Jones
(represented by John Mc Guiggan B.L. instructed by T. G. Mc Veagh & Co. Solicitors)
-v-
Norwich Union International Limited
(represented by Oisin Quinn B.L. instructed by A & L Goodbody Solicitors)
1. CLAIM
1.1 The case concerns a claim by Ms. Siobhan Jones that Norwich Union International Limited, Dublin, discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to promotion and her conditions of employment.
2. BACKGROUND
2.1 The complainant alleges that the respondent directly discriminated against her on the gender ground in relation to promotion and her conditions of employment. She alleges that attempts were made to establish a new Sales Support Unit in a time frame disadvantageous to her due to her imminent absence on maternity leave. She submits that a male applicant who was ultimately successful in a competition for the post of Sales Support Manager in April/May 2004 was treated more favourably than her during the selection process. In a subsequent competition for the post of Technical Sales and Support Manager in August 2004, she was told that it was not expected that she would re-apply given that she was not successful in the first competition. She submits that the post which she held of Business Development Executive was downgraded prior to her return from maternity leave. The respondent denies the complainant's allegations of discrimination on the grounds of her gender or maternity leave.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 16 December 2004. On 28 February 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 5 April 2006 and from the respondent on 17 May 2006. A joint hearing of the claim was held on 11 October 2006. Material requested at the hearing was provided by the respondent on 25 October 2006 and correspondence in relation to the material concluded on 7 December 2006 .
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant alleges that she was discriminated against within the meaning of the Employment Equality Acts during the process adopted by the respondent for the appointment of a Sales Support Manager as advertised which was a promotional opportunity for the complainant. The complainant further alleges that she was discriminated against in a second competition for appointment when she was told that the respondent was not expecting her to apply.
3.2 The complainant also alleges that she was discriminated against when following her non-appointment to the post, her role of Business Development Executive was downgraded and diminished. She also alleges that she was discriminated against when she was required to attend for independent medical examination after four weeks certified sick leave when male members of the company would not be required to attend such examinations until they had been on sick leave for a significant amount of time.
3.3 The complainant was promoted to the post of Business Development Executive in July 2003. In her previous role as Distribution Support Co-Coordinator, the complainant identified a need to improve the performance of the company by the creation of a Sales Support Unit. She prepared a Sales Support Accountability Brief for the respondent. The report identified the key needs and advantages of the proposed unit, the specifications for the post holder and the role of the post in an improved structure for the company. In January 2004, the respondent established a project group to examine the brief and to define roles and responsibilities of such a Sales Support Unit. The complainant was a key member of the group.
3.4 In February 2004, the project's group findings were considered by senior members of the respondent company. The complainant was present at the meeting and an active participant in its deliberations and conclusions. It was decided to proceed and get the Sales Support Unit up and running. During the meeting, the Managing Director advised that he had been informed of the complainant's pregnancy and that there was a need to "to put the cart before the horse and get this unit up and running." The complainant believes that the company acted to establish the unit at a time deliberately disadvantageous to the Applicant by virtue of her imminent absence on maternity leave.
3.5 In March 2004, an internal e-mail was circulated announcing that the respondent would be recruiting a Sales Support Manager to head up the proposed Sales Support Unit. The proposed job profile for the new post combined the profile of the complainant's existing post of Business Development Executive and the proposals she had developed for the new unit in the development work over the previous three years and which proposals as refined by the project group had been accepted by the respondent.
3.6 The complainant despite having identified the need for and initiated the idea of the Sales Support Unit and despite having been a key member of the Unit's development group was disappointed to find that the announcement of a decision to recruit for the unit was made without her being advised or consulted. She expressed this view to her line manager, Mr. C who was head of Business Development. The complainant believes that the failure to consult was discriminatory and contrasts sharply with the consultation that was afforded to the successful male applicant for the post.
3.7 The complainant applied for the post of Sales Support Manager and was one of those short listed for interview. The respondent adopted a criteria based interview process comprising of three psychometric tests, an interview with the Managing Director and a fifteen minute presentation. The complainant was advised that her first interview could not be conducted with Mr. C because of her existing relationship with him as her head of department. The complainant believes this decision was discriminatory and contrasts sharply with the fact that the successful male candidate's first interview was with his head of Department, Ms. B.
3.8 On 20 April 2004, the complainant was interviewed by Ms. B, Head of Operations and Mr. McN, HR Consultant and she went on to complete the full interview process. On 18 May 2004, the complainant was advised that she had been unsuccessful in her application. She was told that her presentation was "by far the strongest" but that at her first interview, she had not demonstrated that she had "the relationship to buy in to set up the unit".
