FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : MEDICAL PUBLICATIONS IRELAND (TRADING AS IRISH MEDICAL TIMES) (REPRESENTED BY A & L GOODBODY) - AND - BARBARA CLINTON (REPRESENTED BY FX ROWAN & CO SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. 1.1This dispute concerns a complaint by Ms. Barbara Clinton (the Complainant) against Medical Publications Ireland Ltd. (the Respondent) (trading as Irish Medical Times) in which she alleges 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 (the Acts) .
1.2The Complainant referred her complaint under the Acts on 8th July 2005
The Equality Officer investigated the complaint and made the following 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."
Background:
The Facts of the case are largely, though not completely, agreed between the parties. The Complainantwas employed as a Senior Reporter by the Respondent on 19th June 2000. Two other reporters were appointed at the same time. Her starting salary was higher that theirs as she had fifteen years of post-qualification experience while Mr. B and Mr. C each had approximately two years of post-qualification experience. On occasion, each of the reporters 'acted up' when the News Editor Mr A was absent
Things proceeded as normaluntil 2003, when the Complainant applied for and was granted a career break for one year. The Respondent had intended replacing her for the duration of the leave of absence with an experienced reporter. However at short notice that person decided not to take up the job offer and recommended a more junior reporter for the position. The Respondent accepted that recommendation and offered that person the position and she accepted the offer.
While the Complainant was away on leave of absence the editor of the publication became terminally ill and the Respondent made interim arrangements to cover that role. The News Editor was appointed Acting Editor and one of the reporters was appointed Acting News Editor. These appointments were made without a competition. The Complainant was advised of these developments in the course of email exchanges that were taking place between her and the Respondent. The Editor did not recover and in due course the Respondent made those appointments permanent without a competition for the permanent posts. Mr. B was officially appointed News Editor on 26th November 2004.
Relations between the Complainant and the Respondent deteriorated thereafter. Issues arose about the manner in which the Complainant’s copy was being treated. In addition the Complainant felt she was being discriminated against and being treated in a disrespectful manner that would not have been visited upon a male colleague of comparable seniority. Following a dispute, the manner in which a series of grievances she had raised with the Respondent were being investigated, the Complainant resigned from the Company on 5th April 2005 claiming constructive dismissal.- "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
Summary of the Complainants Position
- 2.3 The Complainant commenced working with the Respondent on 19th June 2000 as a senior reporter. She was paid a salary commensurate with her experience and was led to believe that she was a strong candidate for promotion within a short period of time. Two other journalists were employed around the same time as she was. Both of these had very short post-graduate experience and were employed as reporters as distinct from senior reporters, the role in which she had been employed. Their salaries reflected the considerable distinction in status between a reporter and a senior reporter.
The Complainant applied for and was granted a career break in 2003. She expected to be replaced by a senior reporter for that period. In fact a junior reporter was hired to replace her. She said that this reflected badly on her professional standing. She said that a senior male colleague would not be treated in such a manner.
While she was on leave she said that she became aware that the Editor had become terminally ill and that the Respondent was making arrangements to fill the vacant post and to backfill any resulting vacancies that might arise. She said that she was led to believe that these events would be finalised before she returned to work and that there was nothing she could do as she was on leave of absence at that time.
The Complainant returned to work on 18th October 2004. She maintains that Mr. D, Acting Editor (formerly News Editor) informed her that Mr. B, one of the reporters that had been employed around the same time as her, was acting up in the position of News Editor; that he had performed well in the role and that the Company had decided to confirm him in the position and that there would be no competition for the post. The Complainant maintains that she was told that there was a possibility that another editorial role, for which she was be suitably qualified would become available within about six weeks. On foot of this representation she raised no objections to these developments.
After Mr. B was formally appointed the Complainant asked Mr. D again about the likelihood of the new management role being advertised to which Mr. D said he had spoken to the Managing Director and no such role was now likely to arise. She said that she felt she had been misled to secure her acquiescence to the unilateral appointment of the News Editor.
A series of issues arose between the Complainant and the News Editor regarding the manner in which her work was being handled that gave rise to her forming the view that she was being so treated because she was female and that similar treatment was not and would not be applied to a male reporter of her experience and standing.
She said that the reducing differential between her salary and that of the two less experienced reporters that started working with the Respondent around the same time that she did was a further indication of gender based discriminatory treatment of her by the Respondent.
