DEC-E2012-160- Full Case Report

EMPLOYMENT EQUALITY ACTS 1998 to 2011

Decision DEC - E2012 - 160

PARTIES

A Complainant
(represented by Mary Honan, B.L.,
instructed by O'Mara Geraghty McCourt, solicitors)

and

A Third Level Institution
(represented by IBEC)

File Reference: EE/2009/125
Date of Issue: 27th November, 2012

Headnotes: Employment Equality Acts, - Section 6(2)(g), Disability -Section 6(2)(a), gender, Section 6(2)(c), Family Status - Section 8(1)(b), conditions of employment - Section 8(6)(c), Dismissal - Section 14A, Harassment - Section 16(3), Reasonable Accommodation - Section 29 - Section 74(2), victimisation, Victimisatory Dismissal - Section 14A(2)

1. Dispute

1.1. This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of gender, family status and disability, contrary to sections 6(2)(a), 6(2)(c) and 6(2)(g) respectively of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to (i) promotion/re-grading, (ii) training and (iii) dismissal, contrary to Section 8(1)(d), 8(1)(c) and 8(6)(c) of the Acts; that the respondent failed to provide her with reasonable accommodation, contrary to Section 16(3); that she was not paid equal remuneration (on the disability ground) contrary to Section 29 of the Acts; that she was harassed by the respondent, contrary to Section 14A 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 17th February, 2009, alleging that the respondent had discriminated against her on the grounds of gender, family status and disability. The complainant made a further complainant on 14th August, 2009 alleging that the respondent had victimised her.

2.2. Written submissions were received from both parties. On 1st September, 2011, 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 under Part VII of the Acts, on which date my investigation commenced. Hearings of the complaint were held on 17th February, 15th May and 16th May, 2012. Further information was sought from parties and final correspondence in this respect was received on 28th August, 2012. Both parties consented to their anonymisation in this case.

3. Summary of the Complainant's case

3.1. The complainant stated that she suffered from a mental illness which, at the time in question, was understood to be post-natal depression, although she said that a new approach to her diagnosis has recently been taken. She said she first started working for the respondent in 2004, and had told it of her disability at the time. She stated that she had taken several months sick leave while in her first post there. However, she stated that, when she transferred to the Department of Sport (DOS) as an Executive Officer in March 2007, she was not suffering severely and was coping adequately, although she was still attending a psychiatrist and was taking medication. She stated that, while in the Department of Sport, she reported directly to Ms. A and spoke with her about her experience with mental illness. She also said that she advised the respondent in May, 2008 that she was pregnant.

3.2. The complainant said she applied for a job in the DOS as it was full-time as opposed to the part-time work she had been doing. She said that she was leaving a permanent job to go there but had "picked up" that it was a safe bet in terms of job security. She stated that her salary was raised to the 9th point of the relevant scale upon her move but she did not receive an increment in October, 2007. She stated that she was discriminated against on that basis compared with Ms. B, who was of the same grade as her and who did receive an increment at that time. Ms. B did not have a disability. She stated that the respondent had not provided any reason as to why DOS had not recommended that she receive an increment in October 2007 whereas Ms. B's application had been approved by DOS. She said that the respondent also said that it is inappropriate to give two increments in the same year, yet they did that in March, 2008 when she moved onto the 10th point of the scale after being made permanent.

3.3. The complainant said that she got on well with everyone in the office at first, including Ms. A, who she said was approachable. She stated that a deterioration of her mental health, which was caused by the general atmosphere that developed in the office, occurred in or around September 2007. In that respect, she gave an account of particular incidents involving Ms. B and Mr. C (Ms. B's supervisor), who were friends with each other. She stated that these incidents took place at a time when she was also doing the work of another colleague, Ms. D, while she was on maternity leave. She outlined a number of issues which arose as a result of this additional work. She also submitted that she was discriminated with respect to not being provided with further remuneration for taking on this additional work. She said that she found it increasingly difficult to assert herself although on a couple of occasions she approached Ms. A about the situation. She said that there was a clique and the politics was difficult and so she had to raise it subtly without causing too much trouble.

3.4. The complainant said that, prior to going on maternity leave in March 2008, Ms. A raised the matter of sick leave with her. She said she raised a number of issues with her in that respect and made a number of suggestions. In particular, she said that Ms. A suggested she take medical appointments as sick leave. She also referred to a comment that Ms. A made while she was in a lift with her and stated that this comment, which was something about her having to "sink or swim", was related to her disability.

3.5. The complainant said that Mr. C requested that she report to him whilst Ms. A was on maternity leave. She said that Ms. B and Mr. C were "running the show" at this time (even though a Mr. E was the Head of the Department). She gave an account of an occasion when she sought to leave the office early in order to comfort her daughter following an incident in her school but was told by Ms. F, another Manager in the office, that she could not do so because of issues with her timekeeping. She stated that she was very upset by Ms. F's response and she went on sick leave as a result. She also stated that she was upset when Ms. F rang her shortly afterwards to find out if she was attending on a particular day. She said that this was an example of the goalposts always changing and it would have been fine if it was Mr. C that rang her as he was her supervisor while Ms. A was away.

