DEC-E2015-022

EQUALITY OFFICER'S DECISION NO: DEC-E/2015/022 

PARTIES 

A Worker

(Represented by Daniel Spring & Co Solicitors)

Vs

An Insurance Company

(Represented by Mason Hayes & Curran)

 FILE NO: EE/2012/056 

Date of issue:      15 May 2015

1. Dispute

1.1 This dispute involves a claim that the Respondent discriminated against the Complainant on grounds of her gender and family status in relation to maternity leave and promotion contrary to the terms of the Employment Equality Acts.

1.2 It is also submitted that the Complainant suffered victimisation following her raising the matter of her grievance with the Respondent. 

2. Background

2.1 The Complainant referred this complaint to the Equality Tribunal on the 19 January 2012. In accordance with his powers under section 75 of the Employment Equality Acts 1998 to 2008, the Director, on 3 July 2014, delegated the case to me, Gary Dixon, 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 on which I commenced my investigation. 

2.2 Written submissions were received from each party.   As required by Section 79(1) of the Acts, and as part of my investigation, I proceeded to a hearing on the 10 November 2014. A hearing had originally been scheduled for 25 September 2014 but was deferred following a request for adjournment from the Respondent.

2.3 At the commencement of the rescheduled hearing on 10 November, the Respondent raised the question of alleged prejudice suffered as a result of the delay in time since the lodging of the complaint and the scheduling of a hearing date. The Respondent made a post hearing supplemental submission on this matter and the Complaint subsequently entered a replying submission. I have considered the alleged prejudice as a preliminary point at Section 5.1 in my Decision. Final correspondence took place on 11 December 2014. 

3. Summary of Complainant’s Case

3.1 The Complainant, who is no longer employed by the Respondent company, commenced her employment in the Respondent’s European operation in Dublin in April 2005 as a HR “generalist” at tier/grade 9. The Complainant had significant experience of HR prior to joining the Respondent, having previously worked for 2 years in Scotland as an HR Administrator and for more than 5 years in Dublin. The Complainant holds a certificate in Personnel Practice and a Degree in HR Management which she completed in 2006 following the commencement of her employment with the Respondent.

3.2 During her term of employment with the Respondent, the Complainant reported to the HR Director from April 2005 to September 2009. At the time the Respondent was a start-up operation in Ireland and the Complainant states that she was involved in growing the company. The Complainant states that her “generalist” role included handling employee relations, organisation design and development, supporting recruitment and resourcing, and participating in training and development programmes; she also provided information and support on policies and procedures as well as general support for employees and managers. In addition, the Complainant states that she led a number of important strategic initiatives as part of the HR team.

3.3 The Complainant states that her employment with the Respondent went very well from the outset. There was a company bonus plan and an annual performance review in operation. The annual performance was graded on a scale from 1-5, with 1 being the highest. In 2005, 2006 and 2007 the Complainant received performance ratings of 2 (exceeds expectations).

3.4 The Complainant went on her first period of maternity leave from March 2008 to February 2009. She did not receive a performance review in 2008. However, she states that she was given a 3 rating (meets expectations) by the Respondent’s HR Director who, she alleges, told her that he was unable to assess her performance as she was out maternity leave - even though she had been at work for 3 months in 2008. She states that the grade 3 rating meant that she received a reduced bonus in 2008. She subsequently received a 2 rating (exceeds expectations) with an associated bonus increase in 2009. The Complainant was on maternity leave again from May 2010 to May 2011. She did not receive a performance review for 2010 and was again issued with a 3 rating (meets expectations).

3.5 In 2007 the Complainant had been promoted to tier/grade 8 which is one grade below management (tier 7). Senior management is graded at tiers 6 and 5. She states that her 2007 promotion brought more responsibilities and a salary increase which, she submits, placed her “on track” for promotion to tier 7.

3.6 The Complainant submits that she had been involved in interviewing and hiring of another employee (Ms. F) as a Tier 9 HR administrator in August 2007, with whom she worked closely in order to ensure a smooth handover of duties for her maternity leave in 2008.

First period of Maternity Leave

3.7 As outlined above, the Complainant was on maternity leave from March 2008 to February 2009. While both the Complainant and Ms. F were referred to as “Business Partners” following her return from maternity leave, she submits that, before and after her maternity leave, she was a more senior grade/tier and had more responsibilities than Ms. F.

3.8 The Claimant acknowledges that the Respondent went through a “painful restructuring” after her return from maternity leave. However, she states that the HR Director described her performance during this period as very strong in that she played a very active role in helping to successfully complete this restructuring.

Second period of Maternity Leave

3.9 The Complainant was again on maternity leave from May 2010 until May 2011. She alleges that in early 2010 the CEO wished her good luck before she went on maternity leave and stated that he was looking forward to having her back; he also asked how she would feel about taking on a HR management role when she returned. The Complainant states that she followed up on this conversation by sending an email confirming her interest in taking on a HR managerial role.

3.10 In July 2010, while she was on maternity leave, the Complainant visited the offices of the Respondent with her recently born twins. She alleges that the HR Director asked her “how are you going to cope now with twins; how will you cope with work and three children, will it not be too difficult?” She asserts that the HR Director also offered to arrange a severance package for her. While the Respondent had undergone a round of redundancies as part of its restructuring at the end of 2009, the Complainant states that she made it clear that she did not wish to be made redundant at that time. She also states that she felt undermined by this conversation.

Request for Parental Leave

3.11 In early 2011 the Complainant states that she contacted the HR Director prior to her return from maternity leave and requested parental leave on a one day per week basis but this request was refused. While she was permitted to take the leave as part-time leave, this effectively reduced her entitlement to annual leave as the entitlement to annual leave is reduced proportionately vis-à-vis part-time work. In this regard the Complainant submits that she effectively lost 5 days annual leave as a result of working part-time rather than taking the leave as parental leave, although elsewhere the Respondent allowed parental leave and other family friendly arrangements.

Appointment of Colleague (Ms. F) as Interim HR Manager

3.12 The Complainant was due back to work following maternity leave on the 9th May 2011. She states that on the 4th May an announcement was made concerning the appointment of her “junior” colleague (Ms. F) to the role of interim HR Manager during the HR Director’s temporary assignment in Japan (from May to July 2011). The Complainant states that she became aware of this appointment on her return to work. She asserts that while the HR Director had contacted her by phone approximately two weeks prior to her return and informed her of his impending assignment to Japan, he did not inform her of Ms. F’s temporary appointment to his role.

