DEC-E2011-147- Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision DEC - E2011- 147

PARTIES

Eithne McDermott
(represented by Donal Keane BL
instructed byJohn Gerard Cullen Solicitors)

-V-

Connacht Gold Cooperative Society Ltd
(instructed by Rosemary Mallon BL
represented Patrick G Flynn Solicitors)

File Reference: EE/2007/672
Date of Issue: 4th August 2011

Decision DEC - E2011- 147

Eithne McDermott
(represented by Donal Keane BL
instructed byJohn Gerard Cullen Solicitors)

-V-

Connacht Gold Cooperative Society Ltd
(instructed by Rosemary Mallon BL
represented Patrick G Flynn Solicitors)

Keywords
Employment Equality Acts 1998-2008 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(a) - gender, 6(2)(c) - family status, 6(2)(f) - age, 6(2)(g)- disability, Section 8(1)(b) - conditions of employment, Section 14A - harassment, Section 16- reasonable accommodations, Section 74(2) - victimisation, time limits for referring complaints to the Tribunal - section 77(5)(a), prima facie case.

1. Dispute

1.1 This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the gender, family status, disability and age grounds, in terms of section 6(1) & 6(2)(a), (c), (f) and (g), contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to her conditions of employment. The complainant also claims that she was sexually harassed and harassed contrary to section 14A and that the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Acts. She also claimed that she was victimised contrary to section 74(2)

1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 19th December 2007 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 16th of July, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 29th October 2008 and from the respondent on the 6th March 2008 and 11th December 2008. A hearing on the complaint was held on the 18th of October 2010, the 29th November 2010 and the 21st of February 2011.

2 Summary of the Complainant's case

2.1 The complainant was employed as a manager at the Castlerea branch of a Cooperative Society from 1974 until her employment terminated on the 6th July 2007. She was initially employed by Kiltogher Co-op in the Castlerea branch from1974 and in 1995 she was promoted to the manager of that branch. Kiltogher and NCF Co-operative merged in 2000 and became known as Connacht Gold Co-operative Society. She said that there were 6 branches in the smaller cooperative and after the merger there were up to 30 branches in the new organisation. She said that she was the only female branch manager in Kiltogher and after the merger there were three female branch managers. After the merger she continued to be the manager of the Castlerea store but she got the distinct impression that the new management wanted to remove her from the position of management because she was a woman. She submitted that she was called to a meeting in a hotel in or around November 2000 with three male members of the new management and there she was questioned about whether she intended to remain in the store. She said that she got the impression that the new management wanted to replace her and give her job to a man. She also understood that the new management wanted to replace the older staff members they inherited on the take over. The complainant submitted that she felt pressurised and intimidated at the meeting. She informed them that she had no intention of taking redundancy or retiring and she believes this came as a shock to the management.

2.2 In March 2001 the complainant was called to a further meeting with the Area Manager (AM) and General Manager Agribusiness (GM) in the Castlerea store at which she was asked again about staying on in the job. She said that she was the only manager that was asked about their intention of staying on after the merger and she got the distinct impression at this meeting that management wanted her to leave. At that meeting she was told that she would have to work 6 days per week and would have to take on an increased workload. She said that when she explained that she could not work on Saturdays due to her family commitments she said that she was told to forget about her family and that she should get her husband to attend to the children. She said that she was very intimidated by the tone of the meeting and she had to leave the room because she was so upset. She said that she was promised by management on that occasion that she would not be treated in such a manner again. In 2002 a further meeting with management took place in Tubbercurry. The GM said that the sales figures for Castlerea were not good enough but the then Chief Executive contradicted him and said that the figures were more than adequate. The GM then conceded that there was nothing wrong with her work or the sales figures. She believed that this was another way of putting pressure on her to leave.

2.3 In April 2004 the complainant said that the GM telephoned her and said that he wanted to see her in her office after work. She said that he did not want to talk about work. He mentioned personal matters to her and in the course of doing so he rubbed her shoulders several times. He also mentioned personal details about another employee. She said that the atmosphere made her very uneasy and she considered his behaviour was inappropriate and upsetting and she got up and left the meeting. She said that the GM requested her to attend another meeting in her office about 2 weeks later. She said that she was fearful of a repetition of the earlier meeting and requested a neutral area. They met in the lobby of a hotel but no work issues were discussed but the meeting was more professional than the previous meeting. She believed that the meeting was designed to get her to leave. Shortly afterwards she heard rumours from a Committee members wife that she (the complainant) was leaving the employment.

2.4 A short time later she said that she was informed by her male supervisor and Area Manager (AM) that GM wanted her out of the store the following Monday and that he (GM) would replace her. The complainant was working attending to customers in the branch at the time and she said that she got very upset. The complainant contacted her union and a meeting took place with AM, GM the complainant and her union branch secretary. She said that the gist of the meeting was that GM wanted her out of the branch. She believed that GM wanted a man to manage the Castlerea store because it was a town store. She said that her union objected to this. Management believed that there was a decline in sales but she said that she was able to establish that there was nothing wrong with the figures; in fact, sales had increased despite the fact that the facilities at the branch such as parking and yard space were limited. She said that the GM then decided that AM would not be taking over and she went back to work.

2.5 In June 2005 she was requested by the GM to produce a sales plan and she said that no other manager was asked to do so. She attended a meeting with AM and GM at which she was requested to produce a sales plan. She said that it was unfair to ask her to produce such a sales plan at this time because she was preparing a stock take. She believed it was designed to put more pressure on her. She said that she prepared the plan and submitted it to the company in June. The respondent wrote to her in August saying that they had not received the plan and stating that sales figures were down for June and July and seeking an improvement. She than received a letter dated 1st September 2005 saying that overall the results for the first half of the year were excellent apart from problems with margins for diesel and steel. These items were not sold in her store and she presumed that that part of the letter did not refer to the Castlerea branch. She was therefore shocked to receive a letter dated the 7th of September saying that the net profit for the previous year was down and the shop was down about 60% on the budget for the current year. She was also told to treat the letter as a final warning and unless there was an improvement she would be dismissed. She said that she was shocked to receive such a warning because she did not accept the respondent's figures as accurate.

