DEC-E2005-020 Full Case Report.

Devereux (represented by SIPTU) -v- Bausch & Lomb (represented by IBEC)

1. CLAIM
   1. The case concerns a claim by Ms. Rosaleen Devereux that Bausch & Lomb, Waterford, directly 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 the selection process for appointment to the Stand-In Process Trainer post. She also claims that she was victimised within the meaning of section 74(2) of the Act following her complaint of sexual harassment to management.
      
2. BACKGROUND
   1. In January 2003, the complainant applied for the position of Stand-In Process Trainer which was a promotional opportunity. The complainant submits that she had completed all the necessary training, was proficient in computers having obtained an ECDL qualification and she believed that she was well placed to compete for the position. No interview process was undertaken within the company and the complainant was unsuccessful. The complainant alleges that she approached the relevant supervisor and asked why she had been unsuccessful and was told that the reason was “You’ve been out so long on maternity leave.” The respondent submits that whilst Ms. G may have said to the complainant that while she was out of work for some time and needed retraining, she had not spoken to the Production Manager as to why another female had been appointed. The respondent denies the complainant’s claim of discrimination. The complainant also claims that she was victimised which is denied by the respondent.
   2. The complainant referred a complaint under the Employment Equality Act, 1998 to the Director of Equality Investigations on 13 June 2003. On 26 January 2004, in accordance with her powers under section 75 of the 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 8 March 2004 and from the respondent on 21 May 2004. A submission in respect of victimisation was received from the complainant on 4 August 2004 and from the respondent on 27 August 2004. A joint hearing of the claim was held on 24 January 2005. Material requested at the hearing was provided by the respondent on 7 March 2005.
      
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
   1. The complainant is employed on the week-end shift with the respondent company completing a two-shift 24 hour cycle and is currently employed as a Grade 3 dial pack operator. She submits that she was discriminated against on the gender ground in contravention of the Employment Equality Act, 1998 in relation to her terms and conditions of employment.
   2. In January 2003, the complainant applied for the position of Grade 4 Stand-In Process Trainer which was a promotional opportunity and 4/5 people applied for the position. The complainant had completed all the necessary training, was proficient in computers having obtained an ECDL qualification and she believed that she was well placed to compete for the position. However, there was no interview process undertaken and instead a person was appointed. The complainant received a letter informing her that she was unsuccessful.
   3. The Company/Union agreement in relation to promotion states that promotions are at the discretion of the company and subject to the candidate’s availability and suitability for the position. The complainant approached the relevant supervisor and asked why she had been unsuccessful. The reason given was “You’ve been out so long on maternity leave.” The complainant sought clarification of the matter and was told again that it was due to her absence on maternity leave. She was offered no other explanation. Immediately after the conversation, the complainant reported the matter to her Union representative who addressed the issue through the company’s grievance procedure.
   4. The complainant believes than the respondent realised their breach of the Employment Equality Act, 1998 as shortly after the grievance procedure was commenced, she was offered a Grade 3 Stand-In position as QA by the company which she accepted. The position had no effect on the complainant’s pay but was an opportunity to increase her ability and knowledge levels. However, within 3 weeks, the job was advertised and the complainant had to remind the supervisor that the job had already been given to her.
   5. Frustrations were reached at local level and the Union wrote to the respondent on 15 April 2003 seeking a meeting with them to discuss the issue. The respondent responded on 24 April 2003 seeking a written statement from the complainant. The complainant submitted a written statement on 12 June 2003. The respondent sought a meeting with the complainant and attempted to address the situation in the following manner:
      • They offered her a Grade 4 position for twelve months, however, she would have to be tested at the end of the period;
      • They offered her compensation of €7,774 but acceptance would have the effect of terminating her employment. This figure was based on €1300 by 3 years which was the annual difference between Grade 3 and Grade 4 plus one months pay.
   6. The complainant submits that neither option was acceptable and that option 2 has made matters decidedly worse. The effects of the discriminatory act have caused the complainant to suffer substantial loss of earnings, approximately €1300 per annum. The complainant has applied for other promotional opportunities and has been unsuccessful. She believes that she is not valued in the company and that her future promotional opportunities are limited. The complainant believes that she has been discriminated against on the gender ground.
   7. The complainant submits that she was victimised as a result of a complaint of sexual harassment made by her and another employee. Her complaint was dealt with by the Anti-Bullying Centre in Trinity College and recommendations were issued. The complainant is pursuing the matter through the civil courts with her legal representatives. She believes that since she made the complaint and the resulting investigation, the respondent has sought to sideline her and make her progress in the company impossible. Prior to the incident, she had been trained on three jobs and was progressing steadily. After the incident, her progress declined.
      