3.13 The Complainant submits that she was shocked about not being informed of the appointment of her “junior” colleague and disappointed at not being considered for the role herself and also the manner of the appointment. She states that when she raised this with the HR Manager, he downplayed the appointment stating that it was not a “HR Manager” appointment in the true sense, but merely satisfied the need for a single point of contact for the US parent company of the Respondent. The Complainant submits that she was concerned about the impact this appointment would have on her future opportunities but was assured that it would have no impact at all; however, as she was feeling vulnerable about her position on her return from maternity leave, she did not pursue the matter at that stage.

3.14 The Complainant states that her concerns increased as it became apparent that the appointment of Ms. F was more substantial than she had been led to believe and included many HR managerial functions and responsibilities.

Appointment of Ms. F as Substantive HR Manager

3.15 In August 2011 the HR Director (who had returned from his temporary assignment in Japan) informed his team that he would soon be taking up a permanent position in the USA. This would necessitate the recruitment of a new HR manager on a permanent basis. On 16th of August 2011 the HR Director met with the Complainant and informed her that he was recommending Ms. F for that position. The Complainant states that she expressed her disappointment and asked what criteria were used in making the decision. She asserts that his response was very vague but that he confirmed that the skillset of the Complainant and Ms. F were similar. The Complainant states that when she asked if all of her HR experience (including her experience before his own appointment and dating back to the period before her first maternity leave) had been considered. While the HR Manager said it had, the Complainant alleges that he also confirmed that Ms. F’s appointment as interim manager had influenced him and had facilitated his recommendation. (The Respondent denies this assertion).

 3.16 The Complainant met with the CEO on 17th August 2011. She states that when he told her that the decision had been made in accordance with the HR Director’s recommendation, she advised him that she felt discriminated against as she had not been given the opportunity of gaining experience as interim HR Manger; further, she had not been given the opportunity of applying for the permanent HR Manager role and no proper selection process had been undertaken. In this regard she states that she had not been given feedback as to the criteria used in the decision other than that her skillset was very similar to Ms. F’s. The CEO said he would, however, confirm with the HR Director what criteria were used and revert to her in the matter.

3.17 The Complainant states that as she did not hear back from the CEO, she sought another meeting with him, which took place on 26th August 2011. She alleges that the CEO did not provide any selection criteria but rather asked her to suggest solutions. The Complainant alleges that while she prepared a proposal for the CEO which involved the sharing of responsibilities between herself and Ms. F, her proposal was not given any meaningful consideration.

3.18 On 1st September 2011 the HR Director requested a meeting with the Complainant and confirmed that her proposal for sharing responsibilities was not being considered further. She alleges that, in relation to Ms. F’s appointment, he stated that “it is not necessary to have a process, this is the process.” When she asked again about the selection criteria, she asserts that he advised “they were still to be defined”. The Complainant further asserts that when she queried how a decision could be made when criteria had yet to be defined, the HR Director responded to the effect that the key difference was communication - Ms. F “could give a holistic view of communication across the business”. The Complainant states that when she asked him to clarify this he responded to the effect that he was “not getting into the details”.

3.19 The Complainant submits that she had a further meeting with the HR Director (at his request) on 13th September 2011, the purpose of which was to discuss her future role. She states that when he asked for her thoughts she stated that she still felt discriminated against. She alleges that he warned her “you should be careful what you say” and that she felt threatened by this and under pressure not to pursue her allegation of discrimination.

3.20 The HR Manager met with the Complainant again on 12th of October 2011. She states that he had officially left his role at the end of September but still visited the office and that, on this particular day, he requested a meeting. She alleges that he stated he was “personally disappointed” that she felt discriminated against, that she needed to “accept rejection” and that “this wouldn’t be the first time in your career that you will have to deal with rejection”.

3.21 The parties dispute much of the alleged content of this meeting and each essentially rejects the other’s account of many of issues discussed. For example, the Complainant denies the Respondent’s allegation that she told the HR Director he had made the wrong decision in appointing Ms. F to the post. She asserts that that at all times in addressing the matter she had been explicit in focusing on the process (or lack thereof) rather than the outcome; she had never been given an opportunity to put herself forward for the position and, when she raised this, she alleges that the Director said “the clock doesn’t stop when you are on maternity leave.” The Complainant contends that she responded to the effect that her skills and experience didn’t diminish either during maternity leave and that she should have been afforded the opportunity to compete.

3.22 In September 2011 the Complainant had been provided with an enhanced job description. She states that she was informed that her role would be expanding to “Senior HR Business Partner”. However, she asserts that the enhancement of the job description never actually materialised. This promotion, the Complainant states, came out of the blue and while the accompanying salary increase was welcome, she believes that it was not a genuine promotion but was granted so that she might withdraw her allegation of discrimination. 

Grievance Procedure

3.23 The Complainant states that she wrote to the CEO on 13 December 2011 requesting redundancy because she was upset at having been given no meaningful feedback and she also felt intimidated by the way she had been spoken to. In addition, the solutions she had proposed had not, in her view, been considered and she had also been excluded from other duties. Her letter resulted in a meeting with the CEO on 21 December 2011.

3.24 The Complainant asserts that the CEO was very agitated at this meeting and she felt what he had to say was intimidating; he reiterated that redundancy was not an option and he did not believe that discrimination had occurred. The Complainant states that she advised him that if they could not come to a solution, then she would have no option but to approach the Equality Tribunal. She asserts that the CEO’s response was “bring it on”; he stated that she might win and get some money which was “fine with me”. She also asserts that he stated that pursuing this option would mean that she would be viewed differently by senior management and stated that he would now have to be careful with information he shared with her.

3.25 The CEO emailed the Complainant on 9th of January 2012 to confirm that he had considered her request for redundancy and that it was refused; he made no reference to any other issues mentioned in her letter of 13 December but asked if it should be treated as notification of a formal grievance. The Complainant responded on 10 January 2012 to the effect that she felt that she had “exhausted options internally”. She states that she confirmed that she would pursue a claim with the Equality Tribunal and that the CEO responded to the effect that discussions to date had not followed internal grievance procedures and that she could still invoke such procedures. The Complainant responded on 25 January 2012 and agreed to proceed with invoking the internal grievance procedure.

Events after the lodging of the claim

3.26 The CEO responded to the Complainant’s grievance on 21 February 2012. However, she states that while her letter of 13th December 2011 included a complaint concerning the “Interim HR Manager” role, the CEO’s response did not deal with that appointment.   

