THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 084
PARTIES
Mary Higgins
(represented by Mandate)
and
Permanent TSB
(represented by David Keane BL acting on Instructions from the Respondent's Legal Department)
File Reference: EE/2005/040
Date of Issue: 28 May 2010
1 Claim
1.1 This dispute concerns a claim by Ms. Higgins that she was discriminated against indirectly when the respondent failed to provide her with part time work on 15 November 2005. Her claim is based on the gender and family status grounds in terms of section 6(2) of the Employment Equality Acts, 1998 & 2004 and contrary to sections 8, 22 and 31 of those Acts.
2 Background
2.1 Ms. Higgins referred a claim on 15 December 2005 to the Director of the Equality Tribunal under the Employment Equality Acts 1998 & 2004. In accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Bernadette Treanor, 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. The case was assigned to me on 15 September 2008 and my investigation began on that date. The claim was heard on 25 November 2008 and 18 January 2010.
2.2 During the first day of hearing evidence was presented by the respondent that prompted me to address the issue of direct discrimination in addition to indirect discrimination as submitted on behalf of the complainant. At that time the respondent, through its Counsel, asserted that I was precluded from addressing matters and alleged incidents that arose after the date of the lodgement of the complaint. On the second day of hearing the closing statements on behalf of the respondent addressed the issue of indirect discrimination only. I pointed this out to Counsel and asked if it was intended that the respondent would address the issue of direct discrimination. I also referred to the High Court case Siobhan Long and the Labour Court, Mairead Blackhall and Power Supermarket Ltd Trading as Quinnsworth, 1990 No. 58 Judicial Review in relation to my jurisdiction to investigate direct discrimination in circumstances where only indirect discrimination was referred. In spite of clear questioning in that regard, both on the first and second day of hearing, the respondent asserted that it had not prepared such a response. It was afforded an opportunity to address the matter by way of written submission after the close of the hearing. Following the hearing, the respondent contacted me by email indicating that it was unable to locate the case referred to above. The deadline for the receipt of the respondent's submission passed before I informed it of the case reference and the respondent submitted its response rather than miss the deadline. The respondent was afforded further time to consider the matter. Finally it indicated that its submission should be accepted without amendment. This final response was received on 22 February 2010. The complainant's final information was submitted on 9 April 2010.
3 Summary of the Complainant's Case
3.1 The complainant is employed as a Programmer/Analyst in the respondent's IT department based in Cork Airport Business Park. She is married with 5 children ranging in ages, in 2005, between 1 year and 9 years. She commenced employment in 1986 and has worked with the bank through its various existences arising from both merger and sale. Various collective staff agreements were introduced during that period, notably an agreement in 1990 which incorporated provisions relating to part-time and temporary staff and harmonisation agreements following the acquisition of TSB Bank assets and liabilities by Irish Life and Permanent in 2001.
3.2 The complainant applied for parental leave in 2000 and 2002 but these initial applications were refused as the complainant wanted to take the leave in broken form. In December 2002 she was granted the leave in broken form. Also in 2002 she applied for a voluntary severance scheme offered by the respondent but this was also refused.
3.3 The complainant, in her submission, asserted that a conversation took place in 2003 between her and the manager of Bank IT during which she queried why she had not been promoted since 2000, despite consistently satisfactory performance appraisals. She alleges that he stated she was not considered for promotion as she had been out so much "for one reason or another". At the time the conversation took place the complainant states she had not been absent from work for a prolonged period other than for maternity or parental leave.
3.4 Following the birth of her fifth child in 2004 the complainant experienced significant health difficulties. Prior to her return from maternity leave she enquired as to the possibility of part-time work but was informed that no applications were being considered as a new system of flexible working patterns was being developed. The complainant again applied for parental leave which was granted. In December 2004 the respondent invited her to apply under the newly introduced Alternative Working Pattern Policy. Her application was refused in writing on 5 January 2005 citing the number of applications received and the business needs of the Bank. The complainant was also informed that applications would again be sought the following year as the granting of any alternative working pattern was for one year only.