3.6. The complainant said that, when she returned to work after these events (in March, 2008), Mr. E asked her questions in such a way as she felt that he was suspicious of her. She said that she told Mr. E that she was feeling intimidated, which she said she found very difficult to do given the nature of her mental health. She said that Mr. E told her he wanted a meeting with her about her sick certificates. She said that Mr. C then called her into a meeting without notice. She said that the outcome of this meeting was that Mr. C repeated what Mr. E had told her. She felt the purpose of the meeting was to intimidate her.

3.7. The complainant also said that she was asked by Human Resources (HR) to attend at occupational health, who certified that she was fit to work. She said that she later found out from HR that the direction to send her to Occupational Health came from the DOS. She said that she was feeling intimidated, "ganged up on" and quite anxious at this point and that this manifested itself in certain physical and emotional symptoms. She said that, following a consultation with her where she outlined her experience at work, her GP took it upon himself to write to Mr. E. She said that she did not get a good reaction from Mr. E when he received this letter but nobody mentioned it to her.

3.8. The complainant stated that, shortly after this, on 1st and 2nd July, she was told by HR that she had refused to attend a meeting with Mr. C, that this was her last chance to agree such a meeting and that HR also said something about a disciplinary letter. She stated that she believed this related to a request that Mr. C made earlier that day for a meeting with her. She said that she asked Mr. C to send her details of the meeting on an e-mail and he had said ok. However, she said that he never sent such an e-mail and she was waiting for it before agreeing to the meeting. In that context, she said that she had not refused a meeting. She said that she explained this to HR but they stated that they were "not going to get into that with her". She stated that, prior to this, no one had mentioned disciplinary procedures or a complaint about any aspect of her work and that she believed the disciplinary proceedings were initiated to try and "get rid of her". She said that HR were aware of her disability and were also aware that she was pregnant at the time.

3.9. The complainant said that she "confronted" Mr. C at 5:15 on 2nd July and told him she was sending him a further e-mail. She said that he denied saying that he had told HR that she had refused a meeting but came back later and went into "some kind of rant" about her refusing a meeting. She said that he started antagonising her as she left the office. She said that she was very angry and frightened for her baby (she was five months pregnant at the time). She said that she went down to the toilets and locked the door to calm herself. She said that she returned to her desk to send the e-mail and then left for the day.

3.10. The complainant said that a letter about the matter was then couriered to her on 4th July while she was out sick. She said that, consequently, she felt she could not get away from the harassment while she was at home, which created extra anxiety for her. She said that she then met with her doctors who gave her a sick certificate for four to six weeks. She said that, ultimately, she took early maternity leave, starting on 14th August when her baby was due on 24th November.

3.11. The complainant said she returned from maternity leave in April 2009. She said that she had written to the respondent in the meantime to clarify the position with respect to the issues which had arisen before she took maternity leave, but was not reassured by its reply to this letter. In the meantime, she referred her complaint to the Tribunal. She said that a meeting with the respondent took place on 9th April upon her return to work wherein they discussed the "respondent's agenda". She gave an account of that meeting. She said her Union Representatives were at this meeting, but Mr. C was not there, even though she had requested that he be present. She said that it was clear that the issues arising from before she went on maternity leave were not going to be discussed. She stated that she followed up on this issue in correspondence with a number of people, including Ms. A, but received no reply. She said it was inappropriate that Ms. A was aware of the complaint to the Tribunal as it was confidential and if anyone were to disclose it, it should have been the complainant herself.

3.12. The complainant said that she noticed a change in her colleagues approach to her following her return. She gave a detailed description of the atmosphere in the office at this time, which she described as terrible. She said that people who had been quiet were aggressive towards her and she described how she felt, in particular that she felt isolated. She also gave some examples of this treatment of her at this time, in particular an instance where she said Ms. A stood at the door doing a swirling motion when she was asked to get plastic spoons from another building. She said that she understood from this that Ms. A was saying she was stupid "or something". She said that she indicated how angry she was at this and Ms. A "backed off". She said that she did not want to greet Mr. C or Mr. E but would work with them on a professional basis.

3.13. The complainant said that that she wrote to Mr. G, the respondent's Staff Relations Manager, on 8th June as she wanted the respondent to wipe the slate clean with respect to her disciplinary record and to confirm that the issues that arose before she went on maternity leave were not being proceeded with. She said that she was called in by Ms. A to Mr. E's office when she came in the following day (9th June). She said that she was told she was being made redundant and she would not have to work out her notice period. She said that she heard Ms. A laughing as she left the office. She said that there had been no discussion about redundancy prior to this and there had been no request for voluntary redundancies. She said that she did not think it was true that she had the least service as she was an Executive Officer since 2004 whereas Ms. B was only an Executive Officer since 2006.

3.14. The complainant said that she did not make a complaint about the harassment to the respondent as she was just going in there surviving every day, although she did write "some stuff" down. She also said that she did not have faith in the respondent because of all that had happened and did not have much trust in its policies. For example, she said that she met with the respondent's Employee Assistance Officer (EAO) but said that she was sceptical about her, particularly in that context of certain remarks that she made to her. She said that her confidence was significantly damaged as a result of what had happened. She said that quite a few people were involved and they were all backing each other up. She said that the worsening of the treatment was related to the fact that she had referred the complaint to the Tribunal. She said that she thought they harassed her because they wanted to get rid of her.

