DECISION NO: DEC-E/2013/100
PARTIES
Kerrie Shine
(Represented by Byrne Carolan Cunningham Solicitors)
V
Harmony Community Development Limited
(Represented by Fintan O'Reilly and Co. Solicitors)
And
Westmeath Community Development Limited
(Represented by IBEC)
FILE NO: EE/2011/295, EE/2012/342 & 343
DATE OF ISSUE: 23 August, 2013
1. Dispute
This dispute involves claims by Ms. Kerry Shine that she was discriminated against by Harmony Community Development Limited, on the grounds of gender, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008, in relation to her conditions of employment and other when she did not receive maternity top up payments and when she was treated less favourably than other employees due to being pregnant as well as a claim of harassment on grounds of gender. There are also claims that she was discriminated against by Harmony Community Development Limited and Westmeath Community Development Limited on the grounds of gender and family status in relation to conditions of employment, harassment and dismissal as well as a claim of victimisation.
2. Background
2.1 The complainant referred a complaint against the 1st named respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 18th of February, 2011. The complainant later referred complaints against the 1st and 2nd named respondents on 22nd of June 2012.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the cases on 19th of February, 2013 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from all parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 27th of May, 2013.
3. Summary of complainant's case
3.1 It is submitted that the complainant was employed by the first named respondent, Harmony Community Development (HCD) from June 2009 as a Childcare Manager on a 3 month temporary basis after which she interviewed for and was successful at obtaining the post in a permanent capacity on a part time basis. It is submitted that this was extended to full time from 8th of March 2010.
3.2 It is submitted that the complainant performed well in her job and around March 2010 had a staff appraisal with her manager Mr. K, the result of which was extremely positive.
3.3 It is submitted that the complainant informed her manager Mr. K of her pregnancy on 27th of April, 2010 and that he congratulated her but immediately advised her that the first named respondent would not be paying her a top up on her salary during her maternity leave. Subsequent to this the complainant spoke to a member of the Board of Management regarding maternity top up payments who undertook to discus the issue with the Board of Management. It is submitted that the complainant was later informed that she was to receive maternity top ups but that she did not receive such top ups for the duration of her maternity leave. It is further submitted that an amendment excluding maternity top ups was inserted into the Company Handbook as a result of the complainants pregnancy.
3.4 Following the announcement of her pregnancy it is submitted that the complainant began to experience difficulties at work and that she was treated less favourably and was marginalised and excluded by her employer in particular by Mr. K.
3.5 On 23rd of July 2010, Mr. K advised the complainant that the staff of "Blackberry Lane" pre-school were to be made redundant and that she was to inform them immediately of this decision. It is submitted that the complainant had been given no notice that this decision had been taken and had strongly opposed such redundancies and had been led to believe it was not longer being considered.
3.6 It is submitted that following these redundancies two new positions were advertised and candidates selected via an interview process. The complainant was excluded from this process despite the fact that one of her duties was to assist and advise on the recruitment of staff.
3.7 It is submitted that during this time the complainant was also informed that two members of staff had made allegations of bullying against her. No details of these allegations were given to the complainant and she was later told these were withdrawn. No formal investigation was carried out. The complainant feels she was denied fair procedures in respect of these matters.
3.8 On 28th of July 2010 and again on 11th of August 2010 the complainant saw her own position advertised in the newspaper (for her maternity cover) and felt excluded as she had not been informed that this was to be done and was not involved in the decision. It was first advertised as a part time and then as a full time post.
3.9 On 24th of August 2010 the complainant and all staff were advised that they were to be moved to different services within the next week. Again the complainant as Childcare Manager had not been involved in this decision.
3.10 On 25th of August 2010 the complainant requested a meeting with Mr. K where she advised him that she wished to invoke the grievance procedure regarding her treatment, it is submitted that Mr. K just shrugged. Despite her request no formal action was taken regarding the complainant's grievance.
3.11 On 27th of August 2010 the complainant went out from work on sick leave as she was suffering from work related stress and on 3rd of September gave birth to her baby who was nine days premature. The complainant was paid a top up for the first four weeks after her maternity leave after which she was not paid a top up
3.12 Upon her return to work from maternity leave in April, 2011 the complainant found herself working with a different set of people as a result of restructuring. The respondent company is now controlled by Westmeath Community Developments Limited (WCD) . It is submitted that on or around 1st of May 2011 the 2nd named respondent took over the 1st named respondent. It is submitted that other staff were moved to the Westmeath Community Development offices within a few weeks but that the complainant was left to work alone in the Harmony offices for the next 3 months with no explanation.
3.13 The complainant on her return from maternity leave felt isolated alone and undermined. She encountered interpersonal difficulties with another staff member Ms. R . Despite the complainants attempt to invoke the grievance procedure this matter went uninvestigated and the respondent's failed to resolve the issue.
3.14 It is submitted that following her maternity leave and her complaint of discrimination to the Tribunal the Complainants duties in relation to the 'Brawny Centre' were reduced and subjected to interference from Mr. K despite the fact that the management of this centre was within the complainants area of responsibility.
3.14 The complaint met with her new manager, Mr. M. on 19th of May 2011 to discuss these issues, Mr. P the CEO of the company was also present. It is submitted that at a meeting to discuss this issue Mr. P had advised her that WCD had not wanted to take on Harmony CDP due to her outstanding HR issues. He then advised the complainant that he and Mr. M had decided that she was not to manage this member of staff for the time being. It is submitted that this amounts to victimisation on foot of her earlier complaint.
