EQUALITY OFFICER'S DECISION NO: DEC-E/2015/155
PARTIES
Michelle Gilbourne
(Represented by Crowley Solicitors)
-V-
O’Neill & Co. Solicitors
(Represented by O’Neill & Co. Solicitors)
FILE NO: EE/2012/548
DATE OF ISSUE: 11th of December, 2015
1. Dispute
This dispute involves claims by Michelle Gilbourne against O’Neill & Co. Solicitors that she was discriminated against on grounds of gender, civil status and family status, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2011, in relation to her conditions of employment and dismissal as well as a claim of harassment and victimisation.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2011, to the Equality Tribunal on 22nd of October, 2012.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 11th of June, 2015 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submission was received from the complainant but not from the respondent. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 14th of July 2015 and again on the 11th of September, 2015.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 It is submitted that :
· the complainant was employed by the respondent from August 2005 to August 2012 on a full time basis as a solicitor within the firm.
· the complainant had no problems at work until December 2009 when the respondent asked her to take a pay cut. It is submitted that this was due to her gender, civil status and family status.
· the reason given for asking her to take a pay cut was due to the financial situation of the company but that a reference was made to her marital status and to her family status at that time.
· no one else was asked to take a pay cut.
· A male colleague who was more junior to the complainant was taken on at a time when the complainant was asked to take a pay cut.
· the complainant was asked to reduce her hours and to work part time and that this was due to her gender, civil and family status
· the respondent attempted to re classify her role from ‘a general solicitor’ to ‘a conveyancing solicitor’ in an attempt to force her to move from the firm.
· the respondent dismissed the complainant in August, 2012 and this was due to her gender, family status and civil status.
· the complainant was harassed by the respondent when she was asked to take a pay cut or reduce her hours.
· the complainant was victimised by the respondent by being asked to repay Social Welfare benefit paid to her while out sick.
4. Summary of respondent’s case
4.1 It is submitted that :
· the complainant was employed by the respondent as a conveyancing solicitor from August 2005 to August 2012.
· the complainant during this time was permitted to have flexibility in her hours of work due to her status as a parent.
· the complainant initially through conveyancing work generated huge revenue for the firm but this decreased dramatically during the recession.
· The complainant was paid a salary of €60,000 pa when she was employed by the respondent. This salary was no longer viable when the complainant’s generated fee income fell to €30,000.
· The respondent asked the complainant to take a pay cut due to the financial difficulty of the company.
· The complainant refused to take a pay cut.
· The respondent asked the complainant to reduce her hours of work and her salary in order that it could continue to survive but the complainant repeatedly refused to do so.
· The complainant’s employment was terminated in August 2012 at which point the respondent could not longer afford to pay her salary and after numerous failed attempts by the respondent to reach a compromise solution with the complainant re wages/working hours.
5. Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not, the respondent discriminated against the complainant, on grounds of gender, civil status and/or family status, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2011, in relation to her conditions of employment and her dismissal and whether she was subjected to harassment and victimisation by the respondent. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Discrimination
5.2.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.2.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” In this case the grounds specified are gender, civil status and family status
5.3 Time Limits
5.3.1 The complainant in respect of this complaint has raised issues which occurred during the years 2009 to 2012. The complaint was submitted to the Tribunal on the 22nd of October, 2012 and cited the last date of discrimination as the 29th of August, 2012. The respondent in this case has submitted that a number of these allegations were referred outside of the 6 months time limits specified by the Acts. Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown. It is also possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, firstly however, establish that a discriminatory act occurred within the limitation period (see the decision of the Labour Court in Cork County VEC v. Hurley EDA 24/2011). In this regard I have decided that my investigation should focus, in the first instance, on alleged acts of discriminatory treatment which occurred between the 23rd of April, 2012 and the 22nd of October, 2012 i.e.in the 6 months preceding the complaint.
5.3.2 If I consider this alleged incident to amount to unlawful treatment of the complainant contrary to the Acts, I will then consider the evidence adduced on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incident/s within the six months preceding the referral of the complaint not to be well founded, the earlier alleged incidents would be statute barred.
