EQUALITY OFFICER'S DECISION NO: DEC-E/2010/094
PARTIES
O'FLAHERTY
(REPRESENTED BY OISÍN SCOLLARD BL INSTRUCTED BY
HUGHES AND LIDDY - SOLICITORS)
AND
UNIVENTURE IRELAND LTD
(REPRESENTED BY ROSEMARY MALLON BL INSTRUCTED BY
ARTHUR COX- SOLICITORS)
File No: EE/2007/493
Date of issue: 8 June, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 14A -gender- maternity - discriminatory treatment - equal pay - grounds other than gender - victimisation- burden of proof.
1. DISPUTE
This dispute involves a claim by Ms. Tanya O'Flaherty that she (i) was discriminated against by Univenture Ireland Ltd. ("the respondent") on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in respect of her conditions of employment, (ii) was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2007 and (iii) performs like work in terms of section 7 of the Employment Equality Acts, 1998-2007 with a named male comparator and is therefore entitled to the same rate of remuneration as paid to that comparator by the respondent, in accordance with section 19 of those Acts. The complainant also referred a complaint of discriminatory dismissal on grounds of gender to the Tribunal but this element of her complaint was withdrawn at the Hearing on 8 December, 2009. The respondent rejects the complainant's allegations of discrimination and victimisation. It further rejects the assertion that she performs "like work" with a named male comparator and notwithstanding this argument it submits that there are grounds unconnected with the gender of the complainant and comparator which renders the rates of remuneration lawful in accordance with section 19(5) of the Acts. Finally, it argues that this Tribunal is restricted in the scope of its investigation to those alleged incidents of unlawful treatment which took place between June, 2007 and 16 August, 2007.
2. BACKGROUND
2.1 The complainant states that she worked for the respondent from March, 1999 until May, 2008 in a variety of positions. She contends that she was employed as Manufacturing Purchasing Manager from June, 2004, initially on a job-sharing basis but on a full-time basis from February, 2007. She states that the things began to deteriorate after she notified the respondent of her pregnancy in April, 2007 culminating in her resigning from her employment on 12 May, 2008. She submits that the alleged treatment constitutes (i) less favourable treatment of her on the gender ground and (ii) victimisation of her contrary to the Acts. She also asserts she performs "like work" in terms of section 7 of the Acts with a named male comparator and is therefore entitled to the same rate of remuneration as paid to that comparator for the period 31 July, 2007 - 12 May, 2008. The respondent denies the complainant's assertions and contends that the rates of remuneration paid to the complainant and comparator are lawful in terms of section 19(5) of the Employment Equality Acts, 1998 - 2007.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2007 to the Equality Tribunal on 14 September, 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 28 May, 2009 - the date the complaint was delegated to me. Submissions were received from both parties and Hearings on the matter took place on 9 September, 2009 and 8 December, 2009. A small number of points arose which required further clarification and this gave rise to correspondence between the parties and the Equality Officer until end January, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she was employed by the respondent in a variety of positions from March, 1999 until May, 2008. She asserts that after she returned from maternity leave in 2004 she commenced in the position of Manufacturing Purchasing Manager on a job-sharing basis with Ms. C and continued in this role until February, 2007 when she took on the role of a full-time basis after Ms. C left the respondent. She states that her salary was increased and she signed a new contract of employment in respect of her full-time position on 18 April, 2007. The complainant states that shortly after this she informed the respondent she was pregnant. She adds that some time later the respondent CEO (who is located in USA) was visiting the Dublin Branch and he commented (whilst she was in the company of colleagues) that "that most women preferred to stay at home after having their babies". She states that she laughed the comment off replying that "she would be back because she could not afford to stay at home to which he replied "we hope you do". She submits that this comment indicates the respondent's negative disposition towards pregnant employees.
3.2 The complainant states she suggested to Mr. Pullin (who was Head of Operations and located in USA) that the respondent should recruit someone to cover her maternity absence. She adds that Mr. Pullin instructed her to contact recruitment agencies to advertise the position and to arrange interviews for suitable candidates for the last week of June. The complainant states that the interviews were conducted as planned and when she asked Mr. Pullin how things had gone he replied that he was not impressed with the candidates and asked her to conduct any other interviews if the need arose. The complainant states that no further interviews took place and the Office Supervisor was instructed by Mr. Pullin (on 3 July, 2007) to recruit Mr. X (the complainant's comparator) on a salary which exceeded that of the complainant by €4k per annum. The complainant states that it had been her understanding that Mr. X was to be recruited to cover the period of her maternity absence however, following a discussion with the Office Supervisor, it was clear to her that he was being appointed on a full-time basis.