4. SUMMARY OF THE RESPONDENT ’S SUBMISSION
   1. The complainant works as a General Operative at week-ends only. She has worked for a number of years with the company and has experience working in a number of jobs – dial pack operator, blister packaging and as a line operator.
   2. A number of posts were advertised in January 2003 including that of QA Operator and Stand-In Process Trainer. There were no interviews in relation to the filling of any of the posts. The complainant applied for both jobs. A decision on the successful applicants was made on 27 January 2003 by the RP111 Production Manager. The complainant was offered the post of Stand-In QA Operator. She was offered the post because she had a lot of experience working at different jobs on the line. However, the complainant is alleging that her failure to be appointed to the post of Stand-In Process Trainer was discrimination on the grounds of her gender. The respondent rejects her claim.
   3. In relation to the post of Stand-In Process Trainer, there were five applicants for the post – four females and one male. The Stand-In Process Trainer covers for the Process Trainer and gets paid the Process Trainer rate whenever they work as Process Trainer. One of the females was the successful applicant. An overview of the duties of the post and the essential and desirable criteria for the post were set out in a copy of the job advertisement. The RP111 Production Manager (Mr. N) was the person who decided who should get the post. His e-mail to the other managers confirms this. He knew all of the candidates as he had been the Production Manager in the area for a number of years. Mr. N was in the process of leaving his position and made his decision in relation to the filling of all of the four posts available. Mr. N was replaced by Ms. G on 1 February 2003. Ms. G had no input in the decisions on the appointments to any of the jobs advertised as she did not know all of the applicants. Although Mr. N made the decisions on the appointments, Ms. G would have informed the people of the outcome of the competitions. This occurred because by then, Mr. N had left his position and was replaced by Ms. G.
   4. An outline of the criteria for the job and the duties involved in the post is contained in the job advertisement. The successful applicant for the post of Stand-In Process Trainer was working as a job demonstrator. The successful applicant, (Ms. C) had been in the role of job demonstrator for over twelve months. Thus, she had the experience of training people, experience of doing the paperwork involved in doing training, experience of how to deal with people who have a particular problem in some aspect of the job and so on. When one looks at the essential and desirable criteria as well as the duties of the post of Stand-In Process Trainer, then it is clear that someone in the role of job demonstrator would have had more experience than any of the applicants who had not been in such a role. The male applicant also had experience of working as a job demonstrator and he and Ms. C were deemed to be the strongest candidates for the job given their previous experience
   5. Ms. G had just been promoted to the post of Manager in the Process 1 area at the beginning of February 2003. She did not know all of the candidates who applied for the post and thus did not make the decision on the applicant to be appointed. Ms. G did not know the reason why the complainant was not successful. The complainant was in fact appointed to the post of stand-In QA Auditor on the same day that she was unsuccessful in her application for Stand-In Process Trainer. At that time, the complainant’s maternity leave had been completed some three months earlier.
   6. The complainant approached Ms G to ask why she did not get the position of Stand-In Process Trainer. Whilst Ms. G may have said to the complainant that she was out of work for some time (however, maternity leave was not referred to by Ms. G) and needed retaining (all operators are required to undergo retraining if absent for more than six weeks), Ms. G had never spoken to Mr. N as to why Ms. C had got the job in preference to the complainant. Ms. G had forgotten that the complainant was offered the job of Stand-In QA Auditor and therefore, it is obviously inconsistent to refer to her absence from work and that fact that she needed retraining.
   7. The complainant was immediately absent prior to her going on maternity leave. She was absent from Saturday 4 May 2002 and she did not return to work prior to commencing maternity leave on Saturday, 15 June 2002. The complainant’s maternity leave finished on 13 October 2002. She was absent due to illness on the following week-end and returned to work on 26 October 2002.
   8. The complainant made a complaint to the HR Department concerning her failure to be appointed to the post of Stand-In Process Trainer. An attempt was made to resolve the issue by offering the complainant an opportunity to be trained in the job and to be appointed to the post along with Ms. C if she was deemed after training to be suitable for the post. The complainant rejected the offer and requested a package to leave the company’s employment. She was offered the standard disengagement package in the company. This is not a redundancy payment (as the complainant’s job would not have been redundant) but is a payment available to any staff member voluntarily leaving the company’s employment. The complainant was offered in excess of the standard package. The offer of such a payment cannot be seen as indicating that the company believed it had some liability in this case.
   9. It is not correct to state that the complainant was offered a Grade 3 Stand-In position (that of Stand-in QA Auditor) after the complainant’s Union representative raised her grievance of failing to be appointed to the post of Stand-In Process Trainer. As can be seen in the e-mail from Mr. N to Ms. G and others, the decision to offer the complainant the post of Stand-In QA Auditor was made on the same day as the decision on the appointment of the Stand-In Process Trainer. No meeting in relation to the complainant’s grievance took place until she became aware that she was unsuccessful for the post of Stand-In Process Trainer. This decision was communicated to her on 31 January 2003. The decision to appoint her to the post of Stand-In QA Auditor had already been taken prior to any complaint being made by the complainant in relation to her failure to be appointed to the post of Stand-In Process Trainer.
   10. The company rejects that the complainant was discriminated against on the ground her gender when she was not appointed the post of Stand-In Process Trainer. The female appointed had more relevant experience than the complainant. The fact that the complainant had been on maternity leave had no bearing on the failure of the complainant to be appointed to the post. The complainant was appointed to one of the posts filled in January 2003 and given that the same person made the decision on who to appoint to the various jobs advertised in January 2003, then clearly maternity leave could not have been a factor in deciding successful candidates.
   11. The respondent rejects the complainant’s claim that she was victimised in breach of equality legislation.
       
