The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-020
PARTIES
Marie Cunningham
(Represented by Ms Marguerite Bolger S.C. instructed
by Malcomson Law Solicitors)
AND
Intel Ireland Limited
(Represented by Ms Helen Callanan B.L. instructed by
Eversheds O'Donnell Sweeney)
File reference: EE/2008/836
Date of issue: 22 February 2012
HEADNOTES: Employment Equality Acts - Gender - Access to Employment, Promotion/re-grading, conditions of employment, other, harassment
1. DISPUTE
1.1. This dispute concerns a claim by Ms Marie Cunningham that she was discriminated against by Intel Ireland Limited on the grounds of gender contrary to section 6 of the Employment Equality Acts in relation to access to employment, promotion/re-grading and conditions of employment in terms of section 8, that she was harassed contrary to section 14A of those Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 4 December 2008 under the Employment Equality Acts. On 5 May 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing held over four days on 27 July 2011 and 15, 16 and 19 September 2011. Final information was received on 10 November 2011.
2. PRELIMINARY ISSUE
2.1. The day before the first scheduled day of hearing the respondent requested me to adjourn the hearing until after the complainant's personal injuries proceedings before the High Court had been heard. Because of the closeness to the hearing I was unable to obtain the views of the complainant before the hearing so I dealt with the issue at the hearing. The respondent contended that the two cases are interlinked to the extent that the complainant would not be able to make her case to the Equality Tribunal without reference to her alleged personal injuries and for the "complainant to make the precise same case in this Forum and in the High Court amounts to an abuse of power and a breach of the doctrine of issue estoppel." They contended that if I did not grant an adjournment in these circumstances it would be prejudicial to the proceedings before the High Court and a breach of fair procedures.
2.2. The complainant's representative contended that under section 79 of the Employment Equality Acts which states "Where a case which has been referred to the Director under section 77-
(a) does not fall to be dealt with by way of mediation under section 78, or
(b) falls to be dealt with under this section by virtue of section 78(7),
the Director shall investigate the claim and hear all persons appearing to the Director to be interested and desiring to be heard" the Equality Tribunal has a statutory and mandatory jurisdiction to hear the case.
2.3 Having considered all points made by both parties I informed the parties that it is not unusual for the Tribunal to deal with complainants who have chosen to litigate in other fora including personal injury claims before the High Court. The Equality Tribunal is mindful of its' role and is well aware of the position of the High Court vis-à-vis the Tribunal. The only matter that is for me to decide is whether there has been discrimination as set out in the Acts. Charleton J. clarified the position of the Equality Tribunal in Doherty & Anor -v- South Dublin County Council & Ors, High Court: 2006 131 JR when he stated: "In my judgment it is no function of the High Court, at first instance, to adjudicate on planning matters, to assess income tax, to decide on unfair dismissal or to decide whether there has been unequal treatment." Clearly, my role is to investigate and decide whether there has been unequal treatment under the Employment Equality Acts, I can make no decision in relation to any matters which are outside the statutory powers of the Tribunal and fall to be dealt with in other fora.
2.4 I confirmed that my only function is to investigate a complaint of discrimination. Section 77 (1) of the Employment Equality Acts states "A person who claims ---(a) to have been discriminated against or subjected to victimisation ..... in contravention of this Act may... seek redress by referring the case to the Director." And section 79 of the Acts states that " Where a case has been referred to the Director under section 77--- ..... the Director shall investigate the case and hear all persons appearing to the Director to be interested and desiring to be heard." Accordingly I refused the respondent's request for an adjournment.
3. COMPLAINANT'S SUBMISSION
3.1 The complainant submits that she started working for the respondent on 17 November 1997. Her most recent job was as GER (Greater Europe Region) Workforce Mobility Manager. She managed 20 employees with 12 direct reports, working in 4 countries.
In March 2007 she announced she was pregnant to her manager, Mr A, and she submits that she was subsequently micro-managed by him. Also, she was not allowed to provide a back-up plan for her maternity leave and there were aggressive exchanges between herself and her manager; both face-to-face and via email.
3.2 The complainant submits that she raised her concerns about her Manager to the Global HR services Director, Mr B, and the Matrix Manager, Mr C. They asked her to coach Mr A as he was new to managing a different culture. In May 2007 there was a further aggressive exchange in which stated that he made all the decisions. She reported this to Mr C and asked him to talk to Mr B.
