Equality Officer's Decision
DEC-E2009-105
Ms. Z
(represented by Fergal Sweeney B.L. instructed by John Kealy, Kent Carty Solicitors)
versus
A Transport Company
(represented by Colm Costello, Córas Iompair Éireann Solicitors' Office)
File reference: EE/2007/128
Date of issue: 13th November 2009
Keywords: Employment Equality Acts, Gender, Access to Promotion, Conditions of Employment, Victimisation
1. Dispute
1.1 This dispute concerns a complaint by Ms Monica Murphy against Iarnrod Éireann. The complainant alleges that she was discriminated against on the ground of gender in relation to her conditions of employment and access to promotion and harassed by her employer on the same ground contrary to the Employment Equality Acts 1998-2008 [hereinafter referred to as the 'Act']. She is also claiming victimisation for making a complaint of discrimination against Iarnrod Éireann.
1.2 The complainant referred her complaint under the Act to the Director of the Equality Tribunal on 16th March 2007. In accordance with her powers under Section 75 of that Act, the Director delegated the case on 22nd May 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was held on 3rd December 2008. The final piece of correspondence was received from the respondent's representative on 30th June.
2. Summary of the complainant's case
2.1 Ms Murphy commenced with Córas Iompar Éireann (CIE) in 1971. She trained as a computer programmer and worked in CIE's computer services department. She was one of three staff (and the only female) to be awarded a scholarship to University College Dublin to complete a degree in Commerce. She attained First Place in International Marketing in her degree in 1984. CIE sponsered her to do a MBS in International Marketing the following year. She obtained First Class Honours. She joined CIE's Marketing Department and was involved with the taskforce that implemented the establishment of Iarnrod Éireann. The complainant has been appointed to various committees in the Marketing Institute of Ireland (MII) and other professional organisations. Ms Murphy submits that this is in recognition of the esteem she is held in by her peers. She was appointed to the Executive Committee as well as Chair of Media and Public Relations Committee of the MII in 2005. The complainant submits that she is very loyal to CIE and up to 2003 was making steady progress in her career. On her return from a career break in January 2003, the complainant submits her career trajectory took an unexpected, and at the time, unexplained nosedive.
2.2 Ms Murphy maintains that she did not realise what was happening at the time but, with the benefit of hindsight, she submits that she was given a 'dummy' job and that a less experienced and less qualified younger man was being groomed to take over the promotion she would have expected to obtain in the normal course. Following a period of working in the USA, the complainant returned from a career break to resume her position as Marketing Projects Manager. In the summer of 2003 three Planning and Marketing Manager positions for DART, Intercity and Commuter respectively was advertised internally. Any of these positions would have been a real promotion for the complainant as they were on the ungraded salary scale higher than the graded scale of which she had reached the top point many years before. She contends that she was the most qualified internal candidate. Ms Murphy applied for these positions but she maintains her immediate supervisor, Mr A, Deputy Chief Operation Officer/Human Resource Manager (now Director of Strategy and Business Development) discouraged her from doing the interview. He suggested that a different role was to be created for her - Marketing Communications Manager. She submits that he assured her that this post was also on the ungraded salary scale. Ms Murphy states that she took his advice and withdrew her application for the Planning and Marketing Manager roles. Three men were appointed to these positions in September 2004. The filling of these positions were announced but the complainant's was not. The complainant maintains that she communicated her dismay to Mr A at that time.
2.3 Ms Murphy submits that she soon realised that she had been 'sold a pup'. Mr B, the recently-appointed Chief Executive Officer, invited the complainant to a meeting on 19th November 2003 to discuss her new marketing role as Internal Communications Manager. Mr A was also present. According to the complainant, Mr B said that the complainant would now be given responsibility for internal communications and that Mr A said that the complainant was the best person for the job. The complainant and Mr A were to agree a job specification. The job specification was not agreed until June 2004. Ms Murphy submits that Mr A cancelled or postponed 13 meetings regarding this issue. However, the job description was agreed after 7 intensive meetings. The complainant maintains that her new position was isolated from the mainstream of the Marketing Department. Ms Murphy reported to the Head of Human Resources rather than a Manager in the Marketing Department. She states that she was given no real involvement in the planning of marketing campaigns and had to create work for herself. Although the job specification was eventually agreed, Ms Murphy's appointment to this post has never been officially announced within the company as would be the norm. She has no official title in the Iarnrod Éireann hierarchy. The complainant submits her office was situated in a damp basement with nobody reporting to her. No budget was allocated to her although Mr D, Corporate Affairs Manager allowed her to use his budget until he retired. Any tasks assigned to her were below her competence and experience. She was excluded from any of the marketing team meetings. The only meetings Ms Murphy was invited to was with Mr A (her immediate supervisor) and Ms C (Human Resources Manager, Central Services). These meetings, she submits, were designed to force her to leave the company. The complainant states that although this post was sold to Ms Murphy as a promotion she has never received any increase in remuneration, none of the performance bonuses, individual or corporate that she had been promised. As an illustration of her dummy job status, the complainant submits she received an official letter from Ms C in 2006, referring to the complainant's position as Marketing Projects Manager, her previous position prior to 2003. The complainant maintains that a colleague remarked to her in relation her main duty which was the staff suggestion scheme 'that's where people go just before they retire'. She states that as well as finding this situation demoralising it also has affected her career development as, were it not for her involvement with the Marketing Institute of Ireland, she would not be sufficiently challenged to further enhance her marketing skills.