3.15. With respect to reasonable accommodation, the complainant stated that she did not ask for help with respect to her disability except to relieve her workload and said that Ms. B clearly did not have the workload that she had. However, she said that there was a proactive duty on the part of the respondent, once it was aware of her disability, to carry out an assessment of needs with respect to that disability. She referred to caselaw to support her submission in this respect¹. She said that, even if reasonable accommodation could not be provided, the respondent still failed in its duty and was in breach of s.16 of the Acts in that respect because it did not conduct any needs assessment and there was never any discussion with the complainant as to what her needs might be. She said that it was irrelevant if the complainant never raised it as there was a proactive duty on the employer to do so.

Summary
3.16. The complainant stated that the respondent's failure to recommend her for an increment was inexplicable given her experience. She stated that she suffered unfair treatment in her employment, and this was primarily arising out of her disability, but also arose out of her pregnancy. She said that she considered that the respondent had an issue with both her maternity leave appointments and her psychiatric appointments. She said that when she came back from maternity leave her treatment consisted of isolation and hostile treatment. She said that the manner of her redundancy was also hostile and was carried out without going through disciplinary procedures, without notice and without consultation. She referred to An Hotel -v- An Employee² in that respect and said that her disability was more than a trivial factor in her treatment. She said that the respondent took the view that she was "a problem" and someone to be ostracised and excluded.

3.17. The complainant said that her selection for redundancy was discriminatory and she was targeted for it. She stated that the alleged policy of applying service in the department rather than in the organisation as a whole was never applied before and it was extraordinary that the respondent had no written policy in that respect. She added that it was extraordinary that she would lose all service on joining DOS. She said that there was no reasonable explanation for this other than her disability, her pregnancy and because she had made complaints to the Tribunal. She said that there was no effort to seek voluntary redundancies and no effort to identify a suitable alternative position.

3.18. In short, the complainant stated that she was treated less favourably than other employees and the inference as to why must be that it related to her disability and the perception that she was a problem as a result of it and was someone to be excluded and ostracised.

4. Summary of the Respondent's case

4.1. The respondent stated that the complainant's salary was increased in October 2006 to put her on the 8th point of the scale and was then raised again in March 2007. It accepted that her increment was increased only once between October 2006 and March 2008 but this was to Point 9 when she commenced her first fixed-term contract in March 2007. The respondent stated that the move to Point 10 is not automatic. It stated that it has to be recommended by the Head of the Department. It stated that, given the complainant was on a fixed-term contract at that point, the respondent felt it would be better to review her incremental situation at the 12-month point. It stated that the complainant was not pregnant at the time and she has benefitted from the incremental moves that the college has applied. It added that Ms. B did not receive an increment in March 2008. The respondent stated that it did not have a document which outlined its policy with respect to increments.

4.2. The respondent suggested that there was significant evidence that the complainant could stand her ground and did not find it difficult to be assertive, as she suggested. It disputed that she was not able to manage the situation that arose. The respondent submitted that the letter to Mr. G was not received until after the complainant was informed she was to me made redundant. It stated that the complainant was making sweeping generalisations, that there were significant numbers of people involved. It stated that it provided policies and procedures of which the complainant was aware but of which she did not avail.

Evidence of Ms. A
4.3. Ms. A stated that she was Assistant Head of Sport at the time in question. She said that she had an input into the complainant's incremental situation and she took the advice of HR in that respect. She said she could not recall what that advice was but it related to the point of the scale that the complainant should be on. She recalled talking to the complainant about it but did not recall being a decision-maker in that respect. She said she did not recall being asked specifically by the complainant as to how her pay compared to that of Ms. B. She said that the complainant received lots of training in taking up her new role and she gave an account of how the work was distributed among staff in that respect.

4.4. Ms. A said that she got on very well with the complainant and had sympathy for her problems due to her own experiences. She also said that she made lots of efforts to help and assist her in her efforts to receive appropriate treatment. However, she said that she had cause to speak with her about her appointments as she had exhausted her full sick leave pay entitlements and she worked with her to try to ensure she could still attend for appointments. She said that work was fairly distributed while Ms. D was on maternity leave and she denied that the complainant was struggling with her workload in that context. She added that the complainant never complained about other colleagues assigning work to her.

4.5. Ms. A said that she spoke with Mr. C about the complainant's circumstances before she took maternity leave in mid-February, 2008, but did not give him any particular advice. She said that she did not meet the complainant again until mid-April, 2009 as the complainant also went on maternity leave in the meantime. She stated that she was aware of the disciplinary matter that had arisen while she was on maternity leave as Mr. E had told her about this and had asked her to contact the complainant to resolve any issues arising. She said that she was satisfied that the proper procedures were followed in that respect. However, having consulted with HR, she felt it appropriate to "wipe the slate clean" and approach the matter in a positive way. She said that, in a meeting she described as positive, she advised the complainant that the disciplinary process was not going ahead in that context.

4.6. Ms. A said she did her best to ensure the complainant was welcomed back and felt part of the team. However, she said that she did observe that relations were strained at this point. She said that she had become aware of the complainant's complaint to the Tribunal when she returned to work and said that this probably gave rise to an atmosphere where relationships were not as easygoing. However, she said that she did not consider that the complainant was the problem. She said that there was a performance management system in place within the organisation but issues relating to the working atmosphere would not be addressed in that context. She also stated that she agreed with Mr. E's statement that the complainant created an atmosphere of tension and discord.

