Ms. Anne Hawkins(Represented by Ms. Honan BL instructed by O'Mara Geraghty McCourt, Solicitors) V Irish Life and Permanent plc t/a TSB Bank(Represented by Ms. Bolger BL instructed by Arthur Cox, Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by Ms. Anne Hawkins that the Irish Life and Permanent plc t/a TSB Bank discriminated against her on the basis of gender and age in terms of Sections 6(1), 6(2)(a) and 6(2)(f) of the Employment Equality Act, 1998 and contrary to Section 8 of that Act by allowing her to be subjected to systematic bullying by a male superior which resulted in extensive medical consultation leading ultimately to a lack of career progression. The complainant also alleges that she has been victimised by the respondent in terms of Section 74 of the 1998 Act.
1.2 The complainant referred a complaint to the Director of Equality Investigations on 19th July, 2001 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 14th January, 2001 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Written submissions were received from both parties to this claim. Two hearings took place on 1st July, 2002 and on 27th November, 2003. Additional information was received from the respondent on 30th January, 2004.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant commenced employment with the respondent organisation on 7th October, 1974. At the time of referring this claim she was holding the position of Assistant Manager.
2.2 In her submission the complainant outlined a number of allegations of discriminatory treatment which occurred over a long period of time from 1981 up until the referral of this claim. In summary these allegations are as follows:
1981 - The complainant says that she was appointed to the "number two" position but her manager (Mr. A) refused to recognise a woman in this position and her appointment was not implemented.
1991 - The complainant says that she managed the Brokerage Office for 18 months and, notwithstanding her higher level of responsibility during this time, she was not paid a manager's salary.
1994 - The complainant was transferred to the Product Development Department where she worked until December 1997. The complainant made a number of allegations against her manager (Mr. B) in this area as follows:
- he assigned her an extremely onerous workload,
- he held her responsible for errors in work which preceded her commencement in the Department,
- he refused her study leave despite her advance notice and his apparent agreement,
- he wondered how long she would last the pace without going sick,
- he left her to organise the move of the Department to a new location without prior discussion, including packing up the contents of his office,
- he organised training for male staff members but none for her,
- he had junior staff report directly to him rather than to her even though she held the position of Assistant Manager,
- he referred to other Departments having 'bright young men' working for them thus making it clear that the complainant did not fall into this category on either age or gender grounds,
- he had a management style which involved shouting and slamming the desk,
- he made the comment "women should know their place",
- he insisted that the complainant do routine junior tasks,
- he referred to her in overtly disparaging ageist terms and made disparaging comments about her age,
- he addressed her in other demeaning ways e.g. 'your ass is grass',
- he put a negative perspective on positive feedback the complainant received from another manager,
- he patronised the complainant in front of junior staff by patting her on the head when she raised the issue of staff motivation and saying that he would give her a pat on the head anytime she wanted it,
- he blamed her for the negative review which the Product Development Department received,
- he took the credit for the successful launch of the respondent's web site despite the complainant having done the work,
- he completed the complainant's first appraisal without any input from her,
- his appraisal was a devastating attack on her competence and performance.
1998 - The complainant was absent from work on sick leave from December, 1997 to October, 1998 and prior to her return to work she sought a merit award or a promotion from the Head of Personnel because she considered that this had been forfeited directly as a consequence of her previous manager's demeaning treatment and victimisation. The request was not granted but the Head of Personnel said that her personnel record would be considered 'unblemished' by her time in the Product Development Department. On her return to work the complainant found that she had no permanent position in the office, no desk, no telephone and no computer. Her manager (Mr. C) was unsympathetic and often she had no work or work of a routine nature.
1999 - The complainant was seconded to the Audit Department to work on analysis of non-resident accounts but on completion of the preliminary work she was not allowed to carry the project forward. The complainant returned to Consultancy Services to basic tasks which were inconsistent with her experience and seniority. She sought more appropriate work but to no avail.
