THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2013-094
PARTIES
A Worker
(represented by Ms. Grainne Fahy B.L.
on the instructions of Coghlan Kelly Solicitors)
and
A Hotel
(represented by IBEC)
File Reference: EE/2010/021
Date of Issue: 20th August, 2013
1. Claim
1.1 This case concerns a claim by a Worker against a Hotel that she is entitled to the same rate of pay as that paid to a named comparator in accordance with section 29 of the Employment Equality Acts, 1998 to 2008 and that the respondent discriminated against her on the gender ground. The respondent accepts that the complainant and the named comparator were engaged in like work but submitted that there were grounds other than gender for the difference in pay. The complainant also claims that she was subjected to discriminatory treatment by the respondent in relation to promotion on the gender ground and that she was subjected to victimisation contrary to section 74(2) of the Acts.
2. Background
2.1 The complainant alleges that she was paid less than the named comparator even though they performed 'like work' within the meaning of Section 7 of the Employment Equality Acts, 1998 to 2008. It is the complainant's contention that the difference in pay was related to her gender. The respondent accepted like work but submitted that there were grounds other than gender for the difference in pay. The complainant also claims that she was subjected to discriminatory treatment in relation to promotion on the gender ground and that she was subjected to victimisation by the respondent contrary to section 74(2) of the Acts. The respondent denies both of these claims and it contends that the victimisation element of the claim was not referred to the Tribunal in accordance with the prescribed time limits as provided or in section 77(5) of the Acts. Accordingly, the respondent submitted that the Equality Tribunal does not have any jurisdiction to investigate the claims of victimisation.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of the Equality Tribunal on 18 January, 2010. On 1st October, 2012, in accordance with his powers under section 75 of that Act, the Director delegated the case to Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. An initial inquiry hearing in relation to the complaint took place on 15th October, 2012 during the course of which the respondent accepted that the complainant was engaged in 'like work' with the named comparator within the meaning of section 7 of the Acts. A submission on the issue of grounds other than gender was received from the respondent on 12 November, 2012 and from the complainant on 12 December, 2012. A joint hearing of the claim was held on 30th January, 2013. The final correspondence from the parties in relation to the claims was received on 26th February, 2013.
3. Summary of the Complainant's case
Equal Pay
3.1 The complainant commenced employment with the respondent as a full-time Leisure Centre Attendant on 1 May, 2004 and she was promoted to the position of supervisor on 12 June, 2006. The complainant submitted that the named comparator, Mr. A, commenced employment with the respondent as a Health Club Attendant in June, 2006. The complainant claims that in or around April, 2008 she became aware that Mr. A was in receipt of more favourable remuneration notwithstanding the fact that she was employed in a more senior position than him at that juncture. The complainant submitted that she made a complaint to the respondent in relation to this unequal treatment regarding her pay and offered her resignation. She claims that the respondent attempted to remedy the difference in remuneration by paying her the equivalent of 10 weeks of the difference between her pay as a supervisor and the higher rate of pay which the comparator was being paid (as a Leisure Attendant) at that juncture.
3.2 The complainant submitted that the named comparator, Mr. A, was promoted to the position of supervisor in July, 2008 (i.e. in equal standing with the complainant). The complainant claims that, in May, 2009, she and other staff members agreed to take a 10% pay reduction in the context of a general restructuring within the hotel. She claims that it is not clear if pay of the named comparator, Mr. A, was also reduced by a similar margin at that juncture. The complainant submitted that Mr. A was promoted to the position of Leisure Centre Assistant Manager in September, 2009. The complainant claims that she is entitled to equal remuneration with Mr. A in accordance with the provisions of section 19(5), of the Acts for the period from 12 September, 2006 until September, 2009. The complainant claims that the reason for the difference in pay between her and Mr. A during that period was related to her gender and she denies the respondent's contention that there were grounds 'other than gender' for the difference in pay.
Promotion
3.3 The complainant also claims that she was subjected to discriminatory treatment in relation to promotion on the gender ground. The complainant submitted that, at the time of Mr. A's promotion to the position of Leisure Centre Assistant Manager in September, 2009, she was equally if not better qualified than him for the position. The complainant claims that she was not afforded the opportunity to apply for this position and that the job was not advertised either internally or externally and that the appointment of Mr. A was made without an interview or selection process. The complainant submitted that the manner in which this appointment was conducted did not comply with the respondent's documented procedures for the internal promotion of staff.
