DEC-E2010-114-Full Case Report

The Equality Tribunal

Employment Equality Acts

Decision DEC-E2010-114

PARTIES

Jacqueline Jones
(Represented by The Equality Authority)

- V -

Trinity College Dublin
(Represented by IBEC)

File reference: EE/2007/035
Date of issue: 28 June 2010

Keywords - Employment Equality Acts - Discriminatory Treatment - Access to Employment - Gender - Marital Status - Family Status - Race - Indirect discrimination - Prima facie case

1. DISPUTE

1.1 This dispute concerns a claim by Ms Jacqueline Jones that she was subjected to discriminatory treatment in relation to access to employment by the respondent on the grounds of gender, marital status, family status and race in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 26 January 2007 under the Acts. On 3 November, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 3 March 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.

2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS

2.1 The complainant submitted that she was discriminated against when she was unable to take up a position of Programme Manager she had been offered by Trinity College Dublin due to the College's 50km residency rule. The complainant submitted that the post was advertised as a two year appointment with the prospect of an extension of tenure. The advertisement for the position did not contain any information regarding working hours or residence requirements which needed to be met by a person to be employed by the college.

2.2 The complainant submitted that on 7 July 2006, she received a phone call and email from the respondent confirming that she was being offered the position. On 17 July the complainant emailed accepting the position on condition that she could start work each Monday at lunch time and undertake her full weeks work in a four and a half day working week. The complainant submitted that thereafter she received an email stating that the respondent did not envisage that flexible time would be appropriate, that a full-time commitment would be expected and that the successful applicant would be based full-time in Ireland. The complainant stated that on 28 July, she discussed the full-time working week requirement with the respondent who stated that it hoped that the Programme Manager would become fully involved in Irish life. The complainant alleges that during this conversation, the respondent implied that if the interview board had known of her family circumstances at interview then there would have been a very different outcome to the interview process.

2.3 The complainant submitted that on 31 July 2006, she phoned the respondent and agreed to work a full five-day week and that it was agreed that she could leave early on a Friday afternoon to enable her to fly to Wales. The complainant submitted that it was during this telephone conversation that the 50km residency rule was raised for the first time but that she did not regard this as a problem as she would be renting an apartment in Dublin.

2.4 The complainant submitted that on 2 August 2006, the respondent contacted her and confirmed that the 50km residency rule was an issue and that the complainant's family also needed to reside within 50km of the college. The complainant further submitted that she stated to the respondent that she was being discriminated against because of her family and marital status, and queried with the respondent as to whether a single person who visited their elderly parents in Wales would be allowed to take up a position. The complainant submitted that the respondent stated that they would be allowed. The complainant further submitted that the respondent called her on 3 August 2006 to confirm that the complainant had to move her family within one year of taking up the position.

2.5 The complainant submitted that she was very stressed during this period as she had already handed in her notice and was concerned that she no longer had a job. The complainant submitted that on 27 September 2006, she sought a copy of the residency rule from the respondent. The rule states that "Every full time member of the administrative staff shall reside at a distance of not more than 50 kilometres from the College. Dispensation from this requirement may be given by the Board, and shall normally be valid for not more than one year after appointment and shall be renewed without a fresh examination of all relevant circumstances. After the first year, or at the end of any period of dispensation, failure to take up residence, as defined above, will be deemed to be inconsistent with tenure of a full time post".

2.6 The complainant submitted that the residence rule applicable to full-time members of the respondent's administrative staff is set out in its conditions of appointment document. The complainant also submitted that she was told that this condition would be enforced in relation to her and her family. The complainant further submitted that it would appear that this particular condition may not have been applied to all of the respondent's employees and their families in precisely the same manner.

3. SUMMARY OF THE RESPONDENT'S SUBMISSIONS

3.1 The respondent submitted that it advertised for the post of Programme Manager in May 2006. There were twenty applicants for the post, five of whom were short-listed. Three candidates presented for interview and the candidate who scored highest was deemed appointable to the position.