3.9 The complainant also discovered that the post as advertised and as applied for had in fact changed during the recruitment process from Sales Support Manager to Technical and Sales Support Manager. The complainant had not been advised or consulted regarding this change whereas the successful male candidate had been advised of this change and had in fact submitted a proposal paper advocating such a change on foot of separate consultations with him. The complainant believes this was deliberately discriminatory and was designed to exclude her from proper consideration for the post. As the new and unilateral changes would have a dramatic effect upon her existing role as Business Development Executive, she considered that she was entitled to be consulted before such changes were adopted by the company. The complainant also learned that the successful male candidate had been invited to apply after the changes to the nature of the post as originally advertised were made and after submitting a proposal for the changes. The complainant subsequently learned that the successful candidate was a male candidate who had not made any application for the post by the closing date of 8 April 2004. The complainant also learned that the successful male candidate's first interview for the post was conducted by his own head of Department whereas the complainant was not allowed to be interviewed by her head of Department.
3.10 On 16 July 2004, the complainant received a letter from the respondent confirming that she had been unsuccessful in her interview for the position of Sales Support Manager. That letter also formally confirmed that the person appointed following the selection process was appointed as Technical Sales and Support Manager and that the complainant's role would transfer into his new team with effect from 1 June 2004. In August 2004, the newly appointed Technical Sales and Support Manager resigned triggering the requirement for a new selection process.
3.11 At that stage, the complainant was on maternity leave. On 27 August 2004, the complainant was advised in an e-mail from the Company Operations Manager that "given you were not successful when you applied for the original role I'm not expecting that you will reapply." The complainant was distressed by the e-mail and this was compounded when the respondent invited an application from another failed male candidate for the original post and proceeded to appoint him to the post.
3.12 Following the events as outlined in the preceding paragraphs, the complainant's role in the respondent was revised and changed without any formal consultations or agreement. Her title as Business Development Executive was downgraded to Sales Support Assistant. From 14 June 2004 to 12 November 2004, the complainant was on maternity leave and was due to return to the work place on 4 January 2005. The complainant found it stressful to contemplate returning to work and the distress affected her health as confirmed by her GP who advised her not to return until the distress had settled or the workplace environment had improved.
3.13 On 20 December 2004, the complainant furnished the respondent with a sickness certificate certifying her absence from work on stress. The certificate was supplemented by further certificates. On 27 January 2005, the respondent required the complainant to attend an independent doctor nominated by the company to ascertain her sickness status. The complainant was further distressed as she was aware that although the respondent had a contractual right to require independent medical examinations that male employees were not required to attend for medical examinations until a substantial period of sick leave had been taken. The complainant believes that the respondent was including absence on maternity leave as absence on sick leave and wrongly using the consecutive periods for insisting on independent medical examination.
3.14 Independent medical examination confirmed the diagnosis of her own medical advisors to the effect that her illness was work related. The complainant being a member of the respondent's Personal Health Insurance Scheme made application for the benefits of that scheme and despite the medical evidence and without providing any details of the scheme, the respondent advised her that she did not qualify for the payment of any benefits and that she was by reason of her absence no longer a member of the scheme. The complainant believes that male applicants to the scheme were treated differently.
3.15 The complainant submits that she has suffered severe discrimination based upon her sex and maternity which led to stress and depression which continue to date. She has not received any income from the company since December 2005 and she has been denied access to the benefits of the company's personal health insurance scheme.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent denies that the complainant has suffered any discrimination whether as alleged or at all and whether on grounds of her gender or maternity leave. Over the period of time relevant to the allegations, the respondent has promoted a number of women. For example, in 2004, 52% of 19 promotions were female and two of the women were known to be pregnant at the time. Since 2002 to date, there have been 24 cases of maternity leave.
4.2 The respondent acknowledges the complainant's role in the creation of a sales support unit but does not accept that the need for the creation of the unit was identified by the complainant. The sales support project was initiated in June 2003 and was not initiated by the complainant but rather by the core management team sponsored by the complainant's then manager, the head of Business Development.
4.3 On 14 November 2002, the Managing Director, Mr. W who was at the time also temporarily managing the Business Development team held a meeting with the Business Development team which included the complainant to discuss how certain changes in Norwich Union Life would impact on the respondent's roles in relation to business development and organisational structures. A number of ideas were discussed and several members of the team including the complainant produced documents following the meeting. It was in that context that the complainant's document entitled "Sales Support Accountability Brief" was produced. Sales support strategy had been discussed at a management team away day in April 2003 and it was from this that it was progressed as a formalised project in June 2003. The complainant was not an attendee at the April away day as the invitees were limited to those at management level within the organisation. The respondent refers to a series of e-mails between the complainant and the Marketing Director in relation to the beginning of putting the sales support structure in place. It is evident from these e- mails that the project was not initiated by the complainant but by the core management team.
4.4 The complainant informed the respondent of her pregnancy in December 2003. At no time did this ever adversely affect the manner in which the complainant was treated by the respondent. In January 2004, the project was renamed "Sales Support Solution". This was not a new project but was rather a continuation of the project initiated in June 2003 and was not in response to the complainant's brief.
4.5 The complainant was a member of the team. No members were identified as key members although certain stakeholders were identified. The complainant was not a stakeholder on the project. The project charter lists project members and includes the complainant as a representative from the Business Development Team. The respondent denies that the complainant's pregnancy was ever referred to in an offensive manner at any of the project groups meetings. Mr. W, Managing Director used the announcement of the complainant's pregnancy to encourage the project's stakeholders to work quickly to determine the respondent's sales support requirements so as the process could be completed before the commencement of the complainant's maternity leave. This was out of consideration to the complainant to ensure that she had both the opportunity to contribute to the discussions and that she would know exactly what this meant for her prior to her departure on maternity leave.
