent. The complainant notes that during the period 1999 to 2001 a job-sharing Assistant Staff Officer (Grade IV) post was available for Acting-up and the other job-sharing partner (female) in that arrangement worked on the basis of 2 days one week and three days the next week. Hence the complainant contends that there was no obstacle to the respondent facilitating her with Acting-up in that post during those periods when there was in fact no Assistant Staff Officer in attendance. The complainant further notes that the female Assistant Staff Officer was on annual leave from 20th June to 5th July, 1999 and again from 21st August to 4th September, 2000 i.e. a period of two weeks each year to which she could have undertaken an Acting up position. The complainant states that acting-up is perceived as an enhancement in the context of C.V.s but she was not afforded the opportunity when there was a full-time position available to her.
5.3 The complainant vehemently refutes that she was offered an opportunity to act as Staff Officer during the annual leave period in 2002. It is the complainant's submission that if she had been afforded this opportunity she would have availed of it and she contends that the fact that she was not offered the post was related to gender and marital status and most particularly the fact of her parental leave and the complainant contends that she was overlooked for this opportunity by virtue of her parental leave. The complainant notes at on no occasion during the course of her interaction with the Staff Officer, the Director of Human Resources or the Senior Executive Officer in Human Resources was it ever suggested that a so-called offer was witnessed by the female Assistant Staff Officer. According to the complainant in her initial complaint to the Staff Officer he replied "My hand on my heart, I thought I offered it to you". The complainant says that when she complained to the Director of Human Resources his response was that an employer cannot discriminate against an individual availing of parental leave. In a subsequent meeting with the Personnel Officer, the Senior Executive Officer, Human Resources and the Director of Human Resources the Senior Executive Officer's response to her complaint was "You have no reason to be aggrieved and you can go to the Union if you want". The complainant notes that at no stage during any of the interactions was it suggested or volunteered that a witness had been party to the offer of Acting-up made to her. It is the complainant's submission that the respondent's scenario is singularly lacking in facts i.e. dates on which this alleged offer was made, the circumstances in which it was witnessed by the female Assistant Staff Officer, whether the offer was made in respect of one or both annual leave periods and the detail of her alleged response. At a formal meeting on 6th October, 2002 between the Union and the respondent the complainant says that the Staff Officer's response to her having been denied an opportunity to Act-up that summer was "I thought I had offered it to you". At no stage during this meeting was it stated by the respondent that the alleged offer was witnessed by the female Assistant Staff Officer.
5.4 The complainant says that if the respondent alleges that the Staff Officer asked all staff in the Section collectively if they were interested in the Revenue Collection job on Monday, 2nd September, 2003 she can state categorically that she was not present at that time and it could well be that she was availing of parental leave at that time. It is the complainant's contention that an arrangement where a Staff Officer invites employees to express an interest in a position is clearly in breach of the collective agreement which sets out defined criteria in relation to such appointments. According to the complainant the established practice for filling temporary Revenue Collector positions is that they are filled from amongst a pool of Clerical Officer and there is no provision for the lateral acting-up arrangement with respect to the female Assistant Staff Officer. The complainant contends that on Friday, 6th September, 2002 the Staff Officer asked her if she wanted the Revenue Collector job and she considered this a clear offer of the position and she was given the weekend to consider it. On Monday, 9th September, 2002 she confirmed her acceptance of the post and the Staff Officer told her that as the Assistant Staff Officer was also interested in the post it would have to be filled by way of interview. According to the complainant the respondent, in its submission, stated that the Assistant Staff Officer had approached the Staff Officer about the position but at the meeting on 6th October, 2002 it was stated that the Staff Officer had approached her.