3.2 The respondent submitted that on 4 July 2006 its Human Resources department made a verbal offer of the position to the complainant. In turn the complainant advised the respondent that she would require a higher salary than the offer and the respondent reverted with revised salary offer. Some correspondence followed dealing with start times and taxation issues. On 14 July 2006, the respondent reiterated to the complainant that it was not normal practice for managers to work flexi time.

3.3 The respondent submitted that on 17 July the complainant accepted the post on conditional that she could start at lunchtime on a Monday. The respondent advised the complainant that flexible time was not appropriate for the position and that the department had set the criteria and salary for the post to reflect a full time commitment from the Programme Manager who it was expected would become integrated with the policy making community in Ireland. The respondent further submitted that as it was also hoped that the Programme Manager would continue with the long term study it was expected that the post holder would be based full time in Ireland.

3.4 The respondent submitted that on 31 July 2006 it advised the complainant about the 50km residency policy. However, the respondent denied the suggestion that it had agreed to offer the complainant a position based on a less than full-time attendance requirement.

3.5 On 2 August 2006, the respondent explained to the complainant that she would have to demonstrate that she intended to make her principal residence in Dublin within one year. The respondent indicated that its Staff Office would contact the complainant to explain the 50km residence policy further, and further that if moving to Ireland was not feasible, the post would be re-advertised. The respondents Staff Office contacted the complainant that afternoon in relation to the residence policy and was informed that the complainant had already handed in her notice. The respondent expressed its surprise that the complainant had handed in her notice, as she had previously indicated that she would not do so until all the issues were concluded. When the complainant asked if she would have to move her family to Ireland in order to fulfill her contract it was explained that the College's concern was to ensure that the complainant fully understood the requirements and time commitments involved with the position. The respondent submitted that at this time the complainant advised it that she had decided not to accept the position.

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The issue for decision by me is whether or not the respondent discriminated against Ms Jacqueline Jones in relation to access to employment on grounds of gender, marital status, family status and race, in terms of section 6 of the Acts and contrary to section 8 of those Acts.

4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

4.3 The facts of the matter are as follows:

- On 4 July 2006, the complainant was offered a position as Programme Manager with the respondent on a salary of €97,390
- On 6 July, the complainant did not accept the offer, but sought a higher salary of €105,000
- The respondent, in turn on 7 July, offered a salary of €5,474 above its original offer. The complainant had queries relating to pensions, relocation expenses, staffing and probation
- On 9 July, the complainant contacted the respondent to indicate that she had a couple of things to confirm and she would reply to the job offer by 11 July
- On 10 July, the complainant requested taxation information and information on accommodation on- and off-campus
- On 12 July, the respondent forwarded details of the Irish taxation system to the complainant and advised that it was not normal practice for managers to work flexi-time but that the query would be forwarded to the Programme Manager's line manager, Prof A, for attention (Prof A being on annual leave at that time)
- On 13 July, the complainant sent a short email to enquire on progress in relation to her queries and enquired about starting work each week at lunchtime on Mondays
- On 14 July, the respondent indicated that its response of 12 July had been sent to an alternative email address, but once again forwarded taxation information and reiterated the position regarding managers on flexi time
- On 17 July, following ten days of seeking clarification and additional information, the complainant accepted this revised offer, conditional upon a lunchtime start each Monday but would endeavour to attend Monday morning meetings
- On 26 July, the respondent reverted to advise that flexible working time was not appropriate for the position and to advise that the criteria and salary were set for the post to reflect the full-time commitment from the Programme Manager
- On 28 July, Prof A and the complainant had a conversation wherein it was explained that the flexibility requests could not be accommodated due to the full-time commitment required of the position
- On 31 July, the complainant agreed that she would work a full five-day week but still wanted some flexibility around departure times on a Friday
- On 2 August 2006, after obtaining further information about the residency policy, Prof A contacted the complainant to indicate that the complainant would have to demonstrate that she intended to make her principal residence in Dublin within one year. Prof A explained to the complainant that she due to the nature of the position, and the fact that this was a new venture, it would be necessary for the Programme Manager to be available for meetings which would take place outside normal working hours
- On the afternoon of 2 August, Ms B (from the respondents Staff Office) contacted the complainant. In this conversation, the complainant indicated that she had handed in her notice
- On 3 August, when the complainant asked if she would have to move her family to Ireland in order to fulfill her contract, Ms B explained that the College's concern was to ensure that the complainant fully understood the requirements and time commitments involved with the position and that the position was offered to the complainant alone rather than to her family
- On 3 August, the complainant informed the respondent that she had decided not to accept the position offered

