The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2008-051
PARTIES
Ms Heather Lane
(Represented by the Equality Authority)
AND
MBNA
(Represented by IBEC)
File references: EE/2005/278 and EE/2007/377
Date of issue: 16 September 2008
1. DISPUTE
1.1 This dispute concerns a claim by Ms Heather Lane that she was discriminated against in relation to promotion/re-grading and conditions of employment by MBNA on the ground of gender in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts and suffered victimisation in accordance with section 74 (2).
1.2The complainant referred her claim of discriminatory treatment to the Director of the Equality Tribunal on 4 August 2005 under the Employment Equality Acts 1998 and 2004 and on 19 October 2007 referred her claim of victimisatory dismissal under these Acts. 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 complainant and a hearing was held on 10 April 2008.
1.3 Section 79(1A) of the Employment Equality Acts 1998 – 2008 requires me to make a decision on each claim and I have therefore dealt with the discriminatory treatment and victimisation claims separately.
2. SUMMARY OF THE COMPLAINANT'S CASE
DISCRIMINATORY TREATMENT
2.1 The Complainant submits that she started work with the respondent as a Customer Assistant on 15 October 2001. In 2002 she took a lateral move to work as a Reporting Analyst in Personnel. In October 2003 Mr L was appointed her manager and they discussed her possible promotion. In December 2003 the complainant went on maternity leave.
2.2 The complainant submits that in April 2004, whilst still on maternity leave, she told her manager that she was interested in a vacancy in Compensation and Benefits. A meeting to discuss the vacancy with her manager was cancelled twice and on the third occasion she was left waiting for over an hour. At the meeting she was told that a degree was needed, although this was not on the job specification, and that a position in Payroll would be more suitable. On this basis the complainant withdrew her application. The complainant submits that the successful candidate was a single woman with no children who had no relevant qualifications and no personnel experience.
2.3 The complainant submits that she returned from maternity leave on 11 June 2004 and the night before this her manager rang and told her to report to Payroll the next morning. When told that there would be no Grade Review she requested to return to her previous role. The complainant submits that when she “escalated the matter” she was promised a Grade Review within 6 months but it did not happen. When she reported for work in Payroll she was given no desk or phone of her own, no training and had very little work to do until 26 July 2004. She reported this to her manager and no action was taken, so she went to her head of department and was given a pay rise and was promised a grade review within 3-6 months.
2.4 When she complained that she had been unfairly treated on her return from maternity leave at a round table meeting in autumn 2004 her Regional Manager arranged a meeting with her head of department who told her it was due to a “miscommunication”. In December she was not selected for a grade review but got a ‘commendation’ which is a non-monetary recognition.
2.5 The complainant submits that in March 2005 she advised her manager that she was pregnant. On 15 April 2005 she was told by the head of department that her appraisal had been refused because of her attitude. She was upset and went home and stayed out with work related stress. On Sunday 24 April 2005 the head of department advised the complainant that Mr L was no longer the Payroll Manager and that she would report directly to the UK in future.
2.6 The complainant submits that she made her complaint formal and on 3 May 2005 she had a meeting with the head of department and the People Relations Department where she stated that she considered she had been treated unfairly because of her pregnancy and maternity leave and she asked for a written explanation why she had not been promoted or appraised. At a subsequent meeting on 5 May 2005 she was told that her managers had been too busy to complete the paperwork and that Mr L had performance issues with her. She was asked if she wanted to resign. On 12 May 2005 her appraisal was delivered by Mr L and she disputed most of the critical points as they were inconsistent with her monthly reviews.
2.7 The complainant submits that she was on sick leave from May to August 2005 and on maternity leave from September 2005 to February 2006. On 7 June 2006 Mr H who replaced Mr L held a ‘return from absence’ meeting with her which included a pregnancy related absence which should not have been included; when this was clarified with People Relations Mr H apologised.