3.27 With regard to the selection process for the “HR Manager” role, the Complainant submits that the CEO’s response stated it involved “an evaluation of the ongoing needs of the HR Department in light of future requirements and of the personnel available within the Department by the then HR Director”. However, she submits that he did not say how the evaluation was carried out nor did he explain the results of the evaluation. In this regard she points out that she was not “available within the Department” at a time when she was on maternity leave. 

3.28 The Complainant further submits that there were no objective criteria used in the selection process and she questions why her experience and performance in the company before it was closed to new business (May 2009) was discounted; the only reason why the Complainant would have less experience than Ms. F since new business was closed was because she was on maternity leave from May 2010 to May 2011. Therefore, the Complainant considers that the selection process clearly disadvantaged her on the basis of her maternity leave and is inherently discriminatory.

3.29 The Complainant asserts that she was further disadvantaged on account of her maternity leave in relation to the annual employee performance review process as her performance was not assessed while she was on maternity leave and she received a lower ‘3’ performance rating as opposed to a ‘2’ rating for periods when she was not on maternity leave. She asserts, therefore, that the performance review process clearly disadvantaged her on the basis of her maternity leave, which is inherently discriminatory.  In addition, while the Respondent has stated that it considered Ms. F’s skills were more aligned to the particular demands of the HR Manager role, no formal scoring system has been disclosed in relation to the selection criteria.  The Complainant believes, therefore, that the criteria were not in existence at the time the appointment was made and were only put in place after she had raised her concerns. Accordingly, the Complainant does not accept that her skills and experience were reviewed against the criteria at the time the appointment was made, nor were these criteria objective, clear and transparent, but were designed to keep her at a disadvantage. The Complainant considers, therefore, that the failure to use an objective transparent process makes it impossible for the Respondent to prove that the Complainant’s maternity leave and family status did not have a bearing on the HR Manager appointment. 

Alleged Victimisation

3.30 The Complainant states that, following her having made an allegation of discrimination, she had significant and sensitive tasks removed from her range of duties. She felt, therefore, that she was no longer trusted or seen as part of the HR team.

3.31 She further submits that in September 2011 a member of the “Senior Team” who led organisation wide projects asked her to work with him on a large business transformation project. She believed that this was a developmental opportunity for her and so she requested the move; it was declined, however, on the grounds that she could not be released from HR duties, notwithstanding the fact that the organisation was downsizing at the time. She states that the anticipated workload within the department, which was cited as a reason why she was denied the opportunity to take on an enhanced role, never materialized. 

3.32 It is further submitted by the Complainant that the intimidatory response of the CEO to her stating that she would refer a claim to the Equality Tribunal constitutes victimisation and /or harassment, in particular,

• his intimidatory response “bring it on” to her statement that she would go to the Equality Authority if a solution was not reached;

• his statement that pursuing this action would mean that she would be viewed differently in the company by senior management;

• him saying that he would have to be careful of what information he shared with her;

• the refusal to grant her request for redundancy.

3.33 The Complainant was granted redundancy in December 2013. While she was the only one in HR made redundant at the time, the other HR staff were subsequently redundant.

Effects of the Alleged Discrimination and Victimisation

3.34 The Complainant submits that the effects of the discrimination on her were serious. She states that she was upset at the treatment she received from the Respondent and its management whom she trusted and had worked for so diligently since 2005. The Complainant submits that she felt completely vulnerable, especially having just returned from maternity leave, and the treatment she received only compounded the vulnerability further. She states that the response she received when she expressed her concerns made her feel that she was “in the wrong” and she felt intimidated at meetings discussing her concerns. She also states that her confidence decreased considerably and she found it difficult to work in such close proximity to an individual who had been so intimidating; while she did her utmost to remain professional at work at all times, she felt isolated and unsupported.

3.35 The Complainant submits that she always sought to remain on good terms with the Respondent; she tried to resolve the matter internally and was most reluctant to bring proceedings but felt alienated and unsupported by management. She submits that she suffered stress which impacted on her emotionally and adversely affected her at home to the effect that she became extremely anxious and had difficulty sleeping. She states that she attended her GP and was prescribed anti-anxiety medication during this difficult period.

Legal Submissions of Complainant

3.36 The Complainant submits that Article 2.2 of the Gender Recast Directive (Directive 2006/54/EC) defines discrimination to include –

c) Any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC.

The Directive also contains provision in relation to an employee’s rights on her return from maternity leave. Article 15 provides that –

‘A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence’.

3.37 The Complainant states that she is relying on the line of authorities in the case law of the European Court of Justice to support the proposition that since only women can become pregnant and go on maternity leave, discriminatory treatment and victimisation on grounds of pregnancy or maternity leave is direct discrimination on grounds of gender (precedent cases Brown v Rentokil Ltd, Webb v EMO (UK) Ltd. and “Dekker” refer).

3.38 In Webb v EMO (UK) Ltd - [1994] ECR 1-04185 - the ECJ ruled that the dismissal of a woman on grounds of pregnancy is direct discrimination contrary to Directive 76/207. The European Court of Justice in Dekker - Case C-77/88 [1990] ECR 1-3941 - ruled that since pregnancy is a uniquely female condition, less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender. The Complainant submits that the authorities extend this protection to any form of less favourable treatment on grounds of pregnancy or in relation to maternity leave.

3.39 The Complainant states that the burden of proof that applies in this case is regulated by European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), Article 19 of the Recast Directive and Section 85A of the Equality Acts 1998 - 2008. The Labour Court in Intrium Justitia V Kerrie McGarvey (EDA 095) stated

“It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for any deviation from this. It is equally well settled that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that the discriminatory ground did not take place.”

 3.40 The Complainant asserts that the appointment of Ms. F to interim HR Manager was made while she was on maternity leave and that the subsequent appointment of Ms. F to HR Manager was facilitated, and heavily influenced, by the interim appointment. It is submitted that the Respondent must prove that both appointments were wholly unconnected to the maternity leave of the Complainant. The Complainant alleges that the discrimination is corroborated by the comments of the Respondent which were in themselves discriminatory, when it questioned the Complainant while she was on maternity leave as to how she could manage work with three children and also offered her redundancy. It is submitted that the Respondent cannot prove that the appointment of Ms. F to interim HR Manager and HR Manager were wholly unconnected with the Complainant’s maternity leave. The Complainant further submits that the discriminatory nature of the comments is further corroborated by the criteria purportedly relied upon by the Respondent, but which were only produced after the Complainant had lodged a claim with the Equality Tribunal and which, she submits, are clearly weighted in favour of Ms. F in discounting her experience and performance in periods when she was not on maternity leave.

