EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC-E2015-57
PARTIES
Ms Joanna Koprowicz
-V-
Boylesports Ltd. (represented by Collier Broderick Management Consultants)
File Reference: et-149296-ee-14
Date of Issue: 14th December 2015
Table of Contents
1. Claim.. 3
2. Summary of the Complainant’s Written Submission. 3
3. Summary of the Respondent’s Written Submission. 4
4. Conclusions of the Equality Officer 4
5. Decision. 8
Keywords: gender – pregnancy – conditions of employment - victimization
1. Claim
1.1. The case concerns a claim by Ms Joanna Koprowicz that Boylesports Ltd discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2011, in terms of her conditions of employment. She also complains of victimisation within the meaning of S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 1 October 2014. A submission was received from the complainant on 25 May 2015. A submission was received from the respondent on 12 August 2015. On 5 November 2015, in accordance with his powers under S. 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Stephen Bonnlander, an Adjudication Officer/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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 1 December 2015. Additional evidence was presented by the respondent at the hearing and the complainant was given an opportunity to comment post-hearing, by letter. I received her views on 10 December 2015.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that when she informed her manager of her pregnancy, he put her pay and performance review on hold until after her maternity leave. According to the complainant, he also told her that he had planned to put her forward for promotion from Assistant Project Manager to Project Manager, but that he would put this on hold, too, until she had returned from maternity leave and in his words, “proved herself again”.
2.2. The complainant considered these remarks to be discriminatory and raised a grievance with the respondent’s HR manager. She states that after she had done so, she was regularly victimised by the same manager. The complainant submitted a detailed time line which shows that her manager’s behaviour went abruptly from praising her repeatedly in front of the team to fault-finding (including for issues which the complainant disputes were her fault), focussing on negatives, reprimands for using Polish in the workplace, and being assigned unmanageable amounts of work.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the criticisms in the complainant’s May 2014 performance review were due to areas of improvement, respectively development needs of the complainant. It accepts that the complainant’s February 2014 performance review had been very positive.
3.2. It further states that the complainant’s manager denied the alleged comments in a meeting between him, the complainant and the HR manager. The respondent states that the complainant accepted this at the time.
3.3. It is the respondent’s position that there was no Project Manager vacancy until May 2015, by which time the complainant had resigned her position with the company.
3.4. With regard to the complainant’s complaint of victimisation, the respondent contends that the behaviours complained of are not victimisation, but merely ongoing feedback by her manager.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. While the complainant did provide some excerpts of emails with her submission, she did not provide printouts of the actual mails. She stated that first of all, she thought that her work emails were the property of the respondent and that she therefore could not use them. She had been unaware that all documents submitted in evidence before the Commission are privileged and that she could not have been legally pursued by the respondent for using them because she felt this was a breach of the respondent’s intellectual property rights. She further stated that she had thought that the term “investigation” used for proceedings under the Acts meant that the adjudicator would request them. I said in response that this would amounting to me making the complainant’s case for her and that I could not do that, but that I would have regard to the misunderstanding and generally to the fact that the complainant was unrepresented.
4.5. However, I also experienced the complainant as unclear and contradictory in her oral evidence. She could not even remember the month and the year when she told her manager that she was pregnant, which in my experience as an adjudicator is extremely unusual. Furthermore, while she remembered the exact date on which she complained about her manager to HR, she did not correctly remember who attended the meeting which the HR manager convened the following day. Specifically, she did not state that her manager was actually in attendance, in addition to the HR manager and another senior manager. When I asked her whether she accepted the HR manager’s evidence that her own line manager had been in attendance, she did so.
4.6. The complainant also switched in her evidence between accepting and disputing that her initial role with her line manager had been junior project manager. The respondent submitted an email in evidence which showed that she was seconded from the poker department to take up a position as junior project manager. The complainant also claimed to have been wholly unaware of the role profile of an associate project manager until the hearing of the complaint, which lacks credibility in light of the detailed performance assessment she received in that role in May 2014, which listed all of the responsibilities in the template. All of these inconsistencies had the effect of damaging the credibility of the complainant’s oral evidence for me.
4.7. The respondent stated in evidence that it has four levels of project manager roles: junior project manager, associate project manager, project manager and senior project manager. The complainant, when she moved into project management from the poker department, was started at the junior project manager level, and soon promoted to associate project manager, with an associated pay rise of €6000 per annum. The complainant’s signed contract of employment for the associate project manager role was opened in evidence. I am therefore satisfied that the complainant was promoted to higher responsibilities on 1 November 2013, just before she told her manager she was pregnant. She also accepted the respondent’s HR manager’s evidence that no full project manager position was even potentially open until one of the project managers left the respondent’s employment in December 2014, when the complainant was already on maternity leave. Eventually, his position was filled in June 2015, by which time the complainant had already left the respondent’s employment. Accordingly, the complainant’s case for access to promotion must fail.
4.8. Furthermore, the complainant adduced no evidence for discrimination in her conditions of employment, so this part of her complaint must also fail.
4.9. The complainant received a very positive performance review in February 2014. Her manager explained that this related to her performance as junior project manager. It is true that the following performance review in May 2014, which covers her performance on the higher level of associate project manager, is much more critical. It is the complainant’s case that this, combined with a lot of what she perceived as criticism of her work by her line manager Mr A., constitutes victimisation within the meaning of the Acts, because, she asserts, it was adverse treatment by Mr A after she complained about his alleged gender discrimination to the respondent’s HR manager.
4.10. S. 74(2) of the Acts states that “victimisation occurs where dismissal or other adverse treatment of an employee occurs by his or her employer as a reaction to –
a) a complaint of discrimination made by the employee to the employer.
b) – (g) [irrelevant]
4.11. Accordingly, Mr A.’s actions, if sufficiently proven and if they were clearly connected to the complaint and nothing else, would be able to constitute victimisation. However, apart from the problems with the complainant’s oral and documentary evidence, and the resulting question mark over her credibility outlined above, the complainant’s line manager explained his own actions very cogently. I experienced him as a credible witness. He described extensively in his evidence on how the complainant struggled at the level of associate project manager, and that she was still repeating mistakes he had already needed to correct when she was still a junior project manager. Mr A. also took issue with what he saw as the complainant’s inclination to shift blame to other colleagues and to avoid taking responsibility. Some development needs identified in the earlier review, like the complainant’s communication skills, had not been addressed. The complainant’s line manager also submitted printouts of original emails which related to issues the complainant had complained about. I have reviewed these emails and do not consider their tone unprofessional or victimising in any way. In her written observations sent in post-hearing, the complainant accepts this, but claims that these mails pre-dated the meeting after which she claims she was victimised. That said, there is simply no credible evidence before me to support this assertion by the complainant. On the balance of probabilities, I am satisfied that Mr A.s more critical view of, and communications with, the complainant arose from her struggle with her new and more demanding responsibilities and not because she raised a complaint of gender discrimination with the respondent’s HR department about him. Accordingly, her complaint of victimisation must also fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts, that Boylesports did not discriminate against and did not victimise, Ms Joanna Koprowicz contrary to S. 8 and S. 74(2) of the Employment Equality Acts 1998-2011.
______________________
Stephen Bonnlander
Equality Officer
14 December 2015