DECISION NO: DEC-E/2013/040
PARTIES
ESHILAMA
(REPRESENTED BY KEVIN HIGGINS- SOLICITORS)
-V-
NORTHERN TRUST MANAGEMENT SERVICES IRELAND LTD.
(REPRESENTED BY MS. ROSEMARY MALLON BL
INSTRUCTED BY ARTHUR COX - SOLICITORS)
File No: EE/2010/456
Date of issue: 10 May, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6 and 8 - gender - race - pregnancy- discriminatory treatment - dismissal - selection for redundancy - training - promotion.
1. DISPUTE
This dispute involves a claim by Ms. Bridget Eshilama, who is Nigerian (hereafter called "the complainant") that she was (i) discriminated against by Northern Trust Management Services Ireland Ltd. (hereafter called "the respondent") on grounds of race, marital status and family status, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts in relation to her conditions of employment and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race, marital status and family status, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those. The respondent rejects the complainant's assertions in their entirety.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a Funds Technician in September, 2006 and was appointed to the position of Analyst in October, 2007. She states that in June, 2008 she was informed by her Line Manager she was to be promoted to the position of Senior Analyst but this promotion never occurred, although she subsequently performed some of the functions associated with the position without any increase in remuneration. The complainant submits that the respondent's failure to promote her to this position amounts to discrimination of her on grounds of race, marital status and family status contrary to the Employment Equality Acts, 1998-2008. The complainant adds that the respondent denied her access to training and submits this also amounts to discrimination of her on the same three grounds contrary to the Acts. Finally, the complainant states that the respondent terminated her employment in December, 2009 in circumstances amounting to discrimination on grounds of race, marital status and family status contrary to the Employment Equality Acts, 1998-2008. The respondent rejects these assertions stating that (a) the complainant was not a candidate for promotion in June, 2008, (b) the complainant was afforded every opportunity to avail of training opportunities during her employment and that the only occasion she was requested to cancel training was in July, 2008 when the particular business needs which prevailed required same and (c) the complainant's employment was terminated by way of redundancy, along with seventeen other employees, following a comprehensive consultation and selection process during which the respondent engaged fully with the complainant.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 17 June, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 18 July, 2012 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 1 October, 2012, 22 November, 2012, 23 November, 2012 and 17 December, 2012. At the first day of Hearing the complainant's solicitor confirmed that a significant component of the complaint was connected with the fact the complainant was pregnant (a) at the time she was informed she was to be promoted (b) when the consultation/selection process in relation to redundancy arose and (c) for other periods during her employment with the respondent. He submitted therefore that the complaint was also being advanced on grounds of gender, notwithstanding the fact that the Referral Form (Form EE1) did not indicate this. Counsel for the respondent objected to the complainant seeking to advance her complaint on a new discriminatory ground at this juncture.
2.3 It is clear from caselaw1 that the EE1 Form is not statute based and it is permissible to amend a complaint provided the general nature of the complaint remains and there is no prejudice to the respondent. In the instant case the complainant's solicitor incorrectly believed that matters relating to pregnancy were covered by the "family status" ground. A sizeable submission was attached to the EE1 Form filed on behalf of the complainant on 17 June, 2009 and this was copied to the respondent a week later. It was evident from this submission that the complainant's periods of pregnancy were fundamental to her complaint. The respondent was aware of this from the referral of the complaint and made no argument on the matter when it filed its responding submission on 10 March, 2011. After considering the arguments advanced by both parties on this matter I decided that (a) the nature of the complaint had not changed - matters connected with the complainant's pregnancy were part of the complaint from the outset notwithstanding the error on the part of the complainant's solicitor when completing the EE1 Form and (b) no prejudice arose to the respondent. Consequently, the complainant is entitled to advance her complaint on the gender ground.
2.4 In the course of the Hearing on 1 October, 2012 the parties were requested to furnish comments on whether or not the identity of witnesses should be anonymised in this Decision. Neither party had any particular comments to make and each indicated it was happy to leave the matter to the Equality Officer. It has previously been my general practice to anonymise witnesses and I see no reason to depart from that practice in the instant case.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she commenced employment with the respondent as a Funds Technician in its Shareholder Services Department on 1 September, 2006 and was appointed a permanent employee with effect from 2 April, 2007. She adds that she was subsequently assigned to the position of Analyst in the respondent's Transfer Agency Team in September, 2007. She further states that she was on maternity leave from 17 September, 2007 until 1 April, 2008. The complainant asserts that her Team Leader (Ms. G) approached her in late May/early June, 2008 after a Team Meeting and informed her that she (the complainant) was to be promoted to Senior Analyst, although she knew Ms. G did not have the authority to make that decision. She states that she understood this to mean she would have duties with a higher responsibility than heretofore and that the role would involve an increase in salary. The complainant adds that within days of her conversation with Ms. G she (the complainant) was given access codes to higher levels of information within the system. She adds she was also made an authorised signatory on certain of the respondent's accounts and attended fund launch meeting on two/three occasions. The complainant states that she performed these higher level functions until December, 2008 when she went on sick leave, immediately followed by a further period of maternity leave.
3.2 The complainant states when she did not receive any confirmation of her promotion she raised the matter with Ms. G by e-mail on 23 June, 2008. She states that Ms. G replied by e-mail later that day advising that she would attempt to meet with Ms. D (Head of the respondent's Transfer Agency) and Mr. A (Ms. G's Line Manager) to discuss the matter and would revert to her. The complainant adds that Ms. G made reference to the mid-year reviews which were scheduled and that a more definite update was likely to be available then. The complainant states that she replied by e-mail immediately seeking a meeting with Ms. G to clarify the matter and she (Ms. G) replied advising that they would meet within the week. The complainant states that when this meeting did not take place she e-mailed Mr. A on 1 July, 2008 seeking a meeting with him. The complainant states that during this meeting (which took place on 2 July, 2008) she informed Mr. A of her conversations with Ms. G concerning her promotion and also raised concerns about training opportunities and mobility between funds. The complainant further states that Mr. A e-mailed her later that day advising that she was a valued member of the team who had always achieved what was expected of her and that he would revert to her. She states that this never happened and although she continued to perform the higher level duties, she was never promoted and never received any increase in remuneration. In the course of the Hearing the complainant stated that she did not pursue the matter any further at that time. It is submitted on behalf of the complainant that the respondent's failure to promote her amounts to less favourable treatment of her on the discriminatory grounds cited.
3.3 In terms of the gender ground the complainant states that she was quite friendly with Ms. G and they frequently had lunch together. In the course of the Hearing the complainant stated that she became aware she was pregnant in July, 2008. She subsequently changed this stating it was incorrect, that it must have been earlier as she had informed Ms. G of her pregnancy when they were at lunch in late June/early July, 2008, although she accepted that this was an informal discussion between friends. On another occasion in the course of the Hearing the complainant stated that she had informed Ms. G of her pregnancy a few days after the discussion when she alleges she was told she was to be promoted. The complainant stated that her GP confirmed her pregnancy in August, 2008 and that she wrote to the respondent on 19 August, 2008 confirming this. The complainant further stated that she showed this letter to Ms. G who advised her to provide it directly to the respondent's HR Department and commented to the complainant "I wondered when you were going to tell me". She added that at this time she was married with three children and that these facts support her contention she was discriminated against on grounds of marital status and family status.
