Equality Officer's Decision
DEC-E2009-093
Employment Equality Acts
Ms. Barbara Clinton
Versus
Medical Publications Ireland Limited (trading as Irish Medical Times)
(represented by Alex White B.L instructed by Ms. Laura Herangi, A & L Goodbody Solicitors)
File reference: EE/2005/237
Date of issue: 21st October 2009
Keywords: Gender, Access to Employment, Conditions of Employment, Discriminatory Dismissal, No prima facie case
1. Dispute
1.1 This dispute concerns a complaint by Ms. Barbara Clinton against Medical Publications Ireland Ltd. (trading as Irish Medical Times) in relation to discriminatory treatment regarding access to promotion and conditions of employment leading to discriminatory dismissal on the ground of gender contrary to the Employment Equality Acts 1998 to 2008 [hereinafter referred to as 'the Acts'] .
1.2 The complainant referred her complaint under the Acts on 8th July 2005. In accordance with her powers under Section 75 of the Acts the Director delegated the case on 20th March 2008 to Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was held on 24th July 2008. The final correspondence received in relation to information sought by the Equality Officer was on 4th November 2008.
2. Summary of the complainant's submission
2.1 Ms. Clinton was employed as a Senior Reporter with the Irish Medical Times on 19th June 2000. She maintains that she was head-hunted by the then editor, Mr. A. The complainant also states that she was given the impression that a vacancy as News Editor was likely to arise in the short-term and that she would be a strong contender for this position. Her starting salary was higher that the other two reporters appointed as she had fifteen years of post-qualification experience and Mr. B and Mr. C each had approximately two years each of post-qualification experience. On occasion, Ms. Clinton was asked to 'act up' as News Editor when Mr. A was absent. She said Mr B and Mr. C were allowed to do the same. The complainant maintains this was to flatten out the difference in experience between her and her less experienced male colleagues.
2.2 In 2003, Ms. Clinton applied and was granted a career break for one year. While she was gone she submits a female, inexperienced Reporter took Ms. Clinton's role while on career break. The complainant submits that this is discriminatory on the ground of gender as if it was a man in the complainant's role, he would have been replaced by somebody experienced.
2.3 Ms. Clinton was to return to her position as Senior Reporter in September 2004. Following a request by Ms. Clinton her career break was extended for a further seven weeks and she returned to work in Medical Publications Ltd. on 18th October 2004. She maintains that Mr. D, Acting Editor (formerly News Editor) informed her that Mr. B was acting up to the position of News Editor and there would be no competition for same. The complainant maintains that she was 'fobbed off' with the idea that there was a possibility of a management role within the next six weeks. Mr. B was officially appointed News Editor on 26th November 2004. After Mr. B was formally appointed Ms. Clinton asked Mr. D again about the likelihood of a management role and Mr. D said he had spoken to the Managing Director and no such role was now likely to arise.
2.4 Prior to Ms. Clinton's career break, reporters were allowed to re-review copy (draft articles) where substantive changes had been made by the editorial team. Mr. B, when he became News Editor, did not allow this. The complainant submits Mr. B rewrote some of her stories or gave them headlines in a manner that rendered them factually incorrect. Ms. Clinton submits that this could cause damage to her reputation as a journalist. On one occasion the complainant had written about radiotherapy services in Galway and this article was removed hours before publication. When Ms Clinton raised this matter, she submits that Mr. D eventually apologised and said that her article was better than the one that appeared. The complainant submits that Mr. B was uncomfortable with a woman with more experience reporting to him. The complainant submits this behaviour was discriminatory on the ground of gender and the respondent did nothing to prevent it happening.
2.5 Her contract on returning from career break said her position was as a Reporter rather than a Senior Reporter. Her salary remained the same as what it was when she left. She states her terms and condition of employment were also altered. The complainant points that the differential between her salary (when she returned in October 2004) and Mr. C had narrowed. She submits that he was given a more substantial increment than her in 2002. She submits this is because he was a man. The complainant states that Mr. B got an ex-gratia payment of €250 for working on a Irish Hospital Consultants Association AGM supplement in 2000. In the same year the complainant did the same for the AGM of the Irish Medical Organisation. The complainant submits that the IMO have 7,000 members while the IHCA has only 2,200 members and she received no such payment. The complainant submits that the way reporters were listed in Irish Medical Times was also discriminatory. They were neither listed in order of seniority or alphabetical order. The complainant submits female reporters were listed last regardless of seniority.