4.6 In March 2004, a decision was made to recruit a Sales Support Manager who would take on implementation of the new Sales Support Unit. The position was advertised internally and externally on 30 March 2004. The respondent denies that the proposed job profile for this new post matched the profile of the complainant's then position and the proposals she had developed. The role of Sales Support Manager was a significantly more senior role reflected in the substantially greater salary which the role carried as compared to the complainant's role. There is no legal basis for the complainant's contention that she should have been advised or consulted about the decision to recruit for the new position.
4.7 The respondent denies that the successful candidate for the position was treated more favourably than the complainant and that decisions were being made to take advantage of the complainant's imminent absence on maternity leave. The complainant applied for the position on 7 April 2004. The respondent denies that all candidates were required to sit all stages of the process. At that stage, no decision had been made on the reporting line for the Sales Support Manager job. Initially, it was considered that the role would report into Operations and it was for this reason that the Head of Operations was determined as the Recruiting Manager. Ms. B conducted the complainant's first interview. She was the Head of Department for the successful applicant but the respondent denies that this was in any way discriminatory of the complainant as alleged or at all. Ms. B conducted the interview jointly with a representative from Human Resources.
4.8 On 5 May 2004, Mr. P, the then Technical manager submitted a late application and his application was accepted. The Respondent frequently in the past and continues to date to accept late applications for positions beyond the closing date for applicants. At the time of Mr. P's application, he made certain proposals about integrating the position of Sales Support Manager with technical support in order to provide a more comprehensive service to customers. The change in the position from Sales Support Manager to Technical and Sales Support Manager arose directly from the proposals made by the successful candidate. At all times, it was the respondent's view that the complainant was not competent to discharge the role and she was never considered for appointment to the position.
4.9 Mr. P was advised that if he was interested in progressing his proposal that he should apply for the position as advertised. He was advised that if he was shortlisted, he would have to go through the same selection process as the other candidates. He put his proposal on the basis of the merged team and was interviewed in the context of taking that proposal forward as the merged team manager and that if he were to be successful that he would take responsibility for both his current technical team and the new sales support unit. Had the complainant been successful, the two areas of sales support and technical support would have been maintained as separate units. However, the complainant was not successful due to poor performance at interview and the complainant's failure to demonstrate the required depths of strength to fulfil the role. The respondent denies that the complainant was ever told that her presentation was "by far the strongest".
4.10 The respondent did not consult with Mr. P on the role. The respondent considered the proposals made by Mr. P for the integration of sales support with technical support and accepted his proposals and appointed Mr. P to the role of Technical and Sales Support Manager. Mr. P performed significantly better than the complainant at his interview which is reflected in his feedback. Mr. P's CV was also seen as superior to the complainant's CV.
4.11 In August 2004, Mr. P resigned from his position as Technical and Sales Support Manager. On 23 August, Ms. B advised the complainant of Mr. P's resignation. On 27 August 2004, Ms. B again e-mailed the complainant. At that time, Ms. B did not expect the complainant to apply for the position given that she had not been successful in her application of April 2004. Ms. B's view at that time and to date is that the complainant would not have been interviewed for the role based on her experience and her previous interview as Ms. B did not consider the complainant to be a suitable candidate even for a wider role and Ms. B's view did not change with the subsequent vacancy in August 2004. It was the respondent's view that the complainant did not have the relevant qualifications, experience or technical knowledge to discharge the essential duties of the role that became vacant in August 2004. The respondent did not intend to shortlist the complainant for the post as they were of the view that the complainant was not competent for the post. Ms. B e-mailed the complainant on 17 September 2004 to advise that Mr. D was successful. The complainant is not correct in her statement that the successful appointment of August 2004 was a failed candidate for the original post.
4.12 During November 2004, December 2004 and January 2005, the respondent continued to liaise with the complainant in preparation for her return to work which was due to take place on 4 January 2005. In November 2004, the complainant requested a return to work on a part time basis for up to six months. Unfortunately, this could not be accommodated by the respondent but the respondent did offer four days per week for three months. On 16 December 2004, Mr. D Technical and Sales Support Manager e-mailed the draft profile for a position of Sales Support Consultant to the complainant. This role was not a downgrading in any way but rather offered her a development opportunity to progress her career. The post would have carried a salary increase. On 20 December, the complainant e-mailed Mr. D to confirm receipt but advised him that she was unable to discuss it as she was certified sick by her doctor.
4.13 On 10 January 2005, Ms. O of the HR Department e-mailed the complainant outlining the options in relation to her return to work and provided copies of two potential job profiles as well as a copy of the Technical and Sales Support Structure chart and asked for an indication on her likely return to work. The two options outlined to the complainant were promotion to the post of Sales Support Consultant with a salary increase or to revert to the position of Sales Support Assistant equivalent to her existing role. On 17 January 2005, the complainant e-mailed Ms. O stating that she was seeking guidance from the Equality Authority.