3.41 The Complainant states that Section 85A (4) of the Employment Equality Acts provides that this shifting of the burden of proof applies equally in cases where victimisation is alleged. The Complainant is relying on the decision of the Labour Court in Intrium Justitia V McGreevy in this regard. The Court found that the employer failed to discharge the burden of proof to show that the redundancy of an employee recently returned from maternity leave was not discriminatory. She submits that the Court found that the redundancy matrix was complex, opaque subjective and most critically, open to manipulation in order to achieve a particular result.

3.42 In Devereux V Bausch and Lomb (DEC-E2005-020) an employee was unsuccessful in applying for promotion shortly after returning from maternity leave. The Complainant submits that the Equality Officer noted that no criteria had been drawn up for the promotion process, no marking system was used and only one person made the decision in relation to the candidates; the Equality Officer found that this fell short of transparency, objectivity and the fairness that must be expected in the circumstances as a result of which the burden of proof shifted to the employer.

3.43 The Complainant states that she is also relying on TheRotunda Hospital V Dr Noreen Gleeson (DEE 003 18^th April 2000) where the Labour Court looked at the cumulative effect of unfairness in the selection process and also theDepartment of Health and Children V Gillen (EDA 0412 27^th July 2004) where the Labour Court stated that “A failure to keep records of the interview process, which of itself may not be discriminatory, when coupled with other factors may lead the court to infer that there had been discrimination”.

3.44 The Complainant alleges that she was disadvantaged while on maternity leave in respect of her annual performance rating and that she suffered financially in that regard as her annual bonus payment was reduced vis-a-vis her rating.  The Respondent provided a post hearing supplemental submission on this issue.  The Respondent states that the bonus payments that were awarded were not based solely on employees’ performance ratings but were calculated in accordance with an “Annual Incentive Plan”.  In calculating an employee’s award under the Annual Incentive Plan 2 principal metrics were used – (a) the “Business Performance Factor” which was set by a US Group remuneration committee (not local management) and which was reflective of global business performance and (b) the “Employee Rating”. The Respondent submits that bonus payments were not linked directly with performance ratings and it provided detailed data setting out these calculations and also showing how the Complainant compared with her peers within the relevant tier (or grade).

 3.45 The Complainant finds the data which was submitted to be obtuse and difficult to understand.  However, she states that they (the data) confirm her contention in relation to the negative effect of a lack of a performance review in the years that she was on maternity leave.

 3.46 In conclusion, the Complainant submits that Article 18 of the Recast Gender Directive (Directive 2006/54/EC) provides that Member States shall introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation as the Member States so determine for the loss and damage sustained by a person injured as a result of discrimination on grounds of sex in a way which is dissuasive and proportionate to the damage suffered. Section 82(1)(c) of the Employment Equality Acts provides that the Equality Tribunal may make an order for compensation for the effects of acts of discrimination or victimisation. The Complainant states that where this mode of redress is decided upon, the decision of the European Court of Justice in Von Colson and Kamann - [1984] ECR 1891 - must be followed. The Court held that the sanction for breach of community rights must be effective, proportionate and dissuasive. The Complainant submits that this means that the compensation awarded must fully compensate her for the economic loss which she has sustained as a result of the breach of her community rights. It must also contain an element that reflects the gravity of the infringement and act as an incentive against future infractions. It is submitted by the Complainant that the alleged acts of discrimination and victimisation have been serious and occurred at a time when she was in a vulnerable condition having returned from maternity leave.

4.Summary of Respondent’s case

4.1 While the Complainant has submitted that she discussed the HR Manager role with the Respondent prior to her going on maternity leave in 2010, the Respondent states that none of its personnel recall any such discussions.  It is accepted by the Respondent that in April 2011 it decided to appoint an interim HR Manager to cover the existing HR Director’s temporary assignment in Japan and that he (the existing HR Director), as manager of the HR Department since 2008, was best placed to make a recommendation for such temporary assignment.  The Respondent submits that, following an informal assessment and recommendation, Ms. F was assigned to the role.

4.2 The Respondent submits that it contacted the Complainant by telephone during her maternity leave and advised her of the pending temporary assignment of Ms. F as Interim HR Manager and that she did not raise any concerns at that point.  The Respondent accepts that the Complainant did raise concerns about the appointment on her return from maternity leave and, although the nature of the role was explained to her, she continued to be unhappy about the appointment of Ms. F to it.

4.3 It subsequently emerged that the HR Director was offered a permanent role in the Respondent’s US operation following his temporary assignment in Japan and this necessitated the permanent appointment of a HR Manager.  Again, the Respondent submits that it considered the outgoing HR Director to be best placed to make a recommendation given he had worked closely with all staff in the HR Department during his tenure. 

4.4 The Respondent submits that the HR Director conducted an informal assessment of candidates in the context of the following criteria:

• Experience since the company closed to new business in May 2009.

• Understanding of the strategic direction of the organisation.

• Ability to influence and persuade at a senior level.

• Performance in role since closed to new business in May 2009.

• Organisational change management skills and experience.

• The respective skill-sets needed to be successful in each of the roles under consideration – one was primarily a project driven role while the other was a management role.

• Organisational communication experience both within the company and the wider organisation.

Following the assessment, the Respondent states that it supported the recommendation of the HR Director to appoint Ms. F.

4.5 The Respondent accepts that the above criteria were never formally communicated to candidates.  It denies, however, as is alleged by the Complainant, that the HR Director had advised her at a meeting on 1 September 2011 that the selection criteria still needed to be defined. 

4.6 The Respondent also accepts that there was no formal application or interview process for the appointment but submits that this practice is commonplace in many organisations, i.e. selection based on the extensive experience of working with its own employees on a day to day basis rather than any formal interview and/or performance evaluation.

4.7 While the Respondent acknowledged that it used competitive interview processes in filling posts from time to time, it also provided examples of internal roles that had been filled via informal selection processes based on experience of working with its own employees.  It submits that Ms. F’s appointment to the HR Manager role in September 2011 was one such appointment.  The Respondent also denies that Ms. F’s earlier assignment to the position of Interim HR Manager had facilitated her appointment as HR Manager on a permanent basis as is alleged by the Complainant.

4.8 The Responded submits that prior to the HR Director’s departure to the USA, he restructured the HR Department resulting in the promotion of the Complainant to Senior HR Business Partner together with an enhanced remuneration package and that this appointment was a reflection of how highly the Complainant was valued as a HR professional; subsequent merit increases were also awarded as part of the annual performance management cycle.