3.3 In June 2007 the complainant went on maternity leave. She submits that she had been due to go in mid July 2007 but went early because of problems related to stress. She did not have time to make formal complainant before going on maternity leave. In January 2008 she raised her concerns about Mr A with her new manager and was told that Mr A no longer worked for the respondent, so there was no point in making a complaint.
3.4 The complainant submits that prior to going on maternity leave she asked to be kept informed of all changes in the organisation and that she was available for queries relating to her work. However, she was not informed that Mr A had left and was replaced by Mr D. Also, she was not informed of an IT issue which would have required her to backup her data. As a result she lost 11 years of valuable data.
3.5 In January 2008, whilst still on maternity leave, she met the new manager, Mr D, who told her that a colleague, Mr E, had concerns over her maternity leave cover, Mr F. She was asked if she thought Mr E could assist Mr F. She indicated that he would need extensive coaching. Mr D asked if she would be interested in other opportunities within HR and she said she was open to going on an international assignment if the right role presented itself. She specifically requested an assignment which would be a minimum of 2 years and something that matched her career development and aspirations. She submits that she clearly indicated that unless such a plan presented itself she wanted to return to her GER Workforce Mobility Manager role.
3.6 In February or March 2008 Mr D sent her details of an international assignment which was not suitable, as it was a technical assistance role and did not match her skills. On 14 March 2008 the complainant submits she received a phone call from Mr D stating there was a maternity leave cover within Mergers and Acquisitions. The complainant submits this was a temporary role which was totally unsuitable to her skills.
3.7 The complainant submits that on 19 March 2008 an email was circulated by Mr D announcing changes to GER mobility, in particular stating the Mr E and Mr F would be running GER mobility jointly until the end of 2008. This email was not formally communicated to the complainant and she found out through a colleague who called to ask if she had resigned. This caused the complainant considerable stress so she contacted Mr D who said he was looking for other roles for her. The complainant reminded him that her plan was to return to her original role unless she accepted another suitable position beforehand.
3.8 In April 2008 the complainant was due to receive her performance review but she was not asked to review her own performance as would be normal practice, in accordance with the respondent's maternity policy. The complainant submits she was successful in her review but only received a 2.6% pay increase compared to the average 3.1% that year. Also she was reduced from level 2 to level 3 stock. This was the lowest salary increase she had received in her 11 years service. She queried the review but did not receive an adequate reply.
3.9 In an email of 30 April 2008 the complainant raised concerns about her treatment whilst on maternity leave. On 7 May 2008 she had a phone conversation with her manager. She raised concerns about the performance review and the lack of communication surrounding changes within the organisation. Mr D said he was looking for other roles for her as her role would eventually "go away" so there was little point in her returning to the job. The complainant repeated that she wanted to return to her job. On 6 June 2008 Mr F resigned and on 17 June 2008 Mr D announced that Mr E was acting GER Workforce Mobility Manager and was to be assisted by Ms G. On 19 June 2008 the complainant met with Mr D and said she wanted to return to her original role. She was told she would return as GER Workforce Mobility Manager but with different roles and responsibilities to those before her maternity leave; she would only have two people reporting to her. Mr D said he was actively looking for other roles for the complainant in the meantime as he believed her job was going away anyway. The complainant said she felt aggrieved by this and it looked like her role as GER mobility manager would be in name only. In an email of 30 June 2008 Mr D said the complainant would be coming to a job as to how he had structured the area until the end of 2008. The future would be determined by a three year planning process.
3.10 On 28 July 2008 Mr D announced, without any verbal warning to her, that the complainant was returning as GER Workforce Mobility Manager with only Mr E and Ms G reporting directly to her. The other staff, who had previously reported to the complainant, would be reporting to Mr E. The complainant submits that there were therefore two operations manager at a time the organisation was trying to reduce its' headcount. The complainant went to see her GP at the end of July and was prescribed medication to help her cope with the stresses at work.
3.11 The complainant returned to work on 11 August 2008 and as Mr D was not available she arranged a meeting with the GER HR Director, Mr H, in which she expressed the concerns she had already outlined to Mr D. He tried to source a position for her in the US but it fell through due to lack of funding. On 15 August 2008 the complainant met Mr D and expressed her concern that she had no meaningful position. Mr D explained that the main focus was to get the complainant another role and asked if she could give him a CV. She also said she was concerned about the hostile behaviour she was experiencing from Mr E.