5.3.3 The complainant in this case has submitted that she was dismissed from her employment by the respondent on 29th of August, 2012 and that this dismissal relates to her gender, family status and civil status. In ascertaining whether or not the complainant’s termination of employment amounts to a discriminatory dismissal on the grounds of gender, family or civil status it is necessary for me to examine the sequence of events which lead up to the complainant’s termination of employment. In examining these events I am doing so for their probative value in respect of the allegation of discriminatory dismissal and not in the context of their being considered as separate incidents/allegations of discrimination. This investigation of events will lead me to reach a decision in respect of whether or not the complainant was subjected to a discriminatory dismissal on the grounds of gender, family status or civil status.
5.4 Discriminatory dismissal
5.4.1 The complainant in this case has submitted that she was dismissed from her employment by the respondent on the 29th of August, 2012 and that this dismissal relates to her gender, family status and civil status.
The complainant advised the hearing that she was advised by the respondent on the 1st of August 2012 that her position as a ‘conveyancing solicitor’ was to be made redundant and that she was given four weeks notice of redundancy. The complainant submits that the termination of her employment was not due to a redundancy situation but was related to the fact that she was female, a wife and a mother. The complainant advised the hearing that she was made redundant despite the fact that another solicitor Mr. P who was male, single and had no children and who had joined the firm after the complainant and was more junior to her, was kept on. The complainant advised the hearing that over the two or three years prior to her ‘redundancy’ the respondent Mr. N had several conversations and exchanges with her during which he had asked her to consider taking a pay cut or to work part time citing financial reasons but that he had during these conversations referred to the fact that the complainant was a mother of a young child and the fact that she was married to a civil servant.
5.4.2 The respondent has submitted that the complainant was made redundant for financial reasons related to the fact that she was the solicitor who worked on the conveyancing side of the respondent’s business and which due to the recession had gone into a huge economic decline and which meant that he could no longer afford to pay her a €60,000 salary. The respondent agreed that he had over the period 2009 to 2012 had a number of conversations with the complainant asking her to take a pay cut or to reduce to part time hours as he could no longer afford to pay her salary of €60,000 given that the fee income from conveyancing had reduced to €39,000 at that stage. The respondent advised the hearing that he was reluctant to ‘make a hard decision’ and to make the complainant redundant despite his financial woes and submits that he made every effort to keep the complainant in employment by seeking an alternative solution to her redundancy by asking her to take a pay cut and/or to reduce her hours to part time work. The respondent stated that the other solicitor, Mr. B was not made redundant due to the fact that he worked on the litigation side of the business and also due to the fact that his salary which started out at €20,000 while he was an apprentice but which increased to €30,000 once he qualified, and was still half of the complainant’s salary.
The respondent during the hearing referred to the complainant as the firms ‘conveyancing solicitor’. The complainant disputes the respondent’s claim that she was employed as a ‘conveyancing solicitor’.
5.5 The Complainant’s Employment
5.5.1 The complainant advised the hearing, that she had commenced working with the respondent in August 2005. She stated that had been approached by a former colleague of Mr. N’s, Ms. J who had worked as a solicitor in the respondent’s firm but who was leaving the country to return home to Sweden. The complainant stated that she had met with Mr. N and that they discussed the possibility of her taking over Ms. J’s position. The complainant stated that she had at the time advised Mr. N that she had a five year old daughter and that she would need to have flexibility with her working hours as she needed to be able to get home early to her daughter. The complainant stated that Mr. N agreed to this and that she commenced employment with the respondent in August 2005 with a working day of 8.30 to 4.30 five days a week. The complainant stated that the working relationship was good and that she had no problems for a number of years.
5.5.2 The complainant submits that she had no problems with Mr. N until late 2009. The complainant submits that she was out sick in September 2009 and returned to work in November 2009. She submits that it was following her return to work after her sick leave that her employer’s attitude towards her changed, she submits that Mr. N was hostile in his attitude towards her and would regularly ignore her. The respondent denies ignoring the complainant around the office but advised the hearing that she advised him that she did not want to speak to him directly anymore and that he should only communicate with her by email. The respondent Mr. N stated that this put him in a very awkward position where he could not discuss anything concerning the business with the complainant on an informal or ad hoc basis.
