THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2011-238
PARTIES
Ms. Nessa Larke
(represented by Ms. Joan Walsh B.L. instructed by P&G Stack, Solicitors)
and
Balcas Kildare Limited
(represented by IBEC)
File References: EE/2007/677
Date of Issue: 12th December, 2011
Head-notes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - promotion/re-grading - gender - pregnancy - harassment - prima facie case - preliminary time limits issue.
1. Dispute
1.1 This case concerns a complaint by Ms. Nessa Larke that she was discriminated against by the respondent on the grounds of her gender contrary to Sections 6(2)(a) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory treatment and harassment.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 17th December 2007. In accordance with his powers under Section 75 of the Employment Equality Acts, the Director delegated the case on the 30th June 2010 to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from both the parties. As required by Section 79(1) of the Acts and as part of my investigation, I scheduled a hearing of this complaint for the 29th September 2011. The final correspondence on this matter was received on the 3rd October 2011.
3. Summary of the Complainant's case
3.1 The complainant submitted that she commenced employment with the respondent in the position of National Accounts Manager in August 2004 and was promoted to the position of Sales and Marketing Manager for the Irish and UK market in February 2005. She claims that she was the only female in a management position at the time in the Company. The complainant stated that she commenced a period of maternity leave in October, 2005 and returned to work in June, 2006. The complainant claims that while she was on maternity leave the structure of the organisation changed and the General Manager was replaced by a new Commercial Director. She claims that on her return to work the Commercial Director kept working with the UK part of the business and she started working with the Irish market so to allow her ease herself back into work. (The Commercial Director was looking after the UK business while she was out on maternity leave).
3.2 She claims that she encountered various issues with the newly appointed Commercial Director on her return to work. She claims that they included,
- being excluded from Management Company meeting,
- certain management functions were removed from her - i.e. staff appraisals, approving leave, etc.,
- being undermined by junior staff, and,
- received derogatory comments from the Commercial Director in relation to her pregnancy and family status in front of customers/clients.
She claims that she raised these matters with the Commercial Director verbally. In relation to the reduction of certain functions Ms. Larke claims that the Commercial Director told her that this was to free up her time to deal with the Irish market.
3.3 The complainant stated that since January 2007 - seven months after her return from maternity leave - the respondent has attempted to alter her role within the company from Sales and Marketing Manager to a lesser position of Key Account Manager, which would be in effect a demotion, removing her from the senior management team and from her staff management role. The complainant claims that she refused to accept this demotion. She claims that there was an ongoing battle with the respondent since her return to work following her maternity leave in June 2006.
3.4 Ms. Larke claims that she received an email from the Commercial Director on 7th February 2007 setting out the reasons for redesigning her role and he made reference to her under achieving in her sales targets in the past, prior to his arrival. She claims that that this was never raised with her before. She claims that she again raised her grievances about her situation verbally with the Commercial Director and also in a meeting with Mr. A, in Human Resources. However, there was no improvement with her situation.
3.5 Ms. Larke claims that the Commercial Director resigned and was replaced by Mr. B in April 2007, who worked with her and they had got on well together personally and professionally. She claims that in July 2007 she advised Mr. B that she was pregnant. She claims that at the end of that month her usual six monthly 'holiday bonus' of €1,000, which was always paid into her account in July and December, was not paid. She claims in her submission that she felt that was because she had announced her pregnancy. She claims that she brought the issue about the bonus to the attention of Mr. B who after checking the matter with Head Office was advised that she was not entitled to the payment in her current role as the payment was only for members of the senior management team.
3.6 She claims that she set out her grievances with the respondent in writing by letter of 6th September 2007, where the respondent in reply by letter dated 14th September 2007, agreed to reinstate the bonus as a "gesture of goodwill" and "on a personal-to-holder basis". The respondent further stated that the bonus was a Senior Management bonus and was only applicable to her in the role as Sales and Marketing Manager. Ms. Larke claims that it was patently obvious for the first time at that juncture that she was demoted from her position that she held prior to going on maternity leave in October 2005.
3.7 The complainant claims that she attempted to resolve other outstanding issues she had with the respondent through the internal grievance process. However, she claims that the respondent had refused or neglected to restore her to her former role prior to going out on maternity leave in June 2006. She claims that while out on maternity leave she met with the respondent in an attempt to again resolve her differences, to no avail. Ms. Larke claims that she had lost confidence in the grievance process and felt she had no option but to tender her resignation on the 17th June 2008.