The Complainant noted that in 2002 one of her male colleagues had received an additional payment of €250 euro for work done on preparing a supplement for a major medical conference. By comparison she had not received any such additional payment for preparing a similar supplement for an even bigger medical conference that same year. She said that when she raised the issue she got neither a satisfactory explanation of what had happened nor any redress for being treated in a less favourable manner. She said that this was further evidence of gender discrimination.
The Complainant said that the credits section in the paper continually listed her behind her male colleagues despite her longer service and greater experience as a reporter. She said that this was further evidence of gender discrimination on the part of the Respondent.
She said that when she returned from her Career Break she was guaranteed that her new contract of employment would be similar to that which she had before the commencement of the break. However she noted that the Contract referred to her as a reporter rather than a senior reporter. She raised the matter with the Editor and it was corrected immediately. However she said that this was a further indication of discriminatory treatment of her by the Respondent.
She further said that her annual salary review date was changed in the new Contract of Employment. She said that the Employer explained this as being related to an wider realignment of all pay review dates to bring them into line with the global corporate calendar. She said this was a further example of discriminatory treatment of her by the Respondent.
The Complainant said that she raised these issues as grievances with management in accordance with the terms of the internal Grievance Procedures. She said that they were not properly investigated. While out on stress-related sick leave she was contacted at home on nine occasions despite her union requesting, at her behest, that no such contact should take place until she was fit to return to work. The Complainant submits this constituted harassment and that it was done to deprive her of third party representation. She said such behaviour would not have been applied to a senior male colleague.
She said the repeated contact with her whilst on sick leave amounted to a breach of the trust and confidence necessary for the maintenance of a contract of employment and she felt she had been constructively dismissed when she resigned on 5th April 2005.
The Complainant submits that when she started there were a number of women employed by the Respondent in senior roles. On the Complainant's departure some of these women had vacated these senior roles and either were not replaced, were replaced by a man or replaced by very young women with limited experience. The Complainant said that she had asked several former senior employees to give evidence to the Court but that none had been willing to do so or that they had reached termination agreements that contained confidentiality clauses that prevented them for so doing.
Summary of the Respondent's submission
The Respondent is a subsidiary of Reed Business Information Limited. The Complainant worked for one of its publications Irish Medical Times. The Complainant applied for and was granted a career break with effect from 1st September 2003 until 17th October 2004. It was originally agreed that she would return to work on 1st September 2004. However, at the Complainant’s request, the Respondent extended this period for a further seven weeks. At the conclusion of the Respondent’s career break she returned to work for the Respondent on the same terms and conditions that she had prior to her leave.
During her absence, the Editor of the Respondent 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 senior journalist was appointed Acting News Editor. On the death of Mr. A, Mr. D and Mr. B were appointed to those posts on a permanent basis. The Respondent submits that these were highly unusual and sad circumstances for the business. The Respondent further submits that Mr. B and Mr. D had performed well in these roles during Mr. A's absence and in order to ensure continuity of business the decision was made to formally confirm them in their positions.
The Complainant was doing a round-the-world trip at the time the acting appointments were made and therefore, the Respondent submits she could not have been considered for either post.
The Complainant 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. The Respondent denies that the Complainant was given any indications of or commitments regarding another managerial/editorial position. No such position was contemplated or created.
The Complainant was required to sign a new contract of employment on her return to work. The contract contained a clerical error. The job title in the contract incorrectly described her role as a Reporter and not Senior Reporter. The Respondent submits this was accidental and was promptly corrected. The contract of employment confirmed Respondent’s salary and other conditions of employment to be the same as they were prior to her leave of absence.
The Respondent submits that the submission provided to the Labour Court by the Complainant 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 that they carried out a full investigation. As part of that investigation they met with the Complainant and her trade union representative on 23rd March 2005. Following the conclusion of the investigation, Mr. E, called the Respondent to arrange a follow-up meeting to discuss the outcome of the Company's investigation into the grievance raised by her. The Respondent refused to attend this meeting and therefore the Company wrote to her 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. There was some confusion regarding the date on which the letter was sent to the Complainant. The Complainant said she did not receive the letter until after she had resigned her employment.
