The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-021
PARTIES
Frances Shanahan
(Represented by John Horgan)
AND
RTE
(Represented by Siobhan Phelan B.L. instructed by Eversheds)
File reference: EE/2011/280
Date of issue: 9 April 2014
HEADNOTES: Employment Equality Acts - Sections 6 & 8 – Gender & Age – Promotion –Victimisation – Equal Pay
1 DISPUTE
1.1 This dispute concerns a claim by Ms Frances Shanahan that she was discriminated against by RTE on the grounds of gender and age contrary to section 6 of the Employment Equality Acts in terms of promotion and conditions of employment in accordance with section 8 of the Acts, that she was victimised contrary to section 74 (2) of the Acts and that that she performs “like work”, in terms of section 7 of the Employment Equality Acts with three named comparators and is entitled to equal remuneration in accordance with section 19 of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 11 February 2011 under the Acts. On 19 June 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing held over two days on 8 and 9 October 2013.
2 COMPLAINANT'S SUBMISSION
2.1 In 1998 the complainant was appointed to a full-time fixed-term staff position with the respondent as a Reporter/Presenter. She submits she was not appointed on a salary that reflected her experience or in line with comparator A. From 1989 to 1999 she was designated as a reporter/presenter but was working as a Producer on Farm News and Farm Week.
2.2 The complainant submits that in 2004 she was not consulted about changes in her role in the Agriculture Department by the respondent. In 2006 further changes were announced without consultation with the complainant. She submits these changes favoured a younger male colleague.
2.3 The complainant submits that in November 2009 her union proposed that the complainant should be the stand-by presenter for Countrywide and in March 2010 she joined the Countrywide team but was not given a meaningful role. Interviews and features she had worked on and recorded were put on hold and others were edited and shortened unnecessarily.
2.4 The complainant submits that in January 2011 she was passed over and not afforded the opportunity to present Countrywide when the regular Presenter (comparator A) was on leave. The respondent went outside the organisation for the stand-in presenter to someone with less radio experience and who was younger than the complainant.
2.5 In relation to her equal pay claim the complainant submits that from 1989 to 1999 she was a ‘Reporter/Presenter’ according to her contract but was working as a Producer on Farm News and Farm Week. In 1999 comparator B, who was Producer-in-Charge of Agriculture Programmes left and the complainant took over his responsibilities for training staff, paying freelance staff and administrative work but was given no salary increase for the extra responsibility. She did receive a pay rise but this did not recognize her experience as a producer/presenter. The complainant submits that male colleagues were given pay rises for extra responsibilities but she was not. She should have been on the Producer-in-Charge scale but was denied this because of gender discrimination by the Head of Regions.
2.6 The complainant submits that another male, comparator C, had no journalistic experience when he was appointed to the fourth point of the reporter/presenter scale. Whereas, she was appointed to the bottom of the scale despite having substantial previous journalistic experience.
2.7 The complainant submits that she made claims to the respondent in relation to her salary and in 2006 she was offered a one-off payment of €1,500 which she rejected. In 2008 the respondent offered her €10,000 in full and final settlement of her salary claims but she also rejected this offer. The complainant submits that she should be placed on the Producer-in-Charge scale with retrospective effect from 1999.
2.8 In relation to the claim regarding promotion the complainant submits that from 2000 to 2004 she was Producer and Presenter of Farm Week. Early in 2004 she was told by comparator A that, after discussions with the Head of Agriculture (who had been Head of Regions in 1999), he was taking over Farm Week. The complainant submits that this amounts to discrimination on the grounds of age and gender as comparator A had far less experience and knowledge than the complainant and he is a younger male. The complaint lodged a complaint with the respondent, although not alleging discrimination in the interests of her career and harmony, and she agreed to share the role with comparator A. However, this agreement was not honoured and comparator A was given charge of the programme despite protests from the complainant.
2.9 The complainant submits that in 2007 she read in the Farming Independent that the respondent was giving a more prominent role to comparator A in agriculture programmes, with no mention of the complainant. The then Head of RTE 1 apologised to the complainant but did not deny that she had written to the IFA announcing comparator A’s more prominent role. This was at the expense of the complainant’s career and another example of the complainant being side-lined. The complainant submits that this amounts to discrimination on the grounds of age and gender.
2.10 The complainant submits that in 2009, as a consequence of this side-lining, she was consigned to the role of researcher on the Mooney Show and only after she protested was she restored to a role on Countrywide and delivering reports for Drive Time. The complainant submits that this amounts to ongoing discrimination.