4.9 The Respondent states that the Complainant’s contention that she was better qualified in that she was more senior and had more experience than Ms. F for the HR Manager’s role is incorrect; she was simply not the stronger candidate for the position.  In this regard the Respondent submits that Ms. F had continued to increase her skill-sets and experience while the Complainant was on maternity leave to the extent that both were highly experienced and qualified.  Therefore, the Respondent vehemently denies that, in any way whatsoever, it took the Complainant’s family status into account when deciding which employee would be best suited to the role of HR Manager.

4.10The Respondent submits that the Complainant requested a redundancy package a number of times over the course of discussing her grievance but that this was refused on the basis that her role was not redundant at that time.

4.11 The Complainant has alleged that she was victimised since raising her grievance and provided 2 examples of when such alleged victimisation occurred.  The Responded provided its own perspective on these events and submits that to construe such events as evidence of victimisation is blatantly untrue and disingenuous.  The Respondent accordingly denies that it in any way victimised the Complainant because of her grievance.  On the contrary, the Respondent states that it has always treated her with the utmost respect and loyalty, particularly in relation to her family status.  In this context the Respondent cites the following examples which, it states, are not exhaustive –

• The Complainant was financially rewarded for her change in role to that of Senior HR Business Partner.

• The Complainant’s request for a 4 day week was accommodated in 2011 as was her request to subsequently return to a 5 day working week.

• The Complainant was rewarded during the 2012 compensation cycle with a merit increase and bonus.

• The Complainant was nominated for an internal award by a colleague in 2011 which was presented by the CEO.

• The Respondent accommodated the Complainant’s request to use annual leave in days (2 per month) as opposed to a block annual leave request to supplement her working week and accommodate her personal circumstances.

• The Respondent accommodated the Complainant’s request for 5 weeks’ parental leave in August 2012.

• The Respondent accommodated the Complainant’s request to alter her working hours to suit her personal circumstances in September 2012.

4.12 The Complainant has also alleged that she was disadvantaged while on maternity leave in respect of her annual performance review and that she suffered financially in that her annual bonus payment was reduced in line with her rating.  The Respondent denies this and provided a post hearing supplemental submission on the issue.  It submits that the relevant bonus payments were not awarded solely on the basis of employees’ performance ratings but were calculated in accordance with an “Annual Incentive Plan”.  In calculating an employee’s award under the Annual Incentive Plan two principal metrics were used – (a) the “Business performance Factor” which was set by a US Group remuneration committee (not local management) and which was reflective of global business performance and (b) the “Employee Rating” (1 to 5).  The Respondent submits that bonus payments were not linked directly with performance ratings and it provided detailed tables setting out the relevant calculations and also showing how the Complainant compared with her peers within the relevant tier (or grade).

Legal Submissions of Respondent

4.13 The Respondent submits that in the case of Brennan V St. Michaels House (EE19/1997) the Equality Officer stated as follows:-

In any dispute concerning discrimination contrary to the terms of the Employment Equality Act, 1997, the Equality Officer expects that the person making the allegation should have prima facie evidence for his or her allegation and consider it reasonable to dismiss as without proper foundation any allegation for which no such evidence is presented.  On the other hand, where such evidence has been presented, the onus falls on the employer concerned to give a convincing alternative explanation for his actions.  Where the employer concerned fails to do so, the Equality Officer considers it is equally reasonable to find in favour of the claimant.  “Prima facie” evidence means evidence which in the absence of any convincing contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has occurred…”

4.14 The Respondent submits that, in that particular case, the Equality Officer then noted the submission of the Complainant:- 

The claimant’s case is that as she was patently the most qualified candidate for the post advertised and her non-selection must have been based on discriminatory grounds, namely her married status and her pregnancy.

4.15 The Respondent submits that the Equality Officer then considered the facts and held:- 

Having regard to the above considerations, it would appear to me that while the claimant was stronger under some headings than the appointee, the respondents had, on balance, sufficient objective reasons for favouring the appointee for this particular vacancy which were not influenced by the claimant’s marital status and pregnancy and that a prima facie case of discrimination has not been established.

 4.16 The Respondent submits that the objective facts in terms of skillset, ability, experience and performance of both Ms. F and the Complainant are what are relevant for consideration in this case.  The Respondent states that it appointed the HR Director (who was most suited to assess the respective employees due to his proximity to their knowledge, ability, experience and skills) to nominate a suitable candidate.  While it is accepted that the Complainant was a very talented and competent employee, the Respondent submits that she was not best suited to the role at hand and it categorically denies that her family status was a contributory factor to her not being appointed to the role of HR Manager.

4.17 The Respondent also refers to the ruling of the Labour Court in Dublin Institute of Technology V a Worker (DEE994), which held:- 

It is not the responsibility of the Equality Officer or this Court to decide who is the most meritorious candidate for a position.  The function of the Court is to determine whether the sex or marital status of the complainant or the appointee influenced the decision of the Board.

 4.18 The Respondent submits that the Complainant has not provided any evidence, other than the fact that she was not appointed to the role, to support her allegation that she was discriminated against. 

4.19 The Respondent further submits that the Complainant must establish facts to the satisfaction of the Tribunal which lead to an inference of discrimination, before the burden of proof transfers to the Respondent to prove on the balance of probabilities that it did not discriminate against the Complainant.  The Respondent disputes that the Complainant has discharged that burden of proof.

4.20 The Respondent reiterates that the Complainant was simply not “as strong” as Ms. F.  It submits that the selection process was conducted in a fair manner using practical hands-on experience as the main selection criteria taking account of the respective employees experience, skillset and performance.  The Respondent reiterates that the failure to appoint the Complainant to the position of HR Manager was not in any way whatsoever tainted by the Complainant’s family status.

5. Conclusions of Equality Officer

5.1 Preliminary Issue – Alleged Delay in Processing Complaint.

5.1.1 At the hearing of this complaint the Respondent raised the question of prejudice it allegedly suffered as a result of the delay in time since the lodging of the complaint and the scheduling of a hearing date.  The Respondent subsequently made a supplemental submission on the issue.  It submits that the European Convention on Human Rights Act 2003 provides, inter alia, as follows:-

“2.-(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”

and

“3.-(1) Subject to any statutory provision (other than this act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”

5.1.2 The Respondent submits that the effect of the above mentioned Act and, in particular the subsections quoted, is to give an overarching relevance to the European Convention on Human Rights and require that every organ of State and/or court or tribunal implementing the law complies with its provisions.