2.6 The complainant responded by letter dated the 8th of September 2005 disputing the figures and pointing out that it was her belief that that she had worked effectively to grow the sales and increase the profitability of the branch. In the letter she stated that it was her belief that the threat to dismiss her was part of GM's plan to remove her from the manager position. She sought a meeting with the company to discuss her position. A meeting was arranged for the 21st September 2005 with GM the HR Manager and the complainant attended with her shop steward. The complainant said that she raised issues about the way she was being intimidated and bullied by GM and that she was the only manager asked to produce a sales plan. She said that this was the first time she had met the new HR Manager and she was expecting after she complained about her treatment that it would stop. The meeting was followed up by a letter from the HR manager setting out the issues discussed and the need to provide a sales plan. As a result of the meeting the complainant produced another sales plan which she drew up with the assistance of AM and gave it to the company on the 5th October 2005. Also an Operations Manager together with an IT person was sent into the Castlerea branch to change around the yard and to display items in a different manner and also to change the display lightening. A merchandiser also attended the shop and changed the stock around and made improvements. She also took up a course in Retail Management Programme at Sligo IT which was paid for by the company but which she attended after work in her own time. In her sales plan she said that she made suggestions about stocking more items if she had more space in the yard. She made suggestions about getting more space. She said that there was never any follow up on the sales plan and none of her suggestions were taken up. She submitted that sales increased substantially during 2006 and she was very happy with the turnover. However management figures suggested otherwise and she submitted that expenditure items such as transport costs and wages were charged by management to her branch which were not incurred.

2.7 She attended quarterly meetings at with all the other managers almost all of whom were male. During a meeting in 2005 she said that she requested a locum staffing arising from the long term illness of an experienced staff member. She said that the GM made it very clear to her that she was not getting any staff and that if she needed a temporary replacement that she would have to recruit one herself. The complainant said that she needed an experienced employee and she was making the request in the hope that there might be an experienced person available in another store on a temporary basis as happened in the past. She said that she was surprised at the tone of the response and other managers were shocked at the way her request was dismissed. She submitted that the long term sick leave absence of the second most experience staff member from the store during the time that the GM was seeking the sales plan and complaining about the performance of the store. She employed a young person with no experience in sales and she had to train him.
During 2006 she said that at a meeting with management she was forced to work a 6 day week. The shop had to remain open during lunch hour and open until 5pm on a Saturday and a Wednesday which added about eight and a half hours to her working week which directly impacted on her family life. She said that there was no extra staff or resources provided and she frequently had to work during her lunch break. She said that she also heard that new Chief Executive made a derogatory comment about her. She agreed that she was subjected to an investigation about bullying and harassment. She said that the complaint was made by her deputy and the second most senior member of staff. She submitted that he was a member of the local County Council and was also as a manager with the local GAA club and he regularly looked for time off to attend activities associated with these outside interests. On a particular day in 2006 when the shop was very busy and understaffed because one employee was on a training course he looked for time off to attend a funeral. She said that she reluctantly gave him time off and she instructed him to return to work straight after the Mass. He did not do so which resulted in the staff not being able to take their lunch break. She telephoned him at 2pm and after a conversation with him she told that there was no point in him returning at that stage to clock in for the day. He complained to head office about her and the matter was investigated by the HRM and she was of the view that the respondent took his side. She believes that this was another incident of the respondent attempting to undermine her and put pressure on her to leave.

2.8 The complainant said that throughout 2006 and 2007 the pressure at work intensified and she was denied the necessary resources to carry out her job in terms of staff, infrastructural support, transport and in particular lorries to make deliveries to customers. The volume of business carried out increased but the facilities in the yard in terms of taking deliveries etc were inadequate. Delivery lorries had to unload on the main street which caused a traffic hazard and which required her to monitor the unloading so that any traffic hazard was minimised. She said that she was denied transport so that she could meet delivery commitment to customers. She had to share a delivery lorry with other stores and it was difficult to get the dates she required. She said that she continually asked the transport management for a lorry between 13th of February 2007 and the 16th of March 2007 and GM was not interested in sorting out the problems that she was experiencing in meeting her commitments to her customers. She said that all these conditions made her work situation very stressful.

2.9 On the 16th of March 2007 she was told that the arrangements she had put in place for a lorry to do deliveries were changed and she was told by the lorry driver that he was instructed not to carry out any more deliveries for her. She telephoned the transport manager about the problem and she was referred to GM who was of no assistance and she was told that it was her problem. She said that she became very upset by this and she became ill at work and was hospitalised with a stress related illness. She said that the company refused to allow her back to work and used her illness as an excuse to replace her with a male employee. She received a letter dated the 27th of March 2007 expressing concern that she was suffering a stress related illness and saying that due to the nature of her illness she would have to be examined by the company doctor in advance of any return. The letter also mentioned stress was the cause of a previous spell of absence. The complainant said that she had 33 years service and she was never out sick before. The complainant attended the company doctor and he showed her the letter the HRM sent to him requesting him to examine her. She said that she was astounded to see the contents of the letter and in particular the respondent's contention that she had exhibited signs of stress at work even though she had not lost any days from work. HRM telephoned her on the 18th of May 2007 and instructed her not to return to work despite the fact that she was certified fit to return. She then attended a meeting with the HRM, GM and two union representatives. She said that the purpose of the meeting was to remove her from her position the respondent raised issues about her performance. She disputed the figures the respondent figures and GM said that she was a waste of space and he wanted her out of the place. She was subsequently dismissed from the employment and she pursued an unfair dismissal claim through the EAT.

2.10 A witness (Ms. A) on behalf of the complainant said that she was a manager of Kilbarron Co-operative outside Ballyshannon from 1982 until she left with a redundancy package in 2006. She said that GM was her boss and she found he was not supportive of her. She said that when she brought issues about pricing to his attention they were not acted on whereas when a male manager raised the same issues GM addressed the problems. She said that she felt generally discouraged by GM's attitude towards her and she believed that he regarded the female managers as the weaker sex. She believed he wanted to replace her with a male manager. She said that she recalled attending a managers' meeting where the complainant raised an issue about locum staff and she submitted that OM was out of order and treated the complainant in a very demeaning and condescending manner. She said that she never made a complaint but she was under a lot of stress and she decided, even though she could have worked for another nine years, she would accept a redundancy package. She said that she was replaced by the senior store man.

