Murphy (Represented by Joseph Jordan - Solicitors) v FÁS (Represented by IBEC)
1. DISPUTE
This dispute involves a claim by Ms. Helen Murphy that she was (i) discriminated against by Foras Áiseanna Saothair (FÁS) on grounds of gender, age and family status, within the
meaning of section 6 of the Employment Equality Act, 1998 and in contravention of section 8 of that Act, in respect of aspects of her employment with that organisation and
(ii) penalised in circumstances amounting to victimisation in terms of section 74(2) of the
Act.
2. BACKGROUND
2.1 The complainant is employed as a Clerical Officer with the FÁS Employment Service in Athlone. She alleges that she has been (i) discriminated against on grounds of gender, age and family status and (ii) victimised contrary to the Employment Equality Act, 1998 by
the respondent over a period stretching back to 1996. The respondent rejects the complainant's allegations.
2.2 The complainant referred a complaint to the Office of the Director of Equality Investigations (the Equality Tribunal) on 21 August, 2002. In accordance with her powers
under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality
Officer on 21 November, 2002, for investigation and decision and for the exercise of other
relevant functions under the Act. Written submissions were received form both parties
and a hearing took place on 28 July, 2003. A number of issues emerged at the hearing
which required further clarification and gave rise to correspondence subsequent to the
hearing. The Equality Officer received the final piece of information in respect of the
complaint on 28 November, 2003.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant details a number of alleged incidents between 1996 and 2002, which she submits constitute discrimination and victimisation of her contrary to the Employment
Equality Act, 1998. The complainant accepts that a number of the alleged incidents predate the coming into operation of the Employment Equality Act, 1998 but submits that
they form part of a pattern of discriminatory treatment which the Equality Officer should
have regard to in reaching a decision on the complaint.
3.2 The complainant states that a colleague (Ms. A) was given priority over her in respect of an external education/training opportunity during the complainant's absence on maternity
leave in 2000. The complainant adds that this course was of benefit to Ms. A as shesubsequently secured an acting assignment to a higher duties post. The complainant had
indicated her interest in pursuing the same course to Management on a number of previous occasions. She contends that as Ms. A was younger than her this constitutes
discrimination on grounds of age. The complainant also states that in late 2000 staff in her
Office were trained in aspects of work concerning the transfer of certain NRB Files to the
FÁS system. She adds that she was the only member of staff excluded from this training
and contends that this action constitutes discrimination on grounds of family status - Ms.
A was present at the training and she had no children at the time. When she raised this
matter with her Line Manager she was told she would receive the training - she was
subsequently offered the training but was unable to avail of it due to pressure of work.
The training was never offered again.
3.3 The complainant states that her Line Manager constantly undermines her in the Office by making comments about her performance. She contends that this does not happen to
younger employees and it therefore constitutes less favourable treatment of her on
grounds of age. The complainant states that during 2001 she was requested by her Line
Manager to "fill in" for another employee at the Training Unit (which is situated about a
mile from her normal place of work) who was absent. She contends that this request
constitutes less favourable treatment of her on grounds of age, gender and family status.
3.4 In January, 2002, the complainant's Office provided a recruitment interview service for a client. The work associated with this was assigned to a colleague (Ms. B).The complainant was not told of the interviews by her Line Manager, despite working on
reception, and was told by a colleague. The complainant contends that the failure of her
Line Manager to inform her of the interviews and the non-assignment of the work to her
constitute less favourable treatment of her on grounds of age and family status. In early
2002 training was given to a number of staff (including Ms. A) in respect of a Quality
Customer Service Programme. The complainant states she was never advised that the
training was available in the first instance and rejects the respondent's assertion that the
training was offered to her at a later date. She contends that these alleged incidents
constitute discrimination of her on grounds of gender, family status and age.
3.5 The complainant states that she was unsuccessful for temporary assignment to a post of Development Placement Officer in Tullamore during 2001. She adds that she had twenty
years' service at that time and contends that the respondent's decision to assign the posts
to another employee constitutes less favourable treatment of her on grounds of age and
family status. She further states that she failed to secure similar assignments during 2002
(in Athlone and Tullamore) and that this also constitutes discrimination of her on the same
grounds. The complainant goes on to say that she applied for a post of Employment
Services Officer (Worksharing) at the Athlone Officer during 2002. She was unsuccessful
and contends that she had longer service, superior relevant educational qualifications and
greater experience that the successful candidate (Ms. A). She submits therefore that her
failure to secure the post was discriminatory on grounds of age and family status.
