The Employment Equality Acts 1998 -2007
Decision No:
DEC-E2008- 022
A Female Employee
(represented by Mr. Chris Meehan B.L., instructed by Richard Kennedy & Co)
-v-
A Printing Company
(represented by Mr. Tom Mallon B.L., instructed by Arthur Cox Solicitors)
1. Claim
1.1 The case concerns a claim by a female employee that a printing company in the West of Ireland 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 relation to her conditions of employment when she was sexually harassed. She also claims that she was discriminated against in terms of section 6(2)(a) in the selection process for appointment to the post of Pre-Press Manager. She also claims that she was discriminated against in relation to her pay contrary to section 19 of the Act. She further claims that she was victimised within the meaning of section 74(2) of the Act following her complaints to management.
2. BACKGROUND
2.1 The complainant submits that she was discriminated against on the gender ground in that she was subjected to sexual harassment in the course of her employment. She submits that when she complained of the sexual harassment, she was victimised by her employer as it treated her less favourably at work. She also submits that she was discriminated against on the gender ground in relation to the selection process for the post of Pre-Press Manager. She further claims that she was discriminated against on the gender ground in relation to her pay as she was paid less than a named male comparator. The respondent denied all of the complainant’s claims.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 17 May 2002. On 3 December 2003, in accordance with her powers under section 75 of that 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. The complainant sought a stay of proceedings pending the outcome of High Court proceedings. The respondent subsequently in August 2004 requested a stay on the Tribunal proceedings pending the outcome of High Court proceedings and correspondence followed between the parties and the Tribunal in relation to this matter. A submission was received from the complainant on 23 May 2006. A submission was received from the respondent on 6 October 2006. A hearing of the claim was held on 30 July 2007, 21 and 22 January 2008. Closing submissions were received from the respondent and complainant on 5 March 2008 and 7 March 2008 respectively.
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
3.1 The complainant commenced full time employment with the respondent in 1993. Early in 1995, the complainant’s relationship with Mr. DB, the Deputy Managing Director ended. By 1996, the complainant had been employed as a pre-press composer for some time. The department within which she worked consisted of herself and eleven males. Her co-employees and direct managers were all males. As her relationship with Mr. DB ended, the gender based discrimination which the complainant had always experienced assumed a new and aggravated character which eventually was to cause her illness and drive her out of the company.
3.2 She submits that she was subjected to non consensual acts of physical intimacy by her male co-employees and managers. These acts included slapping her bum, pinching her bum and pinching her arm. Such conduct occurred in the work-place and at company sponsored social events outside the workplace such as the Christmas parties. She submits that the persons involved in this conduct included Mr. T, Mr. Mc L and Managers, Mr. J and Mr. C . She submits that Mr. C was particularly “hands on” in the office at every opportunity. During work conversations, he would frequently rub his hand up and down the complainant’s back or along her arm and he would also come up behind her and start giving her a massage. The complainant was also subjected to offensive comments from the same persons concerning her dress and her appearance. She submits that the same group regularly showed her offensive pornographic images from internet sex sites. She submits that on one occasion, she was asked to come over to the computer and upon doing so, she was confronted with a web page showing 99 different sexual positions and she was asked if she could do one of the positions.
3.3 In 1997, when the complainant started a new relationship, she was continuously subjected to offensive and humiliating comments such as “she only likes men with money; us working boys are not good enough for her” and “give you a little time, you can quit work and your new boyfriend will keep you.” The comments were made by Mr. O’ H, Mr. J (General Print Manager) and co-employees Mr. T, Mr. Mc L and Mr. B. Mr. B continuously made a number of other offensive remarks to her. The complainant complained about the sexual harassment she was enduring to Ms. D, the Personnel Manager but no action was taken to stop the harassment or discipline the perpetrators of it.