2000 - The complainant was on sick leave from January to October, 2000 as a result of the continuing demeaning treatment. On her return to work she asked her manager (Mr. C) to support her application for promotion to Deputy Manager but he refused and she alleges that his attitude towards her was patronising and inappropriate. The complainant contends that she felt marginalised. She was assigned to work on the management of the TRS project but her input was minimal. 2001 In March, 2001 the complainant was assigned to work on the launch of the SSIA's but again her input was minimal and the function of setting up a central department to monitor the SSIA's was assigned to a colleague also at Assistant Manager level. Given that she was systematically marginalised the complainant considered that a future career with the respondent was impossible and discussed the possibility of early retirement in July, 2001. In August, 2001 the complainant was forced to take sick leave due to her intolerable work situation.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent denies the allegations made by the complainant that she was discriminated against on the grounds of gender and age in the course of her employment in relation to her working environment, working conditions, training and opportunities. The respondent also denies that the complainant was subjected to victimisation in terms of Section 74 of the Employment Equality Act, 1998. It also contends that her claim is outside the six months time limit as prescribed in Section 77(5) of the Employment Equality Act, 1998 and it notes that the complainant has not sought an extension of the time limit in accordance with Section 77(6) of the 1998 Act. Furthermore the respondent contends that the complainant is not entitled to make a case of continuing discrimination as alleged given that many of the incidents are alleged to have happened a long time ago.
4.2 Specifically the respondent states as follows:
- it denies the allegation that the complainant's manager (Mr. A) refused to recognise a woman in the 'number two' position in 1981,
- in 1991 the complainant was not paid a manager's salary during her time in the Brokerage Office as her position was supervisory rather than managerial in nature i.e. she was managing the office not the sales staff,
- it denies that the complainant was assigned an onerous workload by her manager (Mr. B) when she transferred to the Product Development Department. The respondent accepts that the complainant was working in a very busy Department and that she worked hard while there. However the respondent denies that the complainant was treated less favourably than any other comparable employee in terms of her workload,
- it denies that the complainant's manager (Mr. B) held her responsible for errors in work which preceded her commencement in the Department,
- it denies that the complainant was refused study or examination leave as alleged,
- it denies that the complainant was treated less favourably on the grounds of age or gender in relation to the Department's move and it says that the complainant did not have to pack up the contents of her manager's office,
- it denies that the complainant's manager (Mr. B) shouted or slammed his desk or that he made comments along the lines of 'women should know their place',
- it denies that other junior male staff were treated more favourably than the complainant,
- it says that the comment by the complainant's manager (Mr. B) on other Departments having 'bright young men' was misunderstood and taken out of context. The manager was referring to specific members of staff in the Finance Department with accounting qualifications whom he hoped to attract to market analysis and he used the term in the generic sense as one of the person he was attempting to attract was female,
- it denies that the complainant's manager (Mr. B) referred to her in openly disparaging ageist terms as alleged or that he addressed her in a demeaning manner,
- it denies that the complainant's manager (Mr. B) put a negative perspective on work for which the complainant received positive feedback,
- it denies that the complainant's manager (Mr. B) behaved in a patronising manner towards her and that he ever patted her on the head or told her that he would give her a pat on the head any time she wanted,
- it denies that the complainant's manager (Mr. B) took credit for work successfully undertaken by the complainant. The respondent notes that, in relation to the launching of its first web site, the complainant was not managing this project in accordance with the time scales required for the project and as a result her manager was asked to become involved in the final stages of the project to ensure that time scales were achieved.
However the manager ensured that the complainant remained involved in the project.
- it is the respondent's contention that the complainant's manager (Mr. B) did attempt to carry out an appraisal of the complainant's work and he furnished her with forms for completion but she failed to do so and he completed them in draft and passed them to her for comment/discussion. The respondent states that the appraisal reflected the manner in which the complainant had carried out specific projects which in her manager's opinion were managed poorly. The appraisal also criticised her interpersonal skills which her manager believed to be a valid criticism in the light of his experience,
- it accepts that the complainant did seek a merit award or promotion in 1998 but the respondent says that such an award or promotion was not justified by the complainant's performance,
- it accepts that the complainant was assigned routine tasks on her return to work following sick leave to allow her to readjust to the working environment and that this was done in full consultation with the complainant. Furthermore the respondent states that the complainant was permitted to work short days during this period to ease her back to work. She was also provided with car parking facilities in the respondent's corporate centre for a couple of weeks.