3.6 The complainant states that she reported her concerns (as regards the alleged treatment of her by her Line Manager) to the Regional Manager on four occasions and she considered that this was sufficient to enable him act. She feels that by raising these issues with the Regional Manager she has been victimised - people who had commenced employment with the respondent after her had been promoted over her. She adds that following her exclusion from the NRB Training in late November, 2000 she informed her Line Manager that she was taking the matter further. The complainant also states that she was not aware of the existence of the respondent's Internal Grievance Procedure.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent argues that any alleged incidents which pre-date the coming into force of the Employment Equality Act, 1998 (18 October, 1999), on any of the new discriminatory
grounds provided in that Act, are excluded from the investigation. It also argues that alleged incidents which occurred after that date but which took place more than six
months from the date of referral of the complaint (21 August, 2002) are time barred and
cannot form part of the investigation. Without prejudice to this latter argument it has
responded to the incidents of alleged discrimination which post-date 18 October, 1999.
4.2 The respondent accepts that Ms. A was placed on an external course of education/training during the period when the complainant was on maternity leave during 2000. The respondent states that the course was one conducted by the NUI Maynooth and the timing and duration of the course was determined by that body. The complainant was on maternity leave at the time and the respondent decided to afford Ms. A the opportunity of pursuing the course. The respondent states that the training in respect of the transfer ofNRB files to FÁS in November, 2000 was a "once off" exercise. It accepts that the
complainant had not completed the training on the day in question and was unable to offer
an explanation for that. It states that four members of staff were selected to undertake the
work involved - three of whom had children - and denies that the complainant was
excluded on the basis of her family status. When the complainant brought the matter to
the attention of the Regional Manager arrangements were made to provide the
complainant with the training but these arrangement were unsuitable to her.
4.3 The respondent rejects the complainant's assertion that her Line Manager constantly
undermines her in the Office. It submits that the complainant has not been specific about
her allegations on this issue and the vague background she has furnished could not be
viewed as less favourable treatment of her on the discriminatory grounds cited. The
respondent accepts that the complainant was asked to cover for an employee at the
Training Unit who was absent. The respondent states that the absence was unexpected and in those circumstances it is custom and practice for other staff to provide cover, if
considered necessary. In this instance the Regional Manager, who has responsibility for
the delivery of service in the area, considered it necessary to provide cover and the
complainant was selected, given the nature of the work in question. However, she
objected to the request and she did not provide the cover - another employee did so.
4.4 The respondent accepts that the work associated with the recruitment interview service for a client in January, 2002 was assigned to Ms. B. It also accepts that she was younger than the complainant but adds that at the time she (Ms. B) had two children. It rejects the complainant's assertion that the decision not to assign the work to her was connected with her age or family status and it also rejects her contention that she was excluded in any way from work processes, maintaining that it was a general practice in the Office to discuss work issues on a regular basis.
4.5 The respondent accepts that during 2000 Ms. A received training in respect of its Quality Customer Service Programme. It states that no selection process was used to determine who was trained, rather staff were advised at briefing meetings of the necessity to have staff trained as evaluators. Those who volunteered received that training. During the year five people received the training - details of their gender, age and family status were furnished to the Equality Officer. The respondent submits that the complainant was not treated less favourably on the discriminatory grounds cited and states that when the
complainant raised this matter in the course of a meeting with Mr. D (the current Finance
and Administration Manager) on 10 July, 2002, the respondent informed her that it had no
difficulty in providing her with the necessary training at that time. This point was
confirmed at the hearing by Mr. E (FÁS Official), who also attended that meeting.
4.6 The respondent states that temporary assignments to posts in an acting capacity are
covered by an internal circular, a copy of which was furnished to the Equality Officer.
This process was used by the Regional Manager to assign Ms. C to the post of Acting
Development Placement Officer at Tullamore in 2001. This process was also used to
assign the complainant to a similar post at Athlone in the same year. The process was
again used in 2002 to assign different staff to similar posts at the same locations. The
respondent states that all of these decisions were made by the Regional Manager, although there is no documentation in existence as to how he made those decisions. The respondent submits that the selection process for the post of Employment Services Officer
(Worksharing) at the Athlone Office during 2002 was conducted in a fair and transparent
fashion. Candidates were assessed at interview across four pre-determined criteria,
account was taken by the Interview Panel of internal assessments by their respective Line
Managers and the Panel decided Ms. A was the most suitable of the four candidates
interviewed.
4.7 The respondent denies that the complainant was penalised in circumstances amounting to victimisation, contrary to the Act. It argues that the complainant was vague about when she brought her concerns to management and the content of those concerns. It adds that once it received her letter of 1 July, 2002 setting out her problems, the Regional Manager went about organising a meeting, which took place on 10 July, 2002, between FÁS Management, the complainant and her trades union representative. Each of the complainant's concerns were addressed during this meeting, following which no further
contact was made by the complainant, other than the reference to the Equality Tribunal.