3.3 The complainant states that this prompted her to write to Mr. Pullin (copying it to two other senior officers) on 12 July, 2007 raising concerns about the tenure of Mr. X, what he would be doing on her return, her rate of pay as compared with Mr. X and her rate of pay generally as compared with other staff (with less service than her) in other areas of the respondent. The complainant states that Mr. Pullin telephoned her the next day offering her an increase of €2k per annum if she moved to the Sales Area, adding that it would be a "career progression" for her as the respondent was due to wind down its manufacturing/production facilities in the Dublin premises. The complainant states she replied on 16 July, 2007 refusing the offer and again sought clarification of Mr. X's role and why he was receiving a higher rate of remuneration to her. The complainant states that Mr. Pullin replied by e-mail on 19 July, 2007 stating, inter alia, that Mr. X would cover her duties when she was on maternity leave and would transfer to other "direct operational duties" on her return, that she would be assigned "suitable and appropriate" duties on her return form maternity leave in accordance with Irish law, that due to restructuring she would be provided with a new contract reflective of the duties she (the complainant) had described to Mr. Pullin in May, 2007 - when the respondent was preparing the job specification for the selection process from which Mr. X was appointed, that it (the respondent) was entitled to determine the rate of remuneration it paid to any employee based on experience, skills and responsibilities and as her level of remuneration had been reviewed the previous March, it was not considered necessary to review it again. The complainant contends that it was the respondent's intention to engage Mr. X on a permanent, full-time basis from the outset, with the view of sidelining her and submits that this constitutes less favourable treatment of her on grounds of gender contrary to the Acts.
3.4 The complainant states that she was absent from work for a short period in late July due to illness and when she returned to work in early August she was unable to gain entry to the premises with the keys she held. She adds that in her absence all the locks had been changed and security codes amended. The complainant states that she had been trusted with keys for the premises for the previous 5/6 years and the locks had only been changed in March, 2007 - when she had been given a set. She states that she asked for an explanation as to why she had been excluded on this occasion and received no reply. The complainant adds that she made a further request for keys in end February, 2008 following her return from maternity leave and was again refused. The complainant submits that this constitutes less favourable treatment and/or victimisation of her contrary to the Acts.
3.5 The complainant states that on 10 August, 2007 the recently appointed Sales Manager (Mr. A) cut her "out of the loop" and went straight to the Production Staff (contrary to standard procedure) which resulted in a considerable amount of the incorrect product being shipped to a customer. She adds that due to this error Mr. A approached a member of the Production Staff (contrary to procedure) who agreed to work overtime on a Saturday to rectify the problem. The complainant states that when she became aware of these arrangements she informed Mr. A that there were health and safety considerations - an individual member of staff was not permitted to operate machinery in the plant alone - and consequently a second person would be required. She adds that due to the fact she only became aware of this just before the end of business on Friday, she was unable to supervise the work herself and a member of the Sales Team offered. The complainant adds that she saw no difficulty with this as the task was being completed - and in accordance with health and safety requirements. The complainant states that she received a phone call on 16 August, 2007 from Ms. Cole (the respondent's President situated in USA) enquiring about events of the previous week, questioning the complainant's ability to do her job and her commitment to the respondent. Ms. Cole followed the conversation with an e-mail setting out her understanding of the telephone conversation and asking the complainant to confirm same. The complainant states that she spoke with Mr. A about the matter -asking that he route such work through her in future and she responded to Ms. Cole by e-mail on 17 August, 2007 setting out her position. She adds that nothing further happened on the matter until Mr. Pullin's letter sometime in late October, 2007.
3.6 The complainant states that she received a message from the Office Supervisor on 21 August, 2007 advising that Mr. Pullin had e-mailed a new job description for the position of Manufacturing Supervisor and wanted the complainant to sign it. The complainant states that she had already signed a job description when she signed her full-time contract the previous April. However, when she read the document she noticed some changes in it - a lot of her job description had been dropped - and she had a new function of providing backup to the Operations Supervisor, which was a new position. The complainant states that she refused to sign the document and advised the Office Supervisor of same. The complainant commenced maternity leave on 24 August, 2007. She submits that the respondent's attempts to alter her job description were as a direct consequence of her maternity leave and therefore constitute less favourable treatment of her on grounds of gender contrary to the Acts. The complainant adds that she contacted the Office Supervisor (who also had responsibility for Payroll) on 11 January, 2008 enquiring about the respondent's VHI Scheme, which had commenced the previous November. The complainant states that she was told by the Office Supervisor that she was told to omit her from the scheme as she (the complainant) was on maternity leave. The complainant submits that this constitutes discrimination and/or victimisation of her contrary to the Acts.
