DEC-E2009-028 - Full Case Report

Equality Officer Decision No:  DEC-E/2009/028

 Parties

An Employee

(Represented by  Síle O’Kelly BL – Instructed by Hayes- Solicitors

And

A Government Department

(Represented by Clíona Kimber BL – Instructed by

Chief State Solicitor’s Office)

 File No: EE/2005/287

                                                                                                                                Date of issue: 8 April, 2009

TABLE OF CONTENTS

           SECTION                                                                              PAGE

            Dispute                                                                                     2

            Background                                                                             2

            Summary of Complainant’s Case                                       3

            Summary of Respondent’s Case                                        6

            Conclusions of the Equality Officer                                    9

           Decision                                                                                  16

1.         DISPUTE

           This dispute involves a claim by a complainant that -  (i) she was discriminated against by her employer (the respondent) on grounds of marital status and family status, in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 8 of those Acts, (ii) she did not receive the same amount of travelling expenses as that paid to a named comparator, that this constitutes remuneration for the purposes of the Acts and as she performs “like work” with this comparator in terms of section 7 of the Acts she is entitled to the same rate of remuneration as that comparator in accordance with section 29 of the Acts, and (iii) her employer subjected her to victimisation within the meaning of section 74(2) of the Acts.

2.         BACKGROUND

2.1      The complainant commenced employment with the respondent as an Assistant National Co-ordinator in September, 2002. The complainant contends that she was discriminated against by her employer on the discriminatory grounds cited as regards her allocation of work, that this had an adverse impact of her ability to obtain the same level of travelling and subsistence expenses as a named colleague and it also diminished her opportunity to gain a more rounded view of the work. The complainant further contends that she was victimised by her employer contrary to the Acts when she raised issues about the alleged treatment of her. The respondent rejects the complainant’s assertions in their entirety and notwithstanding this submits that the complaint was not referred to the Tribunal within the timelimits prescribed at section 77(5) of the Acts.

2.2      The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 16 August, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 16 March, 2007, the date the complaint was delegated to me. Submissions were filed and exchanged and Hearings took place on 4 October, 2007, 13 December, 2007 and 29 May, 2008. A number of issues required further clarification and this gave rise to correspondence between the Equality Officer and the parties. The final piece of correspondence on the complaint was received in mid-February, 2009

3.         SUMMARY OF COMPLAINANT’S CASE

3.1             Time Limit Issue

           The complainant rejects the respondent’s contention that her complaint is out of time. She states her complaint form, whilst accepting it details the most recent occurrence of discrimination as 22 September, 2004, clearly indicates that the alleged discriminatory treatment of her, which emanated from the conduct of her Line Manager (Ms. X) on that day, was ongoing at the date of referral of her complaint to the Tribunal and submits it is therefore within time. She states that this date refers to the day when she was notified by Ms. X of her allocation of work for the foreseeable future. The complainant submits that a further incident of discrimination and/or victimisation occurred in September, 2005 when she again requested a reallocation of work and was refused same by Ms. X. She submits that this brings her complaint within time. The complainant further submits that her complaint also contains an equal pay element – in that she did not receive the same amount of travelling and subsistence expenses as a colleague. She contends that this element of her complaint is validly before the Tribunal as section 77(5) of the Acts does not apply to claims of equal remuneration.

3.2      The complainant submits, should the Tribunal decide that her complaint was not referred within the timelimit prescribed in section 77(5) of the Acts, that there is reasonable cause for any delay in referring same and that the period for referral should be extended in accordance with section 77(6) of the Acts. The complainant states that following the events of 22 September, 2004 she was diagnosed by her GP as suffering from stress and was absent from work on certified sick leave from 4 October-29 November, 2004 and from 4 February -29 June, 2005. She contends that this stress disorder rendered her unable to act during the six month period following September, 2004 and thus refer her complaint to the Tribunal and submits that this constitutes reasonable cause for extending the period for referral of her compliant in accordance with section 77(6) of the Acts.

