EDA066

Background

Ms Marian Cassidy (the Complainant) commenced employment with Citigroup (the Respondent) in or about January 1999. She was initially employed as a Credit Analyst and was later promoted to the post of Senior Service Representative in the Respondent’s Trustee Department. The Complainant contends that the Respondent discriminated against her on grounds of her age when she was treated less favourably than her younger colleagues in not being promoted to the post of Specialist in the department in which she worked. The Complainant further contends that she was excluded from a social function associated with her employment to which her younger colleagues were invited.

The Complainant referred these and other associated complaints to the Equality Tribunal pursuant to Section 77 of the Employment Equality Act 1998 (the Act). Having investigated these complaints the Equality Officer found that the Complainant had not been discriminated against as alleged. The Complainant appealed to this Court.

Position of the parties.

Both parties made written submissions to the Court. The Court also heard oral evidence from a number of witnesses.

The Complainant’s case.

In summary the Complainant’s case is as follows:

The Complainant told the Court that after she joined the Respondent’s Trustee Department in April 2001, as a Trust Analyst, which was a training grade, she applied for an advertised position of Trust Officer in late 2001, and was unsuccessful. She then undertook a course of work related study and attained relevant qualifications. She felt that having done so her prospects of advancement would have been enhanced. A new manager, Ms Emerson, was appointed to the Trustee Department with whom the Complainant experienced some difficulties. The Complainant was aged 40 at the material time. She contended that this manager was less personable towards her than she was to her younger colleagues.

The Complainant told the Court that in or about December 2002 a vacancy for a specialist position again arose in the department in which she worked. The Complainant applied for this post by e-mail. In line with normal practice within the organisation the Complainant sought to discuss her application with a senior manager. As her immediate manager, Ms Emerson, was on leave at the time the Complainant arranged a meeting with a Senior Vice-President, Ms O’Hehir, for this purpose. This meeting was subsequently cancelled at short notice and without explanation. The Complainant said that she heard nothing further about this vacancy until the following February when she became aware that two younger colleagues were promoted to the position for which she had applied.

The Complainant said that her annual appraisal for the year 2002, which was undertaken by her manager, rated her performance "inconsistent". This, the Complainant said, amounted to unsatisfactory performance. She did not accept that such a rating was warranted and believed that it was contrived to justify the Respondent’s refusal to promote her. The Complainant contended that Ms Emerson had sought to justify her negative appraisal by reference to absences during the year which related to periods of certified sick-leave which she was forced to take.

The Complainant told the Court that in respect of this and other matters she invoked the internal grievance procedure and referred her complaints to the Senior Vice President for Human Resources, Ms Ronan. A meeting was subsequently arranged with Ms Ronan and Ms O’Hehir to discuss her grievance. The Complainant was dissatisfied with the outcome of the investigation which, in her belief, did not uphold her complaints. She initially instigated an appeal against the outcome of the investigation but later withdrew the appeal.

By way of an example of the less favourable treatment to which she was allegedly subjected, the Complainant told the Court that a younger named colleague was advised by a senior manager of the questions likely to be asked at an interview for a promotion to manager level, for which that younger colleague had applied. The Complainant told the Court that she had been given this information by the person in question in confidence. The person was subsequently appointed to the post in question.

By way of further example, the Complainant told the Court that on completion of a particular project within the Department, on which she had worked, a social occasion was organised for those involved. While her younger colleagues were invited to this event, the Complainant was excluded.

The Complainant contends that the Respondent pursues a policy or practice of preferring younger employees. In support of this contention the Court was referred to a report of an interview with the President of the Respondent contained in a trade magazine and in a newspaper. The interviewee was reported as having said, inter alia:

• "Attracting more bright young people into banking is an issue close to the new presidents heart ".........." I have seen no other location, other than London or Frankfort with a banking industry as robust, diverse and exciting for young people as that in Ireland."

The Respondent Case

In summary the Respondent’s case is as follows:

The Respondent’s case amounted to a traverse of the Complainant’s allegations. In evidence, the witnesses for the Respondent told the Court that promotion within the organisation was based on performance assessment alone. The Respondent contends that at the time material to her claim Complainant’s assessment was not sufficient to warrant promotion. This, they told the Court, was the sole reason why the Complainant was not promoted.

The Respondent accepts that those appointed to the disputed promotional positions are younger than the Complainant. It was, however, pointed out that these individuals were assessed as being “top performer” and “strong performer” respectively, which was a significantly higher ranking as that achieved by the Complainant.

Ms Emerson, who was the Manager of the Trustee Department at the material time gave evidence in relation to the basis upon which she assessed the Complainant’s performance in respect of the year 2002. Having explained the criteria against which the Complainant was assessed she told the Court that her approach in the case of the Complainant was the same as that used in the case of all other employees for whom she was responsible.