4.14 On 27 January 2005, the respondent advised the complainant that she was required to attend the company doctor to ascertain her sickness status. The respondent does not accept that the complainant was treated any differently than the respondent's male employees in this regard. The respondent did not include absence on maternity leave as absence on sick leave. The complainant was certified by her own doctor as suffering from stress and in those circumstances the respondent was perfectly entitled to have her assessed by their medical adviser. It is denied that the respondent's medical examination has confirmed any diagnosis to the effect that the complainant's illness is or was work related. The respondent was advised by its initial medical examiner, Dr. W that factors external to the complainant's work had contributed to the complainant's symptoms and may have made it difficult for the complainant to cope with the disappointment surrounding the outcome of her application for a new role within the organisation. Following a request from the complainant, Dr. W withdrew from the case. The complainant subsequently attended Dr. A. After preparing his report, Dr. A asked to meet with Ms. O of the respondent HR department to discuss it. At this meeting, it was clear from Dr. A's initial report that certain allegations made to him by the complainant were not true. In those circumstances, Dr. A wrote an addendum to his report dated 1 February 2006 in which he withdrew his conclusion that the complainant's depression and anxiety were in any way post traumatic in nature. He opined that the complainant is suffering from depression and anxiety but that it must be idiopathic or could be labelled post-natal depression.
4.15 The respondent acknowledges that the complainant's application to the company's permanent health insurance scheme administered by Hibernian was unsuccessful. This was nothing to do with the respondent but was based entirely on an assessment of the complainant's situation by the insurance company and the respondent was not at any time party to that decision or responsible for it in any way. The respondent's only role in relation to the personal health insurance scheme is to facilitate its employees in making an application to the scheme and this was done by the respondent in relation to the complainant.
4.16 The respondent denies all allegations of discrimination made by the complainant whether on the grounds of gender, maternity leave or otherwise.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant alleges that the respondent discriminated against her on the gender ground in relation to promotion and her conditions of employment when she became pregnant. In this case, I will consider whether the respondent directly discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Respondent's argument that the claim in relation to the competition for the post of Sales Support Manager in April/May 2004 is out of time
5.2 The complainant in addition to claiming discrimination in relation to her conditions of employment claims discrimination in relation to two competitions. The respondent submits that the complainant's claim in relation to the post of Sales Support Manager in April/May 2004 is out of time. The complainant was interviewed for the post of Sales Support Manager on 20 April 2004, she did her psychometric test on 29 April 2004 and did her presentation on 12 May 2004. She referred her claim to the Equality Tribunal on 16 December 2004 citing the first incident of discrimination as 20 April 2004 and the last incident as 17 September 2004. The complainant in addition to the claim in respect of the competition in April/May 2004 also referred a claim of discrimination in relation to a competition in August 2004. A similar issue in relation to time limits was considered by the Labour Court in Department of Health & Children v. John Gillen (1). In that case, the complainant complained that after he had reached the age of fifty, he was no longer considered by the appellant as being suitable for promotion purely on age grounds. He claimed that on each of two occasions when he competed, he was rejected on the grounds that he was over 50 years of age. In that case, the Court held:
"In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground. The Court, therefore, takes the view that both complaints are validly before the Court."
In this particular case, the claim in respect of the second competition was referred within the statutory time period for referring a claim, I therefore find that the complaint in relation to the earlier competition is validly before the Tribunal.
Post of Sales Support Manager in April/May 2004
5.3 The position of Sales Support Manager was advertised internally and externally on 30 March 2004 with a closing date of 8 April 2004. The complainant applied for the position on 7 April 2004 and submitted an application form and a CV. The complainant completed the Staff Application Form under the headings of 'Name', 'Job Title', 'Position Applied For' and the reason why the candidate believes he or she should be considered for the position. The complainant stated her job title to be Business Development Executive and under the latter part of the form, the complainant detailed why she should be considered for the position. On 5 May 2004, the successful male candidate (Mr. P) submitted an application for a post. On the successful candidate's application he states his job title as Operations Technical Manager and under the heading of the reason why he should be considered, he submitted "As per attached proposition".
5.4 The attached document is headed "Proposition on Sales Support Manager role and Sales Support Team". The proposition continues:
"Regards the recent notice of the above role and creation of a pre-sales support team, I would propose an alternative approach.
The alternative is to combine the existing Operations Technical Unit with the new Sales Support team to have a new 'Sales & Technical Support Team'. My role can be expanded to manage the broader team structure.
Overall Advantages:
1. Leveraging and developing existing resources.
2. Quicker mobilisation of the new team.
3. A less fragmented structure.
4. Combined internal/external view on issue resolution."
Mr. P did not submit a CV with his application. The respondent submitted that it would have worked with the CV that he originally submitted to the company when he applied for employment a number of years previously.