4.7. Ms. A said that she was present at the meeting where the decision was made to make the complainant redundant but did not input into that decision. She said that she was also at the meeting when Mr. E told the complainant she was being made redundant. She said it was a difficult meeting. She said it was absurd to suggest that she and/or Mr. E were laughing afterwards it as it was not a pleasant experience. Ms. A also denied making the alleged comments attributed to her by the complainant. In particular, she refuted that the alleged incident regarding swirling a spoon ever took place (see par. 3.12 above).

Evidence of Mr. C
4.8. Mr. C outlined his qualifications and experience. He said that he had been made aware by Ms. A that the complainant had mental health issues. He said that Ms. B was the person he worked most closely with and described their working relationship as good. He said that the complainant never came to him to advise that she was having difficulties with the workload although he said there might have been an e-mail about being busy. He said that he considered she had a manageable workload at the time. He said he did not recall the incidents involving himself and Ms. B to which the complainant referred. He denied treating the complainant any differently. He said that he would like to think he was approachable if there were any issues.

4.9. Mr. C stated that he was the complainant's direct line manager only while Ms. A was on maternity leave. He said that, in that capacity, he had occasion to raise issues relating to the provision of medical certificates by the complainant, a problem of which he first became aware in February, 2008. He said her records were up-to-date prior to this. He said that there were also several occasions where the complainant had provided him with less than an hour's notice of medical appointments. He stated that he sought the advice of HR on the procedure to be followed with respect to dealing with these issues and he explained this procedure to the complainant. He said that he also discussed it with Mr. E. He said that it would be normal to resolve the matter informally first and he sought to do so. He said that there were a couple of occasions when he approached her about the matter, but she never approached him.

4.10. Mr. C stated that, in that context, and on 1st July, he asked the complainant to come into the office to speak with him about something. He said that she responded in a derogatory tone and he said it was a private matter. He said that he was told to send an e-mail regarding what it was about. He said that the reason he wished to hold the meeting was to discuss her outstanding sick certificates. He said that it would not be normal to outline in writing the agenda for every meeting. In that respect, he said he had an open-door policy and he would ask staff on a daily basis to pop into the office. He said that he then phoned HR and explained what had happened. He said HR then tried to make contact directly with the complainant.

4.11. Mr. C said that, on the following day, he went to leave when the complainant said she was sending him an e-mail. He said that a "couple of things were said" and he responded that he had given her every opportunity to meet. He said that he then left the office to change and came up to collect his belongings. He said that the complainant tried to engage him in conversation but he ignored her and left. He said that he could not recall what she said in that context as he said that voices were getting raised and so he left. He said that he did not think he was intimidating her, rather it was the other way around. He said that it was not usual for the complainant to stay late and he thought that she did so in order to speak with him. He said that he thought she might be trying to antagonise him, although he said that it would have been a great opportunity to resolve matters if she had not used a derogatory tone.

4.12. Mr. C said that he thought he had made every effort to outline the issues arising, and had made every effort to provide opportunities for the matter to be resolved. In that context, he said that he proceeded to invoke the formal disciplinary procedure as it had become clear that there was no possibility of engagement. He said that he regretted the way it went in that respect but felt he had no other option. With respect to him sending a letter to the complainant while she was on leave (as per par. 3.10 above), he said that he and Mr. E thought it was essential that she was made aware of the situation. He said that he wrote the letter in order to outline the issues and retrieve the medical certificates concerned.

4.13. Mr. C said that he was familiar with the disciplinary process in his role as Manager and he knew the seriousness of the action he was taking in that respect. He said that he never got the opportunity to say to the complainant that if they couldn't resolve it they will have to invoke formal disciplinary procedures. He said that had had several discussions with Mr. E about the matter.

4.14. Mr. C said that the atmosphere in the office had deteriorated rapidly prior to these issues arising but he was not blaming one person for that. He recalled the phone call from Ms. F to the complainant referred to at par. 3.5 above. In that respect, he stated that he had gone to Ms. F and asked her if she had heard from the complainant. He said that she responded that she had not and offered to ring her. He said that he would not consider it significantly different for one of them to ring rather than the other.

4.15. Mr. C acknowledged that he was a senior manager but did not accept he had any responsibility for the work environment that developed in the workplace. He said that his working relationship with the complainant was never healthy, but thought that he himself was forthcoming and receptive while he always had the impression that she was never receptive. He said that he did not think that the complainant respected him as her line manager but did not really know why that was the case. He said that the relationship was slightly worse after the complainant returned from maternity leave. He said he did not recall whether people were aware of the complaint to the Tribunal but considered that they must have been aware of it. He said he agreed with the letter from Mr. E in which he stated that the complainant created an atmosphere of tension and discord.

Evidence of Ms. F
4.16. Ms. F said that the complainant did not report to her but she was part of her management team. She said that at approximately 4.30 or 5 on 6th March, the complainant asked her if she could leave. She said that she told the complainant that was no problem but to let Mr. C know. She said that she was surprised when the complainant did not leave and instead went back to her desk. She said that when Mr. E asked her if she had heard from the complainant on the morning of 11th March, she said that she hadn't and so Mr. C asked her to ring her. She described her relationship with the complainant as "fine". She said that she was conscious there was a strained relationship in the part of the office where the complainant worked but was not involved in that respect.