3.12 The complainant submits that Mr D did not provide her with a reintegration plan on her return from maternity leave, as required by the respondent's maternity policy. Indeed he delayed in providing her with information she requested. Also, she was excluded and isolated from meetings run by Mr E. On 21 August 2008 Mr D requested that the complainant meet Mr I, HR Business Partner Manager for GER, regarding a potential job but it was not suitable as it required extensive travel and did not have a full job description. When she told Mr D that she would not be taking the job she asked for her old job back. This resulted in Mr D encouraging her to invoke the respondent's grievance procedure (Open Door).
3.13 The complainant asked Mr D to send an email clarifying her position but he refused. On 23 August 2008 she sent an email to Mr D, in which she raised her concerns, in particular that her only role was to coach Mr E. Mr D replied that her role to the end of the year was to mentor and coach Mr E and Ms G. On 25 August 2008 the complainant said she wanted her old job back in its entirety or she would invoke the grievance procedure.
3.14 On 26 August she met Mr I who offered her a maternity leave position in Finance and IT based in UK. The complainant raised concerns about the temporary and junior nature of the role. On 29 August 2008 the complainant submits she informed Mr D that she had no option but to invoke the grievance procedure. On 5 September the complainant again told Mr D she was unhappy with her role and asked him to send a communication explaining her role. Mr D refused and said her role to the end of the year was to coach Mr E. On 9 September 2008 the complainant sent an email to the vice president of HR, Mr J, explaining her situation. He replied stating she should invoke the grievance procedure.
3.15 The complainant submits that both herself and Mr E attended a conference in the US from 20 September to 2 October 2008. She was not clear why they should both attend but Mr D said it was necessary as part of her coaching role. The complainant had no active role to play at the conference and she found it humiliating to be there.
3.16 The complainant invoked the Open Door policy on 9 October 2008 and sent an official complaint to the Operations Manager for Employment Services, Ms K. Specifically she complained that her manager failed to provide her with timely communication while on maternity leave, had not adhered to the performance review procedures, failed to return her to her original job (contrary to the respondent's maternity policy), failed to provide her with a job role to match her grade level and failed to clarify her position within the organisation. The complainant met with Ms K on 17 October 2008 and she found Ms K's approach aggressive and she dismissed the complaint despite being the investigator. Consequently, on 20 October 2008 she sent an email to Ms L in HR, whose role was to provide confidential support to the complainant during the grievance process, about Ms K's behaviour. The complainant met Ms K again on 14 November 2008 and during this meeting Ms K suggested that the complainant concentrate on her family rather than worry about work.
3.17 The complainant submits that she was on sick leave because of the stress from 11-17 November 2008 and her GP referred her to a clinical psychiatrist. On 24 November 2008 her stress levels had increased to the extent that she was having panic attacks on a daily basis.
3.18 On 1 December 2008 Ms K confirmed to the complainant that her Open Door investigation was concluded and there was no case to answer, except in relation to the late delivery of the performance review. The complainant pointed out the inaccuracies throughout the process. She expressed her disappointment and the stress caused by the whole situation. The complainant submits that she did not appeal the findings as she felt it was inherently biased and the outcome was predetermined. She contends that this was shown by Ms K's attitude during the process and the lack of confidentiality that she discovered afterwards; between Ms K and the respondent's legal department and within HR.
3.19 On 2 December 2008 the complainant attended the company doctor who advised her she was under severe stress and told her to see her own GP. On 8 December 2008 her GP told her to take time off due to severe stress. The complainant submits she has been off work since then because of the stress caused by problems at work.
3.20 The complainant submits that she was discriminated against on the grounds of gender, arising from her pregnancy and maternity leave; in that she was bullied and harassed by her former manager once he learned of her pregnancy, despite her requests she was not kept up to date with changes in the organisation, she was not given a proper job when she returned to work, she was isolated at work when she returned and there was a lack of clarification about her role. She tried to address these issues with her manager but there was no satisfactory response. This included invoking the respondent's grievance procedure (Open Door Policy).
4. RESPONDENT'S SUBMISSION
4.1 The respondent submits that at no time, either, before, during or after her maternity leave, was the complainant discriminated against. The complainant returned to a suitable role with no negative impact on her; it was at the same grade, pay, title and scope.