3.3      Discriminatory treatment etc.

           The complainant commenced employment with the respondent as an Assistant National Co-ordinator in September, 2002.  She asserts that from the outset the allocation of work to her was unfair as compared with a colleague who performed identical duties to her. The complainant asserts that she was assigned 127 projects in the Dublin Area and 33 in Country Areas whereas her colleague (Ms. A) was assigned 21 Dublin projects and 128 in Country Areas. The complainant states that despite raising her concerns about the inequitable distribution of projects with Ms. X this allocation remained until September, 2004. The complainant adds that during this period Ms. X also effectively ignored her request to – (a) have an allocation of projects in Cork because she had family there and could socialise with them when travelling and (b) an allocation of projects on the north side of Dublin where she lived so as to reduce travelling time. The complainant states that she had a meeting with Ms. X on 5 September, 2003 during which a number of issues were discussed. The complainant rejects the respondent’s assertion that it was she who raised issues about requiring her travelling arrangements to be structured around her family needs in the course of this meeting. She adds that it was Ms. X who first raised the complainant’s family situation in the course of a meeting on 12 May, 2004 when she (Ms. X) said that Ms. A was the only Assistant she had since the beginning of the Scheme that was single and she (Ms. X) did not want to disturb the complainant’s family life by assigning her country based projects. The complainant states that whilst she was shocked with such a comment she noted the work was to be reviewed in September, 2004 and hoped for a more equitable distribution of projects. The complainant states that this was not ultimately the case and indeed the situation deteriorated with the complainant being allocated more Dublin Area projects (131) and less Country Area projects (30) whereas Ms. A lost all her Dublin Area projects and had her Country Area projects increased to 148 on 22 September, 2004. The complainant states that this was all the more stressful for her given she had met with a Departmental Official on 8 September, 2004 to air her concerns and was given to believe that her concerns would be addressed in due course with a meeting of the various personnel involved.

3.4             The complainant states that as a result of this treatment of her she was certified as unfit for duty by her GP due to stress and that she was absent from work for a significant period of the period September, 2004-June, 2005. She states that in September, 2005 she again approached Ms. X about the allocation of projects and was advised that things would remain as they were and would be reviewed when additional staff (who were expected but did not materialise until September, 2006) arrived. She adds that whilst the arrival of these additional staff resulted in some reallocation of work she remains to have a significant number of Dublin Area projects (84) and a small Country Area allocation (28) as compared to Ms. A.

3.5       The complainant states that in February, 2004 Ms. X announced that travelling expenses (mileage) would have to be calculated from a location in Crumlin, Dublin. She adds that at this time there was no such office available to her – and asserts that the creation of this virtual office was a further attempt by the respondent to treat her less favourably. The complainant states that prior to this she had calculated her mileage expenses by reference to her home address - the same as Ms. A - and contends that after this announcement she understands Ms. A was treated differently to her insofar as she continued to be permitted claim travelling and subsistence from her home address. The complainant states that she physically occupied the Crumlin Office at end January, 2005 and all claims for travelling and subsistence have been calculated by reference to this location from that date.

3.6             The complainant contends that she was victimised by the respondent in terms of section 74 of the Acts. She asserts that (i) the issue of relocating her office to Crumlin in early 2004 and (ii) the refusal of Ms. X to discuss the reallocation of projects in September, 2004, following the complainant’s meeting with a Departmental Official a couple of week previously constitutes victimisation of her. She further asserts that the respondent’s response to a similar request in September, 2005 constitutes a further act of victimisation of her.

3.7      The complainant submits that she performs “like work” in terms of section 7 of the Acts with Ms. A and consequently she is entitled to the same rate of remuneration as paid to her. The complainant further submits that travelling and subsistence expenses are remuneration for the purposes of the Acts. In support of this assertion the complainant seeks to rely on the decision of the Labour Court in Department of Justice v Impact[1] when the Court held that a travelling allowance formed part of the consideration received by the employees in question in respect of their employment. The complaint also refers to the judgement of the ECJ in Garland v British Rail Engineering Ltd[2] in respect of the expansive interpretation the Court gave to “pay” in terms of (the then) Article 119 of the Treaty of Rome. She asserts that her comparator has received considerably more travelling and subsistence expenses than her as a result of the discriminatory allocation of projects between them.

