THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 108
PARTIES
Ms Nichola Maughan
(represented by SIPTU)
and
Veolia Transport
File References: EE/2007/325/688
Date of Issue: 24 June 2010
Headnotes: Employment Equality Acts, 1998 & 2004, section 6,8, 14 and 77 - Gender - Family Status - Marital Status - Promotion/Re-Grading - Victimisation - Box not ticked on form - issues raised prior to six months - statistical evidence - interview notes supplied - no prima facie case
1. Dispute
1.1. This case concerns complaints by Ms. Nichola Maughan that she was discriminated against by Veolia Transport on the grounds of gender, marital status and family status contrary to Sections 6(2)(a), (b) and (c) of the Employment Equality Acts in relation to promotion/re-grading contrary to Section 8(1)(d), and that she was victimised by the respondent contrary to Section 74(2) of the Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts (hereinafter referred to as "the Acts") to the Director of the Equality Tribunal on 28 June 2007 alleging that the respondent had discriminated against her on the grounds of gender, family status and marital status. The complainant referred a further complaint on 20 December 2007 under the Acts that she had been victimised by the respondent contrary to Section 74(2) of the Acts .
2.2 On 28 August, 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the complaints to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on Tuesday, 9 March, 2010. Further information was sought from the respondent and this was received by the Tribunal on 20 April, 2010.
3. Summary of the Complainant's case
3.1. The complainant has been working for the respondent as a customer service officer since June 2004. She submitted that the first incident of discrimination was on 9 November 2006 and went on to state at the hearing that she had no issues with the company prior to December 2005. She stated that she has applied for twelve promotional vacancies within the respondent company and was unsuccessful in all cases. She submitted that, of the successful applicants, eleven were male and only one was female, although she agreed that there was only one other female candidate for the posts in question. She stated that she had a lot of qualifications and was well able to do a lot of the jobs for which she applied, but that the respondent was trying to "hold her down" from those positions, not even being called for interview for at least one post. She said that some of the successful candidates for these posts had been working for the company for less time than she had and did not have the same qualifications as her. She stated that, in all these circumstances, there would appear to be no explanation other than a discriminatory one as to why she had not been promoted.
3.2. In relation to one particular post, the post of BIK assistant (hereinafter referred to as the "BIK post"), she submitted that the successful candidate ("the colleague") had an immediate advantage for the job as he had already been seconded to the post on a temporary basis. She added that she had been working for the respondent for longer than the colleague. She stated that the colleague had been given that post before the interview stage as he had been seconded to it some time earlier and so when he went for the interview he had already been trained in that post, and she considered this to be unfair. She felt that the company had been purposely grooming the colleague for the post.
3.3. After six years working for the company, the complainant said the only thing the respondent was concerned with was whether she turned up or not. Even at that, she took issue with the respondent's submissions regarding her attendance record. She stated that the reasons for her sick record since then are a consequence of an assault on her at work in July 2006.
3.4. The complainant also stated that she overheard a colleague saying to a driver that "we don't want Nichola taking everybody's job".
3.5. The complainant also submitted that when she made a request to move from shift to day-to-day (i.e. 9 to 5) work to facilitate child care issues, this request was denied. However, subsequent to her making this request, the colleague, who was married with children, was facilitated with switching to 9 to 5 work, initially on a six month basis, but permanently subsequently. At the hearing, she clarified that this was the direct result of his being seconded to the BIK position.
3.6. In short, the complainant submitted that, as a single mother, the male bias demonstrated by the respondent discriminates against her on all three named grounds.
Claim of victimisation
3.7. The complainant also submitted that the respondent refused to allow her to attend both the staff and the children's Christmas parties in 2007. She submitted that the reason for this was not because she was unfit to attend work, as submitted by the respondent, but because she had made her complaint to the Tribunal. It was therefore an act of victimisation within the meaning of the Acts.
3.8. The complainant stated that, on 29th November, 2007, the respondent informed her that she was not fit to attend the company Christmas party as she was out with an occupational injury. Instead, it suggested she could have an alternative adult bring her daughter to the children's party in her stead, as it was aware that she was a single mother. She stated that this was a follow-up to an earlier conversation she had with her supervisor ("the supervisor") in which, inter alia, they discussed this matter. In the course of that conversation, the supervisor had also informed her she could not attend the party/parties in question, and she had objected to this at that time. The complainant submitted that an independent investigation carried out in relation to a grievance she had submitted regarding another incident (i.e. an alleged assault on her by another staff member), but which included this alleged incident of victimisation in its remit, supports her complaint in this regard. Essentially, she submitted that by using her disadvantage (i.e. her disability), as a tool of retaliation, the respondent discriminated against her.