Pre-Maternity Leave
4.2 The respondent submits that before submitting this claim the complainant had not formally raised any complaint about Mr A. At a meeting with Mr D in November 2007 the complainant raised issues about Mr A, in relation to his personal management style. These issues were raised again on 7 May 2008 in a telephone conversation between the complainant and Mr D. Mr D asked if she wanted anything done and the complainant confirmed she didn't want anything done as Mr A had retired. During these conversations the complainant made no allegation that her issues with Mr A were related to her pregnancy. The respondent submits Mr B confirmed that several people in the UK and Ireland had complained about Mr A's approach. Consequently, the respondent held an investigation and, as part of this, Mr B asked the complainant to keep him appraised of any other concerns. Following the investigation Mr A was coached in his management style. He subsequently resigned in September 2007.
4.3 The respondent submits that at no time during the grievance process did the complainant say there was any workplace connection with her decision to go on maternity leave early. This included a routine pregnancy review she had with the respondent's Occupational Health Department in March 2007. Emails to colleagues indicate that she was having some pregnancy related complications Furthermore, the respondent submits that at no time did the complainant make any complaint that she was suffering from a medical condition caused by her work environment.
Annual Performance Appraisal
4.4 The respondent submits that their performance review policy for employees on maternity leave is as follows: "The manager is responsible for contacting the employee who is on maternity/adoption leave at Focal review delivery time to arrange a mutually suitable date and time to conduct the review. The manager may request to meet with the employee to deliver the review, while they are on leave." The complainant's direct management chain was reorganised whilst she was on maternity leave. Her new manager Mr D received no information from either her former manager or the complainant about her performance in 2007, until 10 days after the due date for the review delivery, 1 April 2008. When he found this out Mr D immediately remedied the situation and provided the complainant with her review. Her pay rise and stock award were consistent with 2008 budget guidelines. The complainant expressed her dissatisfaction and Mr D checked how these measured against other employees within the same grade. He informed the complainant that she was very much aligned with other grade 9 Ireland employees with similar service in the grade.
Communications during Maternity Leave
4.5 In October 2007 Mr D discussed the level of interaction wanted by the complainant during her maternity leave. Between October 2007 and the complainant's return to work in August 2008 they had five telephone meetings, they met in person twice and there were numerous emails between them. The respondent submits this was more than the normal level of contact with an employee on maternity leave.
4.6 On 12 October 2007 Mr D sent an email to all impacted employees, including the complainant, informing them that he was replacing Mr A as GER HR Services Manager. In November 2007 they had a face-to-face meeting which was very high level and friendly. As well as general issues and the complainant's return they discussed her IT issue. Mr D made efforts to resolve the issue. Also, the complainant raised her interest in potential global assignment opportunities. Mr D believed this was because the complainant was aware that the respondent was in the middle of a period of significant change and restructuring which would involve significant budget and headcount cuts in HR Services. The complainant's department GER Global Workforce Mobility (GWM) was being restructured in accordance with a three year plan, of which the complainant would have been aware before going on maternity leave.
4.7 In March 2008 Mr D advised the complainant that the role of HR Operations Planning Manager was available. But the complainant declined to interview for the role. The respondent submits that the complainant describing the role as "technical assistance" could lead to a misunderstanding as such roles are senior strategic roles in the respondent organisation. In or around April 2008 Mr D and the complainant discussed a role in Mergers & Acquisitions which was then available. It was not a maternity leave cover, as contended by the complainant, and was filled on a permanent basis in April 2008. Mr D also made the complainant aware of other roles in HR. Mr D confirmed that if she didn't move to another role she would come back to GER Mobility.
4.8 The respondent submits that in or around April 2008 the complainant complained to Mr D that she had not received advance notice of his email of 19 March 2008 in which he set out some structural changes for the remainder of the complainant's maternity leave. On the day prior to sending the email Mr D rang the complainant to give her advance notification but the complainant was in hospital with a serious foot injury so Mr D decided it was not appropriate to have a detailed work conversation. He said he would ring back in a few days but the complainant rang him back the next day. Mr D confirmed she would be returning to GER Mobility but also that he was working on other opportunities for her, as she had requested. The changes concerned arrangements to cover the complainant's maternity leave and the respondent submits that it is not credible that the alleged failure to communicate "caused her considerable stress and upset".