3.8      In conclusion the complainant asserts that the allocation of work to her was discriminatory on the grounds cited. She adds that her allocation between Dublin area and Country Area projects when compared to Ms. A adversely impacted on her ability to obtain a more rounded view of the Scheme because of the small number of Country projects assigned to her. She adds that the allocation also limited her capacity to obtain travelling and subsistence expenses as compared to Ms. A. The complainant further submits that these expenses constitute remuneration for the purposes of the Acts and as she performs “like work” with Ms. A she is entitled to the same rate of remuneration as paid to her. She adds that the operation of the virtual office in Crumlin was a deliberate attempt by the respondent to further disadvantage her and constitutes victimisation of her. Finally she contends that the behaviour of Ms. X in September, 2004 and September, 2005 constitute victimisation of her contrary to the Acts.

4.         SUMMARY OF RESPONDENT’S CASE

4.1      Time Limit Issue

            The respondent submits that the complaint is out of time as it was not referred to the Tribunal within the statutory required period of six months from the most recent occurrence of alleged unlawful treatment of the complainant as detailed on her complaint form – 22 September, 2004. It submits if the complainant’s assertion that the alleged discriminatory treatment of her was ongoing in June, 2004, it would give rise to an absurd situation that almost every complaint referred to the Tribunal could be said to be ongoing if the effects of the alleged treatment existed at the time of the referral. It adds that the Acts clearly require the referral of the complaint within six months of the date of occurrence of the alleged discriminatory treatment, not six months from the effects of same. The respondent submits that travelling and subsistence is not remuneration for the purposes of the legislation and the timelimit arguments on that matter are not therefore relevant

4.2       The respondent accepts that the complainant was absent from work for the periods indicated but rejects her assertion that this prevented her from referring her complaint to the Tribunal. It notes that there was a two month window between end November, 2004 and early February, 2005 when the complaint was not considered unfit for duty by her GP and attended work. The respondent submits that it was open to her to refer her complaint to the Tribunal during this period and she did not do so. It further notes that during this period (January, 2005) she was able to refer a complaint to her employer under its Internal Grievance Procedure without difficulty. The respondent submits that the complainant has failed to show reasonable cause for failing to refer her complaint within the timelimit prescribed at section 77(5) of the Acts and therefore cannot avail of the extension of time available in accordance with section 77(6) of the Acts.

            Discriminatory treatment etc.

4.3       The respondent states that the complainant was appointed to the post of Assistant National Co-ordinator in September, 2002. It adds that the complainant was allocated projects broadly similar to those allocated to her predecessor (which had been predominately in the Dublin Area) and having regard to the allocation of projects which had been assigned to the other Assistant National Co-ordinator (Ms. A) who had been appointed the previous June and who was located in Wexford. The respondent (Ms. X) states that she met with the complainant on 5 September, 2003 to discuss a number of work related issues with her. The respondent accepts the complainant raised the issue of reallocation of work in the course of this meeting but contends that she did so in the context of travelling being arranged around family needs. It asserts that this was the only occasion the complainant’s family status was ever discussed and rejects emphatically the complainant’s assertion that Ms. X made reference to her (the complainant’s) family and Ms. A’s marital status at a meeting on 12 May, 2004. The respondent adds that the refusal to allocate the complainant projects in north Dublin was based on the practice not to assign an Assistant National Co-ordinator (at least in the period following appointment) projects in an area where s/he had previously operated as a Local Co-ordinator – as was the situation in the instant case. The respondent accepts that the complainant expressed, at one stage, an interest in acquiring responsibility for projects in the Cork Area, primarily because she had family there. The respondent states that it did not consider this to be a relevant factor for allocating the complainant that region.