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. In this case, the complainant alleges that the respondent directly discriminated against her on the gender ground in relation to promotion to the post of Grade 4 Stand-In Process Trainer. 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 Act, 1998 and in contravention of section 8 of the Act. I will also consider whether the complainant was victimised within the meaning of section 74(2) of the Act following her complaint of sexual harassment to management. 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.
   2. Section 6(1) of the Employment Equality Act, 1998 provides that:
      
      “Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”
      
      Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
      
      (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
      
      
   3. The European Court of Justice in a case that dealt with a situation of a woman who was not appointed to a job because she was pregnant and would not therefore be available to start work when she was needed established a number of years ago that pregnancy related discrimination was direct discrimination on the grounds of sex. It stated:
      
      “…. only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy.”¹
      
      Subsequently in Webb² the Court held in a case which concerned the dismissal of a pregnant worker that:
      
      “….., dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed .”
   4. The European Court of Justice in CNAVTS –v- Thibault³ stated:
      
      “The principle of non-discrimination requires that a woman who continues to be bound to her employer by her contract of employment during maternity leave should not be deprived of the benefit of working conditions which apply to both men and women and are the result of that employment relationship. In circumstances such as those of this case, to deny a female employee the right to have her performance assessed annually would discriminate against her merely in her capacity as a worker because, if she had not been pregnant and had not taken the maternity leave to which she was entitled, she would have been assessed for the year in question and could therefore have qualified for promotion. ……
      
      It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance, and, therefore, of the opportunity of qualifying for promotion as a result of absence on maternity leave, is discriminated against on grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directive.”
      
      
   Caselaw on establishing a prima facie case of discrimination
   1. Council Directive 97/80 EC on the Burden of Proof in Cases of Discrimination Based on Sex was transposed into Irish Law by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001. Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC provides:
      
      “Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove to the contrary.”
      
   2. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell⁴ considered Article 4 of the Directive and the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
      
      “.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
      
      The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
   3. More recently, the Labour Court has stated in a case concerning discrimination on the gender ground:
      
      “The correct test for deciding if the burden of proof shifts to the respondents in this case is that formulated by this Court in Southern Health Board v Dr. Teresa Mitchell.
      