Victimisation
3.4 The complainant also claims that she has been subjected to victimisation by the respondent contrary to section 74(2) of the Acts after she referred a complaint to the Equality Tribunal in relation to the alleged discriminatory treatment in terms of her pay and promotion. The complainant submitted that instead of dealing with the obvious inequalities that persisted between her and Mr. A that the respondent has actively pursued a course of intimidation, victimisation and patronising behaviour towards her which has on occasion made her working life unbearable. The complainant submitted that she was approached by her Manager, Ms. B, on 30 April, 2010 and advised that she needed to make a decision by 4 May, 2010 as to whether she intended to continue with the complaint which she had referred to the Equality Tribunal (on 18 January, 2010 claiming discriminatory treatment in relation to pay and promotion). The complainant claims that Ms. B alleged at that juncture that her complaint was having a negative effect on the workplace environment. The complainant submitted that the respondent had created an extremely negative atmosphere in the workplace by placing Mr. A in a position of authority over her and she claims that he was given full details in relation to the complaint which she referred to the Equality Tribunal. The complainant claims that the respondent's actions have placed Mr. A in a position where he may believe that he is under threat from her, thereby further worsening an already difficult position for all parties to work in.
3.5 The complainant submitted that in January/February, 2011 she was charged with the task of creating a games room project which she applied herself to with considerable application. However, she claims that unknown to her that Mr. A was undermining her efforts to senior management by criticizing her and claiming that half of the ideas relating to the project were his. The complainant claims that she requested (by e-mail on 26 February, 2011) the use of the internet to complete this task, however this request was ridiculed by Mr. A in an e-mail to his manager, Ms. B, within which he stated that she 'can't do her job properly'. The complainant claims that no complaint has ever been made to her about any shortcomings in her work and she submitted that this type of criticism which, at the time she was unaware of, was and remains unwarranted.
3.6 The complainant submitted that she was also charged with additional duties in February, 2011 including club membership and direct debit administration and the preparation of reports which she undertook without any difficulty. The complainant claims that she subsequently inadvertently became aware that these efforts which she had put into these tasks were being undermined and belittled by Mr. A who was subjecting her to a campaign of on-going criticism to management. The complainant submitted that the respondent, in appointing Mr. A to the position of Assistant Manager, making him aware of the complainant's complaint to the Equality Tribunal and placing him in a position of authority has amounted to victimisation and also made Mr. A party to that victimisation.
4. Summary of the Respondent's Case
Equal Pay
4.1 The respondent accepts that the complainant and the named comparator, Mr. A. were engaged in 'like work' within the meaning of section 7 of the Acts for the entire period in respect of which equal remuneration has been claimed i.e. from 12 September, 2006 to September, 2009. However, the respondent claims that there were grounds 'other than gender' which render the rates of remuneration paid to the complainant and the named comparator, Mr. A, lawful in accordance with section 19(5) of the Acts.
4.2 The respondent submitted that the named comparator, Mr. A, commenced employment on a part-time basis on 12 June, 2006 and that his rate of remuneration was less than the complainant's at that juncture. The respondent submitted that in February, 2007, Mr. A expressed an interest in becoming a full-time permanent member of staff with the respondent. The respondent submitted that it considered him to be excellent at his job, and somebody that could be of enormous benefit to the hotel and in the discussions that followed as a result of this, Mr. A indicated that he would not leave his current employer for less than €11 per hour (which was 57c more per hour that the complainant was being paid at that juncture). The respondent submitted that it looked at this situation and took a number of matters into account including; the comparator was very popular with members of the Leisure Centre; he had previous experience of working as a supervisor in previous employment; he was an excellent sportsman and highly successful in road cycling and received significant media coverage as a result of his success; there were potential benefits in terms of him working with the respondent; he expressed interest in joining the respondent at a time when it was difficult to attract and retain quality candidates to work in the Leisure Centre.
4.3 The respondent submitted that as a result of the aforementioned factors, Mr. A was taken on as a full-time member of staff on 5 February, 2011 at (on a rate of pay which was higher than that being paid to the complainant at that juncture). The respondent submitted that as part of the negotiations of his contract, it was agreed that Mr. A would cycle on behalf of the respondent and would mention that he was sponsored by the respondent at race fixtures. As part of these negotiations, it was agreed that Mr. A's rate of remuneration would increase by a further 50c per hour after he had completed six months employment. The respondent submitted that the sponsorship of Mr. A continued during the tenure of his employment and the hotel spent €3,500 on a racing bike for him as part of the continuing sponsorship. The respondent submitted that it does not operate a system of set pay-scales in terms of determining the remuneration of its employees and it is a matter for each individual employee to negotiate their own rates of pay. The respondent submitted that the complainant received a number of substantial individually negotiated pay increases over the course of her employment and that her worth within the Leisure Centre has always being acknowledged.
4.4 The respondent submitted that the complainant indicated her intention to resign from her employment in April, 2008 due to what she felt were some issues and difficulties that she was experiencing. The complainant was asked to reconsider her resignation by the General Manager, Ms. B, because she was a valued member of staff and to give the respondent the opportunity to address any concerns or difficulties she had. The respondent submitted that following discussions with the complainant, management increased her rate of pay and backdated the increase for a period of six weeks as a gesture of goodwill. The respondent submitted that when the complainant expressed dissatisfaction with her rate of pay an agreement was reached with her which was in keeping with its practice to negotiate rates of pay on an individual basis. The respondent denies that gender formed any part of the decision making process when either the complainant or Mr. A negotiated their respective rates of pay.
Promotion
4.5 The respondent also denies that the complainant has been subjected to discriminatory treatment in relation to promotion. The respondent submitted that Mr. A was promoted to the position of Leisure Centre Assistant Manager in September, 2009. This promotion arose as a result of the restructuring of the management structures within the Leisure Centre at that juncture which was necessitated following a request by the then Leisure Centre Manager, Mr. D, to be placed on a three day week. The respondent submitted that this restructuring resulted in Mr. D being demoted to the position of Leisure Centre Assistant Manager and a second role of Leisure Centre Assistant Manager was created for Mr. A at that juncture. The respondent submitted that the complainant was working on a three day week basis at that juncture and management felt that Mr. A was the most appropriate and suitable person for this role. The respondent submitted that the role was not advertised internally as it is the existing policy not to advertise any roles whatsoever internally. The respondent submitted that, in any event, the role was created specifically with Mr. A in mind as he had shown himself to be an excellent employee, fully committed to the business. The respondent claimed the fact that a male was appointed to the role of Assistant Manager in no way reflects on the complainant as a female.
Victimisation
4.6 The respondent denies that the complainant has been subjected to victimisation by the respondent contrary to section 74(2) of the Acts after she referred a complaint to the Equality Tribunal in relation to the alleged discriminatory treatment in relation to her rate of remuneration and promotion. The respondent submitted that the complainant (who remains in its employment) has not suffered adversely in any way whatsoever since making a complaint to the Equality Tribunal and it stated that she was free at all times to make a complaint in accordance with the respondent's Grievance Procedure if she had been subjected to the alleged victimisatory treatment. The respondent accepts that the General Manager, Ms. B, spoke to the complainant in relation to the complaint that she had referred to the Equality Tribunal; however, the respondent submitted that this conversation was private, very cordial and informal and that the complainant was merely asked whether she wished to continue this matter externally, or if she wished to explore the possibility of addressing the difficulties internally. The respondent submitted that this was not an act of victimisation but rather was in keeping with the open and informal policy adopted by Ms. B in terms of her interaction with staff members who may be experiencing difficulties in the workplace. The respondent submitted that details of the complainant's present case to the Equality Tribunal entered the public domain following the publication of newspaper reports regarding the judicial review proceedings which she had initiated in the High Court in relation to the admissibility of the present case. The respondent submitted that its staff was instructed by the General Manager, Ms. B, at a meeting following the publication of the newspaper articles that work should continue as normal regardless of these reports.
4.7 The respondent also denies that management created a negative or hostile working atmosphere for the complainant or that any details regarding her complaint to the Equality Tribunal were made known to Mr. A. The respondent submitted that Mr. A in tandem with the General Manager, Ms. B, did instruct the complainant to carry out a number of tasks including the task of creating a games room project. However, the respondent denies that the complainant was undermined in any manner in terms of her efforts to carry out these tasks. The respondent accepts that there may have been a difficult working relationship between Mr. A and the complainant after the details of her High Court case entered the public domain. However, the respondent submitted that it took all reasonable measures to address any difficulties that arose in terms of their working relationship and it submitted that the General Manager, Ms. B, did not take any heed or action in relation to any of the e-mails which Mr. A had sent in relation to the complainant's performance.
5. Issue of Jurisdiction in relation to the claims of Victimisation
5.1 The respondent submitted that the Tribunal does not have jurisdiction to investigate the claims of victimisation under section 74(2) of the Acts on the basis that these claims had not been included in the initial referral and it submitted that these claims have not been referred to the Tribunal within the six month time limit provided for in section 77(5)(a) of the Acts. The complainant submitted that section 77(5) of the Acts prohibits the referral of a claim after the expiration of six months from the most recent occurrence of victimisation. The complainant claims that the first incident of victimisation arose on 30 April, 2010 which occurred after the initial complaint (Form EE.1) was referred the Tribunal (on 18 January, 2010) and that the final incident occurred in early March, 2012. The complainant submitted that she forwarded a written submission to the Tribunal on 2 March, 2012 which contained details of the alleged incidents of on-going victimisation and that a further letter dated 16 March, 2012 regarding the final incident of victimisation which was addressed to the respondent was also copied to the Tribunal on 16 March, 2012. The complainant submitted that the Form EE.1 is not a statutory form and that its written submission on 2 March, 2012 (which contained details of the claim of victimisation) constitutes a complaint in its own right which complies with the six month time limit as provided for in section 77 of the Acts.
5.2 In considering this issue, I note that the complainant's initial complaint was referred to the Tribunal on 18 January, 2010 and the ground of complaint was gender. In the Complaint Referral Form (EE.1) the complainant indicated that the complaint was a claim for equal pay and a claim of discriminatory treatment in relation to promotion. The complainant subsequently forwarded a written submission to the Tribunal (which was received on 2 March, 2012) in support of these claims. In this written submission the complainant made a number of further claims of victimisation against the respondent which had not been outlined in the initial complaint. The complainant claims that this victimisation was on-going over a period of time with the first incident occurring on 30 April, 2010 and that the final incident occurred in early March, 2012. It is clear that the first incident of alleged victimisation occurred after the complainant's initial complaint had been referred to the Tribunal and accordingly, it would not have been possible for this claim to have been included in the initial EE.1 Form that was referred to the Tribunal on 18 January, 2010.
5.3 The question then turns to the issue as to whether the claims of victimisation outlined in the complainant's written submission on 2 March, 2012 and her subsequent letter to the Tribunal on 16 March, 2012 can be accepted as a valid claim in its own right which is admissible under the Acts. In considering this issue, it should be noted that the EE.1 Form is not a statutory form and therefore, a complainant is not legally obliged to use this form when referring a complaint to the Tribunal. I am satisfied that the nature of the claims of victimisation are clearly set out by the complainant in her written submission and in the subsequent letter to the Tribunal on 16 March, 2012 and in the circumstances, I accept that these claims constitute a new complaint within the meaning of the Employment Equality Acts. However, in order for these new claims to be deemed admissible they must comply with the time limits provisions contained within section 77(5) of the Acts which provides:
"(5) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
The effect of this provision is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the discrimination is issue is part of a continuum of events.
5.4 The additional claims of victimisation were received by the Tribunal on 2 March, 2012 and the occurrences of the alleged claims of harassment took place on a number of dates from 30 April, 2010 to early March, 2012. I am satisfied that the alleged victimisation constitutes a chain of events of which the most recent occurrence (i.e. in early March, 2012) was less than six months before the claim was referred to the Tribunal on 2 March, 2012. In the circumstances, I am satisfied that the additional claims of victimisation which were outlined in the complainant's written submission and the subsequent letter to the Tribunal on 16 March, 2012 comply with the provisions of section 77(5) of the Employment Equality Acts. Accordingly, I find that I do have jurisdiction to investigate these claims of victimisation.
