Murray
(Represented by SIPTU)
AND
Boxmore Plastics Ltd
(Represented by IBEC)
1. DISPUTE
1.1 This dispute concerns a claim by Ms Mary Murray that she was discriminated against by Boxmore Plastics Ltd on the ground of gender, contrary to the provisions of the Employment Equality Acts 1998 to 2007, when she was unsuccessful in her application for the position of Group Leader.
1.2 On behalf of the complainant, SIPTU referred a claim to the Director of the Equality Tribunal on 30 November 2004 under the Employment Equality Acts 1998 to 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated the case on 5 May 2006 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought from the parties, and a joint hearing was held on 20 April 2007. Subsequent correspondence concluded on 1 June 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant says that she has been employed by the respondent company as a general operative since February 1997 and works in Group 4 (dairy) on a 5-day, 3-shift working week. In November 2003, the complainant says she replied to an internal advertisement for the position of Group Leader in Group 4, on the same working week. The complainant says she has an excellent work record and had six years' experience in the area, and that she had been encouraged to apply for the position by her Operations Manager.
2.2 The complainant says she was unsuccessful in obtaining the position, the successful candidate being a male, and she believes she was discriminated against on the ground of gender. She says she was deeply disappointed not to have obtained the position as she believes she was the most experienced candidate. She says the vacant position was within her area of work, and the successful candidate was a new employee employed on the weekend shift, with no experience of the complainant's area of work.
2.3 The complainant claims that management was streamlining the successful candidate, by affording him access to training courses which were not offered to the complainant. She alleges that the successful candidate was a close friend of the week-end manager. She asserts that she was asked to train the successful candidate after his appointment, demonstrating that he had less experience and knowledge than she had. The complainant submits that it would have been more rational to have filled the vacancy from the 5-day working applicants.
2.4 Following full consideration of the matter, the complainant says she decided to use the respondent's internal grievance procedure. This procedure was fully exhausted by the complainant, but her union says the respondent refused to alter its position and indeed threatened the complainant with disciplinary action. The union says it objected strongly to what it calls an "unwarranted threat" and says it concluded that this was designed to intimidate the complainant from pursuing her claim. The union submits that this is further proof of discrimination. On behalf of the complainant, the union seeks her appointment to the position of Group Leader, retrospective payment to the date of appointment and an additional monetary reward for the discrimination suffered.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that it discriminated against the complainant. The company manufactures a range of plastic packaging for clients ranging from local companies to global multinationals. The company employs approximately 180 general operatives, working on a 5-day, 3-shift week or a 2-day, 2-shift weekend. Production in the company is designated by groups: Group 1 is pharmaceuticals, Group 2 bottles, Group 3 large containers and Group 4 is dairy.
3.2 The respondent says that it advertised two vacancies in November 2003, seeking applications for Group Leader and Relief Group Leader in Group 4. There were six candidates, three male and three female. The respondent says a number of the candidates expressed an interest in the relief position, if unsuccessful in obtaining the permanent post, but the complainant was not interested in the relief position. The respondent says that at the time the successful candidate was appointed to the Group Leader post, two Relief Group Leaders (one male and one female) were also appointed.
3.3 The respondent says that a job description was drawn up for the position, and was provided to each candidate together with applicant criteria. Each interviewer was supplied with the applicant criteria and a standardised list of questions. Immediately after each interview, the candidate was rated on a score sheet setting out the criteria to be assessed. The respondent says that the complainant was placed fourth on the panel, and was notified in early February 2004 that she had been unsuccessful. The respondent says the complainant lodged an internal grievance on 17 June 2004, in accordance with company procedures. It says that it investigated and responded fully at each stage of the process, and was satisfied that the most suitable candidate had been appointed.
3.4 The respondent agrees that the complainant had longer service than the successful candidate. It says, however, that he was not a "new" employee, having commenced work in May 2001, and having worked as Relief Group Leader on the weekend shift since April 2002. The respondent denies that the successful candidate was afforded training not made available to the complainant, saying that the opportunity to volunteer for training was available to all employees and was not availed of by the complainant.
