The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-198
PARTIES
Olivia Coen
(Represented by Brendan Archibold)
- V -
Mandate
File reference: EE/2009/109
Date of issue: 26 October 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Victimisatory Dismissal - Gender - Family Status - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Ms Olivia Coen that she was subjected to discriminatory treatment and victimisatory dismissal by the respondent on the grounds of gender and family status in terms of sections 6(2) and 74 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discriminatory treatment to the Director of the Equality Tribunal on 13 February 2009 and one of victimisatory dismissal on 29 September 2009 under the Acts. On 27 June 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 13 October 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she commenced employment with the respondent in September 1998 as a support staff member performing clerical and secretarial duties in the Mullingar office, she took a career break from October 2001 until October 2002 and in April 2003 she transferred to the Head Office in Dublin following the closure of the Mullingar office. The complainant further submitted that she was on a leave of absence from the respondent from February 2005 until December 2008 through a combination of annual leave, maternity leave, parental leave and additional unpaid leave.
2.2 The complainant submitted that the concept of work/life balance and the various categories of atypical working that have emerged as a result have been assiduously developed by trade unions and European social partners in recent decades and that in those workplaces where it is yet to be introduced, it is a reluctance to change rather than an inability to do so which prevents progress towards what is invariably a more efficient, profitable and environmentally friendlier way of doing business.
2.3 The complainant submitted that the application for atypical working arrangements by the complainant was made against the backdrop of enlightened and progressive developments of recent years, and in truth, the complainant's application for flexible working arrangements was never even considered by the respondent.
2.4 The complainant submitted that with her last period of additional and unpaid leave due to finish in December 2008, the complainant made her request for tele-working on a part-time basis in an email in August 2008. The complainant submitted that not only did the employer indicate clearly that the request from the complainant would not be catered for, they went a step further and ruled out any such development in the foreseeable future.
2.5 The complainant submitted that notwithstanding their stated position on tele-working, the respondent engaged in a 'spurious' request for further information from the complainant as to the possible workload and attendance options. The complainant submitted that she submitted additional information indicating that she was available three days a week and if necessary would be available on a full time basis.
2.6 The complainant submitted that she was also refused an application for additional parental leave, which was ruled out at that time and for a further six months. The complainant submitted that with thirteen other support staff in the Head Office who were available to do filing and provide cover for their colleagues, her absence on parental leavel would hardly have been a critical loss to the organisation. The complainant further submitted that at this time the complainant had been out of the workplace for almost four years and that it must be safe to assume that somebody else was doing the work of the complainant during this period, as well as providing cover for other employees. It was submitted therefore, that the complainant was no more indispensable than any other employee.
2.7 The complainant submitted that within a week of receiving notice of a referral to the Equality Tribunal, dismissal had suddenly become a consideration and it was one about which the respondent had 'no choice'. The complainant was called to a meeting with the respondent on 20 April 2009 and attended along with her representative. The complainant submitted that yet again the union rejected any suggestion of home working and the meeting ended without agreement.
2.8 The complainant submitted that no attempt was made to initiate genuine dialogue with her and that this is not an example of an employer acting reasonably.
2.9 The complainant submitted that the employer is guilty of a most blatant breach of the Labour Relations Commission Code of Practice on Disciplinary Procedures. The complainant submitted that she was making strenuous efforts to continue her employment with the respondent, albeit in a different form than before.
2.10 The complainant submitted that it questioned the respondent's assertion that the complainant had frustrated her contract, submitting that the range of events which can render a contract as unworkable must be of considerable magnitude before the point of frustration is achieved.
2.11 The complainant submitted that the termination in this case was a conventional dismissal and that the only issue arising therefrom is to identify the reason for it.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the complainant commenced employment in its Mullingar office in 1998 as a general administrative worker/secretary. In September 2001 she sought and was granted a one year career break. Thereafter, following a decision to close the Mullingar office, the complainant was offered and accepted terms under which she transferred to the Head office. These terms included monetary compensation and the option of a voluntary redundancy package in the event that the transfer did not suit her within a period of six months.
3.2 From 21 February 2005 until 14 January 2009 the complainant was on authorised leave through a combination of maternity leave, unpaid maternity leave, annual leave, sick leave and parental leave. However, from 14 January until the date of the termination of her employment on 20 May 2009, the respondent contends that the complainant was absent from work on unauthorised leave.
3.3 The respondent submitted that the request it received for unpaid maternity leave in July 2008 was the first time it had been informed that the complainant had relocated from the Dublin area to County Mayo. In August 2008, the complainant raised the possibility of carrying out a limited range of administrative duties remotely from her home over three days a week. The respondent submitted that the complainant was very clear that it was her personal circumstances which necessitated the request for working-from-home arrangements.
3.4 The respondent submitted that it considered the complainant's request, having regard to the complainant's personal circumstances and the needs/resources of the Union at that time and into the foreseeable future. This consideration was given by the staff responsible for human resources, with the decision not to grant the request reported to and ratified by both the staff relations committee and the National Executive Council. This decision was communicated to the complainant on 15 September 2008.