5.5 It should also be noted that the Tribunal copied the written submission in which the additional claims of victimisation which were outlined to the respondent on 2 March, 2012. I am satisfied that the respondent was put on notice of the allegations contained therein at that juncture. In the case of County Louth Vocational Educational Committee -v- The Equality Tribunal 1, McGovern J. accepted that the Tribunal was entitled to adopt relatively informal procedures regarding the manner in which investigations are conducted provided that the principles of natural and constitutional justice are adhered to. In the present case, the respondent was afforded the opportunity to forward a written submission (which it subsequently availed of) in reply to the claims of victimisation well in advance of the oral hearing in this matter. In the circumstances, I am satisfied that the respondent was not prejudiced in terms of the manner in which the investigation in relation to this matter was conducted.
6. Conclusions of the Equality Officer in relation to the substantive issues
Equal Pay Claim
6.1 The complainant has claimed equal pay with a named male comparator (Mr. A) in accordance with section 19 of the Employment Equality Acts 1998 and 2008. She claims that she was discriminated against on the gender ground in relation to her pay. I must therefore consider whether or not the complainant was discriminated against on the gender ground in relation to her pay and is therefore entitled to equal pay with the named comparator (Mr. A). In making the decision in this claim, I have taken into account all of the submissions, both written and oral, made to me by the parties.
6.2 As the respondent does not dispute 'like work' (within the meaning of section 7(1) of the Acts) and submits that there are grounds other than gender for the difference in pay, I will proceed to consider this issue. Section 19(5) of the Acts provides that ".....nothing in this Part shall prevent an employer from paying, on grounds other than gender, different rates of remuneration to different employees."
6.3 As this provides an absolute defence to the respondent, it is a matter for the respondent to satisfy me that the difference in the rates of remuneration paid to the complainant and the comparators is genuinely attributable to grounds other than gender. In examining this matter, I note the comments of Keane J. in the case of The Minister for Transport, Energy and Communications -v- Campbell & Others where he stated that "the Labour Court is entitled and indeed bound to approach such an issue on the basis that the employer must prove that the differentiation is genuinely attributable to grounds other than sex. In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination on sexual grounds" 2. Whilst Keane J. was dealing with matters connected with a claim for equal pay on grounds of gender under the Anti- Discrimination (Pay) Act, 1974, the principle enunciated clearly applies to the instant case.
6.4 The respondent accepts that the complainant and the named comparator, Mr. A, were engaged in 'like work' within the meaning of section 7(1) of the Acts for the entire period in respective of which equal remuneration has been claimed, namely from 12 June, 2006 to September, 2009 (when Mr. A was promoted to a higher position than the complainant). Notwithstanding the foregoing, I am satisfied from the evidence adduced that the complainant was being paid a higher rate of remuneration than the named comparator, Mr. A for the period from 12 June, 2006 until 5 February, 2007 (when Mr. A's rate of remuneration was increased to a rate which was €1.00 per hour in excess of the complainant's hourly rate). I am also satisfied from the evidence adduced that the complainant and the named comparator were being paid the same hourly rates of remuneration during the period from 4th March, 2008 to September, 2009. Furthermore, I am also satisfied that both the complainant and Mr. A were subjected to a voluntary pay cut in May, 2009 which was introduced as a result of serious trading difficulties encountered by the respondent at that juncture. Therefore, the period of time in respect of which the named comparator, Mr. A, was being paid a higher rate of remuneration than the complainant was from 5th February, 2007 to 3rd March, 2008.
6.5 The principle reasons propounded by the respondent for the differential in pay between the complainant and the named comparator, Mr. A, were as follows:
- The respondent did not operate a system of settled pay scales for its employees and it was a matter for each employee to individually negotiate their rates of pay upon commencement of employment. The respondent submitted that Mr. A indicated that he would not leave his current employer for less than a certain rate of pay and he negotiated a higher starting rate of pay than the complainant.
- Mr. A was an excellent sportsman and highly successful in road cycling and as part of the negotiations on his contract it was agreed that he would cycle on behalf of the respondent which would present some excellent promotional and publicity opportunities for the business. It was agreed that the respondent would sponsor Mr. A in terms of his cycling activities which has continued during the period of his employment (the respondent spent over €3,500 on a racing bike for Mr. A as part of the continuing sponsorship deal).