4.9 The respondent submits that the telephone call on 7 May 2008 was lengthy and covered a number of areas. Mr D again explained the rationale for his decision to make changes to the organisational changes. The structure included the complainant as the senior manager. During this conversation the complainant complained that Mr D had found no suitable position for her to move to; although he reminded her of the opportunities they had discussed. Mr D suggested they had a face-to-face meeting to discuss these issues. The complainant responded by sending an email repeating her grievances. Consequently a meeting was arranged. They met on 19 June 2008 during which the complainant complained that she had no advance notice of the contents of an email Mr D sent 17 June 2008. The respondent submits the contents had been the discussed in multiple telephone meetings they had throughout April and May.
Restructuring and Complainant's Role
4.10 The changes announced in the email of 17 June 2008 were part of the normal and ongoing restructuring necessitated by the three year plan. Mr D announced the creation of two team manager positions (one Grade 7 and one Grade 6). He made it clear to the complainant that when she returned she would manage these more junior positions. Her role was to mange the strategic direction of the GER Mobility as it moved through the three year plan. Part of her role was to mentor and coach the two more junior managers.
4.11 The respondent submits that Mr D's email of 28 July 2008 announcing the complainant's return to work was consistent with the discussions between himself and the complainant. The respondent further submits that, because of the restructuring, the complainant's role prior to her going on maternity leave no longer existed, therefore she could not return to it. However, when she returned she was responsible for 21 people, with two direct reports. The role had a more strategic focus which gave the complainant the opportunity for more visible success with senior management. The respondent submits that the complainant returned to a suitable alternative role. Furthermore the respondent offered her a number of suitable alternative roles which she refused to be considered for. The respondent submits that it complied with all its' legal obligations and the complainant was not treated less favourably because of her gender.
Return to Work
4.12 The Respondent submits that the complainant returned to work on 11 August 2008 to a 'robust and strategically important senior manager position - at her same title, grade level, scope and pay rate'. Also, as the complainant had said that a change in position was her ideal plan, Mr D and Mr H and Mr I looked for alternative roles which might be acceptable to the complainant. A total of four comparable positions, which were permanent and at same grade had been identified but the complainant declined them without providing sufficient reasons.
Health Issues
4.13 The respondent denies that the complainant advised Mr D or anyone else that the ongoing disagreement about the role to which she had returned was affecting her health; except in a private conversation. Mr D denies that the complainant said anything to him about the situation affecting her health. Clearly the complainant was unhappy with her role on her return to work but as far as Mr D was concerned this was expressed as normal dissatisfaction and not as something which was affecting her health.
4.14 When the complainant commenced her Open Door grievance she was assigned Ms L as a separate dedicated and confidential HR support throughout the process. It was agreed that their communications were completely confidential. They had at least eight meetings between late September and mid November 2008. The complainant made complaints about her health that concerned Ms L. She asked to intervene on the complainant's behalf and speak to Mr D but the complainant would not allow her to intervene. Therefore Mr D was unaware of any health issues. No one in the respondent organisation, including Ms L, was aware that she had been referred to a psychiatrist.
4.15 The respondent submits there is no evidence to support the complainant's claims of aggressive questioning by Ms K. Furthermore, the complainant was given the choice of having Ms K or the HR legal department to conduct the investigation. The complainant met Ms L after the first meeting with Ms K and was told that she could re-route the investigation to the HR Legal Department if she wished. She confirmed that she wished Ms K to continue with the investigation. The complainant mentioned no health problems to Ms K. The respondent submits that the complainant was unhappy with the outcome of the investigation rather than having a genuine grievance as to how Ms K conducted the investigation.
5 FINDINGS & CONCLUSIONS
5.1 The initial EE1 claim form submitted to the Equality Tribunal by the complainant stated that the 'date of first occurrence of discriminatory act' was 11 August 2008, which was the date she returned to work from maternity leave. At the hearing the respondent's representative queried the inclusion of incidents before this date. The complainant's representative said that the incidents before this were given as "illustrative". I will therefore not deal with incidents of alleged discrimination before this date as part of my investigation. As the claim of harassment dealt with the period before the complainant went on maternity leave I consider this part of the claim to have been withdrawn. As I am only dealing with allegations of discrimination from 11 August 2008 onwards I am looking at the complainant's return to work and incidents thereafter. However, in being able to look fully at the complainant's return to work, I will be taking into account the communications that took place whilst she was on maternity leave that referred to the complaint's return to work and management decisions that impacted on the complainant's return to work.