3.4 The complainant states that she was absent from work for the vast majority of December, 2008 (on annual leave and sick leave), that she commenced maternity leave on 1 January, 2009 and returned to work on expiry of that leave on 20 July, 2009. She states that when she returned to work at that time her access codes and signatory authority had been withdrawn from her. The complainant adds that when she raised these matters with Ms. M - her new Team Leader (Ms. G no longer worked for the respondent) she was informed that things had changed and only senior members of staff had such access and authority. The complainant rejects this and stated in the course of the Hearing that other members of staff retained such access and authority although she was unable to recall who these individuals were. In the course of the Hearing the complainant agreed that only Senior Analysts had the access codes and authorisation on her return from maternity leave. It is submitted on behalf of the complainant that the actions of the respondent amounts to less favourable treatment of the complainant on the grounds cited contrary to the Acts.
3.5 The complainant states that she was invited to a meeting with her Line Manager (Ms. M) and her Line Manager (Ms. L) on 16 September, 2009 during which they informed her that she (the complainant) was to be place on the respondent's Performance Improvement Programme (PIP). The complainant states that she refused to do so because placement on a PIP suggested that there were issues with her performance and she was of the view that her performance was more than acceptable and she had never previously been advised that it was lacking in any regard. She adds that nonetheless the PIP documentation was e-mailed to her. The complainant states that on receipt of this e-mail she immediately sought a meeting with Mr. X (Senior Manager of the respondent's Transfer Agency). She adds that this meeting took place on 28 September, 2009 during which Mr. X advised her that it was he who had suggested that she be placed on a PIP. The complainant states she re-iterated her view that she was more than competent in her work and saw no reason to participate in that PIP but that Mr. X convinced her it would be of benefit to her to participate in it and she reluctantly agreed to do so. The complainant states that later that day (28 September, 2009) Mr. X sent an e-mail to Mr. U (Head of the respondent's Transfer Agency) which commenced "For the record" and submits that this e-mail is a record of Mr. X's assessment of the complainant as a result of that meeting. The complainant also notes Mr. X's comment in that e-mail as follows "I want to give her every chance and have no more excuses" and submits this demonstrates a predisposition on his part that her participation in the PIP would curtail the possibility she could make an excuse for any performance related issues. The complainant adds that she believes Mr. X's intervention to encourage her to participate in the PIP was to (i) enable the respondent portray her performance in negative terms during the subsequent redundancy process and to provide it with a basis upon which to validate termination of her employment as part of the process or (ii) frustrate her to such an extent that she would resign. She asserts that this arose because she had been absent from work due to maternity leave for approximately 40% of her period of employment. In the course of the Hearing the complainant was unable to say if there were any other employees placed on a PIP in similar circumstances to her at that time.
3.6 The complainant rejects the respondent's assertion that Mr. X advised her at this meeting that he would not have promoted her based on her 2007 Performance Appraisal and 2008 mid-year review score, although in the course of the Hearing she agreed he told her she would have to have obtained a ranking score of "4" to be considered for promotion. The complainant states that she never completed a 2007 Performance Appraisal as she was on maternity leave at the time the process was conducted and she does not therefore accept the rating assigned to her for that year (i.e. 3). The complainant produced two documents which purport to be Annual Review Documents (ARD) for her in respect of 2007. The first of these documents indicates that the complainant was the author of the document and it is neither completed nor rated. The second indicates that Ms. C (who was the complainant's Line Manager in 2007) is the author of the document and the narrative part of the form under each heading is completed but ratings are not included. The complainant states that she did not know the person indicated as the author of a third ARD in respect of her for 2007 (which was submitted by the respondent) although in the course of the Hearing she confirmed that the person in question (Ms. W) was her Line Manager for a short period from October, 2009. It is submitted on behalf of the complainant that the rating assigned to her for 2007 and the manner in which this was concluded amounts to less favourable treatment of her on the discriminatory grounds cited. The complainant adds that she never completed an annual appraisal in respect of 2008 either as she was on maternity leave at the time the process was conducted.
3.7 The complainant further states that in the course of the meeting with Mr. X on 28 September, 2009 she also raised the issue of cross-fund training, that she had never been trained in other areas of work within the team whereas she had trained colleagues. She submits that assessing her against those colleagues was unfair in these circumstances. She adds that she had made several requests to Ms. G for this training which were refused. The complainant is unable to provide more specific details of this training except for one occasion in July, 2008 where she was instructed to cancel her attendance at a course by Ms. G. In the course of the Hearing the complainant accepted that it was normal practice for training to be deferred where work pressures prevailed. The complainant accepts that she completed the training set out in a letter dated 6 January, 2010 from Ms. O (the respondent's Chief Operating Officer) during her period of employment and that she also received financial assistance from the respondent totalling €4,950 to pursue a professional qualification externally. It is submitted on behalf of the complainant that the manner in which the respondent treated her as regards training constitutes discrimination of her contrary to the Acts on the grounds cited.
3.8 The complainant states that the first occasion she became aware her position was at risk of redundancy was at a meeting on 5 November, 2009 which was attended by her, Mr. U (Head of the respondent's Transfer Agency) and Mr. Z (Human Resources). The complainant states that she had two further meetings with the same personnel - 10 November, 2009 and 18 November, 2009 - before written notification of her redundancy was given to her on 19 November, 2009. In the course of the first day of Hearing the complainant stated that the minutes of these three meetings which were submitted by the respondent accurately reflected what occurred at those meetings. However, at the Hearing on 22 November, 2012 she resiled from this evidence, stating she never said (as recorded in respect of the meeting of 18 November, 2009) that she "no longer wanted to proceed with the challenge to the scores" given to her as part of the selection matrix which was used by the respondent as part of the redundancy selection process. The complainant states that she was placed on "garden leave" for the one month's notice of termination of her employment given to her and during this period she availed of her right to appeal the decision to select her for redundancy. The complainant states that due to unfortunate personal circumstances (details supplied) the appeal process did not conclude until January, 2010 when the original decision to terminate her employment was upheld with effect from 18 December, 2009. It is submitted on behalf of the complainant that her original selection for redundancy and the subsequent confirmation of the decision, on appeal, constitutes dismissal of the complainant in circumstances amounting to discrimination on the discriminatory grounds cited. In this regard the complainant states that she was pregnant at the time she was selected for redundancy but adds that she did not inform the respondent of this fact and cannot therefore take issue with its contention that it was unaware of her condition. She further argues that Ms. O, who conducted the appeal process, was involved in the initial redundancy selection process and was therefore biased against her. In addition, the complainant seeks to rely on a comment attributed to Ms. O in the course of a meeting on 18 December, 2009 where she asserts Ms O said "Bridget sacked herself" in response to the question posed by her legal representative as to who had decided to make the complainant redundant. In the course of the Hearing the complainant stated that Ms. O never attended any of the meetings in November, 2009 when her redundancy was discussed. It is further submitted that the manner in which the complainant was treated as regards her period of notice constitutes discrimination of her on the grounds cited.
3.9 The complainant states that the respondent offered her an ex-gratia payment of just over €6,200 (in addition to her statutory redundancy entitlements) plus an allowance of €450 in respect of legal fees if she signed a Compromise Agreement which, inter alia, waived her right to pursue claims against the respondent as a result of her employment. The complainant states that she refused to do and therefore did not receive those payments. The complainant states that other employees who were made redundant received similar offers although she was unable to say if any of them received the payment or not. It is submitted on behalf of the complainant that this treatment of her is a further incident of discrimination on the grounds cited.