5.5 At the hearing, the respondent submitted that only seven candidates applied before the deadline of 8 April 2004. There were three parts to the selection process, an interview, a psychometric test and a presentation. Only 4 candidates were interviewed and only two candidates, namely Mr. P and the complainant proceeded to the second stage of assessment. Mr. Mc N and Ms. B interviewed the complainant. The complainant submits that Ms. B was Mr. P's Head of Department. The respondent submits that it was considered that the role would report into Operations and it was for that reason that Ms. B was determined as the recruiting manager. Both interviewers marked the complainant separately. Mr. Mc N's marking sheet on which notes are also recorded was made available to the Tribunal and Ms. B submitted that her marking sheet had gone missing. On the marking sheet, there are two columns headed 'Competency' and 'Comment'. There are six areas of assessment listed which are (i) Having an influence, (ii) Making sound business judgments, (iii) Driving for results, (iv) Working together for the business, (v) Committing to the Customer and (vi) Motivation for the role. The Role Profile for Sales Support Manager indicates that the competencies are as set out at (i) to (v), however, 'communication' was stated to be the sixth competency. Although 'motivation' was included as a competency on the marking sheet, it appears from the evidence given at hearing that after a discussion between the two interviewers, they decided not to mark under the heading of motivation as they did not consider it a competency. Mr. Mc N awarded the complainant 19 marks out of 50. Alongside Mr.Mc N's marks there are numbers in brackets. Ms. B submitted that in addition to completing her own marking sheet, she recorded her marks alongside Mr. Mc Nulty's during the assessment process. She awarded marks under four criteria and does not appear to have marked the complainant under the heading of 'Driving for results'. She awarded the complainant 15 marks out of 50.
5.6 Two marking sheets for Mr. P were made available. The interviewers are stated to be Mr. W, (Managing Director), Mr. Mc N and Ms. B. At the hearing, I was informed that Mr. W just observed the interview and did not participate in the process. Mr. Mc N awarded Mr. P 29 marks out of 50. Ms. B's marking sheet shows marks awarded under all six criteria. She submitted at the hearing that she marked the last criterion 'motivation' in error. If the marks for the last criterion are taken away, Ms. B also awarded Mr. P 29 marks. At the hearing, I sought to clarify when the post to be filled changed from Sales Support Manager to Technical and Sales Support Manager. I was informed that it was after Mr. P's presentation on 11 May and that on 13 May 2004, Mr. Mc N and Ms. B met and decided it was the best way to go. At the hearing, Mr. Mc N stated that until the successful candidate's presentation, he was not aware of Mr. P's proposal, however, he was aware that Mr. P had a discussion with the Managing Director. However, an e-mail sent on 30 April 2004 from Mr. P to the Managing Director which was copied to Mr. Mc N and Ms. B contradicts Mr. Mc N's evidence. That e-mail states "Reference our conversation a few days ago on a proposition for the Sales Support Manager and team structure. I have placed a document on your desk for consideration (and attach same document to this mail for reference). Once you have reviewed, if you require any further information or expanding on any point please let me know." A few days later on 5 May 2004, the complainant applied for the position of Sales Support Manager.
5.7 Both Mr. P and the complainant were provided with feedback in relation to the interview and presentation on 18 May 2004. Feedback notes were prepared by Mr. Mc N in advance of the feedback meeting. The notes for Mr. P, the successful candidate begin with the statement "Pleased that [Mr. P] demonstrated the initiative to prepare and present his proposal which constructively addressed what we are trying to achieve in a Sales Support Unit." The notes under the heading of 'Performance at interview and Presentation' in respect of Mr. P state "There were a number of gaps in terms of performance at interview and presentation, while we have the benefit of relating back to Marks on the job performance to fill in some of these gaps, Mark will need to focus on closing these gaps as the focus during the interview was on the key competencies for this new role." Two issues arise with this statement in the feedback notes, the first is that Mr. P's on the job performance was taken into account in a non transparent manner. Indeed further down in his feedback notes it is recorded "Some solid evidence of being effective here in current role..." It is unclear to what extent Mr. P's performance in his current role was taken into account as there was no evidence of assessments being completed by line managers in advance of selection and in this case, his head of Department was on the selection board. It is not stated that the same applied in respect of the complainant to fill any gaps in her performance at interview or presentation. Secondly, the statement that the focus during the interview was on the competencies for the new role is in conflict with the direct evidence at hearing that Mr. P was interviewed for the Sales Support Manager job and not the new role and that a decision was only taken on the new role after Mr. P's presentation. I note also that the respondent's submission states that Mr. P "put his proposal on the basis of the merged team and was interviewed in the context of taking that proposal forward as the merged team manager," The notes of Mr. P's feedback meeting further state "Currently Marks strengths are on the technical side, there will now be a need to develop increased knowledge of the business and sales side and its processes." Whilst the complainant may have been considered by the respondent not to have the knowledge required on the technical side, there clearly was an issue about Mr. P's knowledge on the sales side.
5.8 As stated in paragraph 5.5 above whilst 'Communication' was included as a competency for the post in the role profile drawn up by Mr. Mc N on 29 March 2004, candidates were not assessed under that criterion. I note that the feedback notes in respect of Mr. P state:
"In general, found that [Mr. P] needs to be more succinct in his answering and communication and be clear about what message he wishes to deliver and why. Found that some responses were difficult to follow and didn't fully address the question being asked.