3.4 The complainant was also subjected to constant and continuous harassment, bullying and discriminatory treatment at the hands of her co-employees, managers and the company. Such conduct assumed all the usual techniques from open aggression and assault to ostracism, refusal of training and blocking of promotions. She alleges that Mr. B verbally abused her on a daily basis. She also submits that in a fit of rage in 1999, Mr. J, the General Print Manager shouted abuse at her and with the sole of his shoe kicked her on the thigh. She submits that even though the incident was witnessed by other co-employees including Mr. T, a wall of silence was constructed. She submits that she was later intimidated from making a complaint about the incident.
3.5 She submits that she was also subjected to other forms of gender based bullying and humiliation. She submits that her duties were constantly changed without even informing her. She submits that she was ostracised by other employees including Mr. Mc L who actively encouraged other employees including Mr. C, Mr. B and Mr. O’ H to do the same. The complainant’s working conditions were also markedly different to her colleagues and she was not supplied with a computer suitable for doing labels which was one of her duties. As a consequence, she had to come in early or stay late to use a colleague’s computer to complete her work. The complainant had a time for time arrangement with senior management in respect of the additional hours she worked. In September 2000, Mr. O’ H (Pre-Press Manager) altered the complainant’s time for time work arrangement by demanding that she only work between the hours of 8.00am and 5.30pm. She then incurred the wrath and recriminations of other managers by not being able to complete her work on time. When the complainant raised the issue with the Managing Director, Mr. L, the time for time arrangement was restored.
3.6 She submits that other forms of harassment were being undertaken by her male co-employees and managers in an effort to make her work life intolerable. She submits that Supervisor O’ H refused to co-ordinate the complainant’s work load with the other managers and it was impossible for her to meet the conflicting demands of the other managers. As a result, she was unable to complete her assignments on a timely basis. Printing was rescheduled which required the complainant to re-do jobs which had already been performed and finished. Supervisor O’ H also took the complainant’s job bags without asking and mixed them up requiring the complainant to re-sort them.
3.7 The complainant was also refused training. In November 2001, the complainant was assigned to help out two male co-employees with the books. Each of the male employees was given two weeks training on the new brisque machine which sets out the film pre-planned for the plate. It had been seven years since the complainant had been asked to set up pagination for the books. She informed Mr. O’ H that she was unable to do the pagination because it had been so long since she had performed that task.
3.8 In June 2000, the complainant applied for the position of Pre-Press Manager. Another applicant for the position was Mr. O’ H. There were no other female applicants and Mr. O’H was successful and he became the complainant’s immediate Managing Supervisor. She submits that Mr. O’ H was awarded the job even though he did not have the required experience and the complainant was expected to show him how to do the job. The complainant was later told by Mr. G, Research and Development Manager that she did not get the job because she was a woman.
3.9 Mr. B replaced the complainant when she took three months leave of absence in 1997. The complainant claims that she was paid far less per week than Mr. B for the like work. When she complained to Mr. L, the Managing Director, she received approximately £30 more per week but she believes that her pay never approached the higher amount paid to Mr. B.
3.10 The complainant submits that over the years, she complained on many occasions to the respondent’s management concerning the discrimination, bullying and harassment she was encountering on a daily basis. She complained to the Personnel Manager, Ms. D concerning sexual harassment. In 1997, she complained to Managing Director L concerning the harassment and bullying which forced her to request a three month leave of absence. In 1999, she submits that Mr. L discussed the kicking incident with her. In September 2000, she complained to Mr. L about being put in the middle between competing demands of her male managers and also of being refused the position of Pre-Press Manager based on her gender. No action was taken by the respondent to redress any complaint. She submits that instead she was continually punished for voicing her complaints through ever increasing and aggressive acts of bullying and harassment by her male colleagues and managers.
3.11 On 30 November 2001, the complainant after having been out of work for a period of two weeks as a result of stress wrote a letter of resignation. On 10 December 2001, the MD, Mr. L asked the complainant to re-consider. He offered to investigate matters but only in the event than the complainant withdraw her resignation and return to work. The complainant subsequently confirmed her resignation by letter dated 20 December 2001.