3.7 The complainant states that she notified her employer of her intention to return to work by way of letter dated 16 January, 2008. She adds that she asked the respondent to update her on any developments within the organisation which had occurred during her absence and had any impact on her role. She states that the respondent CEO replied to her on 19 January, 2008 advising that it would provide the relevant information prior to her return and confirmed that she would be returning to the duties contained in her contract prior to her maternity leave. The complainant states that she reported for duty on 25 February, 2008 (as previously advised) and found Mr. X at her desk. She adds that no new desk, phone or computer had been assigned to her and her computer access codes were no longer valid. She states that when she raised these matters with the Office supervisor she (the complainant) was informed that "she knew nothing about where you are supposed to be sitting or what's going on". The complainant states that she e-mailed Mr. Pullin (from her personal e-mail account) seeking clarification of her position but received no reply. She adds that she was informed by Mr. X that Mr. Ailts (who had been appointed to the position of Director of Global Operations and Logistics- replacing Mr. Pullin - during the complainant's absence on maternity leave) was due in the Dublin facility at lunchtime and wished to speak with her.
3.8 The complainant states that she met with Mr. Ailts and Mr. X around 3pm that afternoon. She adds that the conversation covered some production issues and the new inventory system which had been introduced during her absence. She was informed Mr. Pullin had left the organisation and she was now reporting to Mr. X - who was the Operations Supervisor. The complainant states that she subsequently spoke with Mr. Ailts alone and queried why she - as Manufacturing Purchasing Manager - was reporting to the Operations Supervisor. She adds that he informed her that she was not the Manufacturing Purchasing Manager and that her contract dated March, 2001 described her as Production Supervisor. The complainant states that she set out the events of February, 2007 - and her appointment to the Manager's position - and Mr. Ailts replied he was unaware of this. She adds that Mr. Ailts subsequently re-affirmed his position on this matter in an e-mail dated 26 February, 2007. A number of further e-mails transferred between them over the next couple of days but the complainant states that her concerns were never addressed to her satisfaction at the time. The complainant states that it took three weeks before she returned to her original desk during which Mr. X continued to carry out what had previously been her duties and during this period her position within the organisation was completely undermined. The complainant also states that the respondent excluded her details from the company Intranet, although details of her colleagues were posted. The complainant submits that this constitutes less favourable and/or victimisation of her contrary to the Acts.
3.9 The complainant rejects the contention that there are grounds unconnected with gender which renders the rates of remuneration paid by the respondent to her and Mr. X lawful in terms of section 19(5) of the Employment Equality Acts, 1998-2007. She states that Mr. X was initially recruited to provide cover for her during her absence on maternity leave - although she accepts that Mr. Pullin's e-mail of 19 July, 2007 indicated he would be retained on other "operational duties" on her return. The complainant also rejects the assertion that his third level qualifications warranted a salary differential of €4k per annum.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. In the first instance it submits that the Tribunal is restricted to investigating only those alleged incidents that occurred between June, 2007 and 16 August, 2007 - which are the dates contained on the complainant's referral form as the first and most recent occurrence (respectively) of the discriminatory act(s). It states that the referral form does not contain any reference to ongoing discrimination and no additional complaint forms were referred to the Tribunal. Without prejudice to this argument it states that the complainant was recruited initially (June, 1999) as a Grade 1 Operator and was promoted to the position of Operations Supervisor in March, 2001. It states that it has no record of her promotion to the position of Manufacturing Purchasing Manager in February, 2007 - in particular the contract of employment dated 18 April, 2007. It accepts that the complainant received an increase in salary in April, 2007 and states that this arose because she went full-time. It disputes the veracity of the contract of employment dated 18 April, 2007 and states that the last contract it has on file in respect of the complainant is the one dated 13 March, 2001 for the position of Operations Supervisor. It adds that the first time the respondent's Senior Management became aware of the existence of the April, 2007 document was when the complainant raised it with Mr. Ailts in February, 2008, notwithstanding that promotions should be approved in advance at that level. It further states that the first occasion it saw a copy of the April, 2007 contract was September, 2008 in the course of unfair dismissal proceeding at the Employment Appeals Tribunal.
