EMPLOYMENT EQUALITY ACTS 1998 - 2007
EQUALITY OFFICER’S DECISION DEC-E2008-029
PARTIES
Ms Catherine Morgan
(Represented by Doyle Hanlon Solicitors)
AND
Bank of Ireland Group
1. DISPUTE
1.1 This dispute concerns a claim by Ms Catherine Morgan that she was discriminated against in relation to her access to employment, promotion/re-grading and conditions of employment by the Bank of Ireland on the grounds of gender and marital 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 of discriminatory treatment to the Director of the Equality Tribunal on 18 May 2005 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, 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, a hearing was held on 16 November 2007 and final information received on 17 December 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The Complainant submits that she started work with the respondent in September 1990. In March 2000 she applied for part time work or job sharing as she was planning an overseas adoption. She was not offered part time work or job sharing up to December 2002 when she went on Adoptive Leave. In January 2003 she received a letter from Human Resources offering her a job sharing position, but was told by the Regional Services Manager that the offer had been an error. Towards the end of her adoptive leave, in August 2003, she contacted the Regional Services Manager to ask if part time work or job sharing would be available on her return but was told that nothing was available at that time. She was advised that she could take a career break, which she did from September 2003 for one year.
2.2 The complainant again contacted the Regional Services Manager to ask if a part time work or job sharing would be available on her return from her career break but was told that nothing was available at that time. The complainant felt she had no choice but to return to full time work in September 2004. She was due to go to the Skerries Branch for one month but this arrangement was changed by the Regional Services Manager to Malahide. Then she went to Phibsboro for two weeks and was then put on the relief staff and was the only full timer on the relief staff.
2.3 In November 2004 the complainant had a meeting with the Regional Services Manager who asked her about her second adoption and future plans. The Regional Services Manager advised her that it would be September 2005 before her part time work application would be considered.
2.4 Following this the complainant was very unhappy with the situation and had a meeting with the Regional Manager. She subsequently had a phone call from the Regional Services Manager who advised that she was aware of the meeting with the Regional Manager but that it made no difference to her part time work and job sharing application.
2.5 Two weeks later she was transferred to Swords. The complainant was told that she would be working in the Mortgage Department but there was no job for her in the Mortgage Department and she filled-in in different jobs in the branch. The branch administrator approached management regularly on her behalf as she had no proper role. She also approached the manager herself. She found the working environment difficult and went on sick leave for a few days because of the stress.
2.6 When she came back she had a meeting with the HR Manager who told her that the Regional Services Manager had the final word regarding part time working applications.
2.7 She went on sick leave again in February 2005. Three weeks later, whilst still on sick leave, she had a conference call with the Regional Services Manager and HR Manager and was told that job sharing was available if she was able to return to work shortly. The complainant wasn’t able to return to work shortly and was on sick leave since then until her resignation on 20 August 2007.
2.8 The complainant submits that she was discriminated against in not being offered part time work or job sharing between March 2000 and February 2005 and in the way she was moved around different branches and the work that she was given between September 2004 and February 2005 and that this occurred because she adopted a child.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent rejects the allegations of discrimination on the grounds of gender and marital status and states that the complainant was treated no differently from anyone else who applied for job sharing or part time work.
3.2 The respondent confirms that the complainant started work on 9 September 1990 as a Bank Assistant and worked in the Dublin North region. She was absent from December 2002 to September 2004 on a combination of Adoptive Leave, Enhanced Adoptive Leave and a career break.
3.3 The complainant first made an application for part time work or job sharing in March 2000 and the application was approved in May 2000 subject to operational requirements. However, no job sharing role was identified before December 2002 when she went on Adoptive Leave. The letter sent in January 2003 approving the complainant for a job sharing position was sent in error by Human Resources and should have been a letter approving her adoptive leave. She re-applied in mid 2003 before she was due to return from adoptive leave but could not be accommodated so she took a career break. On her return to work in September 2004 she re-applied and was told that there was nothing available in the short term.
3.4 On her return to work the complainant was told she would be going to Skerries but for operational reasons this was changed and she went to Malahide for one month.
3.5 The respondent, in their submission, confirmed that the Regional Services Manager met the complainant in November 2004 and had a general discussion about her general plans including whether she hoped to adopt a second child, but she was not asked if she intended to stay in the bank. They also confirmed that this discussion was not used as a basis on which to decline her application for job sharing. The complainant was advised that applications for job sharing and part time work were never refused. However, arrangements were now not indefinite but were for limited periods, usually of one or two years. Furthermore, there were other staff in the region who were also awaiting job sharing. She was told that the worst case scenario was that she would be able to start job sharing work by September 2005 when existing job sharing agreements came to an end.