2.8 The complainant submits that on 26 July 2006 the Equality Authority wrote to the respondent about her complaint and on 4 August 2006 she referred her claim to the Equality Tribunal. On the 24 August 2006 the respondent issued a decision on the formal complaint in which the complaint of discrimination was not upheld but the complaints regarding promotion were partly upheld. This was appealed by the complainant but the appeal was deferred pending the outcome of this claim.
2.9 The complainant submits that the employer’s pension contribution was not paid whilst she was on maternity leave from December 2003 to April 2004. This was subsequently rectified when she made a complaint.
VICTIMISATION
2.10 The complainant submits that she was victimised as a result of making a complaint to the Equality Tribunal.
2.11 On the 15 March 2007 she was informed that she would be redundant from 31 May 2007. She accepts that there was a redundancy situation but submits that no genuine effort was made to re-deploy her. She was interested in one position in Quality until she found out it was in Insurance. When she expressed dissatisfaction with the re-deployment efforts she was told that she could take a grievance. There was a vacancy as a Compensation Analyst but the complainant submits that it was initially advertised only in the UK and she was not made aware of it until 10 May when she considered it too late in the day to try and apply for a position before she was due to leave on 31 May 2007.
2.12 A consultation meeting was held on 25 April 2007 and the complainant received a letter the following day giving her 5 weeks notice, stating that efforts would be made to find her an alternative job and that she would receive an enhanced redundancy package if she signed an agreement that she would make no further claims against the respondent. As this would mean she could not proceed with this claim the complainant submits that she did not sign the agreement and subsequently received a reduced redundancy package.
3. SUMMARY OF THE RESPONDENT’S CASE
DISCRIMINATORY TREATMENT
3.1 The respondent denies the allegations of discrimination and submits that the complainant was treated no differently than anyone else would have been in the same circumstances.
3.2 The respondent submits that most of the case refers to 10 months (June 2004 – March 2005) when the claimant was not pregnant or they were not aware that she was pregnant. Furthermore the complainant was treated no differently when she was pregnant than when she was not pregnant.
3.3 The respondent submits that the complainant was commended for her performance but this does not mean that she would be promoted and other members of staff would have been treated similarly. The promotion policy is clear and objective and the complainant’s performance reviews show that she was treated fairly. However, the respondent accepts that the complainant was mismanaged when given good reviews but a bad appraisal.
3.4 The respondent submits in relation to the vacancy that arose in April 2004 that the job description did not specify that a degree was needed but they cannot confirm if Mr L told the complainant that a degree was needed as he has left the company. They also submit that it would not be unusual for a manager to discourage someone from applying for a job and on this occasion someone else was also discouraged from applying as well as the complainant. The complainant’s previous role had gone in a re-structuring and the respondent submits that the shared desk and phone, whilst not being ideal, were due to training needs and space constraints, furthermore she was given a pay rise which was highly unusual.
3.5 The respondent submits that although her manager, Mr L, did not follow up on the commitment to a grade review the complainant did not raise a grievance at the appropriate time but waited until she was pregnant when she had the protection of the Employment Equality Acts.
VICTIMISATION
3.6 The respondent denies that any victimisation of the complainant took place and submits that there was a genuine redundancy situation as the payroll function closed in Ireland and the UK and the complainant was the only payroll person in Ireland.
3.7 The respondent submits that the complainant was advised of the redundancy on 15 March 2007 and there were meetings on 5 and 25 April 2007.
3.8 Genuine efforts were made to re-deploy the complainant and there was an objective evaluation of skills and knowledge compared to positions arising. However, the complainant was not suited to either of the positions that arose in this period. Also, the complainant did not apply for the Compensation Analyst position, which through a genuine mistake was not initially advertised in Ireland but the closing date was delayed until 17 May 2007.
3.9 The respondent submits that the disclaimer document was a prudent policy and the HR Manager told the complainant that this claim was not covered but on legal advice they could not change the wording and a decision was made not to put this in writing. The respondent submits that this advice was given in good faith. Also, the respondent submits that the complainant did not ask for the disclaimers to be removed.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for decision are whether the complainant was discriminated against in relation to promotion/re-grading and conditions of employment on the ground of gender and whether shesuffered victimisation. In making my decisions I have taken into account all of the evidence, both written and oral, made to me by the parties.