4.4       The respondent states that there was a reallocation of projects in September, 2004- the effect of which was the complainant received responsibility for more projects in the Dublin Area and lost some Country projects and the comparator (Ms. A’s) lost her Dublin Area projects and increased her Country Area ones. It submits that allocation of work at that stage was as follows – the complainant 137 Dublin Area projects and 36 Country Area projects, Ms. A no Dublin Area projects and 145 Country Area projects. It submits that there were reasons unconnected with the marital status or family status of the personnel involved which influenced Ms. X’s decision to assign Ms.A projects in the Western areas of the country and to remove her responsibility for a number of schools in the Dublin Area. The respondent submits that the complainant and Ms. A had a sufficient variety of rural and urban projects – this is how it distinguishes between projects, not on the basis of geographical location - to give each of them a wide experience of the Scheme and that the allocation was reasonable having regard to the Department of Finance Circular 11/82 – which governs travelling and subsistence and the needs of the Scheme.

4.5       The respondent states that the complainant was absent from work due to illness for most of the period between September, 2004 and June, 2005. It accepts that the complainant approached Ms. X seeking a reallocation of projects in September, 2005 and that her (Ms. X’s) response was that no reallocation of projects would be undertaken until the new Assistant National Co-ordinators which were to be assigned to the Scheme were appointed. The respondent states that there was a delay in appointing these personnel and they did not take up office until September, 2006, at which time a reallocation of the projects was carried out. The respondent submits that the response of Ms. X at the time could not be considered as discrimination or victimisation of the complainant contrary to the Acts. It adds that the meeting of 8 September, 2004 between the complainant and a Departmental Official covered a wide range of issues, including travelling expenses, geographical breakdown of projects but that the central focus of the discussion was the complainant’s working relationship with Ms. X on a day to day basis. It adds that the complainant did not, at any time during the meeting, make reference to discrimination or her marital or family status being issues for her as regards her alleged difficulties with Ms. X. The respondent adds that the Departmental Official subsequently spoke with Ms. X and responded to the complainant on 8 October, 2004 and again on 12 January, 2005, when it advised the complainant, inter alia, that the Crumlin office was provided to her with effect from 31 January, 2005 and drew her attention to its Internal Grievance Procedure should she wish to formally pursue her complaint against Ms. X. The respondent submits that this treatment could not be regarded as victimisation of the complainant.

4.6       The respondent states that due to circumstances outside its control there was no office accommodation available for the complainant at the commencement of her employment. It adds that she was therefore permitted to work from home and she received the appropriate allowance. She was also permitted to calculate her mileage expenses by reference to her home address in the circumstances. The respondent states that office accommodation was available in Crumlin for the complainant from end September, 2003 but that she declined to use that accommodation until end January, 2005. It adds it was against this background that the instruction was issued that mileage expenses should be calculated by reference to the Crumlin office. The respondent accepts that Ms. A continued to use her home address for calculation of her mileage expenses and submits that this is reasonable and in accordance with Circular 11/82 - as her home was in fact her office –  and no alternative accommodation was provided by the respondent for her. The respondent states that the complainant, in any event, continued to calculate her mileage by reference to her home address until she physically occupied the Crumlin office in January, 2005. It submits that this treatment could not be construed as discrimination or victimisation of the complainant contrary to the Acts.