5.5 It is the complainant's contention that she could have been assigned on a temporary basis to the vacancy in the Castlebar Office (where the occupant was out on maternity leave) until such time as an acceptable transfer had been agreed. The complainant notes that the substantive post holder has not returned to work from her maternity leave and hence there was an opportunity to facilitate her. According to the complainant there were three individuals who were engaged in the Area Office on work placement one of whom remained as a permanent Clerical Officer and the others left in the third week of September resulting in the office having to close for one day that month. The complainant contends that this would have constituted an opportunity for her. The complainant notes that the respondent intended to expand the Area Offices including Castlebar Area Office and so her request for a transfer to that office was, she contends, just and reasonable particularly in the context of her grievance concerning denial of Acting-up opportunities. In relation to her transfer to the Veterinary Section the complainant states she was given very little work to do and that whatever work was assigned to her it clearly did not match her skills. It is her contention that this move constituted an effective demotion. The complainant states that the transfer constituted victimisation for having made a complaint, for the fact that she was on parental leave and a male worker would not have been assigned to this position as it was a traditional Secretarial position and offered to her because she was female.
5.6 In the course of an interaction with the Personnel Officer the complainant states that she was advised that there was no difference between a Clerical Officer (Ordinary) and a Clerical Officer (Secretarial). The complainant contends that there are three other occasions on which male staff members were treated differently and more favourably to her in the context of her challenging the transfer to the Veterinary Section. According to the complainant one male employee was afforded an opportunity to have his transfer the subject of negotiation and agreement prior to his transfer being effected. The complainant says that this is all she sought in the first instance i.e. an opportunity of meeting with the respondent before the assignment to the Veterinary Section. It is the complainant's submission that three other male officers were facilitated with negotiated agreements in relation to their transfers prior to any transfer being effected in 1999.
5.7 The complainant states that her transfer to the position in the Veterinary Section was related to the fact that she was on parental leave and she says that this is supported by the respondent when it says in its submission "did not have near enough work". The complainant further argues that had she been employed in a full-time capacity and not availing of parental leave she would not have been assigned to this position.
5.8 The complainant takes issue with the respondent's contention that "it gave her no reason to feel humiliated or distressed". She says she was summoned to a meeting with the Senior Executive Officer Human Resources, the Director of Human Resources and the Personnel Officer and she found this encounter distressing and intimidating. She says that she was not afforded an opportunity to be represented at the meeting and when she sought the intervention of the Union she was denied an opportunity for negotiations to take place prior to the transfer.
5.9 In relation to the female officer who acted up in the Revenue Section in 1993 and 1994 the complainant notes that she was not married, did not have children and was not on parental leave during those periods.
6. CONCLUSIONS OF THE EQUALITY OFFICER
6.1 The issue for decision in this claim is whether the complainant was discriminated against by the respondent in terms of Sections 6(1), 6(2)(a) and 6(2)(b) of the Employment Equality Act, 1998 when she was not appointed to an acting-up position and the alleged withdrawal of the offer of the Revenue Collector position. A decision has to be made on the issue of whether or not the respondent subjected the complainant to victimisation in terms of Section 74(2) of the 1998 Act by transferring her to the Veterinary Section.
6.2 The allegations made by the complainant in this case are as follows:
(a) The complainant alleges that she was not afforded the opportunity to act-up in 1999, 2000 and 2001 when the Staff Officer took extended leave during the summer months. In making this allegation the complainant contends that she was discriminated against on the
grounds of her gender. In relation to 2001 the complainant contends that the failure to offer her the acting-up position was also influenced by the fact that she was availing of parental leave.
(b) The complainant alleges that she was not offered the acting up position in 2002 when the Staff Officer took extended leave during the summer. According to the complainant it was offered to a temporary male Clerical Officer who was junior to her. The complainant alleges that she was discriminated against on the grounds of her gender and marital status. It is the complainant's contention that the reason she was not offered the acting-up position was because she was availing of parental leave.
(c) The complainant alleges that she was offered the position of Acting Revenue Collector on Friday, 6th September, 2002 and this offer was withdrawn on Monday, 9th September, 2002.
(d) The complainant alleges that she was victimised by the respondent for having indicated her intention to pursue her complaints. The victimisation took the form of a transfer to a Clerical Officer (Secretarial) position in the Veterinary Section.