2.11 A Branch Secretary (BS) from SIPTU stated that he represented the complainant at a meeting with management in June 2004. At the meeting management alleged that they had problems in relation to the complainant's performance. GM stated that the store was not performing to its optimum level. The complainant responded and disputed this contention pointing to the lack of parking and the fact that the yard was too small all of which impacted on the performance of the store. He was of the opinion that GM was not taking on board what the complainant was saying and he appeared to have a closed mind towards her. He said that the respondent gave them no analysis of how the store was performing in relation to other branches. BS said that he was of the opinion that the complainant was being discriminated against because she was the only female branch manager at the time. After the meeting he said that the complainant drafted a letter outlining her dealings with the company since the merger but she never sent it. He accepted that the letter handed in evidence was a copy of the letter that the complainant drafted.

2.12 A Shop Steward (SS) said that he represented the complainant and five other branches. In September 2005 he represented the complainant along with the Assistant Branch Secretary at a meeting with management. The meeting concerned the preparation of a sales plan. He said that there was no assistance being provided from management on its preparation or how to develop the store to increase sales. He said that the complainant was the only manager who was asked to produce a sales plan. He said that the complainant's branch was understaffed and she had to work through her lunch. He said that when the complainant complained about this and the lack of facilities at the Castlerea branch during the course of the meeting with GM, he used choice language and told her to get on with it.

3. Respondents case

3.1 The respondent denies that the complainant was discriminated against and states that she never made any complaint about discrimination or harassment or sexual harassment during her employment with them. The respondent submitted that it was absurd to suggest that the complainant was discriminated against on the gender ground. It was submitted that the complainant was underperforming in her position as the manager of the Castlrea store over an extensive period of time and management was trying to get her to improve. They said that they have 3 female managers and one of the stores in Riverstown which has a female manager performed significantly better than the Castlerea branch. The said that they had concerns about her performance and they took measures to address it including asking the complainant to visit Riverstown and to model her branch on this branch.

3.2 GM stated that he was the Personnel Officer when the merger with the smaller cooperative took place in 2000 and in late 2004 he became the general manager of agribusiness and had responsibility for the performances of the branches. The Co-operative Society is a business which was set up for the needs of farmers and that Connacht Gold has 14,000 shareholders the majority of whom are male farmers. It has 30 stores and 570 employees of whom 70 are female. It now has 4 female store managers and 3 female garden centre managers who report to a branch manager.
The merger was between NCF where he worked and Kiltogher where the complainant worked and it was renamed Connacht Gold. The purpose of the merger in 2000 was to create a new dynamic organisation and to grow the business and if they did not achieve this the cooperative would not survive. A series of meetings took place between the new management and the branch managers to explain the options available to all staff in the merged cooperatives. There was a redundancy package on offer at the time and a substantial number of people left including 10-15 employees who were originally employed by Kiltogher. In November 2000, at the time he was Personnel Officer, he met the complainant together with the General Manager at that time and the complainant's line manager A M. The purpose of the meeting was to explain to the complainant her options in relation to the redundancy packages on offer. He denied that he put any pressure on her to leave and stated that he did not recall telling her that he wanted to replace her with a male manager namely AM.

3.3 He denies that at a meeting in March 2001 that he forced the complainant to work 6 days per week. He said that all the branches were moving to a 6 day week but he accepted that the Castlerea branch was already doing 6 days. He said that there were times when the manager of a store would have to work 6 days and that even if a manager was on a day off they were still responsible for managing the business. He said that he did not recall making any reference to the complainant's children or saying that her husband would have to take them to their sport activities on a Saturday. Neither did he recall the complainant leaving the meeting in a distressed state to go to the bathroom. In relation to requiring the complainant to work a six day week he denied that he said to another staff member that he saw it as a way of freezing her out of the job. He said that the business is seasonal and the peak time is the first 6 months of the year when farmers require agricultural supplies, this is when 6 days per week is most required.

3.4 GM said that he never arranged to meet the complainant in her office after work or that he rubbed her shoulder or touched her inappropriately while they were alone at any meeting. He denied that the complainant was fearful about meeting him in her office after work and as result that a meeting was arranged in a hotel lobby. He said that he does not recollect this meeting but that it would not be unusual to have a meeting in a hotel lobby and away from the branch. He said that he did not tell AM to remove the complainant from her position nor did he tell any member of the committee that the complainant was leaving her job. He accepted that he heard a rumour that the complainant was leaving but that rumour did not come from him. He said that he has a clear policy of not discussing any staff matters with committee members. He said that any conversations that he had with the complainant were about her performance in her job. He denied tat he made any proposals about dismissing the complainant and replacing her with a male manager.

3.5 He said that 2005 was his first full year in charge of the business. He asked the complainant to produce a sales plan on 1st June 2005 in light of the 2004 results of the branch and the fact that the sales for 2005 were behind the budget target for the year. He said that if the branch was performing to budget he would not have requires a sales plan. He said that Castlerea as a town based branch it should have been performing better and he wanted to expand the business to non farm based sales. He said that he was looking at a 5 year development plan for the whole business and he needed to get the net operating profit up particularly in the Castlerea branch because it is a town branch. He said that even though there were restrictions in relation to parking and loading and unloading the shop was an excellent modern shop. He said that there were 2 other comparable stores which were performing better. The Riverstown Store had a female manager and he suggested to the complainant and her union representative that she should visit that store. He accepted that the complainant requested a person to replace a member of staff who was on long term sick leave. He said that the complainant had the authority to hire staff if she could justify it and HR would assist her if necessary. He did not accept that he dealt with the complainant in a dismissive way at that meeting.

3.6 The complainant did not produce the sales plan as she suggested she did on the 16th of June 2005. A meeting took place with the complainant at which a sales plan was discussed. He wrote to the complainant again on the 8th of August 2005 again requesting a sales plan and informing her that the sales figures for June and July were down. No response was received and a final warning letter of the 7th September 2005 telling the complainant about a drop in sales figures and warning her that he would remove her from her position. Following an immediate response from the complainant a meeting was arranged with her where she was represented by her union official. The issue about the decline in sales were addressed and it was agreed that the complainant would do up a sales plan and that she would have access to whatever resources she needed to put the plan together. The complainant was also offered an opportunity to attend a retail management programme in Sligo IT which she did. The complainant produced a sales plan in October 2005. He accepted that he did not respond to the sales plan.