3.15 In August 2011 the complainant applied for training assistance to complete her honours degree. She had previously received 65% of the fees for year 3 from the 1st named respondent. However as she was on maternity leave when year 4 commenced Mr. K told her she could not apply while on maternity leave and would have to wait until her return to work. When she applied to the 2nd named respondent in August 2011 she was turned down and the reason given by Mr. P was that the course had begun prior to the takeover.
3.16 On 23rd August 2011 the complainant met with Mr. M and was advised that the existing WCD Childcare Manager Ms. C would takeover the management of Brawny Centre which had previously been the complainant's area of responsibility. She was also informed that all contracts were to be reviewed in favour of the WCD model which paid staff for 52 weeks of the year and six weeks off in the summer. Prior to this a number of HCD staff had worked during the school year and signed on for jobseekers allowance during the summer as some services were only funded for 38 or 48 weeks a year. The complainant was also advised at this point that there would be no foreseeable redundancies.
3.17 On 17th of October a mediation was scheduled to take place with the 1st named respondent in the matter of the complainant first complaint to the Equality Tribunal the first named respondent cancelled the mediation on the basis that the merger had taken place.
3.18 On 16th of November 2011 the complainant and the other Childcare Manager were called to a meeting and informed that due to financial circumstances one of the Managers posts was being made redundant. The company was seeking a voluntary redundancy by 2nd of December, 2011 but if this didn't happen there would be a compulsory redundancy. Neither the complainant, nor Ms. C opted to take the voluntary redundancy, thus the complainant was informed on 6th of December, 2011 that her post was being made redundant.
3.19 It is submitted that the complainants dismissal and exclusion from decision from decision making amount to victimisation following the making of a complaint of discrimination. It is also submitted that her isolation and being left to work in an office alone as well as other adverse treatment all constitute victimisation on foot of her complaint to the Equality Tribunal.
4. Summary of respondent's case
4.1 The complainant was employed initially on a part time temporary basis and took up employment on a full time basis in March 2010.
4.2 The respondent prior to the introduction of an employee handbook had relied on a long form contract detailing its various policies and procedures. The respondent developed the "Harmony Employee Handbook (January 2010)" in November 2009 which was formally adopted on 9th of August 2010. From its inception in November 2009 the Handbook expressly excluded the payment of maternity top-up.
4.3 On 27TH of April, 2010 the complainant informed her manager Mr. K. that she was pregnant. He informed her that she was not entitled to maternity top up as it wasn't part of her contract but she was informed that she could apply to the staff liaison committee for special consideration if she wished. The complainant approached Ms. Q of the Board of Management regarding this matter and Ms. Q undertook to investigate the matter further.
4.4 The respondent attempted to obtain funding (as advised to the complainant by letter dated 10th of August 2010) to cover the cost of the complainants maternity top ups but failed to secure same. The complainant was advised of this outcome by letter dated 16th of September, 2010.
4.5 In May 2010 Mr. K made a submission to the Board recommending that the posts at 'Blackberry lane' be made redundant. He discussed this submission with the complainant prior to the Board meeting and she had agreed with his proposal. Mr. K advised the complainant that the Board had agreed the proposal after which the complainant changed her mind but the Board did not change its decision.
4.6 The complainant was excluded from the recruitment process as she was the subject of a grievance procedure wherein an allegation had been made against her that she had breached the equal opportunities policy of the respondent by temporarily promoting a member of staff without allowing other members of staff to apply for the position.
4.7 At end June 2010 the respondent received 2 complaints from staff against the complainant. The respondent advised the complainant of these matters by letter dated 13th of July 2010 enclosing copies of statements by the 2 staff members and requesting her response. The complaints were investigated and resolved by agreement on 20th of August, 2010. The complainant was legally represented during this process.
4.8 By reason of these complaints the complainant was excluded from certain meetings and communications to ensure the investigation was not seen as being biased in favour of the complainant.
4.9 The complainant was aware that cover was being sought for her position during her maternity leave she had proposed that Ms. M should be given the position. The complainant was advised that the post would be advertised and that Ms. M could apply through the proper procedure.
4.10 The complainant was not involved in the decision re rotation of staff as the rotation was necessary following the complaints made against the complainant.
4.11 On 25th of August 2010 the complainant and another employee Ms. M approached Mr. K indicating that she had a grievance against him. Mr. K responded to this verbally at the time and outlined the grievance procedure to the complainant. The complainant did not invoke the second stage of the procedure.
4.12 The complainant left work on 2 weeks annual leave on 27th of August 2010 during this time she gave birth to her child and went on maternity leave. She was paid a full wage for her first four weeks of maternity leave in error.
4.13 Following the takeover of the first named respondent, a decision was taken to place both childcare Managers in the same location in Ball Alley Lane. The complainant moved to this office in August 2011.
4.14 The difficulties which arose in relation to the 'Brawny Centre' relate to the allegations of bullying made against the complainant as this was the centre where Ms R worked and Ms. R was one of the staff members who had lodged a bullying complaint against the complainant.
4.15 The complainant sought funding from the second named respondent for a course which had commenced four years earlier when the complainant was not employed by the second named respondent and which was due to conclude a month later. The second named respondent WCD, followed its policy regarding applications for training assistance.
4.17 The respondent in November 2011 was faced with a reduction in funding income of €100,000 due to a previous overestimation in the number of children availing of its services. Having examined all options it was decided that one of the Childcare Manager posts would have to be made redundant. Voluntary redundancy was offered to both Childcare managers and when neither accepted LIFO was used to decide which position would have to be made redundant.