Following receipt of the letter of 1st April 2005, the Complainant’s union representative wrote to the Respondent on 8th April 2005 to inform them that she 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 the Tribunal and the Labour Court, are not relevant to the claim of gender discrimination. On the question of contact with the Complainant the Respondent says that there were nine phone calls over many months. The Respondent was seeking to arrange a meeting to talk through the Complainant's grievance and requiring her to attend their Occupational Health Doctor due to her extended sick leave.
The Respondent submits that all reporter’s copy is handled in the same way by the Editor and News Editor. Editorial staff must have the 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.
The Respondent submits that the only term in the Complainant’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 made 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 decision affected all members of staff and not just the Respondent.
The Respondent said that the Complainant 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.
The Respondent noted that the salary differential between the Complainant and the two other Senior Reporters 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 Complainant being off the payroll for over a year and Mr. C having gained more experience as a Senior Reporter.
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.
The Respondent maintains that Senior Reporters or Reporters are listed in the editorial credits section of the newspaper on a random basis. The Respondent submits that it changed this practice when the Respondent complained that she was being listed behind two male reporters with less experience than she had.
The Respondent submits that it does not see how the appointment of an inexperienced reporter during the Respondent’s career break could be claimed to be in any way discriminatory towards her. The Respondent said that it had initially chosen an experienced reporter to replace her during her career break but that she became unavailable at the last minute. It was the intended replacement that recommended the person who was then chosen for the post. The Respondent accepted this recommendation and appointed her for the duration of the Complainant’s leave of absence.
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. The Respondent 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.
The Respondent denies that there has been a negative culture that resulted in a number of senior-level female employees leaving their employment with the Respondent. The Respondent submits that from time to time, for various reasons, employees change jobs. The Respondent said that this has been the case here also. 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. The Respondent further submits that the Complainant has made allegations in this regard but has not produced a single piece of evidence to support them.
Conclusions of the Court
There are three issues for the Court to decide:
(i) Was the Complainant discriminated against by the Respondent 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 discriminatorily dismissed on the ground of gender contrary to Section 8(6)(c) of the Acts?
In reaching its Decision the Court has taken into account the extensive written and oral submissions made by the parties.
Section 6 (1) of the Acts provides
6 (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).
Section 85A of the Acts sets out the burden of proof that applies to claims of discrimination. The Labour Court inSouthern Health Board v Mitchell[2001] E.L.R. 201set out the manner in which this test should be applied : -- The Court must first consider if the evidence has disclosed a prima facie case of discrimination so as to shift the probative burden on to the respondent in terms of the European Communities (Burden of Proof in gender discrimination cases) Regulations 2001(S.I. No. 337 of 2001). The test normally used by the Court in determining the threshold for shifting the burden of proof is that formulated inMitchell v Southern Health Board [2001] ELR 201. This test places the evidential burden on the complainant to establish the primary facts on which her complaint of discrimination is grounded. If those facts are established and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the respondent must then prove, on the balance of probabilities, that the principle of equal treatment has not been infringed.
Applying this test to the facts before it the Court makes the following findings:
Conditions of Employment
In accordance with 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.
The Court notes that this is not an equal pay claim as at all times Complainant’s salary was higher than Mr. C's. The Complainants salary was also higher than Mr. B's salary until he became News Editor. The Complainant is not contending that her work was comparable to that of the News Editor. Furthermore for the purposes of the Acts remuneration or pension rights do not come within the scope of the statutory definition of terms and conditions of employment.
The Court finds as a matter of fact that the Complainant’s terms and conditions of employment did not materially change on her return to work following her career break. 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. The Court finds as a fact that this arose out of a general policy to introduce a new annual salary review date for all staff arising out of a decision to harmonise arrangements within the group.
The Court is also satisfied that the use of the description “Reporter” as distinct from the term “Senior Reporter” in the 2004 Contract of Employment was an error that was corrected as soon as it was brought to the attention of the Editor. The Court is satisfied that this was not gender based discrimination within the meaning of the Acts.
The Court has considered the Complainant’s submission that her work was treated by the News Editor in a manner that a comparable male’s copy would not have been. The Court is satisfied that the Complainant was dissatisfied with the manner in which her copy was treated. However the Complainant has failed to put any evidence before the Court that would enable it to conclude that other male reporters were treated in a different and more favourable manner. The Court is satisfied that the News Editor operated a regime that was not to the liking of the Complainant but that did not amount to gender discrimination within the statutory definition of that term.