3.7 The responsibility for arranging delivery lorries was a matter for the branch manager. It was the complainant's job to ensure transport was arranged with a neighbouring store. The bigger stores had their own delivery lorries but the smaller stores including Castlerea only had deliveries on certain days because the lorry was shared between a number of stores. He denied that he ever instructed any driver not to deliver for the complainant. He also denied that he ever discriminated harassed or sexually harassed the complainant. He knew that the complainant was out ill because of stress he accepted he did not make any enquiry about her health during her absence. He said that the complainant was dismissed because of her performance and not because of her illness. He said that the Riverstown store which was a comparable store was performing much better. In response to questions he accepted that there were still problems with the store and the development plan had not been implemented because before doing so the operation profit would have to show it was capable of supporting the development.

3.8 He denied the suggestion that women at branch level are not taken seriously. He said that they have 7 women manager 3 of whom are in garden centres and they are some of the best performing managers in the group.

3.9 The HRM said that he became aware that the complainant's branch was underperforming when he attended a meeting about the sales plan. He was called to the meeting in September 2005 by GM at which the decline in sales was discussed. The meeting was held following a number of letters from GM including a final written warning but it was not a disciplinary meeting. He said that the complainant felt victimised because she was being asked to produce a sales plan. He accepted that the complainant was complaining about her treatment but he did not consider it a formal complaint and if it was he would have expected her to take her complaints up under the Bullying and Harassment Policy which were in place and which she had received a copy of during the investigation of a complaint made against her by a staff member. He accepted that the complainant's union wrote to GM on the 25 September 2005 complaining about her treatment and asking that she would be treated the same as other branch managers. He said that he would have followed up it up if it was a formal complaint. He said that sales plans were only requested where a branch was underperforming and only two other underperforming stores were asked to do a sales plan. He knew that the complainant produced the sales plan and he had no further involvement in the matter until the complainant went out sick on the 16th of March 2007. He said that the complainant's husband telephoned him about the transport problems the complainant was having at work and he told him that because the problems she was hospitalised suffering from stress. He received a medical certificate and was concerned that the complainant was suffering from chest pains and stress and he wrote to her on the 27th of March 2007.

3.10 In the letter he expressed concern that her illness was chest pains and stress and that he was aware she had these symptoms in relation a pervious absence from work and she would have to attend a company doctor in advance of any return to work. He said that he recalled having a conversation about a previous illness the complainant had but he now accepts that the complainant had a very good attendance record and was never absent for a stress related illness in the past. He totally rejected the contention that the complainant's sick leave absence was used as part of the campaign to bully and harass her out of her job, or that it was decided that once she went out sick to use it as an excuse not to allow her back to her job. He wrote a letter to the company doctor referring the complainant for a medical examination. The company doctor examined the complainant and he accepts that the doctor agreed with the complainant's own GP assessment that she would be shortly fit to return to work. However the doctor in a letter dated 14th May 2007 said it was not within his competency to say that the complainant because of her stress "was capable of withstanding the day to day pressures associated with her occupation as requested by you."

3.11 The complainant was declared fit to return to work on the 21st of May 2007 by her own GP. HRM said that he telephoned the complainant and instructed her not to return because he had arranged a meeting with her, her union official and GM for the following Wednesday to discuss her situation. A number of meetings took place which discussed the termination of the complainant's employment and agreement could not be reached. The complainant was dismissed on the 6th of July 2007.

3.12 The Operations Manager (OM) said that among some of his duties were transport issues. He said that there were 29 stores in the group in 2007 and there were 12 trucks for delivery to customers. There were 6 large stores and they have a truck each. The remaining stores share the other 6, each truck servicing 4 to 5 stores. The branch managers have to decide amongst themselves which day they require the shared delivery truck and these arrangements are put in place in late December or early Spring. The first half of the year is the busiest period for deliveries so it is important that the arrangements are put in place. OM said that he rarely got involved in the day to day transport issues. He said that some truck drivers told him it was difficult to work with the complainant. He said that he changed around the schedule for 2 drivers during the springtime because they had opened new stores. He said that he scheduled a different driver to do Castlerea and he told the complainant about this change in early March. He denied that he gave an instruction to the drivers not to deliver for the complainant. He accepted that he got a call from the complainant on the 16th of March 2007 to tell him that the driver he had assigned would not deliver for her. He said that he passed the call on to GM.

4. Conclusions of the Equality Officer

4.1 In this case, I must consider the complainant's claim that the respondent directly discriminated against her on the gender, family status, and age ground in terms of section 6(1) and 6(2)(a), 6(2)(c) and 6(2)(f) of the Employment Equality Acts 1998 and 2008, in contravention of section 8 of the Acts in relation to her conditions of employment. I must also consider whether the complainant was harassed and sexually harassed within the meaning of section 14A of the Acts.

The first matter I have to consider is whether the complaint of discrimination on the disability ground and a complaint of victimisation have been referred to the Tribunal and whether they are validly before me. Counsel on behalf of the complainant asked to add these grounds to the referral and submitted that it is clear from the background information provided with the complaint form that the complainant was victimised and that he was making an application to have such a case considered. He also submitted that the disability claim was well known to the respondent because the complainant was out of work with an illness when her employment terminated and this fact was mentioned in the submissions. He made an application to have this ground also included in the claim. Counsel on behalf of the respondent submitted that any complaint that the respondent was purporting to make either on the victimisation or disability ground are statute barred in that they are outside the six month time for making a complaint. She submitted that the respondent's submission in which complaints victimisation and disability were raised was received by the Tribunal in September 2008 and it was too late to amend the referral form EE1 at that stage.

4.2 I told both parties at the first hearing that I would consider the applications to have the claims of victimisation and disability included and given that these claims had already been addressed in submissions by the complainant I would admit the complaints at this stage and that I would deal with their validity in my written decision. I gave both parties an opportunity to put forward further submissions on the complaints. I note the complainant referred a complaint of discrimination on Form EE.1 on the 19th of December 2007. The complainant ticked the gender, family status and age ground and attached a two page document setting out details of her complaint. I note the document states in the last sentence of the penultimate paragraph: "..then used this disability/illness to accuse me of being unable to do my job and to replace me with a male employee." There was no reference to victimisation in this referral/submission.
Section 77(5)(a) of the Acts provides time limits for making a reference to the Tribunal and states:
"Subject to paragraph (b), a claim for redress in respect of
discrimination or victimisation may not be referred under
this section after the end of the period of 6 months from
the date of occurrence of the discrimination or victimisation
to which the case relates or, as the case may be, the
date of its most recent occurrence."
Section 77(6A) provides:
(6A)" For the purposes of this section --

(a) discrimination or victimisation occurs --

(i) if the act constituting it extends over a period, at the
end of the period,"

The first time a claim of victimisation was raised was in the complainant's submission of the 29th of October 2008. I note that the complainant was dismissed on the 6th of July 2007 and there was no evidence presented that there was any victimisation of the complainant after that date. I find therefore that the 6th of July 2007 was the most recent occurrence of the alleged victimisation of the complainant. Therefore in order to comply with the statutory time frame the complaint of victimisation should have been received by the Tribunal on or before the 5th of January 2008. I am satisfied the complaint of victimisation is outside this statutory period for referring a complaint and accordingly I have no jurisdiction in the matter.