Evidence of Mr. G
4.17. Mr. G said that Mr. E ultimately made the decision to make the complainant redundant. He stated that his first involvement with the matters at issue in the complaint was when he arranged a meeting to discuss the redundancy, which was attended by himself, Mr. E, the complainant and her representative. He said that, at this meeting, Mr. E explained the funding situation, that there was a focus on protecting frontline services and that the best way to do this was to end a post in the administrative stream. He said that Mr. E said that the decision on who to make redundant was based on last-in first-out within the DOS, which was the respondent's standard policy. He said that the meeting concluded with the decision to go ahead with the redundancy. He said that the letter dated 8th June (see par. 3.13) (which he raised at that meeting but which the complainant stated that she did not wish to discuss) was not received on the 8th but might have been received on the 10th.

4.18. Mr. G explained how each department operated independently in terms of staffing and financial management. He also explained the respondent's policy with respect to redundancies, which are usually in the research area. He said that this policy was not in writing nor was it formally agreed with Unions. However, he said that it was not disputed: indeed it was well recognised and had involved 300 redundancies among clerical staff. He said that it would be normal practice to consult with the person being made redundant prior to the redundancy taking place but he was not aware of whether there was consultation with the complainant in that respect. He said that it was not put forward whether anyone else in the department wanted to accept a redundancy as it has no "facility for enhanced redundancy".

4.19. Mr. G said that the complainant was supported in getting another job. However, he stated that the respondent could not offer her a job as all posts had to be competed for at the time, although that has changed since the Croke Park Agreement came into place. Mr. G said that the respondent's harassment policies are provided at the contract stage and are available on the website.

General Summary
4.20. With respect to the claim of Equal Pay, the respondent stated that there is no written incremental policy. It said that the complainant was offered a full-time contract and an uplift in March.

4.21. The respondent said that the remainder of the case related to a series of one-off incidents and two separate remarks by Ms. A and the competing evidence of the witnesses in that respect. It stated that it relied on my judgement with respect to the available witnesses and explained the absence of those witnesses who could not be there. It said it was a fact that medical certificates had not been received and the disciplinary process was invoked in that context. It stated that this was part of the normal management process and where the informal approach was not successful, it would be normal that a formal approach would follow. The respondent accepted the atmosphere was strained but denied that there was any harassment and/or victimisation of the complainant in that context. It said that the complainant chose not to speak to her two managers about any issues. In particular, it said that Ms. A had an open door policy and a good working relationship with the complainant and there were opportunities to discuss issues with her.

4.22. The respondent said that the complainant's workload was increased for 6 months but she was not alone in that respect. It said that it was clear that she felt that she was not friends or part of the friendship between Ms. B and Mr. C. It stated that this became apparent when Mr. C became her manager and personality issues arose in that context. However, it said that at no stage was a complaint made by the complainant about this. It said there was a reasonable engagement going on from time-to-time and reasonable accommodation was provided to the complainant to attend for appointments. It said that at no stage was she refused time for appointments, nor did the respondent allude to having difficulties with her attending for those appointments.

4.23. The respondent stated it was not extraordinary for it not to have a redundancy policy. It said that it is not common practice in the education sector or anywhere else to have such policies. It rejected the suggestion that the policy in this respect was made up to catch the complainant. It said it was carried out as it was essential to cut costs and was not manufactured in any way.

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. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.' ³

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 - "that one is a woman and the other is a man." 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 disability as follows - "that one is a person with a disability and the other either is not or is a person with a different disability."

5.3. Section 14A of the Acts defines harassment as being "any form of unwanted conduct on any of the..grounds...which has the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". 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.."

5.4. The issues for me to decide in this case, then, are (i) whether the respondent failed to pay the complainant equal remuneration with Ms. B on the grounds of family status and/or disability; (ii) whether the complainant was subjected to less favourable treatment in comparison to (an)other person(s) on the impugned grounds of gender, family status and/or disability with respect to training and/or promotion/re-grading; (iii) whether she was harassed by the respondent on the grounds of her disability; (iv) whether she was victimised by the respondent with respect to her treatment by it after she made her complaint to the Tribunal and/or 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.

Equal Pay
5.5. The complainant clearly did not receive an increment in October 2007, but she did receive one in March 2007. Ms. B did receive an increment in October 2007 and both received increments in October 2008. The complainant's argument centres on the suggestion that she lost out on six months cumulative incremental pay between October 2007 and March 2008. Equally, she had six months increment thereafter which Ms. B did not get until they were both given increments in October 2008. It is therefore questionable as to whether there was even less favourable treatment with respect to pay in that context.

5.6. In any event, I am satisfied that there is insufficient evidence to show that the reason for refusing the complainant an increment in October 2007 was related to her disability and/or her family status. It is not true to say that a difference in treatment combined with a difference in the ground leads to a presumption of discrimination. At least some evidence that the two are related must normally be provided. There is an exception with respect to the specially protected period of pregnancy (see par. 5.21) below, but gender is not relevant to the Equal Pay claim. As I cannot see any connection between the complainant's disability and her not receiving an increment in October 2007, her complaint fails in that respect.