5.5.3 The complainant advised the hearing that Mr. N had called in to her office in December 2009and had told her that he was not happy with the revenue being generated by the firm and asked her if she would take a pay cut. The complainant stated that Mr. N referred to the fact that she cut afford to take a pay cut as her husband was a civil servant.
5.5.4 The respondent at the hearing confirmed that he had asked the complainant to work part time and that he had asked her to take a pay cut due to the fact that the firm was struggling financially. The respondent denied that he had made any reference to the complainant’s husband in this conversation. The respondent advised the hearing that he is also a parent and is married to a civil servant and that this would have had no bearing on asking the complainant to take a pay cut.
5.5.5 The complainant stated that her response to this was to ask if the other solicitor in the firm, Mr. B had also been asked to take a pay cut. She stated that Mr. N indicated that the other solicitor Mr. B, had not been asked to take a pay cut as he was in a different position to the complainant. The respondent stated that the complainant worked on the conveyancing side of the business and that Mr. B was his assistant working on the litigation side of the business. The respondent added that the complainant was on a salary of €60,000 plus bonus while Mr. B was a trainee and on a salary of €20,000 at that time. The complainant advised the hearing that she had pointed out to Mr. N that she and Mr. B were both employed as solicitors in the firm. The complainant advised the hearing that Mr. N then raised an issue about her hours of work and she reminded him that it was agreed from the start that she could work 8.30am to 4.30pm on a reasonably flexible basis due to her daughter.
5.5.6 The complainant advised the hearing that she was the only member of staff not to receive a Christmas bonus that year. The respondent stated that the complainant was the only member of staff on a performance linked bonus and that she had received generous bonuses when none of the other staff had received one and that she had benefitted from huge bonuses during the property ‘boom years’ when she generated large amount of fee income. The respondent stated that the basis for her bonus had not changed but that the level of fee income generated by her had reduced dramatically with the recession and thus so had her bonus.
5.5.7 The respondent stated that he had on a number of occasions between 2009 and 2012 asked the complainant if she would consider taking a pay cut or reducing her hours as the firm was in extreme financial difficulty but he stated that she had consistently refused to consider these options and on one such occasion even replied with a request for a pay rise.
5.5.8 The respondent advised the hearing that the business had been very successful during the boom years and that the complainant had generated huge amounts of fee income through her work in conveyancing. The respondent stated that the complainant, Ms. G did all of the conveyancing work in the firm and that he and his assistant Mr. B did all of the litigation work.
5.5.9 The respondent advised the hearing that the firm ran into financial difficulty in 2009 and that this was mainly due to the fact that the property market collapsed and some of its major clients had to go into NAMA. In addition the amount of fee income generated by conveyancing had gone into a rapid decline and the firm like many other solicitors’ firms was struggling to survive. The complainant agreed that the conveyancing side of the business had gone into a decline but stated that she could have taken on other work such as litigation. The complainant stated that she had told Mr. N that she wished to take on litigation work on a number of occasions but that none was forthcoming. She added that the respondent at the time had advised her that the litigation work was already spread thinly and that he could not spread it any more thinly. The respondent advised the hearing that he himself and Mr. B handled the litigation work and stated that to transfer that work to the complainant would be like taking food from his own mouth.
5.5.10 The complainant advised the hearing that Mr. N approached her again in April 2010 and advised her that he was not getting enough work to keep the firm going. He advised her that he would have to make changes and again asked her to work part time. He stated that it might suit her to work part time as she had a young child.
5.5.11 The respondent conceded that he had again asked the complainant to work part time and stated that he may have referred to the fact that working part time might suit her as it might save her money on childcare costs and that it might turn out to suit her to cut down to part time. He also stated that he mentioned that she might save on tax if she were to move to part time hours. The respondent stated that this was purely a reference to how part time hours might benefit both parties as he would save on paying out wages and she would save on childcare costs. He stated that it was not in any way given as a reason for asking her to reduce her hours but that he was merely pointing it out as an incidental benefit.