3 RESPONDENT’S SUBMISSION
3.1 The respondent raised a preliminary issue in relation to time limits. They submit that the complainant submitted her claim to the Equality Tribunal on 11 February 2011. That section 77 (5) (a) of the Employment Equality Acts states: “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence” and therefore all allegations prior to 11 August 2010 are statue barred.
3.2 Notwithstanding the preliminary issue in relation to time limits the respondent submits that the structure in radio programmes is: Editor – Producer-in-Charge – Radio Producer – Reporter/Presenter. The complainant worked as a Reporter/Presenter from 2 August 1990 – 9 September 1991. From 10 September 1991 until April 1998 she worked as a Freelance and was therefore not employed by the respondent. From May 1998 to April 2001 the complainant was employed on a fixed-term contract as a Reporter/Presenter. From 2001 the complainant has been employed on a permanent contract as a Reporter/Presenter.
3.3 The respondent submits that they met the complainant in April 2008, with her union representative present, to address her salary concerns.
3.4 In September 2009 they met the complainant, with her union representative present, to discuss her concerns with the role she had on The Mooney Show.
3.5 The respondent submits that the complainant is a Reporter/Presenter based in Galway, she works for the respondent primarily on Country Wide and Drivetime.
3.6 The respondent submits that the complainant was never a Producer/Presenter and is not entitled to be put on the producer-in-charge pay scale.
3.7 The respondent submits that when the complainant complained about her salary they carried out a review and found she was paid in line with all other comparable employees in the role of Reporter/Presenter. In relation to her named comparators: comparator B left the respondent’s employment in 1999 and comparator C left their employment in 1998. Comparator A was a Reporter/Presenter from 1999 to 2005. From 2001, when the complainant was employed on a permanent contract as a Reporter/Presenter, until 2005 he was paid on the same scale as the complainant. In June 2005 he was promoted to the position of Radio Producer and was therefore paid on a different scale to the complainant.
3.8 In 2001 the complainant attended production course training. This training and development consists of 2 – 3 weeks training and assists Reporter/Presenters to understand the producer’s role. This is different from Producer training which runs for over 2 months. In April 2005 the respondent announced an open competition for Producer Training. Comparator A applied and was successful after an interview process in obtaining a place on the training programme. He was placed on a Radio Producer panel in June 2005 and from that time he was placed on a personal salary. The complainant did not apply for this competition in 2005 and has never undertaken the Producer training.
3.9 The respondent submits that the person they used as a stand-in presenter in January 2011 had been employed by the respondent as a Radio Producer from 2004 to 2009. After that she worked as an independent contractor who worked for the respondent on a number of programmes. The respondent submits that the complainant and the stand-in presenter were not in comparable roles.
3.10 The respondent submits that from September 2009, as part of an overall resourcing process it was agreed that regionally based employees, such as the complainant, would be given roles in mainstream Radio 1 programmes like ‘The Mooney Show’. As the complainant was based in Galway it was agreed she would work with the programme team on ‘The Mooney Show’. The complainant expressed her dissatisfaction with this and it was agreed that from January 2010 she would be moved back to the role of Reporter/Presenter for Countrywide and Drivetime.
3.11 The respondent submits that there has been no discrimination on the grounds of age or gender
4 FINDINGS & CONCLUSION
4.1 At the beginning of the hearing the complainant withdrew her claim in relation to equal pay. She did however contend that the differences in pay that she highlighted were indicative of the respondent’s attitude to older women. Therefore, I have to decide if the complainant was discriminated against in relation to promotion and conditions of employment on the grounds of gender and age and if she was victimised. 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 presented at the hearing.
4.2 The respondent contends that, as this claim was referred on 11 February 2011, all events before 11August 2011 are out of time in accordance with section 77 (5) (a) of the Employment Equality Acts. They contend that the only incident submitted by the complainant that could be considered in time was in January 2011. They note that whilst this incident was included in the original EE1 it did not form part of the complainant’s later written submission. The respondent further contends that this incident, as the last alleged act of discrimination, would have to be discriminatory to allow me to consider the previous events as part of a chain, i.e. that this incident would have to be linked to the previous incidents for them to be considered. The respondent also points out that no other incident took place after 2009. The complainant contends that the incident in January 2011 was part of a continuation of discrimination and is, therefore, directly linked to the previous incidents.
4.3 The Labour Court in Determination EDA 1124 Hurley v County Cork VEC determined:
“that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”
and
“On the evidence adduced there is no basis whatsoever upon which the Court could conclude that either of the incidents relied upon by the Complainant within the time limit were acts of victimisation. Accordingly, the Court must conclude that no acts capable of constituting victimisation occurred in the period of six months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly. Even if the complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limits prescribed by Section 77(5) and are statute barred.”
