The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-001
PARTIES
Brendina O'Meara
(Represented by Ronald J. Egan & Co. Solicitors)
AND
Banagher Credit Union
(Represented by IBEC)
File reference: EE/2007/246
Date of issue: 4 January 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6, 14A & 74 - Gender & Age - Promotion & Discriminatory Dismissal.
1. DISPUTE
1.1. This dispute concerns a claim by Ms Brendina O'Meara that she was discriminated against by Banagher Credit Union on the grounds of gender and age contrary to section 6 of the Employment Equality Acts, 1998-2008 in terms of promotion and that she was dismissed in a discriminatory manner in accordance with section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 7 May 2007 under the Acts. On 23 March 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 15 September 2010 and final information was received on 17 November 2010.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant became involved with the respondent in a voluntary capacity in 1989 and served as a Committee member and a member of the Board of Directors. In 1999 the respondent decided to open weekdays and they recruited a Manager, assistant manager and two tellers and the complainant was appointed part time manager and teller. The posts were not advertised and appointments were made by the Board of Directors. The complainant submits that there were no complaints about her work and she regularly deputised for the Manager. She considers that she was highly regarded for her work.
2.2. Toward the end of 2006 the Manager announced that he would be retiring in March 2007. At a Board Meeting on 16 November 2006 and the Planning and Development Committee proposed creating a new post of Development Business Manager instead of the existing Manager. The complainant submits that she considered herself suitable for the post and indicated she was interested in the post. She felt that the submission by the Planning and Development Committee effectively ruled her out of applying, because of the qualifications and experience required for the new post. She requested a special meeting to discuss her interest on 17 November 2006. The meeting was delayed but was held on 29 November 2006. An HR representative from the Irish League of Credit Unions was present and said that it was necessary to advertise the post and therefore the complainant's interest could not be discussed. The complainant read out a letter and told the meeting that many posts had been filled by internal promotion and she considered that by not being promoted it meant that she was considered incapable of carrying out the post's duties. The complainant therefore felt that she had no option but to resign from her job and from the Board and that this amounted to constructive dismissal.
2.3. The complainant submits that she considers the Board did not want to appoint a middle-aged woman whose qualifications for the post were experienced based. A younger male was appointed and she submits that this amounts to discrimination on the grounds of age and gender.
3. RESPONDENT'S SUBMISSION
3.1. The respondent confirms that on 5 December 1989 the complainant joined the respondent as a volunteer on the Supervisory Committee and on 24 November 1998 joined the Board of Directors. On 2 September 1999 she was employed as a part time teller. She acted up when the Manager was on leave but was not an Assistant Manager.
3.2. At a monthly meeting of the Credit Union Board on 10 October 2006 the Manager stated that he would be retiring in March 2007. At the next monthly meeting on 14 November 2006 the Planning and Development Committee circulated a document for discussion. It proposed a development of the Manager role and a change of title to "Business Development Manager". The respondent accepts that the circulation of the document should have been preceded by a full explanation. Due to the complainant's objections to the proposal and her expression of interest in the position the document was not discussed at that meeting. The respondent submits that no decision regarding the position had been made at the meeting on 14 November 2006. All decisions to recruit staff have to be ratified by the Board and the Planning and Development Committee document was submitted for discussion by the Board. At another meeting held the following day the document was discussed and the Board agreed to advertise the position both internally and externally. The decision to advertise internally and externally was made on advice by the Irish League of Credit Unions; on the basis of best practice, which had changed since 1999 and the respondent had only recruited a cleaner to work 4 hours a week since 1999.
3.3. The complainant requested a special meeting of the Board and this was held on 29 November 2006. A representative from the Irish League of Credit Unions was at the meeting to explain current recruitment practice. The complainant read out a letter expressing her interest in the position and her concerns at the manner in which it was being dealt with and then resigned from the Board and from her position as teller. She was asked to reconsider and was encouraged to apply.
3.4. On 8 December 2006 the Board wrote to the complainant to clarify the issues she had raised and it was re-iterated that no decision had yet been made with regard to the job description for the post.
3.5. On 11 December 2006 the complainant wrote to the Supervisory Committee of the respondent requesting an investigation into alleged breaches of Credit Union rules by the Board, regarding their actions in filling the Manager post. The Supervisory Committee replied to the complainant on 24 January 2007 clarifying what had happened and stated that "no breaches of any legislation or Standard Rules had occurred."
3.6. On 9 January 2007 the Board sanctioned the filling of the post and it was advertised on 17 January 2007, and stated the "successful applicant should possess: a third level/professional qualification or equivalent experience". An appointment was made in February 2007 of a person who had no previous links with the respondent who happened to be a younger male.
3.7. In relation to the claim in respect of promotion the respondent submits that the complainant decided not to apply for the post before the post had been finalised.
3.8. The respondent also submits that the complainant chose to resign despite numerous attempts by them to get her to reconsider; she was not forced to resign.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was discriminated against in relation to promotion and if she was dismissed in discriminatory manner. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
Promotion
4.2. Section 8 (8) states "that an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds-
the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.
4.3 The complainant resigned from the Board and from working for the respondent after the Board meeting in November 2006 when the Planning and Development Committee put their proposal to the Board. She objected to any consideration of changes to the role and to it being advertised. She contended this was a change to previous practice within the respondent. However, it is clear that this was the start of the recruitment process by the Board and no decision was made as to the criteria for the post at this time. With advice from the League of Credit Unions the Board decided that the position would be advertised internally and externally. However, it was not until January 2007 that the Board agreed the job description and advertisement for the post. The advert was for a Manager and included the phrase "or equivalent experience". This clearly meant that if the complainant had applied she would not have been excluded because she did not have a third level qualification. Her application would have been considered on the basis of her experience but she chose not to apply.
4.4 I accept the respondent's contention that they went about filling the position in accordance with best practice, which had changed since the role was filled previously. There is no evidence that the respondent took any action that obstructed the complainant from access to the position. Therefore, with regard to the complaint in relation to promotion, with reference to section 8 (8), I conclude that the respondent did nothing to refuse the complainant access to the promotion opportunity.
Discriminatory Dismissal
4.5 Section 2(1) of the Act defines a dismissal as including:
"[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so...."
4.6 The complainant resigned from her position as teller soon after the Planning and Development Committee presented a document for discussion to the Board. The complainant and another member of the Board objected so strongly that there was no discussion of the document at the meeting. She then requested a special meeting of the Board which was held just over two weeks later at which she read a letter detailing her difficulties with the Board's actions regarding the filling of the post and then resigned. She was asked to re-consider but did not change her decision. The complainant resigned before the Board had made a decision about how they would fill the position of Manager.
4.7 The complainant resigned from the position of teller and as no change was made to her contract as a teller there is no evidence that she was forced to resign from that position.
4.8 The complainant considered the actions of the Board to be unreasonable in the way they were going to fill the position of Manager. However she resigned as soon as the filling of the post was discussed. No decision had been made and, as I stated in paragraph 4.4, I accept the respondent's contention that the Board went about filling the position in accordance with best practice. I therefore find the respondent's actions to be reasonable. The complainant acted in a peremptory manner which I consider to be unreasonable in the circumstances.
4.9 I can find no evidence of any discriminatory action by the respondent and conclude that the respondent did not dismiss the complainant in a discriminatory manner.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
that the respondent did not discriminate against the complainant in relation to promotion, and
that the respondent did not dismiss the complainant in a discriminatory manner.
____________________
Hugh Lonsdale
Equality Officer
4 January 2011