5.1.3 The Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) is attached to the Act at Schedule 1 and the Respondent submits that there is no doubt that the Convention has full force of law within this jurisdiction.

5.1.4 Article 6(1) of the Convention provides as follows:-

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

5.1.5 The Respondent refers in particular to the reference to an entitlement to a hearing “within a reasonable time”.  It submits that the Complainant initiated her proceedings in January 2012 and that much of her complaint relates to matters which occurred as early as April 2011.  The matter came for hearing before the Equality Tribunal in November 2014, a period of 2 years and 10 months post lodgment of the complaint and a period in which the Respondent company has undergone significant alterations with the vast majority of staff either being made redundant or leaving the organisation for other reasons.  As a result of the delay, the Respondent submits that it does not now have available to it essential witnesses to deal with the events that occurred in 2011/2012 and, accordingly, it contends that it is prejudiced in its defence of the proceedings.  As the delay is not of the making of either party, the Respondent submits that it nonetheless has caused a denial of both parties’ rights under the Convention and, in particular, it has caused the Respondent prejudice.

5.1.6 The Respondent submits that the matter of delay in trials was considered by the European Court of Human Rights in the case of Doran and Another -v- Ireland - [2003] ECHR 50389/99.  While it is submitted that the delay in the processing of that case in the Irish Courts was considerably longer than in the current case, the Respondent submits that the overall duration of the delay was measured not only by the delay up to the hearing at first instance but also the adjournment of the hearing because of the non-availability of the Trial judge followed by an appeal to the Supreme Court, a further re-hearing in the High Court and a hearing on the taxation of the Applicant’s costs.  It is submitted that in the current case when one anticipates the normal duration of bringing this matter to conclusion, allowing for a potential appeal to the Labour Court and a potential point of law appeal to the High Court, that unreasonable delay will continue to occur.  It is further submitted by the Respondent that the delay to the hearing at first instance, particularly where the Respondent is suffering actual prejudice, is sufficient to show a breach of the Respondent’s Convention rights.

5.1.7 In the Doran case the Respondent submits that the European Court also dealt with the individual elements of delay in that case but stated at paragraph 47 of the Judgment as follows:-

“As to the conduct of the competent authorities, the Court recalls that, whether or not a system allows a party to apply to expedite proceedings, the courts are not exempted from ensuring that the reasonable time requirement of Article 6 is complied with, as the duty to administer justice expeditiously is incumbent in the first place on the relevant authorities”.

 5.2 Complainant’s Perspective on alleged Time Delay

5.2.1 As regards the Respondent’s contention that it does not have available to it “essential witnesses who can deal with the matters which occurred in 2011/2012” and that it is prejudiced in its defence of these proceedings, the Complainant states that the Respondent has had a number of options available to it in order to protect its position as follows:

• The complaint was lodged on 19 January 2012 and the Complainant furnished her first submission on 7 August 2012. The Respondent replied in October 2012.

• The Complainant supplied a further submission on 19 December 2012 which was copied to the Respondent.

• On 21^st February 2012 the Respondent’s CEO had replied to the Complainant’s letter of grievance dated 13 December 2011 and the Respondent also replied to her request for a review on 6 April 2012.

The Complainant submits that the Respondent, therefore, has been engaged in the process all along.

 5.2.2 As regards the Respondent’s assertion that both it and the Complainant have been denied rights under the European Convention on Human Rights, the Complainant submits that this matter has been considered in the case of Kelly -v- the Equality Tribunal, [2008] IEHC, wherein Judge Gilligan found that a delay of 4 years and 6 months in hearing a claim under the Equal Status Act, while undesirable, was not unreasonable or unlawful in relation to the Convention.  While the Complainant in that case had contributed to some of the delay, Judge Gilligan stated that the length of the delay and the unreasonableness thereof must be assessed in the light of the circumstances of the case, the complexity of the case and the conduct of the litigant.

 5.2.3 The Complainant submits that her complaint is not particularly complex; she is not seeking reinstatement or re-engagement: the remedy she is seeking is in the form of compensation.  Further, she submits that the Respondent was aware of what case it was required to answer from an early date and that witnesses may have been considered necessary to that end.  She submits that the Respondent does not identify what witnesses it deems are essential or when a particular witness left its employment.  The Complainant also states that she would have supported any application by the Respondent for a hearing date that would have facilitated the attendance of any such witnesses.

5.2.4 In summary, the Complainant submits that the scheduling of the hearing by the Equality Tribunal did not prejudice the Respondent to the extent of constituting a breach of the European Convention on Human Rights, or at all.  Without prejudice to this contention, the Complainant submits that if the Respondent suffered prejudice, then she suffered the same prejudice.

Assessment of Equality Officer in relation to the alleged time delay

5.3.1 Delays in bringing complaints to hearing are regrettable.   Such delays occur for a variety of reasons, including requests for adjournments by parties to proceedings.  For example, a hearing in the current case had originally been scheduled for September 2014 and, at the request of the Respondent, a deferral of the hearing date was granted. 

5.3.2 As submitted by the Complainant, the question of Equality Tribunal delays has already been considered by the High Court in the case of Kelly and The Director of the Equality Tribunal [2008] IEHC.  In that case Judge Gilligan found that a delay of four years and six months in hearing a complaint under the Equal Status Act 2000, while undesirable was not unreasonable or unlawful in the context of the European Convention on Human Rights Act 2003.  Similarly, while I consider that the delay in bringing the current complaint to hearing was undesirable, I do not consider that it was unreasonable or unlawful in the context of the European Convention on Human Rights Act 2003.  I also note that neither of the parties concerned requested an earlier hearing in the matter.  I therefore propose to issue my Decision accordingly.

5.4 The Substantive Issue for Decision – Alleged Discrimination

5.4.1 The Complainant alleges that she was discriminated against on grounds of her gender and family status in relation to her performance rating while on maternity leave and her subsequent non-promotion contrary to the terms of the Employment Equality Acts. She further submits that she suffered victimisation following her raising the matter of her grievance with the Respondent.

5.4.2 The essential issue for decision by me, therefore, is whether the Respondent discriminated against the Complainant on grounds of her gender and family status in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts 1998 to 2008.    In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing.

 5.5 Burden of Proof

5.5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint 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".  I also note that the Respondent has referred to the cases of Brennan V St. Michael’s House (EE19/1997) and Dublin Institute of Technology V A Worker (DEE994) in setting out its arguments on the burden of proof issue (paragraphs 4.13 to 4.20 previous refer). 