2.4 Mr A called a meeting with the complainant on 22nd October 2004. Ms C was present who had recently been appointed Human Resources Manager, Central Services. According to the complainant, there was no competition for Ms C's post. The complainant submits she was surprised Ms C was at the meeting as Ms Murphy understood the meeting to be about her day-to-day marketing work. The complainant alleges that at this meeting Mr A accused the complainant of altering the agreed job description that had been submitted to Mr B. As part of the complainant's submission, she included the finalised version with the draft version with Mr A's handwritten amendments. The text is identical. According to the complainant, Mr A asked her in the meeting what age she was and when she intended retiring. The complainant submits that she replied that she had no interest in retiring until the statutory age. Ms Murphy maintains that she was also asked where her husband works now. The complainant contends that a man would not be asked the same question. At this meeting, Ms Murphy submits that Mr A said that 'I was highly qualified, highly experienced and the presentations I had made to him and his team were very impressive so they felt they could easily get a job outside the Company and they thus wanted to offer me an exit package'. The complainant contends that Mr A said that she was also unsuitable for dealing with people. The complainant submits that she found this strange as at the meeting on 19th November 2003 Mr A had said she was the best person for the job.
2.5 The meeting was reconvened on 5th November 2004 and again the complainant was offered a voluntary severance package. According to Ms Murphy, Mr A described the complainant as 'creative and innovative'. The complainant reiterated that she was not interested in leaving the company. She alleges that Mr A then said 'Maybe you're not as good as you think you are' and 'Maybe you don't see yourself as others see you' and 'We don't care what professional organisations say or think about you or anything else'. The complainant submits that she believes when flattery did not work, Mr A turned nasty. She maintains that she felt Ms C was sneering at her.
2.6 A few days later, the complainant contacted Ms C to request minutes of these two meetings. Ms C declined as she said they were personal notes. The complainant refused to attend meetings with Ms C present until the notes of the various meetings were provided and because she did not see the need for a Human Resources Manager to be present at a meeting with the complainant's line manager to discuss the day-to-day aspects of her marketing work.
2.7 The complainant submits that when she did not agree to exit the organisation voluntarily the respondent tried to freeze her out. In October 2005 Ms Murphy submits Mr A tried to punish her by, abruptly and without consultation, cancelling her membership subscriptions to various professional marketing and transport institutes. Iarnrod Éireann paid her fees to these organisations without question for over 20 years. The complainant submits that she found out when she received phone calls from professional bodies advising her that her membership fees had not been paid. Ms Murphy maintains that the fees of her male colleagues had been and continue to be paid. According to Ms Murphy, Ms C told her that she had a conversation with Mr A while he was out on sick leave and he told her not to process bills for the complainant. The complainant submits that when she asked Ms C why this had occurred, Ms C said 'you know what this is about'.
2.8 At a meeting with Mr A on 29th November 2005, the complainant alleges he threathened to ring the CEO of the different institutes with which she was a member to ask about me. According to Ms Murphy, she responded by pointing out he did not do that with her male colleagues. On 5th December 2005 Mr A emailed her stating that she was involved in the MII 'in a private capacity'. The complainant asked Mr D, Corporate Affairs Manager to talk to Mr A. According to the complainant, Mr D explained that that the MII was a professional body and not equivalent to a chamber of commerce. According to the complainant Mr D was told by Mr A to 'keep out of it'.
2.9 At a meeting on 6th November 2005, the complainant submits that Mr A said only two people Mr D and Mr H could be in this organisation (Marketing Institute of Ireland) on behalf of the company'. The complainant states she was obliged to point out to him that only one of the people mentioned was eligible to be a member as the other was not a qualified Marketing Practitioner. The complainant submits that Iarnrod Éireann continues to pay membership fees for over 30 male colleagues. Ms Murphy submits that she has paid her professional memberships out of her own funds since 2006 to maintain her membership status. Payment has also been withheld on invoices submitted regarding two MII events the complainant attended. The complainant submits that she had attended these events for the previous 20 years and the costs of attending were paid by Iarnrod Éireann without quibble since she qualified as a Marketing Practitioner.
2.10 The complainant states that because of the treatment by Ms C and Mr A to her, she tried to engage the help of the Equality officer (Ms E) in Iarnrod Éireann. Ms Murphy submits that, according to Iarnrod Éireann website, the Equality Officer is supposed to 'offer confidential support to any member of staff who feels that he/she has been unfairly treated in any of the areas covered by the Employment Equality Act'. The complainant submits that dealing with the Equality Officer proved to be a frustrating process. Ms Murphy suggests this may be because Ms E also reported to Mr A. On numerous occasions when the complainant raised the issues that she was having with Mr A, the Equality Officer referred the complainant back to Mr A. Ms E refused to meet with complainant until she agreed to meeting with Ms C and Mr A. In direct evidence at the Hearing, Ms E said that while she was independent 'independence only went so far'. According to Ms Murphy, Ms E said to her that if she was being treated the way the complainant was being treated she would leave the company.