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
4.1 The respondent wishes to confirm its rejection of all matters claimed by complainant, particularly the very serious allegations made by her against the respondent and its employees which date back to 1995. There is no evidence to suggest that the foul language which the complainant asserts was directed at her ever occurred. The complainant alleges that in the course of her employment she was “regularly shown” offensive pornographic images on the computers of work colleagues which were obtained from internet sites. The complainant has failed to specify when the alleged conduct took place. The first time that the respondent became aware of any such incidents was upon receipt of the complainant’s submission in May 2006.
4.2 In relation to the complainant’s complaint regarding time in lieu, the respondent admits that whilst time in lieu may have suited the respondent at one stage many years ago, it gradually became unworkable as the complainant began to work increased amounts of overtime thereby accruing and booking longer periods of leave. An issue arose in 2001 with two other staff members who were requesting to have the same benefit, however, this was not workable from the respondent’s perspective. Mr. O’H as Pre-Press Manager felt it was better for the Department if overtime was paid instead of time in lieu being authorised as he was continually short of personnel when staff members were on holiday. Negotiations with the Union ensued on the matter and a figure of three days leave in lieu per month was suggested and agreed with the representatives of the complainant’s trade union and this was recommended to the complainant in June 2001 but was not accepted by her. It was decided that the best option was to set up a meeting on 29 November 2001 to devise a workable solution for all parties. The fact that her entitlements were to be red circled and limited to an additional three days per month were requirements which originated from business demands and were absolutely unrelated to the complainant personally and/or her gender. The complainant was not treated any less favourably in relation to this matter because of her gender and she was the only staff member of the respondent to have this time in lieu benefit. The complainant went on sick leave and subsequently tendered her resignation prior to the meeting of 29 November 2001 and no resolution was ever reached.
4.3 In relation to the planning and layout of labels for customers in order to generate film to make printing plates, the task was previously performed by Mr. G and the necessary software was installed on his Mac and all layouts and templates were set up there also. For this reason, the complainant would use Mr. G’s computer when it was available to her. If it was in use during the day, the complainant would be required to use it out of hours. Within six to eight months after his appointment, Mr. O’ H had the necessary software installed on the complainant’s Mac thus enabling her to perform the above tasks at her own machine and eliminating the need to work out of hours.
4.4 In relation to training on the new brisque machine and setting up the pagination for books, the complainant did not at any time request further training and she was never denied training as is now claimed by her. In relation to the complainant’s claim of discrimination regarding promotion, the complainant applied for the position of Pre-Press (Atrium) Manager in June 2000. There were three internal candidates selected for interview for the position. The interview board consisted of two senior managers, Mr. M and Mr. G. Each of the three candidates were asked the same questions and the same interview format was followed for all three. The issues covered with the candidates at interview included what they would do in the position, how they would handle their job and their plans, how they would handle working long hours and how they would deal with discipline and staffing issues. Job selection was made on the basis of the performance at interview, relevant experience to date and suitability for the job. In the panel’s view, the best candidate, Mr. O’ H was selected for the position. Whilst it is accepted that the complainant was the only female amongst the three applicants, she was treated fairly at interview and was judged on the merits of her experience, qualifications and responses at interview. The fact that the complainant was female was not taken into account by the selection panel nor was it deemed relevant.
4.5 Whilst the respondent is reluctant to deal with any matters raised by the complainant in her submission outside of the time parameters identified in the referral form, the respondent feels that it cannot fail to comment on the allegation that the complainant was bullied throughout the course of her employment by forms of open aggression, shouting and obscenities. The respondent rejects the allegations and in particular that there was any form of physical kick by Mr. J. The individual accused of this confirmed that there was a “tip” on the leg in the course of an amicable conversation which was confirmed by the witnesses. Whilst the complainant reported the incident at the time, she then dismissed it as an incident and declined to make a formal complaint despite being given an opportunity by the respondent’s senior management to do so. The individual employee involved apologised to the complainant for any upset caused to her and they remained good friends up to the time that the complainant ceased employment with the respondent.
