DEC-E2015-068

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-068

PARTIES

David F. Matthews

AND

Electricity Supply Board

(Represented by Frances Meehan BL

instructed by Lynda Kealy, Solicitor for ESB)

File reference: EE/2012/524

Date of issue: 13th August 2015

1. DISPUTE

1.1 This dispute concerns a claim by the Complainant that he was subjected to adverse treatment amounting to victimisation by the Respondent pursuant to Section 74(2) of the Employment Equality Acts 1998-2011 (hereinafter referred to as ‘the Acts’), directly as a result of making a prior complaint of discriminatory treatment on the grounds of age and victimisation to the Equality Tribunal.

1.2 The Complainant referred a claim of victimisation to the Director of the Equality Tribunal on 10 October 2012 under the Acts. On 20 May 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, 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 had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 26 May 2015. All written and oral evidence presented to the Tribunal including documentation submitted before and during the hearing have been taken into consideration when coming to this decision.

1.3 The Complainant was representing himself. During the course of the hearing, the concept of victimisation as defined within the Acts was explained to the Complainant.

2. SUMMARY OF THE COMPLAINANT'S POSITION

2.1 The Complainant joined the Respondent Company as a qualified electrician in October 1968 and had almost 44 years of service before retiring on 13 July 2012. During that time the Complainant held a number of positions in Operations and other departments, and from 1995 onwards worked as an Engineering Officer at Grade G which entailed dealing with legal claims against the Respondent.

2.2 The Complainant submitted that further to making a complaint in relation to his non-selection for an internal promotion in 2010 on the grounds of age along with a claim for victimisation to the Equality Tribunal on the 30 April 2010 under the Acts, he had been subjected to adverse treatment by the Respondent, and in particular by his line managers, amounting to victimisation under the Acts. He submitted that it was at the hearing of this claim before the Equality Tribunal on 3 October 2012 that he felt that his original claim was possibly “the wrong way to go” and he submitted the current claim to the Equality Tribunal on 10 October 2012, before the decision (DEC-E2012-178) in his original claim issued on 18 December 2012. The Complainant was unsuccessful in relation to this claim and the Equality Officer found that he had not established facts from which age discrimination may be inferred and further, that: “Although the issue of victimisation was indicated on the original claim form, no written or oral evidence of victimisation taking place prior to the receipt of the complaint form on 30 April 2010 was set before the Tribunal.” The Complainant did not appeal this decision. However, he was aware that notwithstanding this unsuccessful outcome, he was still entitled to pursue a claim for victimisation arising from the submission of his original complaint to the Equality Tribunal on 30 April 2010.

2.3 The Complainant submitted that since referring his original claim to the Equality Tribunal on 30 April 2010, he had been marginalised within the organisation and his integrity called into question. In particular, he complained that his Corporate Procurement Card was rescinded in December 2010. Secondly, his “close and productively harmonious working relationship” with the Legal Department was ended by the introduction of the requirement that all reports and requests from the Legal Department had to be routed through his line manager and vice versa making his job more difficult and his involvement in legal cases less inclusive. Thirdly, he complained that he was not contacted by his line manager, Mr Y, when he was on sick leave undergoing major surgery which had been scheduled at short notice and when he returned in late 2010, he was not interviewed or reintegrated as per Company policy. Fourthly, his line managers refused to authorise payments for some of his monthly mileage claims because they contained abbreviations of destinations and as this had previously been an acceptable practice, he was not prepared to change the way he submitted them. Unpaid expenses of approximately €1,622 appear to constitute the main source of grievance as the Complainant stated that if they had been discharged, he would not have brought the instant claim. He submitted that his new line manager who took over just before his retirement, Ms X, had informed him that his outstanding expenses would be discharged in full on his retirement but 50% of his outstanding mileage claim was still unpaid. In evidence, he also took issue with the manner in which his work phone had been disconnected after his retirement. He referred to another incident occurring after his retirement when he had entered the Company offices by tailgating another employee through a secure entrance to photocopy pages relating to this claim which he felt was his entitlement and had been escorted off the premises by Ms X.

2.4 The Complainant further submitted that he had previously enjoyed a fairly good relationship with Mr Y who had been his line manager for about a year before he was unsuccessful in being shortlisted for interview for the promotion in 2010, following which relations deteriorated. He contended that Mr Y’s conduct was aimed at coercing him into dropping his original age discrimination claim. He had resisted but that these actions had caused him financial pressure and stress. He felt undervalued as he alleged that the Respondent had not been reasonable in its treatment of him after his many years of loyal service. He became demoralised and depressed as confirmed by his wife at the hearing. He had previously enjoyed a good working relationship with his line managers, had a good work record and had been in receipt of performance related bonuses. This all culminated in his decision to retire six weeks early.

