Equality Officer Decision No: DEC-E/2011/199
Parties
Medrano
(Represented by John Curran BL)
And
GEOS Ireland Ltd.
File No: EE/2008/653
Date of issue: 26 October, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8, 14A & 74 -gender - maternity- discriminatory treatment - harassment- victimisation - prima facie case - rebuttal - cultural differences.
1. DISPUTE
This dispute involves claims by Ms. Nerea Medrano that she was (i) discriminated against by the respondent on grounds of gender, marital status and family status, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 8 of those Acts in relation to her conditions of employment, (ii) harassed by the respondent on grounds of gender, marital status and family status, in terms of section 6(2) of the Employment Equality Acts 1998 -2008 and contrary to section 14A of those Acts and (iii) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008. She also contends that she performed "like work" with a named male comparator in terms of section 7 of the Employment Equality Acts, 1998-2008 and is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with sections 19 of those Acts.
2. BACKGROUND
2.1 The complainant states that she commenced employment with the respondent as Manager of its Dublin Office in February, 2004. She contends that she was treated unlawfully contrary to the Employment Equality Acts, 1998-2008 when she returned from maternity leave in January, 2007 until she commenced her second period of maternity leave in October, 2008. She also states that she performs "like work" in terms of section 7 of the Acts with a named male comparator (Mr. Z) and is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with sections 19 of those Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 6 October, 2008. In accordance with his powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 16 March, 2011, the date the complaint was delegated to me. Both parties had filed submissions by that stage and both had legal representation. I wrote to the legal representatives on 13 April, 2011 advising that the Hearing on the complaint would take place on 16 June, 2011. The solicitors on record for the respondent advised me by letter 29 April, 2011 that it was no longer representing the respondent and provided me with contact details for Ms. T - who had been GEOS Regional Director for Europe. I contacted Ms. T at the e-mail address given and she responded on 3 May, 2011 advising that she no longer worked for the respondent and suggested I should contact Mr. X - who was located in Japan. I e-mailed Mr. X on 4 May, 2011 setting out the circumstances of the complaint and advising of the Hearing arrangements. Mr. X replied on 24 May, 2011 informing me that he had no function or responsibility for GEOS Ireland.
2.3 On receipt of the above e-mail I checked the status of GEOS Ireland on the database in the Companies Registration Office (CRO) and noted that its current status was recorded as "Active". I wrote to the respondent at the registered address of the company contained on the CRO website by registered and ordinary post. The complainant attended the Hearing at the date and time scheduled. The respondent neither attended nor was represented although the contents of the submission filed on behalf of the respondent were put to the complainant by me during the Hearing. I was satisfied that I had made all reasonable efforts to put the respondent on notice of the Hearing and I proceeded as scheduled on the day. On foot of her evidence at the Hearing the complainant was requested by the Equality Officer to submit certain documentation and she did so in late July, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that the respondent operates as an English Language School and is part of an international group that specialises in the provision of English language training for students. She adds that she commenced employment with the respondent as Manager of its Dublin Office in February, 2004. She adds that role comprised-
Overall responsibility for all aspects of the respondent's Irish operations both administrative and academic including staff management and recruitment, customer service, student welfare, budgeting, financial planning/management and marketing activities.
Responsibility for the preparation and delivery of financial and management reports to the respondent's European Director as necessary as well as to the respondent's Head Office in Japan.
Ensuring that the Dublin school maintained the necessary levels of excellence to enable it retain the necessary internationally recognised accreditation as regards academic and student accommodation standards.
The complainant states that there was no overlapping period between her and her predecessor to facilitate a handover of the post and she (the complainant) only became aware of the serious financial situation of the Dublin Office a few weeks into her employment.