3.8 The complainant claims that the case of discrimination against the respondent was lodged within the statutory time limits set out in Section 77(5) of the Acts. As the date of knowledge of her de facto job demotion crystallised at the end of July 2007 when she did not receive the holiday bonus after she had announced her second pregnancy while working with the respondent. The complainant claims that since her return to work in June 2006 following her maternity leave she was confused by the lack of information from the respondent about her role in the company, there was a slow "drip-drip" flow of information where everyone else seemed to understand that she was demoted from her previous post except her. She claims she would not agree to her role change in February 2007 when presented with an amendment to her conditions by the Commercial Director and the only other tangible confirmation of that demotion was on the respondent's failure to pay the holiday bonus.
4. Summary of the Respondent's case
4.1 The respondent claims that Balcas is one of Britain and Ireland's largest wood products suppliers with 600 direct employees. It operates several sites throughout the world including Balcas Kildare Limited which has a production operation and sales function in Kildare employing between 60 and 67 employees there. It submitted that the complainant was employed in August 2004 as a Sales Manager for Ireland by the then General Manager of Balcas Kildare Limited and by the end of January 2005 she had taken over as Sales and Marketing Manager. The respondent stated that the complainant commenced sick leave in October 2005 which ran into her maternity leave, and she retuned to work in June 2006.
4.2 The respondent claims that it had become clear that the company, as structured, was losing its customers and was too heavily reliant on one main customer and too heavily focused on production and not on sales. Accordingly, in April 2006 the General Manager was replaced by a Commercial Director with a view to turning around the company's fortunes. It claims that Ms. Larke was informed of the change by a telephone call while she was on leave. It claims that on her return to work in June 2006 she took over responsibility for Irish sales in the role as Key Account Manager. It claims that her level of remuneration did not change. However, there was a change to her role. The respondent claims that it confirmed this in writing, admitted in not in a timely fashion, on the 7th February 2007. It claims that there never was any issue or grievance in relation to the re-designation of her role from Ms. Larke until her letter of the 6th September 2007, which she sent to Mr. B.
4.3 The respondent claims that Ms. Larke contacted Mr. A, Group HR manager, following her "chat/review" meeting with the Commercial Director at the end of January 2007, and requested that they "met up for a chat" which she subsequently cancelled. However, Mr. A did meet with the complainant on the 12th March 2007 and he noted that she was in good form, she was happy in her new role, the role she said that she was initially recruited for. He claims that she reported to him that she "felt out of her depth" in the old role. He said that she asked if she could retain the Sales and Marketing Manager title from her old job. He claims that she also raised an issue about office staff, where Mr. A said he would take it up with the Commercial Director.
4.4 The respondent claims that the Commercial Director resigned in April 2007 and following this the structure of the management team changed again where Mr. B took responsibility for Sales and Marketing. The respondent accepts that Ms. Larke announced that she was pregnant on the 16th July 2007 to Mr. B. and later that month raised an issue with him about the €1,000 holiday bonus. Mr. B claims that he told Ms. Larke that he did not think she was entitled to the bonus but he would check with Head Office in Enniskillen. Mr. B explained to the Tribunal that the holiday bonus was a discretionary payment that he himself did not always receive. He claims that he met with the complainant again on the 8th August 2007 where he confirmed that she was not entitled to the holiday bonus in her role. He claims that they had a further meeting on the 29th August 2007 where he confirmed again that she would not get the holiday bonus, however, that management had agreed for Ms. Larke to keep the job title of Sales and Marketing Manager as per her request.
4.5 The respondent agrees that Mr. B did get Ms. Larke's letter of 6th September 2007 raising, inter alia, three grievances she had with the respondent during the Commercial Director's time in the company - i.e. excluded from management meetings, undermined by junior staff, and derogatory comments by the Commercial Director. The respondent claims that in its reply to Ms. Larke on the 14th September 2007 it outlined that it was unaware of any outstanding grievances she had with the respondent; it attempted to again explain the change in her role on her return from her return from maternity leave; it apologised for any unacceptable remark made by the Commercial Director in the past and as a gesture of goodwill decided to continue to pay her the holiday bonus on a personal-to holder basis. Mr. B also confirmed that she would get the same level of top-up to her maternity payment as she did on the last pregnancy, which effectively resulted in her receiving her full salary.
4.6 The respondent said that on foot of the complainant's solicitor's letter dated 25th September 2007 where the solicitor asked for the company to carry out an investigation of the complainant's grievances with the respondent and to address them. On the 19th October 2007 Mr. B wrote to the complainant's solicitor to inform it of the investigator's name and that he would be in contact with Ms. Larke. It claims that the grievance investigation was conducted and the investigator's report was sent to her on the 25th January 2008.
4.7 The respondent claims that Section 77(5) sets out the time limits in which the complainant can refer her complaint. It claims that there was no application to extend the time limits as provided for under the Acts. Accordingly, the issues raised about her alleged demotion is out of time as her role changed when the structure of the management changed on her return to work in June 2006. It claims that the alleged harassment, in particular the comments by the Commercial Director are also out of time as this occurred between August to November 2006 and that he left the respondent in April 2007. Therefore, it claims that the only aspect of the complaint that I have jurisdiction to investigate is in relation to the holiday bonus and that was initially not paid following the announcement of her pregnancy in July 2007. However, it claims that this issue has been explained and subsequently been resolved.