- it denies that on her return to work from sick leave in October, 2000 the complainant's manager (Mr. C) behaved in a patronising or inappropriate manner towards her. According to the respondent her manager was not in a position to recommend her for a merit promotion as in his view she had not displayed the necessary characteristics or qualities for such promotion,
- it denies that the work with the TRS project was in any way minimal as alleged,
- it acknowledges that the complainant worked hard on the procedures in relation to the new SSIAs. However when the product became available to the customer the complainant took two days annual leave and was not available to assist with queries. As a result the Department was left in a difficult position as the complainant was the key person who knew how the accounts were to operate. The appointment of another person to head up the SSIA Section was fully discussed with the complainant by her manager (Ms. A) and the respondent states that the complainant indicated that she was not unhappy about this development,
- it fails to understand how the complainant was forced to the conclusion that a future career was impossible for her. The respondent also denies that the complainant was subjected to an intolerable work situation which forced her to take sick leave as alleged and it denies that she has suffered stress as a result of her treatment by it as alleged.
4.3 In conclusion the respondent contends that the complainant has failed to point to any treatment of which she now complains which can reasonably and properly show was on grounds of age or gender. According to the respondent it has well established procedures on equality and harassment and bullying which were known to the complainant and she could have made an allegation of discrimination within the organisation if she had so wished. The respondent notes that the complainant at no time ever made any attempt to invoke the procedures.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The first issue to be addressed is whether or not this claim meets the time limit provisions set out in Section 77(5) of the Employment Equality Act, 1998. If it is found that the claim does meet the time limit provisions the second issue to be addressed is the merits or otherwise of the claim that the complainant was subjected to discriminatory treatment on the grounds of gender and age and was subjected to victimisation under the provisions of the Employment Equality Act, 1998. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.
Time Limit
5.2 In her referral of a claim under the Employment Equality Act, 1998 the complainant stated that the date of the most recent occurrence of a discriminatory act was 16th July, 2001. In her submission she outlined her employment history with the respondent organisation. She set out alleged discriminatory treatment while she worked in the Product Development Department of the respondent organisation during the period from April, 1994 to November, 1997. Subsequent to this the complainant was on sick leave from December, 1997 to October 1998. On her return to work in October, 1998 she was assigned to Consultancy Services in the respondent organisation where she alleges that she was assigned no work or basic routine tasks. In mid 1999 she was seconded to the Audit Department to undertake preliminary work on a project but was not allowed to advance the project. Rather she was returned to Consultancy Services to carry out basic tasks. In January, 2000 the complainant went out on sick leave until October, 2000. During that period she applied for a manager position but was unsuccessful in her application. Following her return to work in October, 2000 the complainant alleges that she was still marginalised and given a minimal role in any projects. In March, 2001 she was asked to work on the launch of the Government Saving Accounts but the follow-on project of setting up a central department to monitor these accounts was assigned to a colleague of the same gender and grade as the complainant. It is the complainant's contention that she has been subjected to continuing discriminatory treatment and/or victimisation which was continuing on 16th July, 2001 and which is still continuing. At the first hearing of this claim the complainant's representative stated that the discriminatory treatment and/or victimisation was continuing even today. The respondent's representative noted that the complainant has been absent from work for almost a year now hence the discriminatory treatment and/or victimisation could not be continuing today.
5.3 Section 77(5) of the Employment Equality Act, 1998 states:
".... a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
It is clear from the provisions of Section 77(5) of the 1998 Act that an act of discrimination or victimisation must occur within the six months prior to the referral of the complaint. The complainant has clearly stated that no act of discrimination or victimisation occurred on 16th July, 2001 the date she gave as the most recent occurrence of a discriminatory act. I am satisfied that the 1998 Act provides for continuing discrimination and victimisation stating as it does in Section 77(5) "... the date of the occurrence .... or the most recent occurrence". This implies that there could have been a series of occurrences or indeed that the discrimination could have been continuing.