6.6 The Labour Court has held on a number of occasions3 that since the facts that are necessary to prove an explanation that a process was free from discrimination can only be in the possession of the respondent, that Court (and therefore this Tribunal) should expect cogent evidence to discharge the burden of proof placed on an employer. The Court further held that it must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution4 . In considering the first point above, I am of the view that the system operated by the respondent in terms of the manner in which rates of pay were negotiated with employees was totally lacking in transparency - a situation that was held by the Court of Justice of the European Union (CJEU) in Enderby -v- Frenchay Health & the Secretary of State for Health to constitute prima facie evidence of discrimination. Based on the evidence adduced, I am not satisfied that the complainant was afforded the opportunity to 'negotiate' her rate of pay either upon commencing employment with the respondent or at the time she was promoted to the position of Leisure Centre Supervisor in June, 2006. I note that the complainant was afforded a pay increase by the respondent in April, 2008 when she raised concerns with the respondent and tendered her resignation because her rate of remuneration was less than that which was being paid to the named comparator, Mr. A, at that juncture. This pay increase resulted in the complainant obtaining parity of pay with the named comparator, Mr. A. However, I am of the view that the circumstances which resulted in the granting of this pay increase to the complainant (i.e. the fact that she had raised concerns that she was in receipt of a lesser rate of remuneration than a male colleague) would strongly suggest that the respondent realised at that juncture that paying the comparator a higher rate of remuneration could not be justified by objective factors unrelated to the complainant's gender.
6.7 In considering point two above, I am not satisfied that the respondent can rely upon the defence that the cycling commitments performed by the named comparator, Mr. A, constitutes an objective justification for the differential in pay with the complainant. Firstly, I note that the respondent has not adduced any evidence to suggest that these cycling commitments formed an integral or significant part of the position that he was employed to carry out, namely a Leisure Centre Attendant (and subsequently a Leisure Centre Supervisor and Assistant Manager). Secondly, I note that the respondent has not adduced any evidence to suggest that the comparator was better qualified or had greater experience than the complainant in terms of ability to carry out the functions associated with the job when he was employed on a full-time basis in February, 2007. Indeed, it was not in dispute that the complainant was employed at a more senior level (Leisure Centre Supervisor) than Mr. A at that juncture notwithstanding the fact that she was in receipt of a lesser rate of remuneration (albeit that the respondent accepts that the complainant and respondent were performing 'like work' at that juncture).
6.8 I am satisfied that the respondent cannot rely upon the foregoing reasons put forward as objective justification for the difference in pay between the complainant and the named comparator, Mr. A. I have also taken note of the fact that the complainant and the named comparator were the only persons employed in the position of Leisure Centre Supervisor during the period in question and therefore, I have not had the opportunity to make a direct comparison in terms of the complainant's rate of pay with another person working at that level or grade. However, notwithstanding the foregoing, I am not satisfied that the respondent has presented any cogent evidence from which I could reasonably conclude that the difference in pay paid to the complainant and Mr. A was totally unconnected to her gender. Having regard to the foregoing, I find that the respondent has failed to demonstrate to my satisfaction that the difference in the rate of pay paid to the complainant and the named comparator was genuinely attributable to grounds other than gender. Accordingly, the respondent cannot avail of the defence provided for in section 19(5) of the Acts.
Promotion
6.9 The next issue that I must consider relates to the complainant's claim that she was subjected to discriminatory treatment by the respondent on the grounds of her gender in relation to promotion to the position of Leisure Centre Assistant Manager. The complainant claims that she was not afforded the opportunity to apply for the position of Leisure Centre Assistant Manager when this position became available in September, 2009 despite the fact that she was equally if not better qualified than the person (i.e. Mr. A) who was appointed to the position at that juncture. The complainant claims that the manner in which this appointment was conducted did not comply with the respondent's documented procedures for the internal promotion of staff. The respondent denies that the complainant was subjected to discrimination on the grounds of gender in relation to promotion or access to promotion. The respondent submitted that the promotion of Mr. A to the position of Leisure Centre Assistant Manager arose as a result of a restructuring of the management structures within the Leisure Centre and that the role was created specifically with Mr. A in mind as he had shown himself to be an excellent employee and fully committed to the business. The respondent submitted that the complainant was working on a three day week basis at the time of the promotion and management felt that Mr. A was the most suitable and appropriate person for the position.