2.11 Meanwhile in November 2004 a young man, Mr G was appointed to the position of Manager of Passenger Market Analysis. The complainant submits that he had some experience in Management Information Systems but no marketing experience. This appointment did not go through the usual internal procedures as the vacancy was never advertised. This post was created at the same time as when Mr A and Ms C were encouraging the complainant to take a voluntary severance package. (Mr G's position was not filled when he subsequently was promoted to Corporate and E-Marketing Manager which the complainant submits raises an inference that the Manager of Passenger Market Analysis position was created for him.) The complainant submits that Iarnrod Éireann invested significantly in him - he was sent on the Leaders for Tomorrow course at Harvard University at a cost of approximately €10,000 to Iarnrod Éireann.
2.12 On 21st June 2006, a vacancy for Corporate and E-marketing Manager was advertised internally. This post emerged because Mr D retired. Ms Murphy states she was interested in applying because if she obtained this position she would break the glass ceiling in that she would be the first woman to have worked her way through the ranks in the Commercial Department of Iarnrod Éireann and report directly to the CEO. The complainant made it know that she was interested in applying for this position but she submits that she was frustrated at every turn. Despite numerous requests to Ms C, Ms Murphy did not receive a job description for this role. The complainant contends that she requested this job description because she wanted to see the impact this new role would have had on her current position and so that she could do herself justice if she was called for interview. She applied anyway for the Corporate and Emarketing Manager position although she could not include a proper job title for herself. As part of the selection process, a personality questionnaire was emailed to candidates. The complainant submits that she was never able to gain access to this questionnaire in that the attachment was blocked when she tried to open it. An invitation to an intray exercise to take place on 16th August 2006 was emailed to the complainant on 11th August by Ms C's direct report in Human Resources Section. As the complainant had submitted her leave sheet to Human Resources previously, she submits they should have been aware that she would be unavailable on 16th August. Irrespective of this, the complainant submits an out-of-the-office message would have issued to the sender stating the date she was returning from Annual Leave on 25th August. According to the complainant, an alternative date for the in-tray exercise was never offered to her nor was she given access to the personality questionnaire. Ms Murphy submits that as soon as she returned from leave she and her Trade Union raised these issues with Ms C and Ms E.
2.13 On Friday 8th September the complainant received a letter from Ms C:
...Your response to my invitation to attend for assessment would seem indicative of your intention to forego the opportunity to participate in this aspect of the process, therefore I must advise you that your reluctance to attend jeopardises your continued participation in this selection process.
It is company policy to afford all candidates, both external and internal, who apply for a position within the organisation the benefit of a transparent selection process which is conducted in conformance with best practice. Once again, I must reiterate that your apparent reluctance to take part in the initial stage this process compromises that conformance and would call your further inclusion in the selection process into question. As testing of all other candidates concerned has been completed there is a pressing need to begin the interview stage of the process as soon as possible.
2.14 The complainant responded on the same day to say:
....Advice has been given that selection procedures should not proceed as there could not be a fair and equal selection process given the circumstances.
I have applied for the position advertised and despite numerous requests to your office have not received the job specification for the position - I would appreciate if you could forward it to me...Under no circumstances should you be concluding that I am withdrawing my application and in line with Company Policy I request that you refrain from proceeding any further on this until discussions are complete.
2.15 The complainant submits that none of her concerns were dealt with and the interviews went ahead (without her) a month later on 16th October 2006. Mr G was appointed to the post. The complainant submits that she was more qualified for the position as she had significant and appropriate Information Technology and Marketing experience. Had she been interviewed, the complainant submits it would have been obvious to the external interviewer that she was the best candidate. She submits that she was deliberately excluded from the selection process.
2.16 In the week prior to the Tribunal Hearing, a Marketing Manager position was advertised to which Mr G was subsequently appointed. The complainant submits that the job description for this position was very similar to the role profile for the Corporate and E-marketing position which Mr G obtained in 2006. Therefore, Mr G was almost certain to obtain this position. Ms Murphy contends that this competition was run to disguise the mishandling of the previous competition. Ms Murphy did not apply because she maintains the same issues remained regarding her role and it would be a 'fool's errand'. She submits that Mr G leapfrogged from a position of an IT executive to Manager of Passenger Market Analysis (without interview in 2004) to Corporate and E-Marketing Manager (in 2006) to Marketing Manager (in 2009) while the complainant was obstructed from going beyond the middle rank of the organisation by lack of meaningful work and various roadblocks placed to impede the complainant progressing through promotion competitions.
2.17 The complainant made a complaint of bullying by Mr A and Ms C to Ms E. An outside investigator was to be appointed. However, because there seemed to be interference by Mr A Ms Murphy's trade union advised that the complainant pull out of the process.