3.10 The complainant states that during the period Mr. A was her second Line Manager (sometime after she returned from maternity leave in April, 2008) he continuously ignored her, but more particularly after their meeting of 2 July, 2008. She adds that during this latter period she was excluded from e-mails and had to rely on information from her Team Leader. In the course of the Hearing the complainant was unable to provide any detailed examples of this alleged treatment but stated that he would simply ignore her when he was in her work area although he would regularly speak with some of her colleagues working close by. She also confirmed that she was aware of the respondent's Grievance Procedure but never raised the matter under that Procedure. Finally, the complainant states that on a single occasion in July, 2009 colleagues in close proximity to her started playing a game called "pass the pregnancy flower" which was related to who amongst the group would next become pregnant. In the course of the Hearing the complainant stated that she was unsure whether or not this behaviour was directed at her. She confirmed that she did not raise this matter under the Grievance Procedure either. It is submitted on the complainant's behalf that the aforementioned amounts to less favourable treatment of her contrary to the Acts on the grounds cited.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that it is a worldwide organisation with offices in over 35 locations in North America, Europe, the Middle-East and the Asia-Pacific region. During the period relevant to the complaint i had offices in Ireland at Dublin and Limerick, employing almost 550 staff. The respondent rejects the complainant's assertions in their entirety and states that she was treated in a fair and reasonable manner at all times during her employment with it.
4.2 The respondent accepts the complainant's evidence as regards the dates she commenced employment and her assignments. It further accepts that Ms. G was the complainant's Line Manager when she returned from maternity leave in April, 2008. The respondent states that the complainant's performance was satisfactory at that time and accepts Ms. G spoke with her in June, 2008. The respondent rejects the complainant's assertion that during that conversation Ms. G informed the complainant she would be promoted. It states that Ms. G had no authority to do so and any such decision would be taken at a higher level within the organisation. In the course of the investigation the respondent furnished the Tribunal with a written statement from Ms. G in which she states that she (Ms. G) expressed satisfaction with the complainant's performance and that if she (the complainant) seized the opportunity to excel at her work in the subsequent months there was no reason why the complainant could not secure promotion. In the statement Ms. G also states that in order to accommodate this and in an effort to motivate the complainant to take on new tasks and thus afford her a stronger opportunity for promotion she (Ms. G) provided the complainant with access codes and gave her higher level validation authority. Ms. G states that another member of staff was given similar access codes and validation authority but does not indicate whom this person was. In the course of the Hearing the respondent was unable to say who this person was. In her statement Ms. G adds that the complainant did not rise to the challenge, although she continued to perform to a satisfactory standard. The respondent states that these matters would have been raised with the complainant as part of the annual appraisal process in December, 2008 but the complainant was on sick leave and maternity leave when this process was conducted. The respondent states that other staff on long term absence during this period (for whatever reason) were treated in similar fashion - i.e. no end of year appraisal was completed for them.
4.3 The respondent submits that the series of e-mails in June/July, 2008 between the complainant and (i) Ms. G and (ii) Mr. A do not suggest the complainant is to be promoted. The respondent is unable to say why neither Ms. G nor Mr. A clarified the situation for the complainant in the course of these e-mails - i.e. that she was not to be promoted. Moreover, the respondent states that the complainant could have invoked the Grievance Procedure in respect of this issue - it adds that she was aware of same - and she elected not to do so. Mr. X attended at the Hearing on 17 December, 2012. He stated that in November, 2008 Mr. U advised that staff must achieve a rating of "4" in the appraisal process before they could be considered for promotion. The respondent (Mr. X) states that this policy applied from then on and that staff were made aware of this at a Team Meeting in early 2009. The respondent (Mr. X) states that he became Senior Manager of the respondent's Transfer Agency in May, 2008. He adds that any recommendation for promotion of staff at the complainant's level within his area of responsibility would have to be routed through him (ultimately the decision is made by Mr. U) and he states that there was no mention to him of promotion for the complainant at that time by any of her Line Managers. He adds that whilst the complainant was performing satisfactorily at that time (which attracted a rating of "3" under the appraisal process) he would not have recommended her for promotion on that basis in June, 2008.
4.4 Counsel for the respondent accepts that there were no full year appraisals carried out in respect of the complainant in relation to 2007 and 2008 as she was on maternity leave on both occasions but states that in those circumstances the complainant was given a default rating of "3" which represents satisfactory performance and was consistent with ratings previously awarded to her. Counsel adds that the respondent was not aware of the complainant's pregnancy until she advised it in writing of same on 19 August, 2008. It is submitted therefore, notwithstanding the arguments that the complainant was not promised promotion, that her pregnancy could not have been a factor in any decision made by the respondent. Counsel notes the complainant's assertion that the respondent was aware of her pregnancy because she (the complainant) was friendly with Ms. G and had told her of her pregnancy when they were at lunch. Counsel submits, notwithstanding the argument that this cannot amount to putting the respondent on notice, that there is significant inconsistency in the complainant's evidence (both oral and written) as to when this discussion took place and consequently, her evidence in this regard must be viewed as questionable. In summary, the respondent submits that the complainant was never promised promotion in the first instance and in the event the Tribunal finds this not to be the case, it further submits that any failure to promote her was not connected to the discriminatory grounds cited.
4.5 The respondent accepts that the complainant access codes and validation authority were withdrawn when the complainant was absent on maternity leave. It states that this withdrawal arose after a review of processes by its Compliance Unit where it was decided that such access and authority should only be granted to staff at the grade of Senior Analyst or above. The respondent adds that as the complainant was not at Senior Analyst level she was not permitted those codes or validation authority. It further states that the complainant was not the only person affected by this decision - another employee Ms. R also had them removed from her for the same reason. It was therefore submitted on behalf of the respondent that it did not discriminate against the complainant on the grounds cited contrary to the Acts in respect of this element of her complaint.
4.6 The respondent accepts that the complainant was subject of a PIP from mid-September, 2009. The respondent (Mr. X) states that it was his decision to select her for a PIP and that he requested Ms. M and Ms. L to engage with the complainant in this regard. The respondent (Mr. X) states that the respondent commenced a comprehensive review (Benchmarking) of all staff across thirteen competencies and skills (which were broken down into fifty-one sub-divisions) in Spring 2009 and that the complainant was subject to this process on her return from maternity leave in July, 2009. He adds that at that time the complainant was assessed by Ms. L. The respondent (Mr. X) states that the results of this process identified the complainant as someone who might benefit from placement on a PIP. Mr. X adds that he decided to allow her some time to resume with her duties to see if matters would improve but states that whilst her performance was adequate during this period there were areas which he believed improvement could be achieved by her. He adds that the complainant initially resisted her participation on PIP and he met with her on 28 September, 2009 to discuss the matter. Mr. X adds that in the course of this discussion he advised the complainant that he would not have promoted her (in June, 2008) on the basis of her performance rating at that time. He adds that he also informed her that a rating of "4" was now required to be considered for promotion. Mr. X further states he advised her that he was placing her on a PIP in an attempt to prompt improvement in her performance so that she could attain that rating. The respondent states that as a result of this Benchmarking process a number (five/six) of employees were placed on a PIP. The respondent furnished details of a male, Irish employee who had no family status (in terms of the Acts) who was placed on a PIP around the same time as the complainant. The respondent adds that this employee was made redundant at the same time as the complainant.