4.3 In relation to the disability ground, I note that in the complaint form EE1, which sets out the nine grounds of prohibited conduct, the complainant ticked the gender, family status, and age box but she did not tick the disability box. In the two page submission attached to the complaint form which set out the details of the complaint, the complainant raised an issue about "disability/illness". The form and the attached submission were received by the Tribunal on the 18th of December 2007. The complaint form is not a statutory form and consequently and the failure to tick the disability box would not in my view render the complaint on this ground inadmissible provided the nature of the complaint can be deduced from the referral. In considering whether the complaint on the disability ground is validly before me, I am guided by a judgment of the High Court in the case of County Louth Vocational Educational Committee and The Equality Tribunal [2009] IEHC 370. McGovern J accepted the Tribunal's submission that the form EE1 was only intended to set out the generality of the complaint and its basic details. He stated:
"I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same."
In considering whether the "nature of the complaint" was set out in "broad outline" in the referral, I note that in the details of the complaint that the complainant states inter alia: "They resulted in my being hospitalised for stress on the 16th March 2007. Named person (GM) then used this disability/illness to accuse me of being unable to do my job and to replace me with a male employee." In applying the jurisprudence of McGovern J. in the above judgment to the case herein and taking into account the contents of the referral set out above, I am satisfied that the respondent was on notice that a complaint of disability was included in the notice of the referral sent to the Tribunal and served on the respondent. I am also satisfied that a complaint on the disability ground which I now deem to have been referred on the 18th December 2007 is within the six month statutory period.

4.4 The next matter I have to consider is whether the complaint of sexual harassment was referred within the statutory time limit and is validly before me. Counsel for the respondent submitted that the complaint did not comply with Section 77(5)(a) of the Acts, the statutory time limit set out above for referring the complaint to the Tribunal. The complainant submitted that she was subjected to an alleged incident of sexual harassment at a meeting she attended with GM in April 2004. She accepted in evidence that this was the only incident of alleged sexual harassment which occurred. Section 77(5)(a) of the Act provides that a complaint has to be referred within six months of the most recent occurrence of the alleged act of discrimination. I note that the alleged Act occurred in April 2004 and the referral was made to the Tribunal on the 18th December 2007. I am satisfied therefore that this complaint of sexual harassment was referred outside the statutory time limit and accordingly it is not validly before me.

4.5 I am now proceeding to make a decision on the complainant's complaints of discrimination on the gender, family status, age and disability grounds in relation to her conditions of employment contrary to Section 8(1)(b) of the Acts. I have also to consider whether the complainant was harassed contrary to S. 14A In making my decision in this case, I have taken into account all of the evidence, written and oral, submitted to me by the complainant. It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

4.6 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:

".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."

4.7 The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
Section 85A. Of the Employment Equality Acts 1998-2008 sets out the burden of proof as follows:
(1) 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 her or her, it is for the
respondent to prove the contrary.

4.8 In considering Section 85A, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.

The Labour Court went on to say in that case:

"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."

4.9 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts 1998 and 2004 provides:

"..... 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) (in this Act referred to as the 'discriminatory grounds')"

Section 6(2)(h) provides that as between any two persons, the discriminatory grounds are, inter alia:

(a) that one is a woman and the other is a man (in this Act
referred to as ''the gender ground''),

(c) that one has family status and the other does not (in this
Act referred to as ''the family status ground''),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),

Gender Discrimination

4.10 The first matter I have to decide on is whether the complainant was discriminated against on the gender ground in relation to her conditions of employment. The complainant contended that she was treated less favourably in relation to her conditions of employment than a man was treated or would have been treated in similar circumstances. The complainant submits that since the merger of the two cooperatives in 2000 there was an ongoing campaign in relation to how she was treated by the new management which was designed to remove her from the position of branch manager in Castlerea. It was her belief that management wanted to replace her with a male manager. In support of this contention the complainant submitted inter alia that after the merger she was repeatedly offered redundancy, told that she would be replaced by a male manager, there were rumours circulated that she was leaving, she was asked to produce a sales plan when other branch managers were not, she was given a final written warning about her performance in circumstances where she believed the branch was performing well, that management instructed the driver of the delivery lorry not to deliver for her and as a result she suffered from stress and was out sick and was not allowed back to work after she was declared fit. The respondent denies that the complainant was subjected to any discriminatory treatment on the gender ground or that he wanted to remove the complainant from her position because of her gender. It was submitted that she was under performing in her position and this was the reason she got a warning was asked to produce a sales plan. She was given every assistance to improve and when this did not happen she was dismissed from the employment.

4.11 There was a conflict of evidence in relation to almost all the evidence tendered by both parties. However there was some evidence tendered which I am of the view supported the complainant's claim of discriminatory treatment in relation to her conditions of employment. It is noteworthy that the complainant was working in an environment where the majority of its customers, shareholders, senior managers, branch managers and employees were male. It is also significant that out of thirty branches there were only three female managers and when the complainant and Ms A employment terminated they were both replaced by male managers. This information of itself is not sufficient to support the complainant's contention that the respondent wanted to move her from the position and replace her with a male branch manager but when considered in conjunction with the totality of the evidence, I am satisfied that the complainant was treated in a discriminatory manner in relation to her conditions of employment. I note that the complainant's witness Ms. A, a former branch manager, corroborated the complainant's evidence in this regard and said that it was her belief that GM regarded females as the "weaker sex". She submitted that she felt discouraged and she gave one instant of where she was not listened to whereas when a male manager raised the same issue it was dealt with by management. It was her belief the respondent also wanted to replace her with a male manager which happened when she took redundancy. Her evidence also supported the complainant's claim that at a meeting she was subjected to a "put down" by GM when she enquired about getting an experienced replacement for an employee out sick.