5.2 It is the usual approach of the Equality Tribunal that access to employment claims relate to cases where the claimant is not already working for the respondent. In this claim the complainant was already working for the complainant and I conclude no evidence has been presented in relation to access to employment. The complainant has also presented no evidence in relation to promotion/re-grading.
5.3 Therefore, I have to decide if the complainant suffered discriminatory treatment on the grounds of gender in relation to conditions of employment. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.4 Mr D took over HR Operations in October 2007 and his remit was to completely transform the operation and shortly after starting in HR Operations he announced a three year plan to substantially reduce global operating costs by transferring operations to Shared Service Centres. This involved the re-engineering of all processes across HR Operations. The email from Mr D of 19 March 2008 confirms a new staffing structure that he was putting in place until the end of the year in the GER Mobility area of HR Operations. Effectively the role the complainant carried out before she went on maternity leave was split in two. This email was sent to the complainant and acknowledges one employee's work to that date covering the complainant's maternity leave. The complainant contends this shows she was being sidelined during her maternity leave whilst the respondent contends that Mr D was implementing the restructuring plan.
5.5 During their discussions whilst she was on maternity leave Mr D contends that the complainant made it clear to him that her aspiration was for an international assignment where she would be re-assigned to Ireland at the end of the assignment. They explored two possible assignments in April 2008. At this time the complainant also brought up a number of issues and she said she was particularly unhappy with Mr E's role. Because of the complainant's concentration on the issues about which she was unhappy Mr D contends it was difficult for him to discuss the strategic role she was to play on her return. In May 2008 he sent the complainant her Performance Review for 2007 which set out the 'areas for development/improvement'. These included 'driving HRS Strategic Change' and this section stated "Marie's role will require her to drive the strategic change and direction, and in some cases, these changes will have employee, service, and operational impact. It will require her to expand her capabilities to influence, and drive the strategic work beyond the region" and also included 'Improve organizational health in an unsettled environment' and this stated "GER Mobility is perhaps one of the more unsettled of the HR Ops organizations in terms of employee discomfort, concern, and engagement. The over-arching issues are the HR Ops multi-year plan to drive forward first quartile cost structure. It is imperative that Marie continues to build organizational trust, re-energize the work force, and gain positive support and credibility for the direction." The Review concludes "Marie ... should continue to focus considerably on employee development, creative work assignments and rotations, setting clear expectations & results orientation through coaching, and personal imbo expectations." The complainant said she did not want to deal with work matters when she was on maternity leave and did not return the document. I have no evidence that the complainant referred to this document on her return to work.
5.6 In an email of 6 June 2008 to staff in his area, announcing that a member of staff was leaving, Mr D says "More recently Mr F, along with Mr E, had been covering the GER Mobility role, Marie Cunningham, who is currently on maternity leave of absence." In an email of 17 June 2008 about the staffing of GER Mobility Mr D says Mr E " will expand his scope to "acting" GER mobility manager (covering MLOA for Marie Cunningham.)" Following a face-to-face meeting on 19 June 2008 the complainant expressed her misgivings about her role and Mr D clarified what he saw her role would be on her return "I acknowledge, as I did at our FTF meetings, that this has created some disappointment for you. However, this is my decision, and it meets the spirit of you returning to the role, continues to builds 'succession planning' in a function that lacks it....supports the Career Development for additional ee's.....in terms of span and levels our aggregate performance in GER in within goals. In summary, you're coming back to the role in how I've structured it, and we will see this out until the end of the year." This confirms that the role has changed but in his view, as the complainant's manager, the changed role is suitable for the complainant.
5.7 In an internal announcement of 28 July 2008 Mr D announced the complainant's return and he confirmed the structure set out in the email of 19 March 2008 would continue until the end of the year and "Marie will return from MLOA as GER Mobility MGR, with Mr E and Ms G reporting to her. Mr E & Ms G will still hold their current ee reports as per previous announcement." The complainant was concerned that this structure was announced without any consultation or advanced notice with her. She was concerned that Mr E and Ms G would continue to do her job until the end of year. In Mr D's absence she raised these concerns with Mr H on her first day back, 11 August 2008. In a follow-up email to him she said she considered that her job had been reassigned to another employee and she had no idea what her role was.