4.2 The respondent accepts that the complainant was asked to assist in the recruitment of a suitable replacement for her when she was absent on maternity leave. It adds that at first it was envisaged the replacement would only be for the specific period of maternity cover but that after the selection process the respondent decided to recruit Mr. X, not solely as a replacement for the complainant's maternity leave but also to take on additional operational duties during that period, with a view to transferring to other duties on her return. The respondent states that Mr. X was an excellent candidate. He had considerable experience in production supervision, possessed a technical background in robotics, had third level qualifications in Electronic Engineering Product Design and Supervisory Management and was also familiar with the computer based production system which the respondent was introducing at the time. The respondent further states that it was confirmed to the complainant by e-mail dated 19 July, 2007 that Mr. X would not only cover her maternity absence but would also perform additional duties and that he would transfer to other duties on her return from maternity leave and she would resume in her post. The respondent submits that this is exactly what happened and the respondent rejects the assertion that it discriminated against the complainant in this regard.
4.3 The respondent disputes the existence of "like work" in terms of section 7 of the Employment Equality Acts, 1998 - 2007 and without prejudice to this contention submits that the rates of remuneration paid to the complainant and comparator are lawful in terms of section 19(5) of the Acts. The respondent re-iterates the points made in paragraph 4.2 above stating that Mr. X's educational qualifications, previous supervisory experience and his ability to cover tasks beyond those performed by the complainant (both during the period of maternity leave and going forward) and the fact that he had been on a higher salary (at his previous employer) than what was initially offered by the respondent - were factors which resulted in the rate of remuneration agreed by the respondent - and are unconnected with gender. In the course of the Hearing Mr. Ailts stated that as far as he knew the decision to appoint Mr. X was taken by Mr. Pullin and Ms. Cole and he assumed the salary was agreed by them. He also stated that the respondent was unable to source any documentary evidence in support of its assertions on this point.
4.4 The respondent denies that the CEO made the comments attributed to him by the complainant. It accepts that the complainant contacted Mr. Pullin in July, 2007 and that he offered her a new position as a Customer Sales Representative. It adds that he did so on the basis that the complainant had previously raised concerns about the long-term future of manufacturing in the Dublin plant and she had complained that sales staff generally received a more attractive remuneration package to her. The complainant refused the offer - which she was entitled to do - as she viewed the proposed move as a "step backwards". The respondent states that it does not accept this assertion - adding that given her solid product knowledge she could well have made a efficient and smooth transition to sales with a little training. It submits that in the circumstances the offer of a transfer to sales cannot constitute discrimination of the complainant.
4.5 The respondent states that its reserves the right to determine the appropriate keyholders for its premises. It accepts that there was a change of locks etc in March, 2007 and states notwithstanding this that it decided to review the process again in the summer of 2007. In the course of the Hearing Mr. Ailts stated that he believed the review was prompted by Mr. Pullin as there were a number of keys to the Dublin premises in existence at the time. The respondent adds that the review focussed on the needs of employees who might require keys to access the building outside of normal working hours and it did not consider that the complainant needed keys in the circumstances. It adds that Mr. Ailts reached a similar conclusion when the complainant raised the matter again in February, 2008 - although he stated that if there was any possibility that production would be disrupted he would review the decision. The respondent submits that the decision not to give the complainant keys were due to factors unconnected to her gender and do not constitute less favourable treatment of the complainant on grounds of gender. It also rejects the assertion that it constitutes victimsation of her.
4.6 The respondent accepts that an incident arose in August, 2007 resulting in tension between the complainant and Mr. A following the shipping of an incorrect order. This resulted in the respondent's President (Ms. Cole) contacting the complainant on 16 August, 2007 - which gave rise to a number of e-mails between them. The respondent states that Ms. Cole was entitled to react as she did so to express her concerns about the complainant's failure to supervise one of her team who was required to work overtime the previous Saturday. The respondent asserts that Ms. Cole spoke with the complainant in a respectful and professional manner and rejects the assertion that the exchanges between them constitute less favourable treatment of the complainant contrary to the Acts.
4.7 The respondent states that during the period covered by this complaint its business base was changing. It states that Mr. Pullin e-mailed the complainant on 19 July, 2007 setting out some of the changes that were made in the USA and Dublin operations - in an effort to provide her with clarity and assurances about her role in the future. It adds that Mr. Pullin furnished the complainant with a job description just before she went on maternity leave which was based on the tasks detailed by her on 9 May, 2007. The respondent states that this was intended to ensure that the job responsibilities the complainant had before commencing maternity leave were the same as those she was to be assigned on her return to work. The respondent adds that the previous Branch Manager in Dublin had left its employment in December, 2007 - and was not replaced - and Mr. Pullin had also left the company in January, 2008, with Mr. Ailts assuming his duties and others. It states that as a result of these changes the reporting lines in the Dublin Branch would change and the complainant - in the context of her role as a Supervisor in the operations area - would report to Mr. X in his role as Operations Supervisor. The respondent states that the complainant was not the only employee who had his/her reporting lines altered. In the course of the Hearing Mr. Ailts stated that he accepted the complainant was not formally notified of the changes to the Dublin operation until she returned to work - despite assurances to the contrary by the respondent CEO on 19 January, 2008 - because he (Mr. Ailts) believed face to face contact was preferable and he was scheduled to visit Ireland around the time she was due to return to work.