3.5 When the complainant contacted the HR department in January 2005 to indicate that she wished to appeal the refusal she was requested to return to work from Parental Leave when they would attempt to resolve the matter. In January 2005 she returned to work but found the challenges of balancing full-time work and family responsibilities extremely stressful and debilitating. She applied to work on a permanent part-time basis and also offered to return to complete her work in the evenings.
3.6 The response, dated 24 January 2005 included a review of her application under the alternative working pattern policy and did not deal with her application for permanent part-time work and confirmed the original refusal. She was again told that she could apply again in relation to 2006. Her suggestion relating to after-hours work was also refused based on security, supervision and health and safety grounds. She again raised the matter with HR by email but was informed that the company considered the matter closed. The complainant was then diagnosed with an illness and certified unfit for work. The diagnosis was confirmed by the respondent's nominated consultant.
3.7 In November 2005, while still on sick leave the complainant submitted another application for permanent part-time working. While she was aware that the Bank was accepting applications for the alternative policy she did not wish to make an application under this policy as she considered permanent part-time arrangements more suitable to her needs and those of her family. She did not believe that a 12 month part-time arrangement would provide the stability needed by her young family and believed that the stress caused by the insecurity of not knowing if the arrangement would continue from one year to the next would negatively impact on her family. It would also make it difficult to secure permanent and secure childcare arrangements.
3.8 It was the complainant's understanding that the part-time and job-sharing arrangements as negotiated were applicable to her and that the alternative working scheme was supplemental to those arrangements.
3.9 The respondent refused the complainant's application for permanent part-time working without reason while stating that it had considered the application carefully and that it noted she had not made an application under the alternative scheme. The complainant asserts that there is no avenue of appeal in respect of the various schemes. Based on the responses she had already received from the Bank the complainant decided, following discussions with her trade union, that any further discussions with the Bank would prove fruitless.
3.10 In June 2006 Ms. Higgins asserts that she was instructed to return to work on a full-time basis. She was not certified as medically fit to return on a full-time basis immediately. She requested, and was granted, another period of Parental Leave. Subsequently the complainant took a career break.
3.11 The complainant referred to the LRC's Code of Practice on Access to Part-time Working, and to paragraph 8 in particular. She also submitted lengthy arguments in respect of caselaw, national and European, in respect of the issues raised in this case including part-time working and objective justification.
4 Summary of the Respondent's case
4.1 The complainant is a full-time employee with the IT Department of Permanent TSB who elected to apply for permanent part-time employment outside the terms of a particular scheme available to employees within her department. The aim of the scheme was, and is, to provide the widest possible access to the greatest range of flexible work patterns for staff members in a specialised area of the bank's operations, where the demand for such arrangements is very high and business requirements of the bank will not permit every employee to be accommodated as he or she might wish. The complainant objects to the fact that the scheme concerned offered part-time work subject to review at twelve month periods. The complainant never pursued the option of job-sharing. Her application for permanent part-time working was properly considered but was refused. The complainant failed to appeal against the refusal through the normal established grievance procedures within the bank.
4.2 The respondent asserts that two new collective agreements were concluded in 2002 following the acquisition by Irish Life and Permanent, (the second relating to staff in the IT Department in Cork) and that these agreements superseded previous agreements relating to terms and conditions. Staff received a lump sum as part of their acceptance of the revised terms and conditions.
4.3 In 2004, in accordance with a commitment given as part of a staff focus group exercise, the bank sought to establish if there was a demand for alternative working patterns among staff in its IT section. The arrangements introduced were based on initiatives already introduced in the overall Group IT section and small changes were made to this group model to make it more suitable to the bank IT environment. The primary reason for the introduction of alternative working practices was to give staff in IT the opportunity to apply and be considered for the limited number of available places.
4.4 Applications were to be assessed on a range of criteria including the following which were included in the invitation for expressions of interest:
- The operational requirements of the area concerned
- The numbers of staff already availing of alternative working arrangements in the unit/team or area
- The job performance of the applicant
- The length of service of the applicant
- Staff on trainee contracts will not be eligible to apply.