4.7       The respondent accepts that the complainant and Ms. A perform “like work” in terms of section 7 of the Acts but submits that travelling and subsistence expenses do not form remuneration for the purposes of those Acts. It refers to the definition of pay adopted by the ECJ in Arbeiterwohlfahrt der Stadt Berlin v Botel[3] where the Court defines pay as “all consideration, in cash or in kind ……” and submits that this is the well settled definition of pay adopted by the ECJ. The respondent further submits that notwithstanding the broad scope of the definition adopted, it must be a form of “consideration”. It adds that the term “consideration” is defined in Murdoch’s Legal Dictionary as “some valuable benefit received by a party who gives a promise or performs an act, or some detriment suffered by a party who receives a promise..”. The respondent asserts that the crucial word in this definition is “benefit” and submits that the reimbursement of legitimate expenses incurred by an employee in the course of his or her duties could not be considered a benefit and therefore cannot constitute pay within the meaning of national and Community law. The respondent submits that the Department of Justice v Impact[4] case is of no relevance as the “travelling allowance” in that case had no relation to costs of travel. It further submits that the Garland v British Rail Engineering Ltd[5] has no application either as what was at issues in that case was concessionary travel costs to retired employees of the respondent and the issue of expenses did not come into the case at all. The respondent states that travelling and subsistence expenses paid to civil servants is governed by Circular 11/82 and reimbursement of such expenses is made on a “flat rate” which is determined by the Department of Finance and is not intended as a source of emolument or profit (Paragraph 3 of Circular refers). This “flat rate” of expenses is not regarded as taxable income by the Revenue Commissioners, in contrast to payment of a standard amount on a periodic basis regardless of the expenses incurred, which is taxable. The respondent submits that the manner in which the Revenue Commissioners treat payment of these expenses further supports the assertion that the “flat rate” allowances are not remuneration for the purposes of the Acts.

5.         CONCLUSIONS OF THE EQUALITY OFFICER

5.1     The issues for decision by me are (i) whether or not this complaint was referred to this Tribunal within the timelimits prescribed by section 77 of the Employment Equality Acts, 1998 and 2004, (ii) if the complaint is validly before the Tribunal, whether or not the respondent discriminated against the complainant on grounds of marital status and family status, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts in terms of her conditions of employment, (iii) whether or not travelling and subsistence expenses constitute remuneration for the purposes of the Acts and as the complainant performs “like work” with this comparator in terms of section 7 of the Acts is she entitled to the same rate of remuneration as that comparator in accordance with section 29 of the Acts, and (iv) whether or not her employer subjected her to victimisation within the meaning of section 74(2) of the Acts. In reaching my decision I have taken into consideration all of the submissions, both written and oral, made by the parties as well as the evidence given by witnesses at the Hearing.

5.2      Time Limit Issue

            The question arises as to whether or not the complaint is validly before the Tribunal for investigation. The complainant submits that the effects of the alleged discriminatory treatment of her were ongoing in June, 2005 when she referred her complaint to the Tribunal and it is therefore within time. The respondent, whilst denying it discriminated against her at all, contends that the scenario outlined by the complainant would give rise to an absurdity if the Tribunal were to accept her arguments. The complainant stated in evidence at the Hearing that she considered her interaction with Ms. X on 22 September, 2004 and the consequential e-mail to her to constitute the most recent incident of discrimination/victimisation prior to the referral of her complaint. It follows therefore that the decision which might give rise to any less favourable treatment/victimisation of the complainant was taken by Ms. X at latest 22 September, 2004 – which is more than six months before the date of referral of the complaint. No further consideration of the matter was undertaken by Ms. X between then and June, 2005. In Amies v Inner London Education Authority[6] the UK EAT held that the “fact that a specific act out of time may have continuing consequences within time does not make it an act extending over a period.”. The circumstances of the instant case, in my view, fall into this characterisation and therefore section 77(6A) does not apply to the instant case. The only decision taken by Ms. X on the matter was at latest 22 September, 2004. Consequently, I find that this element of the complainant’s arguments does not render her complaint within time in terms of section 77(5) of the Acts.