2.6 Ms. Clinton also maintains that the investigation into the issues she raised was not conducted properly. While out on stress-related sick leave she was phoned at home 9 times despite her union passing on her request not to do so. The complainant submits this is harassment and that it was done to prevent her from having third party representation.
2.7 She resigned on 5th April 2005. The complainant submits that when she started there were a number of women in senior roles in Irish Medical Times. On the complainant's departure some of these women had vacated these senior roles and either were not replaced, replaced by a man or replaced by very young women with limited experience.
3. Summary of the respondent's submission
3.1Medical Publications Ireland Limited is a subsidiary of Reed Business Information Limited. The complainant worked for one of its publications Irish Medical Times. Ms. Clinton took a career break from 1st September 2003 until 17th October 2004 which was facilitated by the respondent. It was agreed that she would return to work on 1st September 2004. However, at Ms. Clinton's request, the respondent extended this period for a further seven weeks. At the conclusion of Ms. Clinton's career break she returned to Medical Publications Ireland Ltd. on the same terms and conditions that she had prior to her leave.
3.2 During Ms. Clinton's absence, the Editor of Irish Medical Times Mr. A became terminally ill and took an extended leave of absence. Mr. D, who had been News Editor, was appointed Acting Editor and Mr. B who had been a journalist was appointed Acting News Editor. In relation to the vacant position of News Editor on the death of Mr. A, as Mr. D had been Acting Editor and Mr. B Acting News Editor for the duration of Mr. A's extended leave, the respondent confirmed both of the appointments on a permanent basis. The respondent submits that these were highly unusual and sad circumstances for the business and where Mr. B and Mr. D had performed well in these roles during Mr. A's absence. In order to ensure continuity of business the decision was made to formally appoint them to these roles. Ms. Clinton was doing a round-the-world trip at the time of these acting appointments therefore, the respondent submits she could not have been considered for either these roles. Ms. Clinton was aware through email correspondence with Mr. D during her career break that Mr. B and Mr. D were taking on those roles. She did not raise any objection. The other reporter (Mr. C) was not considered for the role of News Editor either. Therefore, to the extent that the appointment excluded others, the respondent contends that it excluded all others, male and female. Regarding the complainant's assertion that the respondent promised her an other promotion, the respondent denies this was the case.
3.3 Ms. Clinton was required to sign a new contract of employment on her return to Medical Publications Ireland. The contract provided initially to Ms. Clinton contained a clerical error as the job title in the contract was Reporter and not Senior Reporter. The respondent submits this was accidental and it was promptly corrected. The contract of employment confirmed Ms. Clinton's salary to be the same as her salary prior to her leave of absence.
3.4 The respondent submits that the submission provided to the Tribunal by Ms. Clinton is identical to the formal grievance she raised with the respondent in March 2005. On receipt of her grievance in March 2005, the respondent submits they carried out a full investigation. As part of that investigation they met with Ms. Clinton and her trade union representative on 23rd March 2005. Following the conclusion of the investigation, Mr. E, Publisher called Ms. Clinton to arrange a follow-up meeting to discuss the outcome of the company's investigation into the grievance raised by her. Ms. Clinton refused to attend this meeting and therefore the Company wrote to Ms. Clinton with the outcome of her grievance on 1st April 2005. The letter outlined the appeal procedure available to Ms. Clinton in the event that she was not satisfied with the outcome of the respondent's investigation.
3.5 Following receipt of the letter of 1st April 2005, Ms. Clinton's union representative wrote to the respondent on 8th April 2005 to inform them that Ms. Clinton was resigning from her position with immediate effect. The respondent denies that the complainant is entitled to claim constructive discriminatory dismissal as Medical Publications Ireland Ltd. handled her grievance in a responsible and reasonable way. The respondent submits that all specific allegations were addressed. The respondent further submits that the issues mentioned in her grievance, and subsequently in her claim to this Tribunal, are not relevant to the claim of gender discrimination. Regarding ringing the complainant, Medical Publications Ireland state that there were nine phone calls over many months. The phone calls were in relation to seeking a meeting to talk through the complainant's grievance and requiring Ms Clinton to attend their Occupational Health Doctor due to her extended sick leave.