4.7 The respondent (Mr. X) states that his e-mail of 28 September, 2009 to Mr. U accurately reflects his impression of what occurred at that meeting. He states that he sent this e-mail as Mr. U was the Head of the Transfer Agency and as such was entitled to know what was happening. He adds that this is what he meant by the phrase "for the record" and rejects any suggestion advanced on behalf of the complainant that he had more sinister reasons for doing so. Mr. X accepts (based on those discussions) the complainant's assertion that she had been neglected in terms of her training and development within the respondent. He adds that this is reflected in his e-mail to Mr. U but that he also informed her she had to bear some responsibility in improving herself. In this regard he states that in his opinion the complainant did not appear to be as proactive as colleagues in addressing issues internally. The respondent (Mr. X) states that whilst the complainant claimed she had been treated in a particular way and that she was not promoted as promised, he informed her quite clearly this was not the case and that in any event he would not have promoted her in June, 2008. He adds that the complainant made no reference to her race, colour or family status being factors connected with her issues. Mr. X states that in his view the complainant displayed quite a negative view to the PIP process as well as recounting a rather negative experience of her work in the area she had worked in since October, 2008 so he decided to move her to another area of work where Ms. W would be her Line Manager in tandem with the PIP process and review the matter in a couple of months. He adds that it was in this context he made the comment "I want to give her every chance and her to have no more excuses" in his e-mail to Mr. U. Counsel for the respondent submits that there are legitimate reasons unconnected with the discriminatory grounds advanced by the complainant for her placement on the PIP and rejects her assertion that it was to enable the respondent portray her performance in negative terms during the subsequent redundancy process and to provide it with a basis upon which to validate termination of her employment as part of the process or (ii) frustrate her to such an extent that she would resign.
4.8 The respondent accepts that the complainant did not complete an annual appraisal in respect of 2007. However, it furnished the Tribunal with a document which purports to be an ARD for the complainant for that year. This document indicates that Ms. W was its author. Ms. W attended at the Hearing on 17 December, 2012 and stated that she was the complainant's Line Manager for about four weeks in October/November, 2009 when she was moved to her area of responsibility by Mr. X. Ms. W stated that she had limited contact with the complainant during this period, that she did not prepare the ARD submitted by the respondent and she had no role in rating the complainant for that year. The respondent states that the appraisal system is a computerised one and that there are three ways in which an author's name can appear on a document (i) the person is the actual author of the document, (ii) the person becomes the employee's manager and the system automatically changes the author's name to that of the new manager and (iii) a person seeks documents to be transferred to them to access/use. The respondent states that it cannot offer any explanation other than this for the various authors on the documentation furnished by both parties to the Tribunal.
4.9 The respondent states that it offered the complainant every suitable training opportunity available during the course of her employment but the complainant did not avail of all such opportunities. It adds that in the course of her employment the complainant completed thirty-six separate training course/sessions on work related matters. It adds that it also funded her fees in the amount of €4,950 so she could pursue a professional qualification (relevant to her job) with an external body and afforded her time -off for study and examinations in respect of that qualification. The respondent accepts that Ms. G requested the complainant to cancel her attendance at a training session in August, 2008. It adds that employees are required, when they source a suitable training course, to seek the approval of their Line Manager before booking a place on a course through the respondent's electronic Learning and Development Database. The respondent states that in the instant case the complainant did not seek Ms. G's approval in advance of booking her place on the course and when same came to light Ms. G asked the complainant to cancel her attendance at a course scheduled for 1 August, 2008. The respondent adds that she made this request because there was insufficient cover in the section as a result of holidays. The respondent states that this would be normal practice and the complainant was treated no differently to other employees in similar circumstances. The respondent (Mr. X) states that he could understand the complainant's frustration if she was not cross-trained on funds other than the one she was assigned too. He adds that managing the workload in the area and supporting cross training has always been a challenge given the pressurised environment involved. He states that Line Managers (such as Ms. G) cannot always facilitate such requests and rejects the assertion that any failure on her part to accommodate the complainant in the instant was linked to the discriminatory and was more likely as a result of pressures of work etc.
4.10 The respondent (Mr. H- who is Head of Human Resources) states he became aware, in August, 2009, that the respondent was contemplating redundancies. He adds the decision that the respondent engage in redundancies was made by Senior Management at the Corporation's Headquarters in Chicago. The respondent (Mr. H) states that he held a meeting with Senior Managers in the various functional units of the Irish Offices on 20 October, 2009 to advise them of this decision - this was the first occasion personnel at that level were given that information - and that the news was relayed to other staff a week later at a general meeting. The respondent (Mr. X) confirms the comments of Mr. H and states that he was surprised redundancy was being contemplated as he had previously been told by an Executive from Chicago earlier in 2009 that there would be no redundancies that year. The respondent (Mr. H) states that the Transfer Agency was identified as an area where redundancies were required and the respondent went about conducting the selection process for same. It adds that sixty-six staff at Analyst, Senior Analyst and Technical Co-ordinator levels in the Transfer Agency (including the complainant) were assessed across the following three criteria which formed its Selection Matrix - (1) Performance Appraisal, (2) Skills and (3) Disciplinary Matters.
4.11 The respondent states that first category was completed by transferring the rating each employee received in respect of his/her 2008 annual review into the matrix. The respondent (Mr. Z) states that he completed this task and accepts that the complainant did not have an actual rating for that year. He adds that the complaint was therefore awarded a score of "3", which equates to satisfactory performance, under this category in the matrix. He further states that this was a default rating awarded to all staff who did not have an actual rating for 2008 for whatever reason - i.e. managers had not completed reviews, staff were absent or employees who had only commenced in the organisation in 2009. Mr. Z adds that a negative score was to be recorded in the matrix for employees who had an active disciplinary record at the time. He adds however, that neither the complainant nor any of the employees in the Transfer Agency received a deduction under the criterion Disciplinary Matters. Mr. Z states that HR had no role in determining the scores under the second criterion - Skills- and that these scores were provided by the Head of the Transfer Agency on foot of the Benchmarking process conducted by managers in that area and he merely transferred those scores to the matrix - HR did not look behind them. He adds that whilst the matrix included a rating in respect of the mid-year review in 2009 this score was not taken into account in the selection process. All of the aforementioned evidence was subsequently confirmed by Mr. H.
4.12 The respondent (Mr. X) states that the complainant was subject to assessment under the Benchmarking process in September, 2009. He adds that the complainant was initially assessed by Ms. L, her Line Manager across thirteen standard competencies and skills which were broken down in fifty-one one sub-divisions. Mr. X states that when all staff at the complainant's level under his area of responsibility were assessed he met with the Line Manager's involved and went through each score individually with those managers to ensure objectivity, fairness and consistency. He adds that these scores were then reviewed by Senior Managers with Mr. U to again ensure that the process had been conducted with objectivity, fairness and consistency by each Senior Manager. Mr. X adds that once the scores were settled Mr. U prepared the comments included in the matrix. The respondent (Mr. Z) states that six employees in the Transfer Agency, including the complainant, were selected as candidates for redundancy in December, 2009. He adds that the selection of these six employees was made by Mr. U based on the overall score awarded to them on foot of the matrix - they were the employees with the lowest overall scores. Mr X states that prior to Mr. U making the final decision on the selection of these six employees for redundancy he (Mr. X) was asked by Mr. U to review all of the scores awarded to them in the Benchmarking Process and he did so. The respondent adds that twelve other employees in other areas of the respondent were also selected for redundancy.