5. Findings and Conclusions of the Equality Officer
5.1 Preliminary Jurisdictional Issues- Time Limits, Victimisation and Correct respondent
5.1.1 Victimisation and Correct respondent
The complainant has submitted three claims to the Tribunal and has named two respondents to her claims namely Harmony Community Development (HCD) the first named respondent and Westmeath Community Development (WCD) the second named respondent. The complainant in her first complaint form names only Harmony Community Development and so the first complaint of discrimination on the ground of gender in relation to conditions of employment and harassment relates only to the first named respondent. It is agreed by both respondents that a transfer of undertakings occurred on 3rd of May 2011. It is also agreed that the first named respondent Harmony Community Development is the correct respondent to the first complaint.
5.1.2 The matter at issue relates to the second complaint which was submitted on the 22nd of June 2012 and was issued against both respondents. This claim relates to a claim of discrimination on grounds of gender and family status in relation to conditions of employment, and also includes claims in relation to victimisation harassment and dismissal. It is agreed by both respondents that a transfer of undertakings took place on 3rd of May 2011. In line with its obligations under Transfer of Undertakings legislation, the respondent consulted with affected staff in Harmony and issued standard transfer of undertakings letters on 30 November 2010. The effect of such a transfer is that the rights and obligations of the transferor would transfer to the transferee on the relevant date, in this case the transfer is alleged to have taken place on 3rd of May 2011. Both respondents provided documentary evidence that such transfer took place as outlined. In the instant case no evidence was presented to suggest that the transfer of undertaking did not take place at the relevant time. Having regard to the evidence adduced on this issue, I accept the respondents' evidence which indicates that Harmony Community Development engaged in a transfer of undertaking to Westmeath Community Development on 3rd of May 2011.
5.1.3 The complainant's second complaint is taken against both respondents and her submission states that there "may be some degree of overlap between the timing of the incidents complained of and the occurrence of the takeover /merger". The second named respondent WCD, has submitted that many of the incidents complained of relate to the complainants previous employment with the first named respondent. The second named respondent has argued that the Labour Courts recommendation in Grosvenor Cleaning Services Limited V SIPTU1 is applicable here. This concerned a claim that employees did not receive their annual leave entitlement in a particular leave year. It was argued by the transferor in that case that the cause of action for these breaches lay against the transferee. The Court rejected this argument and found that where breaches of legislation occurred and "crystallised" when the employees were employed by the transferor (i.e. pre-transfer), that the liability for these breaches did not transfer to the transferee, but remained with the transferor. This would suggest that Harmony Community Development are responsible for any actions which occurred and crystallised prior to the transfer date and that Westmeath Community Development are responsible for any actions which occurred and crystallised after that date. In the present case it is it is not clear from the outset where or when certain alleged breaches occurred and crystallised. For example the alleged victimisation took place when the complainant was dismissed in December 2011, i.e. post transfer but the protected act i.e. the complaint to which that victimisation claim relates dates back to February 2011 i.e. pre transfer thus the victimisation claim straddles both the pre and post transfer time periods. It is clear in the present case that a complaint was made against the first employer (HCD) and that the complainant was dismissed by the second employer (WCD). The second named respondent has argued that the complainant has not established a causal link between the first complaint and the alleged victimisation. The second named respondent at the hearing stated that it had been aware of the complainant's first complaint prior to the transfer of undertaking. In addition the dismissal was carried out by the second named respondent. I am thus satisfied that the second named respondent's knowledge of the first complaint is sufficient to establish the possibility of a causal link between the action of the employee and the alleged reaction by the employer. What remains to be seen is whether the employers actions constitute adverse treatment /dismissal within the meaning of section 74 (2) and whether these actions were taken as a result of the initial complaint. I am thus satisfied that as the second complaint straddles the time period before and after the transfer of undertakings, the complaint can be taken against both respondents and I will assign responsibility as appropriate and contingent on my findings, for any individual breaches in the course of my decision.
5.2 Time Limits
5.2.1 The second named respondent submits that the allegations made by the complainant are for the most part outside of the time limits set down by the legislation. The respondent has argued that as the complaint was submitted on 22nd of June 2012 the applicable time period for this claim is therefore from 23rd of December, 2011 to 22nd of June 2012 and submits that as the complainants employment was terminated on the 31st of December 2011 most of the allegations made are outside of the time limit.
5.2.2 This is only relevant in the circumstance where the claim itself is made outside of the 6 months time limit set out in Section 77(5) of the Acts. This is not relevant in the instant case as the claim was submitted on 22nd of June 2012 and the last alleged incident took place on 31st of December 2011, thus I am satisfied that the relevant complaint was submitted within the 6 months time limit set out in Section 77(5) of the Acts. In addition, the decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24th July 2009, provides a clear authority to allow me to investigate additional acts which occurred prior to the initiation of the claim once the nature of the claim is the same.
In Brannigan McGovern, J said:
I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints, which are made within that expanded period, are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice
5.2.3 I am satisfied, that in the instant case, all of the incidents relate to allegations of discrimination on the grounds of gender and family status and of victimisation. I am also satisfied that the respondent was on notice of all matters referred therein having received a copy of the complaint on 30th July, 2012. I am thus satisfied that I have jurisdiction to investigate all matters referred therein.
5.3 Discrimination
5.3.1 The issue for decision by me now is, whether or not, the respondents discriminated against the complainant, on grounds of gender and family status, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her treatment during and after her pregnancy and in relation to her dismissal. I must also decide whether the complainant was harassed on these grounds and/or victimised following a complaint of discrimination to the Equality Tribunal. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.3.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.3.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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 specified in subsection (2)....." Sections 6(2)(a)(b) and (c) of the Acts define the discriminatory grounds of gender, marital status and family status as follows - "as between any 2 persons, ...
(a) that one is a woman and the other is a man,..