5.7. The complainant also complained that she was not provided with extra remuneration for the additional work that she was required to do while Ms. D was on maternity leave whereas Ms. B was on a higher rate of pay at this time. I am satisfied that the complainant was required to do more of that work than Ms. B at this time (see par. 5.13 below). However, I cannot see any causal connection between that and the remuneration of the complainant and Ms. B, particularly as the person responsible for the distribution of that work (Mr. C) had no direct responsibility for the complainant's remuneration. In short, it is merely coincidental that the complainant and Ms. B were on different rates of pay at the time in question.

Training
5.8. I am not satisfied that anyone else in the respondent's organisation was provided with training which the complainant did not receive. Her complaint with respect to training cannot succeed in that context.

Promotion/Re-Grading
5.9. No evidence was presented to the Tribunal that the complainant was discriminated against with respect to promotion and/or re-grading. Her claim cannot succeed in that context.

Reasonable Accommodation
5.10. It is clear that the complainant was fully competent and capable of undertaking her duties without the need for the taking of appropriate measures by the respondent. It is clear that her workload increased while Ms. D was on maternity leave. However, there is no evidence that her disability made it any more difficult for her to deal with that workload. Indeed, it is clear that the same issues in dealing with such an increased workload would have arisen for anyone in the same or similar circumstances whether they had a disability or not. Reasonable Accommodation is irrelevant in that context.

5.11. The complainant also submitted that once she made the respondent aware that she had a disability, it was required to carry out a detailed needs assessment with respect to the impact of the disability on her working situation. In all the circumstances of the present complaint, I cannot see how the respondent would be required to do so, particularly when she could not identify herself where she encountered any difficulties with respect to the taking of appropriate measures by the respondent. Additionally, it is clear to me that she was facilitated with time off to attend medical appointments. The issue with same was not the taking of the appointments, rather the provision of medical certificates to attend those appointments and the short notice which the complainant sometimes gave for those appointments.

5.12. It may be argued that the short notice by the complainant was a part of her disability and should have been facilitated without question by the respondent. However, the complainant never engaged with the respondent about that, and never even indicated to it that this was the case. In those circumstances, I am satisfied that it was not required to facilitate her in allowing her give short notice for medical appointments and its inclusion of this issue in contemplating disciplinary action against her was not unreasonable. Reasonable accommodation is not relevant in that context.

Harassment
Harassment prior to claim to Tribunal
5.13. It is clear that the complainant's difficulties in the workplace began with the perceived impact on her of the good working relationship between Mr. C and Ms. B. She believed that Mr. C favoured Ms. B and sought to manipulate the workload within the organisation in her favour, thereby disproportionately increasing the complainant's workload. I am satisfied that he did so. It is clear that there was a serious deterioration in the complainant's working relationship with Mr. C thereafter. That Mr. C was made her supervisor while Ms. A was away added to this, and she perceived at this stage that there was a conspiracy (a word she used herself) between all the Managers to bully and harass her because of her illness and because she was pregnant.

5.14. I am not satisfied that Ms. F refused to allow the complainant comfort her daughter, as I am satisfied that the complainant misheard what she said in that context. I am not satisfied that she made any reference to the complainant's timekeeping in that context. Ms. F was also perfectly entitled to ring the complainant about her absence that morning, although I can see no reason why Mr. C could not have done so. The evidence with respect to the approach of Mr. C and HR to the complainant's absences between February and June 2008 has already been outlined, and I do not propose to restate it here. What is important about that evidence is that it is clear from it that the complainant's perception that she was harassed was exacerbated by what she saw as the sceptical approach which Mr. E took to the validity of her sick leave.

5.15. The issue that caused the most distress to the complainant prior to her going on maternity leave was the request for a meeting with Mr. C and/or Mr. E to discuss the issues arising with respect to her sick certificates. It is clear that the complainant's experience of Mr. C made her particularly sceptical as to the reasons for what appeared to be an informal meeting about these matters and she sought clarification of the subject matter in that context. It is clear that Mr. C took this as a hostile approach and became entrenched in a view that she had refused a meeting. It is clear that Mr. E became involved and the issue escalated to a disciplinary matter. It is clear that it did so unnecessarily and both parties are at fault in that respect. The complainant was uncooperative, even when the reasons for the meeting were made clear to her. Equally, the respondent as a whole, represented by Mr. C, Mr. E and HR, were hostile towards her and any attempt by her to arrange the meeting in a way which might alleviate her concerns about it (e.g. seeking to bring union representation to it).

5.16. The complainant then took early maternity leave. By the time she did so, there is no doubt that the complainant felt harassed by Mr. C, Mr. E and the respondent's HR department. In harassment cases generally, the first question to be answered is a subjective one: did the complainant genuinely consider that they were being harassed? In all the circumstances of the present case, the answer, clearly, is yes. However, the key question is whether that harassment was related to her disability.

5.17. Mr. C's approach to the complainant with respect to the issues surrounding her sick certificates was not without justification. I am satisfied that at least some of her certificates were not provided in a timely manner. There can also be little doubt that, from the start of her employment with DOS and before any of the incidents that are alleged to be harassment took place, the complainant was uncooperative and hugely defensive and that her approach to the requests of management in DOS were negative by default. If this behaviour was related to her disability, she should have stated this clearly and unambiguously to her managers from the outset of her period of employment with it.