5.4 In her submission the complainant has alleged that in March, 2001 she was asked to work on the launch of the SSIAs (Government Saving Accounts) but was distressed some time later to be told that the follow-on project of setting up the central department to monitor the SSIAs was being assigned to another female colleague at the same level as her (i.e. Assistant Manager). This incident of alleged unfavourable treatment took place in March 2001 and the complainant made her claim of alleged discriminatory treatment and victimisation in July, 2001 which is within the six months of this alleged incident. On this basis I find that the claim by the complainant is within the time limits specified by Section 77(5) of the Employment Equality Act, 1998 hence she has made a valid claim which is admissible for investigation. Having decided that the claim is valid it is necessary to examine the merits of the claim.
Merits of the claim
5.5 In March, 2001 the complainant reported to a female manager (Ms. A). This manager had taken over from Mr. C in January, 2001. The complainant was working on the launch of the SSIAs (Government Saving Accounts) in March, 2001. She was not asked to work on the follow-up project of setting up a central department to monitor the SSIAs and non-resident accounts. The complainant was informed by Ms. A that this task was being assigned to another female colleague (Ms. B). According to the respondent the decision to assign this task to Ms. B was made, not by Ms. A, but by two male managers namely the General Retail Manager and the Head of Payments Systems. This assignment was not a promotion and, therefore, not subject to a competitive process. As the decision was made to assign the follow-up project to Ms. B I am satisfied that the complainant was not treated less favourably on the grounds of gender.
5.6 In relation to the allegation of discrimination on the grounds of age it is my intention to adopt the approach set out by me in the Decision of Reynolds v Limerick City Council1 at paragraphs 5.5 to 5.7 and attached at Appendix A for convenience. I note that when the follow-up project was assigned to the complainant's colleague (Ms. B) in May, 2001 the complainant was 47 years of age while Ms. B was 43 years of age - a difference of 4 years. The complainant had worked on the launch of the SSIAs since her assignment in March, 2001 whereas her colleague (Ms. B) had not. Having said that the complainant did not make any arguments that she was better qualified or had greater experience than her colleague for the project. According to the respondent Ms. B had the necessary skills and experience required for the successful completion of the project whereas the complainant did not possess the relevant experience. The only fact established here is that the complainant was older than the person assigned to the project. As was held in Equality Officer Decision in the case of McCormick v Dublin Port Company2"it is not enough just to demonstrate a difference upon which one can ground a complaint under the 1998 Act, such as the fact that there is a difference in gender, marital status, sexual orientation or age between the successful candidate and the complainant". On this basis I am satisfied that the complainant has failed to establish a prima facie claim of discrimination on the grounds of age. At the hearing of this claim I note that the complainant stated that there was no overt evidence of gender or age discrimination in relation to this incident.
5.7 The complainant also contended that she was treated in a discriminatory manner in relation to another project during the summer of 2001. As the person appointed to this project was also female I find that the complainant was not discriminated against on the grounds of gender. The person appointed to this project (Ms. C) was selected by a manager with vast experience in Branch Network. According to the respondent Ms. C was the only suitable person for this particular assignment as she had recently worked in the retail network and was familiar with current branch procedures and policies. While Ms. C was six years younger than the complainant there is no evidence that her selection was related in any way to her age. Assignment to this project was not a promotional opportunity and was, therefore, not subject to a competitive process.
5.8 In deciding that there was no prima facie claim of discrimination in relation to these incidents I have considered them in the context of previous allegations dating back to the coming into force of the Employment Equality Act, 1998 in October, 1999. Even in the light of these allegations there was nothing in the evidence in relation to the most recent incidents which appeared to give rise to an inference of discrimination. Allegations of discriminatory treatment on the grounds of gender prior to October, 1999 could have been referred to the Labour Court under the Employment Equality Act, 1977. Prior to the 1998 Act discrimination on the grounds of age was not covered by legislation. Despite the many allegations made by the complainant dating back many years I note that she did not invoke the respondent's internal grievance procedures.