5.5.2 In Teresa Mitchell v Southern Health Board (DEE11, 15.02.01) the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was also outlined by the Labour Court as follows:

 “The claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination.  It is only if those primary facts are established to the satisfaction of the Court, and are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.  Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based.  A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”

5.5.3 In evaluating the evidence, therefore, I must first decide whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts.  As outlined above, 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.  Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn (see 5.5.1 above re Melbury v Valpeters). 

5.5.4 The Complainant was employed by the Respondent from April 2005 until December 2013 when she was made redundant.  There was an annual performance review process and a bonus system in operation during this period in which the Complainant had two separate periods of maternity leave – from March 2008 until February 2009 and from May 2010 until May 2011.  The annual performance review process provided that employees were rated on a scale from 1-5 (1 being the highest). In 2005, 2006, 2007, 2009 the Complainant received performance ratings of 2 (exceeds expectations). In 2008 the Complainant did not receive a performance review and was given a 3 rating (meets expectations). The Complainant states that the HR Director told her he was unable to assess her performance for 2008 as she was out on maternity leave (even though she had been at work for 3 months in 2008). She states that the grade 3 rating meant that she received a reduced bonus award for that year. However, following her return from maternity leave she was again awarded a 2 rating (exceeds expectations) with associated bonus in 2009. She did not (again) receive a performance review in 2010 as she was on maternity leave from May and was given a 3 rating (meets expectations) for that year (and subsequent years).

5.5.5 The Complainant considers that she was disadvantaged in respect of her performance rating and that she also suffered financially as her annual bonus payment was reduced vis-a-vis her performance rating.  I accept the Respondent’s submission that bonus payments were not based solely on employees’ performance ratings but were calculated in accordance with an “Annual Incentive Plan” via two principal metrics – (a) the company’s “Business Performance Factor” and (b) the “Employee Rating”.  However, while bonus payments were not linked solely with performance ratings, these ratings were an element in their calculation and it is a fact that the Complainant received lower ratings while she was on maternity leave compared to when she was at work.  Therefore, I consider that her reduced performance rating impacted adversely on her financial bonus award.

5.5.6 It would seem logical to me that if a performance rating is to be applied to an employee on maternity leave, then it should be at least equivalent to her pre maternity leave rating.  On the other hand, if it is accepted that it is not possible to rate an employee whilst on maternity leave, then perhaps there should be no rating at all.  However, I cannot see any justification for reducing an employee’s performance rating while she is on maternity leave.  I consider that such action, i.e. the lowering of an employee’s performance rating because she is on maternity leave, at least raises an inference of discrimination bearing in mind that maternity leave constitutes part of the special, protected period as identified in various decisions of the Court of Justice of the European Union on this issue (see paragraph 5.6.2 below for details).

5.5.7 I note that the Complainant’s performance continued to be rated at the lower level (3) following her return to work after her second period of maternity leave and post the raising of her grievance with the Respondent.  While this fact might be construed as alleged victimisation, on the other hand it might be taken as confirmation of a dip in the Complainant’s work performance.  However, neither party has put forward any comments on this point.

5.5.8 The Complainant has submitted a number of arguments and cited various precedent cases in relation to the burden of proof issue.  These are outlined at section 3 above.  While acknowledging that there was no formal competition for promotion in the current case, I consider that Devereux V Bausch and Lomb (DEC-E2005-020) is of particular relevance as the applicant in that case was unsuccessful in securing promotion shortly after returning from maternity leave. The Equality Officer in the case noted, inter alia, that only one person made the decision in relation to the candidates and found that this fell short of transparency, objectivity and the fairness that must be expected in the circumstances as a result of which the burden of proof shifted to the employer.

5.5.9 I consider that the facts outlined above in relation to the Complainant’s performance ratings being reduced during her maternity leave, coupled with the fact that the announcement of Ms. F’s appointment to the role of interim HR Manager was made less than a week before the Complainant was due to return from maternity leave, are sufficient to establish a prima facie case of discrimination.  Accordingly I consider that it is for the Respondent to rebut this inference.

 5.6 Alleged Discrimination

5.6.1 Section 6(1)(a) 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)…..” 

Section 6(2) of the Acts defines the discriminatory grounds of gender –

“as between any 2 persons, ............ (a) that one is a woman and the other is a man….,”

and of family status –

“as between any 2 persons, ............ (c) “that one has family status and the other does not…”.

Gender - Pregnancy and the Special Protected Period

5.6.2 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union decisions in Webb v EMO Air Cargo (UK) Ltd,^[1]Brown v Rentokil Ltd^[2]and Dekker v Stichting Vormingscentrum^[3].  The Labour Court in Trailer Care Holdings Ltd Vs Deborah Healy^[4] referred to the fact that “the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive).   This Directive provides, at Article 2.2(c), that any less favourable treatment of a woman related to pregnancy or maternity leavewithin the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”. 

5.6.3 As submitted by the Complainant, Article 2.2 of the Recast Directive (Directive 2006/54/EC) defines discrimination to include –

c) Any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC.

The Directive also contains provision in relation to an employee’s rights on her return from maternity leave. Article 15 provides that –

‘A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence’.

5.6.4 The appointment of Ms. F to interim HR Manager was effectively made while the Complainant was on maternity leave and it is alleged that the subsequent appointment of Ms. F to substantive HR Manager was facilitated, and heavily influenced, by the interim appointment. I consider that it is for the Respondent to show, therefore, that both appointments were wholly unconnected to the maternity leave of the Complainant. 

5.6.5 The Respondent has submitted that the Complainant’s contention that she was better qualified, in that she was more “senior” in the grade and had more experience than Ms. F, is incorrect as she was simply not the stronger candidate for the position.  I accept the Respondent’s argument that Ms. F continued to increase her skill-sets and experience while the Complainant was on maternity leave to the extent that both employees were highly experienced and qualified for the HR Manager role.  What I am required to consider, however, is whether the Respondent can show that the gender and family status of the Complainant, vis-à-vis her maternity leave, did not influence the decision to appoint Ms. F to the HR Manager role in preference to the Complainant.

5.6.6 The Complainant submitted that the discrimination is corroborated by the selection criteria which, it is alleged, were weighted in favour of Ms. F and were only disclosed after the Complainant had lodged her complaint with the Equality Tribunal. (The criteria are listed at paragraph 4.4 previous).