4.4 In relation to this claim the only incident which is within the strict time limits of section 77 (5) is the appointment of a stand-in presenter in January 2011. The person appointed was a younger female. Section 6 of the Employment Equality Acts states “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” and the gender ground is “that one is a woman and the other is a man,” This means that I cannot investigate this incident as a claim of gender but I can consider it as a claim of age discrimination.
4.5 In looking at this incident on the age ground I have to take account of the respondent’s evidence that the younger female who acted as stand-in was not the first choice as stand-in presenter. The first choice, who had acted as stand-in for the main presenter of the Countrywide radio programme previously, was not available on this occasion. He is a male who is a similar age to the complainant. If he had been available and appointed then the respondent’s actions in relation to this event could not have been considered discriminatory against the complainant on the grounds of age either.
4.6 In investigating whether the events of January 2011 were discriminatory I must also consider whether the previous events referred to by the complainant could be seen to be part of a pattern of events by the respondent that might support the allegations made about the appointment of a stand-in in January 2011. Other than the equal pay claim, which has been withdrawn, the main thrust of the previous events relates to the appointment of comparator A in 2004 to present ‘Farm Week’ and later to present Countrywide in 2009 and different treatment in relation to the respondent promoting comparator A at her expense. This is made in relation to comparator A being a younger male. In supporting her claim the complainant wants me to consider her claim that this amounts to discrimination because she is a woman and older and because she is an older woman. She contends this is supported by her previous treatment in relation to salary and her subsequent treatment in relation to the programmes that she was asked to work on, after what the complainant contends amounts to her being side-lined. The complainant’s representative cited a UK Employment Tribunal Judgement (Case Number: 2200423/2010 O’Reilly v BBC) which he contends is similar to this case, particularly in the treatment of an older woman. The possibility of a combination of age and gender was considered but I note that it was found that discrimination occurred on the grounds of age only.
4.7 I also note that in the BBC case the Employment Tribunal found there were inconsistencies in the evidence given to explain certain decisions made by the respondent about the appointment of presenters. In was accepted that the respondent had a legitimate aim but the means to achieve that aim were not proportionate.
4.8 In this case I accept a consistency of evidence as to why the complainant was not appointed as presenter in 2004 or 2009 or latterly as stand-in presenter. The evidence, given by a number of witnesses who were in senior positions with the respondent involved in programming in RTE Radio 1 during the period in question, was that the complainant was an experienced, knowledgeable and respected Reporter/Presenter but she was not considered suitable by the Editorial Board to present an hour long live radio programme. When appointed to Countrywide it was considered that comparator A had a ‘strong voice’ and the complainant would not be able to carry an hour long live programme. The respondent contends that the complainant was told at the time of comparator A’s appointment in 2009 that she was not considerable suitable to present a live hour-long programme or as a stand-in presenter.
4.9 I accept evidence given at the hearing by the witnesses for the respondent that the complainant was not considered for the stand-in role in January 2011. Furthermore, the complainant did not adduce evidence that she was considered for the role. Nor, that she would have been considered any differently if she had either been an older man, such as the 1st choice, or a younger woman, the person who did stand in in January 2011. Her evidence was that it was further discrimination going back to the original decisions to appoint comparator A in 2004 and 2009.
4.10 I conclude that the criteria used by the respondent in 2004 and 2009 were suitability for the role as a presenter on a live hour long radio programme, and that age and gender were not considerations. I also conclude that the complainant having been considered unsuitable in 2009 was not considered for the stand-in role after that. This means that no fresh act of discrimination, linked to 2009, was made in January 2011. In these circumstances the appointment of a stand-in presenter stands alone as the act of discrimination which I am considering.
4.11 Having previously considered in paragraphs 4.4 and 4.5 I can find no link to either of the grounds. Also, particularly in looking at this event in isolation I can find no link to the combined ground. I therefore conclude that the complainant is unable to establish a prima facie claim of discrimination in relation to victimisation and conditions of employment.
4.12 The complainant indicated that she was making a claim of victimisation in the initial EE1 claim form, however this was not elaborated on in that form and no evidence was adduced in her written submission or at the hearing. I note from copies of documents submitted which show the discussion between the complainant, her union representative and the respondent that occasional references to discrimination were made. However, this was never articulated as an argument of discrimination between the parties. Section 74 (2) of the Employment Equality Acts states:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
It could be argued that the complainant made a complaint of discrimination to the respondent. However, in the absence of any evidence the complainant is unable to show that any adverse treatment arose from this claim. I therefore conclude that the complainant is unable to establish a prima facie case of victimisation.
5. DECISION
I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment, promotion and victimisation on the basis of the grounds of gender and age and the complaint fails.
____________________
Hugh Lonsdale
Equality Officer
9 April 2014