Equality Officer’s Decision
DEC-E2015-107
Michael Flannery
versus
ESB Networks Ltd.
(represented by Cliona Kimber B.L, instructed by Janice Kavanagh, in-house solicitor)
File reference: EE/2013/023 Date of issue: 20th October 2015
Keywords: Employment Equality Acts, Gender, Promotion, No prima facie case.
Dispute
1.1 This dispute concerns a complaint by Mr Michael Flannery against ESB Networks Ltd. The complainant alleges that he was discriminated against on the grounds of gender in relation to access to promotion contrary to the Employment Equality Acts 1998-2011 [hereinafter referred to as the ‘Acts’].
1.2 The complainant referred his complaint under the Act to the Director of the Equality Tribunal on 17th January 2013. In accordance with his powers under Section 75 of the Acts, the Director delegated the case on 19th February 2015 to me, Orlaith Mannion, an Equality Officer (now Adjudication Officer), for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. On this date, my investigation commenced as required by Section 79(1) of the Acts, and pursuant to the continuation of my functions set out in Section 83 of the Workplace Relations Act 2015, as amended by Section 22 of the National Minimum Wage (Low Pay Commission) Act 2015. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was held on 6th March 2015.
Summary of the complainant’s case
2.1 Mr Flannery has been an employee of ESB (Electricity Supply Board) since 1979. He holds a BA Degree as well as a Diploma in IT Training. In 1998, he took on a project in the Transport division and because he did a good job, he was asked to join the clerical support team for a new section called ‘Fleet & Equipment’ in 2002.
2.2 The complainant submits that there have been four promotion rounds in Fleet & Equipment since 2002 and all four of these promotions went to women. He submits that the women were given a variety of work which allowed them to shine when promotion opportunities came around.
2.3 Mr Flannery approached Mr B (Manager of Fleet & Equipment) about this gender discrimination issue. He was temporarily promoted. The complainant submits that this was ‘to keep him quiet’.
Summary of the respondent’s case
3.1 The respondent submits that Mr Flannery’s compliant is out of time. The complainant is correct in stating there were four promotion rounds:
· A promotion round in 2005/2006
· A promotion round in March 2008
· A promotion round in 2009
· A promotion round in 2011
The respondent points out that that Section 77 (5)(a) a complaint must be made within six months (or twelve months on reasonable cause) from the most recent occurrence of discrimination. The results of the 2011 promotion round were communicated to the complainant on 28th October 2011. Therefore, the complainant is obliged to submit his complaint by 28th April 2012 or at the latest 28th October 2012. The complainant submitted his complaint on 17th January 2013. Regarding his temporary promotion, the respondent submits that he was made well aware that this was an acting role and it would be temporary in nature. The respondent submits the following email sent on 15th March 2012 make this clear:
Hi all
Ms C has reviewed the current admin and has made proposal to the management team on Monday to reorganise the work of the team. She has proposed to re-allocate the current work among the Admin team and to set up two teams in the Admin area one to manage the Local Admin operations and one to manage the central operations. Michael Flannery and Ms C twill take up the duties of the team leaders. This will remain in place until Mr E takes up his as Administration Manager.
3.2 The respondent submits that the complainant has not attached enough detail in his complaint for them to defend it properly. They cite a judicial review of a Labour court determination – Calor Teoranta v Michael McCarthy [1]. Also cited is Valpeters v Melbury Developments Ltd.[2]
3.3 To offer context, the complainant was employed by a company entitled ESB Networks Limited. Within ESB Networks there is a subdivision called Fleet and Equipment. Promotion of staff, in what is called a portfolio review, takes place across the entire organisation. A clerical and administration portfolio review took place in the latter part of 2011. There were 276 women and 80 men considered for promotion. Candidates could be promoted up the hierarchical grading scales running from Clerical Officer 1, 2, 3. And 4 and then moving up to letter grades F, G, H, I, J, K, L and M. Grades F to I are generally at supervisor level and grades J to M are middle management level. Pursuant to an Industrial Relations Agreement, permanent promotions of more than two grades do not take place. While the number of men in Mr Flannery’s portfolio review was 22.5% of the total, in fact 33.3% were promoted whereas 77.5% were women and they received only 66.7% of the promotions.
3.4The complainant’s grade was CO3Q. His grade was Clerical Officer 2 but was paid as 3 because he had a qualification. Therefore, a promotion for the complainant would be a CO3 substantiated or a CO4 grade – not higher than that. Mr B raked Mr Flannery as his first choice to get a C04 grade. However, as there were only six vacant slots, the competition was stiff. For the six CO4 grades in the 2011 review, there were 95 elligible employees – 83 women and 12 men. Five women and one man were promoted. Therefore 8.3% of men who applied were successful but only 6.02% of women who applied were successful.
Conclusions of the Equality Officer
4.1 There are two issues for me to decide
(i) whether the complaint is within time
(ii) whether the complainant is entitled to succeed in his complaint regarding access to promotion contrary to 8 (1)(d) of the Acts on the ground of gender
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he was discriminated. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Time limits
4.3 If the complainant’s complaint was solely about the 2011 promotion round, I would accept the respondent’s evidence that the complaint is out of time. However, the complainant gave cogent evidence that he believed (rather than it actually being the reality) that he was given the Acting-Up promotion to prevent him taking a case. He also gave direct evidence that he believed that the Acting-Up promotion could have been made permanent as he had seen situations like that happening before. He submits that is why he delayed lodging his complaint until after the acting-up promotion ended. While I wholly accept the respondent’s submission that it was a genuine temporary promotion and that they were not trying to misrepresent the situation in any way, I am reluctant to dismiss this case as out of time as I find the most recent occurrence of potential discrimination is when his temporary promotion ended. Therefore, his complaint is within time.
Access to promotion
4.4In O’Higgins v UCD the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:
‘1.It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination
2.If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.
3.It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts
4.In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.
5.The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result
6.A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.
7.Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
8.The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution’[3]
4.5 First of all, I find the portfolio review process to be a transparent way of promoting people. Men did (slightly) disproportionately better than women both in the overall clerical and administrative portfolio as well as in his specific grade. Clearly, this weakens Mr Flannery’s case on the ground of gender. It is noteworthy that his manager recommended him for promotion but there were only six vacancies. He has also named inappropriate comparators. The women working in the Fleet and Equipment division promoted to Grade F in previous competitions were more senior to him before they were promoted. To use an army analogy, the appropriate comparator to a private would be another private in the context of a promotion. A sergeant would be an inappropriate comparator in this context. For all of these reasons, the complainant has not established a prima facie case of discrimination.
Decision
5.1 I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Act. I find that the complainant is not entitled to succeed in his complaint regarding access to promotion contrary to 8 (1)(d) of the Acts on the ground of gender.
______________
Orlaith Mannion
Adjudication Officer/Equality Officer
[1] [2009] 20 ELR.
[2] Labour Court Determination EDA0917
[3] EDA131 This determination by the Labour Court was upheld by Cooke J in the High Court [2013] IEHC 508