3.5 The respondent rejects the allegation that the complainant was threatened with disciplinary action for raising concerns of gender discrimination. It says that, during the internal grievance procedure, the complainant had said she would have lodged a grievance even if the position had been filled by one of the other female candidates, but not if it had been filled by the second female. The respondent says she was advised that, in the light of such statements, it appeared that some elements of her claim may be frivolous or vexatious, and that if such were to be found at the outcome of the investigation, that disciplinary action could be considered at that time. The respondent says that this was not a threat, but a statement of fact and normal industrial relations policy. It says the complainant appeared to be suggesting that she would take a case only if certain individual applicants were successful and a gender equality case was simply the most convenient.
3.6 The respondent concludes the complainant was interviewed in the same manner and format as the other candidates. It says this was a formal process with appropriate records of the interviews maintained. The complainant was afforded the right under the company policy to appeal the decision internally. It says her appeal was heard, in accordance with policy, at every stage of the grievance procedure and that appropriate representation was available throughout. The respondent submits that the complainant has failed to establish a prima facie case of discrimination, and requests that the complaint be rejected.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against her on the ground of gender contrary to the provisions of the Employment Equality Acts 1998 to 2007. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including gender. Section 8 provides that
(1)In relation to-
...(d)promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...
4.3 The Labour Court, in a recent determination of a claim on the gender ground, said "In order to establish a prima facie case of discrimination, the evidential burden is on the complainant to establish the primary facts on which they rely and to satisfy the Court that these facts are of sufficient significance to raise an inference of discrimination, thus shifting the burden to the respondent..." (Health Service Executive and Michael McGoldrick, Determination No EDA076).
4.4 The first matter to be considered is the date of alleged discrimination. The complainant's referral form, received by the Tribunal on 30 November 2004, listed the last occurrence of an allegedly discriminatory act as 12 November 2004. From the evidence before me, this is the date on which the respondent wrote to the complainant indicating that stage 4 of the grievance procedure had concluded and her complaint was not upheld.
4.5 Section 77 of the Acts states
(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director...may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction...
4.6 The interviews for Group Leader were conducted over a number of days between 10 and 14 December 2003. It is not clear when the decision on the appointment was finalised, but it is not disputed that the complainant was informed in early February 2004 that she had not been successful. The respondent suggested, and the union agreed, that she was told on either 5 or 6 February. Taking 6 February as the date on which she was informed, I am satisfied that the allegedly discriminatory act occurred no later than that date. The six-month time limit, therefore, concluded no later than 5 August, and the complaint is out of time as it was not lodged until 30 November.
4.7 The complainant was asked at the hearing if she had any evidence for reasonable cause to extend the time limit. It was submitted on her behalf that she had sought advice from the Equality Authority and her union. She had had difficulty sourcing union advice because the works committee in the company was disbanded at the time. It was submitted that she had properly followed internal grievance procedures and waited for the outcome of that process in the hope the matter would be resolved. The grievance procedure provides for referral of unresolved issues to a third party at stage 5, after the exhaustion of internal remedies. The complainant submits that her referral of the complaint to the Equality Tribunal was the correct invoking of stage 5.
4.8 I do not accept this argument on behalf of the complainant. The matter complained of was the outcome of the interview process which concluded no later than 6 February. The grievance procedure was a separate process, undertaken in accordance with the respondent's policies. It cannot have the effect of altering the time limits specified in the legislation. As the complainant had the benefit of representation by her shop steward during the grievance procedure, I am not satisfied that the absence of a works committee left her without assistance at the time.
4.9 It should be noted that finding the pursuit of an internal procedure to be reasonable cause for not referring a complaint in time may have the effect of imposing shorter time frames on employees of companies without such procedures, which cannot have been the intended effect of the legislation. If the complainant had invoked the grievance procedure promptly, it seems probable that it would have concluded within the six-month period. She did not do so, however, and I am satisfied that the complaint regarding the interview is out of time.