4.4 The respondent's 50km residency rule states that "Every full time member of the administrative staff shall reside at a distance of not more than 50 kilometres from the College. Dispensation from this requirement may be given by the Board, and shall normally be valid for not more than one year after appointment and shall be renewed without a fresh examination of all relevant circumstances. After the first year, or at the end of any period of dispensation, failure to take up residence, as defined above, will be deemed to be inconsistent with tenure of a full time post". In direct evidence it was presented to the Tribunal that the rule was originally introduced to ensure timely attendance at work in relation to employees, some of whom were living in the UK and were commuting backwards and forwards.

4.5 The applicant is a female, married, British/Canadian citizen, with two children under the age of eighteen and is claiming less favourable treatment in relation to access to employment on the grounds of gender, marital status, race and family status. The Tribunal was invited to infer that the rule requiring a person to live within a 50km radius of the place of employment constitutes indirect discrimination, per se, on the basis of the cited grounds.

4.6 Section 22 (1) (a) of the Acts defines indirect discrimination as occurring "where an apparently neutral provision puts persons of a particular gender ... at a particular disadvantage in respect of any matter other than remuneration compared to other employees of their employer". Section 31 of the Acts, inter alia, extends this definition of indirect discrimination to the other eight grounds proscribed in the Acts.

4.7 What appears obvious from the evidence presented in this case is that the complainant sought to accommodate her family circumstances into her working life. The complainant appears to have offered to comply with the 50km rule within two years of taking up the post, as her children were tied into an educational cycle which would have made it difficult to comply with the rule prior to that. In the meantime, the complainant was planning to have a full-time residence within 50km and to use it for the majority of the time - five days a week. The respondent stated to her that this arrangement would not satisfy the 50km rule.

4.8 Having regard to the rule, I note that residence is not defined in the rule or the available documentation. I also note that the issue of dispensation from the rule is not clearly defined. At the hearing, it became obvious that there are no procedures governing the rule or its operation, and the respondent was unable to state whether any or all staff were in compliance with the rule. In response to the Tribunal's direct questions, the respondent was unable to say when the rule was previously invoked, if at all. As there is no evidence of the rule having been applied previously, it appears to have been invoked only in relation to the complainant after she raised the issue of commuting to her family who would have been resident in Wales.

4.9 Having considered the matter, I do not find that the complainant has established facts from which discrimination on the gender, race or marital status grounds may be inferred. However, in relation to the operation of the rule in this case, I do consider that the complainant has established facts from which it may be inferred that she was less favourably treated. Furthermore, due to the manner in which the rule was invoked, I consider that this treatment amounts to direct discrimination on the family status ground.

4.10 Therefore, I find that the complainant has established a prima facie case and the onus shifts to the respondent to rebut the inference of discrimination raised. In a situation whereby the respondent has no procedures governing the rule, cannot indicate whether its staff are in compliance with the rule or not, or cannot state when the rule has been relied upon before, I do not consider that the inference of discrimination raised has been rebutted. Accordingly, the complainant is entitled to succeed in her complaint.

5. DECISION

5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment in relation to access to employment on the basis of gender, marital status, or the race ground has not been established and these elements of the complaint fail.

5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment in relation to access to employment on the basis of the family status ground has been established and this element of the complaint succeeds.

5.3 In accordance with section 82 of the Acts I award the complainant €6,000 in compensation for the discriminatory treatment suffered. As this does not include any element of remuneration, it is not subject to income tax.

Conor Stokes
Equality Officer
28 June 2010