Carrying this into the new role, [Mr. P] will need to develop his skills and abilities in this area as the expectation both internally and externally to demonstrate a clear and dynamic communication/influencing style will be heightened."
5.9 The notes in respect of the complainant's feedback state "....., while we felt the presentation was well constructed and delivered, we felt that Siobhan didn't perform as strongly at interview." It further states "Siobhan focused throughout the interview on the 'what' while the question was on the 'how' (e.g. MI report rather than building a link for why it was needed and how this addressed that need)." I note that on Mr. Mc N's notes for Mr. P, it is recorded at the end of the marking sheet in relation to his presentation as follows: "..., good ideas about the 'what' but would need direction on the 'how'." The Role Profile drawn up by Mr. Mc N for the post of Sales Support Manager details the qualifications required, however, it is not possible for me to assess the complainant's qualifications vis a vis Mr. P as it does not appear that a CV was in fact submitted with his application form notwithstanding that the application form requests that the form and full CV be forwarded to Human Resources.
5.10 The complainant submitted that at a meeting in February 2004, the Managing Director, Mr. W advised the meeting that he had been informed of the complainant's pregnancy and that given the situation, there was a need to "put the cart before the horse and get this unit up and running." It is not in dispute that Mr. W referred to the complainant's pregnancy at a meeting in relation to the sales support unit. The respondent submits that Mr. W used the announcement of the complainant's pregnancy to encourage the project's stakeholders to work quickly to determine the sales support requirements so as the process could be completed before the commencement of the complainant's maternity leave.
5.11 In the case of The Rotunda Hospital & anor v. Dr. Noreen Gleeson (2), the Labour Court in determining whether the burden of proof had shifted referred inter alia to the following:
"2. .... the successful candidate was allowed to submit his amended Curriculum Vitae after the closing date for submission of applications.
4.One of the interviewers stated that the appellant's major career development appeared to have occurred during the years when she had her babies. This remark, whether intended as complimentary or not, clearly identifies the appellant by reason of her sex and could give rise to a prima facie finding of discrimination."
The Court went on to hold that the complainant in that case had established a prima facie case of discrimination on the gender ground and the onus then fell to the respondents to justify their decision.
The Labour Court has also stated:
"A failure to keep records of the interview process, which of itself may not be discriminatory, when coupled with other factors , may lead a Court to infer that there has been discrimination." (3)
In the same case, the Labour Court further stated:
"...., this Court has consistently stressed that interview boards, both internal and external, should be trained, and apply strict promotion criteria agreed in advance with adequate markings and should keep comprehensive interview notes." (4)
5.12 In this case,
(i) Mr. P's application was submitted late following consultation with the Managing Director in relation to his proposal;.
(ii) the claimant's pregnancy was referred to by the Managing Director at a meeting in relation to the development of the sales strategy clearly identifying the complainant by reason of her gender;
(iii) the successful male candidate did not submit a CV with his application;
(iv) there was a lack of transparency regarding assessment of the successful candidate's on the job performance;
(v) the post in respect of which recruitment was taking place changed during the process from Sales Support Manager to Technical and Sales Support Manager on foot of a proposal from the successful male candidate;
(vi) there was inconsistent evidence in relation to when the nature of the post changed;
(vii) one of the marking sheets for the complainant is missing;
(viii) there was a mismatch between the competencies in the role profile form and assessment criteria applied in practice;
Taking into account the above factors, I find that the complainant has established a prima facie case of discrimination on the gender ground which the respondent has failed to rebut. I therefore find, on the balance of probabilities that the respondent discriminated against the complainant in relation to promotion to the post of Sales Support Manager.
Sales Support and Technical Manager post in August 2004
5.13 On 23 August 2004, Ms. B e-mailed the complainant to advise her of Mr. P's resignation. On 27 August 2004, Ms. B e-mailed the complainant stating "given that you weren't successful when you applied for the original role I'm not expecting that you will reapply." The complainant responded by e-mail to Ms. O on 3 September 2004. In that e-mail, she stated "I would appreciate it if you could forward to me the details of the recruitment process, as the assumption made that I would not reapply for the position is incorrect."
The qualifications required were substantially higher relative to the post of Sales Support Manager and effectively ruled the complainant out. Whilst the statement by Ms. B was inappropriate, I find that there is insufficient evidence to substantiate the complainant's claim that the statement was discriminatory on the gender ground. I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in relation to the post.
