FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : CITIGROUP (RESPONDENT) (REPRESENTED BY MATHESON ORMSBY PRENTICE) - AND - MARIAN CASSIDY (COMPLAINANT) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Act, 1998.
BACKGROUND:
2. On 11th October 2004 the Complainant referred a complaint of victimisation under the Acts to the Director of the Equality Tribunal. Following delegation of the case to an Equality Officer and exchanges of paperwork, a hearing was held on 23rd May 2007.
The complaint made before the Equality Officer was that the Complainant had been victimised for taking previous Equality Proceedings in two ways: -
In regard to disciplinary proceedings taken concerning her sick leave record and in regard to her transfer to the “Luxembourg (Funds) Team” from the Open-ended Dublin Funds Team.
In her Decision, dated 9th August 2007 the Equality Officer found against the Complainant regarding her sick leave, but found that the Respondent victimised the Complainant in terms of S.74 (2) of the Acts in relation to her transfer to the Luxembourg Team in March 2004.
The Equality Officer ordered that a sum of €10,000 in compensation be paid to the Complainant in respect of this breach of the Acts.
The Respondent appealed this Decision to the Labour Court by letter received on 18th September 2007. A Labour Court hearing was held on 15th April 2008.
Complainant’s Arguments:
1. The Luxembourg Funds Team was an area where she was not working to her potential. Others told her that the move was either a sideways one at best, or demotion. The work was easier and quicker with a lower level of responsibility as, unlike the Open-ended Dublin Funds Team, most of the compliance issues were handled directly in Luxembourg rather than by the Dublin Team.
2. She was moved to this team against her wishes and only went to it because she felt she had no choice.
3. Her transfer was not at her instigation and was not handled in accordance with the provisions of the Employee Handbook which provides that in the case of a transfer instigated by the Company, there are three possible scenarios: -•Career Development Transfer
•Critical Skills Transfer
•Performance-Related Transfer
- In all cases, the transfer should have been agreed with her. She did not fit any of the three profiles, nor was the matter discussed with her.
5. The Respondent's appeal was made under an incorrect case reference and is therefore inadmissible.
Respondent’s Arguments:
1. Within the Trustee Department there are three Teams. The Complainant’s position at all times was that of Senior Service Representative. She was specifically moved from one Team to another, which happens regularly to ensure that staff can improve their knowledge and experience. The Respondents regards Luxembourg Funds as being more, not less, complex than Dublin Open-ended one. There was no loss to the Complainant, so there could be no victimisation. It was not a “demotion” and in no way limited her promotional opportunities nor lessened her pay or conditions.
2. Her transfer was first discussed in January 2004 and took effect in March 2004. Her first dissatisfaction expressed was verbally, at a Team meeting in August 2004. No written complaint was made by her, while both previously and subsequently she was in the habit of reducing to writing quite quickly any problems she felt she had with the Respondents (details supplied).
3. The Documentation referred to, regarding transfers as set out in the Employee Handbook, deals with transfersbetweenDepartments, not transferswithinDepartments such as a transfer from one Team to another.
4. Given all of the above no “adverse treatment” occurred as a result of the Complainant’s transfer.
5. The Respondent erroneously submitted the appeal under the case file number (EE/2004/246) rather than the Decision number (DEC-E2007-045). While this was an error, it was a purely technical one on which nothing turns.
The Evidence:
The Complainanttestified that she was told (not consulted) that she was being transferred to the Luxembourg Team. This, in her view, was where new employees usually went as it was less complex.
She used fewer of the skills which she had already acquired while working on the Luxembourg team. She felt it was a backwards move. It was her view that the transfer was motivated by the fact that she had made previous complaints including complaints under the Equality Acts and that the Company’s response was to “move the problem”. She was advised by her colleagues that the move was effectively a demotion. She was demoralised. Although the pay was the same and there was no outward evidence, she was being dealt with as a troublesome worker.
She was moved in March and complained regularly until she brought up the matter at a team meeting in August. It was also her view that it was more difficult to be promoted from the Luxembourg Team than from the Dublin Open-ended Funds Team. The Company couldn’t say both that “her skills were necessary” and that “she was a bad performer”.
She did not fit into the written transfer criteria as outlined and there was no indication in the policy that there as any distinctive policy that there was any distinction between transfers between and within Departments. (She said she had not previously had sight of the transfer policy).
Under cross-examination, the Complainant denied having received a copy of the transfer policy in her employee handbook. She did not agree that the transfer had been proposed and discussed with her in January 2004 (or at all), or that she had a choice in the matter. She agreed that there was no change in her workplace environment, just a change in Manager. She was still a Senior Service Representative. She insisted that compliance issues in Ireland made the Dublin Funds Team a more complex job than the Luxembourg team, which is regulated largely from Luxembourg.