3.6 Regarding Ms. Clinton's complaint that employees did not work in a supportive environment especially regarding how copy was handled, the respondent submits that the Editor and News Editor have the same processes in place for all of the journalists writing for IMT and that editorial staff have final say as to the content of the publication. The respondent maintains that a journalist could not in any weekly publication reasonably expect to be consulted on each and every change made to the text of their work by the Editor.
3.7 The respondent submits that the only term in Ms. Clinton's contract that changed was the annual salary review date. Prior to 2005, these reviews were conducted in January of each year. As the respondent is part of the RBI Group of Companies, a decision was make to harmonise its annual reviews with other companies in the group and, as a result, all salary reviews are now undertaken in April of each year. The respondent states that this is a decision which affected all members of staff of the respondent and not just Ms. Clinton.
3.8 Regarding her salary at all times Ms. Clinton was paid more that Mr. C whose (initial and subsequent) contracts also described him as a Senior Reporter. She was also paid more than Mr. B until he was appointed News Editor. The complainant does not contend her work as a Senior Reporter is like work with a News Editor within the meaning of the Acts. Regarding the salary differential decreasing, the salary differential was €6000 when both Mr. C and the complainant started in 2000. By 2005 this differential decreased to €3000. This was in the context of Ms. Clinton being off the payroll for over a year and Mr. C having gained more experience as a Senior Reporter.
3.9 In relation to the incident for which Mr. B was paid €250 for working on a project that was additional to his duties. The respondent submits that it was a once-off incident that occurred in 2000. The respondent suggests Mr. B may have requested a payment rather than time off in lieu. When the complainant worked overtime, she sought time off in lieu.
3.10 The respondent maintains that the order in which Senior Reporters or Reporters are listed in Irish Medical Times are listed on a random basis. The respondent submits that it does not see how the appointment of an independent contractor during Ms. Clinton's career break could be claimed to be in any way discriminatory towards her.
3.11 During Mr. A's time as Editor, on occasion people acted up to News Editor (to allow Mr D to act up as Editor) when he was on annual leave or away from the office. Ms. Clinton was one of a number of employees who acted as News Editor when he acted up as Editor during such absences. When Mr. D took over as Editor this practice stopped. The respondent submits this change applied equally to all staff - male and female just as the previous practice of allowing reporters to act up as News Editor did not discriminate on the ground of gender.
3.12 The respondent denies that there has been a negative culture which resulted in a number of senior-level female employees leaving their employment with Medical Publications Ireland. The respondent submits that from time to time, for various reasons, employees leave a company as has been the case in Irish Medical Times. The respondent maintains this does not establish the existence of a discriminatory culture within the Company. The respondent submits that in recruitment and promotion the selection criteria is based on performance and suitability for the role and not gender.
4. Conclusions of the Equality Officer
4.1 There are three issues for me to decide:
(i) Was the complainant discriminated against by Medical Publications Ireland Ltd in relation to her conditions of employment as per Section 8 (1)(b) on the ground of gender?
(ii) 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 Acts?
(iii) Was the complainant was discriminatorily dismissed on the ground of gender contrary to Section 8(6)(c) of the Acts?
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 Acts provides that discrimination shall be taken to occur where on any of the discriminatory ground 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 Acts 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.'
Access to Promotion
4.4 As per Section 8(8) of the Acts, 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.
4.5 It is common case that Ms. Clinton was on a career break and was out of the country when Mr. B began acting up to the role of News Editor (2.3 and 3.2). Therefore she was not eligible for the 'acting up' promotional opportunity. I accept the respondent's contention that an 'acting up' appointment had to be made quickly. Ms. Clinton had returned from career break when Mr. B was formally appointed. A competition was not held for either the acting or the substantive competition. Mr. C was not considered for the News Editor position either even though he had more experience in 2004 in Irish Medical Times than the complainant. While it may have been desirable that a competition for substantive appointment to News Editor be held, I do not find the failure to do so to be discriminatory.
4.6 Regarding whether or not an other opportunity for promotion was imminent (2.3 and 3.2) there is a conflict of evidence between the complainant and respondent. The complainant states she was led to believe that an opportunity for a management position would emerge in the short-term. The respondent states no such commitment was given. Irrespective of what was said, an other vacancy for an editorial position did not occur so the complainant was not denied access to a further opportunity for promotion. Therefore, Ms. Clinton has failed to establish a prima facie case on the ground of gender in relation to access to employment.