SUMMARY OF THE RESPONDENT’S POSITION

3.1 The Respondent submitted that the Complainant had not provided specific dates for the complaints made herein which were out of time, being outside the six month time limit for submitting a complaint and it was for the Complainant to show they were within time or that there was reasonable cause for extending time. In any event, the Respondent denied that the Complainant had been subjected to any adverse treatment constituting victimisation within the meaning of the Acts as a result of his previous claim to the Equality Tribunal and called evidence of the Complainant’s two former line managers and a former HR Manager strenuously rebutting the allegations made by the Respondent. Detailed documentation in support of the Respondent’s position was also submitted along with written and oral legal submissions.

3.2 In relation to the Complainant’s complaint that his Corporate Procurement Card (used by employees for work related purchases) had been rescinded, it was submitted that a ‘Back to Basics’ policy had been introduced in ESB Networks which was aimed at improving performance and controlling costs in the economic downturn. Arising from this policy, these cards were rescinded for many staff and the basic policy was that if it was not being used then it should be surrendered. The Complainant had not used his Corporate Procurement Card in 2010 and the only charge on it for the year was the Government Stamp Duty of €30. It was therefore rescinded in early 2011 along with that of a colleague in the same position. Various internal Company policies and emails confirming the Respondent’s position were submitted.

3.3 In response to the complaint that the Complainant was targeted by the requirement that all reports and requests from the Legal Department had to be routed through his line manager and vice versa, it was submitted that this is not an unusual or unreasonable request for a line manger to make. The Respondent’s defence of a number of public liability cases had been hampered by the absence of a formal and structured report of investigation. Reports received from the Complainant were in the form of emails and his line manager, Mr Y was unable to obtain copies of the formal reports which the Legal Department should have received from him. Mr Y was obliged to take up late investigation of a number of cases where the Company’s defence was believed to be inadequate. All other staff reporting to the Complainant’s line manager submitted formal reports to him and it was also the line manager’s function to examine the quality of the report and make a decision on the adequacy of the defence of the public liability claim. Rather than being intended as a direct criticism of the Complainant’s prior work, the use of formal reports was a management decision and a matter of best practice and good governance. Mr Y denied that this was in any way intended to interfere with his working relationship with the Legal Department. He also confirmed that in fact he had tasked the Complainant with the very important job of setting up an evidence room based upon his knowledge and experience of the area. Overall, the Complainant’s salary including bonuses incrementally increased during the period in question.

3.4 In response to the complaint that the Complainant was not contacted by his line manager, Mr Y whilst he was on sick leave in late 2010 undergoing major surgery and when he returned in early 2011, he was not interviewed or reintegrated as per Company policy, the Respondent submits that as he had not signaled the upcoming surgery and protracted absence from work to his line manager, Mr Y, he took the view that that this was because he wanted it to remain a private matter. During his absences, the Complainant bypassed his line manager, Mr Y and submitted his sick leave certificates to his divisional manager which indicated to Mr Y that he did not want to be contacted by him. The Complainant did not inform Mr Y of when he intended to return to work and Mr Y did in fact write to him in December 2010 wishing him well and asking him to bring his sick certificates up to date. Mr Y also gave evidence that “communication was not as good as it could have been” since the Complainant’s non-selection for interview for the promotion earlier in 2010. Additionally, they were based in different office locations.

3.5 In response to the Complainant’s allegation that his line managers refused to authorise payment for some of his monthly mileage expense claims because they contained abbreviations of destinations, the Respondent submitted that there had been a change within the organisation in relation to expense claims. The Revenue Commissioners required that abbreviations for destinations not be used on future expense claims. At the same time, the aforesaid ‘Back to Basics’ policy was introduced to control costs and internal financial auditors required full and detailed expense claims which was a requirement in all sectors. The internal online procedures as submitted also specified that destinations and purpose for trips were to be fully detailed and in particular stated: “Trips with vague and general trip descriptions are not acceptable under ESB’s Group Tax guidelines for Expense Approvers. These are based on the Revenue Commissioner’s guidelines for the payment of expenses. Each claim must provide exact trip details including date, timing and purpose.” These measures applied to all staff and the Complainant was not singled out. Serious issues around the manner in which the Complainant submitted his expense claims had been ongoing and predated the promotion competition giving rising to his original claim to the Equality Tribunal. As evidenced in emails submitted between the Complainant and his managers and not disputed by him, he refused and continues to refuse to amend his expense claims in line with this policy. He also admitted to including parking charges within mileage claims instead of vouching separately. On one occasion, Mr Y drove to Dublin to speak to the Complainant in person about these issues. Furthermore, he had not submitted a complaint under the relevant legislation to the appropriate forum regarding any issue with his expense claims which he perceived were unfairly withheld to date.

