Maguire(Represented by Brophy Solicitors) AND Kylemore Food Group Ltd(Represented by IBEC)
1. DISPUTE
1.1 This dispute concerns a claim by Ms Kathleen Maguire that she was discriminated against by Kylemore Food Group Ltd on the ground of age contrary to the provisions of the Employment Equality Act, 1998 when she was asked to transfer to another department
1.2 Brophy Solicitors, on behalf of the complainant, referred a claim to the Director of Equality Investigations on 15 May 2001 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 31 August 2001 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 25 March 2003. Subsequent correspondence with the parties concluded on 25 July 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant was employed in the dispatch area of the respondent's bakery since 1985. In June 2000 she went on extended sick leave when she required surgery. She returned in November 2000, and two weeks later was told by a Supervisor to transfer to the finishing area. She said it was established custom and practice that such transfers were effectively part of a disciplinary process, and she refused to move on the basis that it represented a radical alteration to her terms and conditions of employment.
2.2 The complainant was summoned to the office of the Dispatch Manager for a meeting with him and the Human Resources Manager. She said she asked why employees who had been recently taken on had not been asked to move, and she said the Dispatch Manager said "I have to nurture them along". She said he also said "I don't know what your problem is - you've only two and a half years to go" and "I have my team - you're not on it".
2.3 The complainant submitted that this was a clear and unequivocal reference to her age, and that the reason she was being chosen for a move at that point was because she was older than other employees. She said the reference to her having "two and a half years to go" was a clear reference to the fact that she was less than three years from retirement. She said the Dispatch Manager said "We have reached deadlock now, what are you going to do, go off sick?", which she submitted was a clear implication that she was to go off sick until reaching retirement age.
2.4 The complainant attended a further meeting the next day, accompanied by two union representatives. She said they represented to the respondent that she was being moved because of her age and they emphasised that it was not the respondent's practice to move an employee who had been in one place of employment for a long period of time. Ultimately, the complainant moved to the job in the finishing area under protest, and at all times asserted her right to return to her job in dispatch.
2.4 The complainant asserted that the respondent set about a course of action designed to isolate her from her fellow employees, and she said it was made clear to her and her fellow employees that the respondent intended to force her out of her employment because of her age. She alleged that the Dispatch Manager on one occasion told a fellow employee "Sure anyway Kathleen Maguire is 64 years."
2.5 The complainant said she was brought on a number of occasions into offices for meetings about the move, which she said was a matter of personal humiliation for a woman of her length of experience and service. She said the dispatch area employed a number of younger employees with less seniority who ought to have been asked to move if it was required. She said it was clearly within the knowledge of the respondent that such a move after fifteen years in the dispatch area represented a humiliation and an effective demotion for her. She submitted this was clear discrimination on the ground of age contrary to section 8 of the 1998 Act.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied the allegation of discrimination, and insisted that the complainant's age formed no part of the selection process when transfers were considered. It said the complainant's transfer came about because of a plan being implemented in an attempt to reduce costs. The bakery had been making losses for eighteen months, and in November 2000 a plan was implemented which involved reducing staff in some areas, altering work patterns and changing the division of labour between departments. Eight staff members were transferred and two people were made redundant. Hours of work for transferred staff were not changed and arrangements were made to allow them to take breaks with colleagues.
3.2 The respondent said the complainant was chosen for transfer because, in the ten weeks prior to her return from sick leave, the Dispatch Manager had built up a full team and implemented changes in the area. As it was a fully operational team, it was decided not to interfere with its operations and to transfer the complainant to a similar role. The respondent pointed out that the new work area was twenty feet away from the complainant's previous work area, that the complainant suffered no loss of income and that she was enabled to take breaks with her former colleagues.
3.3 The respondent denied that transfers were used by it as a part of its disciplinary process, but agreed that it could transfer staff members in the case of personality conflicts. It said that the re-organisation plan had been agreed with the union, pointed out that it had no union agreement that seniority would be a factor in anything other than annual leave, and provided evidence of several other transferred staff members who were younger than the complainant.