3.2 The complainant states that she took her first period of maternity leave from 15 June, 2007 until 7 January, 2008. She adds that it was common practice within the respondent that the company owner and CEO (Mr. K) - who was located in Japan - would hold a Video Conferencing meeting every month with other senior personnel in the company as well as the Office Managers of the various offices in Europe. She states that one such Video Conferencing meeting took place on 16 April, 2008, three months after the complainant had returned to work following her maternity leave. The complainant adds that in the course of this meeting Mr. K blamed her for the poor performance of the Dublin Office during 2007 saying that "the figures didn't lie" and described her as the "weakest Manager of the European Region". The complainant states that from a cultural perspective it was not permissible to interrupt Mr. K when he was speaking and she was not given the opportunity to express her views on his comments subsequently. The complainant states that she raised the issue the next day with the European Director (Ms. T) who was her Line Manager in the course of a discussion through Skype. The complainant adds that in the course of this conversation Ms. T told her that Mr. K must have forgotten she (the complainant) was out of work on maternity leave for six months and he had not seen her for a year as she had missed a meeting in Turkey in early 2007. The complainant accepts that she missed this meeting but her absence was due to an illness during her pregnancy. The complainant further states that when she expressed her concern about the treatment of her Ms. T responded "you never saw what he once said to me". The complainant states that she took this comment to be an indication from Ms. T that she (the complainant) should not complain and consequently, she did not bring the matter any further at that time.
3.3 The complainant states that she was scheduled to attend a Meeting in Paris on 9/10 June, 2008. She adds that the weekend before the meeting was to take place she took ill and attended hospital when she was diagnosed with a vomiting bug. She was four months pregnant on her second baby at that time and the hospital advised that she should not fly pending clearance from her own GP. The complainant states that she informed Ms. T of this and when she received the all clear on the morning of 10 June she offered to travel but was told by Ms. T not to bother as it was too late. The complainant states that the monthly Video Conferencing meeting with Mr. K, senior personnel and the Managers of the European Offices took place on 11 June, 2008. She adds that in the course of this meeting Mr. K criticised the complainant for her performance, saying that she was a poor Manager and that she missed meetings because of her baby. The complainant adds Mr. K went on to say that other women have babies and don't miss meetings, that staff cannot learn if they do not participate in these meetings and that he did not want her to continue as Manager. The complainant states that the meeting to which Mr. K was referring to was meeting in Mexico in February, 2008 which she did not attend. She adds that prior to this meeting Ms. T had given her permission to be absent because (i) the complainant was breastfeeding her baby and (ii) there was a shortage of staff in Dublin and the complainant was under significant pressure. The complainant states she believed what Mr. K was saying was that she should resign her position but she was not prepared to do so. The complainant adds that she decided not to take the matter further at that stage. The complainant submits that the alleged behaviour of the respondent constitutes less favourable treatment and/or harassment of her on the grounds cited contrary to the Acts.
3.4 The complainant states that she received salary increases in each of the years 2005-2007 without any real problems. She adds that she was not aware of any formal policy on salary increases - there was never any appraisal process - and it appeared to her that the matter of salary increase only became a live issue when she raised it. The complainant states that she followed the same process in 2008 and met with Ms. T on 2 April, 2008 to discus the matter. She adds that Ms. T informed her she would not receive a salary increase that year as (i) she (the complainant) had only worked six months the previous year due to her absence on maternity leave and (ii) the company was in poor financial shape. The complainant states that she did not receive a salary increase for 2008 but adds that Mr. Z, who was recruited to cover her absence on maternity leave, received an annual salary of €48,200. The complainant contends that she performed "like work" with Mr. Z, in terms of section 7 of the Employment Equality Acts, 1998-2008 and she therefore entitled to the same rate of remuneration as paid by the respondent to Mr. Z in accordance with section 19 of those Acts. The complainant rejects the respondent's assertion that Mr. Z was more experienced than her and was therefore able to negotiate a higher rate of remuneration prior to taking the post. She adds that she had been involved in the early part of the recruitment process of Mr. Z, shortlisting candidates etc., but her involvement was limited by Ms. T, who ultimately interviewed and appointed Mr. Z without any real discussion with the complainant. She adds that this is contrary to what happened in other Offices and is different to her own appointment when she had been interviewed by her predecessor. She further states that it is at total variance with her involvement in the recruitment and appointment of Ms. H (who was a Director of Studies) in the Dublin Office. The complainant asserts that this secrecy was intended to keep her "in the dark" about Mr. Z's rate of remuneration.
3.5 The complainant states that there was no formal Grievance Procedure or Harassment Policy in operation in the respondent organisation. She adds that notwithstanding this, she e-mailed Ms. T on 3 July, 2008 registering a formal complaint about the manner in which Mr. K had treated her in the course of the Video Conferencing meetings in April and June. The complainant states that she met with Ms. T on 10 July, 2008 in the Dublin Office and during the course of this conversation Ms. T informed her that she (Ms. T) was trying to clarify the matters so that she could pass the matter on to her Line Manager (Ms. M) who was located in Japan. The complainant adds that she clarified her position to Ms. T but she felt that instead of treating her grievance seriously Ms. T tried instead to suggest, in the first instance, that she (the complainant) may have misheard Mr. K on both occasions. The complainant states that when this did not work Ms. T attempted to excuse Mr. K's behaviour adding that as he was Japanese he may not have meant to say what he did and she (Ms. T) was sure that the complainant's colleagues would not think any less of her for his comments.
3.6 The complainant states that she received a written response from Ms. T on 25 July, 2008 wherein she re-iterated what she had said to her on 10 July, 2008. The complainant further states that in addition to this, Ms. T indicated to her that as the Dublin Office was in financial trouble Mr. K, not unreasonably, held her responsible for the Office's poor performance and his comments were made in that context. The complainant adds that Ms. T also stated that in Japanese culture generally it is "not unusual for the CEO to show his displeasure very directly and to seek to improve employees' performances by criticising their performance and demanding improvement." She adds that Ms. T also advised that "it is accepted as employees of a Japanese company with international staff that there will be clashes of culture". The complainant accepts that the Dublin Office was loss making in 2007 but states that she had inherited a substantial loss from her predecessor's time as Manager and in addition, the overheads which the Office had to cope with were excessive and the student numbers would not provide a basis for a reduction in the loss. The complainant states that the Office in Brighton, England also made a loss in 2007 and the Manager there (Mr. D) was not subjected to the same treatment as she was by Mr. K. The complainant states that she was not particularly happy with Ms. T's response and she took some time to consider its contents. She adds that Ms. T was aware of her second pregnancy - she had advised her of same in the course of their meeting on 2 April, 2008 - and she (the complainant) e-mailed Ms. T on 1 August, 2008 advising her of when she (the complainant) proposed to commence her maternity leave - i.e. 16 October, 2008.
3.7 The complainant states that from the date she received Ms. T's response to her complaint she (the complainant) began to experience a change in attitude towards her by Ms. T. The complainant adds that Ms. T began to take a more "hands on" interest in the daily activities of the Dublin Office and began to micro manage her. The complainant states in particular that when she (Ms. T) visited on 5 August, 2008 she requested the complainant to assist in the recruitment of her (the complainant's) replacement for maternity leave and then she (Ms. T) proceeded to conduct the rest of the selection process, including the interview and appointment of Mr. Z, herself - which is contrary to previous occasions. The complainant states that she had previously had full responsibility for the recruitment of Ms. H - Director of Studies for the Dublin Office. The complainant adds that Ms. T left the Office on 5 August, 2008 without saying goodbye and when she (the complainant) e-mailed her the next day mentioning this as she wanted Ms. T to sign her maternity benefit form, Ms. T responded in a very aggressive manner. The complainant states that it seemed to her that instead of investigating her complaint Ms. T (and Ms. M) did not raise the matter at all with Mr. K and instead began to penalise her for having raised the matter in the first instance.
3.8 The complainant states that she replied to Ms. T's e-mail (of 25 July, 2008) on 12 August, 2008 expressing her dissatisfaction with the contents of the e-mail and re-iterating her view that Mr. K unfairly criticised her performance and ability to be a Manager and had made express reference to her child and pregnancy. The complainant adds that she also expressed her strong concern that she was supposed to accept Mr. K's management style as a clash of cultures and learn to live with it. She states that she asked that her complaint be brought to the attention of Mr. K and sought confirmation of how she might expect to be treated by him in the future. The complainant states that she was on annual leave for a week and on her return to work on 3 September, 2008 she was informed by Ms. T that she had interviewed and recruited Mr. Z during the complainant's absence. She adds that Ms. T refused to furnish her with details of Mr. Z's terms and conditions to enable her (the complainant) have his details put on the payroll and states that this was indicative of Ms. T's approach to her during this period. The complainant states that she received an e-mail from Ms. T on 23 September, 2008 advising when Mr. Z was commencing and that he was currently in the UK meeting the Senior Managers of the European Region. She adds that she decided not to pursue the matter further as it was clear that she was being deliberately excluded. It is submitted on behalf of the complainant that this constitutes victimisation of her contrary to the Acts.
3.9 The complainant states that when she did not receive any response to her e-mail of 12 August, 2008 to Ms. T she sent her a reminder e-mail on 3 September, 2008. The complainant adds Ms. T replied on 5 September, 2008 advising that the matter was being handled by Ms. M and that she would respond direct to her. The complainant states that she received a reply from Ms. M on 29 September, 2008 in which she (i) re-iterated the point that Japanese culture accounted for the behaviour of Mr. K comparing his comments to a parent scolding a naughty child in a supermarket, (ii) restated that it was the Manager who will be held accountable for the performance of an individual Office and (iii) apologised on his behalf if the complainant considered his comments to be offensive or a personal attack on her integrity. The complainant states that she was due to go on maternity leave on 16 October, 2008 and although she was not satisfied with the reply she decided not to pursue it further as she felt it was going nowhere.
3.10 The complainant states that Mr. Z commenced employment on 6 October, 2008 and there was to be a hand-over period before she commenced maternity leave. She adds that she attended her doctor the following day and was advised to cease work immediately, which she did. The complainant adds that following this visit she returned to the Office for a couple of hours and gave Mr. Z as much information as she could before going home. The complainant states that she was a signatory on the Office cheque book and returned to the Office on 14 October, 2008 to ensure there were sufficient cheques to cover payments. She adds that she was told Ms. T was on her way to Dublin to make the necessary arrangements with the Bank to have Mr. Z included as an authorised signatory instead of the complainant. The complainant states that this is in stark contrast to the length of time it took Ms. T to make similar arrangements when she (the complainant) commenced with the respondent. The complainant adds that Mr. Z behaved in a hostile manner towards her and had already contacted the clients and agents of the Dublin Office advising that he was in charge and all information should be routed through him. The complainant submits that these are further examples of alleged victimisation she was subjected to by the respondent. The complainant states that she resumed work following her second period of maternity leave on 28 August, 2009 and that there were no problems on her return. She adds that she went on sick leave in early October, 2009 and did not return to work again prior to the termination of her employment by way of redundancy at end of May, 2010.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It agrees (i) with the complainant's description of its functions, (ii) that the complainant was employed by it as Manager of its Dublin Office and (iii) that she commenced employment in February, 2004. It states that it is a Japanese company and in that regard some cultural differences ought to be noted. It adds that the owner (Mr. K) operates in a manner which can appear rather robust to Europeans and his behaviour is never meant to be taken personally. It adds that this is known to all Managers within the organisation and is a matter which would have become quickly apparent to the complainant on contact with Mr. K.
4.2 The respondent states that Mr. K made no reference to the complainant's gender, marital status or family status in the course of the Video Conferencing meeting on 16 April, 2008. It adds that any comments made by him in terms of the 2007 financial performance of the Dublin Office cannot be taken in isolation, as the Office had also made losses in each of the previous three years when the complainant was Manager and was not on maternity leave. The respondent adds that the remarks made by Mr. K are the type of robust comments made by Japanese managers on occasion and were later apologised for. The respondent offers a similar explanation for any comments made by Mr. K in the course of the second Video Conferencing meeting on 11 June, 2008.
4.3 The respondent submits that the complainant's e-mail of 3 July, 2008 was not a complaint of harassment or discrimination, rather it was a complaint which focussed on two issues - the threat to her position and her salary increase for 2008. The respondent adds that on receipt of this complaint Ms. T met with the complainant in Dublin on 10 July, 2008 to discuss the matter with her. The respondent labels the note of this meeting which was prepared by the complainant and appended to her submission to the Tribunal as "a highly editorialised account" of that meeting. It submits that the concerns raised by the complainant were addressed by Ms. T in the course of that meeting and re-affirmed this in her e-mail of 25 July, 2008. The respondent therefore expresses surprise as to why the complainant e-mailed Ms. T on 12 August, 2008 in the matter. The respondent submits that this second e-mail did not make a complaint of discrimination or harassment, although it sought confirmation (for the first time) whether or not her complaint had been brought to the attention of Mr. K. The respondent states that this second e-mail was passed onto Ms. M (who was Ms. T's Line Manager) and she replied to the complainant on 29 September, 2008 setting out an apology on behalf of Mr. K and reassuring the complainant of her position within the organisation. It is submitted on behalf of the respondent that this response, coupled with the initial response of Ms. T, addressed the complainant's concerns and allayed her fears.