3.6 Overall, Mr Y strenuously denied that he coerced the Complainant to drop his claim and gave evidence that he had minimal involvement in the promotion competition in question and his claim to the Equality Tribunal for age discrimination. No specific dates or details of these allegations had been provided.

3.7 Ms X, the Complainant’s last line manager gave evidence that the Complainant had been treated very reasonably in the intervening period up to his retirement. She along with other staff had gone to great lengths to organise a retirement presentation. She denied that she had told the Complainant that he would be paid his expenses in full and gave evidence that he had been paid as much as possibly could be sanctioned in circumstances where he refused to amend his expense claims to comply with Company requirements. She also felt that it was unreasonable that the Complainant should expect to attend the office premises to photocopy papers for his case after his retirement in circumstances where he was not insured to be on the premises. He would have been welcome in the canteen socially frequented by Company retirees. She had handled the situation discreetly and sensitively regarding requiring him to leave the office. The Complainant had continued to use the Company mobile phone after his retirement and having not followed the procedure for getting it changed over, after some weeks it was cut off.

3.8 The decision by the Respondent to retire early was a matter for him and his decision alone and could not be attributable to any wrongdoing by the Respondent. As he had the requisite forty years’ service for a full pension entitlement under the Respondent’s scheme, he did not suffer any loss as a result of same.

3.9 Overall, the Respondent strenuously refutes that any of the aforesaid matters complained of amount to victimisation within the meaning of the Acts. It is further submitted that the Complainant has not identified any specific acts or dates of alleged victimisation or any facts that give rise to an inference of victimisation and also that some of the acts complained of were outside the requisite time limit.

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The issue for my decision in this matter is whether or not the Complainant was subjected to adverse treatment amounting to victimisation by the Respondent pursuant to Section 74(2) of the Acts in reaction to his prior complaint of discriminatory treatment relating to an internal promotion competition on the grounds of age and for victimisation from the date of referral to the Equality Tribunal on 30 April 2010.

4.2 Section 74(2) of the Employment Equality Act 1998 (as amended) provides:

“(2) 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.”

4.3 As stated by the Labour Court in National Gallery of Ireland -v- Donnelly EDA1312:

“This section of the Acts is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision.”

4.4 In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows:

“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts;

(2) The Complainant was subjected to adverse treatment by the Respondent, and;

(3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

4.5 In relation to the applicable time limits, Section 77(5)(a) of the Acts provides:

“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”, extendable to 12 months for reasonable cause under Section 77(5)(b). Section 77(6A) deals with the different forms of continuing discrimination or victimisation under the Acts. Essentially, where the complaint of victimisation (or discrimination) refers to a series of separate acts or omissions sufficiently connected so as to constitute a continuum as asserted in the instant case, there must be acts or omissions of victimisation that fall within the requisite time limit in order for acts or omissions outside the time limit to be taken into account. (County Cork VEC -v- Hurley EDA1124)

4.6 Section 85A of the Acts sets out the burden of proof which applies to claims of victimisation. It requires the Complainant to establish, in the first instance, facts from which victimisation may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of victimisation raised. In order to show a prima facie case, the Complainant must demonstrate a causal link between the taking of proceedings or protected act within the meaning of the Acts and the alleged adverse treatment. (Public Appointments Service -v- Roddy EDA1019) However, this does not require the Complainant to establish that the claim of victimisation is the only or most likely explanation which can be drawn from the established facts. (Kealy -v- Brothers of Charity (Clare) Ltd DEC-E2012-042). The broad wording of Section 74(2) of the Acts also allows for a wide gambit of employer conduct to fall within the definition of victimisation. What might appear to be routine employer-employee dealings on their face may in fact constitute victimisation, for instance if internal procedures are more rigorously enforced as a reaction to an employee undertaking a protected act. Therefore, an objective examination of the factual matrix pertaining between the Parties is required.