      It is a matter for the complainant to prove on the balance of probabilities the primary facts on which she relies in making her case of discrimination. Then it is for the Court to decide if those facts are of sufficient significance to raise a presumption of discrimination. If the Court is so satisfied, the onus is then shifted to the respondents to prove that there has been no infringement of the principle of equal treatment⁵.”
   4. In the case of the Southern Health Board v. Dr. Teresa Mitchell⁶, the Labour Court referred to the Gleeson⁷case and stated: “In that case, the Court found five instances of unfairness in the selection process, the cumulative effect of which resulted in a prima facie finding of discrimination.” More recently, the Labour Court in the case of John Gillen v. The Department of Health and Children⁸ stated that in cases involving both the Equality Tribunal and the Labour Court, a number of tests have been used in considering whether to draw inferences of age discrimination. It referred, inter alia, to the following factors creating an inference of discrimination (i) a lack of transparency, or unexplained procedural unfairness and (ii) a mismatch between formal selection criteria and those apparently applied in practice.
   5. In a subsequent Labour Court case which considered discrimination on the gender and age grounds, the Court stated:
      
      “In order to shift the probative burden it is not necessary for the complainant to adduce direct evidence of discrimination on either the gender or age ground. ……. What the complainant must establish is a factual matrix from which the Court mayproperly draw an inference that discrimination has occurred. There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies. However, an inference of discrimination can arise where, for example, a less qualified man is appointed in preference to a more qualified woman (Wallace v. South Eastern Education and Library Board [1980] IRLR 193). It can also arise from an unexplained procedural unfairness in the selection process.⁹”
      
      The Court in that case went on to state:
      
      “As the Court has been unable to find any material unfairness or departure from good practice in the selection process, there is no basis upon which it could conclude that the decision of the Board not to appoint the complainant was irrational.”
   6. More recently, the Labour Court stated in a case concerning gender discrimination that a prima facie case of discrimination had been made out on the basis of the complainant’s superior qualifications and that the selection process used did not conform to the standard of best practice. It held:
      
      “Specifically, the use of assessments outside the interviews was lacking in transparency and Court cannot discount the possibility that subjective considerations might have entered the process. The failure of the respondent to retain interview notes constitutes a further departure from best practice which, combined with the other elements of the case, is supportive of the conclusion that a prima facie case of discrimination has been made out.”
      
      
   7. The respondent in this case advertised the position of Stand-In Process Trainer which was a Grade 4 position. The advertisement detailed the essential requirements and the desirable requirements of the post as follows:
      
      “ Essential
      
      Applicants must have the ability to communicate effectively. Shortlisted applicants will be required to undergo instructor test/mechanical tests.
      
      Desirable
      
      Applicants must demonstrate an ability to train or be developed to train in all aspects of the RPIII manufacturing Process. A training and development and/or technical qualification would be an advantage, as would a willingness to undertake such development supported by the Training and Manufacturing departments. A commitment to the teams program of the area and computer skills is desirable .”
      
      The duties of the post which related to training were also detailed.
   8. The complainant who was in a Grade 3 position applied for the post but was unsuccessful. She submits that she should have been appointed as she was the only person on the floor other than the Process Trainer with the three skills of blister inspection, dial pack operator and line operator. The complainant was appointed to the position of Stand-In QA Auditor, a position which had no effect on her pay. The respondent submits that the successful candidate was appointed as she had experience in the role of job demonstrator for over twelve months, that she had experience of training people, experience of doing the paperwork involved in training and experience of how to deal with people who have a particular problem in some aspect of the job. I note that the only essential requirement of the post as stated in the job advertisement was the ability to communicate. The advertisement stated that it was desirable that the applicant demonstrate an ability to train or be developed to train. At the hearing, the respondent submitted that four of the candidates had job demonstrator experience officially and that would have been reflected in their training records. It also submitted that the complainant may have had experience as a job demonstrator unofficially as it was not uncommon to ask other people to help out. By letter dated 28 April 2005, the respondent submitted a list of people who were job demonstrators in October 2002 which it sent to SIPTU at that time. It submitted that all of the applicants for the post other than the complainant are on the list.
   9. Interviews were not held for the position and one person, the RPIII Production Manager decided who should be appointed. At the hearing, he submitted that he did not interview for the post as the experience as a job demonstrator was sufficient for him to decide. Selection criteria were not drawn up and a marking scheme was not used. No notes were made during the selection process. I consider that selection criteria should always be drawn up taking into account the job specification prior to examining the applications for a post and it would have been prudent for the respondent to have applied this procedure. The Labour Court has 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 notes.”¹¹ The Labour Court has also emphasised the importance of keeping interview notes. It has stated:
      