Ms Emerson told the Court in evidence that she had assessed the Complainant’s performance by applying the criteria normally applied for this purpose. She said that she regarded the Complainant’s performance in the relevant period as deficient in a number of respects and this was reflected in the rating of inconsistent performer which she gave to the Complainant. The witness told the Court that she assessed the performance of the employees who were promoted by the same standards and they received a rating significantly above that of the Complainant. Ms Emerson accepted that she did not posses the same level of experience in the Trust area as the Complainant and that she had received training in the functions of the Department. She told the Court, however, that her appointment was subject to approval by the Financial Regulator. This approval had been given.

Ms Emerson also explained the circumstances surrounding the issuing of invitations to the social event to which the Complainant referred in her direct evidence. The witness told the Court that a client for which a project had been successfully completed proposed to host the event and had assigned a limited number of invitations to her for distribution amongst those involved in the project. According to Ms Emerson there were not enough invitations to accommodate all of those who had participated in the project and she allocated them according the degree of involvement which employees had with project. The witness denied that the Respondent had a policy or practice of age discrimination. She told the Court that she would not distinguish between employees by reference to their age and would regard any such practice as unacceptable.

Ms O’Hehir gave evidence in relation to the meeting which had been arranged with the Complainant in relation to her application and which had been cancelled at short notice. This witness told the Court that she had to leave the country at short notice in relation to a private matter and had no choice but to cancel the meeting. On her return she forgot about the matter. She later apologised to the Complainant on a number of occasions for this omission. The witness told the Court that she had never experienced any preferment of younger employees over others. In her own case she had last been promoted while in her late thirties.

Ms O’Hehir recalled meeting with the Complainant together with Ms Ronan to discuss her referred grievance. She said that as a result of their discussions the Complainant’s assessment had been upgraded to consistent performer which entitled her to a pay increase.

Ms Ronan gave evidence which corroborated that given by Ms O’Hehir in relation to the criteria for promotion and in relation to the meeting with the Complainant held pursuant to the grievance procedure. This witness also told the Court that she was not in a position to produce precise statistics in relation to the age profile of the Respondent’s employees. She did, however, suggest that the average age of employees in categories other than senior management was in the mid thirties. This witness also denied that the Respondent was in any sense biased in favour of younger employees.

Evidence was also received from the relevant parties in contradiction of the Complainant’s allegation that a younger colleague had been prompted in relation to a job interview.

Conclusions of the Court.

It is well settled that in all cases alleging discrimination the Complainant must first prove the primary facts upon which their case is grounded. If these facts are proved, and if the Court regards them as being of sufficient significance to raise an inference of discrimination the onus of proving the contrary shifts to the Respondent. If a Complainant does not prove the primary facts upon which they rely, or if those facts are insufficient to raise an inference of discrimination, the claim cannot succeed.

In this case the primary facts relied upon are: -

� The preferment of the Complainant’s younger colleagues for promotion,

� The exclusion of the Complainant from the social event to mark the completion of a project,

� The putative preference of the President of the Respondent for younger employees.

Each of these facets was considered in turn.

The promotions.

The mere fact that two younger employees were promoted in preference to the Complainant could not in itself constitute a basis upon which discrimination on the age ground could be inferred. It would be necessary to show that the Complainant was better qualified or met the criteria for promotions to a greater degree that the younger successful candidates. In that regard it is normally for the employer to determine the qualification or other criteria for promotions. The Court could only intervene if the qualifications or criteria selected were such as to be either directly or indirectly discriminatory.

In this instance the criteria for promotion was the rating achieved in the performance appraisal. It is clear that those promoted received a significantly higher rating than that of the Complainant. There is no viable evidence which could indicate that the appraisals were in any way tainted by discrimination of the age ground.

The Court has also considered the Complainant’s allegation that a younger colleague was prompted in preparing for a promotional interview. While the Complainant’s evidence in this matter did not relate directly to the promotional posts at issue, it was put forward as an indication of a propensity by the Respondent to prefer younger candidates for promotion. The Court heard rebuttal evidence from those allegedly involved in this matter. Having evaluated this evidence the Court is not convinced that he Complainant recollection of this event is correct.

Having regard to all of the surrounding circumstances the Court cannot accept that the Complainant’s failure to attain promotion is a fact from which discrimination on grounds of age could be inferred.

The social event

While the Court can understand why the Complainant believed that she had been unfairly excluded from this event. However, when view in context that omission could not be regarded as of sufficient significance to infer a discriminatory disposition on the part of the Respondent.

Remarks attributed to the President of the Respondent

In the Court’s view the language used in the article to which the Court was referred was inappropriate and could be understood as evincing a preference for younger employees. However, in the absence of any discernable connection between the imputed views of the President and the practices and policies of the Respondent, this is not a matter which would be sufficient in and of itself to avail the Complainant in establishing a prima facie case of discrimination.

Determination

For all of the foregoing reasons the Court is not satisfied that the Complainant has established facts from which it could be inferred that she was discriminated against on the age ground. Accordingly she cannot succeed.

It is the determination of the Court that he complaint herein is not well founded and that the Respondent did not discriminate against the Complainant on grounds of her age. The appeal is disallowed and the Decision of the Equality Officer is affirmed.





Signed on behalf of the Labour Court



Kevin Duffy
15th May 2006______________________
JO'CChairman



NOTE

Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.