3.9. The complainant stated at the hearing that there were other people who were out sick who were allowed to attend the party in question. She stated that the HR Manager of the respondent admitted he was behind the decision to prevent her going to the party, and that he made a comment that what happened wouldn't happen again and shouldn't have happened in the first place. She stated that this was part of the way the company was treating her underhandedly She stated that the other two people who were told they could not attend the party because they were on sick leave did not receive the same letter as she did. She felt that it was wrong of the company to send such an upsetting letter as the one it sent, particularly in so far as it stated that she should have an alternative adult accompany her daughter to the children's party. She said she was contacted by phone only after her objections were raised.
3.10. The complainant further submitted that the respondent's behaviour impacted on her daughter in this regard and it was punishing her daughter for no good reason. Finally, she submitted that the respondent has honed in on the sick leave policy, without properly explaining why it would act petulantly towards her.
4. Summary of the Respondent's case
4.1. The respondent made a number of arguments in relation to my jurisdiction which are outlined and considered below at paragraphs 5.1 to 5.5.
4.2. In relation to the substantive matters at issue, the respondent submitted that the promotional posts for which the complainant was unsuccessful were awarded to candidates who were more qualified for the positions having regard to qualifications, skills and experience and other relevant criteria. In that regard, it submitted documentary evidence relating to the three posts concerned in advance of the hearing. At my request, it also provided the gender breakdown of the applications in relation to some of the other posts. It submitted that some of the posts that the complainant had applied for were roles for which she had little practical experience, and went on to illustrate this with examples. It agreed that she would have met the qualifying criteria for the BIK post, but that the colleague was the successful candidate for that post. It was also the case in relation to some of the other posts that she was qualified for those posts but that the chosen candidate was more successful in the interview process.
4.3. The respondent also referred to the appointment of the colleague to this role on a temporary basis ("the temporary post"). In that regard, it stated, by way of background, that the role had not initially been in its contract with the relevant client. However, it stated that a request to appoint someone to the temporary post came in at short notice and such an appointment had to be made. In that regard, it appointed the colleague, inter alia, on the basis that he had performed well at previous interviews of relevance to the position. However, when it realised it was going to be a long-term post, the respondent carried out a competitive interview process for it. It denied that the colleague was groomed for the role. In that regard, it gave examples of other similar secondments that took place where the persons who had been doing the relevant post on a temporary basis were unsuccessful in being appointed to the role on a permanent basis.
4.4. The respondent also submitted that the complainant's poor attendance record was not solely caused by the alleged assault on her. In that context, it provided statistics in relation to the number of days for which she was out on sick leave since 2005, stating that many of these were unrelated to her alleged assault. It added that this poor attendance record had been a factor in relation to at least some of those posts for which she applied, saying that these posts specified that an excellent attendance record is required .
4.5. Finally, in relation to the appointments at issue in this complaint, the respondent submitted a series of statistics to the Tribunal which, it submitted, showed that the ratio between men and women in the respondent's organisation is almost precisely the same as the ratio between men and women who apply to join it. Therefore, it submitted that there is no statistical basis for any allegation of gender discrimination and that there is no evidence except that she didn't get the relevant jobs.
4.6. With regard to the shift work issue, the respondent submitted that the complainant's contract expressly states that shift-work forms part of her terms and conditions. It stated that it had made concessions to accommodate her, including in 2006 by providing three weeks of "earlies". With regard to the colleague obtaining a 9 to 5 working arrangement, it said this related to the BIK Post. The colleague was successful in the competition for that post and the change away from shift work went along with his subsequent appointment. It added that the complainant had not applied for some positions that did not involve shift work and had ample opportunity to apply for such positions internally but had not done so.
Claim of Victimisation
4.7. The respondent stated that, while it does not have a written policy in relation to the attendance of people on sick leave at social events, it was certain that no individual certified as sick had attended any such event. It stated that the usual method for organising attendance at such events is to have a list for signing up available at reception, so that people not in the office are not able to sign up. In addition, the Company Director stated that he never encountered a person on sick leave at a social event and so was sure it never happened before. In any event, he said he would have prevented someone who was on sick leave attending such an event if they had tried to do so.
