DEC-E2009-058 - Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision DEC – E200X – 058

PARTIES

Ms Mary Horan

(represented by Ms Kiwanna Ennis, B.L., instructed by O’Sullivan O’Dowd Solicitors)

and

SAP SCC Ireland Ltd

(represented by Mr Francis Drumm, B.L., instructed by Arthur Cox Solicitors)

File Reference: EE/2006/490

Date of Issue:  14^th July 2009

 Claim

The case concerns a claim by Ms Mary Horan that SAP SCC Ireland Ltd discriminated against her on the grounds of gender, marital status and family status contrary to Sections 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, promotion and re-grading, conditions of employment, discriminatory dismissal and victimisation contrary to Sections 8 and 74 of the Acts, in demoting her upon her return to work from maternity leave, and by effecting her constructive dismissal by failing to engage with her on the issue of her demotion.

The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 19 December 2006.  On 15 September 2008, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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.  On this date my investigation commenced.  As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 22 and 29 April 2009.  A submission was received from the complainant on 18 December 2007.  A submission was received from the respondent on 7 March 2008.  The last piece of correspondence relating to the complaint was received on 12 May 2009.

Summary of the Complainant’s Written Submission

The complainant submits that when she returned from maternity leave to resume work with the respondent, the respondent took project management duties away from her and assigned her duties that were normally carried out by recent college graduates, thereby effectively demoting her.  The complainant alleges that this was the case because the respondent reasoned that due to her family responsibilities, she would be less flexible and available for travel.  It is the complainant’s case that this demotion significantly affected her future career development with the respondent, since the duties she was assigned provided less opportunities to develop her management skills further.

The complainant states that she followed the respondent’s grievance procedure in an attempt to resolve this matter.  It is her contention that the respondent did not engage meaningfully in the grievance procedure, and that this amounts to victimisation pursuant to S. 74 of the Acts.

The complainant submits that following the failure of the grievance procedure, she had no option but to resign.  The complainant contends that this amounts to discriminatory constructive dismissal on the ground of gender.

Summary of the Respondent’s Written Submission

The respondent denies discriminating against the complainant on any of the above grounds.  It is the respondent’s case that the complainant was re-assigned to different duties upon her return from maternity leave because the business importance of her previous line of work had diminished, and because there was no project management work available.  The respondent contends that the complainant’s more junior responsibilities were a result of the need to re-train the complainant on a software product she was not familiar with.  The respondent states that the complainant resigned before this re-training could be completed.

The respondent submits that when the complainant raised her grievance regarding her role, a wide variety of roles were explored none of which suited the complainant.  Accordingly, the complainant’s grievance was not upheld.

The respondent submits that the complainant acted unreasonably in tendering her resignation, that the respondent did not wish her to resign and asked her to reconsider her decision, and that no situation of a constructive dismissal on the ground of gender.

The respondent also denies victimising the complainant and submits that the complainant has not made out a case of victimisation as defined in the Acts.

Conclusions of the Equality Officer

The issues for decision in this case are whether the complainant was discriminated against in access to employment, promotion and re-grading, and conditions of employment, and subsequently discriminatorily dismissed on the grounds of gender, marital status and family status within the meaning of the Acts; and whether the complainant was victimised within the meaning of S. 74(2) of the Acts.

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. 

No evidence was submitted that the complainant’s marital status was in any way connected to the alleged less favourable treatment by the respondent.  I therefore find that the complainant has not established a prima facie case for discrimination on the basis of her marital status. 

There was no dispute that the complainant was in the respondent’s employment at the time the alleged less favourable treatment occurred.  I therefore find that the complainant has not established a prima facie case for discrimination in access to employment on the grounds of gender or family status.

There was agreement between the parties that the complainant’s pay and conditions, apart from the specific duties she was assigned to do, did not change in the months in which less favourable treatment by the respondent is alleged.  I therefore find that the complainant has not established a prima facie case for discrimination in conditions of employment on the grounds of gender or family status.