4.6 In relation to the complainant’s claim that she received less pay than that which was paid to another employee, Mr. B, it is submitted that in so far as there were any inadvertent differences in pay, these were rectified when it was brought to the attention of the respondent. The historic differences in pay can be explained because of Mr B’s seniority and extensive experience which was significantly more than the complainant.
4.7 The respondent submits that the fact that one individual, Mr. Mc L did not wish to be on more friendly or social terms with the complainant is a matter beyond the respondent’s control. When the matter was raised informally by the complainant via her Union, the respondent’s HR Manager was sympathetic to the issue but advised the complainant that for the respondent to be able to formally investigate the matter, she must initiate its procedure and/or make a formal complaint which she was unwilling to do. Whilst the respondent encourages all staff to treat each other with respect and dignity, the respondent cannot be penalised if a friendship or social relationship does not develop between colleagues provided that each employee is treated properly at work.
4.8 The respondent rejects that the complainant was “forced” to request a three month leave of absence in 1997 because of discriminatory treatment suffered by her. The complainant was granted a period of leave of absence for three months by the Managing Director, Mr. L on foot of personal difficulties that the complainant was having at the time. This was a goodwill gesture offered to the complainant and was something that had never been offered to another employee. The respondent rejects the complainant’s assertion that the decision to grant the leave was linked to the purported discriminatory treatment of her. The complainant was welcomed back to work after her period of absence and continued to be a valued member of staff which was evidenced by the fact that shortly after her return she was allocated full responsibility for one of the respondent’s largest customers.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The claimant in this case alleges that the respondent discriminated against her on the gender ground in that she was sexually harassed during the period of her full time employment from 1993 to November 2001 and that she was victimised following her complaint to the respondent. She also claims that she was discriminated against on the gender ground in relation to promotion and in relation to her pay. The respondent denies that the complainant was sexually harassed and victimised after making a complaint and further denies that she was discriminated against in relation to her pay and promotion. 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.
Sexual harassment
5.2 Section 23(1) of the Employment Equality Act, 1998 provides that where a male harasses a female colleague or vice versa, the sexual harassment constitutes discrimination by the employer on the gender ground in relation to the victim’s conditions of employment. Section 23(3) (where A and B represent two persons of the opposite sex) provides that:
‘For the purposes of this Act -
(a) any act of physical intimacy by B towards A,
(b) any request by B for sexual favours from A, or
(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material),
shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A.’
5.3 In relation to the claim of sexual harassment, I must consider (i) whether the complainant has established on the balance of probability that she was sexually harassed. If I find that the complainant has established that she was sexually harassed, I must then consider (ii) whether the complainant’s employer is vicariously liable for the harassment. If I find that the complainant’s employer is vicariously liable, I must consider as a defence (iii) whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace. I will also consider the manner in which the respondent dealt with the complainant’s complaint of sexual harassment. 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 complainant.
5.4 The complainant has alleged that the sexual harassment took many forms and that there were a number of perpetrators. The complainant claims that she was inappropriately touched, subjected to offensive comments concerning her dress and appearance, was shown offensive pornographic images on internet sex sites by a number of people and that she was asked by Mr. J whether she could do one of the positions on view. The respondent denies that the complainant was sexually harassed during the course of her employment. Mr. J against whom a number of allegations including touching the complainant were made and denied by him accepted that there was quite open banter between him and the complainant. He gave the example of saying to her that she was looking well and submitted that the complainant reciprocated the comments with comments like going bald/going grey. He submitted in evidence that his response to a question whether he ever did or said anything that the complainant could reasonably regard as sexual harassment was ‘no’ and he proceeded to state that “It depends what you take, if you want to take it out of context.” I found Mr. J to be selective in relation to the aspects of the incidents he remembered. For example on one occasion, in relation to an incident where the complainant alleged that she was kicked which he denies but accepts that he pushed her foot with his and told the complainant to shut up, he submitted that he could not remember whether a person who was an in-house Union representative (Mr. C) phoned him or spoke to him face to face in relation to the incident however, he disputed the official’s evidence in relation to the words actually used in conversation with him on the matter.