4.8. However, because the issue was raised by the complainant, and it was felt that liability could attach to the company, the Company Director stated that the three other people who were on sick leave at the time were also told they could not attend the Christmas party. The respondent stated that they were told this by phone and not corresponded with in that regard and that two of these people did not attend; the third did so on foot of a letter from his doctor saying he was fit enough to do so. It stated that a letter was written to the complainant because of the content and tone of her earlier conversation with the supervisor, who had told the HR Manager that there had been quite a heated exchange, whereas when the other parties were contacted there had not been such a heated exchange.
4.9. The respondent admitted that the offer to allow the complainant have a "responsible adult" bring her child to the Christmas party was "a bad call". However, it said that this was done in the best spirit and that it prided itself on the Christmas party, and tried to involve everyone in it. It added that the reasons for refusing the complainant permission to attend the Christmas event related to insurance liabilities. It was not aware of any other situation arising where a child was not accompanied by an adult to a social event organised by the respondent.
4.10. In summary, in relation to the victimisation claim, the respondent stated that such a serious charge demands serious evidence. It said there were a series of events that occurred around the time of the Christmas party and it followed the rule "unfit to work, unfit to party" and stated that no adverse treatment had resulted from the lodging of the complaint.
5. Jurisdictional Arguments
5.1. The respondent made a series of submissions as to why that the Tribunal did not have jurisdiction to investigate some of the allegations made.
5.2. Firstly, the respondent stated that, as "family status" was not indicated as a ground in the EE1 (referral) form, the Tribunal did not have jurisdiction to consider the claim on this ground. However, the form EE1 is not a statutory form and a failure to tick a box on it cannot be considered fatal to a complainant's case, particularly, and as submitted by the complainant, when the complaint as outlined in Part 8 of the form clearly refers to family status. As stated in A Complainant -v- An Educational Institution , "the Acts require [the Tribunal] to investigate the complaint. In so doing, [its] jurisdiction is not limited by the same rules and procedures as the District, Circuit or Superior Courts. It is wider than that, particularly where a party is unrepresented, and cannot be restricted by the complainant's failure to tick a box on a non-statutory form". While that case was an Equal Status case, the same principles apply.
5.3. Secondly, the respondent submitted that the reference to the incident at the Christmas party was outside the time limits as it was an event which occurred after the date of the complaint and which does not relate to promotion/regrading and so cannot be relevant to a complaint about promotion/regrading. However, I note that the victimisation claim was the subject of a separate referral and this was made within the six month time limit.
5.4. Thirdly, it submitted that there is no relationship between the applications for shift work and promotion/regrading and so the allegations in relation to shift work are not properly before the Tribunal. However, it is clear, as stated by the respondent itself, that the shift work issue is directly related to the appointment of the colleague to the BIK post. As such, it is a direct consequence of the promotion/re-grading.
5.5. Finally, in this context, the respondent submitted that some of the vacancies concerned were filled more than 6 months prior to the date of lodging of the claim and so were also outside the time limits in the Acts, leaving only two vacancies that I can consider. However, I am satisfied that the present complaint is made in relation to a chain of related events which are alleged to be discriminatory and the Acts are clear in allowing the Tribunal to consider all incidents alleged where such a claim is made. In that context, I have jurisdiction to consider all relevant matters going back to the date of the first incident of alleged discrimination. The complainant stated at the hearing that she was not discriminated against prior to December 2005. However, the first date of discrimination indicated prior to the hearing was 9 November 2006, so this is clearly the date the alleged discrimination began as far as my investigation is concerned.
6. Conclusions of the Equality Officer
6.1. The issues for decision by me in this case is whether or not the respondent discriminated against the complainant on grounds of gender, family status or marital status in terms of sections 6(2)(a),(b) and/or (c) of the Acts and contrary to section 8 of those Acts and/or that she was victimised contrary to Section 77 of the Acts.
6.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "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).....". Marital status in the context of the Acts means "single, married, separated, divorced or widowed"; family status means, inter alia, responsibility as a parent; gender is defined in Section 6(2) as being where one person is a man and the other a woman. It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of gender (i.e. because she is female), marital status (i.e. that she is single and the comparator is not), and/or family status (i.e. that she is a parent and the comparator is not).
6.3. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. Therefore, in deciding on this complaint I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. 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, and at the Hearing.
Claim of Discrimination on Gender ground
6.4. The claim for discrimination on the gender round relates principally to the complainant's allegation that the respondent discriminated against women in its promotion processes. The first alleged incident of discrimination took place in November 2006. The complainant took part in three promotion processes with the respondent after that date, and these are the processes that are the subject of my investigation in the first instance.