4.10 In its submissions on behalf of the complainant, the union described the respondent's reference to possible disciplinary action as a further instance of discrimination against the complainant. It would appear that the union considered that as the disciplinary action did not materialise, it may not have constituted victimisation. The respondent argued that the reference constituted neither discrimination nor victimisation, but was normal industrial relations procedure.
4.11 Having considered the arguments and the evidence, I am satisfied that the reference to potential disciplinary action falls to be considered as possible victimisation. Section 74 (2) of the Acts states that victimisation occurs where
dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act...,
(e) an employee having been a witness in any proceedings under this Act...,
(f) an employee having opposed by lawful means an Act which is unlawful under this Act...,
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
4.12 The respondent's grievance procedure provides for a five-stage process. Under stage 1 the complainant and a shop steward raised the allegation of gender discrimination with her shift supervisor. At stage 2, the matter was discussed at three meetings involving the complainant, the shop steward, the Group 4 operations manager and the factory manager. By letter to the complainant dated 13 July 2004, the factory manager indicated that he was satisfied she had not been discriminated against. In the course of that letter, the factory manager said "When asked if you would have submitted a grievance if one of the other two female candidates had been selected you said "if one of them got the job you would have submitted a grievance, but if the other one had got the job you would not have submitted a grievance"."
4.13 Stage 3 involved a meeting between the complainant, the shop steward, the factory manager and the managing director. By letter of 6 August, the managing director stated that he was satisfied the complainant had not been discriminated against, and the complaint then moved to stage 4 of the grievance procedure. This resulted in a meeting involving the complainant, the shop steward, a union representative, the operations manager of Group 3 and the managing director. By letter of 12 November, the managing director confirmed the finding that there was no discrimination against the complainant. Summarising the progress of the grievance procedure, the managing director referred to the comment attributed to the complainant in the factory manager's letter of 13 July (at 4.12 above). Emphasising that the matter had been given the serious consideration it deserved, the managing director went on to say "however, it is important that I point out to you that certain aspects of the claim seem to be frivolous or vexatious and while the claim will be given proper consideration at each stage, the company may decide to review its basis under the disciplinary procedure as set out in the Works Agreement."
4.14 In a response dated 17 November, the union advised that the complainant would now be referring a complaint under the Employment Equality Act 1998. The letter said "...you state that our member would have taken this claim even if the position had been filled by another female candidate. This was never stated at our most recent meeting and our member categorically denies ever making this statement. We are extremely concerned that the company have now on a number of occasions threatened our member with Disciplinary Action for what you alleged "that certain aspects of this claim seem to be frivolous or vexatious". Our member has a legitimate claim and she genuinely believes that the company have discriminated against her in this case and should be allowed to process her claim without threat of discipline."
4.15 At the hearing of the complaint, the respondent maintained its position that the complainant had made the disputed statement while she continued to insist that she had not. The respondent explained that it referred to the possibility of disciplinary action following its own bullying and harassment procedures, which provide that such action may be taken in the case of malicious claims. However, there is no reference within its procedures to the action to be taken in the case of frivolous or vexatious claims of discrimination. It should be noted that, even if the respondent's procedures provided for this, section 74 (2) would mean that such action would constitute victimisation. The complainant's claim at all times was of gender discrimination, and the threat of disciplinary action was as a consequence of her having made such a complaint.
4.16 I note that no disciplinary action was taken, but the fact remains that the respondent indicated to the complainant that it might consider such action on the conclusion of the grievance procedure. I note, also, that the grievance procedure does not conclude until stage 5, which is the intervention of a third party (in this case, the Equality Tribunal). Accordingly, the complainant has had the threat of disciplinary action before her at all stages of this investigation, and I consider that such a stance by the respondent clearly constitutes victimisation in terms of section 74 of the Acts.
5. DECISION
5.1 Based on the foregoing, I find that the claim of discrimination on the ground of gender in relation to the interview is out of time.
5.2 I find that the respondent victimised the complainant, contrary to the provisions of the Employment Equality Acts 1998 to 2007.
5.3 I hereby order that the respondent pay the complainant the sum of €3,000 in compensation for the effects of the victimisation.
_____________________
Anne-Marie Lynch
Equality Officer
18 September 2007