4.12 Likewise I note it was the complainant's evidence that GM wanted her to take voluntary redundancy on a number of occasions after the merger has been in the main substantiated by the complainant In May 2004 she said that she was informed by her manager AM (now deceased) that GM wanted her out of the store the following Monday and that he (AM) was going to replace her. The complainant's union official BS corroborated the complainant's evidence in this regard and said that he represented the complainant at a meeting with management about the matter and he believed that GM had a closed mind towards her. He further stated that it was his opinion that she was being discriminated against because she was the only female branch manager at the time. It is significant that in or around the same time in May 2004 the complainant said that a rumour circulated amongst members of the respondent's committee to the effect that she was leaving the employment. It is also noteworthy that GM said in evidence that he also heard this rumour. Therefore I accept the complainant's evidence on this point. It is significant that a letter dated the 26th September 2005 from the complainant's union to GM that the union stated as follows: "The outcome of the meeting was that we believed that this was total victimisation on your part to our member, and that you has several meetings with our member in the past asking of her to seek voluntary redundancy." There was no reply to this letter nor were the contents disputed by the respondent. I note that when the complainant went out sick with a stress related illness she was not allowed back to work when she was declared fit. It is clear therefore that the matter of the complainant leaving the employment was the utmost matter in the mind of the respondent.

4.13 I note that the complainant shared a delivery lorry with other branches and when difficulties arose about a driver doing the delivery for her the problem was not resolved by management. The complainant submitted that on the 16th of March 2007 she had arranged a delivery to customers and the driver told her that he had been instructed not to carry out deliveries for her. It is significant that the Operations Manager who had responsibility for transport stated that he was aware that drivers had complained about the complainant and that when the complainant complained to him on the day in question he did nothing about it and referred her to the GM who also did not resolve the problem. Likewise it is significant that OM said in evidence that he may have suggested a change in the delivery. I found the evidence of the OM less than satisfactory. I found the complainant's evidence convincing on this point and I am of the view that the transport arrangements which the complainant had in place were countermanded.

4.14 The complainant submits that she was treated differently than other male manager in that she was the only branch manager asked to submit a sales plan. The union SS supported the complainant's claim and stated that following the request for a sales plan from the complainant he had a meeting with about ten male managers and they confirmed that they were not asked for a sales plan. The respondent's evidence was that other branch managers had to produce sales plans but they declined to produce copies of them which were requested by me. I accept that the complainant's evidence on this point.

4.15 The next matter I have to consider is the complainant's performance which the respondent submits led to an overall decline in the performance of the branch and this was the reason for requiring her to produce a sales plan. The complainant disputes that the branch was under performing or that there was a decline in sales. She said that these allegations were made in order to remove her from the manager position. The complainant said that she received 2 letters one in June and one in August 2005 concerning the sales plan and referring to the decline in sales. On the 1st of September 2005 she received a letter stating that the results for first half of 2005 were excellent and there was an improvement across all sections of the business. The letter also referred to some branches where there were problems and in particular where there were problems achieving margins on diesel and steel. The complainant said that she did not believe that this part of the letter referred to her branch as she did not sell either steel or diesel. She said that she was much taken aback to receive a final written warning about her performance as a manager on the 7th of September 2005. Counsel for the complainant submitted that there was no further complaint about the complainant's performance after September 2005 and that the only figures produced in relation to the performance of the branch were the figures produced by the complainant which contradicts the assertion of the respondent that there was a decline in the performance of the branch. He submitted that the respondent's figures on the performance of the branch presented to the EAT did not stand up. The respondent stated that the Riverstown store which was of a similar size to the Castlerea branch performed much better. I note in a letter dated 7th January 2008 from the complainant's line manager AM (now deceased), he said that the complainant was conscientious, competent and hard working branch managers and that he found no problem with her ability as a manager and significant increase in sales to the order of 32% was achieved in the years 2000 to 2003. He said that the yard area was too small and under-developed due to the lack of resources from head office. I note that the complainant disputed the company figures and stated for the year 2006 there was an 18% increase in sales over 2005 but the net margin was down on 2005 due to the fact the company added inflated expenses or expenses not incurred to the account. I note that the respondent did not produce any evidence to contradict the complainant's assertions. I also note that despite a request by the Tribunal for sales figures from other similar branches the respondent did not provide the Tribunal with this information. It is significant that the respondent stated in response to a question that there were still performance problems with the Castlerea Branch since the complainant's departure and that the proposed development plan has not been implemented so far. Consequently I am satisfied that the complainant has raised an inference of discrimination in relation to her treatment. The respondent has not convinced me that any deficiencies in the performance of the Castlerea branch were solely attributable to the management of the branch by the complainant. Taking into account the totality of the evidence presented, I am also not satisfied that the final written warning was justified in the circumstances.

4.16 In considering the case herein I am guided by the Labour Court decision in the case of Ely Property Group Ltd and Zena Boyle Determination No. EDA0920 where the Labour Court was considering prima facie evidence in a gender discrimination case and stated:
"In considering the primary facts relied upon by a Complainant the Court is not seeking prima facie evidence that the discriminatory ground relied upon was the only or the dominant reason for the impugned treatment. In Wong v Igen Ltd and others [2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. That decision was made having regard to the wording of Article 2 of Directive 2000/78/EC which provides that there shall be no discrimination "whatsoever" on any of the grounds proscribed by that Directive. This Court has consistently adopted the reasoning in that case."
In applying the above reasoning, I am satisfied that the respondent has failed to show that the complainant's gender was not a factor in her treatment in relation to her conditions of employment.