(b) that they are of different marital status...
(c) that one has a family and the other does not "...
5.4 Gender-Pregnancy and the special protected period
5.4.1 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions in Webb v EMO Air Cargo (UK) Ltd2 Brown v Rentokil Ltd3 and Dekker v Stichting Vormingscentrum4 . The Labour Court in Trailer Care Holdings Ltd Vs Deborah Healy5 referred to the fact that "the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive". Futhermore it refers specifically to Dekker v Stichting Vormingscentrum and the fact that "the Court of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to an employer's business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant"6
5.5 Treatment during pregnancy -Top ups
5.5.1 The complainant has submitted that following the announcement of her pregnancy she was immediately advised by the first named respondent, Harmony Community Development (HCD) that she would not be getting maternity top up pay. She further submits that a reference to the exclusion of maternity top ups was deliberately inserted in to the Employee Handbook following the announcement of her pregnancy in a bid to exclude her from any entitlement to maternity top up pay. The complainant advised the hearing that her manager Mr. K immediately upon hearing of her pregnancy told her that she would not be receiving a top up to her salary. The complainant advised the hearing that she later approached Ms. Q of the Bord of Management on this issue and that Ms. Q advised her that she would bring the matter to the attention of the Board. The complainant has submitted that the Employee Handbook had up to this point made no mention of excluding maternity top ups and that this exclusion was only inserted after her pregnancy. It emerged at the hearing that it was the employees long form contracts which had up to now contained all policies and procedures of the organisation but made no reference to maternity top ups. The complainant at the hearing stated that her contract had made no reference to maternity top ups. Witness for the first named respondent HCD, Mr. K advised the hearing that the Employee Handbook clearly stated that maternity top ups were not paid by the company. In response to the complainants claim that this reference was inserted as a result of her pregnancy Mr. K advised the hearing that although the current version of the Employee Handbook had only been finalised in June 2010, all earlier versions which had been in existence since November 2009 had also clearly stated that maternity top ups were not paid by the company. The complainant submitted that she had knowledge of a female employee who had nine years previously received top ups while on maternity leave. The complainant had no documentary evidence to corroborate this claim. The first named respondent advised the hearing that they had sought to ascertain whether or not this was the case but stated that no records could be found relating to this matter and that none of the serving Board Members had been on the Board at that time and so could not confirm or deny whether it had happened.
5.5.2 Witness for the respondent Mr. K stated that to his knowledge maternity top ups were not paid by HCD but that he had nonetheless advised the complainant that she could apply for special consideration to have the matter reviewed by the Board of Management. Mr. K added that the Board had in fact later sought to obtain additional funding to cover such a top up for the complainant and had even sought to fill the complainant's maternity cover with a part time post in order to have extra funding available to cover the top ups but added that in the end it had to be upgraded to a full time post due to the poor response to the part time advertisement.
5.5.3 The complainant advised the hearing that she had firstly been advised by Mr. K that she was not entitled to maternity top ups but that she had later been led to believe by Mr. K and Ms. Q that she would be receiving these top ups before being advised in the end that she would not receive same. Witness for the respondent Ms. Q gave evidence that the complainant had asked her about maternity top ups and stated that she had undertaken to bring the matter to the attention of the Board which she subsequently did. Ms. Q advised the hearing that, the Board had sought funding in order to pay the complainant the top up but had unfortunately been refused the additional funding. The complainant advised the hearing that Mr. K had led her to believe she would be receiving the top ups and that she had even had a conversation with Mr. K and the Company Administrator regarding how such top up would be administered. Mr. K, at the hearing, agreed that such conversation did take place but said it was on the basis of a discussion of how such a top up would be administered if such top up was to be paid.
5.5.4 As regards the complainant's claim that the exclusion of maternity top ups was only inserted in the Employee Handbook after the complainant advised them of her pregnancy I am not satisfied that the complainant has produced any evidence to substantiate this claim. Witnesses for the respondent have admitted that this Handbook was not finally signed off until June 2010 after the complainant had announced that she was pregnant but have advised that earlier versions did contain the same reference excluding maternity top ups. In any event it is accepted by both parties that prior to the completion of the Handbook, employees were bound by the policies and procedures outlined in the long form contract which made no mention of maternity top ups. In addition I am satisfied that, notwithstanding the fact that the complainant had no official entitlement to maternity top up, the respondent made efforts to secure funding which might enable them to pay the complainant maternity top ups, but in the end failed to secure such funding. I am thus satisfied based on the totality of the evidence adduced on this matter that that the first named respondent did not discriminate against the complainant in relation to these matters.
5.6 Treatment during pregnancy- Exclusion from decision making re 'Blackberry Lane pre school'
5.6.1 The complainant has submitted that following the announcement of her pregnancy she experienced difficulties at work and was treated less favourably. To substantiate this claim the complainant at the hearing outlined the circumstances surrounding the closure of the 'Blackberry Lane' pre school. The complainant submitted that the Bord had taken a decision that all posts at the pre school be made redundant and had not involved her in the decision. The complainant added that she was advised of this decision about 20 minutes before she had to notify the affected staff of the matter.