Conditions of Employment
4.7 As per Section 8 (6) of the Acts, an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee the same terms of employment (other than remuneration and pension rights), the same working conditions and the same treatment in relation to overtime, shift work, short time transfers, lay-offs, redundancies, dismissals and disciplinary measures as the employer offers or affords to another person or class of persons where the circumstances in which both such persons or classes are or would be employed are not materially different.
4.8 In the interests of clarity, it should be noted that Ms. Clinton is not making an equal pay claim as at all times Ms Clinton's salary was higher than Mr. C's. Her salary was also higher than Mr. B's until he became News Editor. Under the Acts conditions of employment does not include remuneration or pension rights.
4.9 Following her career break, the complainant returned to as favourable terms and conditions of employment as before she left (2.5 and 3.3). Her contract of employment in 2004 reveals her salary to be the same as when she left. The only alteration to her terms of employment was her annual review date. This applied to all employees, male and female, within the company. I prefer the respondent's evidence that the use of the incorrect title of her position on her contract on return from a career break was inadvertent. It is common case that it was immediately corrected once the mistake was pointed out.
4.10 Regarding copy clearance (2.4 and 3.6) and acting up as Editor (2.1 and 3.12) Ms. Clinton's claim is not that she was treated less favourably than her male counterparts. It is that the she was dissatisfied with the change in procedures following the new appointments at Editor and News Editor. While the complainant may have been disgruntled about the change in regimen, she did not suggest that either Mr. B or Mr. D treated other journalists (be they male or female) more favourably. Nor has any evidence been adduced that this was the case. Therefore, I do not find these procedures were discriminatory based on Ms. Clinton's gender.
4.11 In relation to Mr. B's overtime payment of €250 in 2000 (2.5 and 3.9), the relevant witnesses were not present at the Hearing. Mr. A is deceased and Mr. B no longer works for the company. Therefore, I was unable to establish the full facts of the incident. However, on its own, it is not of 'sufficient significance' to establish a prima facie case of discrimination.
4.12 Regarding the order of credits (2.5 and 3.10), the complainant has submitted copies of Irish Medical Times where her name is listed last. The respondent has submitted copies of same where her name is listed first. Therefore, on the balance of probabilities, I am satisfied that credits of reporters/senior reporters were listed in a random way and did not have the intention or effect of discriminating against the complainant.
4.13 Ms. Clinton has suggested that there was a negative culture in Medical Publications Ireland resulting in experienced women leaving the company (2.7 and 3.13). Between 2000 and 2008 a total of fourteen women were employed with the respondent in a journalistic or editorial capacity. Of these, ten have left the company. Between the same years there have been thirteen men employed in MPI. Six have these have left. In the absence of direct evidence (except from Mr. D and Ms. Clinton) as to the reasons why the former employees left the company, the complainant has been unable to establish a prima facie case of discrimination. I do not accept Ms Clinton's contention that replacing her with somebody less experienced during her career break is discriminatory (2.2 and 3.10).
4.14 I am satisfied that the complainant's grievance was handled in line with fair procedures (2.6 and 3.4). The complainant has not succeeded in establishing facts from which it can be presumed that the respondent discriminated against her regarding her conditions of employment.
Discriminatory Dismissal
4.15 The definition of 'dismissal' in the Acts incorporates constructive dismissal:
"Dismissal" includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee would have been entitled to terminate the contract without giving such notice, or it would have been reasonable for the employee to do so, and "dismissed" shall be construed accordingly.
For the reasons outlined in 4.4 to 4.14, I am not satisfied that the behaviour of the respondent was such that the complainant was entitled to regard herself as discriminatorily dismissed on the ground of gender.
Decision
I have concluded my investigation of Ms. Barbara Clinton's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that
(i) the complainant has not succeeded in establishing facts from which it may be presumed that the respondent discriminated against her on the ground of gender in relation to her conditions of employment
(ii) the complainant has not succeeded in establishing facts from which it may be presumed that the respondent discriminated against her on the ground of gender in relation to access to opportunities for promotion
(iii) the complainant has not succeeded in establishing facts from which it may be presumed that she was discriminatorily dismissed on the ground of gender
Therefore I find against the complainant.
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Orlaith Mannion
Equality Officer
21st October 2009