5.3             It is common case that the issue of reallocation of work was raised by the complainant again in September, 2005 and that Ms. X again refused to reallocate projects between the complainant and Ms. A – on this occasion stating that this would happen when the proposed restructuring of the Scheme took place. In Gillen v Department of Health and Children[7] the Labour Court held that separate acts “can be considered as separate manifestations of the same disposition to discriminate”. In Cast v Croyden College[8] the UK Court of Appeal held that “adecision in response to the repetition of an earlier request might amount to a new act of discrimination, even if made on the same facts, where it resulted from a new consideration of the request”. I am satisfied, on balance, that the conversation between the complainant and Ms. X was a fresh consideration of the complainant’s original request and that this decision and the previous decision of Ms. X in September, 2004 are sufficiently linked to correspond to “separate manifestations of the same disposition to discriminate”. I note that this second incident occurred after the complaint was referred to this Tribunal. Whilst it may have been ideal had the complainant referred a separate complaint form to the Tribunal in respect of this issue, the fact that she did not cannot, in my view, be considered as fatal to her maintaining her complaint before the Tribunal. In the first instance, the complaint form is not statutory based and can be described as an administrative tool to aid all concerned with the complaint. If a complainant was required to document each and every alleged act of less favourable treatment after the initial referral on a separate and new complaint form, it would undoubtedly present an administrative nightmare to the Tribunal and place a significant burden on the complainant to exercise her statutory rights. Secondly, the respondent was on notice of the September, 2005 interaction between the complainant and Ms. X – a discussion it accepts took place- when it received the complainant’s original Submission on the complaint, via this Tribunal, on 1 February, 2007 and it therefore had adequate opportunity to prepare its defence of the complaint. In light of the foregoing I find that the complaint is validly before the Tribunal for investigation and consequently the arguments on the reasonable cause issue do not need to be addressed.

5.4       I propose to deal first with the question of whether or not travelling and subsistence expenses constitute remuneration for the purposes of the Acts. The concept of pay has been well established by the ECJ in a range of judgements over the past twenty-five years or so. The complainant seeks to rely on the ECJ judgment in Garlandv British Rail Engineering Ltd[9]. What was at issue in that case was the facility of concessionary rates in respect of travel on British Rail for the families of former employees. The Court clearly decided that such a facility was a benefit to former employees which flowed for their previous employment relationship with British Rail Engineering and therefore held it constituted pay for the purposes of the Treaty. It was not dealing with expenses incurred by an employee in discharging his/her duties - which is at issue in the instant case. I do not therefore consider that judgement to have any relevance to the matter at hand, other than it clearly indicates the ECJ’s view that a benefit of some kind flowing from an employment relationship constitutes remuneration fro the purposes of EU law. The ECJ has consistently decided that “pay” for the purposes of the Treaty and the associated Directives involves “consideration” of some kind[10]. I accept the argument advanced by the respondent that the term “consideration” must involve a benefit of some kind (in the context of the receiver) as accepted in Garlandv British Rail Engineering Ltd[11]. The payment of expenses for travelling and subsistence to an employee, in order to reimburse that employee for any outlay legitimately incurred by him/her in the discharge of his/her official duties – which is the nature of the reimbursement made by the respondent to the complainant and Ms. A- cannot be considered to constitute a benefit to that employee. The model of reimbursement operated by the respondent in the complainant’s case involves payment of a “flat rate” of mileage and subsistence allowances as approved by the Department of Finance from time to time. Evidence was given at the Hearing by an Official from that Department as to the methodology applied in deciding those rates and it is clear that the rates approved are not intended to yield a benefit to an employee. I am also mindful of the distinction which the Revenue Commissioners draw between reimbursement of expenses paid on the “flat rate” basis, which is paid free of tax and the payment of “round sum expenses” (paid periodically irrespective of actual expenses incurred), which is subject to tax. The complainant refers to the Labour Court Decision in Department of Justice v Impact[12]. That case involved a dispute concerning the payment of a “travelling allowance” to and from work and its payment on a pro-rata basis to part-time employees as compared to their full-time colleagues. The Court, in deciding that the allowance constituted “pay” for the purposes of the Anti-Discrimination (Pay) Act, 1974, noted that what had historically been an allowance (derived from the construction industry) to compensate workers for the cost of getting to and from work,  had over the years, through the industrial relations machinery, evolved into an additional element of the pay of certain workers and that in reality it had no relevance to travel and was simply a concession from the employer forming part of the consideration for the job. This scenario is clearly different to the circumstances in the instant case and it therefore has no relevance. Finally I note the judgement of the ECJ in  Lommers v Minister van Landbouw, Natuurbeheer en Visserij[13] which states that “the fact that certain conditions may have pecuniary consequences does is not sufficient to bring such conditions within the scope of Article 119 (now Article 141) of the Treaty…”.  In light of the foregoing, I find that travelling and subsistence expenses paid by the respondent to the complainant do not constitute remuneration for the purposes of the Acts.