3.5 The respondent submitted that on 2 November 2008 the complainant sought her outstanding holiday entitlements and thereafter sought further consultation on the possibility of granting a certain level of tele-working from home. She indicated dissatisfaction with the level of consultation afforded to her. The respondent informed the complainant of her holiday entitlements and the complainant in turn informed the respondent of the manner in which she wished to avail of those entitlements. On 8 December 2008, the respondent wrote to the complainant indicating a return to work date of 14 January 2009.
3.6 The respondent submitted that it engaged with the complainant's former representative who indicated that he would revert once he was in receipt of a definite instruction. The respondent submitted that the next contact with the complainant was when it received a copy of the completed complaint forms directly from her on 13 February 2009.
3.7 The respondent submitted that given that it had no specific response from the complainant on the return to work issue, it wrote to her on 18 February 2009 outlining the date when the complainant was expected to return to work and concluding that unless a return to work date was given within a reasonable period, it would be forced to consider a range of options, up to and including possible dismissal. The complainant responded by indicating that she had sought the assistance of the Equality Tribunal and would revert in due course.
3.8 The respondent submitted that it wrote once again on 26 February 2009 seeking a return to work date and indicating to the complainant that she was now considered to be absent without leave since 14 January 2009. The complainant responded on 9 March 2009 giving details of her new representative and indicating that he would be in contact in due course.
3.9 The respondent submitted that, given that no correspondence was forthcoming from the complainant's representative, it wrote to her on 24 March 2009 requesting that she attend a meeting along with the representative of her choice on 20 April 2009.
3.10 The respondent submitted that the meeting of 20 April 2009 was preceded by receipt of a letter seeking the possibility of an overall settlement and concluded by placing the respondent on warning of a further possible claim for discrimination in the event of complainant's employment being terminated.
3.11 The respondent submitted that at the meeting, the complainant submitted that the Union had failed to give serious consideration to her request for home working and that this was discriminatory. The respondent in its turn pointed out that there was an absolute and urgent need for the complainant to return to carry out her full range of duties in the Head Office as stipulated in her contract of employment and sought a commitment to an early return to work date. The respondent submitted that the complainant indicated that she would not be able to comply with such a request and enquired as to the possibility of a financial severance package. The respondent indicated that it would take this back to the National Executive Committee.
3.12 The respondent submitted that the National Executive Committee refused the request and that given that the complainant stated that she could not comply with her obligations under contract, it was deemed that the contract of employment had been frustrated and that the termination of employment would occur with immediate effect. This decision was communicated to the complainant on 20 May 2009.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent treated the complainant in a discriminatory fashion and dismissed her in a victimisatory manner on grounds of gender and family status, in terms of sections 6 and 74 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.4 At the outset of the hearing, the complainant made the case that flexible working practices encompassed part-time working, flexi-hours and working from home. The complainant was asked to indicate specifically whether anyone of a different gender or a different family status had been granted a request to work from home or even whether serious consideration had been given to that possibility for anyone else. In response, the complainant indicated that they would not be in a position to know this information and that only the respondent would be aware of that information, but suggested that a (named) female union representative may have been allowed to work from home.
4.5 The respondent indicated that no other employees were working from home and that although the named female representative may on occasion have answered her mobile phone from home in the evenings, she was not working from home but was a union representative (a separate category of worker) who was out on the road providing services to members at various locations.
4.6 No additional information was forthcoming from the complainant and in the circumstances I do not consider that the complainant has established facts from which discrimination may be inferred. As no prima facie case has been established, no onus to rebut an inference of discrimination shifts onto the respondent, and this element of the complaint fails.
4.7 Two witnesses for the respondent gave independent evidence regarding the meeting of 20 April 2009. Both witnesses were clear that the thrust of the meeting was that the complainant was not in a position to return to work unless and until she was afforded the facility to work from home. The witnesses both indicated that the meeting concluded with only two options being given to the respondent, either facilitate working from home or agree some form of financial settlement for the complainant. The complainant denied that this was the case but provided no alternative account of the meeting. The respondent stated that these options were put to its executive council who were not in a position to accede to the complainant's request. Given the continued failure of the complainant to return to work, the respondent argued that the complainant had frustrated her contract of employment and issued her P45 to her.
4.8 It is not for me to consider whether the complainant frustrated her contract or whether she was treated unfairly, but rather, to consider whether she was treated in a victimisatory fashion.
4.9 In relation to the termination of the complainant's employment, taking a claim to the Tribunal does not absolve a complainant of the obligation to engage with their employer in order to resolve a disagreement such as this one. I am satisfied that the complainant's dismissal arose as a result of her failure to return to work and her failure to engage in a meaningful way with her employer. The Tribunal was invited to infer a victimisatory motive for the termination from the facts outlined to it. Having considered all the evidence before me, particularly the respondent's efforts to engage with the complainant, I do not find that a victimisatory motive has been established upon which termination of the employment relationship was based, therefore this element of the complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the gender ground has not been established and this complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the family status ground has not been established and this complaint fails.
5.3 Having considered all the written and oral evidence presented to me, I find that a prima facie case of victimisation dismissal has not been established and this complaint fails.
Conor Stokes
Equality Officer
26 October 2011