6.3 Under Section 6 of the 1998 Act discrimination shall be taken to occur where on any of the discriminatory grounds
"one person is treated less favourably than another is, has been or would be treated"
and as between two persons the discriminatory grounds are:
"(a) that one is a woman ad the other is a man (in this Act referred to as 'the gender ground'),
(b) that they are of different marital status (in this Act referred to as 'the marital status ground').
6.4 The first issue to be addressed in this claim is the alleged failure by the respondent to afford the complainant the opportunity to act-up during the summer months when the Staff Officer took extended leave. At the hearing of this claim the respondent stated that during 1999, 2000 and 2001 the Staff Officer applied for and was granted two months leave during the summer months. In his absence the acting-up position was assigned to an Assistant Staff Officer. During this period the Assistant Staff Officer position was being filled by two job-sharing officers. One of these officers reverted to full-time working to undertake the role of acting-up as Staff Officer. The complainant was employed as a Clerical Officer and I am satisfied that she could not have expected to act-up in the Staff Officer position when an Assistant Staff Officer was available to act-up.
6.4 I note from the respondent that no Clerical Officer was asked to act-up in the position of Assistant Staff Officer as no full vacancy occurred at this level. The Assistant Staff Officer position was filled by two officers job-sharing. One job-sharer acted-up in the Staff Officer position and the other job-sharer continued working as an Assistant Staff Officer. Hence there was only half a post vacant at the position of Assistant Staff Officer.
6.5 In her submission the complainant notes that the person in the position of Assistant Staff Officer job-shared on the basis of two days one week and three days the next week. The complainant contends that for the other half of these weeks the position of Assistant Staff Officer was vacant and the complainant could have been afforded the opportunity to act-up at these times. Furthermore the Assistant Staff Officer availed of two weeks annual leave during the period when the Staff Officer was on leave and her job-sharing partner was acting-up in the Staff Officer position in 1999 and 2000 and it is the complainant's contention that she could have acted-up during that period. I note from the respondent that payment is made for acting-up where the acting-up relates to a continuous period of not less than four weeks. Had the complainant acted-up in the position of Assistant Staff Officer she would not have received payment. However the complainant argues that the opportunity of acting-up would have proved beneficial to her in terms of future promotions. The fact is that the respondent did not offer the complainant the opportunity to act-up at Assistant Staff Officer level during 1999, 2000 and 2001 because there was no full-time vacancy available at the time. I note that the complainant did not request the opportunity to act-up in the position of Assistant Staff Officer to benefit her career. There is no evidence that the reason the complainant did not act-up was related to her gender or to the fact that she was availing of parental leave in 2001.
6.6 The complainant alleges that she was not offered the acting-up position in 2002 but that it was offered to a temporary male Clerical Officer. In 2002 the Staff Officer again sought and was granted extended leave over the summer. He offered the acting-up position to the female Assistant Staff Officer who was availing of parental leave at the time. This person refused the offer to act-up. According to the respondent the acting-up position was offered to the complainant and she also refused it. It was then offered to a permanent male Clerical Officer and he accepted it. There is a dispute between the parties as to whether or not the complainant was offered the acting-up position in 2002. It is the complainant's contention that she was not offered the acting-up position and she alleges that she was, therefore, discriminated against on the grounds of gender and marital status as the position was given to a male. It is also her contention that the fact that she was on parental leave influenced the decision not to offer her the acting-up position. She contends that parental leave is availed of by more females than males based on figures from the Irish Congress of Trade Unions with respect to the gender profile of workers availing of parental leave which show that 84% of those availing of this leave are female while 16% are male.