5.5      Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment and or victimisation. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

5.6             In light of my conclusions at paragraph 5.4 above the complainant’s claim falls to be considered as one of equal treatment and/or victimisation and I shall examine the equal treatment element first. The complainant asserts, in the first instance, that she was treated less favourably on grounds of marital status and family status in respect of the allocation of work to her by Ms. X from the outset of her employment in September, 2002. I note that Ms. A (who is single and has no children) was appointed three months before the complainant in June, 2002 and had been assigned her projects. The complainant was assigned the remainder. In the course of the Hearing the complainant stated that she did not consider her marital status or family status to have been an issue at that time. Consequently, I am not satisfied that the initial allocation of work constitutes less favourable treatment of the complainant on the grounds cited.    

5.7             It is common case that the complainant met with Ms. X on 5 September, 2003. The respondent asserts that the complainant raised the issue of her family circumstances in the course of that meeting as a potential difficulty to travelling for work. The complainant rejects this. Having assessed the evidence on this I find the complainant’s version of events more compelling as I consider such a comment to be inconsistent with the complainant raising the issue of assignment of more Country Area projects to her at that time, which is not disputed. In contrast, the complainant asserts that her family and marital circumstances were raised by Ms. X in the course of a meeting between them on 12 May, 2004 - an assertion which is denied by Ms. X. I note that the complainant and Ms. X had been involved in a verbal altercation the previous week. I am satisfied that by this stage the working relationship between them was quite strained. However, on balance, I am not convinced that Ms. X made the comments attributed to her, particularly as at the time the complainant’s children were all over the age of eighteen and the complainant stated in the course of the Hearing that these issues were never something she considered relevant to her working life. The allocation of projects was revisited by Ms. X the following September. Comparison of the data submitted by the parties for the period in respect of the allocation of projects is difficult to reconcile because of a change in how it was retained and the fact that the respondent characterised the projects as urban/rural and not Dublin/Country. However, what is clear is that Ms. A was assigned more Country Area projects and the complainant was assigned more Dublin Area projects at that stage. I find this breakdown to be consistent with the fact that the complainant is based in Dublin and Ms. A in Wexford. The respondent submits that it was also obliged to utilise the resources available to it for the Scheme in the most efficient and effective way possible and to have regard to the terms of Circular 11/82. Having evaluated the evidence submitted on this point I am not satisfied that this objective was achieved as the complainant had to travel through some of the areas which Ms. A had responsibility for in order to get to projects in her area of responsibility, although such a finding does not, of itself, necessarily point to discriminatory treatment. The respondent further submits that particular circumstances prevailed which required Ms. A to be assigned certain schools in the Western part of the country. No tangible evidence was adduced by the respondent to support that assertion. I am however, satisfied that other circumstances prevailed at that time, particularly involving the need to have Ms. X more office bound, which required a reallocation of work and resulted in an increase in the number of Dublin Area projects to the complainant is concerned which was unconnected with the discriminatory grounds cited.  

5.8      Unfair treatment and discriminatory treatment are not synonymous concepts. I am of the view that the allocation of projects in September, 2004 by Ms. X between the complainant and Ms. A was unfair. However, I am not satisfied that the complainant’s marital status or family status had any bearing whatsoever on the decision. As I said previously it was clear (particularly from documentation submitted in the course of my investigation and the evidence of Ms. A) that the working relationship between the complainant and Ms. X was extremely strained at that time – indeed their demeanour towards each other in the course of the Hearing clearly demonstrated that the frayed relationship was still in existence at that time. I therefore consider it more likely that this factor was a significant contributory element in the allocation of projects in September, 2004. Having evaluated all of the evidence presented to me on this issue I find, on balance, that the complainant has failed to establish a prima facie case of discrimination on the grounds cited and this element of her complaint fails.