5.6.2 It emerged at the hearing that the complainant had in fact been involved in the decision to make the posts redundant but that she had later changed her mind and suggested that only 1 post be made redundant. Mr. K witness for the first named respondent advised the hearing that the complainant had approached him after changing her mind and stated that he had advised her that he would relay her new position to the Bord. Mr. K stated that he advised the Board of the complainant's change of position but stated that the Board nonetheless decided to stick with the original decision to make all posts redundant. The complainant at the hearing conceded that she had been involved in the original decision to make the posts redundant but stated that she had later changed her mind and had believed that her new position would be taken on board. The complainant at the hearing agreed that Mr. K had undertaken to put her revised position to the Board but that they decided to proceed with the original decision to make all posts redundant. Mr. K advised the hearing that the complainant's change of position had to be put to the Board and added that this resulted in a delay in informing the staff at 'Blackberry Lane' of the redundancies. Mr. K added that this was the reason for the final urgency in advising the staff of the redundancies. The complainant at the hearing did not dispute this. Accordingly I am satisfied that the complainant was not excluded from the decision to close Blackberry Lane pre-school. I am thus satisfied based on the totality of the evidence adduced on this matter that that the first named respondent did not discriminate against the complainant in relation to this matter. I am also satisfied that the complainant's treatment in relation to this matter does not amount to harassment on the grounds of gender.
5.7 Allegations of Bullying against Complainant
5.7.1 In July 2010 the complainant was informed that two members of staff had made allegations of bullying against her. The complainant submits that she was given no details of these allegations and that she was later told these allegations were withdrawn. It is submitted that the complainant was denied fair procedures in relation to these matters. The respondent has submitted that the complainant was issued with a statement of the allegations and given a time within which to respond following this the respondent submits that the matter was resolved by agreement of all parties.
5.7.2 The complainant, at the hearing, stated that she was not informed of these allegations initially but that the two employees in question had been out on sick leave and that she had phoned Mr. K who was on holidays to ask him about this matter and that he had told her they would chat when he returned to the office. The complainant went on to state that she and two other colleagues Ms. A and Ms. S had been called into the office by Ms. J and Ms. W and advised that allegations had been made against all three of them. No names or details were given at this stage.
5.7.3 The respondent advised the hearing that on 14th of July 2010 the complainant was issued with a letter (copy submitted) regarding these allegations and enclosing a copy of the formal written statements of the staff members involved. A written response from the complainant to these matters was also requested and same was submitted by the complainant. A letter issued from the respondent to the complainant on 12th of August 2010 indicating that the matter could be resolved on an informal basis and setting out the terms of resolution agreement. The respondent submits that it is on the basis of this resolution agreement that the reorganisation of staff occurred in order to ensure that the staff members who made the allegations would no longer have to report directly to the complainant. A letter issued from the complainants representative on 20th of August, 2010 suggesting some amendments to the resolution agreement which were adopted in the final agreement. The respondent deemed the matter to be closed and resolved and a letter from SIPTU on behalf of the two staff members involved indicated that they were withdrawing their grievances based on the resolution.
5.7.4 The complainant at the hearing argued that she did not see this as the end of the matter and that she had later requested through her legal representative that the respondent revert to her regarding the matter. The respondent advised the hearing that they had replied to the complainant enclosing the letter from SIPTU indicating that the matter had been withdrawn. I am satisfied from the totality of the evidence given in this matter that the complainant was given sufficient details of the allegations (also submitted to the Tribunal) and was afforded an opportunity to respond to them as well as to provide input into the final resolution agreement. I am thus satisfied based on the totality of the evidence adduced on this matter that that the first named respondent did not discriminate against the complainant in relation to these matters.
5.8 Exclusion from recruitment process
5.8.1 The complainant submits that she was excluded from the recruitment process at 'Blackberry Lane' pre school. The complainant at the hearing stated that Mr. K had advised the staff of the pre school, at the time of their redundancies, that they would be invited to apply for 2 new posts which would be advertised, and that he and the complainant would be excluded from the interview process for the avoidance of bias. The complainant stated that on 13th of August 2010 these interviews took place and that Mr. K despite his earlier statement had been on the interview panel. Mr. K at the hearing, stated that the Bord had insisted that he sit on the interview panel despite his protestations and that he had had no choice but to comply with the instructions of the Bord. Mr. K also added that the complainant was at this time the subject of a grievance alleging that she had breached the respondents equal opportunities policy by temporarily promoting a member of staff without allowing other staff members to apply for the position. The complainant at the hearing did not deny that such allegations had been made.
5.8.2 The complainant has submitted that on 24th of August 2010 she and all staff were advised that they were to be moved to different services in the next week. The complainant at the hearing stated that again she had not been involved in this decision. The complainant also advised the hearing that prior to the announcement Mr. K and two members of the Board had approached her at her desk and advised her about the decision. The respondent advised the hearing that the reason for this reorganisation was to relocate 2 staff members who had made allegations of bullying against the complainant. The staff members had been reporting directly to the complainant and the reorganisation was to relocate them from her report. Mr. K stated that this reasoning was advised to the complainant and formed part of the resolution to the complaints. The complainant at the hearing acknowledged that such allegations had been made against her by two staff members. I am satisfied based on the totality of the evidence adduced on this matter that that the first named respondent did not discriminate against the complainant in relation to these matters. I am also satisfied that the complainant's treatment in respect of this matter does not amount to harassment on the grounds of gender.
5.9 Complainants Grievance
5.9.1 On 25th of August 2010 the complainant raised a grievance with her manager Mr. K. The complainant submits that this grievance was not progressed by Mr. K and that she heard no more about it. Mr. K advised the hearing that on the date in question he was approached by the complainant and two of her colleagues and that they had advised him that they wished to raise a grievance with him about the way he treated them, Mr. K said he felt a bit intimidated as he was alone when they approached him but he advised the hearing that he answered the issues raised by them and that he had heard no more about it. The respondent at the hearing drew attention to the steps involved in the grievance procedure and indicated that the first step to be taken by an employee with a grievance was to raise the issue with that persons direct line manager. The next step is to take the matter to the Board of Management. The complainant claims that her grievance was not progressed by Mr. K and it is Mr. K's position that he had responded verbally to the issues raised and that it was now up to the complainant if not satisfied with his response to take the matter to the Board of Management, in accordance with the documented grievance procedure.