3.6 The complainant was placed on the relief staff in November 2004. There were nine others on the relief staff: two of whom were job sharers and 5 worked part time. For operational reasons it was not possible to increase the number of job sharers.
3.7 On 1 February 2005 the complainant was transferred to Swords but it was never intended that she would work in mortgages. Soon afterwards the complainant met the HR Manager and was told that her application was being treated urgently but nothing was available immediately. A job sharing vacancy arose in Phibsboro shortly after this. On 24/25 February 2005 the HR Manager told the complainant that a job sharing vacancy would be available in April 2005.
3.8 On 28 February 2005 the complainant went on sick leave. There was a conference call soon after this to confirm the location. The job sharing vacancy was held open until June 2005 but the complainant did not accept it.
3.9 The respondent submits that it introduced flexible working in the early to mid 1990s and initially staff were granted flexible working arrangements on an indefinite basis. This led to many locations reaching the maximum number of positions that the respondent considered could be held on such an arrangement. Subsequently very few part time working and job sharing positions became available. In recent years most applications are approved for a defined period. Between September 2004 and February 2005 only one job sharing arrangement was put in place in the Dublin North Region and that was only temporary maternity leave cover.
3.10 The respondent denies discriminatory treatment and submits that the complainant was treated no differently than any other person in the same position.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant claims that she was discriminated against in relation to her access to employment, promotion/re-grading and conditions of employment by the Bank of Ireland on the grounds of gender and marital status in terms of section 6(2) of the Employment Equality Acts, 1998 – 2007 and contrary to section 8 of those Acts. It is my view that the evidence put forward relates to the complainant’s conditions of employment and that no evidence was put forward in relation to her access to employment and promotion/re-grading. Furthermore, no evidence was adduced in relation to the complainant’s marital status. I am therefore making my decision on a claim of discrimination in relation to conditions of employment on the grounds of gender. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 The complainant’s case is that she was discriminated against in relation to her application for part-time work or job sharing because it was over five years from her original application to the date that she would have been able to start work in a job sharing position. She made her first application in March 2000 and the respondent confirmed that this was approved in May 2000, subject to operational requirements, but no suitable job sharing or part time working role was identified before December 2002 when she went on Adoptive Leave. At the end of her Adoptive Leave she asked about the availability of job sharing or part time work and was told nothing was available so the complainant took a one year career break. Before the end of her career break she again asked if a part time or job sharing position was available but was told nothing was available. On her return to work in September 2004 she again requested a job sharing or part time working position. In February 2005 the complainant was told that a job sharing vacancy would be available in April 2005. The complainant could not take up this position as she went on sick leave from 28 February 2005 and never returned to work.
4.3 The respondent’s case is that the complainant was treated no differently than anyone else would have been in the same situation. They accept that the complainant was not granted job sharing for 2½ years from her initial application but this was not discriminatory and operational reasons meant no suitable vacancy arose. They also stated that she would have been job sharing seven months after she re-applied in September 2004 if she had taken up the offer to commence job sharing in April 2005. The respondent provided evidence that between 2000 and 2005 eighteen people applied for job sharing or part time working in the Dublin North Region. Five requests were granted speedily for compassionate or health reasons. The remaining 13 applicants began working part time or in job sharing capacity anywhere between two months and 3 years and 5 months after they applied.
4.4 In accordance with the respondent’s procedures the complainant completed a form when making her first application. At no time did she withdraw this application. Also, when she asked about part time working and job sharing vacancies when her Adoptive Leave was coming to an end and on return from a career break, she was not asked to fill out another form or told that this enquiry was a new application. I therefore conclude that the complainant made one application in March 2000 which was ongoing up to the time she received the offer of job sharing to start in April 2005.
4.5 The respondent stated that the vast majority of staff in the Bank of Ireland who avail of part time work and job sharing are female, therefore it is not possible for the complainant to prove discrimination on the ground of gender. However, Nathan v Bailey Gibson¹ the Supreme Court decided that “in such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the complainant’s sex.”
4.6 Section 22 (1) of the Employment Equality Acts, 1998 – 2007 states:
(a) Indirect discrimination occurs where an apparently neutral provision puts people of a particular gender at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
4.7 Therefore, as the practice in this case does bear significantly more heavily on members of the complainant’s sex than on members of the other sex, there appears to be a prima facie case of indirect discrimination.