DISCRIMINATORY TREATMENT
4.2 The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus¹ found that pregnancy is a uniquely female condition and that where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive², even though there may be no male comparator, and this is set out in section 18(1)(b) of the Employment Equality Acts, 1998-2007. This case centres on the complainant’s return from maternity leave in June 2004 and EU Directive 2002/73/EC states:
“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.”
4.3 I accept the complainant’s evidence that shortly before returning from maternity leave she was discouraged from applying for a job which she considered herself suitable for against the job specification and which was filled by a single woman with no children who did not have the qualifications that the complainant was told was necessary. This establishes facts from which an inference of discrimination may be drawn. This inference becomes stronger when linked to the poor conditions of employment given to the complainant during the first six weeks of her return from maternity leave, together with the promised grade reviews that were put off and the difficulties she had with an appraisal which damaged her opportunity for promotion and/or re-grading. Therefore, in accordance with section 85A I find that: “facts are established by or on behalf of the complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
4.4 The respondent says that it would not be unusual for a manager to discourage someone from applying for a job but gives no explanation why it happened in this case, they admit that the complainant’s situation on her return from work was not ideal but contend that there were practical reasons for the situation and that she deliberately misconstrued it as being related to her return from maternity leave. They also state that MBNA has a clear and objective policy in relation to promotion and the problems about the postponed grade review and adverse appraisal were due to poor management but not discriminatory treatment.
4.5 The complainant did not raise a grievance about being discouraged from applying for the job in April 2004 and the working conditions were rectified after six weeks but she raised the other issues beyond her immediate manager and the opportunity to rectify the alleged mismanagement was not taken.
4.6 I find that the respondent has failed to rebut the inference of discrimination against the complainant in respect of the actions detailed above that took place before and after she returned from maternity leave.
VICTIMISATION
4.7 In this case I have to look at whether victimisation took place because the complainant took a complaint to the Equality Tribunal in relation to her redundancy. Section 74 (2) states:
“…..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, …….”
4.8 It is accepted that it was a genuine redundancy situation but evidence was put forward that the complainant received adverse treatment in relation to efforts to re-deploy her and in the signing of a disclaimer.
4.9 There are a number of factors in the re-deployment efforts; the complainant ruled herself out of working in a number of areas, the respondent considered her unsuitable for two positions that arose and another position was advertised only a short time before the complainant was due to leave. Although the complainant felt that the respondent could have made more efforts to assist her to find another position I find that there is not enough evidence to conclude that she suffered adverse treatment as a reaction to making the claim for discriminatory treatment.
4.10 The complainant was given a verbal assurance that if she signed the disclaimer she could proceed with her claim for discriminatory treatment. However, this was not put in writing and she decided not to sign the disclaimer and consequently received a reduced redundancy package; €6,690.16 instead of €13,006. The only reason that the complainant did not sign the disclaimer, and therefore received the reduced redundancy package, was to be able to pursue her claim of discriminatory treatment. I find that this amounts to adverse treatment as a reaction to making the claim for discriminatory treatment within the meaning of section 74 (2) of the Acts.
5. DECISION
I have investigated the above complainants and make the following decisions in accordance with section 79 of the Acts:
i) That the respondent did discriminate against the complainant on the grounds of gender in terms of section 6(2)(a) in relation to promotion/re-grading and conditions of employmentcontrary to section 8 of the Employment Equality Acts, 1998 - 2008. In accordance with section 82 of those Acts I award the complainant €17,000 in compensation for the discriminatory treatment suffered, and
ii) That the respondent did victimise the complainant in terms of section 74 (2) of the Employment Equality Acts 1998 – 2008. In accordance with section 82 of those I award the complainant €6,315.84 being the difference between the basic and enhanced redundancy payments and a further €33,000, being equivalent to one year’s salary, in compensation for the adverse treatment suffered.
___________________
Hugh Lonsdale
Equality Officer
16 September 2008
1. Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus ECJ C-177/88 [1990] ECR I-3941
2. Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions.