EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012 - 191
PARTIES
Ms Rachel McCarthy
(represented by Ronan Daly Jermyn, solicitors)
and
Niscayah Ltd.
(represented by IBEC)
File Reference: EE/2009/432
Date of Issue: 21st December, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(a), Gender - Section 6(2)(b),Marital Status - Section 6(2)(c), Family Status - Section 6(2)(f), Age - Section 8(1)(b), conditions of employment - Section 8(6)(c), Dismissal - Section 74(2), Victimisation - change in maternity leave policy - whether redundancy tainted by discrimination and/or victimisation
1. Dispute
1.1. This case concerns a complaint by Ms Rachel McCarthy, hereinafter referred to as "the complainant", that she was discriminated against by Niscayah Ltd., hereinafter referred to as "the respondent", on the grounds of gender, marital status, family status and age, contrary to sections 6(2)(a), (b), (c) and (f) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to dismissal, contrary to Section 8(1)(b), Section 8(6)(c) of the Acts, and that she was victimised by the respondent contrary to Section 74(2) of the Acts.
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 29th June, 2009, alleging that the respondent had discriminated against her on the grounds of marital status, family status, gender and age and/or that it had victimised her.
2.2. Written submissions were received from both parties. On 4th May, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, 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. Hearings of the complaint were held on 20th June, 2012 and 3rd October, 2012.
3. Summary of the Complainant's case
3.1. The complainant stated that she worked for the respondent as an office administrator from 12th September, 2005 until 12th December, 2008. She stated that she worked in its Cork office (it was a Dublin-based company). She stated that she was on maternity leave from 2nd March, 2007 until 7th October, 2007 and a colleague, Ms A, was hired to replace her for that time. She stated that, upon her return, Ms A was offered a post which she termed "Cash Champion". She stated that this was a more senior post and gave a detailed account of why she considered that to be the case. She stated that she was not invited to apply for this post and thought that this was because she had just returned from maternity leave. She stated that she did not raise concerns about this with the respondent at the time as she was just trying to carry out her tasks to the best of her abilities.
3.2. Nonetheless, the complainant said that she was upset at not being given the chance to apply for the post as she felt it was a promotion 'of sorts'. She said that she wondered why she was not being offered the role and the subsequent training. She added that if she had known that in a couple of months it was going to be used against her when she was dismissed, she absolutely would have requested this further training and would have raised objections to the post being offered to Ms A. She went on to describe the work that she did for the respondent and the work that Ms A did for it and gave an account of the differences and similarities between the two. She submitted that she took parental leave for one day per fortnight.
3.3. The complainant said that, on 6th November, 2008, an employee handbook was presented to the Cork office by Ms B, who was in the respondent's HR Department. She said that she clearly recalled hearing Ms B tell her and her colleagues that their jobs and jobs in Cork in general were safe. She stated that, upon examining the handbook, she noted that proposed changes to the respondent's Maternity Leave policy would leave employees worse off from a financial perspective. In particular, she outlined how she would be affected by these changes, giving an account of the taxation implications that would significantly reduce her take-home pay from the additional maternity benefit provided by the respondent. In addition, she submitted that the benefit would have to be repaid if the person did not return to work for the respondent for at least a year after they completed their maternity leave.
3.4. The complainant stated that this policy was discriminatory in that context, giving a detailed account of the reasons why she considered it to be so. In particular in that respect, she said that she had the benefit of a policy that had become a condition of employment and she expected it to continue. She said that she was not aware of any Cork representative, or any woman, being on the employee forum that discussed the handbook (see par. 4.4 below). She said that she raised objections to this policy in an e-mail to Ms B on Friday, 14th November, 2008.
3.5. The complainant said that, at 15:30 on Monday, 17th November, Mr C, the Manager of the Cork office, asked her whether she was available to attend a meeting "just for a chat".. She denied receiving an e-mail from Mr C in that respect. She said that she never used the e-mail address to which he said he sent it and that there was no e-mail in that inbox when she checked it in any event. She said that she was completely comfortable going into that meeting as a result as she thought it was about the maternity leave policy.
3.6. The complainant said that the meeting took place at 16:00. She gave a detailed account of that meeting. She said that a short time after it commenced she was told that management had made the decision to make her position redundant. She said she was told that this decision was final. She said she was physically shocked by this announcement, particularly as she said she was busier than ever. She said that Mr C and Ms B, who was also present at this meeting, stated that they understood she was in shock and agreed to allow her leave early. However, she said that she stayed on that day.
3.7. The complainant stated that she was made redundant because of her family status, marital status and age and identified a number of comparators in that context who were not made redundant. In particular, she stated that Ms A remained working for the respondent even though her work involved a significant amount of overlap with the complainant's work. Indeed, in that respect, she stated that she spoke with Ms A afterwards and believed that Ms A was carrying out much of the work that she had previously been doing. She also stated that she was dismissed because she had made a complaint about the maternity leave policy. In particular in that respect, she pointed to the coincidence between her raising her objections to the policy and the dismissal which took place on the next working day.
3.8. The complainant submitted that objective criteria were not applied to her redundancy. She stated that others could have been considered for redundancy and gave an account of the reasons why she thought that was the case. She also gave an account of the reasons why she refuted the respondent's arguments that the job she did could be done from Dublin. She said that alternatives were not discussed, such as a reduced working week, and stated that this alternative was offered to other employees after she left. She said that she would have considered part-time work in that context. She also said that she was sceptical about her redundancy appearing in board meeting minutes
3.9. The complainant also said that the cost saving measures implemented by the respondent all occurred after she was made redundant. Furthermore, she stated that some of these cost-cutting measures were usually looked at prior to redundancies being made. She also stated that natural wastage was not a redundancy. She said that the respondent wanted to get rid of her because she was not young, single and without children and that the maternity leave policy was the 'final nail in the coffin'. In that respect, she submitted that her dismissal was both discriminatory and victimisatory. She stated that she was 'gobsmacked' when she was offered a post in Dublin after leaving the respondent's employment (as the respondent knew that working in Dublin did not suit her). She said she did not accept that this showed she was not being discriminated against and this offer was too little, too late.
3.10. The complainant also stated that she felt that, as and from 17th November, she might as well not have been in the office, particularly as far as Mr C was concerned. She explained what she meant by this in giving an account of a number of incidents wherein she submitted that management, in particular Mr C, isolated and ignored her. She submitted that the basis for this unfair and unfavourable treatment was that she raised an issue with the respondent's maternity leave policy and that she was victimised in that context.
3.11. The complainant said that she believed that her redundancy was related to her objection to the respondent's maternity leave policy, particularly as there was such a short turnaround time between raising those objections and being told she was being made redundant. She disagreed that the respondent held her in high regard but considered that she had a good working relationship with everyone she worked with. She stated that she did not accept that the respondent was in troubling financial circumstances. In support of her various submissions, she referred to caselaw, in particular Gardiner -v- Mercer Human Resource Consulting1, Kelly -v- Higgins2, McGarvey -v- Interim Justitia3 and Healy -v- Trailercare4. She stated that her main comparator is Ms A as she, and other employees, were younger and did not have children.
4. Summary of the Respondent's case
4.1. The respondent stated that Ms A carried out the complainant's duties while she was on maternity leave. It stated that the complainant assumed the role she had previously undertaken when she returned. Mr C, who was present at the first hearing but not the second hearing, stated that Ms A was offered the "cash champion" role, which was a new role and which he described. He said it was either offer that role to Ms A or let her go. The respondent said that, while business was good at that time and it had additional administrative work, this was only part-time work and so it gave the role Ms A to allow her to stay on in a full-time role. It said that it did not advertise the post nor did it offer it to the complainant as Ms A was already available to do it. It submitted that it was noteworthy that the complainant never expressed an interest in taking the role at that time.
4.2. The respondent denied that Ms A's role was a more senior role. In particular, it said that the role did not attract a higher salary as Ms A was paid €31,500 and the complainant was paid €32,000. It stated that the complainant's description of the post was correct in certain respects but disputed some of her descriptions of the differences between her role and that of Ms A.
4.3. Ms B, who gave evidence to both hearings, said that a new maternity leave policy was included in a new staff handbook because there had not been a policy in writing up to that point, although there was an entitlement to paid maternity leave. She said that a key rationale for making this change was that they had members of staff who did not come back to work to be able to avail of maternity leave payments and they wanted people to be able to avail of full top-ups only when they were back to work. She stated that the change in the policy was initiated by herself as a HR manager.
4.4. Ms B stated that the changes to all the policies in the new staff handbook were discussed primarily at management level but were also discussed in an employee representative's forum on foot of an earlier draft copy. She stated that she received feedback on the handbook as a whole from this forum but did not receive any questions on the maternity leave policy. She stated that there was neither a woman nor a representative from Cork on that forum. She stated that the complainant was not consulted about that matter prior to the circulation of the handbook in November.
