The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-110
PARTIES
Mary Ryan
(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 Mary Ryan 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 November 2000 as a Grade III Administrative Assistant. She works in the Materials Management Department. In November 2002 she was upgraded to Grade IV when she filled out a job evaluation questionnaire.
2.2 On 23 March 2007 she applied for an upgrade to Grade V as she had taken on more responsibility and had an increased workload. Her Head of Department supported her application . She submits that a number of more junior and younger staff whose work did not carry any more responsibility had been promoted or were awaiting final approval. She was also aware that three males had been re-graded without going through an evaluation process. She was informed by the respondent in April 2007 that her upgrade application would be dealt with through a job evaluation scheme agreed by the HSE and IMPACT but the scheme was suspended at that time. The complainant submits that she had not previously been informed, by either the HSE or IMPACT, of the scheme.
2.3 On 14 May 2007 the complainant returned the completed job evaluation form, revising her application to be upgraded to grade VI. On 6 June 2007 she was advised by HR that when the revised scheme was introduced she would have to complete a new evaluation form and her application could not be considered before that. On 14 June 2007 she wrote to the CEO outlining her concerns and informing him that she intended to make this claim. The complainant submits that she received the new form in June 2008 but she did not think it appropriate to complete the form as she had already submitted this claim to the Equality Tribunal.
2.4 In August 2007 she obtained information from a Freedom of Information request confirming that no one had been upgraded through the external job evaluation scheme since 2000. It also gave details of staff who had been upgraded through internal processes, which the complainant submits were mainly younger and less experienced than herself.
2.5 Shortly after she made her application the complainant submits that an email in relation to the installation of a new finance computer system reduced her work and the work of her manager without any prior consultation.
2.6 The complainant also submitted that since making this claim she has been victimised when her working conditions and accommodation were downgraded. She was requested to move because the respondent was carrying out building work to make a new computer room. The temporary portacabin accommodation initially assigned was no longer available and in December 2007 she was assigned an office that was unsuitable. She was then moved to a space which was less than half the size of her previous office space and had no natural light or ventilation.
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 some time before her own application for re-grading and her claim is therefore outside the time limits of the Employment Equality Acts.
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 March 2007 the respondent received a request from the complainant to be considered for an upgrade. A representative of HR met the complainant in April 2007 to explain that her application would have to be dealt with through the nationally agreed HSE/IMPACT re-grade system. She was told the scheme was closed at that time pending the finalisation of a new scheme, which would have new forms. The respondent submits that the complainant refused to co-operate with the new scheme. In relation to the complainant's contention that there was an increase in the volume of her work the respondent submits that a new Supplies Officer was appointed in July 2007 to assist with the increase in work.
3.4 The respondent submits that all applications for re-grading are through a nationally agreed process and the requirement for the complainant to participate in this 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 a restructuring of a department where additional functions and responsibilities were allocated to a staff member. or they 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. Outside of normal ongoing change and development on restructuring or reorganisation has occurred in the Materials Management Department.
3.6 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.
3.7 The respondent submits that the introduction of the new financial system was not related to the complainant's application. Specifically the sender of the email would not have been aware of the complainant's application.
3.8 The respondent submits that the allegation of victimisation was only raised in her submission of 27 August 2008, whereas her initial claim was made on 24 August 2007 and is therefore out of time. Without prejudice to that argument the respondent submits that the request to move office was part of an overall organisational move and was a temporary move until May 2009. A total of 11 departments moved. When concerns were raised another office was offered but was not taken up.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
PROMOTION/RE-GRADING
4.1 The respondent raised a preliminary issue when they contend that this claim was out of time in accordance with section 77(5) of the Acts, as it dates back to staff being re-graded in 2003. The issue in relation to time is when was "the date of occurrence of discrimination ... or the date of its most recent occurrence". The complainant made her claim on 24 August 2007 and she alleges that the date of the most recent act of discrimination to be 1 June 2007 when she was advised that she would have to complete a new form when the revised job evaluation process was introduced. Clearly this relates to her application for re-grading and is within six months of submitting her claim to the Equality Tribunal. I therefore conclude that her claim in within time in accordance with section 77(5) of the Acts.
4.2 Therefore, I 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; in that 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 there were three males who had been re-graded internally without going through the job evaluation process. 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 re-graded because of additional responsibilities arising from restructuring of departments where additional functions and responsibilities were allocated to a staff member, or they 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. Questions were raised about the transparency of some of the re-gradings as no internal or external evaluation process being undertaken. However, 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 who 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.
VICTIMISATION
4.7 The complainant also contended that she was victimised as a result of making this claim and gave two instances. Firstly, when a new financial system was introduced she contends that an email was sent to a number of senior staff which undermined her position. The respondent contends that the sender of the email would have been unaware that the complainant had made this claim. Secondly, when she was placed in what she contended was sub-standard temporary accommodation. The respondent contends this move was a result of an organisational move effecting staff from 11 Departments.
4.8 In deciding whether this amounts to victimisation I have to consider section 74 (2) of the Acts which states:
".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, ......". The complainant considered that she suffered adverse treatment on both occasions, which was completely denied by the respondent, but I can find no evidence that this treatment was a reaction to her making the claim to the Equality Tribunal. I therefore conclude that the complainant has been unable to establish a prime facie case of victimisation.
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, and
- the respondent did not victimise the complainant.
____________________
Hugh Lonsdale
Equality Officer
25 June 2010