5.9 The complainant has alleged that she was subjected to victimisation by the respondent in terms of Section 74(2) of the Employment Equality Act, 1998. It is her contention that she opposed by lawful means an action which is unlawful under the 1998 Act. I note that the complainant is alleged to have opposed various acts which occurred prior to the enactment of the Employment Equality Act, 1998. Victimisation under the 1998 Act is subject to the time limits set out in Section 77(5) of the Act. There is no evidence before me that the persons involved in the selection of the complainant's colleagues for particular projects had any knowledge of allegations previously made by the complainant. In July, 2001 the complainant discussed the possibility of early retirement with the Head of Human Resources and applied for it on 22nd August, 2001. She had not heard from the respondent regarding her application by November, 2001. According to the respondent early retirement packages contain a waiver clause that the package is being given in full and final settlement. However the complainant had proceedings against the respondent and it took longer to negotiate an acceptable formula of words between the complainant's representative and the respondent to allow the complainant to continue with her proceedings and at the same time benefit from a retirement package. In conclusion therefore I find that the complainant has failed to make out a prima facie claim of victimisation.
6. DECISION
6.1 I find that this claim has been referred within the six months time limit as prescribed by Section 77(5) of the Employment Equality Act, 1998.
6.2 I further find that Ms. Hawkins failed to establish a prima facie claim of discrimination on the grounds of gender or age in terms of Sections 6 and 8 of the 1998 Act. Having regard to other allegations of discrimination since the coming into force of the 1998 Act I find that there was nothing in the evidence which appeared to give rise to an inference of discrimination. I also find that the complainant failed to establish a prima facie claim of victimisation in terms of Section 74(2) of the 1998 Act.
____________________
Gerardine Coyle
Equality Officer
19th February, 2004
APPENDIX A
Extract from the Equality Officer Decision in the case of Reynolds v Limerick City Council
5.5 The traditional approach taken to complaints of discrimination on the original ground of sex in the caselaw of the European Court of Justice, and sex and marital status in the caselaw of Equality Officers and the Labour Court has been that once a complainant establishes a prima facie claim of discrimination the onus then moves to the respondent to rebut the presumption of discrimination. The common law approach has become the statutory requirement in complaints of gender discrimination in employment following the transposition of Council Directive 97/80/EC into Irish Law on 18th July, 2001 by means of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20013. The Regulations provide that:
"[w]here 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".
5.6 The Employment Equality Act, 1998 introduced seven new grounds of discrimination (including age) not drawn directly from European Union Directives or European Court of Justice caselaw. The Council Directive and Regulations mentioned above are not applicable to grounds other than gender, but this approach appears to me to be fully consistent with the development of discrimination caselaw. It has become the standard approach of Equality Officers in deciding cases under the 1998 Act such as on the disability ground4, on the race ground5, on the age ground6.
5.7 The Labour Court in the case of the Revenue Commissioners -and- Liam O'Mahony, Terence Smith, Michael Lovett and Tomás Ó'Tuama7 addressed the issue of the burden of proof on the age ground. It stated that the appropriate test for determining if and when the burden of proof should shift to the respondent is formulated in the case of the Southern Health Board v Dr. Theresa Mitchell8 in which it was held that:
"A claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court that they are regarded by 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 Labour Court in applying this test held that:
"the Court must consider if the complainants have established the primary facts on which they place reliance in furtherance of the complaint of discrimination. If those facts are established the Court must then consider if they are of sufficient significance to raise a presumption of discrimination. If that evidential burden is not discharged the complainants cannot succeed. If that burden is discharged it then becomes a matter for the respondent to prove, on the balance of probabilities, that the complainant's age was not a factor that influenced their exclusion from the panel".
It is my intention to follow the approach adopted by the Labour Court in this case and to apply it to the facts of the case before me for investigation.
1Equality Officer Decision - DEC-E2003-032
2Equality Officer Decision - DEC-E2003-046
3S.I. 337 of 2001
4Equality Tribunal - Harrington v East Coast Area Health Board - DEC-E2002-001
5Equality Tribunal - Harrington v East Coast Area Health Board - DEC-E2002-001
6Equality Tribunal - Eng v St. James Hospital - DEC-E2002-041
7Equality Tribunal - McCormick v Dublin Port Company - DEC-E2002-046
8Labour Court - EDA033
9Labour Court - DEE011