6.7 As the offer of acting-up in the position of Staff Officer was made orally and not in writing it is difficult to know whether or not the position was offered to the complainant. However, if we assume that the complainant was not offered the acting-up position the question then is "was the failure to offer her the acting-up position discriminatory on the grounds of gender and marital status and was the decision influenced by the fact that she was availing of parental leave". The female Assistant Staff Officer has stated in writing that she was offered the acting-up position in 2002 and that when she refused the offer the Staff Officer offered the position to the complainant who also refused it. I am satisfied that the Assistant Staff Officer was offered this position. She was next in line to the Staff Officer and had acted-up in the Staff Officer position previously. She was also senior in grade terms to the complainant. There is no evidence to support the contention that the respondent did not offer the complainant the acting-up position on the grounds of her gender as it was offered to another female and to a male. In terms of marital status the Assistant Staff Officer and the complainant both had the same marital status and I am satisfied that there is no evidence to support the contention that the respondent did not offer the complainant the position on the grounds of her marital status as it was offered to a colleague of the same marital status and another officer of a different marital status. As both the Assistant Staff Officer and the complainant were availing of parental leave at the time I am satisfied that the fact that an officer was on parental leave did not influence the respondent in relation to the offer of acting-up to the Staff Officer position. In conclusion therefore I find that, even if the respondent did not offer the position of acting-up in the Staff Officer grade to the complainant, it was not discriminatory in terms of her gender or marital status and the decision was not influenced by the fact that she was, at that time, availing of parental leave. Given the conflicting evidence it is not possible for me to determine if the complainant was offered the position or not. It should be noted that the complainant did not raise the issue of not being offered the acting-up position with the respondent at the time. She first raised it with the Director of Human Resources when she complained to him about the alleged withdrawal of the offer of the Revenue Collector post on 9th September, 2002. Where there is a conflict of evidence one must decide whether the balance of probabilities tips in favour of the complainant's version of events or the respondent's version of events. In this instance I am satisfied that the balance of probabilities tips in favour of the respondent's version of events.
6.8 In relation to the issue of the Revenue Collector's position I note that there is again a conflict as to whether or not the complainant was offered the position on 6th September, 2002. If the Staff Officer had offered the complainant the position on 6th September and withdrew the offer on 9th September, 2002 there was no discriminatory treatment of the complainant on any of the grounds as the position was offered to another officer of the same gender and marital status as the complainant. If an offer had been made to the complainant and withdrawn I am satisfied that she was not the subject of victimisation under the Employment Equality Act, 1998 as she had not, at that time, made any complaint to the respondent of alleged discriminatory treatment in respect of the acting-up positions.
6.9 The complainant alleges that she was victimised by being transferred to a Clerical Officer (Secretarial) position in the Veterinary Section. At the hearing of this claim the complainant confirmed that after she did not get the Revenue Collector position the respondent offered her an acting-up to Assistant Staff Officer position in the Revenue Section but she refused this offer and asked for an immediate transfer. At the hearing of this claim she also said that she could not continue to work in the Revenue Section hence her desire for an immediate transfer. At the request of the Senior Executive Officer in Personnel she put her transfer request in writing by memo dated 17th September, 2002. The complainant was unhappy about having to put her request in writing but I consider that this was a reasonable request. In this request the complainant stated that her preference was a transfer to the Castlebar Area Office. She also stated as follows:
"in relation to the issues discussed during our meetings on September 10th and September, 16th which has given rise to my request for a transfer, I wish to advise that I will be following these up in due course".
The complainant alleges that it was because of this sentence that the respondent decided to transfer her to the Secretarial position in the Veterinary Section and she alleges that this move did not match her skills and experience and in effect was a demotion. It is also the complainant's submission that this move provided no opportunity for acting-up. The complainant also contends that this position would not have been offered to a male member of staff. She further contends that this move relates to the fact that she was availing of parental leave inasmuch as there was not enough work in the position for a staff member doing a full day's work and a full week's work.
6.10 The respondent denies that it subjected the complainant to victimisation by transferring her to the Veterinary Section. According to the respondent the position in the Veterinary Section was the only vacant position at the time of the complainant's request. The respondent says that it envisaged the position comprising general clerical duties and the complainant was assured that she would not have to undertake typing duties. The respondent denies that this transfer was an effective demotion for the complainant and says that it was an opportunity for her to use her skills and experience to expand the role of this position. In relation to the position in the Castlebar Area Office the respondent states that this position was a Clerical Officer (Secretarial) position and was vacant because the post holder was on maternity leave.