3.4 Regarding the comments attributed to the Dispatch Manager, the respondent denied most of them were made. It accepted that he may have indicated he had a team in place, but said he did not do so in the context suggested. The respondent said that the complainant brought up the issue of her age as a factor in deciding she should transfer, and that this was denied at the time. The respondent said that the Dispatch Manager explained in detail the re-organisation requirements, and made no comments or inferences regarding the complainant's age. The respondent also said there was an inconsistency between the claim that the Dispatch Manager told the complainant she had "two and a half years to go" and the claim that he said to a work colleague within a week or so that she was 64 years of age. Retirement age in the respondent's employment was 65 years of age.
3.5 The respondent said that the complainant's assertions that it isolated her and wanted to force her from her employment was irrelevant to a claim under section 8 of the 1998 Act, as she had not claimed either harassment or victimisation in her referral. In any case, it denied the charges and said they were unsubstantiated and unsupported by any evidence. The respondent pointed out that it continued to employ the complainant until the closure of the bakery in August 2001, when she was made redundant.
3.6 The respondent said that calling the complainant into the office to discuss the transfer issue was both good management practice and normal company procedure. It was normal practice to hold meetings on such an issue in private with only the relevant party present. Only individuals informed by the complainant would have been aware of the reasons for her absences from her workstation. The respondent also said that the allegation that the transfer was an attempt to humiliate and effectively demote the complainant was also unfounded and unsubstantiated. It said the onus of proof was on the complainant and she had failed to produce any evidence to substantiate the claim of discrimination.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY
OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against her on the ground of age contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include age. Section 8 provides that:
(1)In relation to-
(a) access to employment...
(b) conditions of employment...
(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective
employee...
The complainant of discrimination against the complainant
4.3 In a recent claim of discrimination on the disability ground taken under the 1998 Act, the Labour Court said "It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI NO 337 of 2000). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities." (Customer Perception Ltd and Leydon [EED0317]). I am satisfied that the same procedural rule should be applied in this claim.
4.4 The requirement therefore is for the complainant to establish those facts from which an inference of discrimination may be drawn. If she successfully achieves this, the respondent must demonstrate that discrimination did not occur.
4.5 It is clear that the complainant was unhappy with the transfer from the dispatch area where she had worked for fifteen years. She felt that she was singled out because of her age, and that younger staff members with less seniority should have been transferred if a transfer was required. However, the respondent provided evidence that ten staff members were affected by the re-organisation at that time, two of whom were made redundant. In the dispatch area, one staff member who was the same age as the complainant was not transferred. Of the other seven people who were transferred, none of them was the oldest person in his or her department. It is clear that transfers were not decided on age grounds.
4.6 I cannot accept that the transfer represented either a disimprovement in thecomplainant's terms and conditions of employment or a demotion. Her new workstation was situated approximately twenty feet away from her previous position, her salary and working hours were unchanged and the respondent facilitated her taking breaks with her former colleagues.
4.7 If the Dispatch Manager had made the comment "I don't know what your problem is - you've only two and a half years to go" this may have indicated an intention to discriminate on the age ground. However, the respondent absolutely denied that the statement was made. The complainant provided a witness at the hearing who said the Dispatch Manager had said to her that the complainant was nearly 65 years of age. Proof of comments of this nature is notoriously difficult to provide, but it is clear there is a contradiction between the two attributed statements. On the balance of probabilities, I must conclude that the evidence does not support the complainant's allegation. I am satisfied that the other statements attributed to the Dispatch Manager do not indicate any reference to age.
4.8 The complainant also failed to provide any evidence for her assertions that the respondent isolated her or that the respondent intended to oust her from her employment. She did not deny that she was facilitated in taking breaks with her former colleagues, not did she deny that the transfer required her to move no more than twenty feet away. I accept that asking the complainant to come into the office to discuss her difficulties with the transfer was good management practice.
4.9 As a final point, it is clear that some form of re-organisation was necessary because the bakery was losing money. Ultimately, the re-organisation failed and the bakery closed in August 2001. At that point, the complainant was made redundant along with her colleagues of all ages. I find that the complainant has not established a prima facie case of discrimination on the age ground by the respondent.
5. DECISION
5.1 Based on the foregoing, I find that Kylemore Food Group did not discriminate against Ms Maguire on the ground of age, contrary to the provisions of the Employment Equality Act, 1998.
_____________________
Anne-Marie Lynch
Equality Officer
10 February 2004