5.5.12 The complainant again replied by asking if anyone else had been asked to work part time. The complainant advised the hearing that the respondent during this conversation mentioned that Mr. B who had recently qualified as a solicitor was looking for a pay rise which the respondent intended to review in May.
5.6 Reclassifying her role to that of Conveyancing solicitor
5.6.1 The complainant submits that the role she occupied within the respondent’s firm was that of a general solicitor’s role. She states that she was employed in that role and that although the majority of the work done by her was in the area of conveyancing she also handled other work such as family law and litigation. Both parties agreed that the complainant did most or all of the conveyancing work within the firm. The complainant states that the reason for this is because she was good at it and was able to handle huge volumes of such work.
5.6.2 The complainant advised the hearing that she was however employed as a general solicitor and the fact that she did most of the conveyancing work does not make her a ‘conveyancing solicitor’. The complainant advised the hearing that the respondent in April 2010 had brought in a Management Consultant, Mr. H who sought to re characterise her role to that of a ‘conveyancing solicitor’ in order to line her up for redundancy.
5.6.3 The respondent advised the hearing that he did bring in Mr. H, a consultant, in April 2010 to examine the firm’s processes and procedures with a view to identifying or making suggestions as to where improvements could be made. The respondent stated that Mr. H met with all staff together and then separately to identify where efficiencies could be achieved. The complainant advised the hearing that Mr. H in his first general meeting with all staff referred to her as ‘the conveyancing solicitor’. The complainant submits that this was in a bid to line her up for redundancy as it was also highlighted at this time that it was the conveyancing side of the business which was in trouble and that by referring to her as the ‘conveyancing solicitor’, the reason for the firm’s financial decline was being attributed to her.
5.6.4 Mr. H appeared at the hearing and gave evidence as to his involvement in the respondent’s business. He stated that his role as a Consultant means that he is often invited into companies who are in financial difficulty in order to advise people on ways to improve their businesses. He stated that he and Mr. N had known each other for many years and that Mr. N had confided in him about the financial crisis of the firm, Mr. H stated that he had suggested that he would come in to the firm and have a look to see what could be done. Mr. H stated that he had received no instructions or agenda from Mr. N but that he was told that Mr. N and Mr. B dealt mainly with the litigation side of the business and that Ms. G dealt with the conveyancing side. Mr. H stated that the usual procedure he adopts is to speak to all staff together first and then to each person individually in a series of confidential one to one meetings. Mr. H stated that he also speaks to clients of the firms.
5.6.5 Mr. H advised the hearing that he may have referred to Ms. G as the ‘conveyancing solicitor’ but that this was in no way meant as a demeaning or derogatory term. Mr. H stated that he didn’t even see how it could be perceived as a derogatory term. The complainant in response to this stated that it was clear that conveyancing was declining and that this aspect of the firms business was struggling and that that by referring to her as the conveyancing solicitor she felt was getting the blame for the firms financial problems. Mr. H at the hearing denied that this was in any way intentional. The complainant advised the hearing that she had in a one to one meeting with Mr. H advised him that she objected to being labelled as ‘the conveyancing solicitor’. She stated that Mr. H had then apologised to her. Mr. H at the hearing reiterated that referring to the complainant as ‘the conveyancing solicitor’ was not intended to be in any way derogatory or insulting and was not indicative of any agenda on his part but stated that he would of course have apologised to the complainant once she indicated to him that it had offended or insulted her, however unintentional it was on his part as he would not want to rude and so if someone was offended by something he said he would of course apologise.
5.6.6 The complainant in her statement to the Tribunal had stated that Mr. H was involved in a campaign to line her up for redundancy. Mr. H had come into the firm in April 2010 and the complainant was made redundant in August 2012. The complainant raised an allegation of discrimination with the respondent in November 2011. The complainant did not mention Mr. H in these allegations and when questioned at the hearing as to why she did not raise this allegation against Mr. H until two years later could not give any satisfactory answer. Mr. H objected strenuously to the allegation that he was in any way involved in some plan to line the complainant up for redundancy. Mr. H in his evidence came across as unbiased, honest and consistent.