4.4 The respondent states that the appointment of an Acting Manager to cover her period of maternity leave was a matter for Ms. T and not the complainant. It adds however, that Ms. T was keen to involve the complainant in the process and she sought her views in the vetting candidates CV's. It further states that it was envisaged that Ms. T would conduct the interviews, although it was her (Ms. T's) intention that the complainant would meet the candidates. The respondent accepts that the interviews were scheduled for the first week in September, 2008, following the complainant's return from leave. It adds that Mr. Z, who both Ms. T and the complainant had agreed was the pre-eminent candidate, was available during the complainant's leave and Ms. T, who was busy around that time, agreed to interview him early. The respondent accepts that Ms. T should have advised the complainant of events and that this did not happen and notes that Ms. T apologised to the complainant for that omission. The respondent states that the decision to appoint Mr. Z was taken in Japan, on Ms. T's recommendation and there were issues to be resolved before any offer was made as Mr. Z was leaving a full-time job to take up the post. The respondent rejects the assertion that there was an attempt on its part to exclude the complainant from this process and submits that there is no nexus between her lodging her formal complaint and the events surrounding the appointment of Mr. Z. The respondent accepts that the complainant had been more centrally involved in the recruitment and appointment of Ms. H but states that the appointments at issue were not similar - the appointment of Mr. Z was to a more senior position (Manager level) and thus the overall responsibility lay with Ms. T. The respondent further states that there were good operational reasons for replacing the complainant as a signatory on the company cheque book as she was to be absent for at least six months. It rejects the assertion that it acted with any undue haste in this regard and states that she was re-instated as a signatory on her return from maternity leave. Finally, the respondent rejects the assertion that Mr. Z treated her in a hostile manner towards her and submits that he was Acting Manager at the time and therefore entitled to make whatever arrangements he considered appropriate to discharge that role.
4.5 The respondent rejects the existence of "like work" between the complainant and Mr. Z asserting that he had greater skill in terms of marketing and website development and consequently, it was intended he would be involved in a once-off development on the respondent's website. It accepts that it paid Mr. Z a higher level of remuneration to that of the complainant but states that there are objective factors which give rise to that differential. It adds, in this regard, that Mr. Z was a highly qualified and highly experienced candidate who pressed for a salary of €50k but eventually accepted €48k. The respondent further states that the comparator sought a higher salary because the contract involved was for a fixed-term, adding that such a situation would not have arisen if the contract was permanent in nature.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not (i) the respondent discriminated against the complainant on grounds of gender, marital status and family status, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 8 of those Acts in relation to her conditions of employment, (ii) the respondent harassed the complainant on grounds of gender, marital status and family status, in terms of section 6(2) of the Employment Equality Acts 1998 -2008 and contrary to section 14A of those Acts, (iii) the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and (iv) the complainant performed "like work" with a named male comparator in terms of section 7 of the Employment Equality Acts, 1998-2008 and is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with sections 19 of those Acts. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that he was treated unlawfully contrary to the Acts. 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. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.3 The complainant submits that the treatment of her by Mr. K in the course of the Video Conferencing meetings of 16 April, 2008 and 11 June, 2008 constitute (i) less favourable treatment and/or (ii) harassment of her on the discriminatory grounds cited. The complainant states that Mr. K criticised her in the course of these meetings and based his criticism specifically on the fact that she had been absent from work on maternity leave. It is well established that pregnancy and matters connected therewith are issues which are uniquely female and therefore less favourable treatment on grounds of pregnancy/maternity constitutes direct discrimination on grounds of gender. It is submitted on behalf of the respondent that Mr. K made no reference to the complainant's gender, marital or family status in the course of either of these meetings. However, the complainant submitted a transcript of the Skype phone conversation between her and Ms. T on 17 April, 2008 (after the first Video Conferencing meeting) wherein reference is made to Mr. K's comments about the complainant's pregnancy and maternity leave. I further note an e-mail to the complainant from Mr. D on 11 April, 2008 (the afternoon of the second Video Conferencing meeting) where reference is made to similar remarks. I am therefore satisfied that the comments were made by Mr. K as asserted by the complainant. It is the respondent's evidence that these remarks were made in an effort to address what Mr. K perceived as the complainant's underperformance given the Dublin Office was operating at a financial loss for some time and this situation had deteriorated in 2007. The complainant states that the respondent's Brighton Office also suffered a loss in 2007 and the Manager (Mr. D), who is a single male, was not subjected to the same treatment as her. In light of the foregoing I find that the complainant has established a prima facie case of discrimination on grounds of gender and family status and the burden of proof shift to the respondent to demonstrate that the principle of equal treatment has not been infringed. However, I am not satisfied that the complainant has established a prima facie case of discrimination on grounds of marital status contrary to the Acts and this element of her complaint fails.