6.5. The complainant's principal submission is that only one woman was appointed to 12 positions. However, in light of par. 6.4 above, and in so far as the competitions that I have jurisdiction to consider are concerned, six relevant appointments were made and all were filled by males (although I understand a female candidate was later appointed to an additional post on foot of one of the relevant competitions). Either way, in all the circumstances of the present case, these figures should not be considered in isolation as, of the 18 applications for the 6 posts in question, 13 came from males and 5 from females (of which 3 were from the complainant and the other 2 from the same person ); so the number of men applying for the posts in question was substantially greater than the number of women. Furthermore, I note the respondent's submission that the proportion of males to females in the organisation (90% male, 10% female) is similar to the proportion of male versus female applicants to join the organisation (91% male, 9% female). Therefore, I am not satisfied that the statistical evidence on its own raises a presumption of discrimination.
6.6. In addition, I have noted the comprehensive notes provided by the respondent in relation to the three relevant competitions. I am satisfied that these notes were complete and clear in outlining how the process was conducted and how it came to its decision in relation to each of the relevant competitions and that the process applied by the respondent was open and transparent. I am satisfied in these cases that the candidates were selected on merit and that gender was not a factor in the respondent's decision in relation to them. While not a competition that is a subject of my investigation, I also note that at least one female was successful in relation to an earlier competition, held in November 2004, and for which the complainant applied. In that regard, I further note that the complainant has not provided any explanation as to why the respondent would change to a policy of discriminating against women from November 2006, when she alleges the discrimination first occurred.
6.7. So, the complainant has failed to show that she was treated less favourably because she was female in relation to the competitions for permanents posts at issue, and it is clear that the colleague was selected for the permanent BIK post on merit. It is also acknowledged that other persons in similar situations to the colleague had failed to get an appointment to a position they had filled temporarily. Nonetheless, it is clear that the colleague did have an advantage in the BIK competition by being appointed to the temporary post in advance of it. The respondent explained that the post came up at the last minute in an urgent scenario, and it was not envisaged it would become a permanent post. However, the appointment of the colleague to the post was to his advantage irrespective of whether it became permanent or not, and would also have been to the complainant's advantage if she had been appointed and for similar reasons (e.g. it provided him with the opportunity to develop further experience and skills and a change from shift work to 9 to 5).
6.8. There may have been a certain lack of transparency in the appointment of the colleague to the temporary post, though I noted the reasons for that appointment as explained by the respondent. However, even if the colleague was being "groomed" for the position, it does not necessarily follow that this was because of his gender (or even his family status or marital status as the case may be). In essence, the fact that the colleague was appointed ahead of the complainant is insufficient on its own to raise a presumption of discrimination; there must be other evidence to show that gender was a factor in this decision. The complainant has not pointed to any such other evidence. She has therefore failed to raise a presumption of discrimination in relation to this aspect of the complaint either.
6.9. I note the complainant also raises the gender ground in relation to the issue of shift work in that the complainant was still required to do shift work when Mr A was allowed to work a 9 to 5 post. However, I am satisfied that Mr A being removed from a shift working arrangement was incidental to his obtaining the BIK post, for which the complainant also applied and which has been examined above.
6.10. In relation to the candidature of the complainant in general, I also note that, rightly or wrongly, it is clear the respondent took the allegedly poor attendance record of the complainant into account. I note the complainant took issue with this in the context that she stated that her sick leave was related to her disability. Disability was mentioned in relation to the victimisation claim, but this was the subject of a separate referral and was not mentioned by the complainant in the context of the discrimination claim prior to the hearing of the matter. I am satisfied that disability is not a ground that is properly before me in relation to the discrimination claim, and it would be contrary to the principles of natural justice for me to consider that claim on that ground. Therefore, it would be inappropriate for me to take it into account in my decision or indeed comment any further on the matter.
6.11. Finally, in this context, I note the comment made to the complainant in the course of her work that "she was taking everybody's job". This was clearly a comment that was made on the number of jobs for which she was applying and could have been made to her if she was male, married or without family status. I do not see how this comment, while clearly unwelcome to the complainant, was discriminatory on any of the grounds alleged.
Claim of Discrimination on Marital Status ground
6.12. The complainant did not adduce evidence in relation to the marital status of the other candidates, except in relation to the BIK post, and so has failed to show that there was discrimination in relation to these competitions on the marital status ground.