5. Conclusions of the Equality Officer - Issue of jurisdiction on time limits
5.1 The respondent raised an issue of whether this matter is properly before the Equality Tribunal on the basis of the time limits set out under Section 77(5)(a) of the Employment Equality Acts and has asked me to consider this as a preliminary matter in the investigation of the case. The respondent claims that all the issues raised in relation to discrimination and harassment following Ms. Larke's return to work after her first maternity period are out of time.
5.2 Section 77(5)(a) of the Employment Equality Acts 1998 to 2008 states that "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 to which the case relates or, as the case may be, the date of its most recent occurrence". Section 77(5)(b) of the Employment Equality Acts 1998 to 2008 states that "On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly."
Scope of the complaint - First maternity leave absence
5.3 The complaint referral form EE1 was received at the Equality Tribunal on the 17th December 2007, where Ms. Larke outlining her claim for discrimination states that the first occurrence of the discriminatory act was the 9th October 2006 and that the 'date of the most recent occurrence of discriminatory act' was 26th July 2007. It is clear from the evidence that Ms. Larke had two maternity periods while she worked with the respondent. She returned to work after the first period in June 2006 and found herself in different work circumstances with a definite change to the structure of how the respondent had operated prior to her going out on maternity leave. She had a new manager with a different role and she claims that she was uncertain as to her role as there was a "drip-drip" release of information which culminated and crystallized on the 26th July 2007 when she finally understood that she was demoted. This coincided with her announcement of her second pregnancy on the 16th July 2007.
5.4 The respondent's evidence is that Ms. Larke's position changed while she was on maternity leave in 2006, and that she was informed of the change while on maternity leave and again on her return to work where she took up the position without difficulty. Both Mr. A and Mr. B in evidence made it clear that from their various discussions with Ms. Larke during their time working with her that she was clearly aware of her role, that it was without doubt different to her previous role and therefore, this aspect of the claim before me in relation to the change to her position or "demotion" are outside of the time limits of Section 77(5) of the Acts.
5.5 In considering this issue, I am of the view that it is necessary to examine the sequence of events that occurred in terms of the interaction between the parties when the complainant sought to return to work following the expiry of her period of maternity leave in June 2006. I am satisfied that Ms. Larke's position with the respondent changed while she was on maternity leave and this affected her terms and conditions of employment. It is clear that her remuneration remained the same, while there were other definite changes to her role which have been outlined in both the complainant's and respondent's evidence. Ms. Larke claims of a "drip-drip" like information deficit in this regard from the respondent. Whereas, the respondent has stated that although it was slow in committing her role change to writing, (7th February 2007), the complainant was well aware of the change to her role.
5.6 I note the complainant's own evidence that in her role as Sales and Marketing Manager she had a responsibility for the Irish and UK market and on her return to work in June 2006 she only assumed responsibility for the Irish market, similar to the role she had when recruited by the company in 2004, and that she did not then resume her responsibility for the UK market after that. I note that she received an email from the Commercial Director confirming that "the reasoning for re designating your role from Sales and Marketing Manager to Key Account Manager" and it included her job description. I note the meetings with Mr. A, on the 22nd March 2007 and Mr. A evidence that he discussed among other things Ms. Larke's new role and that she felt "out of her depth" in her previous role and that she had "no issues at present". Mr. A provided the Tribunal with contemporaneous notes of that meeting. I also have considered Mr. B's evidence that he worked closely with Ms. Larke for some time and from his day to day working with Ms. Larke it was clear that she understood and was fully aware of her role with the respondent. I note that when Mr. B became Ms. Larke's manager that there had been a discussion about her retaining her job title. This alone would suggest that there was an admission of a change to her role and I note from the evidence that a compromise was reached with Ms. Larke in relation to her work title. I have found Mr. A and Mr. B to be credible witnesses and in that regard I am satisfied that their account of events to be very consistent.
5.7 Having considered all the evidence, I am not satisfied that Ms. Larke only became aware of her change of position within the company on the 24th July 2007. I am satisfied that she was aware of it far earlier then that. I am satisfied that the context of the email from the Commercial Director to Ms. Larke on the 7th February 2007 was in a way a follow up to earlier discussions about her position in the company. Accordingly, I am satisfied that Ms. Larkes position was changed while she was on her first maternity leave from which she returned to work in June 2006 and by failing to raise her complaint of gender discrimination until the 17th December 2007 within the specific time limits as provided for in Section 77(5) is therefore out of time.