5.5 It is the case that the complainant was the only female in the art department. Mr. Mc L who accepted that he did not speak to the complainant from the time when she commenced a relationship with the person who is now her husband accepted that sometimes he would receive inappropriate e-mails and cartoons. Mr. T accepted that pornographic material was received through e-mails occasionally and that it was not the case that pornographic material never graced the screens of computers. The respondent submitted that it believed that internet access was available on a limited number of computers in approximately 1999. On the balance of probability, I find that pornographic material was opened on the respondent’s computers and that the complainant was asked to view material by Mr. J. In relation to the other allegations of sexual harassment regarding the complainant being slapped and pinched on her bum by Mr. J and comments by her colleagues in general about her dress and appearance including her perfume, whilst a number of witnesses on behalf of the respondent gave evidence, some of whom have left the respondent’s employment, it is the case that a number of them were the alleged perpetrators of sexual harassment and I am, therefore, treating their evidence with caution. On balance, I prefer the complainant’s evidence in relation to these matters. Any act or conduct which was unwelcome to the complainant and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to the complainant constituted sexual harassment within the meaning of the Act. I, therefore, find that the complainant was sexually harassed in the course of her employment.
5.6 The provisions of the Employment Equality Act, 1998 being the relevant piece of legislation in relation to the complainant’s complaints at the particular time in issue only provides for sexual harassment (Part III) or harassment on any of the other eight grounds (Part IV) and harassment on the gender ground falls to be considered within the definition of sexual harassment in section 23 of the Act. The situation was not remedied until the enactment of the Employment Equality Acts 1998 and 2004 on 9 July 2004 and references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds including gender -Section 14A(7)(a)(i). I will therefore consider whether the complainant’s claims in relation to other issues such as a male colleague kicking her and a male colleague using abusive language amount to sexual harassment within the meaning of section 23(3) of the Act. The complainant alleged that Mr. J kicked her whilst Mr. J submitted that he told her to shut up and “kind of pushed her foot away” in response to some comment from her that he had done something. Whilst the kick as alleged by the complainant or the pushing away as submitted by Mr. J may have been unwelcome to the complainant, I am not satisfied that it could be regarded on the gender ground to be offensive, humiliating or intimidating to the complainant in accordance with section 23(3) of the Act. The complainant also stated that Mr. J called her a “b****” and told her to “f*** off”. Whilst Mr. J specifically denied making such comments to the complainant, his response to whether he used language like that was “Well we all use culpable language like that, I won’t deny that, ……” On the balance of probability, I find Mr. J made the comments to the complainant and I find that the comment referring to the complainant’s gender in a derogatory manner (as distinct from purely offensive language) amounted to sexual harassment within the meaning of section 23 of the Employment Equality Act, 1998. The complainant also alleges that Mr. B used offensive language towards her such as “You are nothing but a b****”, “You could do with a good slap”, “Women should never have been let out of the kitchen” and “F*** off”. Mr. B was not available to give evidence. I have heard the complainant’s direct evidence on the matter and I find that the derogatory references to women (and not the use of offensive language per se) amounted to sexual harassment of the complainant.
Vicarious liability
5.7 Section 15(1) of the Employment Equality Act, 1998 provides:
‘Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done without the employer’s knowledge or approval.’
In the present case, there is no doubt but that the actions of the complainant’s colleagues were carried out in the course of their employment and notwithstanding that the actions may have been carried out without the employer’s knowledge or approval, the respondent is vicariously liable for the actions of its employees.
Section 15(3) Defence
5.8 Section 15(3) provides that:
‘In proceedings bought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee -
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.’