Referral to an independent doctor
5.14 The complainant submits that she was referred to an independent doctor once she had accumulated three weeks sick leave and previously had no history of illness. She claims that she was therefore treated differently to male colleagues who were not referred within such a timeframe. The respondent did not accept that the complainant was treated any differently than the respondent's male employees in this regard. The respondent provided information in relation to the sick leave of three females other than the complainant who were referred to the company doctor and also two males who were referred. The information provided indicates that one female (Ms. B) was referred after approximately 15 days absence. The information also shows that a male (Mr. G) was referred after approximately 38 days illness in 2005, however, that person was also referred in May 2005 whilst actually at work. The complainant submitted that there were also disciplinary issues with that particular person. The other male employee was referred after approximately 49 days cumulative illness. According to the respondent's records, at the time that the complainant was referred, she had approximately 63 days sick leave. The complainant submitted that from her due date of return to work (4 January 2005) to the date she was referred, she had been off work for only 15 days. She submits that her previous certified absence in May/June 2004 was primarily, although not exclusively, related to her pregnancy and immediately preceded her maternity leave. Based on the evidence made available from the respondent, I am unable to find that the complainant was treated less favourably than male employees with regard to her referral to the company doctor.
5.15 In relation to the actual process following referral, the doctor to whom the complainant was initially referred was asked by the complainant in writing by letter dated 3 November 2005 if he still considered it appropriate to act as the medical advisor in her case arising from their consultation on 1 November 2005 as she had issues in relation to the independence of the medical examination. Dr. W who had also assessed the complainant in February 2005 withdrew from the case and Dr. A was then requested by the respondent to carry out a medical assessment of the complainant which took place on 29 December 2005. Ms. O of the respondent's HR Department raised specific queries with the doctor in writing which he responded to in writing. At the end of his report, he concluded that the complainant's absence from work up to spring 2005 was due to her work situation but that since then she has developed a Post Traumatic Stress Disorder with full blown Endogenous Depression and Pathological Anxiety. At the end of his report, he states that he is basing his opinions on an introductory e-mail and telephone conversation with Ms. O and a single but lengthy/comprehensive consultation with the complainant.
5.16 Dr. A subsequently had a meeting with Ms. O and writes on 1 February 2006 in an Addendum to the Medical Assessment Report of his consultation with the complainant that he asked to meet with Ms. O to discuss some of the allegations made by the complainant at the consultation on 29 December 2005. He states "Ms. O was genuinely quite shocked at the allegations and was able to immediately refute many if not all of same; she had documentary evidence on file contradicting many of the allegations and offered to provide more. ......Therefore, until the matter is further clarified, as I suspect will be necessary in a court of law, I feel it is only fair to withdraw my conclusion that her current Depression and Anxiety is 'Post Traumatic' in nature. I would still maintain that Siobhan is suffering from Depression and Anxiety but it must be idiopathic, or could be labelled delayed Post Natal Depression." I consider that there are questions raised about the independence of such a report which is not based on an assessment of the complainant from a medical point of view but also based on a conversation with the referring HR person. I further consider that there are issues about whether the behaviour of the HR person and the doctor in their respective roles was appropriate and whether verbal communication is appropriate in such circumstances. I note that the first Occupational Therapist to whom the complainant was referred confirmed in a letter to the complainant dated 7 November 2005 that he had received no verbal communication regarding her case from the respondent.
Application for permanent health insurance
5.17 The complainant submitted an application for permanent health insurance under the Company's Personal Health Insurance Scheme. She was advised that she did not qualify under the Scheme for any benefits and by reason of her absence was no longer a member of the Scheme. She submitted that she believed that previous male applicants had been treated differently. At the hearing, the respondent submitted that the complainant was the first applicant under the scheme. At the hearing, I requested a copy of the application that was submitted by the company in respect of the complainant's application on 14 October 2005. A copy of the form was received on 25 October 2006. I note at the end of the application which was made by Ms. O under the heading of 'Other', it is stated: "Ms. Jones has submitted a claim of gender discrimination with the Equality Tribunal in January 2005; this case has not yet been allocated a hearing date. The employer denies the claim and will be defending its position at the Tribunal hearing." Hibernian Insurance responded by letter to Ms. O dated 23 January 2006 stating that: "The claim is denied. We have no liability in this case because there is no evidence that this employee was unable to work as a result of illness since 4 January 2005 had employment issues not been present." The company doctor's initial report on reviewing the complainant on 29 December 2005 was that up to spring 2005, the complainant's absence from work was due to ongoing "HR/work positioning/hassle" but that since then she had developed a Post Traumatic Stress Disorder with full blown Endogenous Depression and Pathological Anxiety. However a few days after Hibernian declined the complainant's claim for income continuance, the company doctor withdrew his conclusion that the complainant's depression and anxiety was post traumatic arising from her workplace and considered that it was idiopathic or could be labelled post natal depression.
5.18 As it was unclear as to the relevance of this information regarding the complainant's claim before the Tribunal on the application form, the respondent was advised by the Equality Officer by letter dated 9 November 2006 that the comments on the application for income continuance were being considered in the context of a victimisation claim within the meaning of section 74(2) of the Acts and clarification was sought on the matter. The respondent submitted that it was important that the PHI provider be properly briefed in relation to the entire circumstances surrounding the employee's absence from work and that it was in that context that the information was provided. I do not consider that there was any adequate justification or that the reason submitted by the respondent amounted to adequate justification for the inclusion of the statement on the application for income continuance. In the circumstances, I find that the complainant has established a prima facie case of victimisation in relation to the application for income continuance made by the respondent on her behalf.