In response to a question from the Court she confirmed that she had contacted the Company’s Employee Assistance Programme, but that this did not solve her problems. She reiterated that she had complained regularly about the problem but had learned from previous experience that there was no point putting the matter in writing, which was why she had raised the matter at a Team meeting verbally.
Ms R: HR Director of the Respondent testified that the way the Company was structured was on the basis of Teams within Departments and Departments within Business Units. The Complainant worked on Teams within the Trustees Department.
She said that the transfer policy was applied to, not within departments under the employee handbook. The policy applied to transfers between Departments and moves within Departments were not covered.
She also said that people would never be forced to take a transfer, as they always had a choice. An open dialogue took place with their Manager, as happened in this case. She was appointed in January and transferred in March. She made no complaint whatsoever until August. There were no notes of discussions regarding her transfer, which would not be the norm. As she raised her complaint in August verbally at a Team meeting, there would have been no notes of that either.
She accepted that the specific nature of the transfer policy as it affected moves within Departments was not set out but contended that the policy was well known throughout the Company. Moves to gain further experience and to help out another Team were seen as a positive development.
Ms W: Assistant Vice-President and the Complainant’s former Team Manager gave evidence also. She said that there was a backlog in the Luxembourg Funds area and she agreed with her counterpart in the Dublin Open-ended Funds area that the Complainant’s experience would be useful in assisting to ease the problem as well as providing cross-training for the Complainant. This was agreed and instigated in January 2004. She denied that the Complainant was forced to move. The Complainant knew that she had a choice and that she could have refused.
She described the Luxembourg work as quicker, but not easier or less complex, than the Complainant’s previous work. She did not think the Complainant had any issue with her transfer to the Luxembourg team until she raised it much later at the team meeting. The witness expressed the view that the Complainant accepted that the transfer was a beneficial sideways move which would widen her experience and improve her standing. She was a good communicator (one of the reasons she was chosen) and usually made her views clear at the earliest opportunity.The Law Applicable:
Article 4 of the Directive requiring that a Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. Only if these primary facts are established to the satisfaction of the Court and may be regarded by the Court as being of sufficient significance to raise a presumption of discrimination does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatment. This has been the approach followed by this Court in and subsequent to the case of Southern Health Board v Dr Theresa Mitchell [2001] ELR 201.
It is beyond question that the Complainant had made previous complaints against the Respondent including proceedings under the Employment Equality Act, brought in May 2003, some 10 months before the events detailed in early 2004.
On the evidence presented, the Court must also establish whether the Complainant suffered adverse treatment, which would amount to victimisation, as a result of taking other proceedings under the Act.
The Court must also be mindful, when dealing with cases of alleged discrimination on victimisation such as this one, of the approach it has previously adopted in a number of cases that: -
- “a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the Complainant’s power of procurement. Hence the normal rules of evidence must be adopted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complaints to prove something which is beyond their reach and which may only be in the Respondent’s capacity of proof”.
Court’s Findings:
The actions of the Respondent complained of as being adverse treatment by the Complainant were around aspects of her transfer to the Luxembourg Funds area of the Trustees’ Department i.e.
-the transfer itself.
-the alleged effect on her promotional/advancement prospects.
-the alleged lack of consultation or choice.
-the alleged breach of the transfer policy set out in the Employee Handbook.
-the perception of co-workers that the move represented a “demotion”.
-the contention that the work was easier and could be done more quickly.
-the proximity of her other proceedings under this Act.
The Court has found no evidence to support the contentions that there was any effect on the Complainant’s prospects, that there was any loss of status, (it is accepted as fact that there was no loss of pay), that there was no consultation with the Complainant, (although there are no notes on this, only emails) or that she did not have a choice.
Regarding the work itself, it was conceded that the Luxembourg work could be done faster, but there was no evidence to suggest that it was any less complex than that in the Dublin Open ended Funds area.
With regard to the transfer policy, there was no clear evidence that the policy applied to transfers within or between Departments, to either, or both. This does not prove anything but the policy needs to be clearer than it is.
The proximity to other proceedings taken by the complainant is undeniable, but would only be relevant if other facts had been adduced which supported the contention of adverse treatment. The Court also notes and accepts that in both previous and subsequent cases of complaint by the Complainant, her habit was to make a written complaint almost immediately. In the instant case, the first documented complaint was a verbal one at a team meeting five months after the transfer.
DETERMINATION:
The Court does not therefore consider that primary facts have been adduced which would give rise to a presumption of discrimination. Accordingly, the burden of proof cannot shift to the Respondent and has not been discharged by the Complainant. The Court allows the appeal and overturns the Decision of the Equality Officer.
Signed on behalf of the Labour Court
Raymond McGee
19th June 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.