5.6.7 Mr. H advised the hearing stated that the purpose of his report was to encourage the firm to develop areas of the practice and to be motivated to do so. Mr. H stated that the outcome of his meeting with the complainant was that it was agreed that she would join a local Business Network in bid to drum up additional business and to develop business contacts and to put the firms name out there. Both parties agreed that the complainant joined the Business Network and that Mr. N paid the €800 membership fee.
5.6.8 The respondent advised the hearing that he had on a number of occasions asked the complainant to go part time or to take a pay cut. He stated that this was due to the fact that the firm was struggling financially especially since the recession had hit and that revenue from the conveyancing side of the business had decreased from €283,000 in 2007 and 193,000 in 2006 to €62,000 in 2009 and €39,000 in 2011. The complainant disputed the accuracy of these figures and pointed to the fact that in some cases conveyancing fees were still outstanding and may not have been collected due to the fact that she had been out sick or on maternity leave. The respondent stated that these figures had been produced by Mr. K who looked after the accountancy and finances of the firm. Mr. K advised the hearing that these figures were indicative of fees taken in and could not capture any outstanding fees for work done but not yet collected.
5.6.9 The respondent advised the hearing that he was trying to protect the complainant’s employment by trying to find solutions which would reduce the financial burden on the company while retaining its employees. The respondent advised the hearing that Ms. G was on a salary of €60,000 plus bonus which he could afford to pay during the boom years as she was bringing in large amount of fee income from conveyancing for example in 2006 and 2007 Ms. G generated 193,000 and 283,000 respectively. The respondent stated that this had decreased to €62,000 in 2010. The respondent stated that 3 Secretaries were put on part time hours in a bid to save money in 2010 but that further savings were necessary. The respondent stated that he had purchased files from other firms which were going out of business in a bid to keep his own business afloat and that these were litigation files which he and Mr. B had capacity to absorb into their work load. Mr. N stated that he did pass on some of these files to the complainant but that there just wasn’t enough litigation work to keep them all employed and to justify the complainant’s salary.
5.6.10 The respondent in reply to the complainant’s assertion that Mr. B should have been asked to take a pay cut stated that there would be little saving to be made by asking Mr. B to work part time as his salary was only €20,000 while he was an apprentice compared to the complainant’s €60,000. He stated that the reference to a pay rise for Mr. B was due to the fact that Mr. B had recentlyqualified as a solicitor and that he would have to pay him €30,000 in order to keep him on once he was qualified. The respondent stated that a €30,000 salary was still a lot less than what the complainant was earning. The respondent advised the hearing that Mr. B had worked on the litigation side of the business with Mr. N and that traditionally litigation files can remain open for 2-5 years compared to conveyancing files which are only open for a few months. He stated that Mr. B had built up relationships with a number of his litigation clients and that he did not wish to let him go given the fact that Mr. B ‘s full time salary would be €30,000 . Mr. N added that litigation had now become the lifeblood of the firm as it was keeping the firm afloat since the decline in conveyancing. The respondent stated that many conveyancing solicitors had lost their jobs and that many firms had gone under due to the recession but that he was trying to find ways to keep the complainant in employment by offering her part time hours and by asking her to agree to take a pay cut as he could no longer justify paying her a salary of €60,000 at a time when her fee income generated had declined to €39,000 as it had in 2011.
5.6.11 The complainant had submitted that it is Mr. B who should have been asked to go part time or to take a pay cut instead of the complainant as he was more junior to her. While I acknowledge that Mr. B was junior to Ms. G I also acknowledge that his salary even after a raise was half that of Ms. G and so there would be a much greater saving to be made in the complainant going part time. In addition, I also acknowledge the respondent’s point that litigation was now the lifeblood of the company and that Mr. B had worked in this area and developed an expertise in this area as well as building up relationship with clients.