5.9.2 When questioned at the hearing as to why she did not progress the matter any further the complainant replied that she was stressed at the time so it may not have been a priority of hers to follow it up on that day. She then added that her next step when she went out on maternity leave was to take legal advice on the matter. I am thus satisfied from the evidence given that the complainants grievance was dealt with in accordance with documented company procedures and that it was the complainant herself who, by her own admission due to stress, did not progress the matter any further. I am thus satisfied based on the totality of the evidence adduced on this matter that that the first named respondent did not discriminate against the complainant in relation to these matters. I am also satisfied that the complainant's treatment in respect of this matter does not amount to harassment on the grounds of gender.
5.10 Staff cover at Brawny and meeting with CEO of second named respondent
5.10.1 It is submitted that on 4th of May 2011 the Complainant attended Brawny Community Centre to give P45's to Ms. R and Ms. W in relation to the takeover. Prior to her maternity leave these two members of staff had made bullying allegations against the complainant and two other staff members. The complainant advised the hearing that on the day in question Ms. R had displayed aggressive body language and had pulled the document from her hand.
5.10.2 On 11th of May 2011 Ms. R contacted the Administrators Office stating that she had asked the complainant by text for staff cover as Ms D was going home sick. The complainant advised the hearing that her work mobile had been lost prior to her return to work so she hadn't received the text. The complainant advised the hearing that she herself then went to Brawny centre and was told that Ms. R had contacted Mr. K directly and said that she herself was also going home. Despite the fact that it was the complainant's duty to arrange cover Mr. K had asked another staff member Ms. M to arrange cover without consulting the complainant. The complainant felt that Mr. K was interfering in her area of responsibility.
5.10.3 On 12th of May 2011 the complainant attempted to speak to Ms. R about an incident with a parent the previous day. Ms R informed her that she was not allowed to speak to her and to take it up with Mr. M the complainant's new manager. The complainant subsequently heard that Ms R and Ms. W had refused to work with the complainant following their allegations against her of bullying. The complaint met with Mr M. on 19th of May 2011 to discuss these issues and Mr. P the CEO of the company was also present.
5.11 Victimisation- Meeting with Mr. P and reference to previous HR issues
5.11.1 The complainant submitted that she was told by Mr. P at the meeting of 19th of May 2011, that WCD had not wanted to take on HCD due to the complainant's outstanding HR issues. The complainant submits that this was a direct reference to her outstanding Equality claim against the first named respondent and submits that this amounted to victimisation on foot of her earlier complaint.
5.11.2 It is submitted that Mr. P advised the complainant at this meeting that WCD had not wanted to take on HCD due to her outstanding HR issues. Mr. P at the hearing denied that he made this statement to the complainant. Mr. M who was also present at the meeting on the date in question also denied that Mr. P made such a comment. Mr. P advised the hearing, that he had commented to the complainant about how difficult the situation was for him taking over a new organization but that he would never have made a direct reference to her HR issues and added that there had never been an issue of WCD not wanting to take on Harmony due to this. Mr. P went on to state that he was aware of the outstanding issues regarding the bullying allegations and that any reference to the difficulties had been in relation to his attempting to resolve the issues relating to the bullying allegations. It was submitted that the second named respondent at no point made any reference to the complainants Equality complaint against the first named respondent. The complainant when questioned at the hearing did concede that any reference to difficulties regarding HR issues could in the circumstances have been a reference to the outstanding bullying allegations. I am satisfied from the totality of the evidence adduced here that the reference to 'the difficulties' was in the context of the attempt to find a resolution to the bullying allegations and was not related to the complainants earlier complaint of discrimination. Accordingly I am satisfied that the complainant was not discriminated against or victimised by the second named respondent in relation to these matters.
5.11.3 It was submitted by the complainant that Mr. P advised her at the meeting of 19th of May 2011, that he and Mr. M had decided that she was not to manage Ms. R, who worked in the 'Brawny Centre' for the time being. Mr. P when questioned on this matter at the hearing conceded that he had advised the complainant of this fact as it had been agreed as part of the resolution to the bullying allegations that the staff members in question would no longer report directly to the complainant although there would still be some work related contact due to meetings etc. I am thus satisfied from the totality of the evidence adduced in relation to this matter that these changes in relation to the complainant's area of responsibility were imposed due to the bullying allegations made against her and formed part of the agreed resolution to these matters and were not related to the complainant's pregnancy or to her earlier complaint of discrimination against the first named respondent. Accordingly I am satisfied that the complainant was not discriminated against or victimised by the second named respondent in relation to these matters. I am also satisfied that the complainant's treatment in respect of this matter does not amount to harassment on the grounds of gender.
5.12 Isolation and being left alone in Building
5.12.1 The complainant advised the hearing that following the merger between HCD and WCD the two other office based staff members were moved to the Westmeath Community Development Offices while the complainant remained alone in the Harmony Offices for three months before being moved to the new office at the end of August 2011. The respondent at the hearing stated that the complainant had not been left alone in the Harmony building and stated that another staff member Ms. D had also remained in the Harmony building but acknowledged the complainants assertion that Ms. D had worked mornings only. The respondent stated there were also other offices based in and occupying this building thus the complainant was not by any means alone in the building. The respondent stated that Mr. K had moved to the WCD offices in June 2011. The respondent also added that the complainant was required to spend very little time in her office during the period in question as her role required that she spent most of her time, during the summer period, off site at various summer camps. The complainant at the hearing acknowledged that this was the case.