6.13. In relation to the appointment of the colleague to the BIK post, I note that he was married and the complainant was not. They were therefore of different marital status. However, that fact alone is insufficient to raise a presumption of discrimination in the absence of other evidence and I am not satisfied that there is any other evidence that the complainant was not appointed to the BIK post because of her marital status. Therefore, the complainant has failed to establish a prima facie case with regard to the marital status ground.
Claim of Discrimination on Family Status ground
6.14. The complainant did not adduce evidence in relation to the family status of the other candidates, except in relation to the BIK post and so has failed to show that there was discrimination in relation to these competitions on the family status ground.
6.15. The only argument on the family status ground remaining relates to the appointment of Mr A to the BIK post, both the temporary and permanent posts. However, this appointment cannot have been discriminatory on the family status ground as Mr A is of the same family status as the complainant in that both he and the complainant have a responsibility as a parent as defined in the Acts.
6.16. The complainant has failed to establish a prima facie case of discrimination on any of the alleged grounds and I do not need to consider the matter any further.
Claim of Victimisation
6.17. The complainant also alleges that she was victimised by the respondent in the context of Section 74 (2), which provides that
"For the purposes of this Act, victimisation occurs where the...adverse treatment of an employee by ...her employer occurs as a reaction to -
...... (b) any proceedings by a complainant
.....(f) an employee having opposed by lawful means an act which is unlawful under (the Acts)"
6.18. The complainant alleges that because she had brought proceedings against it under the Acts, she was adversely treated by the respondent in relation to the Christmas party arrangements for 2007. The respondent argues that its policy was always to refuse entry to social events to workers on sick leave. In this regard, it stated that workers on sick leave could not possibly have attended as they would have had to sign the register saying they were attending and this register was located in the workplace. The Company Director also stated that no-one who was out sick attended a social event as he always watched each event to make sure that did not happen. This was, at the very least, a lax protocol for the implementation of such a policy, if such a policy really ever existed. However, this is a moot point as it is clear that the policy was implemented or crystallised, as the case may be, as a direct result of the complainant's statement to the supervisor that she intended attending the Christmas party in question. Whatever the previous policy was, it was now superseded by the arrangements put in place following the complainant's phone call with the supervisor.
6.19. The complainant is correct in her submission that the policy the respondent then implemented was designed to ensure that she did not attend the parties concerned. It is also clear that the respondent treated her differently to her colleagues in that it wrote to her to that effect while it did not write to anyone else stating they were not allowed to attend the party/parties in question. Nonetheless, the onus is on the complainant to show that the treatment which is alleged to amount to victimisation was related to the complaint she was taking against the respondent.
6.20. In that context, I note that the letter to the complainant stated that she would not be able to attend the event in the circumstances prevailing at the time, but that if she provided medical certification that she was fit to return to work, then she would be facilitated with attendance at the parties. I also note that the respondent informed the three other people who were on sick leave that they would not be able to attend without appropriate medical certification, even if it did so by telephone rather than by letter. One of these persons did attend the party, but did so on foot of an appropriate medical certificate. In addition, I am satisfied, in light of the totality of the evidence, that the reason why the complainant was written to and others were not was related to her response to being told that she could not attend the parties in question.
6.21. The complainant also took issue with the comments the respondent made in relation to the complainant's daughter viz. that she could attend if accompanied by an alternative adult. While this statement clearly caused distress to the complainant, I am satisfied that it was an attempt, however ham-fisted, to assuage the complainant's anger over its refusal to allow her attend the party in question, and had nothing to do with the complainant's complaint to the Tribunal.
6.22. It seems clear to me, then, that, in all the circumstances of the present case, the reason why the complainant was refused entry to the Christmas parties was because she was on sick leave and this was not related to her complaint to the Tribunal. Therefore, the complainant has failed to establish a prima facie case of victimisation in relation to this complaint and I do not need to consider the matter any further.
7. Decision
7.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Acts:
7.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the gender ground pursuant to section 6(2)(a) of the Acts in terms of promotion/re-grading contrary to S.8(1)(d) of the Acts
7.3. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the marital status ground pursuant to section 6(2)(b) of the Acts in terms of promotion/re-grading contrary to S.8(1)(d) of the Acts.
7.4. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the family status ground pursuant to section 6(2)(c) of the Acts in terms of promotion/re-grading contrary to S.8(1)(d) of the Acts.
7.5. I find that the complainant has failed to establish a prima facie case that the respondent victimised her in terms of section 74(2) of the Acts.
7.6. Accordingly, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
24 June 2010