5.9       The complainant submits that the creation of a “virtual office” for her in Crumlin and the instruction that travelling and subsistence expenses must be calculated by reference to that location from February, 2004 constitutes less favourable treatment of her on the grounds cited. I am satisfied that the respondent was involved in internal discussions about the Crumlin Office from September, 2003 but that it never formally instructed the complainant it was her official work address until 12 January, 2005. In addition, no tangible evidence was submitted to support the respondent’s assertion that she refused to relocate. I am also satisfied that the instruction issued by Ms. X in February, 2004 was merely a relaying of the directive communicated to her by the respondent on the matter. The complainant did not physically occupy this office until 31 January, 2005 and despite Ms. X’s instruction some eleven months earlier she continued to calculate travelling expenses from her home address – the same as Ms. A did - and the respondent paid both their expenses on that basis in that intervening period. Having regard to the foregoing I find that the complainant has failed establish a prima facie case of discrimination on the grounds cited and this element of her complaint also fails

5.10     The complainant submits that (i) the events related to the Crumlin Office, (ii) the allocation of projects in September, 2004 and (iii) the refusal of Ms. X to reallocate projects in September, 2005 constitute victimisation of her contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:

                       “For the purposes of this Part victimisation occurs where dismissal or other adverse        treatment of an employee occurs as a reaction to-

                                   (a)        a complaint of discrimination made by an employee to the employer…

                                    (f)        an employee having opposed by lawful means an act which is unlawful                           under this Act…. or

                                    (g)        an employee having given notice of an intention to take any of the                                    actions mentioned in the preceding paragraphs.”

            The instruction which the complainant takes issue with in respect of the Crumlin Office took place in February, 2004. On the basis of the complainant’s own evidence she had never prior to February, 2004 made a complaint of discrimination to her employer or expressed an intention to do so. Consequently, the actions of the respondent on this point do not constitute victimisation of the complainant in terms of the Acts. A similar situation prevailed in September, 2004 in that the complainant had never made a complaint of discrimination to her employer. The complainant had an opportunity on 8 September, 2004 to raise her concerns of discrimination with the Departmental Official but she did not do so. In the circumstances the allocation of projects by Ms. X at the end of that month cannot constitute victimisation of the complainant in terms of the Acts. The complainant’s final allegation of victimisation relates to the refusal of Ms. X to review the allocation of projects in September, 2005. By that time the respondent was aware of the complainant’s claim with this Tribunal. On the basis of the evidence presented on this matter, I am satisfied that at the time Ms. X had a legitimate expectation of additional staff being assigned to the Scheme in the near future. Her decision to await the appointment of these staff before reviewing the work allocations was reasonable in the circumstances. The fact that these appointments were not made until some months later does not alter my view on this point. In light of the foregoing I find that the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Acts.

6.         DECISION OF THE EQUALITY OFFICER.

           I have completed my investigation of this complaint and make the following Decision in   accordance with section 79(6) of the Employment Equality Acts, 1998-2008.

I find that -

                        (i)         the complaint was referred to this Tribunal within the timelimits prescribed at                    section 77 of the Employment Equality Acts 1998 and 2004 and is validly                                    before the Tribunal for investigation,

                        (ii)        the travelling and subsistence expenses paid by the respondent to the                                 complainant, by way of reimbursement of legitimate expenses incurred by her                    in the course of her official duties, does not constitute “remuneration” for the                  purposes of the Employment Equality Acts 1998 and 2004,

(iii)       the complainant has failed to establish a prima facie case of discrimination on        grounds of marital status and family status, in terms of section 6(2) of the         Employment Equality Acts 1998 and 2004 and contrary to section 8 of those Acts in respect of her conditions of employment,

(iv)            the complainant has failed to establish a prima facie case of victimisation in terms of section 74 of the Employment Equality Acts 1998 and 2004, and her complaint therefore fails.

           _______________________________

            Vivian Jackson         

            Equality Officer

             8 April, 2009