5.12.2 The respondent at the hearing outlined how the complainant occupied one of two Childcare Manager roles within the new organisation. The other Childcare Manager was located in the WCD offices. The second named respondent advised the hearing that a decision was made to place the two childcare managers in the same location but that a decision hadn't, at the time in question, been made on which location thus both Managers were left in their respective buildings. The respondent advised the hearing that following the transfer in undertakings it undertook a review of all services to determine how best to merge the services. The result of this review included a recommendation that the Childcare Managers be based in the Westmeath Offices and this was communicated to the complainant on 12 August 2011 following which she relocated to the Westmeath Offices. I am thus satisfied based on the totality of the evidence adduced on this matter that the complainant was not discriminated against or victimised by the second named respondent in relation to these matters. I am also satisfied that the complainant's treatment in respect of this matter does not amount to harassment on the grounds of gender.
5.13 Application for funding for Training
5.13.1 The complainant submits that she made an application for funding to the first named respondent and that this application was refused by Mr. K due to the fact that she was on maternity leave. The complainant submits that she reapplied for this funding to the second named respondent after her return from maternity leave and that it was refused on the basis that she had not been employed with the second named respondent when she had commenced the course. The complainant offered no documentary evidence or corroborating witnesses to the claim that she had applied for and been refused this funding by Mr. K due to her maternity leave.
5.13.2 Mr. K of the First named respondent denies that the complainant requested funding before or during her maternity leave and denies that he refused such an application. Mr. K added that the complainant had received funding for this course the previous year and that he understood that she was now almost finished the course. The complainant acknowledged that this was the case and that she had in the previous year received funding for the third year of the course. I am satisfied from the totality of the evidence adduced on this matter that the complainant was not discriminated against or victimised by the first named respondent in relation to this matter.
5.13.3 The complainant advised the hearing that she reapplied for this funding to the second named respondent after her return from maternity leave and stated that her application was refused on the basis that she had not been employed with the second named respondent when she had commenced the course. The second named respondent at the hearing agreed that they had refused the complainants application for funding and stated that it was not their policy to provide funding for a course which was all but completed during the applicant's previous employment. The second named respondent advised the hearing that it does have policies and procedures regarding how an application for such funding can be made and that such application must be made and approved prior to the commencement of the course in question but added that on this occasion the complainant had all but completed the course as it was due to finish in the following month, and that the first three years of the course had been completed before the complainant became an employee of WCD. I am satisfied from the evidence given that the second named respondent adhered to its own documented policy regarding applications for funding for courses and that its refusal to provide the complainant with training assistance was unrelated to her earlier complaint of discrimination against the first named respondent. I am thus satisfied from the totality of evidence adduced in relation to this matter that the complainant was not discriminated against or victimised by the second named respondent in relation to this matter.
5.14 Victimisatory Dismissal
5.14.1 The complainant was informed on 6th of December, 2011 that her post was being made redundant. It is submitted that this dismissal amounts to victimisation on foot of her earlier complaint of discrimination. The complainant advised the hearing that she and the other Childcare Manager, Ms. C were called to a meeting on 16th of November, 2011 and informed that, due to financial circumstances one of the Childcare Managers posts was being made redundant. They were advised that the company was in the first instance seeking a voluntary redundancy by 2nd of December, 2011 but advised that if this didn't happen there would be a compulsory redundancy. The complainant advised the hearing that Ms. C did not take the voluntary redundancy and as the complainant was less senior to Ms. C she was informed on 6th of December, 2011 that her post was being made redundant.
5.14.2 The complainant disputes the fact that this was a genuine redundancy situation as she advised the hearing that a meeting had taken place in August where she had been informed that all contracts were being reviewed in favour of the WCD model which paid staff for 52 weeks of the year and six weeks off in the summer. Prior to this a number of HCD staff had worked during the school year and signed on for jobseekers allowance during the summer as some services were only funded for 38 or 48 weeks a year. The complainant at the hearing stated that she had also been advised at this point that there would be no foreseeable redundancies. Thus the complainant disputes the fact that a few months later it was necessary to make one of the Childcare Managers redundant. The complainant advised the hearing that the reason given for her redundancy was due to a lack of funding. The complainant stated that funding was based on the number of children availing of the services and stated that the numbers hadn't changed substantially since the previous year.
5.14.3 The respondent advised the hearing that it had not foreseen any redundancies in August 2011 and that it was the respondents view at the time the new contracts were given that there would be adequate funding to cover these wages. The respondent added that they were operating on the basis of the number of children who were to avail of their services in the coming year and stated that based on these figures and associated levels of funding there would have been no need for redundancies. The respondent stated that these figures were based on projections inputted by the childcare staff and that the number of children expected did not materialise thus resulting in a shortfall of 40 less children registering for services and a shortfall in funding to the amount of €100, 000 below what had been projected. Mr. M of the second named respondent gave evidence that this resulted in a necessity to cut the salaries bill and stated that the Deputy CEO had also been made redundant.
5.14.4 Mr. M added that as the Childcare Managers were on a significant salary, having examined many other options it appeared that this was the best solution as substantial cost cutting was necessary. Mr. M at the hearing denied that this redundancy was in any was connected to or influenced by the complainants earlier complaint to the Tribunal and added that this redundancy was presented to both Childcare Managers thus had Ms. C accepted the redundancy then the complainant would have continued on in her position and Ms. C would have been made redundant.
5.14.5 The complainant at the hearing accepted that the projected figures for the coming year had been overestimated and that this had resulted in a significant fall in funding to the tune of €100,000. The complainant did not dispute these facts or figures but disputed the fact that the only available option was to make one of the Childcare Managers redundant.