4.8 The Code of Practice on Access to Part-Time Working,S.I. No. 8 of 2006, states: “The facility to change the existing hours of work of employees is a matter to be agreed between the employer and the employee, rather than a statutory entitlement. Best practice indicates that employers should treat such requests seriously and where possible explore with their employees if and how requests can be accommodated or how such transfers can be made. In this regard employers should consider establishing a procedure allowing for (i) application, (ii) relevant consultation and discussion, (iii) decision and response, (iv) managing the outcome (implementation or refusal).” Whilst the respondent has an application procedure there is little indication that points (ii), (iii) and (iv) are dealt with in the manner that would be expected of anorganisation the size of the respondent. This is shown by the widely divergent lengths of times between application and starting part time working or job sharing and the only explanation given is for the five compassionate cases. For the other thirteen it is difficult to understand how the respondent’s policies are applied and the only explanation given is operational reasons.
4.9 I must look at the delay in granting the complainant’s request and decide whether it can be objectively justified. In NBK Designs v Marie Inoue²the Labour Court used the three tired test for objective justification set out by the ECJ in Bilka - Kaufhaus³ which requires that I am satisfied that the measures in the respondent’s justification for the delays in granting the complainant’s request for job sharing or part time working on operational reasons:
(a) corresponds to a real need on the part of the undertaking,
(b) are appropriate with a view to achieving the objective pursued, and (c) are necessary to that end.
In applying this test I must therefore look to see:
(a) Does the delay in granting the request correspond to a real need on their part?
It is accepted that the respondent is entitled to manage its operations and as part of that it is accepted that flexible working arrangements are not an entitlement and are subject to the needs of the organisation. As such it is also accepted that it will take time to put such arrangements in place but, given that the respondent does offer these flexible working arrangements as part of their HR package, there does not appear to be objective justification for a delay of five years, in this particular case.
(b) Is the delay in granting the request appropriate with a view to achieving the objective pursued?
The respondent’s policies state that: “All applications will be discussed with the individual in terms of their personal needs and the Bank’s business needs and every effort will be made to facilitate the employee’s request.” The respondent claims that operational reasons meant no suitable vacancy arose but there was no evidence that any effort was made to facilitate the complainant’s request between March 2000 and February 2005. I therefore cannot understand how the respondent could state that the delay was appropriate for operational reasons as they made no attempt to fully implement their own procedures.
(c) Is the delay in granting the request necessary to that end?
If the delay had been necessary it could only have because the operations of the respondent would have been unduly effected by granting the complainant’s request. Given that the complainant was a Bank Assistant working for a large national organization and, as such, it seems unlikely that her presence as a full time or part time employee would have a significant impact on its operations. The position of the complainant makes it impossible to understand how the five year delay was necessary for operational requirements.
4.10 I therefore find that the respondent has failed at all three stages in justifying the delay. Furthermore, there are two aspects of the complainant’s treatment that I find compound the unnecessary delay.
4.11 Firstly, the complainant was asked about her future plans and if she would be adopting any more children. This is akin to asking a woman if she intended to become pregnant and go on maternity leave.
4.12 Secondly, I must look at the way that the complainant was treated on her return to work in September 2004. Prior to her return it was arranged that she would work in one branch but before she returned to work she was assigned to another branch for four weeks and was then assigned to relief staff for three months, before being assigned to another branch where the complaint was confused over her role. I do not find this any way to treat an employee of fourteen years standing on her return from a career break. The respondent would not have been able to treat her this way if she had been returning from Adoptive Leave, as the Adoptive Leave Act, 2005 states that an adopting parent shall be entitled to return to the job which they held immediately before the absence began and under terms and conditions of employment that are no less favourablethan if they had not been so absent from work. I am satisfied that this treatment on her return is discriminatory.
4.13 It is accepted that flexible working arrangements are not an entitlement and are subject to the needs of the organisation. It is also accepted that the significant majority of people taking up flexible working arrangements are female. It is therefore incumbent upon the organization to operate these arrangements according to fair procedures otherwise there could be a prima facie case of indirect discrimination on gender grounds. In this complaint I find that the respondent was discriminatory in that it failed in its duty to operate its procedures fairly and this led to an unacceptable delay before the complainant was offered a job sharing position.
5. DECISION
On the basis of the foregoing I find that the respondent did discriminate against the complainant on the grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 – 2007. In considering the redress in this case I have to be aware that any award for compensation should be effective, proportionate and dissuasive, therefore in accordance with section 82 of those Acts I award the complainant €30,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration (and is not therefore taxable).
I also order that the respondent implement a procedure for all job sharing and part time working applications that is fully in accordance with S.I. No. 8 of 2006, Code of Practice on Access to Part-Time Working.
_________________
Hugh Lonsdale
Equality Officer
29 May 2008
¹Breda Nathan v Bailey Gibson Ltd, The Irish Print Union and The Minister for Labour [S.C. No. 375 of 1992]
²NBK Designs Ltd v Marie Inoue, Labour Court ED/02/34
³ ECJ: Bilka-Kaufhaus (1986) ECR 1607