4.13 The respondent states that it commenced consultations with the complainant on her possible redundancy on 5 November, 2009. It adds (Mr. Z) that further meetings with the complainant took place on 10 November and 18 November, 2009. Mr. Z states that the respondent was represented at these meeting by him and Mr. U. The respondent furnished the Tribunal with minutes of these meetings. Mr. Z states that he took these minutes and confirms that the represent an accurate account on the discussions which occurred. In the course of the hearing he stated that at these meetings the complainant took issue with the annual review rating of "3" she was awarded in respect of 2008. He added that Mr. U reviewed this score by personally contacting a number of the complainant's previous Line Managers and asking them to give their views on her performance during the period in question. Mr. Z states that after conducting this review Mr. U was satisfied that the score of "3" was appropriate and that this decision was communicated to the complainant at the meeting on 18 November, 2009 and she did not take issue with it. The respondent (Mr. Z) also states that in the course of these meetings the complainant queried the scores awarded to her under the various competencies and skills covered by the Benchmarking Process. Mr. Z adds that Mr. U explained the process to the complainant at the meeting of 10 November, 2009 and that when she was asked if she wished to pursue the matter by Mr. U at the meeting on 18 November, 2009 she indicated that she no longer wished to proceed with the challenge. The respondent (Mr. Z) states that the as there were no suitable alternative positions for the complainant within the organisation it was decided (by Mr. U) to make her redundant and he (Mr. Z) notified her of this decision by letter 19 November, 2009. He states he was unaware that the complainant was pregnant at this time and adds that she never suggested at any time during the process that she believed her race, colour, family status of maternity leave were factors influencing the respondent in its decision. The respondent states that eighteen employees, including the complainant, were made redundant at this time - five of them were in the same area (Transfer Agency) as the complainant. Counsel for the respondent submits that the redundancy process was conducted in a fair, objective and transparent manner which complied with redundancy legislation and states that the discriminatory grounds advanced by the complainant had no bearing whatsoever on the selection process.
4.14 The respondent states that the respondent was afforded the opportunity to appeal her selection for redundancy and did so. The appeal meeting took place on 18 December, 2009 and was conducted by Ms. O, who is the respondent's Chief Operating Officer. It states that she was accompanied by Mr. H on the day. The respondent (Ms. O) emphatically rejects the complainant's assertion that she was biased against her. She states that she had no role whatsoever in the original selection of the complainant for redundancy and was therefore asked by Mr. H to conduct the appeal and she did so. The respondent (Mr. H) confirmed this at the Hearing stating he made that requesting because Ms. O was the third highest ranking employee in the respondent. The respondent (Ms. O) states that she found the appeal meeting tough and that many other work related issues were raised by the complainant's representative in the course of same. Ms. O states that she had difficulty identifying what grounds of appeal were being advanced in those circumstances. She rejects the complainant's assertion that she made the comment "Bridget sacked herself" although she recalls the question of who selected her for redundancy being put to her by the complainant's solicitor. Ms. O states that she was extremely uncomfortable with that question, given the direction the meeting had taken and she did not respond to it. Mr. H states that he attended that meeting and heard the complainant's representative ask the question about her redundancy but emphatically rejects that Ms. O made the comment attributed to her. The respondent (Ms. O) states that having reviewed all the documentation and comments advanced during the appeals process she found no basis upon which to overturn the original decision to select the complainant for redundancy. Counsel for the respondent submits that the appeal process was conducted in a fair, objective and transparent manner. She states that the only other appeal (from a white Irish male with no children) was also rejected and submits that the process was not therefore conducted in a discriminatory manner on the grounds advanced.
4.15 The respondent (Mr. H) states that the respondent contacted IBEC to seek advice on the amount of the redundancy package it might offer employees. Mr. H states that on receipt of this advice it decided to offer enhanced terms which exceeded the statutory redundancy requirements. In the complainant's case this enhanced component amounted to approximately €6,200. The respondent (Mr. H) states that this enhanced offer was conditional on the complainant signing a compromise agreement which precluded her from pursuing any claims against her employer in the future. He adds that a contribution of €450 was also offered towards any legal fees she might incur seeking advice on the proposition. The respondent (Mr. H) states that the complainant ultimately declined to sign the compromise agreement and the enhanced element of redundancy package was not paid to her. The respondent adds that only one other employee (the second person who appealed his selection for redundancy) refused to sign the compromise agreement and he also was not paid the enhanced package - all other sixteen employees made redundant at the time did so and received the payment. It is submitted on behalf of the respondent that it was entitled to make such an offer and place the conditions it did on same. It is further submitted that the discriminatory grounds advanced by the complainant had no bearing whatsoever on the manner in which it treated the complainant in this matter.
4.16 The respondent states that the complainant was given one month's notice of the termination of her employment by letter dated 19 November, 2009. It adds that it decided to exercise its right under the complainant's contract of employment to ask the complainant not to report for duty during this period. The respondent (Mr. M) states that all employees who were selected for redundancy and given similar notice of termination were treated in the same fashion as the complainant. It is submitted therefore that this does not amount to less favourable treatment of her contrary to the Acts.
4.17 The respondent rejects the complainant's assertion that Mr. A ignored her during the period when he was her Manager. It notes the comments in the complainant's submission that he (Mr. A) "never said anything hurtful or abusive to her" and that she was never "subjected to crude or offensive racists remarks". The respondent (Mr. X) accepts that interaction between the complainant and both Ms. G and Mr. A might have been better at that time, although it notes that Mr. A responded promptly to the complainant's request for a meeting on 2 July, 2008. Moreover, the respondent notes that the complainant was aware of its Grievance Procedure and chose not to invoke it. It is submitted on behalf of the respondent that any isolation which the complainant may have experienced was not due to the discriminatory grounds cited.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of gender, race, marital status and family status, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts in relation to her conditions of employment and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of gender, race, marital status and family status, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2008 sets out the probative burden which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.3 The first element of the complainant's case concerns her assertion that she was told by her Line Manager (Ms. G) she was to be promoted, that this never subsequently occurred and that this failure on the respondent's part amounts to discrimination of her. The respondent rejects this assertion stating that Ms. G did not have the authority to give such an assurance. The first matter which requires consideration is whether or not the complainant is correct in her assertion that she was informed she was to be promoted. It is common case that the complainant was given new access codes and validation authority in June, 2008. However, it is the respondent's position that this was done in an effort to motivate the complainant to take on new tasks and thus afford her a stronger opportunity for promotion. It is also common case that in the course of a discussion between the complainant and Ms. G sometime after the former returned from maternity leave, the issue of promotion was mentioned. In the course of the Hearing the complainant, whilst her English was good, required clarification on several occasions as to what the question being asked of her was. I am satisfied therefore, on balance, that she may have misunderstood the conversation with Ms. G and that her (Ms. G's) version of the discussion is more likely. I am supported in my conclusions on this by the complainant's admission (in the course of the Hearing) that at that time she was aware Ms. G did not have the authority to promote her. The series of e-mails which followed clearly set out the complainant's impression of events but Ms. G mismanaged the situation by simply ignoring it or putting it on the long finger. It would have been better had she acted to quell the complainant's expectations at that time. I am satisfied she (Ms. G) did not pursue the matter up the line and in this regard I note Mr. X's comment that the possibility of promoting the complainant was never raised with him - and that would have had to be the case if such a promotion was in the offing.