4.5. The respondent stated that there was no entitlement to maternity top-up payments and it was a discretionary benefit in that context. It said that its new policy was intended to encourage people to return to the workplace after their maternity leave. It said that the benefit was still going to be paid. It said that the effect it had on the complainant's taxation situation was outside its control. It added that, with respect to the complainant, the issue was hypothetical as she was never affected by it. It also added that, if she got pregnant within a year of returning to work, she would not have to pay the maternity benefit back. It said that maternity top-up payments had ended last year and no-one objected.
4.6. Ms B denied saying that everybody's job was safe in the meeting on 6th November, 2008. She said that she might have said they were trying to safeguard as many jobs as they could. Mr C said that at no time did Ms B say that. He said that at the time everyone was aware of the economic situation and the topic on the mind of most employees was this and the safety of their jobs. He said that he was asked about it on many occasions since. He added that there was not any prospect of redundancy at the time. The respondent stated that it did not consider Ms A for redundancy over the complainant as they were two completely different roles and the cash champion role was primarily Ms A's.
4.7. Ms B stated that she did not respond to the complainant's e-mail with respect to the maternity leave policy because when she received it, on 14th November, she was aware that the complainant was going to be made redundant and that she was going to be meeting the complainant in Cork the following Monday. She said that it would have been disingenuous for her to discuss it with her in that context. She said that Mr B thought that he had sent the complainant an e-mail to a named e-mail address but the respondent was not in a position to provide a copy of that e-mail to the Tribunal.
4.8. Ms B and Mr C gave accounts of the meeting on 17th November. They stated, inter alia, that they outlined the reasons why the complainant was being made redundant, in particular that her role would be carried out from Dublin. Mr C said that he wasn't aware of the complainant's e-mail about the maternity leave policy until an hour before this meeting and said that they did not make decisions in an hour. The respondent also submitted that the meeting was not given without notice to the complainant as Mr C told her about it on 14th November.
4.9. At the first hearing, Mr C denied that he treated the complainant in an adverse manner as described by her at par. 3.10 above or that he dealt with the complainant any differently after 17th November than he did before that day. At the second hearing, another manager who worked with the complainant gave evidence with respect to the respondent's treatment of her in the workplace. He also denied that this treatment changed after 17th November. The respondent denied that it victimised the complainant in that context.
4.10. The respondent described its difficult financial circumstances to the Tribunal and, in particular, the reduction in its turnover and the accounts it had lost. It stated that these matters were discussed by senior management in October/early November. It stated that the decision was made to cease providing support from the Cork office and to provide service support from Dublin only. It stated that it was a business decision based on subsuming the complainant's role into Dublin. It described the decision-making process it undertook in that respect. In particular, it stated that it looked at the position and the cost savings concerned and discussed the matter through the month of October and into early November.
4.11. The respondent accepted that, generally speaking, the onus was on the employer to preserve the job if possible, but stated that it did not have any alternative roles to offer the complainant. It added that it was not a lay-off situation. It agreed that it did not have any meetings with the complainant beforehand about the matter. It said that the decision to put the redundancy in place was made on 16th October, 2008, and the Board meeting minutes provided to the Tribunal reflect this. It added that the decision was made before the complainant made her maternity leave policy claim.
4.12. The respondent accepted that it had recruited new employees since the complainant had been made redundant but only for critical roles. It gave an account of the cost-saving measures it sought to implement after the complainant was made redundant, including other redundancies. It also submitted that the complainant's position was not the only position that was made redundant at the time as there were a number of positions that became vacant through natural wastage and were subsequently not replaced. It also submitted that it sought to preserve employment and introduced a pay cut amongst other cost-saving measures.
4.13. In summary, the respondent stated that the issue with respect to the maternity leave policy was out of time. It said that employee's terms and conditions can change over time in any event. It said that the decision to make her redundant was made one month before the complainant was informed of the decision and that it had no case to answer with respect to victimisation in that context. It also denied that the complainant's family status, marital status and/or age were factors in the decision to make her redundant. Finally, it said that the same set of circumstances cannot constitute victimisation and discriminatory dismissal.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant(s) to establish, in the first instance, facts upon which he/she/they can rely in asserting that he/she/they 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 Labour Court has consistently stated in this context5 "that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to case and there is no closed category of facts which can be relied upon all that is required is that they be of sufficient significance to raise a presumption of discrimination".
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds..." Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any two persons ..... that one is a man and the other is a woman". Section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows - "as between any two persons that one has family status and the other does not.." Section 6(2)(c) of the Acts defines the discriminatory ground of marital status as follows - "that they are of different marital status.." Section 6(2)(f) of the Acts defines the discriminatory ground of age as follows - "as between any two persons ..... that they are of different ages"..