5.4 Having found that the complainant has established a prima facie case of discrimination the burden of proof shifts to the respondent to demonstrate that there was no breach of the principle of equal treatment. In essence what the respondent offers (through its written submission) by way of rebuttal evidence on this issue is that as owner and CEO of a Japanese company Mr. K addresses what he perceives as underperformance in a manner that might be perceived as robust to Europeans and that such behaviour or management style is premised on cultural differences. It adds that this behaviour is never meant to be taken personally, that this is known to all Managers within the organisation and is a matter which would have become quickly apparent to the complainant on contact with Mr. K. I do not accept the respondent's submission in this regard. Firstly, it is well established that intent, or the lack thereof, is no defence to behaving in a discriminatory manner. Secondly, the complainant was employed by an Irish registered company and is therefore entitled to the protection of Irish employment statutes. These include the right not to be treated in a less favourable manner on the basis of particular characteristics, in this instance primarily because she had availed of her statutory entitlement to maternity leave on the birth of her baby. It is clear that the Dublin Office was experiencing significant financial difficulties but it should be noted that the Office was in financial difficulty before the complainant was appointed, although the level of debt increased during her period as Manager. Should this exacerbation of the financial predicament of the Dublin Office be as a direct consequence of the complainant's underperformance - which is essentially what Mr. K was suggesting - then it was open to the respondent to address any alleged underperformance in the appropriate manner by raising them privately with the complainant, an approach which one might expect a reasonable employer to adopt. Instead, the respondent (Mr. K) decided to raise the issue in a public forum in front of the complainant's peers and seeks to excuse this behaviour by putting it down to cultural differences. In light of the foregoing I do not accept that this discharges the burden of proof required of the respondent. Moreover, the probative value of the respondent's evidence is significantly diminished as a result of the its failure to attend the Hearing and give direct evidence on these matters. Accordingly, the complainant is entitled to succeed in this element of her complaint.
5.5 I shall now address the harassment element of the complainant's case - that she was harassed on the grounds of gender, family status and marital status contrary to the Acts. Section 14A of the Acts defines harassment as follows:
"any form of unwanted conduct related to any of the discriminatory grounds....
Being conduct which... has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."
Having carefully considered the evidence adduced by the complainant on this matter I have no hesitation in concluding the Mr. K's comments amount to harassment of her on grounds of gender and family status contrary to the Acts. However, she has not established facts from which it could be inferred that she was subjected to harassment on the grounds of her marital status.
Once a prima facie case of harassment is made out by a complainant, the respondent is fixed with liability for the unlawful behaviour unless it can avail of the defence provided at section 14A(2) of the Acts. The Labour Court has previously held that in order for an employer to avail of this defence it must show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to staff. I am satisfied that no such policy was in existence at the time. Moreover, once the complainant aired her grievance about the treatment of her by Mr. K the respondent made no realistic effort to address the matter and sought, through Ms. T and Ms. M, to justify Mr. K's behaviour by stating it was his normal management style and that this was premised on the fact that Japanese managers generally display their displeasure with an employee in those terms. In all of the circumstances I find that the respondent cannot avail of the defence at section 14A(2) of the Acts and the complainant is entitled to succeed in this element of her complaint.
5.6 The complainant submits that the treatment of her by Ms. T and Mr. Z following her making her complaint on 3 July, 2008 constitute victimisation of her contrary to the Acts. In particular she refers to (i) her exclusion from the recruitment of Mr. Z, (ii) the manner in which she was removed as a signatory on the Dublin Office account and (iii) the hostile manner in which Mr. Z behaved towards her on her visit to the Office on 14 October, 2008. The respondent states that the appointment of Mr. Z was to a more senior position and thus the overall responsibility lay with Ms. T, although she was keen to involve the complainant in the process and did so at the screening of candidate stage. It adds whilst the complainant had been more centrally involved in the recruitment and appointment of Ms. H, this was an appointment to a position of a lower grade in the organisation and was therefore more appropriate that she have the level of involvement she did as Office Manager. The respondent rejects the assertion that it acted with any undue haste in replacing the complainant as a signatory on the Office cheque book stating that there were good operational reasons for it actions. It further rejects the assertion Mr. Z treated her in a hostile manner towards her and submits that he was Acting Manager at the time and therefore entitled to make whatever arrangements he considered appropriate to discharge that role.