6.11 The complainant felt aggrieved by the fact that she was transferred to a Clerical Officer (Secretarial) position. However I am satisfied that had the complainant been transferred to the position in the Castlebar Area Office she would not have alleged that she had been victimised even though that position was also a Clerical Officer (Secretarial) position. There is no evidence to support the complainant's contention that this transfer was in effect a demotion. According to the complainant the position provided no opportunity for acting-up but the respondent had offered the complainant the opportunity to act-up in the Revenue Section and she refused it. I am satisfied that there is no evidence that the complainant was only offered this position because she was on parental leave or that a male would not have been assigned to this position.
6.12 Finally the complainant was critical of the respondent for not having allowed her to remain in the Revenue Section until such time as a transfer could be organised of which she approved. She stated that other male employees had been accommodated by not being moved until they were satisfied with the proposed transfers. I note that in this instance the respondent was asked by the complainant to organise an immediate transfer and at the hearing of this claim the complainant stated that she could not continue to work in the Revenue Section because of the tension in the office. I am therefore satisfied that the respondent was acting on the complainant's request and transferred her to the only vacancy available at the time.
6.13 In conclusion I find that the complainant was not discriminated against in terms of acting-up positions or the alleged withdrawal of the offer of the Revenue Collector's position. I further find that she was not subjected to victimisation by being transferred to the Clerical Officer (Secretarial) position in the Veterinary Section.
7. DECISION
7.1 In view of the foregoing I find that Mayo County Council did not discriminate against Ms. Honor Benson in terms of Sections 6(1), 6(2)(a) and 6(2)(b) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act in relation to acting-up positions or the alleged withdrawal of the offer of the Revenue Collector's post. I further find that Mayo County Council did not subject Ms. Benson to victimisation in terms of Section 74(2) of the Employment Equality Act, 1998 when they transferred her to a Clerical Officer (Secretarial) position in the Veterinary Section.
__________________
Gerardine Coyle
Equality Officer
28th July, 2003
APPENDIX A
Collective Agreement between the Union and the respondent which sets out the arrangements to apply in respect of acting-up
Policy on Acting Arrangements
In relation to Mayo County Council's policy on acting up arrangements, the following is the agreement that was entered into between IMPACT and the Council in 1989
Long Term Acting Up Arrangements (for periods over 3 months in duration)
(i) In instances where an acting vacancy arises in a section for a period of 3 months or longer, the person who is the highest placed on the relevant panel will act in the vacant position, irrespective of their location within the Council.
Short Term Acting Up Arrangements (for periods less than 3 months in duration)
(i) The most senior person on the relevant panel within the section where the vacancy arises will act in the vacant position.
(ii) In instances where there is no existing panel in place, the most senior person within the section who is willing to act and considered suitable will act in the position.
(iii) In instances where the most senior person is considered to be unsuitable then this person must be told of the reason/s for their unsuitability and alternative arrangements will be made to then fill the position on an acting basis.
Please note that the above policy relates to all grades up to Grade VII. As you are aware, acting up arrangements in relation to higher grades are provided for in 'Better Local Government - Framework for Implementation'.
2 Equality Officer Decision - Ms. Brigid Boland v Eircom DEC-E2002-019
3 Equality Officer Recommendation - EE16/96
4 ECJ - Dr. Pamela Enderby v Frenchay Health Authority & Secretary of State for Health
C-127/92 [1993] ECR 1-5535
5 1258/93UD
6 UK Industrial Tribunal Glasgow, 1995
7 UK Industrial Tribunal Reading, 1996 - Case No. 4224/95 of 5th January, 1996
8 UK Industrial Tribunal Brighton, 1995 - Case No. 38152/95 of 4th December, 1995
9 ECJ Gerster vs Bayer C-1/95 [1997] ECR 1-5253
10Equality Officer Decision Dec-E2002-003
11Labour Court AD.0234