5.8 The respondent contends that when the complainant returned to work Mr D explained the rationale of the current position of GER Mobility in the restructuring of HR Operations and the need to focus on carrying the plan through to the end of the year. Mr D contended that the other staff in GER Mobility were clear about the complainant's role and it was only the complainant who was unclear. As far as he was concerned, as her manager, she was returning to largely the same job, with aspects of the operational role being carried out by Mr E and Ms G. She was responsible for the strategy, mentoring Mr E and Ms G and 'Organisational Health'. The complainant and Mr D had a meeting to discuss the issues on 22 August 2008 and in a subsequent email she said that "At our 1:1 last week you directed me to provide Mr E coaching specifically in the area of strategic development between now and the end of this year. This is the only job description I have received from you to date." Mr D replied "by leveraging your capability & experience, it is my key expectation that you spend the time to coach & mentor Mr E and Ms G, to raise org health, sustain operational performance, and ensure that the key strategic directions move in the right place and level." This reflects the role he saw for the complainant in the Performance Review document drafted in May.
5.9 Mr D followed this up on 26 August when he sent the complainant an email to which he attached a number of documents setting out the current position of GER Operations. He suggested she read through the documents so that she could bring herself 'up to speed' and suggested that she meet the team leaders who were responsible for different areas. No evidence was submitted that the complainant followed up these suggestions. Earlier that day she had emailed Mr E asking for an update on a number of work issues and what her role should be. Mr E replied but there is no evidence of any further action on these issues by the complainant.
5.10 The complainant had a further meeting with Mr D on 29 August in which she said she thought she had no option but to instigate an Open Door Grievance. Mr D told the complainant that he considered she did have a proper role in the current strategy and it needed someone at her level to manage the reduction in scope which would lead to a further review of GER Mobility at the end of the year.
5.11 At the hearing Mr D stated that the complainant was a senior member of staff and he expected her find her own role based on the direction he had given her from the current position of GER Mobility in the restructuring plan. The complainant considered she had no role other than monitoring two members of staff. She sent an email to Mr D stating that she felt people thought she had been displaced. At the hearing she gave evidence she felt that her role, on her return, was to go on training courses, deal with very little email traffic, look at updates from Mr E, attend very few meetings, coach Mr E in her own role and to help Mr E with a presentation. She asked Mr D for her own role back in its entirety. At the same time there were further discussions about overseas assignments which came to nothing.
5.12 Mr D said he repeatedly found it difficult to enter into a dialogue with the complainant about the job she should be doing. In all their discussions the issues that the complainant has articulated got in the way. He therefore considered that the complainant taking a grievance under the Open Door policy would be an 'excellent opportunity' to allow her to move on. The complainant continued to express her dissatisfaction to Mr D that she had nothing to do and she was concerned that she would have no achievements to put forward in her end of year review and this could have a serious impact on her career. She then invoked the Open Door Grievance procedure.
5.13 The complainant contends that the outcome of the Open Door investigation had been pre-determined. She cites the attitude of Ms K in the first meeting. Also, that Ms K said she should "own your own employability" and she was not asked to put her own case. The complainant was also concerned that Ms K consulted the legal department about the investigation. The complainant was also alarmed that it appeared from documents she had obtained from the respondent that notes of meetings with her confidential contact had been copied to others in HR.
5.14 Ms K gave evidence at the hearing that she was the complainant's second level manager and she had conducted many Open Door investigations but it was the first in Ireland. She rejected the complainant's accusations that her approach was aggressive; indeed she found the complainant to be rude and shouted at her. She considered that the complainant was lacking engagement with the organisation and focussed on the number of staff reporting to her. She considered that there was a broad strategic role for the complainant to look at the whole of workforce mobility. She confirmed the role was not set down in a specific document but she was happy that it had been communicated to the complainant. She also confirmed that she asked the legal department to look over her draft findings to ensure they were legally sound.
5.15 At the hearing the relevant staff in HR gave evidence that any apparent breach in confidentiality only took place between HR staff on an internal confidential basis and did not compromise the investigation in any way.