4.8 The respondent accepts that the complainant's desk was not available to her on her return to work following maternity leave or that her computer access codes were no longer valid. It states that the former arose because the complainant was (i) due to have training in the new system(s) and (ii) due to take nine days' annual leave before the end of March. The respondent states that it had arranged to have her desk (which was in use by Mr. X) available to her on her return from annual leave. The respondent accepts that the complainant met with Mr. Ailts on 25 February, 2008 and that these discussions were followed up with a number of e-mails over the next few days. The respondent accepts that in the course of these e-mails Mr. Ailts re-iterated the view that the latest contract of employment he had in respect of the complainant was for the position of Operations Supervisor (March, 2001) and confirmed what her future responsibilities would be in that capacity. It adds that the complainant was on annual leave from 3 - 11 March, 2008 and 20, 27 and 28 March and went on sick leave on 31 March, 2008 and did not report for duty again - terminating her employment on 12 May, 2008. It rejects the assertions that its actions in this regards constitute discrimination/ victimisation of the complainant contrary to the Acts.
4.9 The respondent states that that it commenced a VHI Group Scheme for employees in November, 2007. It adds that the group policy was to afford certain benefits to all staff that were on the respondent's payroll as at the date of commencement of the policy. As the complainant was not on the payroll at the time - she was on maternity leave which was not paid by the respondent - she was not included on the original scheme but the entitlement was made available to her on her return to work. The respondent states that this was explained to the complainant by Mr. Ailts in his e-mail of 14 March, 2008. The respondent states that its Intranet website was updated on 1 February, 2008. It accepts that notwithstanding it did not have a suitable photograph of the complainant for inclusion on the website, her name ought to have been referenced as part of the relevant team. The respondent states that the omission of the complainant's name was unintentional and this was clarified to the complainant by Mr. Ailts in his e-mail of 2 April, 2008 - in which she was also invited to contact Mr. A on her return to work (she was on sick leave) to arrange for a photograph to be taken. The respondent submits that in the circumstances its actions in this regard cannot be considered unlawful in terms of the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are - (i) what aspects of the complainant's claim are validly before this Tribunal for investigation, (ii) whether or not the respondent discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in respect of her conditions of employment when she advised the respondent of her pregnancy in April, 2007, (iii) whether or not the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2007 and (iv) whether the difference in remuneration paid by the respondent to the complainant and a named male comparator (Mr. X) is lawful in terms of section 19(5) of the Employment Equality Acts, 1998-2007. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Before dealing with the substantive issues of this complaint I must consider what aspects of Ms. O'Flaherty's complaint are validly before the Tribunal for investigation. It was argued on behalf of the respondent that my investigation is restricted to the period June, 2007 - 16 August, 2007 as these are the dates indicated on the complainant's referral form as the first and most recent occurrence (respectively) of the alleged unlawful treatment. I cannot accept the respondent's arguments in this regard. The complainant referred her complaint to this Tribunal on 14 September, 2007 - whilst she was on maternity leave and this document was subsequently copied to the respondent. The respondent was on notice of the full extent of the alleged incidents of discrimination/victimisation on 29 April, 2009 - when it received the complainant's original submission on the complaint, via this Tribunal. It therefore had adequate opportunity to prepare its defence of the complaint before the Hearing. It should be noted that such an approach has been approved by High Court in The Equality Tribunal v Pearse Brannigan . In light of the foregoing I find that the entire complaint is validly before the Tribunal for investigation.
