Employment Equality Acts
Decision DEC-E2012-094
PARTIES
Kay O'Donnell
(Represented by Muriel O Donnell)
- V -
Kostal Ireland Gmbh
(Represented by Chris O'Donovan, IBEC)
File references: EE/2009/372
Date of issue: 20 July 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Gender - Prima Facie Case
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment by the respondents on the grounds of gender in terms of Section 6(2) the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 27 May 2009 under the Acts. On 28 May, 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties in advance of the hearing. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 20 June 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted she worked for the respondent for almost twenty-six years starting on 14 September 1983. In February 2009, the respondent was seeking voluntary redundancies from within the workforce and the complainant sought an estimate of her entitlements under the redundancy scheme. On 25 February 2009 she received an estimate of the redundancy payment amounting to €74,074. On the basis of that estimate the complainant indicated that she would like to avail of voluntary redundancy.
2.2 On 6 March, 2009 the complainant was informed that the actual amount would be in the order of €28,241. The complainant did not accept this offer. Following discussions between the respondent and the complainant's union representative this amount was increased to €33,241 on 23 March 2009. The complainant did not accept this revised offer.
2.3 The complainant submitted that a male employee with similar experience received an enhanced redundancy offer and that this constituted discrimination on the gender ground.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 This respondent submitted that the complainant was employed as a Production Operator since September 1983.
3.2 The respondent submitted that on 26 February 2012, the complainant applied for redundancy under its voluntary scheme. The complainant was provided with a document entitled "Estimate of Redundancy Payment". Thereafter, the complainant was issued with a final offer on the basis of the rules being applied which amounted to €28,241.
3.3 The respondent submitted that the complainant alleged that she was being discriminated against on the basis that she was being treated differently to a male work colleague in the same circumstances. The respondent refutes this allegation.
3.4 The respondent submitted that a number of meetings took place at which the complainant was represented by her union. An offer of an additional €5000 was made as a gesture to top-up the redundancy calculation in an attempt to bring closure to the matter for the complainant. The respondent submitted that this offer was not accepted by the complainant.
3.5 The respondent submitted that it noted that the complainant referred to an unnamed male employee who she believes received a different redundancy package. The company submitted that it ensured fairness and consistency in its approach to the redundancy programme.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant on was subjected to discriminatory treatment on the ground of gender in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The complainant stated that a male employee, Mr X, (who was named at the hearing) of a similar age and service profile was offered and received a redundancy package equating to his statutory entitlement plus three weeks pay per year of service and that the complainant was not offered a similar package. The complainant stated that because this male colleague was in a similar position to her, but was treated differently, this is unfair and amounts to the existence of discrimination against her on the basis of her gender. The complainant did not offer any documentary or other evidence in support of this argument. The respondent contested the complainant's summary of the situation.
4.4 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.5 In the instant case the following facts emerged from the oral testimony of both parties and provide a contextual background for the consideration of this matter:
- The complainant confirmed that a number of female employees received a redundancy package equating to statutory plus three weeks
- The respondent confirmed that voluntary redundancy was offered to staff as a cost saving measure, and this was not disputed by the complainant
- In considering redundancy packages, where applicants would receive a lesser amount in pay terms between the date the package was offered and their retirement date, as a cost saving measure, the lesser amount was the final amount offered to applicants for voluntary redundancy
- An additional €5000 was offered to applicants in such situations
- The complainant was 57 weeks from retirement while Mr X was 150 weeks from retirement.
- The named male colleague had shorter service than the complainant
- The package offered to Mr X amounted to less than he would earn in the period leading up to his retirement
- Mr X received a redundancy package equating to statutory plus three weeks
4.6 On the basis of the foregoing information, the respondent has provided a cogent argument to explain the difference in treatment accorded to the complainant and Mr X. In addition I am satisfied that the work history of Mr X is sufficiently different from that of the complainant such as to explain the difference in treatment. Additionally, I note that a number of female colleagues received similar redundancy packages to Mr X. Accordingly, I find that the complainant has not established facts from which discrimination on the gender ground can be inferred. As the complainant has not established a prima facie case on the gender ground, this complaint must fail.
4.7 The complainant confirmed that the issue of age related discrimination was not before the Tribunal but that she merely sought to be treated fairly.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the gender ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
20 July 2012