      “A failure to keep records of interview processes, which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination.”¹²
   10. The complainant alleges that Ms. G, the person who replaced the RP111 Production Manager on 1 February 2003 stated to her that the reason she had been unsuccessful was because she had been out so long on maternity leave. The respondent submitted that “Whilst Ms. [G] may have said to the complainant that as she had been out of work for some time (however, maternity leave was not referred to by Ms. [G] and needed retraining (all operators are required to undergo retraining if absent for more than six weeks) Ms. [G] had never spoken to Mr. [N] as to why Ms.[C] had got the job in preference to the complainant.” At the hearing, Ms. G stated that she explained Mr. N’s decision to the complainant and explained what she wanted from her at that time. Ms. G submitted in oral evidence that the complainant’s training on the line was near completion and that she needed retraining on dial pack as she had been out of work for a length of time and she had not done the job for a while. I note that at the time that the decision in relation to the appointment was made, the complainant had been back in employment for three months.
   11. In the case in issue,
       1. interviews were not held;
       2. selection took place by one person only, there were no selection criteria, no marking system and no notes were made resulting in a selection process lacking in transparency;
       3. the complainant’s absence for some time was referred to when she sought a reason for her non-appointment and the absence in question was primarily due to maternity leave.
       On the basis of these factors and that the selection process fell short of the standards of transparency, objectivity, fairness and good practice that could reasonably be expected in the circumstances, I find, that the complainant has established a prima facie case of discrimination on the gender ground. I must now consider whether the respondent can rebut the complainant’s claim of discrimination.
   Rebuttal of the complainant’s claim
   1. In its written submission, the respondent was not specific in relation to the type of retraining required in respect of the complainant. At the hearing, the respondent submitted that at the time of the competition, the complainant had been offered retraining. I requested a copy of the training records for the complainant between the date of the complainant’s return to work and the competition in issue. By letter dated 28 April 2005, the respondent enclosed training records signed by the complainant between 1 November 2002 and 12 December 2002 in respect of Monomer Pump, P-Touch Label Printer, Spincast Operation on blister lines in RPIII, Lot Change Procedure for Spin/Lathe/Polish, RPIII blister/content Tub inspection at the Dial Packager, Hygiene Regulations, Control of Non-Conforming Materials, Mix Investigation, Completion of all official forms and EHS Quality Policy Statement. At the hearing, the complainant denied that she still needed retraining at that time and submitted that retraining on dial pack or the blister only takes a few hours and that she would have had to have been retrained before she would have been allowed back on the line. Her statement on this matter was not disputed by the respondent, however, it stated that retraining required by an employee to be up to speed was not recorded anywhere. If the complainant needed retraining to be able to carry out any of the jobs in question (dial pack operator, blister packaging and line operator), and was back in work for three months at the time of the competition, one can only assume that she must have been retrained on any particular job that she was carrying out. I am therefore not convinced that the reason that the complainant did not get the job was that she needed retraining and there is insufficient evidence to support the respondent’s contention in this matter.
   2. The RPIII Production Manager stated at the hearing that the factors he considered in the appointment of the successful candidate were (i) she had over twelve months job demonstrator experience, (ii) she had been a dial pack operator and (iii) he had worked closely with her during the twelve month period and he was aware how good she was and how she carried out her job during that time. He stated that her involvement in training during the twelve months would have benefited her. He submitted that he did not have the same involvement with the complainant in the previous year as she had been out for some time although he had worked with her prior to her going on maternity leave. According to the respondent’s written submission, the complainant had been absent the previous year from 4 May 2002 to 26 October 2002 which the complainant states was due to compassionate leave, sick leave and fourteen weeks maternity leave. The respondent subsequently submitted in writing that it does not keep a record of the reason for an absence. The manner in which the selection process was conducted could have allowed for the operation of subjective prejudices which may have prejudiced the selection process. Indeed, the evidence of the RP111 Production Manager that he took into account that he had worked closely with the successful candidate in the previous twelve months is evidence that a subjective assessment of candidates took place and the complainant was at a disadvantage as she had not been in employment for a period in the previous twelve months which was primarily due to maternity leave. Taking into account the evidence as a whole, on the balance of probabilities, I find that the respondent has failed to rebut the complainant’s claim of discrimination on the gender ground.
   Supplementary
   1. It may have been reasonable for the complainant to believe that she should have been the successful candidate in the light of her qualifications and experience. However, the Labour Court has stated:
      