The document also gave examples of the reduced hours patterns of work that might be considered as follows:
- A 25 hours per week contract based on a five hour working day
- An 80% contract based on a 4 day week.
4.5 The Bank's circular led to 16 expressions of interest from a total staff complement of 48 persons. Three of the 48 were already permanent part-time employees. In view of those facts management took the view that future arrangements should be reviewed at yearly intervals although this was not included in the original invitation for expressions of interest. Three or five members of staff were granted reduced hours in 2005, four or nine in 2006 and in 2007 all those who applied were granted their reduced hours. There was considerable confusion in relation to these numbers at the hearing.
4.6 Also at the hearing the respondent confirmed that the criteria used in deciding whether applications should be approved or refused were those included in the document even though the document states that a range of criteria would be used including those in the document. The respondent was also asked how it proceeds in a situation where two people apply and pass all the criteria listed. The response indicated that a difference in performance would then be considered in addition to the pattern of leave which was being requested. This was intended to be an annual consideration of who should be granted the alternative working pattern. On that basis the respondent was requested to submit the annual reviews relating to the complainant and to the individual Male in her team (redacted) who was granted reduced hours when her application was refused. The review documents were considered during the second day of hearing. The annual appraisals for the successful male applicant related to 2003 and 2004. Those for the complainant related to 2002 and 2003. The appraisal scores for the two individuals were the same on all documents submitted. There was no appraisal submitted, or completed, for the complainant for 2004 as she was on maternity leave from 16 February until 13 August 2004 and parental leave from 29 September 2004 until 4 January 2005.
4.7 The respondent asserted that the complainant never submitted her medical documents in support of her application for part-time work and that she did not request the bank to consider her application on the basis of her illness.
4.8 The respondent asserts that the Tribunal cannot address matters which arose after the date of the submission of the claim. It also asserts that the Tribunal cannot address direct discrimination when what was referred was a claim relating to indirect discrimination only. In respect of indirect discrimination the respondent questioned what the neutral provision might be that the complainant was required to comply with. The respondent's submission also deals with national and European caselaw and addresses the burden of proof and objective justification.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether or not (i) I have the jurisdiction to address direct discrimination in respect of a claim where indirect discrimination only has been claimed; (ii) I can address allegations relating to incidents arising after the complaint was lodged with the Tribunal, and (iii) the complainant was discriminated against in respect of her four applications for part-time working (both permanent part-time and alternative working pattern scheme) beginning August 2004 and ending in October 2006.
5.2 The burden of proof required from the complainant is detailed in section 85A of the Employment Equality Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.
5.3 In DEC-E2009-109 the Equality referred to an entitlement to part-time working as follows:
There is no statutory entitlement for an employee on full-time hours to be accommodated with part-time work, or vice versa. This is clearly stated by the Labour Court in Bank of Ireland v Morgan when the Court held "that it would be manifestly unreasonable to hold that an employer must provide a woman with a facility to job-share in every case in which such a facility is requested and such a result could not have been intended. It is self evident that such facilities can only be made available within the exigencies of the business.". The Code of Practice on Access to Part-Time Working states (paragraph 8) "Best practice indicates that employers should treat such requests seriously and where possible discuss with their employees if and how such requests can be accommodated...". The Code goes on to state "In considering the application both the employer and employee should take account of all factors relevant to both the organisation and ... the applicant". Relevant factors include, inter alia, "the personal and family needs of the applicant; the number of employees already availing of part-time work; the urgency of the request and the effect, if any on the staffing needs of the organisation.". Paragraph 14 of the Code provides that in any proceedings before, inter alia, an Equality Officer any provision of the Code which appears relevant to the Equality Officer shall be taken into account in determining the issue at hand. However, the Code, inter alia, provides a framework for employers when dealing with applications for part-time employment and as such it must be interpreted in light of the corpus of caselaw in existence.
