The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-109
PARTIES
Olive Young
(Represented by Geraldine Kelly & Co Solicitors)
AND
Our Lady's Hospice Limited
(Represented by IBEC)
File reference: EE/2007/426
Date of issue: 25 June 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Gender and Age - Promotion/re-grading.
1. DISPUTE
1.1 This dispute concerns a claim by Ms Olive Young that she was discriminated against by Our Lady's hospice Limited, on the grounds of gender and age contrary to section 6(2)(a) and (f) of the Employment Equality Acts in relation to promotion/re-grading in terms of section 8 of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 24 August 2007 under the Employment Equality Acts. On 17 August 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 10 March 2010 and final information was received on 19 March 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant started worked for the respondent in 1996 as a Grade III Administrative Assistant and in 1999 was upgraded to Grade IV, as part of a general upgrade. She works in the Social Work Department.
2.2 She submits that in 2003 she found out that a number of colleagues who performed similar work and had also been upgraded in 1999 had been further upgraded to Grade V. She was not informed by management that a further upgrading system had been put in place, she was not aware of any upgrading process, she had not been not informed of any reason why others were upgraded and she wasn't. Therefore on 4 March 2003 she applied for an upgrade; her application was acknowledged but then ignored. From 2003 onwards she was aware of further upgrades to administrative staff to grades V, VI and VII.
2.3 In 2007 she heard that further upgrades had been granted and on 23 April 2007 applied again to be upgraded to grade V, making reference to her application of 4 March 2003. In May 2007 she was informed by the respondent that her upgrade application would be dealt with through a job evaluation scheme agreed by the HSE and IMPACT. The complainant submits that she had not previously been informed, by either the HSE or IMPACT, of the scheme.
2.4 The complainant submits that six staff in Human Resources were upgraded; some by more than one grade. All of them were at least 15 years younger than the complainant.
Also the Administrative Assistant to the CEO was upgraded from grade IV to grade VII in 7 years, she was also at least 15 years younger than the complainant. Also there were three upgrades in the Administration Department, apparently due to a restructuring following someone leaving the Department, however the re-gradings occurred 21 months later and shortly before the Office Manager retired. Furthermore, the complainant understands that the three staff members were not told of any re-structuring or change to their job prior to being up-graded. The Office Manager himself was up-graded one year before his retirement. None of these up-grades were carried out through the job evaluation scheme.
2.5 The complainant also submits that there are only three male colleagues in administration and they were all upgraded without having to go through a job evaluation scheme.
2.6 The complainant contends that she works for more people, her position has more responsibility, complexity & volume of work than when she started. All those upgraded were much younger with less years service and/or male and the complainant submits that she failed to receive any reasonable explanation why these people were re-graded and she was excluded. She considers that this amounts to discrimination on both the age and gender ground. The lack of an up-grade effected her pension, which is particularly important for her as she was a member of a religious community for many years which means she will not be able to have sufficient service to qualify for a full state pension.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submits that the complainant is relying on cases of job re-grading that took place in 2003, which is outside the time scope of the Employment Equality Acts. The last act of discrimination alleged by the complainant was 28 May 2007 which is a letter from the CEO of the respondent which the respondent submits reflects the factual position at national level at that time and cannot be seen to constitute less favourable treatment on the grounds of age and gender.
3.2 Without prejudice to their contention that this claim is out of date the respondent submits that no discriminatory treatment took place.
3.3 In April 2007 the respondent received a request from the complainant to be considered for an upgrade. The complainant referred to a number of posts that had been upgraded and the respondent explained to her that these posts related to restructuring which led to the posts taking on additional duties and responsibilities. The complainant was told that her application would have to be dealt with through the nationally agreed HSE/IMPACT re-grade system. The scheme was closed at that time pending the finalisation of a new scheme and the respondent advised the complainant that she would be contacted once the new scheme was finalised. Details of the new scheme were given to the complainant at the end of 2007 but no decision has been made on the complainant's request for an up-grade as she has refused to complete the revised form.
3.4 The respondent submits that the requirement for the complainant to participate in the nationally agreed process does not constitute less favourable treatment on the grounds of age and gender.