4.7 There is no issue that the Complainant made an unsuccessful complaint of discrimination to the Equality Tribunal on the 30 April 2010 under the Acts in relation to his non-selection for interview for an internal promotion competition within the organisation in 2010 on the grounds of age, along with a claim for victimisation up until that date. It is settled law and accepted by the Respondent that the Complainant does not have to be successful in such proceedings to engage the victimisation protections of Section 74(2). Therefore the Complainant has satisfied the first component of the test for a victimisation claim, having previously taken an action of a type referred to at Section 74(2) of the Acts. I therefore have to consider whether the conduct complained of by the Complainant amounts to adverse treatment and if so, whether such adverse treatment was in reaction to the initial claim to the Equality Tribunal.

4.8 Specifically in relation to the complaint that the Complainant’s Corporate Procurement Card was rescinded in December 2010, I find that this measure was introduced under a Company policy aimed at improving performance and controlling costs and applied to all staff alike where there had been minimal use of the Card. The Complainant adduced no evidence whatsoever to show that he had been specifically targeted in relation to the enforcement of this policy after referring his initial complaint to the Equality Tribunal and in fact he did not dispute the Respondent’s evidence as confirmed in emails submitted, that another colleague in a similar position had his card cancelled at the same time.

4.9 Likewise in relation to the Complainant’s complaint regarding the introduction of the requirement that all reports and requests from the Legal Department be routed through his line manager and vice versa, I find that based on the evidence adduced, this was not an unreasonable request in the interests of good management and was applicable to all staff at his level alike and he was not singled out in this respect.

4.10 In relation the Complainant’s complaints around the manner in which he was treated during and after his sick leave arising from major surgery, I find that his difficulties in this respect arose from the manner in which he sought to bypass his line manager, Mr Y, regarding the submission of his sick leave certificates and the general deterioration in relations following his disappointment around the promotion competition. Additionally and owing to my finding that none of the other conduct complained of amounted to victimisation within the meaning of the Acts, as the subject matter of this complaint arose in late 2010 to early 2011, it also fall outside the requisite time limits under Section 77(5) of the Acts.

4.11 Neither is the Complainant’s allegation that his line managers refused to authorise payment for some of his monthly mileage expense claims and have wrongfully withheld same to date made out. Based upon the evidence adduced regarding internal policies and the need to comply with the requirements for internal and Revenue audits regarding expense claims in the economic downturn, I am satisfied that this was reasonable and applied to all staff alike. There was no evidence that the requirements were more forcibly enforced against the Complainant after the referral of his claim to the Equality Tribunal. I therefore conclude that it was his ongoing refusal to amend his expense claims in line with the internal policies that led to the non-payment of any outstanding expenses. Additionally, it was not in dispute that the expenses issue had been ongoing preceding his initial complaint to the Equality Tribunal and therefore cannot be held to be imposed in reaction to the making of the complaint.

4.12 The Complainant adduced no other evidence whatsoever including dates or specific details to support his allegations that his line manager, Mr Y, sought to coerce him to drop his initial claim. In IBM Ireland Product Distribution Ltd -v- Svoboda EDA1116, the Labour Court stated that it has "consistently found that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case and so transfer the burden of proof" and went on to cite its earlier decision in Melbury Developments Ltd -v- Valpeters EDA0917, where it stated that "mere speculation or assertion, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". In the absence of any corroborative evidence whatsoever, I consider this aspect of the claim to fall into the category of “mere speculation or assertion”.

4.13 Overall, there is no doubt that the Complainant enjoyed a very long and successful career with the Respondent which was acknowledged with bonuses, salary increases, full pension and a retirement presentation. His expertise was clearly valued with his line manager subsequently tasking him with the very important job of setting up an evidence room. Unfortunately, it appears to me that the Complainant was very disappointed following his unsuccessful application for a promotion ultimately leading to his decision to retire a few months earlier than intended and giving rise to the complaints herein. However, having fully considered all of the evidence adduced and submissions, I am not satisfied on the balance of probabilities, that the conduct complained of amounts to adverse treatment and even if it did, that such treatment could have been ‘as a reaction to’ the initial claim to the Equality Tribunal. I am also satisfied that the Respondent did not act unreasonably in its conduct towards the Complainant after his retirement.

5. DECISION

5.1 Having considered all the evidence presented, I consider that the Complainant has not established facts from which victimisation within the meaning of Section 74(2) of the Acts may be inferred, directly as a result of making a prior complaint of discriminatory treatment on the grounds of age and victimisation from the date of receipt of complaint by the Equality Tribunal on 30 April 2010. Therefore no onus shifts to the Respondent to rebut any inference and this complaint must fail.

____________________

Aideen Collard

Equality Officer

13th August 2015