5.14.6 The complainant at the hearing stated that she had been advised by other staff following her redundancy that an appeal was made to all staff on 15th of December, 2011 requesting suggestions for cost savings including voluntary redundancies temporary lay offs and shorter working weeks and requesting volunteers for same. The complainant added that she was not given the chance to avail of any of these options. The respondent at the hearing stated that the salary of the Childcare Managers was so high that the only option for a saving such as was necessary was to make one of those posts redundant, he added that the appeal to staff for cost saving measures came after that decision, and was a bid to secure further cost savings having already reduced the Childcare Managers from two to one. He added that further savings were required and so further measures were looked at.
5.14.7 The respondent in its evidence to the Tribunal provided documentary evidence of projected and actual numbers of children and associated funding. The complainant does not dispute the fact that such a shortfall in funding occurred and I am satisfied that the respondent was in a position where cost savings had to be made to operate within its new level of funding. The respondent in its submissions and at the hearing provided details on the other options considered and the reasoning behind same as well as the reasons it came to a decision to terminate one of the Childcare Workers posts. I am satisfied that this decision was based on cost savings and that it was not in any way connected to or influenced by the complainants earlier complaint to the Tribunal. In addition the decision made was to make one of two posts redundant and as both occupants were firstly offered the option of voluntary redundancy it could have resulted in the other candidate Ms. C being made redundant and the complainant's employment with the respondent would have continued. Thus I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant's redundancy was not influenced by her earlier claim of discrimination and accordingly she was not victimised in relation to her redundancy.
5.15 Claim of Discrimination on grounds of family status
5.15.1 The complainant did not provide any evidence to substantiate her claims of discrimination on the ground of family status. Therefore I am satisfied that the complainant was not discriminated against on grounds of family status by the first named or by the second named respondent.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the first named respondent did not discriminate against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of the following matters
- the respondents failure to pay the complainant top ups on her salary while on maternity leave and the inclusion in the Company Handbook of a reference to maternity top ups
- her alleged exclusion from decision making regarding redundancies and at Blackberry Lane pre school
- her exclusion from the interview process in respect of Blackberry Lane pre school
- the alleged reduction of the complainants responsibilities following the notification of her pregnancy
- her alleged marginalization and exclusion from decision making following the announcement of her pregnancy
- the alleged denial of fair procedures in respect of allegations of bullying against the complainant
- the rotation of staff to different services
- the alleged failure to invoke the grievance procedure in respect of a grievance raised by the complainant against Mr. K
- the alleged refusal to provide the complainant with funding for training
- the reduction in the complainants responsibilities in respect of the Brawny Centre
(ii) that the first named respondent did not harass the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to Section 14A (7) of those Acts in respect of the following matters
- the complainants alleged exclusion from decision making regarding redundancies and at Blackberry Lane pre school
- her exclusion from the interview process in respect of Blackberry Lane pre school
- the alleged failure to invoke the grievance procedure in respect of a grievance raised by the complainant against Mr. K
- the reduction in the complainants responsibilities in respect of the Brawny Centre
- the complainants exclusion from certain decisions re reorganisation of staff
- the alleged reduction of the complainants responsibilities following the notification of her pregnancy
(iii) that the first named respondent did not victimise the complainant following a complaint of discrimination to the Tribunal contrary to section 74(2) of the Acts in relation to the following matters
- the complainants alleged isolation due to being left to work alone in the Harmony Offices following the takeover
- the alleged reduction of the complainants responsibilities following a complaint to the Tribunal
- the reduction in the complainants responsibilities in respect of the Brawny Centre and the alleged failure to investigate the complainant's ongoing personal difficulties with Ms. R
- the comments allegedly made by Mr. P regarding her HR difficulties
- the failure to provide her with training assistance
- the complainants dismissal by means of her redundancy
(iv) that the second named respondent did not discriminate against the complainant on grounds of gender or family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of the following matters
- the complainants alleged isolation due to being left to work alone in the Harmony Offices following the takeover
- the reduction in the complainants responsibilities in respect of the Brawny Centre and the alleged failure to investigate the complainant's ongoing personal difficulties with Ms. R
- the comments allegedly made by Mr. P regarding her HR difficulties
- the failure to provide her with training assistance
(v) that the second named respondent did not harass the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to Section 14A (7) of those Acts in respect of the following matters
- the complainants alleged isolation due to being left to work alone in the Harmony Offices following the takeover
- the reduction in the complainant's responsibilities in respect of the Brawny Centre
(vi) that the second named respondent did not victimise the complainant following a complaint of discrimination to the Tribunal contrary to section 74(2) of the Acts in respect of following matters
- the complainants alleged isolation due to being left to work alone in the Harmony Offices following the takeover
- the alleged reduction of the complainant's responsibilities following a complaint to the Tribunal
- the reduction in the complainant's responsibilities in respect of the Brawny Centre and the alleged failure to investigate the complainant's ongoing personal difficulties with Ms. R
- the comments allegedly made by Mr. P regarding her HR difficulties
- the failure to provide her with training assistance
- the complainants dismissal by means of her redundancy
(vii) that the first named respondent did not discriminate against the complainant on grounds of family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts
(viii) that the second named respondent did not discriminate against the complainant on grounds of family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts
____________________
Orla Jones
Equality Officer
23 August, 2013
Footnotes:
1 Labour Court Determination No. DWT0440
2 [1994] ECR 1-3567
3 [1998] ECR 1-04185
4 [1990] ECR 1-3941
5 EDA No 128
6 [1990] ECR 1-3941