5.3. Section 74(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to..(a) a complaint of discrimination made by an employee to the employer.." In Tom Barrett v Department of Defence6 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 taken 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.
5.4. The issues for me to decide in this case, then, are whether (i) the complainant was subjected to less favourable treatment in comparison to (an)other person(s) on the grounds of gender with respect to the change the respondent sought to make in its maternity leave policy, (ii) the complainant was subjected to less favourable treatment in comparison to (an)other person(s) on the grounds of family status, marital status and/or age with respect to her dismissal and (iii) whether she was victimised by the respondent with respect to her dismissal. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Maternity Leave Policy
5.5. The complainant submitted that the changes that the respondent sought to implement in its maternity leave policy were discriminatory. However, the complainant was not pregnant at the time and was not directly affected by the policy in that context. The Acts do not apply unless a complainant has been subjected to adverse treatment. While the comparator can, in certain circumstances, be hypothetical, the adverse treatment complained of cannot be. As she was not subjected to any adverse treatment, her claim with respect to direct discrimination in that context cannot succeed.
5.6. Both parties, at my request, made submissions with respect to whether there was indirect discrimination in that context. The complainant submitted that the policy change affected the complainant by preventing her from requesting part-time working arrangements or a reduction in her normal working week without being penalised. While I am satisfied that this is the case, the policy in question only affects women with children and does not impact on anyone else. Furthermore, the issue here is not the implementation of the written policy, but the change that was being made to that policy viz. the restrictions on the eligibility for maternity pay. Again, this change impacts on one group only - women with children. Indirect discrimination does not apply in that case.
5.7. Finally, it should be said that the taxation difference the complainant refers to is not based on any of the grounds, rather on the difference in earnings between herself and a comparator (i.e. the only reason why someone who is not as badly affected by the changes as her is because their income is different to the complainant's). Therefore, the complainant has failed to establish a prima facie case of discrimination with respect to the changes the respondent made to its maternity leave policy.
Dismissal
5.8. It is not contested that the complainant was made redundant and dismissed in that context. The question is whether this dismissal was related to one of the impugned grounds and/or because she made a complaint about the maternity leave policy. It should be noted that it is well established7 that for the purpose of establishing unlawful discrimination the ground relied upon need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground (and/or the victimisation) is anything other than a trivial influence in that decision.
5.9. I note that the principal comparator in the context of whether the dismissal was discriminatory is Ms A, who was younger than the complainant, was single and did not have children. I note that Ms A remained working for the respondent for at least several months after the complainant was dismissed. The respondent stated that her role was completely different from that of the complainant and that it was the complainant's role that was being made redundant. Yet Ms A had carried out the complainant's role while she was away and was only given a different role after she came back from maternity leave. I can see no reason why the complainant could not have been offered the "Cash Champion" role, or at least given the chance to apply for it. Nor could the respondent give any valid reason for this as I do not accept that the post being offered to Ms A simply because she was available is a valid reason in that context.
5.10. The respondent states that the "Cash Champion" role was not a more senior one and points to the remuneration of the parties in that respect. That is a debatable point, but what is clear to me is that, while it was new, it was nonetheless a more critical role in the organisation and I am satisfied that the respondent was aware of this when it offered the post to Ms A. While the complainant has not made a claim in relation to promotion/regrading, the fact that Ms A was offered the job instead of her is critical to my decision as I am satisfied that it shows that the respondent favoured Ms A over the complainant as a general rule.
5.11. The respondent provided a board meeting minute to the Tribunal which appeared to support the respondent's submission that the decision to make the complainant redundant was made prior to 14th November, 2008. It is clear that the respondent was in the early stages of considering implementing cost-saving measures at that stage and I am satisfied that what these cost-cutting measures might be had already been discussed by management at that point.
5.12. I am also satisfied that redundancies were among the cost-saving measures being considered at this point. In particular, I am satisfied that a decision had been made that, if redundancies were to take place, the complainant was to be the first person who would be made redundant. I am satisfied that this decision was influenced by the fact that the respondent, in particular Mr C, sought to ensure that, if someone was to be made redundant within the Cork office, then it would be the complainant rather than Ms A. I am satisfied that the respondent's preference to retain Ms A over the complainant in that context was influenced by her family status. In particular in this respect, I am satisfied that it viewed the complainant as being less productive and effective than Ms A because she had children.