5.18. However, Mr. C's resentment of the complainant was also evident at the hearing. It is clear that he showed no sympathy for or understanding of the complainant's situation, in particular with respect to her disability. It is clear that he raised issues with her attendance at medical appointments on a number of occasions and in a hostile and intimidating manner. I am satisfied that his approach to the issue of the complainant's sick certificates was even more hostile. The respondent was absolutely entitled to seek reasonably prompt and accurate information as to the reasons for the failure of the complainant to attend work when she should have been present. However, it is clear that Mr. C's treatment of the complainant in this respect was excessive and intimidating.

5.19. On balance, then, I am satisfied that Mr. C was influenced by the complainant's disability in treating her in this manner. It was clearly not the only reason for his resentment of the complainant, a resentment which fuelled his approach to her. Indeed, it might not have been the main reason. But I am satisfied that it was a more than a trivial influence on his approach in this respect. It is settled law that this is sufficient for the complainant to have established a prima facie case in that respect.

5.20. While I am reluctant to make a determination as to whether Mr. E himself harassed the complainant when he did not give any evidence in that respect, I am in no doubt that his support for Mr. C's position exacerbated the harassment of the complainant by him. Perhaps Mr. E was not aware of the approach that Mr. C had taken towards her, perhaps he was. In any event, he supported him and, in doing so, participated in the harassment, as did the respondent's HR Department. Therefore, I am satisfied that the respondent treated the complainant in a hostile and intimidating manner and that the complainant's disability was more than a trivial influence in that treatment. She has established a prima facie case of harassment in that context.

5.21. In the interests of completeness, it should be stated that pregnancy is a specially protected period and, where any adverse treatment is shown to arise with respect to a pregnant woman, the employer bears the burden of proving, on cogent and credible evidence, that it was in no sense whatsoever related to her pregnancy4. Neither party made much of this in their arguments before the Tribunal, but I am conscious of its importance to any such case.

5.22. However, I am satisfied that the harassment in question was not in any way related to the complainant's pregnancy. She herself admitted that there were no difficulties with her pregnancy related appointments, and it is abundantly clear that all the women who were or became pregnant in the context of this complaint were afforded every right and facility to which they were entitled, and more. In short, in so far as the complainant was harassed, she was harassed with respect to her disability. It should also be said that, while this disability was connected with a pregnancy, it was primarily related to a previous pregnancy, it was an existing condition at the time she began working for the DOS and it was only a part, perhaps even a small part, of her overall mental health issues. It cannot be considered part of her pregnancy while working for DOS in that context.

Respondent's Defence
5.23. The complainant stated that she was timid and found it difficult to raise concerns about her treatment. I do not doubt her evidence in that respect. However, there is also little doubt that she was able to fight her corner when it was necessary and I can see no reason why she could not have raised her concerns about Mr. C's treatment of her with another Manager, or otherwise through the supports available to her. In particular, I am satisfied that the respondent had a harassment policy of which the complainant was aware and that this policy did provide for a suitable reporting mechanism. In any event, and while there can be little doubt that Mr. E did not encourage the complainant to trust him, Ms. A was not unapproachable at that time, although she became so later, and she could have raised the matter with her.

5.24. The Acts provide in Section 14A that "it is a defence for the employer to prove that (it) took such steps as are reasonably practicable...to prevent the person from harassing or sexually harassing the victim.." I am satisfied that the respondent had a harassment policy which, in all the circumstances of the present complaint, was adequate enough to provide the complainant with recourse to make a harassment complaint and to meet the requirements of Section 14A in that respect. She failed to make a complaint under that policy. It is not enough for her to say she did not trust the respondent in that context. While that was her experience in DOS and allegedly also with the EAS, I am not satisfied that this experience negates the fact that there was a harassment policy in place and that she could still have made a complaint under it. In that context, the respondent is entitled to rely on the defence available in Section 14A.

Victimisation/Harassment
5.25. In Tom Barrett v Department of Defence⁵ 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.

5.26. Relations in the complainant's workplace were clearly difficult before when she went on maternity leave. However, it is clear that there was an even more serious deterioration in that working relationship when she returned from leave in April 2009. Her approach to people and an even more defensive posture than she had already displayed certainly contributed to that. However, it is clear from the oral evidence given at the hearing that all her colleagues, led by Mr. E, laid the entire blame for the extremely difficult working atmosphere that developed on the complainant. Indeed, in a letter to the complainant of 19th May, 2009, Mr. E stated that "(the complainant's) behaviour is unprofessional and unacceptable and that (she creates) an atmosphere of tension and discord." While the complainant was far from blameless in creating a hostile working atmosphere in the context of this complaint, the evidence does not support such an extreme statement by Mr. E.

5.27. Ms. A and Mr. C denied in the first instance that they had any difficulty with the complainant or her performance, but when confronted with Mr. E's letter, they agreed with his statement. I am also satisfied that the incidents involving Ms. A which the complainant considered to be harassment did take place. These incidents are, in fact, indicative of Ms. A's change in attitude. The first incident, the statement in the lift (see par. 3.4) took place before the complainant took her maternity leave. I am satisfied that the reading the complainant seeks to put on this is incorrect and the statement was not related to her disability. However, it is clear that the second incident, that of swirling the spoon in the cup (see par. 3.12), is designed to denigrate the complainant with respect to her mental health.