6.10 Section 8(8) of the Acts provide as follows:
"(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds -
(a) The employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
(b) The employer does not in those circumstances offer or afford the employee access in the same way to those opportunities."
In the present case, it was not in dispute that an additional position of Leisure Centre Assistant Manager was created by the respondent in September, 2009 and that the respondent decided to promote Mr. A rather than the complainant into this position at that juncture in order to facilitate a restructuring of the management structures within the Leisure Centre at that juncture. Neither was it in dispute that this promotion was effected without the position having being advertised either internally or externally. Based on the evidence adduced, it is clear that the complainant was not afforded the opportunity by the respondent to apply for promotion to the position of Leisure Centre Assistant Manager when this position was created in September, 2009 despite the fact that she had been performing to the required standard for a number of years in the grade immediately below this position. I have also taken note of the fact that the only other person employed by the respondent at that juncture at the level of Leisure Centre Supervisor (i.e. a male colleague) was promoted to the position in question. Having regard to the foregoing, I am satisfied that these facts are sufficient to raise an inference of discrimination on the grounds of gender and that the onus shifts to the respondent to rebut the inference so raised.
6.11 The respondent denies that the process which resulted in the promotion of Mr. A to the position of Leisure Centre Assistant Manager was tainted with any discrimination against the complainant on the grounds of her gender. The respondent has argued that the complainant was working on a three day week basis at the time of the promotion and that the position was created specifically with Mr. A in mind due to the restructuring of management within the Leisure Centre. The Labour Court has stated in Dublin Institute of Technology -v- A Worker5 that "It is not the responsibility of the Equality Officer or this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the sex or marital status of the complainant or the appointee influenced the decision of the Board". Therefore, it is not a matter for me to decide whether the complainant would have been a more meritorious candidate than Mr. A for the position had she been afforded the opportunity to participate in a selection process. Rather, the issue that I must decide in the context of the present complaint is whether or not the failure and/or refusal of the respondent to offer or afford the complainant access to the opportunity for promotion to the position of Leisure Centre Assistant Manager was in any way attributable or related to her gender.
6.12 Having considered the evidence adduced, I am of the view that it would not have been unreasonable for the complainant to have expected that the respondent would have brought it to her attention that there was a requirement to fill this position. The complainant had been employed by the respondent for approx. 5 years at that juncture and by the respondent's own admission had performed to a high standard and was a valued employee of the business. I cannot accept that the fact of the complainant's working arrangements (i.e. she was working on a three day week at that juncture) should have precluded the respondent from at least consulting with her to establish if she would have been interested in applying for the position. I have also taken note of the Equality Policy contained in respondent's Staff Handbook and the statement that 'the Hotel is an Equal Opportunities Employer. As such it is committed to Equality of Opportunity for existing and potential employees'. Based on the evidence adduced in the present case, I am not satisfied that the complainant was afforded equality of opportunity in terms of access to promotion to the position of Leisure Centre Assistant Manager and it is clear that the selection process for this promotion was totally lacking in openness and transparency. In the circumstances, I am not satisfied that the respondent has discharged the burden of proof that the reason the complainant was not afforded access to the opportunity to be promoted into this position was totally unconnected to her gender. Accordingly, I find, on the balance of probabilities that the respondent discriminated against the complainant on the gender ground in terms of promotion to the position of Leisure Centre Assistant Manager.
Victimisation
6.13 The final element of the claim that I must decide relates to the complainant's claims that she was subjected to victimisation contrary to the Employment Equality Acts during the course of her employment with the respondent. 'Victimisation' is defined at section 74(2) of the Acts as "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness is any proceedings under this Act or the Equal Status Act, 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Acts or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs".