I now turn to the complainant’s case that her duties on return from her maternity leave constitute a demotion.  The facts of the complainant’s career with the respondent were not in dispute.  She started working for the respondent in 1999, and steadily progressed in her role as a consultant on the respondent’s Supply Chain Management (SCM) software product.  She outlined how her career had started with a task called “session delivery”, where a consultant signs on remotely to the client system and subsequently gives advice to the client on how to optimise the performance of the software.   This advice is first reviewed by a more experienced colleague, and then sent without review.  These stages are followed by work in the “back office”, where client’s more serious technical problems are assessed and solved.  This can also involve training at the respondent’s German headquarters. The complainant stated that most of the learning for the role happened on the job and from making mistakes and learning from those.  The complainant’s career progressed from Support Consultant (1999) to Senior Support Consultant (2000 – 2003) to Senior Support Consultant Level II (from 2004 onwards).  Prior to going on maternity leave, the complainant coordinated teams of people who would manage clients, and was a decision-maker/reviewer on customer problems.  She would also be involved in the management of internal projects.  The complainant performed consistently above average in all of these roles, and enjoyed steady upward progress on the respondent’s pay scales.

On her return from maternity leave, the complainant was assigned to train, and do session delivery, on a different software product called Customer Relations Management (CRM).  It was the respondent’s case, and the complainant did not fundamentally challenge it, that demand for the SCM product had dropped off, whereas demand for the CRM product had increased sharply during the complainant’s absence on maternity leave and that it had become necessary to re-deploy staff in line with the changed demand.  The respondent submitted that due to complainant’s proven commitment and excellence, it was hoped that she would complete her training faster than some recently hired staff, and would be available to deliver client services on CRM at her previous level of seniority within approximately six months of starting training.  However, the respondent stated that due to the fact that training on the product involved by necessity doing various tasks associated with it, and learning from one’s mistakes (as also stated by the complainant, see paragraph4.6above), it would be necessary for the complainant to perform more junior tasks for a period of time while she was training.

The complainant’s own evidence on this point was contradictory.  She submitted that she felt “degraded” to train with recently hired graduates, and to perform relatively junior tasks. She also stated her concern that her reputation might have suffered if she, a senior consultant, made mistakes that might affect the functioning of the software for the respondent’s clients and would need to be rectified by a colleague with more experience. However, she stated in response to a direct question, that her colleagues were supportive towards her and that she experienced no negative reactions from them.  On the other hand, she strongly challenged the respondent’s case that she would have been able to train in the CRM product within six months, and gave an estimate of two years to master the product at her level of seniority.

The complainant also expressed concern about the performance targets set for her in relation to her re-training, although she accepted in cross-examination that the targets were generous and would not put her under pressure or cause her to worry about her compensation level.

The most important case which has come before the Tribunal and which deals with less favourable treatment by way of demotion, following a period of maternity leave, is DEC-E2006-007, Gardiner v. Mercer Human Resource Consulting.  In that case, a replacement had been hired by the respondent to perform of the duties of the complainant during her period of maternity leave.  Upon her return from maternity leave, the complainant discovered that the colleague who had replaced her had her contract extended, and that key aspects of her earlier work were being performed by that colleague, whereas the complainant’s role was limited to routine work.  The Equality Officer held that “the fact that the complainant was returning from maternity leave and now had a young child significantly influenced the respondent’s decision to restructure her job and remove certain tasks from her. […] I do not accept that the respondent would have reached the same decision had they been faced with a man, or indeed a man or a woman who did not have a child, who was returning to work after a similar period of absence for whatever reason.”

In contrast, in the case on hand, I am not satisfied that a man, or a man or a woman without family responsibilities, would have been treated differently by the respondent on return from a similar break, for example a career or study break.  I am satisfied that the complainant’s re-deployment arose from clearly stated business necessities, and that re-training was needed to enable the complainant to continue to perform her senior role.  There was no dispute that training on the respondent’s products was dominated by a “learning-by-doing” approach, and I accept the respondent’s argument that this would involve performing junior tasks for a limited amount of time, before a trainee would progress to more complex tasks.  While there was a conflict of evidence as to how long it might have taken the complainant to perform at her level of Senior Support Consultant II on the new product, I note that the complainant left the respondent’s employment four months after her return from maternity leave, that is, two months before, in the estimate of the respondent, her training should have been completed, and more than one and half years before, in her own estimate, her training would have been completed.