Jurisdiction to deal with Direct in addition to Indirect discrimination
5.4 In EE5/1988 the Equality Officer addressed an argument made by the respondent that as the complainant had only made allegations in respect of direct discrimination she, the Equality Officer, was precluded from looking at indirect discrimination. The Equality Officer accepted the arguments as valid and did not address indirect discrimination. In that regard, and all others, the Labour Court upheld her decision in Determination DEE190. In Siobhan Long and the Labour Court, Mairead Blackhall and Power Supermarket Ltd Trading as Quinnsworth, 1990 No. 58 Judicial Review the High Court ordered that the decisions of the Equality Officer and the Labour Court in so far as the Equality Officer had no jurisdiction to consider the applicant's allegation under the provisions relating to indirect discrimination, were null and void and it ordered that the matter be remitted to the Equality Officer for reconsideration in that regard. On that basis I am satisfied that I have jurisdiction to address direct discrimination even where the only case initially referred by the complainant relates to indirect discrimination.
Jurisdiction relating to events following the lodgement of the claim
5.5 The respondent asserted that I was precluded from addressing incidents which occurred after the date of the submission of the complainant's complaint to the Tribunal, that is on 15 December 2005. In DEC-E2009-028 An Employee v a Government Department, the Equality Officer addressed a similar situation as follows:
If a complainant was required to document each and every alleged act of less favourable treatment after the initial referral on a separate and new complaint form, it would undoubtedly present an administrative nightmare to the Tribunal and place a significant burden on the complainant to exercise her statutory rights. Secondly, the respondent was on notice of the September, 2005 interaction between the complainant and Ms. X - a discussion it accepts took place- when it received the complainant's original Submission on the complaint, via this Tribunal, on 1 February, 2007 and it therefore had adequate opportunity to prepare its defence of the complaint."
The High Court also addresses a similar matter in County Louth Vocational Educational Committee and the Equality Tribunal and Pearse Brannigan, 2009 No. 223JR. The extension of the period relevant to a claim was addressed as follows:
"What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation it is clear that the complaints which are made within that expanded period are not time-barred."
.........
"I am satisfied, therefore, that the applicant was in a position to deal with the claims made by the respondent, even if they went beyond the ambit of what is contained in the Form EE1."
I am satisfied that the respondent in the instant case was given every opportunity to address the matters raised in respect of related incidents that occurred after the submission of the complaint and that no prejudice arises. On that basis I am satisfied that I have jurisdiction to address incidents occurring after the submission of the complaint.
Direct Discrimination
5.6 The complainant submitted three applications relating to permanent part-time working. No evidence was presented that might suggest that she was directly discriminated against in relation to these applications on the gender or family status grounds. I find that she has failed to establish a prima facie case of direct discrimination on the gender or family status grounds in respect of those applications. In particular, the respondent indicated the difficulties arising in relation to securing and recording information in relation to the family status of its staff.
5.7 The complainant also lodged an application under the alternate working pattern scheme in November/December 2004. Her application was refused on 5 January 2005. The application of another employee, a male, in the same section as the complainant was successful and he was granted an alternative working pattern. The respondent, during the hearing, stated that the complainant's work was satisfactory as was the male employee's. In relation to the other criteria both applicants, the complainant and the male employee, were also satisfactory. When asked during the hearing how the successful applicant was chosen in a situation where both appear equally suitable the respondent clearly stated that the level of each applicant's performance appraisal and the attendance pattern requested would be used to reach a decision. As the male employee was selected for alternate working pattern something must have prompted his selection even though the original criteria listed appeared to be satisfied by both applicants.
5.8 The original invitation for expressions of interest stated one of the criteria as "the job performance of the applicant". It was not sufficient to simply have a satisfactory performance appraisal since the respondent asserted that both applicants had achieved that. What this meant in practice was that a comparison between applicants based on performance appraisals would be carried out. Since this was to be an annual assessment the assessments relating to 2004 are the pertinent ones. However, in order to investigate the situation completely the respondent was requested to submit the earlier appraisals for the complainant and the successful applicant to the Tribunal in addition to those available for 2004. Those presented, as indicated in the respondent's evidence above, detailed that both employees were awarded the same level in 2003. The complainant's appraisal for 2002 was presented also but the male employee's was not. The male employee's appraisal for 2004 was presented but not the complainant's. It became evident that at the time the decision was made by the respondent, (December 2004 - 5 January 2005) as to who should be granted the alternate working pattern, no appraisal in respect of the complainant for 2004 was in existence. She had been on maternity leave and parental leave for much of the year. The respondent did not indicate that there were any problems in respect of the complainant's performance in 2004. Therefore a decision was made in relation to performance in a situation where no appraisal of the complainant existed for the relevant period.