5.7 In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have take action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. Having carefully considered the totality of the evidence adduced by the parties on this matter I am satisfied that each of the incidents mentioned are equally capable of the innocent explanation adduced by the respondent and on balance, I find that the complainant was not adversely treated by the respondent. It follows therefore that she has failed to establish a prima facie case of victimisation contrary to the Acts.
5.8 The complainant contends that she performed "like work" with Mr. Z, in terms of section 7 of the Employment Equality Acts, 1998-2008 and she therefore entitled to the same rate of remuneration as paid by the respondent to Mr. Z in accordance with section 19 of those Acts. The complainant rejects the respondent's assertion that Mr. Z was more experienced than her and was therefore able to negotiate a higher rate of remuneration prior to taking the post. An entitlement to equal pay is premised, in the first instance, on the complainant and Mr. Z performing "like work" in terms of section 7 of the Acts. The complainant set out an overview of her duties in the submission filed with the Tribunal on 16 July, 2009. The respondent received a copy of this submission and did not take issue with the complainant's synopsis of her role in replying to same. It stated however, that given Mr. Z's experience in marketing and website development it was envisaged he would have involvement with a once-off project in that area. No further details of the project were furnished. The Labour Court held on a number of occasions that since the facts necessary to prove an explanation that a process was free from discrimination can only be in the possession of the respondent that Court (and therefore this Tribunal) should expect cogent evidence to discharge the burden of proof placed on an employer. The respondent has adduced no such evidence in support of its assertion. Moreover, I have examined the advertisement placed on the employment agency website seeking applications for the temporary vacancy created as a result of the complainant's absence on maternity leave. Whilst the tasks involved are provided in more detail on this advertisement it is, in essence, identical to the overview given by the complainant as regards her post (set out at paragraph 3.1 above). In light of the foregoing I find that the complainant and Mr. Z performed "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008.
5.9 However, the existence of "like work" between them does not, of itself, extend to an automatic entitlement to equal remuneration. Section 19(5) of the Acts provides an absolute defence to the employer if it can show that the difference between the rates of remuneration is attributable to factors unconnected with the gender of the complainant and comparator. In the instant case the respondent states that that Mr. Z was a highly qualified and highly experienced candidate who pressed for a salary of €50k but eventually accepted €48k. The respondent further states that the comparator sought a higher salary because the contract involved was for a fixed-term, adding that such a situation would not have arisen if the contract was permanent in nature. The respondent accepts that the complainant received €46k per annum. As section 19(5) of the Acts permits a departure from the principle of equal treatment the respondent must "prove that the differentiation is genuinely attributable to grounds other than sex" . The respondent furnished no evidence to support its assertion in this regard and I find that it cannot avail of the defence at section 19(5) of the Acts. Consequently, the complainant is entitled to the same rate of remuneration as paid to the comparator in accordance with section 19(1) of the Employment Equality Acts, 1998-2008.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the respondent discriminated against the complainant on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts 1998- 2008 and contrary to section 8 of those Acts in respect of her conditions of employment,
(ii) the complainant has failed to establish a prima facie case of discrimination on grounds of marital status age in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts in respect of her conditions of employment.
. (iii) the respondent harassed the complainant on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 14A of those Acts
(iv) the complainant has failed to establish a prima facie case of harassment on grounds of marital status, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 14A of those Acts
(v) the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts 1998-2008.
(vi) the complainant performed "like work" with a named male comparator (Mr. Z) in terms of section 7 of the Employment Equality Acts, 1998-2008 Equality Acts, 1998-2008 and is therefore entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 19 of those Acts.
6.2 I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 the following-
(i) that the respondent pay to the complainant the sum of €30,000 by way of compensation for the distress suffered and the effects of the discrimination and harassment on her. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
(ii) that the respondent pay the complainant the same rate of remuneration (€48,200) as paid by it to Mr. Z with effect from 1 October, 2008 and that it pay her the appropriate arrears of remuneration from that date, having regard to the provisions of any maternity leave and sick leave policy that may have existed at that time, until the cessation of her employment in May, 2010.
_______________________________
Vivian Jackson
Equality Officer
26 October, 2011