5.6.12 The complainant in her evidence also referred to the fact that another trainee solicitor Mr. C had been taken on by the firm at a time when the respondent was citing financial difficulties as the reason for her redundancy. The respondent advised the hearing that Mr. C was taken on as a trainee on the basis that it would be for one year only and as a favour to his father who was a client of the firm. The respondent advised the hearing that Mr. C was on a trainee salary of about €20,000 and that this again was a lot less than the complainant’s salary which he reiterated could not be justified at a time when the fee income generated by her had declined to such an extent. The respondent stated that Mr. C was delegated the work of an office junior and did a lot of filing and clerical work which could not have been given to the complainant. It emerged at the hearing that Mr. C has since been replaced by Ms. O another trainee solicitor.
5.6.13 It is a well known fact that the property market collapsed in this country in the recession and that a result of that was that the buying and selling of property and the need for conveyancing declined dramatically. It is thus hard to see how the respondent could justify continuing to pay a solicitor working in the conveyancing area a salary of €60,000 when the fee income generated had declined steadily until it reached €39,000 in 2011. The respondent repeatedly stated that he pointed out to the complainant that there had to be a link between the salary paid to her and the fee income generated by her. The complainant at the hearing showed little insight and did not acknowledge that she should have any role in generating new business for the firm however in a small firm of two or three solicitors it does not seem unreasonable that a solicitor would be expected to generate business to cover their own salary especially given that the firm was struggling financially. While the complainant does not acknowledge this she did join the Business Network which was an attempt to get the firms name out there and to generate new business. It is also clear that a fee of €800 was paid by the respondent for membership of this network.
5.6.14 The complainant submitted that she had in November 2011 offered to take parental leave and proposed that she would take one or two days off per week for a period of time and that this would reduce her wage by one or two fifths. The respondent stated that this was still ignoring the fact that her basic salary was €60,000 and was completely unrealistic in an area which had declined to the level which the conveyancing side of the business had reached. He stated that at this stage the ‘writing was on the wall’ as regards the firm’s financial difficulties and it was clear that the complainant’s salary had to be reduced to reflect the fee income generated by her.
5.6.15 The respondent advised the hearing that there was also at this stage ‘a difficult atmosphere’ between himself and the complainant and that she had advised him that she did not want to speak to him directly anymore and that he should only communicate with her by email. The respondent, Mr. N stated that this put him in a very awkward position where he could not discuss anything concerning the business with the complainant on an informal or ad hoc basis. The respondent also referred to an issue with the complainant having received Social Welfare benefit while out on sick leave from work during which time she was also paid by the firm and which she had failed to reimburse to the respondent until 2 years after the event. The complainant has referred to this issue in her evidence and submits that the respondent’s request for repayment of this money amounts to victimisation for her making a complaint of discrimination against him.
5.6.16 The complainant advised the hearing that she was penalised and victimised by the respondent due to the fact that she was asked to repay Social Welfare benefit paid to her while she was on sick leave from work. The complainant in her submission stated that this “sick pay” was “lawfully owing” to her and that she was entitled to it.
5.6.17 It emerged at the hearing that the complainant who was out sick for a period of 5 weeks commencing on 31st of August 2009, was paid by the respondent during her sick absence however she was also paid Social Welfare benefit of over €1,000 during this period and so was in effect double paid for her sick absence.
5.6.18 The complainant advised the hearing that she had received the payments from Social Welfare while she was out sick. The complainant stated that once she was made aware by Mr. K, the respondent’s accountant, in July 2010, that these payments should have been issued to the respondent she immediately offered to pay them back and told Mr. K to work out how much was owed and to take it out of her wages. The complainant stated that she heard no more about it and that she had forgotten about until Mr. N raised the issue again in November 2011 and in January 2012. The complainant submits that Mr. N only raised this issue in November 2011 in retaliation for her making a complaint of discrimination. The respondent, Mr. N stated that he had not been aware of the fact that the complainant had received double pay for her sick leave as the matter had been dealt with by Mr. K and that he had only become aware of it in November 2011 when Mr. K mentioned it to him and stated that the money had not yet been paid back. Mr. K gave evidence at the hearing and stated that he had reluctantly raised the issue with the complainant in July 2010 and stated that he was embarrassed to have to approach a senior member of staff about such an issue. Mr. K conceded that the complainant had told him that he could take it out of her wages but stated that he did not know how much she had received from Social Welfare as she had been the person who received the cheques and so only she would have been aware of how much they were for.