5.28. In short, then, the management view of the complainant became appreciably more hostile towards her after she made her complainant to the Tribunal and led to the entire cohort of staff in the office making her life exceedingly difficult. In most cases (i.e. except for Mr. C and Mr. E), there is no evidence that this animosity towards her related to the complainant's disability. However, I am satisfied that the treatment of her, in particular by Ms. A, Mr. C and Mr. E, was fuelled by the fact that she had undertaken a protected act (i.e. her claim to the Tribunal). In that respect, Ms. A accepted that she knew of the claim and I do not accept Mr. C's evidence that he did not even know a claim had been made.

5.29. While, as indicated in par. 5.24 above, the complainant cannot succeed in a claim of harassment in this respect because she did not report it to the respondent, there is no such defence to claim of victimisation. The fact that the increase in the harassment of the complainant was a reaction to the taking of a protected act by her means that she is entitled to succeed with respect to a claim of victimisation in that respect.

Victimisatory Dismissal
5.30. It is clear that each of the respondent's Departments operated independently in certain ways. It is clear that the complainant knew in leaving where she was that there was a risk attached to giving up what had been a permanent job. However, I am not satisfied that she was aware that, once she became permanent, her service was considered by the respondent to be less than that of Ms. B were a redundancy to occur. I also note that the respondent accepted that neither before nor since the complainant was made redundant has it arisen that, where there is a choice to make one of two persons of the same grade redundant, the person chosen has more service in the college than the person left in place. While noting the respondent's argument that it is the service within the particular department that counts, the fact that this was, and remains, a unique event is of significance.

5.31. Therefore, and in all the circumstances of the present case as they are known by me through my investigation into the matter, I do not accept that the respondent's standard practice was that in choosing a person to be made redundant, the determining factor is seniority within the department concerned rather than the organisation as a whole.

5.32. It is clear that there were some funding difficulties within DOS and it is clear that Mr. E was given a mandate to cut costs. It is also clear that Mr. E's decision was made without consultation with anyone else and having little regard for any other possibilities for cutting costs. For those reasons, and in all the other circumstances of the present complaint, I am satisfied that Mr. E used the necessity to cut costs as an excuse to dismiss the complainant in the context of a redundancy. I am satisfied that this redundancy was not justified in the circumstances. More importantly, I am satisfied that the complainant's taking of a complaint against him was a significant factor, if not the only factor, in Mr. E's decision to make her redundant rather than dealing with budgetary challenges in another way, or in making Ms. B redundant instead.

5.33. Having heard all the evidence presented by the parties in respect of this claim, then, and in all the circumstances of the present claim, I am satisfied that the complainant's dismissal by the respondent was a reaction to the taking of a protected act by her. She has established a prima facie case of victimisatory dismissal in that context. As the respondent provided no rebuttal to this claim other than a denial of the influence of the claim to the Tribunal on the decision to make her redundant, and as this has already been considered by me, the complainant succeeds in her claim in this respect.

Final Comments
5.34. In short, then, the complainant's claims of discrimination in relation to equal remuneration, training and/or promotion/re-grading have failed and her claim of harassment has been successfully rebutted. However, she was victimised by the respondent, both in terms of her treatment and her dismissal. In accordance with the Acts, then, I am making one award for redress with respect to this successful claim and this award is based on her annual remuneration at the time she was dismissed, which was approximately €35,000. The award I am making is the approximate equivalent of fifteen 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, family status and/or disability grounds pursuant to section 6(2)(a), 6(2)(c) and 6(2)(g) of the Acts in terms of training and/or promotion/regrading contrary to s.8(6)(c) and 8(6)(d) of the Acts. Therefore, this aspect of her claim fails.

6.3. I find that the complainant has failed to establish a prima facie case that the respondent failed to provide her with equal remuneration on the family status and/or disability ground pursuant to section 6(2)(c) and 6(2)(g) of the Acts and contrary to s.29 of the Acts. Therefore, this aspect of her claim fails.

6.4. I find that the complainant has established a prima facie case that the respondent harassed her on the disability ground pursuant to section 6(2)(g) of the Acts in terms of training and contrary to s.14A of the Acts, but the respondent has successfully rebutted this prima facie case, in the context of Section 14A(2) of the Acts. Therefore, this aspect of her claim fails.

6.5. I find that the respondent victimised the complainant in terms of section 74(2) of the Acts, in terms of her treatment by it and in terms of her dismissal by it.

6.6. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €45,000 in respect of the victimisation. This award is made to compensate the complainant for the distress caused to her as a result of the victimisation of her by the respondent. In that context, it is not in the nature of pay and is, therefore, not subject to tax.

_____________
Gary O'Doherty
Equality Officer
27th November, 2012

¹ In particular, An Employee -v- A Broadcasting Company DEC-E2011-195;
² EDA 0721
³ EE5/1986 Gibney v Dublin Corporation
⁴ See, for example, Trailercare Holdings -v- Healy, EDA128, 16th March, 2012
⁵ EDA1017