5.16 I am satisfied that the complainant was given the opportunity to put her case in the Open Door investigation and Mr D and team members, including Mr E, were interviewed as part of the investigation. The complainant was given the option of changing the person who carries out the Open Door investigation but chose not to. Also, she chose not to appeal the outcome of the Open Door investigation. I find no discrimination on the ground of gender took place in relation to the Open Door investigation. I do however find it surprising that, given the nature of the complaints and in an organisation the size of the respondent, the investigation was carried out by the complainant's manager's manager. I recommend that the respondent amends their Open Door policy so that investigations are carried out by a manager senior to the person instigating the grievance who is not directly involved with that employee.
5.17 The situation regarding a woman returning to work after maternity leave is set out in EU Directive 2002/73/EC Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions which states:
"A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.". These provisions have been enshrined in the Maternity Protection Acts which state; "on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work ... in the job which the employee held immediately before the start of that period", and "job means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed".
It follows therefore that any departure from this entitlement constitutes direct discrimination of the woman concerned on grounds of gender.
5.18 The complainant contends she was discriminated against because when she returned from maternity leave she had no job to come back to and despite several requests she was not given her own job back or an equivalent post. The respondent contends they have complied with their own policy which at the time the complainant returned to work stated: "On the completion of Maternity/Adoptive Leave the employee will ideally return to the job the employee held prior to commencing their leave...... Where it is not practical for an employee to return to their original job (e.g., if due to a reorganisation/rationalisation the job no longer exists) alternative work will be offered to the employee. This work will be of a kind that is suitable to the employee and there will be no financial detriment to the employee." and have complied with their legal obligations.
5.19 It is clear the respondent was restructuring the area in which the complainant worked, as part of a larger remit to transform HR Operations. The changes started before she left but were accelerated when Mr D was appointed to be manager of HR Operations and set out his three year plan. If the complainant had not gone on maternity leave the restructuring would have continued but I accept that as the complainant was a senior manager she would have influenced the plan and some aspects of it may have progressed differently. However, the complainant came back in the middle of this restructuring and substantial change had taken place and further change would ultimately lead to the role of GER Mobility Manager no longer existing in March 2010.
5.20 The complainant considered her job had been given to those who had covered her absence, particularly Mr E, and they were carrying on in that role when she returned. The respondent accepts that operational elements of the role were being retained by Mr E and Ms G on her return.
5.21 As the job had changed I have to assess whether there was a job for the complainant on her return within the meaning of the Maternity Protection Act, viz "the nature of the work which she is employed to do in accordance with her contract of employment" The respondent contends there was a role for the complainant as GER Mobility Manager to mentor Mr E and Ms G, who were lower grades, and also there was substantial work at a strategic level for the complainant to undertake on her return to guide the restructuring in GER Mobility. The duties needed in undertaking the strategic nature of the job were not written out in detail for the complainant. However, the complainant had previously worked in GER Mobility and the general nature of the tasks were put down in the Appraisal Assessment. I note that the complainant did not respond to the Appraisal Assessment sent to her in May, either at that time or on her return. Also she did not respond to Mr D's email of 26 August 2008 and Mr D's notes of a meeting they had three days later indicate that the complainant concentrated on her grievances and her decision to use the Open door procedure. I therefore find it difficult to conclude that the complainant made any meaningful effort to take on the role envisaged by Mr D. I also accept the respondent's position that someone at a level as senior as the complainant should be able to work on her own to develop a role that had changed.
5.22 From the evidence provided I accept the respondent considered the complainant was returning to a suitable position and that efforts were made to advise the complainant of the nature of the job she was expected to undertake. Given the complainant's seniority, her previous work record within GER Mobility and career progression within the respondent they expected her to be able to undertake the strategic work involved to carry forward the plans for GER Mobility. From the day she returned to work she said there was no job for her and the evidence is she did little to try and get involved in the role as seen by Mr D.
5.23 I conclude that when the complainant returned from maternity leave she was given a job that had changed but was given a job that falls within the meaning of the EU Directive and Maternity Protection Act. I find that no discrimination took place on the grounds of gender in relation to conditions of employment.
6. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
- that the respondent did not discriminate against the complainant in relation to conditions of employment on the grounds of gender contrary to section 6 of the Employment Equality Acts,
____________________
Hugh Lonsdale
Equality Officer
22 February 2012