The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2008-041
PARTIES
Ms Kerrie Mc Garvey
- V -
Intrum Justitia
1 DISPUTE
1.1 This dispute concerns a claim by Ms Kerrie McGarvey that she was discriminated against by Interim Justitia on the grounds of gender and family status in terms of section 6(2) of the Employment Equality Acts, 1998 – 2007 and contrary to section 8 of those Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 13 September 2006 under the Employment Equality Acts 1998 - 2008. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes, 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 and received from the parties, and a hearing was held on 11 April 2008. Additional submissions were sought and received from the Respondent and were copied to the complainant.
2 SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant commenced employment with the Irish branch of Interim Justitia in January 2006 having previously worked in their offices in Liverpool.
2.2 In August 2006, the complainant was selected for redundancy and states that according to the Finance Director for the Respondent there were no issues with her work or disciplinary issues, but the grounds for selecting the complainant for redundancy was on the basis of her lack of commitment.
2.3 The complainant noted that there had been issues with the Financial Director since before she commenced employment, he had tried to withdraw the offer of employment made by the Managing Director.
2.4 The complainant submitted that the respondent had made negative reference to her family commitments on a number of occasions. This included complaints that she should have worked late on a previous evening, which the complainant submitted was too late to do anything about.
2.5 The complainant stated that she fully committed herself to work on the inter-company ledger project, working through lunch breaks and long hours as necessary.
2.6 The complainant stated that she did not receive the proper notification of redundancy. She also stated that everyone was assessed using an internal performance assessment tool. She stated that she was not part of this appraisal or performance scoring and was never shown the results of the exercise.
2.7 The complainant submitted that her department is now back to its original headcount.
2.8 The complainant submitted that she was selected for redundancy because of her pregnancy, gender and family status.
3 SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denied the claim that it discriminated against Ms McGarvey as outlined by the complainant.
3.2 The respondent submitted that it would not question a staff member’s commitment because they had left on time but would do so if that staff member left when a particular job or deadline remains to be completed. The respondent expects that staff would be flexible but also understands that flexibility is not always possible. The respondent confirmed that it had concerns regarding the complainant’s flexibility. It noted that it did not have concerns regarding the flexibility of two other female employees with young children.
3.3 The respondent confirmed that its Financial Director did have reservations about employing the complainant from the outset but that upon the advice of the human resources department the Managing Director offered the complainant employment.
3.4 The respondent confirmed that the Financial Director indicated to the complainant that it could have done with the complainant staying late after the fact.
3.5 The respondent agreed that the complainant showed flexibility on the inter-company ledger project.
3.6 The respondent submitted that with the advice and support of human resource professionals, it went through a process of identifying selection criteria for redundancy, advising all staff potentially affected and that the complainant’s results were available for her to view.
3.7 The respondent submitted that flexibility was not one of the redundancy selection criteria.
3.8 The respondent submitted that the complainant had a right to appeal her redundancy for seven days but did not avail of the opportunity.
3.9 The respondent denied that the complainant’s former department is now back to its original headcount.
4 FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not Intrum Justitia discriminated against Ms McGarvey on grounds of gender and family status, in terms of section 6 of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts
4.2 Section 85A of the Employment Equality Acts 1998 to 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which they can rely in asserting that they have suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to deal with the claim of discrimination raised.
4.3 The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd[1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. Ms McGarvey submitted that she was made redundant when she was approximately seven months pregnant. Her employer knew that she was pregnant. These facts were not contested by the respondent. From these facts, I am satisfied that the complainant has established a prima facie case.
4.4 At the hearing of this matter, the respondent stated that the redundancy situation came about following the acquisition of another company. The respondent was operating three separate systems under the amalgamated setup. Running three separate systems was inefficient. The respondent submitted that the cost savings of migrating to one system gave rise to the redundancies.
4.5 The respondent submitted that following on from the announcement of redundancy it was not clear how many or from which department the redundancies would come. It submitted that one redundancy from each of the Finance, Client Services and Call Centre sections was required. All staff were provided with documentation covering the redundancy process. Members of the management and human resources section met with all staff affected on an individual basis. In the finance section where the claimant worked, six people were affected.
4.6 The respondent submitted that ten selection criteria were used in the Finance Department to ascertain who would be made redundant. The criteria were weighted according to the importance of the skill/attribute. The criteria were:
· Skills and experience in the current position
· Occupational Qualifications
· Co-operative
· Commitment and using own initiative
· Future Potential
· Completion of performance skills training courses
· Discipline (Warnings)
· Unauthorised absences
· Punctuality
· Sickness Absence
4.7 The section matrix submitted refers to seven staff members. All staff were awarded identical marks for the latter five categories. Practically speaking therefore, only 5 criteria were used to determine which staff member would be made redundant.
4.8 During the hearing, the complainant submitted that the Financial Manager was pre-disposed against employing her at the outset of her employment. This was confirmed by the Financial Manager in the course of the hearing. The complainant further submitted that the Financial Manager had completed the redundancy selection matrix, rather than her direct line manager. This was also confirmed by the Financial Manager in the course of the hearing, who outlined that he was the only common line manager to all seven staff members.
4.9 The Financial Manager submitted that there were issues of the complainant’s poor performance and unacceptable phone usage. The respondent submitted that there were also other areas of the claimant’s performance which the respondent took issue with. The respondent stated that there were oral discussions with the claimant but no documentary evidence because these issues were not deemed to warrant it.
4.10 The complainant submitted that the redundancy selection matrix was not completed in an unbiased manner by the Financial Manager.
4.11 The Financial Manager stated that he awarded marks to each staff member on the redundancy selection matrix. He submitted that these marks did not draw from any performance or other review but represented the marks he felt were warranted by each staff member.
4.12 The respondent stated at the hearing that that making the claimant redundant did not represent a cost saving for the company as there were alternative staff members who would have been cheaper to let go. Figures submitted by the respondent subsequent to the hearing indicate that making the complainant redundant as opposed to the cost of her maternity leave would amount to €3,703.85 versus €9,061.60 respectively.
4.13 The respondent also submitted that although there was an appeal procedure which was notified to the claimant, the claimant did not avail of this procedure and further noted that this went against the merit of the claim.
4.14 I do not find that the method for choosing the staff member for redundancy was sufficiently objective or transparent in that the manager tasked with the assessment did not refer to any objective assessments, neutral provision (such as last in, first out) or sought input from immediate line managers.
4.15 I therefore find that the submissions of the respondent do not sufficiently rebut the claim of discrimination raised.
4.16 I am also satisfied that the employer has not submitted any exceptional circumstances unconnected with her pregnancy to justify her dismissal, as stated by the Labour Court in the case of a Worker and a Company EED016:- “A worker cannot be discriminated against or be dismissed while pregnant except in exceptional grounds unconnected with the pregnancy, In addition, such grounds must be clearly stated in writing”.
5 DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discrimination on the basis of the gender and family status grounds has been established.
5.2 On the basis of the foregoing I find that the respondent did discriminate against the complainant on the grounds of gender and family status and that discriminatory dismissal took place in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008. In accordance with section 82 of those acts I award the complainant €30,000 in compensation for the discriminatory treatment suffered. As this award does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
25 July 2008