5.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove, on balance of probabilities, the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.4 Much of the complainant's case is linked to the issue of what her role and title was in the respondent organisation prior to her commencing her maternity leave. She contends she was the full-time Manufacturing Purchasing Manager from February/March, 2007. The respondent disputes this stating that she was the Operations Supervisor and had been since March, 2001. It adds that this assertion was based on the fact it had no contract of employment indicating she held the former position. The complainant furnished the Tribunal with a copy of a contract of employment signed by both her and the then Dublin Branch Manager, appointing the complainant to the position of Production Purchasing Manager with effect from 18 April, 2007. The Branch Manager attended the Hearing and gave evidence that she had authority to hire/fire and promote in her capacity as Branch Manager (although promotions usually involved Management in the USA) and this was not disputed by the respondent. The Branch Manager also stated that she had discussed the complainant's promotion with Mr. Pullin and he was agreeable to it. The complainant also furnished the Tribunal with copy e-mails between Mr. Pullin and the Branch Manager in late January, 2007 which clearly indicate it was the respondent's intention to promote the complainant. She also furnished the Tribunal with (i) a copy of the respondent's Organisational Charts for 2006 and 2007 which identify the complainant as Production Manager (albeit jointly with Ms. C in 2006) and (ii) a copy of a Delivery Docket from the respondent (dated July, 2007) which indicates she is the Production Manager. Finally, she furnished a copy of the respondent's Internal Payroll Change Notice dated 20 March, 2007 - signed by her, the Office Supervisor and Mr. Pullin - which approves an increase in salary for the complainant around the time she states she took on the Manufacturing Purchasing Manager on a full-time basis. The respondent was unable to offer any tangible contradictory evidence on this issue. Consequently, I find that the complainant was employed in the role of Manufacturing Purchasing Manager immediately before she commenced her maternity leave in August, 2007.
5.5 The caselaw of the European Court of Justice makes it clear that any unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of gender and this is incorporated into Irish law at section 6(2)(A) of the Employment Equality Acts, 1998 - 2008. Article 15 of the EU Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) states that "a woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her....". It follows therefore that any departure from this entitlement constitutes direct discrimination of the woman concerned on grounds of gender. In the instant case the respondent states that the initial intention was to recruit a suitable replacement to cover the complainant's absence on maternity leave. This was also the complainant's understanding at the time. The respondent adds that it decided to recruit Mr. X on a full-time basis after he presented for interview, given his potential future worth to the company in areas which the complainant was not competent. Whilst Mr. X may well have filled that role subsequently - and indeed may well have been competent to do so - I cannot accept the respondent's contention that it only decided to depart from the initial decision to recruit him as maternity cover for the complainant after the interviews as the advertisement published in respect of the vacancy clearly states that there was a "possibility of the position going permanent". The inclusion of that comment is clearly at variance with the respondent's assertion the vacancy was for maternity cover only.
5.6 The respondent states it was always the case that the complainant would return, following maternity leave, to the post she held before commencing that leave. It states that Mr. Pullin's e-mail of 19 July, 2007 was an effort on his part to allay the complainant's fears in this regard. It adds that the revised job specification transmitted to the complainant through the Office Supervisor just before the complainant commenced maternity leave was a further attempt to provide clarity and a response to her concerns and that the job specification was based on the complainant's e-mail of 9 May, 2007 to Mr. Pullin which set out her tasks. The respondent furnished this Tribunal with a copy of a job specification dated 31 May, 2007 which was stated in evidence at the Hearing to be the job specification used to advertise the post of Manufacturing Supervisor - the post that Mr. X applied for - and was intended to provide a suitable candidate to cover the complainant's maternity leave. The content of this job specification does not specifically detail the tasks set out by the complainant in her e-mail of 9 May, 2007 but I am satisfied that those tasks are included in the more macro description of the post provided in the job specification. In early July, 2007 the complainant queried Mr. X's future role in the organisation and how this would fit in with her role on return from maternity leave. Whilst several e-mails passed between the parties on this matter it is noteworthy that days before the complainant was due to commence her maternity leave the respondent issued her with a revised job specification in an effort to clarify her position by including only those tasks included in her e-mail of 9 May, 2007. This is in stark contrast to the approach it adopted in the recruitment process in May, 2007 when the more macro type job specification was used.
5.7 Whatever the respondent's intentions the fact remains that the complainant had an entitlement following her maternity leave to return to the post she held immediately before she commenced that leave or a suitable alternative. In the course of the Hearing the complainant identified elements of the tasks which she had performed previously which were now assigned to Mr. X and another colleague and I accept her evidence on this point. The respondent states that Mr. X was to transfer to other duties on her return but did not do so because he was needed as cover as the complainant had annual leave to take and was to undergo training on processes which had been introduced in her absence. It adds that Mr. Ailts preferred to discuss the restructuring of the organisation which had occurred during her absence "face to face" when he was in the Dublin Branch during the week of the complainant's return to work. However laudable this is, it may well have been prudent for the respondent to give the complainant advance notice of how things stood, particularly as she had made a specific reference to same in her notification of her return to work in her e-mail of 16 January, 2008 and had been given an assurance that would happen by the respondent's CEO a few days later.