4.17 I also find that the jurisprudence in the following passage of the above cited Labour Court decision of assistance and relevant in my consideration of the case:
"Furthermore the evidence can point to either conscious or subconscious discrimination. As was pointed out by Neill L.J. in King v Great Britain China Centre [1992] I.C.R. 516, in a case involving racial discrimination: -
It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in.'
The views expressed by Neil L.J. were echoed by Lord Nicholls of Birkenhead in Nagarajan v London Regional Transport [1999] IRLR as follows: -
I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.
While both judgments were given in cases in which racial discrimination was at issue there is nothing in principal or in logic to prevent their application to a case in which the gender ground is relied upon. There will be many cases in which the primary facts point to the possibility that an employer, consciously or subconsciously, treated a woman as he did because he believed that she did not fit in or that she was unsuited to the job because she is a woman. In such cases an inference of discrimination arises and it is for the Respondent to prove the contrary.
I am satisfied that the reasoning of the Labour Court above is applicable to the case in hand. I am satisfied that the totality of the evidence supports the contention that the treatment of the complainant raises an inference of discrimination on the gender ground in relation to her conditions of employment in that the treatment experienced by the complainant points to the possibility that the respondent considered her unsuitable for the job because she was a woman. I am of the view that the respondent believed the complainant because of her gender did not fit the role of branch manager. It is noteworthy that when she went out sick she was not allowed to return to work when she was declared fit and she was in fact replaced by a male manager. I am satisfied that the totality of evidence raises an inference of discrimination. Accordingly I find that the complainant has established a prima facie case of discriminatory treatment on the gender ground in relation to her conditions of employment which the respondent has failed to rebut.

4.18 Harassment

The complainant also claims that she was harassed contrary to Section 14A of the Acts on the disability, race and age grounds. Section 14A of the Acts defines harassment as:
(7)(a) "any form of unwanted conduct related to any of the discriminatory grounds, and........
(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."

The Act goes on to give examples of unwanted conduct and states:
(c) "Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."

Section 14A(2) provides a defence for the employer and provides.
(2) If harassment or sexual harassment of the victim by a person
other than his or her employer would, but for this subsection, be
regarded as discrimination by the employer under subsection (1), it
is a defence for the employer to prove that the employer took such
steps as are reasonably practicable --

(a) in a case where subsection (1)(a) applies (whether or not
subsection (1)(b) also applies), to prevent the person
from harassing or sexually harassing the victim or any
class of persons which includes the victim, and
(b) in a case where subsection (1)(b) applies, to prevent the victim
from being treated differently in the workplace or
otherwise in the course of the victim's employment and,
if and so far as any such treatment has occurred, to
reverse its effects.

The Labour Court in the case of, Nail Zone Ltd and A Worker Determination No.
EDA1023, defined the law in relation to harassment as follows:
"The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts."

4.19 The complainant's case is that she was bullied and harassed by the male management of the respondent and in particular GM because she believed he wanted to pressurise her into leaving. She said that she felt uncomfortable, intimidated and pressurised at a meeting in November 2000 where she was being questioned by three male managers about her intention to remain as the branch manager. At another meeting in March 2001 said that GM was aggressive towards her. She felt intimidated into working on Saturdays because she was in fear of losing her job. She said that GM made remark "to hell with your children" which she found upsetting and hurtful. She walked out and was physically sick in the bathroom and GM followed her and he promised not to treat her like that in the future. She said things did not improve and she felt that she was being continually targeted by management for the sole purpose of removing her from the job and as a result she was continually in fear of management. She raised the issue at a meeting with management but nothing was done about it. She subsequently heard that the HRM made a derogatory comment about her. At a meeting with management prior to her dismissal GM said that she was a "waste of space." The respondent denied that the complainant was harassed within the meaning of the Act or that she was subjected to a hostile working environment. It was submitted that the complainant failed to invoke the Policy on Preventing and Dealing with Harassment/Bullying and therefore the respondent could not investigate the matter.

4.20 I found the following corroborated the complainant's evidence in relation to her treatment: Ms. A gave evidence that she witnessed the complainant being treated in a very dismissive way by GM at a meeting of managers and other branch managers expressed shock at the way she was treated; in a letter of 26th September 2005 the complainant's union representative expressed concern about "total victimisation on your part to our member"; the complainants SS gave evidence that he witnessed GM using choice language towards the complainant at a meeting. I have also taken into consideration a letter from the complainant's GP which stated that the complainant was having problems at work and he diagnosed she was suffering from high blood pressure but she refused to take time off work even though she told him that she was stressed at work. I note also that GM could not recall some of the meetings referred to by the complainant but he did recall that from time to time he did express strong views to the complainant, but these views were always in relation to the performance of the branch. Likewise I note that HRM accepted that the complainant complained at a meeting in September 2005 about being bullied and harassed by management but he did not treat it as a formal complaint under the Bullying and Harassment Policy. I find all of the above evidence is of sufficient weight to support the complainant's complaint of harassment. Having examined the totality of the evidence, I am satisfied that the complainant has adduced evidence to support her claim that she was subjected to comments and to a working environment which was hostile and intimidating. Applying the subjective test in the above cited Labour Court decision, I am satisfied that the conduct had the effect of creating an intimidating and hostile working environment for her. I am also satisfied that this treatment was connected to the complainant's gender in that the treatment was for the purposes of removing her from her position because of her gender. I find therefore, that the complainant has established that she was treated less favourably on the gender ground than the male managers were treated in comparable circumstances. Accordingly, I find that the complainant has established a prima facie case of harassment in relation to her conditions of employment on the gender ground within the meaning of the Acts.

4.21 It was submitted on behalf of the respondent that the complainant did not complain about her treatment under the Policy and therefore the company could do nothing about any alleged harassment. The complainant disputed that she got a copy of the Policy. However I am satisfied that the company has a policy and that a copy of that policy had been given to all staff including the complainant. I note the complainant made a verbal complaint to the HRM at a meeting in September 2005 and it was not regarded as a formal complaint under the policy. Likewise I note that the complainant wrote to the respondent on the 6th June 2007 asking HRM to immediately invoke the grievance procedure because she was severely bullied and harassed over the last 7 years but particularly over the last year. The respondent did not respond to this letter. The complaint was not investigated and the complainant was dismissed shortly afterwards.
I am satisfied that the respondent was aware of the complaints as early as September 2005 and the defence under Section 14A is not available as no steps were taken to investigate the matters complained about.