At the time of the harassment, it does not appear that the respondent had any policies in place in relation to the prevention of sexual harassment in the workplace. The initial evidence in relation to a date for the introduction of the Dignity at Work Policy was 2002 subject to confirmation on the issue. Subsequently, the respondent indicated that it was drawn up somewhere between February 2001 (when the HR Manager came on board) and December 2001. Ms. K, an Amicus trade union official gave evidence that the Dignity at Work policy was in operation from when Ms. D joined the respondent in 2001 and that she did a presentation for staff on the issue. A letter from the Managing Director to the complainant dated 10 December 2001 in response to the complainant’s resignation letter states “I refer to the procedure in our Dignity at Work Policy that was agreed recently with the chapel officers of GPMU and which is to be included in a new house agreement at final stages of review.” The respondent subsequently confirmed that a copy of the respondent’s Dignity at Work Policy was signed by the respondent and the GPMU on 14 February 2002. It submitted that for the twelve months prior to that date, the draft policy was the subject of active discussion between the Union as represented by the complainant and others and the respondent. Whilst there may have been various drafts of the Dignity at Work Policy, the policy appears not to have been implemented until February 2002 and whilst the complainant may have been aware of the draft contents, all other staff including the individuals referred to in this decision would not necessarily have been aware of the contents. In the present case, no evidence has been presented to indicate that the employer had taken any steps that were reasonably practicable to prevent sexual harassment occurring in the workplace at the relevant time and it cannot therefore avail of the section 15(3) defence.
Actions taken by the respondent
5.9 The complainant submits that when she complained of sexual harassment, no action was taken to stop the harassment or discipline the perpetrators of it. She submits that she complained to Ms. D, the Human Resources Manager in or around March to May 2001 after a Union meeting with Ms. K, the Amicus official. Ms. D was appointed in March 2001. The respondent submitted that the meeting in question took place in October 2001. Ms. K’s recollection of the complainant’s complaint was that she said she was getting bullied by the other workers in the art room and she could not recall a complaint about any other type of treatment she was receiving. This is consistent with the complainant’s own evidence in the matter in that at the meeting in question, they discussed things that had gone on within the last few days mainly with the new manager in the art department, Mr. O’ H and that he was making a lot of problems for her in the department. She also submitted that she made a complaint generally of her treatment by the lads in which one had sent her to Coventry and had not spoken to her in five years. Ms. K considered from memory that a meeting was set up the following week. The respondent submitted that a meeting was scheduled for 29 November but that the complainant was on sick leave from 19th November so the meeting never in fact took place.
5.10 The complainant also submitted that she complained to Mr. L, the Managing Director before she went to the States in the summer of 1997. She submitted that she complained about the treatment she was getting from her supervisor and that the lads would not cover for her if she was on reception and the hassle they were constantly giving her and also about being stuck in the middle of managers. Mr. L gave evidence that the complainant never complained to him in relation to sexual harassment and only complained in relation to her pay and time in lieu. I have considered the evidence given and whilst the complainant may have attempted to complain about matters in general which fall to be considered more in a bullying context, I am unable to conclude that the complainant made a complaint of sexual harassment per se or of discrimination on the gender ground within the meaning of the Employment Equality Act, 1998. This may have been to some extent caused by the respondent’s failure to have policies and procedures in place to deal with complaints made either formally or informally. The failure to have such policies in place could have had implications for the complainant in the situation that she found herself in that she could have been unsure where to direct her complaint, what she could expect to happen arising from her verbal complaint, what would happen on foot of a written complaint, whether the matter would remain confidential, what the procedure was for carrying out an investigation and what she could expect when the investigation was completed in circumstances where her complaint was upheld/not upheld. However, it is also the case that the complainant was a shop steward or Mother of the Chapel from some time in 2000 until the cessation of her employment in December 2001 and was involved in bringing issues concerning other employees to management.