2.18 Ms Murphy continues to be a Vice-Chairman (Eastern region) and Council member of the Chartered Institute of Transport and Logistics (CILT). Mr A attended its annual dinner on 1st February 2007 and, according to the complainant, invited male managers (who would not normally attend as they were not members of CILT) who report to him to sit at the Iarnrod Éireann table. Although Ms Murphy was at the same reporting level and was known to always attend this event, she submits that she was deliberately excluded from the Iarnrod Éireann table although it had vacant seats. Generally attendees sit with their work colleagues. She submits that she felt distressed and humiliated by this incident .
2.19 On 2nd February 2007 the complainant's trade union representative set up a meeting with Mr A. At that meeting the complainant submits that Mr A confirmed to them that he was reading the complainant's emails and he said to them that she was making money from her professional memberships. The complainant denies that she has ever used her memberships of these institutes for commercial (other than on behalf of Iarnrod Éireann) purposes. The complainant submits that colleagues were afraid to email her in case Mr A was reading her personal emails.
2.20 On 16th May 2007 (following the lodging of Ms Murphy's complaint to Equality Tribunal) the complainant accidentally encountered Mr A on the stairwell. He said 'I want to speak with you. Go into Ms F (his Personal Assistant) now and make an appointment to meet with me.' According to Ms Murphy, he was bursting with anger. Ms Murphy submits that this incident was immediately after she sent an email to her union representative to instruct him to proceed with the case to this Tribunal and other fora. The union subsequently wrote to him requesting that he desist from such behaviour as in their view it was akin to victimisation.
2.21 Regarding victimisation, the complainant wrote in a letter to the Chief Executive Officer on 9th May 2008 that 'this feels like a situation where the bullying is being increased in an attempt to force me out of the company'. The complainant submits she was left off an invitation list for a staff member's retirement function by the CEO's Personal Assistant. The complainant submits that since she lodged a complaint with this Tribunal, Mr A has refused to sign off on her annual leave applications or expenses claims.
2.22 In response to the respondent's argument that the complainant was merely aggrieved that she was not promoted and that there is no link to gender discrimination, the complainant refers to the 'Equality Review and Action Plan of Iarnrod Éireann' which was conducted by Polaris HR. The complainant submits that this equality audit, conducted by an impartial and independent expert body, shows there is an institutional bias against women in general and Ms Murphy in particular, breaking through the glass ceiling into senior management roles at Iarnrod Éireann. The complainant quotes from the report:
- ' Almost 30% of respondents reported that they personally had been subject to some form of bullying in Iarnrod Éireann' page 59
- 'Only 17% of women expressed confidence in the selection procedures for promotion' page 83
- 'A perception of an "old boy's network" as reported by the survey respondents has considerable implications for the equality agenda in Iarnrod Éireann. This was particularly evident in the case of managerial staff where a considerable number for survey respondents and focus group participants commented on the low levels of women in middle and/or senior management positions' page 85
- At the time the survey was completed in 2007, 'of the nine Departmental Heads all are male. Of 50 Senior Executives only 4 are female' page 9.
2.23 The complainant also submits that her bullying complaint was never properly investigated internally. On 20th September 2006 the complainant wrote to the CEO on a ' personal, private and confidential basis due to what has occurred to date' mentioning her issues and how, in her opinion, her male peers have been treated more favourably. On 25th September the CEO responded saying Mr A would deal with the issues she had raised. The complainant submits that she was shocked that a CEO would refer her to, as she sees it, her harasser and felt that she had been left with no one to turn to. She submits that her request for an internal transfer has also been ignored by the CEO.
2.24 Ms Murphy maintains that every task she was assigned by Iarnrod Éireann she successfully completed and she would like to continue working there.
3. Summary of the respondent's case
3.1 The respondent refutes all allegations of discrimination. The respondent points out that Ms Murphy is a middle-ranking executive - of the 792 Executives in Iarnrod Éireann, Ms Murphy is at a lower salary (€63,615) than 426 colleagues, 50 of whom are female. Regarding the Marketing and Planning roles in 2003, the respondent states that both the then Marketing Manager (Mr D) and the then Passenger Commercial Manager (Mr H) had previously worked with Ms Murphy and neither were enthusiastic about Ms Murphy reporting to them.
3.2 In response to the allegation of professional fees not being paid, Iarnrod Éireann submits that it has attempted to explain to the complainant on a number of occasions that there is a particular protocol involved in the approval of payment of such fees. Specifically, approval had to be sought from her manager prior to incurring the expense. On 2nd December 2005 Mr A explained to Ms Murphy that she did not attend a MII event on a formal basis representing Iarnrod Éireann and, therefore, he could not agree that this expense claim was supportable. Mr A said that it has been difficult to arrange meetings to explain this to Ms Murphy as she would not attend meetings where Ms C was present. The respondent denies that the complainant was treated less favourably that a man who submitted such a request in similar circumstances. Furthermore, females who have had approval from their Managers have had such fees paid on occasions. Mr A stated in direct evidence that he was using the non-payment of fees as an opportunity to reconnect with Ms Murphy regarding her work pattern. This was part of a twin approach. Mr A submits he also endeavoured to engage with Ms Murphy through her trade union officials.