Scope of the complaint -Harassment
5.8 In relation to the claim of harassment Ms. Larke claims that she encountered several incidents on her return to work, namely she said that the Commercial Director made comments about the fact that she had become pregnant in front of the respondent's clients in October 2006. Ms. Larke also claims that she did not receive the same level of support from the Office staff and felt undermined by certain staff during the course of her work, she refers to incidents in August to November 2006. I am satisfied that the events that Ms. Larke refer to are after she retuned from her maternity leave and relate to specific dates from August to November 2006. Ms. Larke's recollections of these events were clear in her evidence and there was no confusion over dates. Again I note her claim in relation to discrimination and harassment following her return to work following her maternity leave did not form the basis of her complaint until the 17th December 2007. Therefore this aspect of her complaint is clearly out of time as provided for under Section 77(5). Accordingly, I find I have no jurisdiction to investigate this aspect of the complainant.
Scope of the complaint - Second maternity leave announcement
5.9 In relation to Ms. Larke's announcement that she was pregnant on the 16th July 2007, I am satisfied and it has not been disputed that she did inform Mr. B and shortly after she also approached him about not receiving a holiday bonus and that she was fearful that she would not receive the same top-up to her wages on her second maternity leave as she had on her first maternity leave. I am satisfied that this aspect of her claim refers to her announcing her second pregnancy in July 2007 and is therefore within the statutory time limits prescribed for in the Acts and I do have jurisdiction to consider this complaint.
Conclusions of the Equality Officer
5.10 The issue for decision here is whether or not the complainant was subjected to discrimination by the respondent on the grounds of her gender (in particular in relation to pregnancy) in terms of the conditions of her employment and the non-payment of a holiday bonus. In reaching my decision, I have taken into account all of the submissions, written and oral, made to me by the parties.
5.11 Section 85A of the Employment Equality Acts 1998 and 2008 sets out the burden of proof which applies to a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely on in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. The issue in this case is in relation to discriminatory treatment on the grounds of gender and the complainant must first establish facts from which it can be inferred that the alleged treatment was influenced by her pregnancy.
5.12 I am satisfied that the case before me here is where the complainant has announced her pregnancy to her manager Mr. B on the 16th July 2007 and a few days later notified him that she did not receive her annual July holiday bonus. The case law of the European Court of Justice (ECJ) is quite clear. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender. It later held in Brown v Rentokil that the entire period of pregnancy and maternity leave is a protected period. I am satisfied that the proximity of the complainant's change of her terms and conditions of employment and the announcement of her pregnancy to her employer amounted to less favourable treatment of her during the protected period of her pregnancy. Accordingly, I am satisfied that this is of sufficient consequence to discharge the complainant's initial burden of proof and therefore shifts the onus to the respondent to rebut the inference of discrimination raised.
5.13 It is clear that Ms. Larke approached Mr. B about the July holiday bonus, it is also clear that he was amused that she felt she was entitled to the bonus. However, I note he in turn checked with Head Office and the reason given to him supported his view that Ms. Larke was not entitled to the bonus as she was no longer part of the senior management team. I also note Mr. B's evidence that the payment of the bonus was discretionary and there were times when it was not always paid. I note that Ms. Larke committed her position about the bonus and other issues to writing on the 6th September 2007 and she received a reply on the 14th September 2007 from the respondent, which confirmed that it had decided as a gesture of goodwill to pay her the bonus on a personal-to-holder basis. I also note that the respondent confirmed that it was going to give Ms. Larke the same benefit cover as it did in her last pregnancy.
5.14 Having regard to the evidence adduced, I am satisfied that it was not unreasonable for the respondent to outline the reasons as to why Ms. Larke was not entitled to the holiday bonus. I am satisfied that its decision not to pay the bonus to Ms. Larke at the end of July 2007 was based on cumulative factors, including that it was a discretionary payment to members of the senior management team performing a senior management role, and that Ms. Larke was not performing that role within the company. I am satisfied that it was no way related to Ms. Larke announcing that she was pregnant earlier in July 2007. Accordingly, I find that the complainant has succeeded in raising a prima facie case of discriminatory treatment on the grounds of her gender contrary to the Employment Equality Acts and that the respondent has successfully rebutted the inference so raised.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that;
6.2 The complainant's case of discrimination and harassment against the respondent on the gender ground in terms of Section 6(2)(a) and Section 14A of the Employment Equality Acts and contrary to Section 8 of the Acts following her return to work in June 2006 after her first maternity leave is out of time.
6.3 The respondent has not discriminated against the complainant on the gender ground in terms of Section 6(2)(a) of the Employment Equality Acts, 1998 to 2008 and contrary to Section 8 of the Acts in relation to her announcing her pregnancy in July 2007.
______________
James Kelly
Equality Officer
12th December 2011