5.6.7 If these criteria were genuinely used in the selection process - and the Complainant alleges they were not – then I consider that the method of their disclosure to the Complainant was, at the minim, inappropriate. I also consider that the Complainant’s arguments at paragraphs 3.27 and 3.28 previous in relation to the criteria being weighted in favour of Ms. F are plausible. Therefore, while I have misgivings in relation to the selection criteria, I do not consider that it is within my remit to make any assessment in relation to who was the most meritorious contender for the HR Manager role. In this regard I refer to the ruling of the Labour Court in Dublin Institute of Technology V A Worker (DEE994), which held:-

“It is not the responsibility of the Equality Officer or this Court to decide who is the most meritorious candidate for a position.  The function of the Court is to determine whether the sex or marital status of the complainant or the appointee influenced the decision of the Board.”

5.6.8 I accept that promotional appointments at senior levels in companies are sometimes made on the recommendation of a senior manager, such as the HR Director in this case, without any specific criteria being formally defined for such appointments. That is a matter for such companies themselves provided no discrimination within the meaning of the Employment Equality Acts occurs. In the current case the Respondent has listed criteria which, it submits, were used in the selection process. However, the existence of such criteria does not necessarily demonstrate that the selection process was fair. Indeed, in my opinion, the process lacked any transparency.

5.6.9 As mentioned already at paragraph 5.5.8 above, in the case of Devereux V Bausch and Lomb (DEC-E2005-020) an employee was unsuccessful in applying for promotion shortly after returning from maternity leave. The Equality Officer in that case noted that no criteria had been drawn up for the promotion process, no marking system was used and only one person made the decision in relation to the candidates. The Equality Officer went on to find that this fell short of transparency, objectivity and the fairness that must be expected in the circumstances. While selection criteria were drawn up in the current case, albeit the timing and authenticity of same are at issue, nonetheless I consider that parallels can be drawn between the 2 cases in relation to the lack of a marking system and the making of a decision on the basis of one person’s recommendation.

5.6.10 The announcement of Ms. F’s appointment to the interim management role was made just 5 days before the Complainant was due to return from maternity leave. In my opinion, this interim appointment provided Ms. F with at least some leverage when the substantive appointment to HR Manager was being considered by the Respondent. Therefore, in the absence of any evidence to the contrary, and having regard to all of the issues outlined above, I consider that the Respondent has failed to demonstrate that the appointment of Ms. F to the HR Manager role was wholly unconnected with the Complainant’s maternity leave.

5.6.11The Complainant has also alleged that she was disadvantaged whilst on maternity leave in respect of her performance rating and that she suffered financially as her annual bonus award was reduced in line with her performance rating.  I have considered this matter at paragraphs 5.5.4 to 5.5.6 previous and concluded that the Complainant’s reduced performance rating while on maternity leave impacted adversely on her financial bonus.

5.6.12 In summary, I consider that the Respondent has failed to provide any substantive evidence or explanation as to why the Complainant was essentially “passed over” for both the interim role and the subsequent substantive managerial appointment, other than the assertion that Ms. F was the better candidate. I acknowledge that Ms. F may have been the better candidate, even though she had less experience and service with the company. However, no evidence in support of this assertion has been presented. Accordingly, on the basis of the evidence before me, I must draw the conclusion that the Complainant’s maternity leave influenced the Respondent’s decisions in relation to these appointments. In this regard I am also guided by Gardiner Vs Mercer (DEC-E2006-007) where the Complainant returned from maternity leave to discover that her role had been changed significantly and that another employee, whom she had understood to be covering her maternity leave, had continued to retain responsibility for certain areas of the Complainant’s pre maternity leave post.   In that case it was found that the decision to restructure the Complainant’s job and remove certain prestigious tasks from her was influenced by the fact that she had just had a baby and was returning from maternity leave.

5.6.13 Therefore, having had regard to all the facts presented in the matter, I consider that the Respondent has not repudiated the inference of discrimination.  In my view the selection process for the post of HR Manager lacked any transparent objectivity.  There was no opportunity for the Complainant to apply for the role and there was no substantive post-process feedback given to her.  In my opinion the burden of proof has not been discharged by the Respondent.  Accordingly, I am satisfied that the Complainant was discriminated against on the ground of gender in relation to her maternity leave whereby she was deprived of a promotion opportunity contrary to the terms of the Employment Equality Acts 1998 to 2008. As no separate arguments have been put forward in relation to alleged discrimination on the family status ground I do not propose to make a finding in that regard.

 5.7 Alleged Victimisation

5.7.1 The Complainant alleges (see paragraphs 3.30 to 3.32) that after she raised the allegation of discrimination she had a number of tasks removed from her range of duties. She further submits that when a member of the “Senior Team” asked her to work with him on a large business transformation project, this developmental opportunity for her was refused. In addition, the Complainant alleges that the intimidatory response of the CEO to her stated intention to refer a claim to the Equality Tribunal constituted victimisation.

 5.7.2 These matters were raised and discussed in detail during the hearing of this complaint and the Respondent outlined its perspective on each of the allegations. While the Respondent accepted that some of the alleged comments attributed to the HR Director and CEO may have been made, it suggested that these had been taken out of context. For example, the Respondent submitted that the HR Director’s comment about “the clock not stopping” while the Complainant was on maternity leave was made in the context of the ongoing development of Ms. F’s skill-sets and work experience as opposed to any negative reaction to the Complainant’s maternity leave.   Having considered the Respondent’s arguments I am disposed to accept its rationale for the comments in question.

5.7.3 In addition, the Respondent also provided what I consider to be a reasonable explanation in response to the alleged restriction of the Complainant’s range of duties. For example, the cited request that the Complainant be assigned work on a business transformation project was made by the Project Manager without him having discussed it in advance with senior management in the company. The Respondent states that the proposal was not sanctioned at the time in light of competing resource and management priorities. Accordingly, on balance, I consider that the allegation of victimisation is not sustainable.

6.Decision of Equality Officer

6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts I hereby make the following decision:

6.2 I consider that the Complainant has established a prima facie case of discrimination on the gender ground and that the Respondent has not rebutted this inference.  Accordingly, I find that the Respondent discriminated against the Complainant on grounds of her gender by reason of her maternity leave contrary to Sections 6(2A) and Section 8(1) of the Employment Equality Acts.

6.3 In accord with the Acts, I order the Respondent to pay to the Complainant €70,000 in compensation for the effects of the unlawful discriminatory treatment.  I consider that this award, which equates to approximately one year’s gross salary and performance bonus, is appropriate in light of all of the issues arising in this case.

____________________

Gary Dixon

Equality Officer

15 May 2015

Footnotes

[1] [1994] ECR 1-3567

[2] [1998] ECR 1-04185

[3] [1990] ECR 1-3941

[4] EDA No 128