3.3 The respondent denies she was assigned 'dummy' duties. The staff suggestion scheme was assigned to her. In response Ms Murphy complained about arrears in files and lack of resources although the respondent submits she had access to the same resources as the previously assigned managers. Regarding redundancy, the respondent submits that was mentioned but not forced.
3.4 In relation to the promotion to Corporate and E-marketing Manager, Iarnrod Éireann submits that the complainant refused to participate in the selection process until she met the Equality Officer, Ms E. This is notwithstanding the fact that she has been advised in writing by the CEO that her role as Marketing Communications Manager would not be affected by the decision to appoint a Corporate and E-Marketing Manager and that she was free to apply. According to the respondent, following a meeting with the Equality Officer on 13th September 2006 the complainant still refused to participate in the process. Therefore, Iarnrod Éireann submits that they were left with no alternative but to proceed with the interviewing of the other candidates. Mr G was the successful candidate for the position of Corporate and E-Marketing Manager.
3.5 The respondent refutes the allegation that the complainant is required to sit in an office with rising damp while the offices of her male peers are decorated. There are six offices in the basement containing men and women and the cost of damp-proofing at that time was simply prohibitive. In 2009 this damp-proofing project was started and the complainant refused to move to offices in Abbey Street while this work was being done.
3.6 The respondent rejects the argument that the complainant has been made to feel isolated. Iarnrod Éireann maintains that there have been a number of attempts to develop a worthwhile role for the complainant. However she has failed to attend many of the meetings organised to discuss this issue. Regarding the accusation of social isolation, Mr A said that she was always invited to the Christmas event he organised for his staff.
3.7 In relation to the incident on the stairwell on 16th May 2007, Mr A states the complainant misrepresented the tone of the conversation. Mr A maintains that he was not aggressive. According to the respondent, Mr A had a right to meet with her as he was her manager. The complainant had 'gained a certain profile for non-attendance' so he wished to use this opportunity to set up a meeting.
3.8 On a once-off basis, Mr A took the very exceptional step of auditing Ms Murphy's computer usage due to the suspected emergence of non-attendance at work. The respondent submits that this check shows that Ms Murphy did not (and to this day still does not) attend regularly for work. The respondent submits that it also showed the majority of computer interaction related to her involvement in the MII.
3.9 Ms C denies ever saying 'you know what this is about'. The respondent submits that the notes of the meeting with Mr A, Ms C and Ms Murphy were not formal minutes but merely a personal aide memoire for Ms C. Notes of the various meeting were afterwards given to the complainant's trade union representative.
3.10 Mr A denies telling Mr D to 'keep out of it'. Regarding the CILT dinner, the respondent submits that he did invite two male employees that year but that Ms Murphy greeted him at the function in a warm and courteous manner. On a previous occasion he submits that he brought Ms C and Ms E.
3.11 The respondent submits that of the five people appointed in the Commercial Department of Iarnrod Éireann since November 2004 three have been female. Regarding the bullying complaint, the complainant wanted many questions answered about the mediator's role before she would agree to meet him. This led to stalemate.
3.12 The company submits that there has been considerable difficulty in finding a suitable position for Ms Murphy for two reasons. Firstly because the complainant, they submit, has an exaggerated sense of her own importance and her organisational status and secondly because former managers and colleagues are reluctant to take her on board.
3.13 Regarding the submission of the Equality Review as evidence the respondent submits this is inappropriate as it would discourage other companies from conducting a similar review. Iarnrod Éireann points out that only 18% of its workforce responded to the questionnaire. Iarnrod Éireann points out that 70% of respondents believe women have an equal or better chance of promotion than men. The respondent also draws attention to page 12 of the review where Polaris HR states' 'the review of files did not indicate any direct discriminatory practices are being applied in promotion competitions'.
4. Conclusions of the Equality Officer
4.1 There are four issues for me to decide:
(i) Was the complainant discriminated against by Iarnrod Éireann in relation to her conditions of employment as per Section 8 (1)(b) on the ground of gender?
(ii)Was the complainant harassed in terms of Section 14A(7) and whether the respondent has a viable defence against a claim of harassment as per Section 14A(2) of the Act?
(iii) Did the complainant suffer discriminatory treatment on the ground of gender in relation to access to promotion in terms of Section 8 (8) of the Act?
(iv) Was the complainant victimised within the meaning of Section 74 (2) of the Act?
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is gender.