As a result of this the respondent refrained from pursuing the matters any further with the
complainant at that level.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The first issue for consideration by me in this claim is whether or not some of the alleged incidents are properly before me for investigation having regard to (i) the date the
Employment Equality Act, 1998 came into operation (18 October, 1999) and (ii) the time
limit prescribed at section 77(5) of that Act. In reaching my decision I have taken into
account all of the submissions, both oral and written, made to me by the parties.
5.2 The complainant's submission to the Equality Officer cited thirteen separate alleged
incidents of discrimination, of which, the complainant states, five occurred before 18
October, 1999, all of them on new discriminatory grounds introduced by the Employment
Equality Act, 1998. Consequently, any alleged treatment of the complainant in respect of
these incidents does not constitute unlawful discrimination of her contrary to the Act and
does not form part of my investigation of this claim.
5.3 Of the remaining eight alleged incidents only two are stated to have occurred within six
months of the date of referral of the complaint - 21 August, 2002 - the interviews for the
post of Employment Services Officer (Worksharing) at the Athlone Office and the temporary assignments to posts of Acting Development Placement Officer at Athlone and
Tullamore during 2002. Section 77(5) of the Act provides:
"..... 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."
This section clearly envisages a scenario involving a series of incidents by requiring the
complainant to refer a complaint within six months of the most recent alleged incident.
However, in affording a complainant such latitude, it also requires that the alleged
incidents must be related to the most recent act of discrimination or victimisation - that
they should be similar and related incidents. I must therefore decide whether or not the
remaining six alleged incidents form a chain of discriminatory actions which are
sufficiently connected with the incidents mentioned above (referred within the six month
time limit provided in the Act).
5.4 I note that the selection process for the post of Employment Services Officer
(Worksharing) at the Athlone Office involved written applications and formal interview.
The Interview Panel comprised three people, including the complainant's Regional
Manager at that time. I also note that the selection of candidates for temporary
assignments to Acting Development Placement Officer at Athlone and Tullamore during
2002 was made by the same person. The remaining incidents centre on allegations of
discriminatory treatment occasioned by the complainant's immediate Line Manager on a
number of discriminatory grounds and over a period of years. I am satisfied that these
remaining incidents are not connected with those referred within time. Consequently, they
are outside the six month time limit and will not form part of my investigation of the
claim. In the interests of clarity I wish to address the complainant's particular allegation
that her Line Manager constantly undermined her in the Office by making comments
about her performance (see paragraph 3.3 above). The complainant was vague about the
nature of these allegations and was unclear as to when the last alleged such incident
occurred, stating that it was ongoing. I note the contents of an internal assessment of the
complainant completed by her Line Manager in April, 2002, in which he recommends her
for promotion and I am satisfied that such a recommendation is inconsistent with the
complainant's assertion that he undermined her. In light of this view, coupled with the
complainant's lack of clarity about the allegations, I am satisfied that this issue should not
form part of my investigation.
5.5 I will now address the first of the two incidents which I have jurisdiction to investigate -
the failure of the complainant to secure promotion to the post of Employment Services
Officer (Worksharing) at the Athlone Office. The complainant contends that she had
longer service, superior relevant educational qualifications and greater experience than the
successful candidate and that the reason she was unsuccessful is because she was less
favourably treated on grounds of age and family status. I note that the respondent
prepared a Personal Specification (setting out the essential and desirable attributes of the
successful candidate) and a Job Description for the post prior to interview, which were
given to the members of the Interview Panel. The Interview Panel comprised three
persons and they were briefed by the Chairman as to the requirements of the Employment
Equality Act, 1998 - a written statement from the Chairman confirming this was
furnished to the Equality Officer and the Chairman attended the hearing and gave direct
evidence of same. The candidates were assessed across four pre-determined criteria :
Motivation, Work Experience, Communication/Interpersonal Skills and Education and
Training. The scores awarded to the complainant and the successful candidate across
these criteria were furnished to the Equality Officer. Notes taken by the Chairman at
interview on the candidates were also furnished, as were copies of the internal assessment of both candidates completed by their respective Line Managers at that time - documents which the Interview Panel had regard to in the evaluation process.
5.6 It is the established caselaw of this Tribunal and the Labour Court1 that in all cases of
alleged discrimination the must, in the first instance, establish primary facts from which it
can be inferred that s/he suffered discriminatory treatment. When such a prima facie case
1 Flexco Computer Stationery Ltd. v Coulter ED/03/10
has been established the onus shifts to the respondent to rebut the inference of
discrimination. This approach has its origins in issues of gender discrimination and is now
part of Irish law with the coming into force of the European Communities (Burden of
Proof in Gender Discrimination Cases) Regulations, 20012. Prima facie evidence has
been defined as "evidence which in the absence of any credible contradictory evidence
by the employer, would lead any reasonable person to conclude that discrimination had
probably occurred"3. On the basis of the evidence adduced I am not satisfied that the
complainant has discharged the requirement of her to establish a prima facie case on this
issue.