5.9 The second deciding criteria used by the respondent in the event of a tie was the pattern of attendance applied for. The complainant requested to work a part-day every day. The male applicant requested a four day week. This is not a criteria listed in the original invitation for applications. Indeed both of these patterns are listed as equally valid patterns in the paragraph entitled Part-Time Working. This criteria was decided upon after the applications were received. In other words a deciding selection criteria was applied by the respondent after it was in possession of the applications.
5.10 The complainant was told on 5 January that her application had been unsuccessful and "Bank IT are not in a position to grant the part-time working pattern that you requested at this time". The letter goes on to talk about the number of applications and business needs. While the respondent's evidence was that the Bank IT area was consistently under pressure, no evidence was presented in relation to the work of the complainant's unit within Bank IT as to why the comparator's suggested work pattern should be selected over the complainant's in relation to business needs. In any event, this was something decided after the applications were received and the points mentioned above in relation to unfairness also apply to this issue in the absence of any such evidence. I am satisfied, and find as a fact, that deciding criteria created a situation decidedly lacking in transparency and fairness and that this was compounded by the refusal letter sent to the complainant.
5.11 The Labour Court had the following to say in relation to such situations :
"The Court does not, therefore, accept that Mulcahy is authority for the proposition that a finding of unfairness can never be an acceptable basis on which to shift the burden of proof on to the respondent in accordance with S.I No. 337 of 2001. It is a matter of degree and it is for this Court to decide in every case if the factual basis disclosed on the evidence is sufficient to raise an inference of discrimination. Where, as in the present case, there is unfairness in a selection process which disadvantages a woman candidate and operates to the advantage of a man, an inference of discrimination on the gender ground will properly follow."
5.12 I found in 5.9 above that the decision making process in selecting candidates for the award of alternative working patterns was unfair and lacking in transparency. The process operated to the advantage of a man in that the man was granted an alternative attendance pattern. The process operated to the disadvantage of the complainant, a female, in that her application for an alternative attendance pattern was refused. I find that the complainant has established a prima facie case of discrimination on the gender ground in relation to the selection process used to assess and grant alternate working patterns for 2005 which the respondent has failed to rebut.
5.13 The complainant asserted that she was indirectly discriminated against in relation to her applications for permanent part-time working. Given the respondent's assertion that the alternate working pattern scheme (including its annual application (not review) requirement) replaced rather than ran in tandem with the permanent part-time working in Bank IT, and given the complainant's circumstances, a consideration of indirect discrimination might well prove interesting. However, I have already found that the complainant was discriminated against directly on the gender ground and therefore it is unnecessary for me to proceed to consider indirect discrimination on the gender ground. The complainant did not present evidence that would support a claim that the processes relating to the selection for part-time working were indirectly discriminatory based on family status. In that regard I find that the complainant has failed to establish a prima facie case of indirect discrimination on the family status ground.
6 Decision
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.
6.2 I find that the complainant has established a prima facie case of direct discrimination in accordance with section 6(2)(a) and in terms of section 8 which the respondent has failed to rebut. In this regard the complainants allegations of discrimination are successful and I hereby order the respondent to pay her €45,000 for the effects of the discrimination in accordance with section 82. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
6.3 I find that the complainant has failed to establish a prima case of direct and indirect discrimination on the family status ground and that aspect of her claim fails.
6.4 As I have found that the respondent discriminated against the complainant directly on the gender ground it is unnecessary for me to consider her claim of indirect discrimination on that ground.
Bernadette Treanor
Equality Officer
28 May 2010