3.5 The respondent submits that any internal re-grades during this period arose from either a restructuring of a department where additional functions and responsibilities were allocated to a staff member, or people were put on grades which reflected the grades of counterparts in other hospitals carrying out similar specialist roles or when a staff member participated in and was successfully recruited in an internal recruitment competition.
3.6 Whilst the staff in the Administration Department did not participate in the national scheme they were required to complete evaluation forms and subsequently received job descriptions reflecting greater levels of responsibilities and decision making.
3.7 The respondent submits that the comparators relied on by the complainant are in the age range 33 to 63 and are predominantly female and the respondent submits that the complainant has failed to establish a prima facie case of discrimination.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The respondent raised a preliminary issue when they contended that this claim was out of time in accordance with section 77(5) of the Acts, as it dates back to the complainant's initial application for re-grading in 2003. whereas the complainant contend that the discrimination was continuing and relied on Barclays Bank v Kapur¹. The complainant made an application for re-grading in 2003 after she alleges that a number of colleagues who had been on the same grade had been re-graded but nothing happened with this application. In 2007 the complainant made another application for re-grading after a number of other colleagues were re-graded; the complainant referred to her previous application and requested that her up-grading be backdated to 2003. The circumstances of both applications were similar, in that in both 2003 and 2007 re-gradings had occurred and the complainant considered she should also have been re-graded. The two applications were four years apart but the complainant considered that her first application was still valid and linked to her most recent application. The complainant accepts she did nothing for four years but claims that it seemed pointless but the re-gradings in 2007 were the "last straw" and that is why re-applied. In considering whether this claim is "in time" I have to look at "the date of occurrence of discrimination ... or the date of its most recent occurrence". The respondent decided to do nothing about the 2003 application and the complainant did not pursue her application for four years. Whilst the respondent may be criticised for their perceived lack of action the complainant also did nothing at the time. Nothing happened to the complainant in that four year period that can be seen as discriminatory and that can be seen as drawing a link between the two applications. I therefore conclude that the 2003 application is out of time in accordance with section 77(5)(a) of the Acts.
4.2 I therefore have to decide if the complainant suffered discriminatory treatment on the grounds of her gender and age race in terms of promotion/re-grading in relation to her application for re-grading in 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.4.3 Section 85A (1) of the Acts states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.3 The complainant alleges that when she applied for a re-grading in 2007 she was dealt with differently than a number of other people who were re-graded and who were mainly younger and some of whom were male; as she was told she would have to go through a formal external job evaluation scheme and all of her comparators were re-graded through an internal process.
4.4 The complaint in relation to gender was made because out of around fifty administrative staff there were only three males and they were all re-graded. However, the complainant has cited significantly more females comparators who were in effect treated the same as the male comparators. I therefore conclude that the complainant is unable to establish a prima facie of discrimination on the grounds of gender.
4.5 The complaint in relation to age is that most of the comparators are at least fifteen years younger than the complainant. Whereas the respondent contends that there was no link between age and re-grading; one person was older than the complainant and the others were of various ages. Furthermore they contended that the comparators were either re-graded because of additional responsibilities arising from restructuring of departments, or they were put on grades which reflected the grades of counterparts in other hospitals carrying out specialist roles or were not re-graded but were successful in an internal competition which resulted in them being promoted to a higher grade. Questions were raised about the transparency of some of the re-gradings as no internal evaluation process was undertaken but I am satisfied that it was the posts which were re-graded rather than the individuals. The initiative for the re-gradings was taken by the head of the relevant department.
4.6 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 this claim the "comparable situation" is an application for re-grading. The complainant was not in a department that was subject to restructuring, nor was she carrying a job that had specialist counterparts in other hospitals, nor did she apply for a post through an internal competition. I therefore have to look at how someone else who was not in one of these positions applied for an up-grade would have been treated. The evidence submitted at the hearing is that two people had applied for an up-grade but were unsuccessful when they were put through the external job evaluation process. . However, they went through the process and there is no claim that the external job evaluation scheme is in any way discriminatory. I therefore conclude that the complainant has been unable to establish a prima facie case of discrimination on the grounds of age.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did not discriminate against the complainant in relation to promotion/re-grading.
____________________
Hugh Lonsdale
Equality Officer
25 June 2010
¹ Barclays Bank plc v Kapur and others, UK House of Lords; [1991] 1 I.C.R.