4.3 Section 85A of the Act 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 that she suffered discriminatory treatment. 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. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'
Conditions of Employment
4.4 I am satisfied the complainant was isolated from the rest of the Marketing Department (2.3 and 3.3). Her salary was paid out of the Human Resources allocation. She has not received any increments since 2003 as she is at the top point of graded scale. I requested the budgets available to Mr A's direct reports as well as Mr G from 2003 to 2006. This information was not supplied to me so I may draw appropriate inferences. I accept the complainant's contention (and the respondent did not deny this) that she was given no budget to spend on marketing campaigns. She had no staff reporting to her. The staff suggestion scheme which was her main duty was left dormant since January 2004 until Ms Murphy was assigned it in March 2005. It clearly was not a business priority for Iarnrod Éireann. This was not a role commensurate with the complainant's marketing skills and experience. In direct evidence, Mr A admitted that since 2003 the complainant does not have a proper job title.
4.5 The respondent had stated that the complainant did not routinely attend for work (2.24 and 3.5). In response, the complainant said because her office was damp and because of the uncomfortable atmosphere at work she occasionally worked from home. Evidence of permission for remote access for Ms Murphy was presented to me. Voluminous correspondence from Ms Murphy's work email address relating to her job description, workflow (including a comprehensive review of the staff suggestion scheme on 28th October 2005) and conditions of employment would indicate to me that she was available for work and completed all tasks assigned to her. Regarding the damp office (2.3 and 3.8), I find the complainant's evidence more compelling. The basement has been damp-proofed since and while this work was ongoing I am satisfied the other occupants did not move to the building in Abbey Street suggested by the respondent as they also found it to be unsuitable.
4.6 In the absence of disciplinary issues (2.6 and 3.2), the insistence of Mr A having Ms C present at all meetings with the complainant (especially when Ms C had no involvement in marketing) and the refusal of Ms C to provide notes of these meetings until they were requested under the Data Protections Acts contributed to a hostile atmosphere and so also constitutes discriminatory treatment.
4.7 From the start the complainant saw the issue of non-payment of subscriptions in Iarnrod Éireann as one of gender discrimination (2.7 and 3.2). The complainant is seeking recoupment of these fees in another forum. Section 101 of the Employment Equality Act sets out specific circumstances restricting a complainant from dual avenues of redress. This is not one of them. Had the Oireachtas intended to curtail an employee's right in that respect it would have specifically legislated for same. Consequently, I have jurisdiction to examine this issue in the context of discriminatory treatment on the grounds of gender. Ms Murphy named a number of male colleagues in her area of work whose subscriptions continue to be paid. Iarnrod Éireann did not dispute this. Iarnrod Éireann did not present to me a written protocol for paying professional membership subscriptions for employees. Of course, Mr A, as Ms Murphy's line manager has a right and responsibility to ensure public money is spent wisely. I requested the details of professional fees paid to all direct reports to Mr A from 2003 to 2008 to include sanctions and refusals of same. This information was not supplied to me and again I may draw appropriate inferences. I accept the complainant's contention that professional fees were paid for her male colleagues. I find that the complainant has been treated less favourably than her male peers in the Commercial area in relation to this issue. This along with Mr A's refusal to sign off on annual leave and other expense claims (no evidence was presented that male direct reports were treated in the same way) and the exclusion of the complainant at the CILT dinner while entertaining male colleagues constitutes less favourable treatment on the ground of gender.
4.8 On its own, offering somebody an exit package does not constitute discriminatory treatment (2.4 and 3.3). However, in the context of placing obstacles in relation to access to promotion as well as creating an atmosphere (by isolation and lack of significant work) where the complainant could 'rust out', I find this to be another act of discriminatory treatment in relation to Ms Murphy's conditions of employment. I am satisfied that a man with similar qualifications and experience in the company would not have been treated in the same way.
4.9 It should also be noted that Ms Murphy made a complaint of bullying by Mr A and Ms C to the Equality Officer, Ms E. Ms Murphy wished this matter to be investigated in an informal way (initially) as per the Company policy on bullying and harassment (2.23 and 3.1). While Ms E was in the unenviable situation of her immediate supervisor being accused of bullying, I still find that she handled the situation in a very unsatisfactory way. Following the complainant's raising of the matter, Ms E emailed Mr A (one of the alleged harassers) on 24th May 2006:
"Hi,
As you can see below the correspondence continues with Monica Murphy. I wonder would you consider inviting [named mediator] to do an informal investigation into Monica's concerns. He could speak with any witness she may want to call and write up his findings. He may be in a position to suggest a satisfactory outcome. I can organise this if you wish to proceed. "[my emphasis]
On the print-out of this email Ms F, Mr A's PA wrote 'In principle, Mr A has no problem at all with this. Ms E to discuss with him first'. On 15th June 2006, Ms E asked Ms F if they could get a resolution to this matter and wanted to know from Mr A if she should go ahead and organise an informal investigation with Monica's [Murphy] consent. Evidently, the initiation of this investigation was not carried out in line with fair procedures. In these circumstances, it is hardly surprising that the complainant's trade union representative advised her to withdraw from this process. As per Paragraph 2.24 the complainant also raised these issues with the CEO of Iarnrod Éireann and no effective action took place. Therefore, I find that the complainant has established a prima facie case of discriminatory treatment regarding her conditions of employment and the respondent has failed to rebut this inference of discrimination.