5.8 The respondent contends that the restructuring of the Dublin Branch did not change the complainant's situation other than her reporting arrangements. In light of my comments in the preceding paragraphs I cannot accept that assertion. I have carefully evaluated the evidence adduced by both parties on this matter and I am satisfied, on balance, that the complainant was not permitted to return, after maternity leave, to the position she held immediately before that leave commenced - or to a suitable alternative - and I fins that the respondent discriminated against her on grounds of gender contrary to the Acts.
5.9 I shall now examine the remaining aspects of the complainant's claim which she asserts constitute less favourable treatment of her. I am not satisfied that the uncorroborated evidence of the complainant is sufficient to discharge the initial burden of proof required of her in respect of the comments attributed by her to the respondent's CEO. The complainant contends Mr. Pullin's suggestion that she might consider a move to the Sales area - in response to her e-mail of 12 July, 2007 - constitutes less favourable treatment of her. I cannot accept that argument. It is clear from the e-mail that the complainant was complaining about her rate of remuneration relative to Mr. X and other personnel in the Sales Department with less service than her. Mr. Pullin's response offered the complainant an opportunity to move to Sales with an increase in salary. She chose not to accept the offer and I can therefore see no basis for an assertion of less favourable treatment. The complainant asserts that the decision of the respondent not to give her a set of keys for the Dublin Branch in August, 2007 and February, 2008 constitute less favourable treatment of her contrary to the Acts. The respondent denies this stating that there were security reasons for its decision in this regard. I have given careful consideration to the evidence adduced on this matter and have concluded that the respondent's version of events is a credible alternative to the position asserted by the complainant. In reaching my conclusions on this matter I note in particular the comment of Mr. Ailts that should the failure of the complainant to have a set of keys pose operational difficulties he would reconsider the matter.
5.10 It is common case that there was an incident between the complainant and Mr. A on 10 August, 2007 culminating in the President of the respondent (Ms. Cole) becoming involved in the matter and a series of e-mails were exchanged between her and the complainant. These e-mails were opened to the Tribunal and in my view there is nothing in them which could be construed as discriminatory in tone or meaning. What is clear however is that Ms. Cole was irritated at the complainant's failure to supervise overtime at the weekend to rectify an error which had been made resulting in the shipping of incorrect products to a customer. A letter from Mr. Pullin to the complainant (which is undated but was sometime in October, 2007) and is the respondent's reply to this Tribunal's EE2 Form, was also opened to the Tribunal. In that letter Mr. Pullin refers to other performance and disciplinary related issues concerning the complainant which were taken into account by Ms. Cole at the time and therefore influenced the manner in which she interacted with the complainant. In the course of the Hearing the respondent stated that these matters were never brought to the complainant's attention at the time. Having carefully considered the evidence on this element of the complaint I find that the approach adopted by Ms. Cole in August, 2007 falls considerably short of fair procedures in dealing with what she considered to be a matter of discipline. However, what is at issue in the instant case is whether or not that approach was influenced in any way whatsoever by the complainant's pregnancy. I am not satisfied that was the case. Consequently, the complainant has not established a prima facie case of discrimination on grounds of gender contrary to the Acts and this element of her complaint must fail.
5.11 It is also common case that the complainant was not joined in the respondent's VHI Scheme in November, 2007 as she was not on the payroll at the time as she was absent on maternity leave. The complainant was informed that she would be included on her return to work and in the course of the Hearing she was unable to say if she had suffered any disadvantage in not being joined in the Scheme at the outset. I find therefore that the complainant has failed to establish a prima facie case of discrimination on grounds of gender in respect of this element of her complaint. I have reached a similar conclusion in respect of the failure of the respondent to include her profile on the Intranet.