5.13. However, I am satisfied that no decision had been made prior to 14th November, 2008 to actually implement any of these cost-cutting measures, including any redundancies, whether general redundancies or the complainant's redundancy in particular. I am satisfied that, upon receiving the complainant's complaint about the respondent's maternity leave policy, the respondent decided to accelerate the implementation of the cost-saving measures in question by making the complainant redundant. In all the circumstances of the present complaint, I am also satisfied that the complaint by the complainant about the change to the maternity leave policy was a protected act. In that context, the treatment of the complainant described in this paragraph was victimisation.
5.14. In that context, and in all the other circumstances of the present case as they are known to me through my investigation into the matter, I am satisfied that the decision by the respondent to make the complainant redundant was discriminatory on the family status ground. I am satisfied that she was also victimised in the context that she was made redundant earlier than would have been the case had she not made a complaint about changes the respondent sought to make to its maternity leave policy.
5.15. However, in A School -v- A Worker8 the Labour Court stated "it seems to the Court that as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts" Similarly in the present case, with respect to the matters considered in pars. 5.8 to 5.14 above, I consider that the same set of facts relate to both heads of liability. Therefore, and in light of the decision in A School -v- A Worker , it would be ultra vires for me to make two separate awards in that context. In all the circumstances of the present complaint, I consider that the discrimination was the more serious breach of the Acts. I am making my award with respect to the dismissal under that heading.
5.16. In the interests of completeness, it should be said that there is no evidence of any significance to suggest that the respondent discriminated against the complainant on the marital status ground. As regards the age ground, I am not satisfied that the complainant's age was a factor in the decision to dismiss her. In particular in that respect, I note that the difference in age between the complainant and Ms A, in the context of the present complaint, was not significant.
Treatment of complainant by Mr C and other Managers
5.17. I prefer the evidence of the complainant over that of the respondent in so far as she alleges that she was isolated and ignored by Mr C and other managers on or after 17th November, 2008. I am satisfied that this treatment was related to her complaint about the maternity leave policy. Consequently, it was adverse treatment that was related to the taking by her of a protected act. She was also victimised in that context.
Summary
5.18. In short, then, the complainant's claim that the respondent discriminated against her in seeking to implement changes to its maternity leave policy has failed. However, in all the circumstances of the present case as they are known to me through my investigation into the matter, I am satisfied that she was discriminated against with respect to her dismissal by the respondent. I am also satisfied that the timing of this dismissal was accelerated by the fact that she claimed the respondent was seeking to make a discriminatory change to one of its policies and that she was victimised by the respondent in that context. However, I am making one award with respect to discrimination in relation to this aspect of her claim.
5.19. I am also satisfied that the complainant was isolated and ignored and adversely treated by the respondent in terms of its general approach to her after she made her claim about the changes to the maternity leave policy. She was victimised by the respondent in that context also. I am making a separate award for victimisation in that context.
Redress
5.20. The Acts require that I make separate awards for discrimination and victimisation. These awards must be based on the complainant's remuneration at the time she was dismissed, which was approximately €32,000 per year. The award I am making with respect to the discrimination is the approximate equivalent of ten months salary in that respect and, as it is made to compensate the complainant for the distress caused to her as a result of the discrimination by the respondent, it is not in the nature of pay. The award I am making with respect to the victimisation is the approximate equivalent of two months salary in that respect and, as it is made to compensate the complainant for the distress caused to her as a result of the victimisation by the respondent, it is not in the nature of pay.
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:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the gender, age and/or marital status grounds pursuant to section 6(2)(a), (b) and (f) of the Acts in terms of conditions of employment, contrary to s.8(1)(b) of the Acts, and in terms of dismissal contrary to section 8(6)(c) of the Acts.
6.3. I find that the respondent discriminated against the complainant on the family status ground pursuant to section 6(2)(c) of the Acts in terms of dismissal, contrary to s.8(6)(c) of the Acts
6.4. I find that the respondent victimised the complainant in terms of section 74(2) of the Acts.
6.5. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €24,000 in respect of the discrimination. This award is not in the nature of pay and is, therefore, not subject to tax.
6.6. Additionally, pursuant to Section 79(1A) and in accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €5,000 in respect of the victimisation. This award is not in the nature of pay and is, therefore, not subject to tax.
_____________
Gary O'Doherty
Equality Officer
21st December, 2012
1 DEC-EE-2006-007
2 DEC-E2007-002
3 DEC-E2008-041
4 Labour Court, EDA128
5 e.g. Melbury -v- Valpeters, Labour Court Determination No. EDA0917
6 EDA1017
7 See for example UCD v Rath EDA119
8 Determination No. EDA122, Labour Court , 18th January, 2012