Harassment
4.10 Section 14 (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.11 I am not satisfied that sufficient evidence has been adduced that the complainant was harassed on the ground of gender. Therefore this strand of her case cannot succeed.
Access to Promotion
4.12 According to Section 8(8) of the Act, an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds the employers refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or the employer does not in these circumstances offer or afford the employee access in the same way to those opportunities. The Labour Court has held that if the protected factor or characteristic is more than a trivial influence in the impugned decision, a claim of discrimination will have been made out.
4.13 Regarding the Marketing and Planning roles in 2003 (2.2 and 3.1), it is common case that the complainant withdrew her application for same prior to the interview. Ms Murphy is a person who was and continues to be interested in career progression. Therefore I am satisfied that the complainant did not take this action without assurances, which she felt she could rely on, that the position to which she was to be appointed was at the same level as the ones from which she withdrew her application. The justification the respondent gave for offering the complainant an alternative position (which is clearly at a lower level than the Marketing and Planning roles) was that neither Mr D nor Mr H who had previously worked with Ms Murphy were enthusiastic about acquiring Ms Murphy as a member of staff. No satisfactory supporting evidence was presented to me to substantiate this position. Both of Mr A's letters requesting views on Ms Murphy's suitability for promotion were sent on 1st March 2004 (approximately six months after the three Marketing and Planning Managers were appointed). Mr H responded to Mr A in writing saying that it had been many years since he had worked with the complainant so he could not judge. Mr D did not respond in writing. However, in subsequent years Mr D allowed the complainant to use his budget allocation which could indicate that he found her to be reasonably competent. The respondent did not call either Mr D or Mr H as witnesses although both continue to be employed on a consultancy basis by Iarnrod Éireann. By misrepresenting the Marketing Communications Manager role, I am satisfied that the respondent did not offer Ms Murphy the same access to these promotional opportunities (Marketing and Planning Managers) as the three successful male candidates. In direct evidence, Mr A said 'one of Monica's problems is her ambition'. Having adduced all the evidence, I am satisfied that discrimination on the ground of gender occurred in not affording the complainant access to promotion to the Marketing and Planning positions in 2003.
4.14 Regarding the Corporate and E-marketing position in 2006, I requested and received the competition file as evidence (2.12 and 3.4). The file shows that an other internal candidate accessed the aptitude test on 11th September. This conflicts with what Ms C, Human Resources Manager, Central Services wrote in her letter to the complainant on 8th September 'As testing of all other candidates concerned has been completed there is a pressing need to begin the interview stage'. I accept the complainant's contention that at no time was she able to open the personality questionnaire and that the Human Resources Department did nothing to facilitate access despite the complainant and her union raising concerns. The dates when the other candidates were unavailable for the in-tray exercise were handwritten on the file. The availability or otherwise of Ms Murphy was not included on this list. One of the internal male candidates was allowed to do the intray exercise on a different day (18th August) to the date stated on his letter (16th August). The complainant was not given an alternative date. Ms Murphy might have been better advised to insist on the questionnaire and in-tray exercise being made available to her and gone ahead with the interview rather than also being adamant on receiving a job specification for the role and using the competition as leverage to gain certainty for her role in the company hierarchy. (In relation to the job specification, I note a copy of the draft one was included in the competition file and Ms C said in direct evidence that other applicants may have seen a version of it. On the balance of probabilities, I consider that Ms C's evidence is likely to be correct. I would be surprised if candidates for a senior position would attend an interview without some information other than a half-page advertisement as to what the role entailed.) However, this does not take from the fact that the complainant was not allowed access to promotion in the same way as the other candidates. The Labour Court has held that 'in the absence of unfairness in the selection process, or manifest irrationality in the result, it will not seek to undertake its own assessment of candidates or substitute its views on their relative merits for those arrived at by the designated selectors' I am satisfied that there was unfairness in the selection process in that the complainant did not have access to the personality questionnaire and while other candidates were facilitated with alternative dates, the complainant was not. Therefore, I will look at the relevant qualifications and experience of Ms Murphy and the successful candidate.
Ms Murphy Mr G
Qualifications MBS in Marketing (1st class honours) MBA in Operations and Management Information Systems (Grade not stated)
Years of post-qualification experience 22 years 7 years
Examples of achievements 'Member of taskforce to set up and reposition Iarnrod Éireann in 1987 and move it away from the old CIE image. Responsible for the Marketing elements of the Business Plan. External consultants recommended that the Bus company abandon their Marketing Plan and replace with my proposals'
'Appointed PR Chair of Irish Congress of Southern California. Organised the PR coverage for one St Patrick's Day parade which had a record attendance of 85,000'
'Set up a programme of on-ticket advertising on backs of tickets. This resulted in free print advising to the value of 20,000.'
'Lectured to Final Year students in Marketing' 'Project Manager for deployment of Online Reservation and Sales'
'Project Manager for deployment of Speech Recognition System'
'Project manager for Realtime DART SMS service'
'Setup and management of relationship with Ticketmaster'
' Managing all the technological aspects of [ Irish online auction website]
While the achievements of Mr G are impressive, it would seem that, on paper, Ms Murphy would also be a strong candidate had she got to the interview stage. Iarnrod Éireann would seem to concur with this view as handwritten on the Corporate and E-marketing competition file is 'Fact of Monica's application indicates she could win or lose'.