The re-training of a senior employee in many industries may take a considerable amount of time, and may involve temporarily performing tasks at a more junior level, and I do not think it is possible to say whether the re-deployment of an employee so re-trained constitutes a demotion until the re-training is completed and the employee fully performs in the new role. I also note that care was taken by the respondent to avoid placing the complainant under unnecessary stress by setting her very generous performance targets. Her pay and conditions remained unchanged.  Based on all of the above, I find that the complainant has not established a prima facie case that she was demoted on the gender and family status grounds and that her complaint must therefore fail.

Turning to the complainant’s case of discriminatory constructive dismissal, I do not find that the complainant has established a prima facie case that her resignation from the respondent’s employment constitutes constructive dismissal, for discriminatory reasons or at all.  The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively.  It set out the main applicable tests, these being the “contract” test and the “reasonableness” test, and held that these tests may be used either in combination or in the alternative.  The contract test applies wherean employer commits a repudiatory breach of the employment contract.  It must be a breach of an essential term which goes to the root of the contract.  The reasonableness test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer.  

I am satisfied that the respondent’s decision to request the complainant to undergo re-training on a different software product in order to fulfil the same senior consultant role she had performed in respect of a different product in the past, with no alteration in her terms and conditions of employment, does not constitute a breach of her contract.  I am further satisfied that the respondent’s request was not unreasonable within the meaning of the reasonableness test.  In this context, I wish to note again that the complainant herself stated in evidence that familiarisation with the respondent’s product could take up to two years (as discussed in paragraphs 4.8 and 4.11above), yet resigned from the respondent’s employment four months after her return from maternity leave. I therefore find the respondent’s argument that the complainant did not give the new arrangement time to work out, to be valid.  For all of these reasons, the complainant’s case of discriminatory constructive dismissal must fail.

The complainant’s case of victimisation is based on her internal complaint, on return from her maternity leave, regarding the clarification of her new role and work targets. 

I find that since the complainant’s complaint was connected to her perceived demotion following her return from maternity leave, and therefore related to a possible discrimination on the ground of her gender, that it does fall within the definition of victimisation provided in S. 74(2)(f) of the Acts, which specifies that victimisation occurs where “dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment.”  I therefore find that I have jurisdiction to investigate her complaint. 

It is the complainant’s contention that she was victimised because the respondent’s engagement with the grievance procedure was a “sham”. The complainant’s grievance was not upheld.  The complainant appealed this outcome to the respondent’s Managing Director, but was again unsuccessful.  The complainant’s grievance, the relevant meetings to address it, and the outcomes were recorded in writing.  I am satisfied, based on the available evidence, that the respondent implemented the grievance procedure carefully, in good faith, and with a reasonable level of objectivity.  Under the circumstances, I find that the respondent’s rejection of the complainant’s grievance does not constitute adverse treatment pursuant to the making of a complaint within the meaning of S. 74(2) of the Acts, and that the complainant’s case of victimisation must therefore fail.

Decision

Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that

(i)                The respondent did not discriminate against the complainant on the ground of marital status pursuant to S. 6(2)(b) of the Acts.

(ii)              The respondent did not discriminate against the complainant on the grounds of gender pursuant to S. 6(2)(a) or family status pursuant to S. 6(2)(c) of the Acts, in terms of access to employment, promotion and re-grading, conditions of employment contrary to S. 8(1) of the Acts.

(iii)            The respondent did not discriminatorily dismiss the complainant on the on the grounds of gender pursuant to S. 6(2)(a) or family status pursuant to S. 6(2)(c) of the Acts, contrary to S. 8(6) of the Acts.

(iv)            The respondent did not victimise the complainant contrary to S. 74(2) of the Acts.

_________________________

Stephen Bonnlander

Equality Officer

14 July 2009