6.14 The Labour Court has held in the case of the Department of Foreign Affairs -v- Patricia Cullen6 that "This definition is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2). If either the cause or the effect is missing there can be no finding of victimization within the statutory meaning". In the present case, the detriment contended by the complainant is the alleged adverse treatment which she claims to have been subjected to by the respondent following her referral of the present complaint of discriminatory treatment to the Equality Tribunal. The complainant has referred to a number of different incidents which she claims amount to victimisation contrary to the Acts including the incident where she was approached by the General Manager, Ms. B, in April, 2008 in relation to her complaint before the Tribunal, the alleged negative working atmosphere which the respondent created by placing Mr. A in a position of authority over her and the alleged subsequent attempts by to undermine her work by subjecting her to a campaign of negative criticism to management. The respondent denies that the complainant has been subjected to adverse treatment or victimisation within the meaning of the Acts (or at all) following the referral of the present complaint to the Equality Tribunal.
6.15 Having regard to the evidence adduced, I am not satisfied that the complainant has adduced sufficient evidence from which it could be reasonably concluded that she has been subjected to victimisation within the meaning of the Acts in relation to alleged adverse treatment claimed. In coming to this conclusion, I note that the respondent accepts that a conversation took place between the General Manager, Ms. B, and the complainant on 30 April, 2008 in relation to the complaint which she had referred to the Equality Tribunal. I accept the respondent's evidence that this was a cordial and non-confrontational meeting during the course of which Ms. B sought to establish from the complainant whether she wished to proceed with the complaint before the Tribunal or to try and explore the possibility of addressing the matter through the respondent's internal grievance procedures. I also accept the respondent's evidence that the complainant was not subjected to undue pressure or coercion by Mr. B to withdraw her complaint before the Tribunal arising from the discussions that took place at this meeting.
6.16 Neither have I been presented with any evidence from which I could reasonably conclude that the complainant was subjected to adverse treatment and victimisation in terms of the other incidents referred to above. Again, I have found the respondent's evidence to be more compelling in relation to these issues and I am not satisfied that the complainant has established facts from which it could be presumed that she was subjected to working in a hostile or intimidating atmosphere following the referral of the present complaint to the Tribunal. Indeed, I note that there was no evidence presented to suggest that the complainant has at any stage during her employment pursued any grievance in relation to her conditions of employment through the respondent's established Workplace Grievance Procedures. In the circumstances, I find that the complainant has failed to establish facts from which it could be inferred that she was subjected to victimisation within the meaning of section 74(2) of the Acts in the present case.
7. Decision
7.1 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. I find that:
i). The respondent has failed to demonstrate that there are grounds other than gender for the difference in pay between the complainant and the named comparator in accordance with section 29(5) of the Acts. Accordingly, I find that the respondent discriminated against the complainant on the gender ground contrary to section 29(1) of the Employment Equality Acts in relation to her pay.
ii). The respondent discriminated against the complainant on the gender ground contrary to section 8 of the Act in relation to access to promotion to the position of Leisure Centre Assistant Manager.
iii). The respondent did not subject the complainant to victimisation contrary to section 74(2) of the Acts.
7.2 In accordance with Section 82 of the Act, I therefore order that:
- The complainant is entitled to arrears of remuneration constituting the difference between what she was being paid and the named comparator, Mr. A was being paid from 5th February 2007 to 3rd March, 2008 (the difference in the rate of pay during the period from 5th February, 2007 to 1st July, 2007 was at the rate of €1.00 per hour; the difference in pay during the period from 2nd July, 2007 to 9th September, 2007 was at the rate of €0.57 per hour and the difference in pay during the period from 10th September, 2007 to 3rd March, 2008 was at the rate of €1.07 per hour. The calculation of arrears due to the complainant should be based on the respondent's standard working week of 40 hours per week). This is to include any other rights, entitlements or benefits (including average performance bonuses) that she would have been entitled to. As this portion of the redress is in relation to remuneration, it constitutes income for the purposes of the Income Tax Acts.
- The respondent pays the complainant the sum of €10,000 compensation for the effects of the discrimination in relation to access to promotion to the position of Leisure Centre Assistant Manager. This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration (and therefore is not taxable).
__________________
Enda Murphy
Equality Officer
20th August, 2013
Footnotes:
1 [2009] IEHC 370
2 [1996] ELR 106
3 Barton -v- Investec Henderson Crosthwaite Securities [2003] IRLR and A Government Department -v- An Employee EDA062
4 Nevins, Murphy, Flood -v- Portroe Stevedores [2005] 16 ELR 282
5 DEE 994
6 EDA116