Victimisation
5.11 The complainant claims that when she complained to management, not only was no action taken but she was continually punished for voicing her complaints through ever increasing and aggressive acts of bullying and harassment by her male co-employees and managers. Section 74(2) of the Act 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,
The first issue for consideration by me is whether the complainant in the present case has in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. As referred to in the previous paragraph, based on the evidence presented, I have been unable to conclude that the complainant made a complaint in relation to sexual harassment per se or of any other discriminatory act within the meaning of the Employment Equality Act, 1998. I find, therefore, that the complainant has failed to establish a prima facie case of victimisation.
Claim of denial of promotion on gender grounds
5.12 The complainant submits that in June 2000, she applied for the position of Pre-Press Manager. She submits that she was unsuccessful and that a male candidate was appointed to the post even though he did not have the required experience. One of the interview board members (Mr. M) gave evidence that the interviewers were clear in their minds as to what they wanted. He submitted that performance assessments were not completed for the three candidates prior to interviews, that the interview board assessed the three candidates, discussed it and recommended choosing one candidate based principally on experience. He submitted that one of the things that the company was considering introducing at the time was computer plate technology in the Pre-Press area although it did not happen for a long time afterwards. He submitted that they knew one of the candidates had that experience, i.e. the successful candidate. He further submitted that the marking system was informal and that a marking system and a marking sheet were not used. He accepted that the interview was not as structured as it could be.
5.13 The respondent submitted that it did not have any documentation available relevant to the interviews. It confirmed that the post was advertised internally setting out a brief job description and it received CVs from candidates. It further submitted that it has been unable to source any of the original documentation relating to the process.
5.14 The Labour Court has stated in South Eastern Health Board v. Brigid Burke[1]
This Court has consistently commented on the need for Employers conducting interviews to have openness and transparency in their selection process. See in particular Gleeson v the Rotunda Hospital DEE00/3. Where in a case such as this the interview committee met in advance, looked at the two Curriculum Vitae, then decided to set the marking criteria, allocated a substantial number of marks for what can be regarded as the subjective elements of the assessment, and then failed to retain any notes as to how they arrived at that assessment, it would be extremely difficult for them to discharge the onus of proof placed upon them. …… On the basis of the evidence, and for reasons already referred to, Court is satisfied that the selection process was conducted in a manner which fell short of the standards of objectivity, fairness and good practice that could reasonably be expected in the circumstances.
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 interview notes.”[2]
It continued:
“A failure to keep records of interview process, which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination.”[3]
5.15 In the instant case, I have considered the following factors (i) that a male candidate was appointed (ii) the general lack of transparency including the failure to have a formal marking system referring to clearly defined assessment criteria and to the failure to make notes and (iii) the failure to retain documentation such as the advertisement for the post and the CV’s of the candidates (iv) the manner in which the interview was conducted could have allowed for the operation of subjective prejudices. Indeed, it was submitted on behalf of the respondent that the board knew all the people who they were talking to and they had known the candidates for many years at that stage. Taking into account all of the factors, I find that the complainant has established a prima facie case of discrimination on the gender ground which the respondent has failed to rebut. I therefore find, on the balance of probabilities that the respondent discriminated against the complainant on the gender ground in relation to the post of Pre Press Manager in June 2000.
Equal pay complaint
5.16 The complainant claims that she was paid less per week than a named male comparator for like work. The respondent accepted that the named male comparator was performing like work within the meaning of the legislation and submitted that there were grounds other than gender for the difference in pay. The respondent submitted that the comparator, Mr. B was hired by the respondent when the complainant was on three months leave of absence in 1997. It submitted that he had significant experience in the area of plate making and had been working in the specialised field for twenty years prior to joining the respondent. It submitted that his skills and considerable experience meant that he did not require any training and could start work immediately. It submitted that his rate of pay was commensurate with his experience and skills. The respondent submitted that the complainant joined after leaving college having studied Graphic Design. She took up a position in the art room as junior employee in the role of plate making and artwork for the pharmaceutical packaging sector. It submitted that she did not have any previous practical experience in pharmaceutical packaging and the speciality would not have been covered in her academic qualification. It submitted that her rate of pay reflected her junior position but as she gained experience, this was reflected in her salary increases.