4.15 Regarding the use of the Equality Audit, statistics can be quoted from it to support either the complainant's or respondent's arguments (2.22 and 3.13). Therefore I will not dwell on same.
4.16 Regarding access to the promotion of Corporate and Emarketing Manager in 2006, I am satisfied that the complainant has established a prima facie case of discrimination and the respondent has failed to rebut Ms Murphy's claim of less favourable treatment.
4.17 As Ms Murphy did not apply for the position of Marketing Manager in 2009 (2.16) I cannot make a finding in relation to this promotion.
Victimisation
4.18 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.19 Regarding the accessing of the complainant's email(2.19 and 3.8), the Acceptable Use Policy: Use of CIE Information Systems states 'Email must not be used for unlawful activities, commercial purposes not under the auspices of CIE, personal financial gain, sexual harassment, bullying or any other use inconsistent with CIE Group Information Security Policy and Standards.' No evidence was presented to me that the complainant used email facilities for any of the purposes above. In common with all members of the Executive Committee of the Marketing Institute of Ireland, she uses her work email as her contact address. She sees her work there as part of her Marketing function especially in the context of the lack of meaningful work assigned to her by her employer since 2003 and her wish to use her time productively. The respondent has stated that the complainant has misrepresented herself as a Senior Manager to these professional organisations. No evidence was presented to me that this was the case - in fact the MII pen picture of Ms Murphy (included in the respondent's submission) accurately reflected the complainant's position and experience. Iarnrod Éireann have presented some of the emails accessed without the complainant's permission as evidence before me but none of them relates to the prohibited activities mentioned in their Acceptable Usage of IT policy. All of these emails relate to the complainant's communications with her Trade Union. I am satisfied that Ms Murphy's email was read not to examine her work pattern or whether she was using Iarnrod Éireann facilities for personal financial gain but to further intimidate her and to be privy to her complaint of gender discrimination and bullying against Mr A. Had substantial evidence been found of either non-attendance at work or use of email for commercial purposes unrelated to Iarnrod Éireann, this should have been raised as a disciplinary issue with the complainant. While Iarnrod Éireann has the right to monitor email to ensure it conforms to their Acceptable Usage policy, I find the accessing of the complainants email, in this context, constitutes victimisation.
4.20 Regarding the incident on the stairwell (2.20 and 3.7), Mr A is, of course, entitled to supervise the complainant's work and query her on same. However, I accept the complainant's contention that this encounter was unnecessarily aggressive. I am also satisfied that the complainant has been excluded from some social events (2.2 and 3.12) and that annual leave and expenses were not sanctioned since she raised the issue of gender discrimination to Ms E. Having evaluated all the evidence adduced to me, I find that the complainant was victimised within the meaning of the Act.
4.21 In calculating redress for the complainant, I must be cognisant of a number of factors. The company's own Policy on the Prevention of Workplace Bullying, Harassment and Sexual Harassment states 'those in managerial or supervisory roles have a particular responsibility to promote a culture of dignity, respect and openness to diversity'. Mr A reported directly to the Chief Executive Officer and had responsibility for Human Resource Management. The Chief Executive Officer was aware of the complainant's concerns and failed to ensure the matter was investigated properly in line with fair procedures. Ms Murphy has submitted that she has felt distressed, undervalued and intimidated with what has occurred since 2003 in Iarnrod Éireann and I can understand how this would be the case. I am also guided by Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive .
Decision
I have concluded my investigation of Ms Murphy's complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) the respondent discriminated against the complainant in relation to her conditions of employment contrary to Section 8 (1)(b) of the Act on the ground of gender
(ii) the complainant was not harassed on the ground of gender contrary to Section 14A of the Act
(iii) the respondent discriminated against the complainant in relation to access to promotion in terms of Section 8 (8) of the Act on the ground of gender
(iv) the respondent victimised the complainant within the meaning of 74(2) of the Act.
In accordance with Section 82 of the Act, I order the respondent:
(a) that the complainant is provided with meaningful work consistent with her skills and experience with immediate effect
(b) provide for a facilitation/mediation process involving the complainant, Mr A, Mr B, Ms C and Mr G with a view to restoring working relationships. The facilitator/mediator should be suitably qualified and unknown to the parties. This process should take place as soon as possible but should begin not later than three months from the date of this decision. The Facilitator/Mediator should be given the authority to include other colleagues in the process where s(he) considers it necessary and appropriate.
(c) pay the complainant:
(i) €126,000 (the equivalent of two years salary) in compensation for the discrimination in relation to her conditions of employment and access to promotion
(ii) €63,000 (the equivalent of a year's salary) in compensation for the distress caused by victimisation.
The total award of €189,000 is redress for the infringement of Ms Murphy's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
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Orlaith Mannion
Equality Officer
13th November 2009