5.4 Whilst the complainant advances this aspect of her complaint on all four discriminatory grounds the arguments submitted in the course of the Hearing focussed on the gender ground - as a result of her pregnancy. The complainant's submission states that when she met with Ms. G in mid-June, 2008 she was twelve weeks pregnant. The submission filed on her behalf makes no reference to the complainant having informed Ms. G of her pregnancy at or around that time. The submission states that she visited her GP in mid-August, 2008 ands her pregnancy was confirmed at that time. The submission goes on to state that the complainant wrote to the respondent on 19 August, 2008 confirming her pregnancy and that before she sent this letter she showed it to Ms. G who stated "I was wondering when you were going to tell me". In the course of the Hearing the complainant stated that she became aware she was pregnant in July, 2008. She subsequently changed this stating that was incorrect, that it must have been earlier as she had informed Ms. G of her pregnancy when they were at lunch in late June/early July, 2008. On another occasion in the course of the Hearing the complainant stated that she had informed Ms. G of her pregnancy a few days after the discussion when she alleges she was told she was to be promoted - this would give rise to a date of mid-June. Ms. G did not attend the Hearing to give evidence but furnished a statement in which she accepts that a discussion took place between them in June, 2008, but makes no reference to the complainant's assertion she informed her of her pregnancy at this meeting.
5.5 In the normal course it would be contrary to natural justice, in accordance with Kiely v Minister for Social Welfare , to permit the oral evidence of the complainant to be outweighed by the written and untested evidence of Ms. G where certain matters are in dispute. However, in the instant case I find the complainant's evidence to be wholly inconsistent and unreliable. Section 85A of the Acts places the initial probative burden squarely on the shoulders of the complainant to establish the primary facts from which it might be inferred that she was treated less favourably. I have carefully considered the evidence adduced by the parties and in light of my comments in this and the preceding paragraphs I am not satisfied that the complainant has discharged the burden required of her in terms of her claim on the gender ground. The complainant advanced no evidence on this aspect of her complaint in respect of the ground of marital status. The arguments advanced by the complainant in respect of the remaining two discriminatory grounds - family status and race - are that at the time of the impugned treatment she was the only black employee and she had children. It is well established that the mere presence of a particular characteristic is insufficient to discharge the burden of proof required. The complainant must show that she was less favourably treated as a result of a protected characteristic. Having evaluated the evidence adduced I am not satisfied that the complainant has discharged that burden. I therefore find that the complainant has failed to establish a prima facie case of discrimination on any of the four impugned grounds and this element of her complaint cannot succeed.
5.6 It is common case that the complainant's access codes and validation authorisation, which had been provided to her in June, 2008 and which she had operated until December, 2008 when she went on sick leave (and thereafter maternity leave) were no longer available to her on her return from that maternity leave in July, 2009. The respondent states that these access codes and validation authority were restricted to staff at or above the level of Senior Analyst following a review of processes by its Compliance Unit when the complainant was on maternity leave. The complainant initially rejected this position stating that colleagues retained the codes and authorisation on her return. However, she was unable to identify who these people were. She subsequently agreed when questioned by Counsel for the respondent that the access codes and authority were available only to Senior Analysts and above on her return. It is common case that the complainant was never at Senior Analyst level. It follows therefore that she had no entitlement to the access codes and validation authority on her return to work in July, 2009. Having carefully considered the evidence submitted by both parties on this issue I find that the complainant has failed to establish a prima facie case of discrimination on all four grounds cited and this element of the complaint fails.
5.7 The respondent accepts that an end year review of the complainant's performance under its Performance Appraisal Process was not conducted for the complainant for either or the years 2007 and 2008. Considerable argument and documentation was advanced by both parties on this matter but I do not consider it necessary to consider these further in light of the respondent's acceptance that the complainant was not formally appraised for either year. It is common case that the complainant was placed on a PIP in September, 2009. The respondent (Mr. X) confirmed at the Hearing that the decision to place the complainant on this PIP was made by him on foot of the outcome of a Benchmarking Process which the respondent conducted on the complainant following her return from maternity leave. The respondent states that this process had been completed in respect of all other staff earlier in the year. The respondent furnished the Tribunal with a copy of the complainant's assessment form under this Benchmarking Process. This document shows that the complainant was evaluated across thirteen competencies and skills, which were broken down into fifty-one sub-divisions. By any standard this must be viewed as a comprehensive assessment of the complainant - one that is far more extensive than that conducted under the annual appraisal framework. The respondent (Mr. X) stated at the Hearing that whilst the complainant was performing satisfactorily he believed, having studied her scores under the Benchmarking, that she was capable of improvement and it was in this capacity he considered it appropriate that she should be placed on a PIP. His evidence in this regard is consistent with that of the complainant in terms of the reasons given to her by him in September, 2009.
5.8. The respondent furnished the Tribunal with evidence of another employee who was placed on a PIP around the same time as the complainant. It states that this employee was a single Irish male with no dependents and submits that this supports its position the complainant was not less favourably treated on the discriminatory grounds advanced when she was placed on the PIP. I note the respondent's evidence at the Hearing that this person was placed on a PIP because of under-performance and behaviour. Consequently, I am satisfied he was not in a similar situation to the complainant and cannot therefore validly be used by the respondent for comparison purposes. The complainant seeks to rely on the language used by Mr. X in two e-mails, one to Mr. U on 28 September, 2009 and the other to her on 1 October, 2009, as evidence of his and thus the respondent's disposition towards her. However, before looking further at these e-mails I think it useful to examine the events which preceded them. The complainant was aggrieved she was being placed on a PIP and expressed those sentiments to Ms. L and Ms. M. When she received the PIP documentation despite these protestations she e-mailed Mr. X seeking an urgent meeting with him. He replied within thirty minutes advising he was due to commence annual leave and he would meet with her on his return - which is in fact what happened on 28 September, 2008. The actions of Mr. X could not therefore be considered as anything other than prompt.
5.9 The first e-mail referred to by the complainant was sent by Mr. Xs to Mr. U immediately after that meeting. It is therefore as contemporaneous a record of that meeting as is possible and available to the Tribunal. I have carefully examined the e-mail and whilst the language in it may be open to interpretation I cannot accept that it was, in essence, contrived so as to enable the respondent portray her performance in negative terms during the subsequent redundancy process and to provide it with a basis upon which to validate termination of her employment as part of that process, as suggested by the complainant. In fact, I am satisfied that the opposite is the case. Its contents indicate that Mr. X acknowledges the mismanagement and possible neglect of the complainant (in terms of her professional development) by her Line Managers in the past and the frustration which she experienced as a result of same. It also states Mr. X's reasons for placing her on the PIP - reasons which are consistent with those which the complainant states were given to her by him at that time - and which I accept. The e-mail also states he (Mr. X) proposes to reassign her to a new team, with significant support, in an effort to enable her improve to the extent that she might achieve a rating of "4" and thus be eligible for promotion. I am therefore satisfied, on balance, it was against this background that he made the comment "I want to give her every chance and her to have no more excuses". Moreover, there is no mention, nor indeed any suggestion in this e-mail, that the complainant's pregnancy, nationality, colour, marital status or family status were factors which influenced his decision to place the complainant on a PIP.