5.7 I shall now turn to the second alleged incident, the selection of candidates for temporary assignments to Acting Development Placement Officer at Athlone and Tullamore in 2002. The complainant contends that her failure to secure one of these acting posts constitutes less favourable treatment of her on grounds of age and family status. The respondent states that the decision to nominate personnel for these assignments was made by the complainant's Regional Manager in accordance with an Internal Circular (Acting Appointments No. 02-19-01), although no documentation exists as to how the Regional Manager made his final decision exists. Details of the personnel assigned to the temporary posts were furnished to the Equality Officer as was a copy of the Circular. I note from this material that both assignees had the same family status as the complainant (they both had children at the time of the assignment). Therefore there can be no difference in treatment alleged on the ground of family status. I further note that one of them was older than the complainant and one was younger. In addition, the complainant had been assigned to a similar temporary post in 2001 by the same Regional Manager, using the same selection process. All of the assignments appear, on the face of it, to have been conducted in accordance with the terms of the Circular. In light of the foregoing I am satisfied, on balance, that the complainant's age had no bearing on the Regional Manager's decision and she has failed to establish a prima facie case of discrimination in respect of this issue.
5.8 However, before concluding on this issue I would draw the respondent's attention to the
lack of clear documentary evidence to support how decisions were reached in the
selection process. The issue of retaining notes to demonstrate the basis on which one
candidate is chosen over another following a selection process has been raised on many
previous occasions by this Tribunal and the Labour Court. Such notes are of considerable
2 S.I. 337 of 2001
3 Gibney v Dublin Corporation EE5/1986
assistance when investigating allegations of discrimination and the absence of such notes
may well be detrimental to an employer's attempt to rebut allegations such as the
complainant's. I would suggest therefore that the respondent takes the necessary steps to
ensure that decisions under Internal Circular (Acting Appointments No. 02-19-01) are
documented in future and that those notes are retained for at least twelve months
following the decision. There is another aspect of the respondent's actions in this case
which might be cause for concern. I would suggest that it take steps (if it has not already
done so) to ensure that in future notices of promotional opportunities, training
opportunities etc. are furnished to staff absent from the Office on maternity leave, parental
leave etc.
5.9 The complainant also alleges that the respondent penalised her in circumstances
amounting to victimisation in terms of Section 74(2) of the Employment Equality Act,
1998. This section defines victimisation as follows:
"For the purposes of this Part, victimisation occurs where the dismissal or other
penalisation of the complainant was solely or mainly occasioned by the
complainant having, in good faith --
(a) sought redress under this Act or any enactment repealed by this Act for discrimination .....,
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
The complainant states that she reported her concerns in respect of the alleged behaviour
of her Line Manager to the Regional Manager on four occasions and subsequently she
was not promoted while other employees with shorter service were. The complainant was
vague and unclear about the dates of these conversations with her Regional Manager but
she indicated that some of them were during 2000. She was also unclear as to whether or
not she indicated to him that she felt the alleged treatment of her was based on the
discriminatory grounds cited in her complaint to this Tribunal. I note that subsequent to
some of these conversations with her Regional Manager she was assigned as Acting
Development Placement Officer from May-September, 2001 on the nomination of the
same Regional Manager. In addition, when she wrote to the respondent on 1 July, 2002
setting out a sequence of issues she did not indicate that she considered them to be
connected with the discriminatory grounds cited and the respondent held a meeting with
the complainant and her trade union representative on 10 July, 2002 to discuss her
concerns. I note that she lodged her complaint with this Tribunal about six weeks later. In
light of the foregoing I find that the complainant has failed to establish a prima facie case
of victimisation. However, I am satisfied that the complainant reported her concerns to the
Regional Manager on at least one occasion. In other circumstances that response of the
Manager to her grievance might be considered inadequate and could be detrimental to the
respondent's rebuttal of discrimination. It might therefore be useful if FÁS issue an
internal notice to staff informing of the existence of its Grievance Procedure and
reminding Management Staff that they should act immediately upon receipt of a
complaint from a staff member, whether the matter is reported verbally or in writing.
6. DECISION OF THE EQUALITY OFFICER
6.1 I find that the complainant has failed to establish a prima facie case of (i) discrimination in respect of the two alleged incidents which were properly before this Tribunal and (ii) penalisation in circumstances amounting to victimisation in terms of section 74(2) of the Act.
__________________________________
Vivian Jackson
Equality Officer
30 April, 2004