5.19 In relation to whether the medical report arising from the consultation with the complainant on 29 December 2005 was provided to Hibernian, the respondent confirmed that it was forwarded on 3 January 2006. It also submitted that a copy of the Addendum dated 1 February 2006 was also submitted to Hibernian on 1 February 2006. It further submitted that Hibernian acknowledged receipt thereof and stated that it had no bearing on their decision and that their position was as per their letter of 23 January 2006. I am unclear how Hibernian came to that conclusion given that their initial refusal to provide income continuance was on the basis that there was no evidence that the complainant was unable to work had employment issues not been present. The addendum to the medical report dated 1 February withdraws the conclusion that the complainant's illness was post traumatic arising from the situation in her workplace and in the context of this, it would seem that the reason for the refusal no longer applied. It was not submitted by the respondent that it raised further queries with Hibernian in relation to its continuing refusal to provide cover in the light of the revised medical report.
5.20 In awarding redress for victimisation, I will have regard to the serious nature of victimisation in the context of its ability to undermine the effectiveness of the Equality legislation.
Downgrading of the complainant's position
5.21 The complainant submitted that following her non-appointment to the post of Sales Support Manager in respect of which she applied, her role of Business Development Executive was downgraded and diminished. At the hearing, she gave evidence that she considered the role was downgraded as in relation to both posts which she was offered, she would not report to Managerial level where previously she would have reported to Director Level. She submitted that the key accountabilities were diminished and most were given to the Sales and Technical Support Managerial role. On 10 January 2005, Ms. O of HR clarified for the complainant that she had two options as follows:
- Move to the role of Sales Support Consultant and report to the Technical and Sales Support Manager with a 6% increase on her then salary.
- Revert to the role of Sales Support Assistant and report to the Sales Support Consultant on the same salary.
5.22 The complainant submitted at the hearing that the role of Sales Support Assistant was to provide quotes and deal with all follow up enquiries comprising mainly telephone duties and I note that in her e-mail, Ms. O used the word 'revert' when referring to the role of Sales Support Assistant. Certainly, it does not appear to me that the post of Sales Support Assistant was an equivalent role for the complainant both in terms of the duties and reporting structure. In relation to the role of Sales Support Consultant, a Role Profile for the post which was drawn up on 16 December 2004 states that the essential qualifications required for the post are Leaving Certificate, FPC1, 2 & 3 and a commitment to continue additional industry qualifications e.g. G10. The complainant at the time was FPC 1 qualified and was working towards FPC 2. It does not appear that the complainant's commitment to continue additional industry qualifications which was also essential for the post was ascertained by the respondent. In circumstances whereby FPC 1, 2, and 3 were essential requirements for the post for Sales Support Consultant, I do not consider that it was an appropriate role for the complainant and I also question the merits from the respondent's point of view to offer someone a post for which they are clearly not qualified. I find that the complainant was discriminated against on the gender ground in relation to the posts she was offered following her return from maternity leave. Of course, there is also an entitlement to return to suitable alternative work at the expiration of maternity leave in accordance with section 27 of the Maternity Protection Act, 1994 as amended.
5.23 In the case of Charles Shinkwin v. Donna Millett (5), the Labour Court stated:
"..... in a modern employment relationship, employees are entitled to expect that they will be treated with respect during the course of their employment. Employees generally, and pregnant employees in particular, are also entitled to expect that they will not be subjected to conduct which exposes them to physical or psychiatric injury including stress related sequelae. .....
It is now well settled that the quantum of an award for discrimination must not only compensate for economic loss but must also be proportionate to the wrong suffered and dissuasive of future infractions."
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to promotion and her conditions of employment. I also find that the complainant was victimised within the meaning of section 74(2) of the Acts.
6.2 In accordance with section 82 of the Employment Equality Acts 1998, I hereby order that the respondent:
(i) pay the complainant the sum of €20,000.00 compensation for the effects of the act of discrimination. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination in her employment and does not include any element relating to remuneration;
(ii) pay the complainant the sum of €10,000.00 compensation for the effects of the act of victimisation. This figure represents compensation for infringement of her rights under equality legislation in relation to victimisation by her employer and does not include any element relating to remuneration;
(iii) pay the complainant interest at the Courts Act rate in respect of the amount of the compensation referred to at paragraph (i) above in respect of the period beginning on 16 December 2004 being the date of referral of the claim to the Tribunal and ending on the date of payment;
(iv) review the process of referring an employee to the company doctor, in particular, the use of oral communications, to ensure that the integrity of the process is protected;
(v) specifically request Hibernian to review the complainant's application for income continuance in the light of the revised medical report dated 1 February 2006.
__________________
Mary Rogerson
Equality Officer
12 December 2006
notes
(1) ADE/03/15 Determination No. 0412 27 July 2004
(2) AEE/99/9 Determination No: DEE003 18 April 2000
(3) The Department of Health and Children v. John Gillen EDA0412 27 July 2004
(4) Department of Health & Children v. Gillen EDA0412 27 July 2004
(5) ED/03/33 Determination No. EED044 16 February 2004