5.10 I have examined the second e-mail referred to by the complainant - Mr. X's e-mail to her of 1 October, 2009. I am satisfied that the content of the e-mail is consistent with that sent to Mr. U on 28 September, 2009. It sets out the factual position as regards the promotion policy in the respondent, which I note was changed when the complainant was on maternity leave and as such she may not have been aware of the new requirements. It acknowledges that her performance was satisfactory but that there is room for improvement and in an effort to enable her get to a level where she is eligible for consideration for promotion and encourages her to work with Management under the PIP in that regard. Again there is no mention of the characteristics which underpin the complainant's complaint to the Tribunal. Moreover, I am satisfied that the tone of the e-mail is supportive both in terms of her experiences in the past and how it is hoped things might emerge in the future. Finally, I accept Mr. X's evidence that he was not aware redundancy was being considered by the respondent at the time. In light of my comments in this and the preceding three paragraphs I find that the complainant has failed to establish a prima facie case of discrimination on any of the grounds advanced in respect of Mr. X's decision to place the complainant on a PIP in September, 2009.
5.11 The next element of the complainant's claim relates to her assertion she was refused access to training. This component of her complainant focuses on two particular issues - (i) Ms. G's refusal to allow her attend a training course in August, 2008 and (ii) Ms. G's general refusal to facilitate the complainant's cross -training on other funds in the team. I note it was the respondent's practice at the time to allow employees source and arrange suitable training opportunities using its internal Learning and Development Database. I further note that employees using this database are required to, inter alia, "obtain your manager's verbal authorisation to attend the course before you book". In the course of the Hearing the complainant accepts that she did not seek this advance verbal approval. She also accepted it was normal procedure that training was subject to adequate cover being available and that it could be cancelled due to pressure of work. The training at issue was scheduled for 1 August, 2008, which is in the middle of the annual leave season. The respondent states that there was insufficient cover for the complainant to attend, which was not contested by the complainant. In light of this and the fact that the complainant had not sought Ms. G's approval before booking the training as required by the Policy, I am satisfied that the respondent's request to defer her attendance at the course in question was reasonable in the circumstances and was not connected to any of the discriminatory grounds advanced.
5.12 The second element of the complainant's claim on this issue relates to Ms. G's general refusal to facilitate the complainant's cross -training on other funds in the team. The complainant cannot provide more specific details of her allegations in this regard. The respondent does not specifically reject the assertion that the complainant may have been denied such training and acknowledges that she may have experienced frustration in those circumstances. It adds that managing the workload within a team and supporting cross training has always been a challenge for the respondent given the pressurised work environment involved and that such requests cannot always be facilitated. I note that the respondent's Development Policy states that one of the objectives of the respondent is "to provide learning that will ensure employees are qualified to a level that is consistent with the ever changing needs of the business, whilst providing them with the opportunity ..... to meet their full potential.". I further note the complainant accepts that she completed thirty-six separate training course/sessions on work related matters during her three year period of employment. This could be considered extensive in the normal course but I think it all the more so when one considers that the complainant availed of two periods of statutory maternity leave totalling in excess of one year during this period. Moreover, she accepts that the respondent also funded her fees in the amount of €4,950 so she could pursue a professional qualification (relevant to her job) with an external body and afforded her time -off for study and examinations in respect of that qualification. Taking the totality of the foregoing into consideration I find, on balance, that the complainant has failed to establish a prima facie case of discrimination on any of the grounds advanced in respect of this element of her complaint and it cannot therefore succeed.
5.13 It is common case that in late October, 2009 the respondent announced to staff it was contemplating redundancies. The complainant contends that Mr. X was aware of this proposition in advance of his decision to place her on a PIP. The complainant however, failed to adduce a single shred of evidence to support this assertion. Moreover, I am satisfied that the fact she was placed on a PIP had no impact whatsoever on the scores she subsequently received in terms of the redundancy selection process applied by the respondent. Mr. X rejects the complainant's contention and states he only became of the prospect of redundancies on 20 October, 2009, along with other Senior Managers, when it was announced by Mr. H. In the course of the Hearing Mr. H stated he was aware from late August, 2009, due to his position as Head of HR, that redundancies were to be sought but he did not disclose this to other staff until 20 October, 2009. Having given this matter careful consideration I accept the respondent's evidence on this issue. The respondent furnished the Tribunal with details of the redundancy selection process. It is clear from this documentation that sixty-six staff at the levels of Analyst, Senior Analyst Technical Co-ordinator in the Transfer Agency (including the complainant) were assessed across the following three criteria as part of a Selection Matrix - (1) Performance Appraisal, (2) Skills and (3) Disciplinary Matters. The first of these criteria comprised the rating staff were given as a result of the respondent Performance Appraisal Process in respect of 2008. The complainant did not complete that process for that year and she was therefore given a rating of "3" as a default. The respondent states that other staff who did not have a rating for 2008 were given the same rating as the complainant. I have examined the documentation submitted by the respondent and I am satisfied that was the case. I note that a rating of "3" represents a satisfactory performance and that this is on par with the vast majority of employees who were actually appraised in respect of that year. The complainant takes issue with this rating. However, she offers no objective evidence that this rating was not appropriate insofar as her performance warranted a higher rating. I am satisfied that the respondent was seeking to place the complainant in a comparable situation to those who received an actual rating by awarding her the default rating of "3". Whilst its approach may not be ideal I accept that there was no other realistic option available to it at that time. Had it left this criterion blank because the complainant had not completed the appraisal process for 2008 due to her absence on maternity leave, it is likely the complainant would have an arguable case that she was less favourable treated because of her absence on that basis.
5.14 The third criterion - Disciplinary Matters - did not impact on the complainant as she had no disciplinary record. The second criterion - Skills - was the score the complainant had achieved following the Benching Process and this score was merely transferred to the matrix. As I stated at paragraph 5.7 above I am satisfied that this was a comprehensive process which assessed the complainant across an extensive array of skills and competencies. I accept the evidence of Mr. X that the initial assessment was carried out by Ms. L. I am also satisfied that Mr. X then met with the various Managers within his area to ensure consistency and objectivity in scoring amongst those Managers' direct reports. I am further satisfied that in turn Mr. X met with other Senior Managers along with Mr. U where a similar process was conducted. This enabled Senior Managers to have the opportunity to provide opinion and feedback, to challenge scores and to seek justification for scores awarded in respect of any staff member. The complainant offered no contradictory evidence on this issue. I have given careful consideration to the evidence adduced and I am satisfied that the Benchmarking Process conducted by the respondent was open, fair and objective which in effect depersonalised the process to a significant degree and thus reduced the possibility of bias and discrimination as much as possible. The scores awarded to each employee under each of the three criteria were added together. The complainant received a combined score of "11" and she and five other employees in the Transfer Agency with the lowest combined scores were considered candidates for redundancy by Mr. U. I note Mr. X states that prior to the final selection he was requested by Mr. U to review the scores awarded under the Benchmarking Process to those in danger of redundancy and he did so. I further note that twelve other employees in different areas of the respondent were also considered as suitable candidates for redundancy. The complainant offered no contradictory evidence on any of the aforementioned matters.