5.12 The complainant submits that manner in which she was treated on her return to work - insofar as her desk and computer passwords are concerned , the failure of the respondent to join her in the VHI Scheme and her omission from the respondent's Intranet constitute victimisation of her contrary to the Acts. Section 74(2) of the Employment Equality Acts, 1998-2007 defines victimisation as, inter alia, the "dismissal or other adverse treatment of an employee by his or employer .. as a reaction to .. (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant .....". The complainant never made any complaint to her employer in respect of any treatment which she considered to constitute discrimination of her and the respondent only became aware of these matters when it was notified of the existence of her complaint to this Tribunal on 22 October, 2007. Therefore only behaviour of the respondent occurring after this date could constitute victimisation of her contrary to the Acts. It was also on notice from 16 January, 2008 that the complainant intended to return to work on 25 February, 2008 and indeed the respondent CEO gave her an assurance that all necessary information would be communicated to her in advance of her return. The respondent accepts that this did not happen. It further accepts that on the day she returned there was no desk or phone for her and her computer log-on codes were not operational. It further accepts that the complainant was not joined in the company VHI Scheme and that she was omitted from the Intranet. Individually, these incidents may not be sufficient to raise an inference of victimisation. However, based on their proximity to the submission of the complaint to this Tribunal, collectively I find that they do. Accordingly, the burden of proof shifts to the respondent to shift the inference raised. As stated previously, Mr. Ailts gave evidence at the Hearing that he decided not to communicate with the complainant via telephone or e-mail following receipt by the respondent , on 16 January, 2008, of the notification of her intention to return to work. He added that he did so because he believed it preferable to talk with the complainant personally on a one-to-one basis as he was due in Dublin around the time she was scheduled to resume work. He added that it had always been intended to have the complainant's desk available to her shortly after her return as she was to undergo training and had annual leave to take - I note the complainant took nine days annual leave and then went on extended sick leave from 31 March, 2008 before resigning. I further note that her desk was restored to her after her return from annual leave and training. Mr. Ailts gave his evidence in clear and forthright manner and I find him to be a credible and truthful witness. In the circumstances, I accept his evidence on this matter. Copies of e-mails between the parties in respect of the VHI Scheme and the Intranet were furnished to the Tribunal. I note from the e-mails that Mr. Ailts responded in a very prompt manner, explaining what had happened and offering options to rectify the matter. In An Employer v A Worker the Labour Court held that the incidents complained of were "both on the face of them and intrinsically are at least as capable of an innocent explanation as against that claimed by the complainant..". I have carefully considered the evidence adduced by the respondent on this issue and I am satisfied, on balance, that it has rebutted the inference of victimisation raised by the complainant.
5.13 The respondent disputes the existence of "like work" - in terms of section 7 of the Employment Equality Acts, 1998-2007 - between the complainant and comparator and notwithstanding this assertion submits that there are factors unconnected with the gender which render the rates of remuneration paid to them lawful in terms of section 19(5) of the Acts. In this instance the initial burden of proof rests with the respondent to satisfy the Tribunal of its assertions in this regard and the approach which has historically been adopted by the Tribunal is to assume that the parties are performing "like work" without so holding. The respondent asserts that the comparator's educational qualifications, previous supervisory experience and his ability to cover tasks beyond those performed by the complainant (both during the period of maternity leave and going forward) and the fact that he had been on a higher salary (at his previous employer) than what was initially offered by the respondent are factors which permit it to rely on section 19(5) of the Acts. I cannot accept that being in receipt of a higher rate of remuneration with a previous employer is a factor which could justify a difference in rates of remuneration between two employees performing like work in terms of the Acts. In those circumstances an employee is entitled to choose whom s/he works for in circumstances where they have alternatives. The argument that the comparator could in time perform duties which the complainant could not is, in my view, primarily linked to the actual content of the work performed and is more akin to argument in that regard, although I accept it may have the application advanced by the respondent. However, at the time of deciding the rate of remuneration to be paid to the comparator the respondent can only speculate as to the comparator's capacity in this regard and is a matter which can only emerge over time. Consequently, I do not accept the respondent's arguments on this issue either.
5.14 The respondent states that the comparator's educational qualifications and his previous supervisory experience were factors which influenced the decision on his rate of remuneration. In support of this the respondent submitted a copy of the CV submitted by Mr. X in respect of the selection process. It appears form from this documentation that at the time he had around 5 years experience in Supervisory Roles, three of which were in industries close to the activities of the respondent. He also possessed a Degree in Electronic Engineering Product Design and held an IMI Certificate in Supervisory Management. The complainant had 6 years experience in the role (some of it on a part-time basis) and held no equivalent third level qualifications. These were factors which were known to the respondent at the time and I am satisfied, on balance, that they constitute genuine grounds unconnected with gender for the difference in the rates of remuneration. Accordingly, the respondent is entitled to rely on section 19(5) of the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2008 I issue the following decision. I find that -
(i) the respondent discriminated against the complainant of gender, in terms of section
6(2) of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts when it failed to allow her return to work in February, 2008 following her maternity leave, to the position she was in immediately prior to that leave.
(ii) the complainant has failed to establish a prima facie case of discrimination of grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts in relation to other aspects of her conditions of employment following her notifying the respondent of her pregnancy in April, 2007.
(iii) the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2007 and
(iv) the difference in remuneration paid by the respondent to the complainant and a named male comparator (Mr. X) is lawful in terms of section 19(5) of the Employment Equality Acts, 1998-2007.
6.2 I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 - 2008 that the respondent pay to the complainant the sum of €16,000 by way of compensation for the distress suffered and the effects of the discrimination on her. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
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Vivian Jackson
Equality Officer
8 June, 2010