5.6.19 The complainant advised the hearing that she had not heard back from the respondent on this matter after it was first raised in July 2010 and that she had then forgotten about it until it was raised by Mr. N in November 2011. The complainant stated that following the matter being raised by Mr. N and given that she had not heard back for Mr. K regarding the amount to be repaid she had calculated the amount owing herself and had lodged a cheque for this amount, €1021.50 to the respondent’s account at the end of January 2012.
5.6.20 The complainant advised the hearing that her treatment in respect of being asked on a number of occasions by the respondent to take a pay cut and or to move to part time hours amounts to discrimination and harassment on grounds of gender, civil status and family status eventually culminating in her redundancy which she submits amounts to a discriminatory dismissal. In a situation where the respondent advised her that the firm was in financial difficulty and where it was clear to the complainant that the property market had declined and that fee income generated from conveyancing was down to less than a quarter of what it had been in 2007, I find it not unreasonable that Mr. N should approach the only other senior solicitor in the firm and engage with her re proposed solutions for the firm. While I accept that the respondent may have referred to the fact that reducing her hours might result in a saving on childcare for the complainant it is also clear that it was not unusual for the complainant and respondent to discuss her family status as she had from the start requested and been granted flexible working hours due to the fact that she had a child. The complainant in her evidence also referred to the fact that her husband collected her from work and that they tried to travel together to and from work in one car and that her flexible working hours facilitated this arrangement. Thus it is clear that the respondent was aware of the complainant’s gender, family status and marital status before engaging her in employment and went so far as to accommodate her by agreeing to facilitate her with flexible working hours whereby it was agreed that she could leave the office at 4.30 pm daily. Given these circumstances and the fact that the parties had at one stage enjoyed a relationship where they could and did discuss their family arrangements it is not inappropriate for the respondent to have referred to the possible savings on child care which the complainant may benefit from if she went part time without it being construed as being harassment or discrimination.
5.6.21 It is clear from the evidence adduced here that the respondent was in financial difficulty and that the complainant’s work in the conveyancing area of the firm had declined dramatically in the years leading up to her redundancy. It is also evident that the respondent discussed these financial problems with the complainant and regularly asked for her input regarding suggestions or solutions which might ease the financial pressures of the firm. The complainant has submitted that she was the only person made redundant and that she was also the only person being asked to take a pay cut or to reduce her hours and that this was due to her gender, family status and civil status. The respondent submits that the complainant’s dismissal was due to a redundancy situation which arose from the fact that the complainant was the conveyancing solicitor within the firm and that given the collapse of the property market her position was no longer viable within the firm. He has also submitted that he sought to reach alternative solutions with the complainant over the two years leading up to her redundancy but that she refused to engage with him in reaching such a solution.
5.6.22 While it is clear from the evidence adduced that the relationship between the complainant and the respondent deteriorated over the course of the two or three years leading up to her redundancy to the point where they could no longer communicate with each other except via email and while it may be that this deterioration in their relationship contributed to the complainant’s eventual selection for redundancy I am not satisfied from the evidence adduced that her dismissal was related to her gender, family status or civil status. In addition, the complainant held all three of these status’ at the time of her initial employment with the respondent and it appears that the respondent accommodated her with family friendly policies such as flexible working hours from the start of her employment. It is evident that the relationship began to deteriorate as the conveyancing side of the business went into the decline and the respondent could no longer justify paying the complainants salary when she was no longer generating the fee income levels to justify same and the fact that the respondent kept on a junior solicitor and a trainee at combined salaries of €50,000, while making the complainant who was on a salary of €60,000, redundant does not amount to discrimination on grounds of gender, family status or civil status. I am thus satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of gender, family status or civil status by the respondent in relation to her dismissal.