5.15 It is common case that the respondent commenced a series of meetings with the complainant to discuss the prospect of her redundancy on 5 November, 2009 and that these meetings continued on 10 November, 2009 and 18 November, 2009. Such an approach is clearly consistent with best practice and complies with the statutory requirements under collective redundancy legislation. The respondent furnished minutes of these meetings and it appears from same that in the course of these meetings the complainant took issue with (a) the rating of "3" included in the matrix for her under the 2008 Performance Rating and (b) the score awarded to her under Skills. On the first day of Hearing the complainant stated she was satisfied that the minutes of these meetings as submitted by the respondent accurately reflected what occurred at them. She subsequently sought to resile from this. However, after careful consideration I am satisfied, on balance, that the minutes as submitted faithfully record what happened at those meetings and that the complainant did, in fact, withdraw any objection she had to the scores awarded to her. I am influenced in my conclusion on this matter because at that time the respondent was offering the enhanced redundancy package and I am satisfied (having perused a range of inter partes correspondence around that time which was attached to the complainant's original EE1 Form) that the complainant considered these terms reflected a more appropriate and acceptable termination payment to her. Finally, whilst the complainant advanced her complaint on this issue on grounds of gender - because she was pregnant - she accepted (at the Hearing) that the respondent may not have been aware she was pregnant and confirmed she had not told it of her condition. I am somewhat at a loss therefore as to why she would contend her pregnancy was a factor in the selection process. In light of my comments in this and the preceding paragraphs I find that the complainant has failed to establish a prima facie case of discrimination on any of the grounds advanced in respect of her initial selection for redundancy and this element of her complaint must fail.
5.16 The complainant was notified in writing of her selection for redundancy by letter dated 19 November, 2009. This letter advised that she had a right of appeal of this decision. The complainant availed of this opportunity and Ms. O was appointed by the respondent to conduct that appeal. The complainant asserts that Ms. O was biased against her and attributes certain comments to her at the meeting on 18 December, 2008. The respondent rejects this whilst accepting that a particular question was posed to her. Having carefully considered this matter I prefer, on balance, the respondent's version of events. I find it very unlikely that a person of Ms. O's experience and seniority in the respondent would behave in such an unprofessional manner, whatever the provocation. Moreover, it is clear from Ms. O's letter of 6 January, 2010 that the appeal process "mushroomed" beyond the issue of redundancy and covered a number of employment related issues, many of which are subject of this complaint. Such an approach is, in my view, entirely inconsistent with an allegation of bias by Ms. O. The complainant further asserts that Ms. O was involved in the original process of selecting her for redundancy. She confirms that Ms. O was not at any of the three meetings where this was discussed and has offered no evidence whatsoever supporting her assertion in this regard. It is well established that mere assertions are insufficient to discharge the initial probative burden required of her 3. Consequently, I find that the complainant has failed to establish any facts from which it might be inferred that she was discriminated against on any of the grounds advanced as regards the appeal of her selection for redundancy and this element of her complaint fails.
5.17 It is common case that in its letter of 19 November, 2008 the respondent gave the complainant a months' notice of termination of her employment, notwithstanding her right to appeal the decision to select her for redundancy. It is also common case that this letter also advised the complainant she was not required to work her notice. The complainant submits that this amounts to discrimination of her on the grounds advanced contrary to the Acts. The respondent rejects this assertion and states that it was merely exercising its right not to have her report for duty in accordance with her contract of employment. It adds that all other seventeen employees were treated in the same manner as the complainant and were placed on "garden leave" in accordance with their contract of employment. The complainant offered no evidence whatsoever to contradict this latter point. I have examined the complainant's contract of employment and one of the terms provides that the respondent "reserves the right, in certain circumstances and at its sole discretion, .... to request that you do not attend the office during your notice period.". I am therefore satisfied that the respondent was indeed exercising its right under the complainant's contract of employment to require her not to attend work during her period of notice. I am further satisfied that she was treated in the same manner as the other employees selected for redundancy. I find therefore that the complainant has failed to establish a prima facie case of less favourable treatment on any of the grounds cited in respect of this element of her complainant and it cannot succeed.
5.18 It is common case that the respondent offered the complainant enhanced terms of redundancy which exceeded the statutory minimum entitlements. The ex-gratia element of the settlement amounted to just over €6,200 and in order to be entitled to it the complainant had to sign a compromise agreement in which she waived her right to refer any future proceedings in relation to her employment under contract, tort, common law and a range of employment statutes. Such an arrangement is common when an employment relationship is being terminated and the manner in which it is considered lawful has been addressed by the superior courts4 . The complainant refused to sign the compromise agreement (on legal advice) and the respondent refused to pay her the ex-gratia element of the redundancy package on that basis. The respondent states that only one other employee (the second person who appealed his selection for redundancy) refused to sign the compromise agreement and he also was not paid the enhanced. Consequently, the sixteen other employees made redundant at that time signed the agreements and were paid the ex-gratia component. In light of the foregoing there is no basis upon which the Tribunal could conclude that the manner in which the complainant was treated amounts to less favourable treatment of her on any of the discriminatory grounds advanced contrary to the Acts and this element of her complaint fails.
5.19 The complainant contends that that during the period Mr. A was her second Line Manager he continuously ignored her, but more particularly after their meeting of 2 July, 2008. She was unable to provide any detailed examples of this alleged treatment but stated that he would simply ignore her when he was in her work area although he would regularly speak with some of her colleagues working close by. I note the comments in her submission that he "never said anything hurtful or abusive to her" and that she was never "subjected to crude or offensive racists remarks". The respondent is unable to state whether or not Mr. A behaved as alleged but submits that if he did so there is no evidence to suggest that it was linked to any of the discriminatory grounds cited by the complainant. It is a fact that the complainant e-mailed Mr. A on 1 July, 2008 seeking a meeting with him and that meeting took place the following day. By any standard that must be considered a prompt response by Mr. A. It is clear from the Mr. A's e-mail of 2 July, 2007 to the complainant that she had raised a number of concerns with him - although these concerns appears to refer to Ms. G and not his alleged treatment of her - and he stated he would revert to her. I am satisfied, on balance, that he did not make good on this assurance. However, I note he states in his e-mail that if she had any future concerns she should contact him and she failed to do so. I am somewhat confused that the complainant would contact Mr. A to air her concerns about matters in circumstances where she alleges his actions at that time had left her feeling isolated. She could have gone to the level above him - an approach she readily adopted the following September when she had issues about the PIP - but did not do so. Moreover, she never made any formal complaint about his alleged treatment of her although she was aware of the respondent's Grievance Procedure. Having carefully considered the matter I am not satisfied that the complainant has established a prima facie case of less favourable treatment on any of the grounds advanced.
5.20 Finally, the complainant states that on a single occasion in July, 2009 colleagues in close proximity to her started playing a game called "pass the pregnancy flower" which was related to who amongst the group would next become pregnant. I note the complainant states that she is unsure whether or not this behaviour was directed at her. In the circumstances it amounts to speculation on her part. As previously stated mere speculation or assertion, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. I therefore find that the complainant has failed to discharge the initial probative burden required of her as regards this aspect of her complaint and it fails.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the complainant has failed to establish a prima facie case of discrimination on grounds of gender, race, family status or marital status, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts as regards her conditions of employment.
(ii) the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of gender, race, family status or marital status in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts.
and her complaint fails in its entirety
_______________________________
Vivian Jackson
Equality Officer
10 May, 2013
1 See Louth VEC v The Equality Tribunal [2009] IEHC 370
2Supreme Court [1977] IR 267
3Melbury Developments v Artur Valpetters EDA 0917
4 See PMPA v Keenan & Others [1983] IR30