5.17 The respondent subsequently provided a Career History in respect of Mr. B which indicates that Mr. B had several years experience as a platemaker. However, the respondent was not in a position to provide a copy of the CV that Mr. B submitted in respect of the post although it insisted that there was a CV. The complainant submitted that when she raised the matter of her pay relative to Mr. B with Mr. L at the time, she was immediately given an increase. This was not disputed by the respondent. I note that with effect from April 2000, the complainant was in receipt of a greater amount of pay per hour than the named comparator. It is unclear how the complainant’s pay could have exceeded Mr. B’s based on her four years experience between 1997 and 2001 if his salary was based on twenty years experience prior to joining the respondent. I do not therefore accept the respondent’s argument in relation to grounds other than gender in accordance with section 19(5) of the Act and I find that the complainant was discriminated against in relation to her pay. The complainant referred a complaint of discrimination to the Tribunal on 17 May 2002, however, there was no reference to an equal pay complaint until she forwarded her submission on 23 May 2006. Any redress in the form of arrears of pay can only be ordered in respect of a period not exceeding three years before the date of referral which in this case is 23 May 2003. As the complainant was not in employment in the period 2003 to 2006, I cannot make an order for arrears of pay in respect of this period.
Other claims
5.18 In relation to the other issues in respect of which the complainant claims discrimination on the gender ground such as the time in lieu arrangement, the unavailability of the necessary software on her computer to enable her to complete labelling tasks and the failure of Mr. Mc L to speak to her, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in relation to these matters.
Compensation
5.19 In relation to the issue of compensation, I have had regard to the Judgment of the European Court of Justice in Von Colson & anor v. Land Nordrhein-Westfalen[4] wherein it was stated that for the purpose of imposing a sanction for a breach of the prohibition of discrimination:
........ in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation……..
6. DECISION
6.1 On the basis of the foregoing on the balance of probabilities, I find that the respondent discriminated against the complainant on the gender ground in terms of section 23 of the Act contrary to section 8 of the Act in relation to her conditions of employment.
6.2 On the basis of the foregoing on the balance of probabilities, 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 relation to appointment to the post of Pre-Press Manager.
6.3 On the basis of the foregoing on the balance of probabilities, I find that the respondent discriminated against the complainant on the gender ground in relation to her pay contrary to section 19 of the Employment Equality Act, 1998.
6.4 On the basis of the foregoing on the balance of probabilities, I find that the complainant has failed to establish a prima facie case of victimisation.
6.5 In accordance with section 82 of the Employment Equality Acts 1998 - 2007, I hereby order that the respondent:
(i) pay the complainant the sum of €15,000.00 compensation for the effects of the acts of sexual harassment amounting to discrimination in relation to the complainant’s conditions of employment. This figure represents compensation for infringement of her rights under equality legislation in relation to sexual harassment and does not include any element relating to remuneration (and is not therefore taxable):
(ii) pay the complainant the sum of €10,000.00 compensation for the effects of the act of discrimination in the selection process for the post of Pre-Press Manager. This figure represents compensation for infringement of her rights under equality legislation in relation to the selection process for the post of Pre-Press Manager and does not include any element relating to remuneration (and is not therefore taxable):
(iii) adhere to good practice selection procedures in all future promotions including drafting a job and person specification, applying a formal marking system agreed prior to any consideration of CVs, ranking candidates by reference to that marking system and retaining all documentation including CVs and notes.
(iv) pay the complainant interest at the Courts Act rate in respect of the amounts at (i) and (ii) above in respect of the period beginning on 17 May 2002 (being the date of the reference of the claim) and ending on the date of payment.
__________________
Mary Rogerson
Equality Officer
6 May 2008