5.7 Other allegations
5.7.1 In the instant case I have found that the allegations of discrimination which relate to incidents within the time limit specified by the act, namely the complainant’s dismissal do not amount to discrimination on grounds of gender, civil status and/or family status thus I am satisfied given the foregoing and given the totality of the evidence adduced that that the earlier alleged incidents of discrimination and harassment are statute barred. The complainant in this case has claimed discriminatory dismissal and has claimed that she was victimised following her raising of an allegation of discrimination with the respondent in November 2011. As regards the victimisation aspect of the claim, this relates to alleged adverse treatment in November 2011 so for the avoidance of doubt I will examine this aspect of the claim in more detail.
5.8. Victimisation
5.8.1 The complainant has submitted that she was victimised by the respondent. The complainant at the hearing stated that she was victimised by being asked to repay the Social Welfare benefit paid to her during her sick absence for which she was also paid by the respondent.
Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“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………….
(f) an employee having opposed by lawful means and act which is unlawful under this Act…….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
5.8.2 In Tom Barrett v Department of Defence[1] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.8.3 The complainant advised the hearing that she had submitted a complaint of discrimination to the respondent in November 2011. The complainant advised the hearing that this matter had been the subject of an email from her to the respondent on the 11th of November, 2011. A copy of this email was submitted to the Tribunal in evidence. I am thus satisfied that that the email from the complainant to the respondent dated 11th of November 2011 amounts to a protected Act for the purpose of this Section.
5.8.4 The second component which must be present for a claim of victimisation is adverse treatment. The complainant in outlining the specified adverse treatment advised the hearing that Mr. N had raised the issue of the Social Welfare benefit which was paid to her in error following her sick absence in September 2009. The complainant in her submission contends that this amounts to penalisation and victimisation as she submits that she was entitled to this money. However, the complainant at the hearing acknowledged that this issue had been raised with her before by Mr. K, the firms Accountant, back in July 2010, before she had made any allegation of discrimination. Both parties agreed that the complainant was paid by the respondent for the sick absence period in question and that the Social Welfare benefit for the period issued to the complainant in error. The complainant did not dispute this and when it was raised with her by Mr. K in July 2010 she had agreed to pay back the amount owing. She also advised the hearing that she had written a cheque for the amount owing and that had lodged it to the respondents account in January 2012.
5.8.5 I cannot see how Mr. N raising the issue of the outstanding Social Welfare benefit in November 2011 amounts to adverse treatment of the complainant. This matter had already been raised with the complainant in July 2010 by Mr. K and the complainant was aware that the payments had been made to her in error and that they were in fact owing to the respondent and would have to be repaid to the respondent. It cannot have come as a surprise to the complainant when this matter was raised by Mr. N in November 2011 and I cannot see how it could amount to adverse treatment. If it was the case that this was the first time the issue was raised and if it was accompanied by an immediate demand for return of monies which the complainant was unaware that she owed, I might be minded to look at it in a different light but in a situation where it had been raised before and where the complainant was aware that she had received the money in error and that it had to be repaid to the respondent and where she had already agreed to repay it I do not see how it can amount to adverse treatment of the complainant.
5.8.6 In examining the alleged adverse treatment it is not clear what adverse treatment the complainant was subjected to, while the incident of Mr. N raising the issue with the complainant may have annoyed the complainant, the complainant did not provide any evidence as to any consequences for her following the raising of the issue so while it may have annoyed the complainant I cannot see how it amounts to adverse treatment.
5.8.7 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to this matter.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 I issue the following decision. I find –
(i) that the complainant was notdiscriminated against by the respondent on grounds of gender, civil status and/or family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2011 and contrary to section 8 of those Acts in respect of her termination of employment.
(ii) that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts, 1998-2011.
__________________
Orla Jones
Equality Officer
11th of December, 2015
[1] EDA1017