      “It is not for this Court to substitute its own views as to whether the appellant was a suitable candidate for the position. It is for the appellant to establish facts from which it may be presumed that the decision was reached on the basis of discrimination……”¹³
      
      More recently again, the Court stated:
      
      “The Court accepts that it is not the responsibility of the Equality Officer or the Court to decide who is the most meritorious candidate for a position.”¹⁴
      
      It went on to hold that the function of the Court is to determine whether discriminatory grounds influenced the decision of the selection board. Accordingly, it is not my function to supersede the choice of candidate made by the respondent. My remit is to determine whether the selection process was conducted in a manner which was free from any form of unlawful discrimination.
   Claim of victimisation
   1. Section 74(2) of the Employment Equality Act, 1998 provides, inter alia, that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith –
      
      “(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment ,”
   2. I must consider whether the complainant in the present case has adduced evidence to show that she was penalised and also consider whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. The complainant made a complaint of sexual harassment by a colleague to management and the complaint was subsequently investigated by an investigator from the Anti-Bullying Centre in Trinity College. She submits that since she made the complaint and the resulting investigation and recommendation, the respondent has sought to sideline her and make her progress in the company impossible. Prior to the incident, she submits that she had been trained on three jobs and was progressing steadily. After the incident, her progress declined. In written response, the respondent stated that it rejected the complainant’s allegation that she had been victimised.
   3. At the hearing, the complainant submitted that in the two years leading up to her complaint, she received training on a number of jobs and as soon as she made her complaint, she was put back on dial package which is a floor job. She submitted that she progressed from Grade 1 to Grade 3 in less than two years. At the hearing, the respondent submitted that it could not address the victimisation issue as it was not given sufficient details. Subsequently, by letter dated 2 February 2005, the complainant submitted that she applied for the position of Stand-In Supervisor in January 2003, the same Stand-In position in July 2004, the position of Sterilisation in January 2003 and Stand-In Sterilisation at that time and she was unsuccessful in all applications. She has not submitted any further evidence in support of her claim of victimisation. Although the complainant in making her sexual harassment complaint sought to oppose by lawful means an act which is unlawful under the Employment Equality Act, 1998, she has adduced insufficient evidence in support of her claim of penalisation solely or mainly as a result of that claim. I therefore, find, that she has failed to establish a prima facie case of victimisation.
      
6. DECISION
   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 the selection process in relation to the post of Grade 4 Stand-In Process Trainer.
   2. On the basis of the foregoing, I find that the complainant has not established a prima facie case of victimisation contrary to section 74(2) of the Employment Equality Act, 1998.
   3. I hereby order that the first named respondent:
      1. pay to the complainant the sum of €5,000 compensation in respect of the act of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
      2. adhere to good practice selection procedures in all future promotions including establishing an interview board with an appropriate number of members, holding interviews, applying a marking system and making and retaining notes.

Mary Rogerson,
Equality Officer,
20 May 2005

¹Dekker v. Stichting Vormingscentrum Case C-177/88 ECR 1990 Page I-3941 para 12,
²Webb v. EMO Air Cargo (UK) Ltd Case C- 32/93 ECR 1994 page I-3567 para 27,
³ECR 1998 page I-2011 Case C-136/95 para 29,
⁴DEE011 15 February 2001,
⁵South Eastern Health Board v. Brigid Burke Determination No: EDA041 12 January 2004,
⁶Determination No. DEE011 15 February 2001
⁷Determination No. DEE003 18 April 2000,
⁸Determination No. 0412 27 July 2004,
⁹Director of Public Prosecutions v. Sheehan Determination No. EDA0416 14 December 2004,
¹⁰Tesco Ireland v. Kirwan Determination No. DEE05 23 December 2004,
¹¹The Department of Health & Children v. John Gillen EDA0412 27 July 2004,
¹²The Department of Health & Children v. John Gillen EDA0412 27 July 2004,
¹³University College Dublin v. Professor James Mc Kernan AEE/01/19 Determination No. 028,
¹⁴South Eastern Health Board v. Brigid Burke Determination No: EDA041 12 January 2004