4.22 Disability Ground

The definition of disability in Section 2(1) of the Acts is as follows:
''disability'' means --

(a) the total or partial absence of a person's bodily or mental
functions, including the absence of a part of a person's
body,

(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of
a person's body,

(d) a condition or malfunction which results in a person learning
differently from a person without the condition or
malfunction, or

(e) a condition, illness or disease which affects a person's
thought processes, perception of reality, emotions or
judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or
which previously existed but no longer exists, or which may exist in
the future or which is imputed to a person;

4.23 The first matter I have to consider is whether the definition of disability applies to the complainant. The complainant was hospitalised on the 16th March 2007 after suffering from chest pains at work. She was subsequently certified unfit for work by her GP because she was suffering from chest pains and a stress related illness. The complainant was examined by the company doctor in May 2007 and he concurred with her GP's diagnosis. The complainant's GP certified her fit to return to work on the 21stMay 2007 and the company doctor agreed with this assessment. The complainant notified the respondent of her return date and she was notified by HR not to return pending a meeting with the company to discuss her illness. The complainant and her union representative attended a meeting with HR on the 23rd of May 2007. There were two items on the agenda (i) Feedback on the medical report from the company doctor and (ii) the future management of the Castlerea store. The respondent had sought an opinion from the company doctor in relation to the complainant's ability in the future to withstand the pressures of a stressful job as the manager of the store given that she had been exhibiting signs of stress. The company doctor having agreed with the complainant's GP that she was fit to return to work stated that "As you are aware stress is not a definable medical condition and I do not feel that it is within my competence to confirm that she is capable of withstanding the day to day pressures associated with her occupation as requested by you" At the meeting the HRM outlined the concerns they had with the medical report and the vagueness of stress issue and the doctor's inability to give a report on this aspect of her condition. I am not satisfied that the condition of stress on its own, without any other consequent condition or illnesses, comes within the definition of disability as set out at Section 2(1)(e) of the Act cited above. However I note from the medical evidence that the complainant was diagnosed with chest pains for which she was hospitalised and other medical/psychological illnesses which required medication. I am satisfied therefore that the illness from which the complainant suffered from, between March and May 2007, comes within the definition of disability set out at section 2(1)(e) of the Act. Likewise I am satisfied that the complainant recovered from that illness. I note from the medical reports from both the complainant's GP and the company's doctor that she was medically fit to return to work in May 2007. It would appear that the respondent disagreed with the medical reports and decided not to allow the complainant not to return to work pending further enquires. The definition of disability at 2(1)(e) above also covers this situation. I am satisfied that the respondent imputed an illness to the complainant and therefore her situation comes within the definition of disability. I note that the respondent entered negotiations with the complainant and her union official about the termination of the complainant's employment at the meeting of the 23rd May 2007. The complainant objected to this course of action and she was subsequently dismissed on the 6th of July 2007. The complainant pursued an unfair dismissal to the Employment Appeals Tribunal. Counsel for the complainant submitted that she was discriminated against in relation to her conditions of employment and that the respondent failed to put reasonable accommodation in place in accordance with section 16 of the Acts so that the complainant could return to work after her illness

4.24 As the complainant was dismissed without having an opportunity to resume work after her sick leave absence, it is my view, that any complaint of discriminatory treatment on the disability ground is closely connected to the termination of the complainant's employment. Section 101 of the Act precludes a complainant from seeking dual avenues of redress. Accordingly, I find have no jurisdiction to examine the issue of discriminatory treatment on the disability ground.

4.25 Family Status.

''family status'' means responsibility --
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years,"
The complainant submitted that she was discriminated against on the family status ground in that she was asked to work six days per week. She said that the branch was already open on a Saturday but she did not work on a Saturday because of her family commitments. She also submitted that the opening hours were again extended in 2006 which impacted further on her family life. She submits that there were derogatory remarks made about her family and she was told that her husband could look after the children on Saturday. The respondent denies that this occurred or that there were any remarks made about her children. They said that the complainant was not treated any differently than any other staff that had children. They submitted that all the branches were moving to a six day week and longer opening hours and that branch managers were in charge and were responsible for the operation of the branch even on their day off. It may be necessary for all staff to work on a Saturday during the busy season but it was up to each branch manager to organise their day off. I am satisfied that the complainant has failed to establish that she was treated less favourably than a person who did not have children was treated or would have been treated in similar circumstances. Therefore her complaint on the family status ground cannot succeed.

Age

4.26 The complainant also submits that she was discriminated against on the age ground in relation to her conditions of employment. Section 6(2) of the Acts defines the discriminatory ground of age as follows:
As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are -- .......
(f) that they are of different ages, but subject to subsection (3)
(in this Act referred to as ''the age ground''),

The complainant submitted in evidence that after the merger took place her belief was that the respondent wanted to replace the older workers with younger workers and that she was replaced by a much younger male manager. The respondent submitted that the employees were of all different ages and denied that the company discriminated on the age ground. The respondent submitted a list of the branch managers and their ages. I note that the branch managers were both older and younger than the complainant. The question I have to decide is whether the treatment of the complainant which I have found to be discriminatory on the gender ground constituted a combination of discriminatory treatment on both grounds. It is notable that the complainant, who was in her fifties at the time of the termination, believed that the respondent wanted to replace older workers with younger workers and that this happened in her case. It is also significant that Ms A the manager of Kilbarron Co-operative was also replaced by a younger male manager. I have come to the conclusion, taking into account the totality of the evidence and all the circumstances of this case, that the treatment experienced by the complainant has raised an inference of discriminatory treatment on the age ground. I consider that the discrimination on the grounds of gender was compounded by discrimination on the grounds of age. Accordingly I find that the complainant has established less favourable treatment and therefore has established a prima facie case of discriminatory treatment on the age ground.

5. Decision

5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:

the respondent did discriminate against the complainant on the gender and age ground pursuant to sections 6(1)(a) and 6(2)(a) and 6(2)(f) of the Acts in terms of her conditions of employment contrary to section 8(1) of the Acts;

the respondent harassed the complainant on the gender ground pursuant to Section 6 (1)(a) and 6(2)(a) of the Acts in terms of her conditions of employment and contrary to section 14A of the Acts;

the respondent did not discriminate against the complainant on the family status and grounds pursuant to sections 6(1)(a) and 6(2)(c) of the Acts in relation to her conditions of employment pursuant to section 8(1) of the Acts;

I have no jurisdiction in relation to the complaint of discriminatory treatment on the disability ground pursuant to Section 101 of the Acts;

(iv) the complaint of sexual harassment and victimisation were referred outside the statutory time frame set out in section 77(5)(a) of the Acts and accordingly I have no jurisdiction;

(v) Section 82-(i)(c) of the Act provides that I can make an order for redress for the effects of the discrimination. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I consider that an award in the amount of €40,000 in respect of the discriminatory treatment and an addition award €10,000 in respect of the harassment is appropriate. This amount represents about fifteen months remuneration.

(vi) I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €50,000 in compensation for the effects of the discriminatory treatment and harassment. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.

_________________________
Marian Duffy
Equality Officer
4th August 2011