The Court has considered theovertime payment of €250 in 2000 to a comparable male journalist to determine if it amounted to gender based discrimination. Firstly the Court notes that a considerable time had elapsed since this incident. In her own submissions to the Court the Complainant said she had raised the issue at the time and had received explanations that were less than satisfactory. However she had not pursued the issue further at that time. The Editor who paid the monies Mr. A is deceased and the recipient of the monies Mr. B no longer works for the company. In addition in answer to the Court the Complainant admitted that she had not investigated with other employees if any of them, either male or female, had been compensated in a similar manner for such work. The Court therefore is satisfied that the incident it is not of 'sufficient significance' to establish a prima facie case of discrimination.
Regarding the order of credits in the newspaper the complainant has submitted examples of copies of Irish Medical Times where her name is listed last amongst the reporters. The respondent has acknowledged that there were occasions when the Complainant’s name was listed last but that this was altered when she raised the matter with the Editor. The Respondent further submitted that the credits were inserted each week on the basis of an editor’s template without much thought or consideration. When the correction was made it was incorporated into the template and that was applied thereafter. On the balance of probabilities the Court is satisfied that credits of reporters/senior reporters were listed in a way and did not have the intention or effect of discriminating against the Complainant.
The Complainant has suggested that there was a negative culture in Medical Publications Ireland resulting in experienced women leaving the company. While some figures were presented to the Court that indicated a higher level of female than male staff turnover within the company, in the absence of direct evidence (except from Mr. D and the Complainant) as to the reasons why the former employees left the company, the complainant has been unable to establish a prima facie case of discrimination.
The Court does not accept the Complainant’s contention that replacing the Complainant with somebody less experienced during her career break amounted to discrimination on the gender ground. The Court is satisfied that the Respondent initially identified a senior reporter to replace the Complainant and when she rejected the offer of employment they then proceeded to employ another journalist, that she had recommended, who proved to be equal to the assignments given to her. It is a matter for the employer to determine what kind of replacement reporter, if any, they should hire during the Complainant’s leave of absence. The Court also notes that the Leave of Absence Agreement makes no provision for the Complainant to be replaced at all let alone by a senior journalist.
The Court was offered no evidence from which it could conclude that the Respondent failed to investigate the grievances raised by the Complainant. The investigation may not have been perfect but it was adequate and could not be said to have been discriminatory on the gender ground.
Accordingly the Court finds that the complainant has not established facts from which it can be presumed that the respondent discriminated against her regarding her conditions of employment.
Access to Promotion
Pursuant toSection 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.
It is common case that the Complainant was on a career break and was out of the country when Mr. B began acting up to the role of News Editor. The terms of her career break agreement state that she had resigned from the employment of the Respondent. Accordingly she was not eligible for consideration for the 'acting up' promotional opportunity. The Court accepts the respondent's contention that an 'acting up' appointment had to be made quickly and subsequently handled with sensitivity.
There is no doubt that the Complainant had returned from career break when Mr. B was formally appointed. A competition was not held for either the acting or the substantive post. 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, the Court does not find the failure to do so was discriminatory.
No evidence was presented to the Court that would enable it to conclude that the Complainant had been promised another editorial position that did not materialise. Furthermore as the post was not created by definition it was not advertised as a promotional opportunity and the Complainant could not have been refused access to compete for it. The Court therefore finds that the complainant was not discriminated against pursuant to Section 8(8) of the Acts.
Discriminatory Dismissal
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.
No evidence was presented to the Court that would enable it to conclude that the investigation into the grievances, put into procedure by the Complainant, was conducted in a manner that would justify the employee terminating her own employment amounting to constructive dismissal. It is clear that the investigation was imperfect but it was not oppressive and the Respondent had an entitlement to expect the Complainant to co-operate with the investigation into the complaints and to attend the Company’s medical advisors to enable it to assess the extent of her illness and her capacity to assist the investigation.
The Court finds that the Complainant has not put forward credible evidence that would ground a prima facie case of discriminatory dismissal.
DETERMINATION:
- Based on the submissions of the parties and the evidence before it the Court finds, 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
The appeal is rejected and the Decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Brendan Hayes
31st December, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.