EQUALITY OFFICER'S DECISION NO: DEC-E/2016/115
PARTIES
Caroline Foster
(Represented by the Civil and Public Service Union)
AND
The Office of the Revenue Commissioners
(Represented by Mr. Anthony Kerr B.L. instructed by the Revenue Solicitor’s Office)
FILE NO: et-157255-ee-15
DATE OF ISSUE: 2nd of August, 2016
1. Dispute
This dispute involves a claim by Caroline Foster against the Revenue Commissioners that she was discriminated against on grounds of gender and family status , in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015, in relation to giving her training.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 17th of June, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 22nd of February, 2016 to me, Orla Jones Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 7th of April, 2016. Final correspondence in respect of this matter took place on the 13th of May, 2016.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 It is submitted that
the complainant is employed by the respondent, as a Clerical Officer and had been working in Revenue since November, 2006,
the complainant applied through her Manager for a course in Applied Taxation in April 2015
the complainant was advised that she was not being considered for the course,
one of the reasons given for refusing her application was that her manager Mr. M who was new to the Section had not had any experience of working with her due to her “considerable absences from work over the past number of years”,
the complainant had been absent from work due to pregnancy and due to pregnancy related sick leave on a number of occasions in the previous years,
the complainant at the time of applying for the course had not returned to work following her maternity leave and was out on parental leave and annual leave,
the complainant was refused access to the course due to her gender and family status,
the complainant had not during the course of her maternity leave been advised of this or any other training or promotion opportunity by her HR Unit, despite requesting notification of same on two occasions via emails to personnel unit,
the complainant only became aware of the training opportunity when a work colleague forwarded it to her by email on the 8th of April, 2015.
4. Summary of respondent’s case
4.1 It is submitted that
the complainant is employed by the respondent, as a Clerical Officer and had been working in Revenue since November, 2006,
her duties include answering phones on the 1890 Customer Services roster and responding to PAYE post and other PAYE work items,
on 25 March 2015 Revenue’s Training Branch issued a circular inviting applications for places in the final year of the BA (Honours) in Applied Taxation Degree to commence in September 2015 and run by the University of Limerick,
entry to the programme was based on “relevant prior experience/qualifications”,
applicant’s were required to fill in the application form and forward it to their Assistant Secretary through their line manager with completed application forms to be forwarded to Training Branch by 30th of April, 2015,
guidelines for factors to be taken into account by Assistant Secretaries when deciding a recommendation were set out in Appendix 6 of the circular and included an applicant’s academic ability, relevant background and experience, relevance to applicants role, time commitments and business requirements,
applicants had to be in apposition to commit large amounts of personal time,
all Revenue nominees were subject to acceptance by the University of Limerick,
the complainant’s application was submitted to her Executive Officer on the 29th of April, 2015 the day before the deadline for receipt in Training branch,
the application was then forwarded to the Assistant Principal (AP) who was to form an opinion on suitability which he then had to communicate to the Principal Officer (PO),
the AP had taken up the post in July 2014 at a time when the complainant was absent on maternity leave and had not yet returned to work at the time of her application for the course,
the AP discussed the application with the PO and advised the complainant on 1st of May 2015 that they were not in a position to form a view on her abilities or on the benefit to Revenue as they had not had any experience of working with her because of her considerable absences from work,
the respondent accepts that the complainant’s absences were due to her being on maternity leave and maternity related sick leave,
the AP had only assumed duties in June 2014 and therefore had no personal knowledge of the complainant,
given that the complainant only submitted her application on the 29th of April there would not have time before the deadline for the AP to contact his predecessor to ascertain his views on the complainant’s ability and suitability,
there were also considerable increased work demands in the Fingal District due to changes in work practices and a reduced staffing complement which reduced the opportunity to release staff for such training,
had the complainant been successful in her application it would have been necessary to accommodate her absence from work for 12 weeks between September 2015 and May 2016 as well as other periods of study and research,
the complainant was not discriminated against on grounds of gender and or family status,
5. Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me are, whether or not, the respondent discriminated against the complainant, on grounds of gender and family status, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to giving her training. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Discriminatory treatment
5.2.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.2.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Sections 6(2)(a) and (c) of the Acts define the discriminatory grounds of gender, and family status as follows – “as between any 2 persons, ...
(a) that one is a woman and the other is a man,..
(c) that one has a family and the other does not "...
5.3 Gender-Pregnancy and the special protected period
5.3.1 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]. In Brown v Rentokill Ltd, the Court of Justice explains why pregnancy is a special protected period:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. [4]
5.3.2 The Labour Court has found that ‘only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant. It is equally well settled law 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 that the discriminatory dismissal did not take place.’[5]
5.4 Application for training
5.4.1 The complainant, advised the hearing that she had on 29th of April, 2015 applied for a Degree in Applied Taxation which is open to Revenue Officials and which is run by the University of Limerick. The complainant advised the hearing that she was not in work at the time of submitting her application as she had been out on maternity leave. The Commission was advised that the complainant had been on maternity leave including leave in lieu of bank/public holidays up to the 16th of April, 2015 and that she had not yet returned to work on the 29th of April, due to a combination of annual leave and parental leave following her maternity leave.
5.4.2 The complainant advised the hearing that she had submitted the completed application form along with passport photographs and details of previous study and qualifications to her line manager Ms. C who was an Executive Officer, on 29th of April, 2015. The complainant stated that Ms. C had in turn forwarded the application to the AP, Mr. M to be signed off.
5.4.3 The respondent at the hearing disputed that the application was sent to Mr. M to be signed off and stated that the purpose of sending the application to the Assistant Principal (AP) is that the Assistant Principal (AP) was to form an opinion on the applicant’s suitability which he then had to communicate to the Principal Officer (PO).
5.4.4 The complainant advised the hearing that she had received a letter from a senior manager Mr. M, on 1st of May, 2015, advising her that she was not being considered for the training course. The complainant advised the hearing that the letter stated that the manager was “not in a position to form a view” as to her suitability and that this was due to her “considerable absences from work”. The complainant stated that these absences were either due to maternity leave or pregnancy related sick leave and submits that it is not acceptable that pregnancy related sick leave be taken into account when being considered for a training course.
5.4.5 The respondent at the hearing indicated that it was not disputing the fact that the complainant’s absences were pregnancy related but stated that the AP, Mr. M, who was new to the section was unable to form a view on the complainant’s suitability for the course as he had no experience working with her due to the fact that she was out on maternity leave and pregnancy related sick leave.
5.4.6 The complainant advised the hearing that she had a good employee record having worked in Revenue for the previous 9 years and submits that this cannot be disregarded just because the AP is new to the section and so has no experience working with her due to the fact that she was out on maternity leave and pregnancy related sick leave.
5.4.7 The complainant advised the hearing that the AP or PO could have sought the opinion of her previous AP to whom she had worked prior to Mr. M’s arrival in the section. The respondent at the hearing submitted that the previous AP was not contacted as he was retired. The complainant advised the hearing that the previous AP, Mr. F although retired was still contactable. The complainant advised the hearing that she had contacted Mr. F by email and had sought his opinion on her suitability for the course. Mr. F’s response submitted to the Commission stated that he “would have no hesitation in recommending her [the complainant] for a course”.
5.4.8 The complainant at the hearing agreed that she had no experience in working with Mr. M as he had only come to the Section in July 2014, but she stated that management teams do change and that it is not unusual to seek advice from a previous incumbent of a post.
5.4.9 The respondent at the hearing raised the issue that the complainant’s application form was only received on the 29th of April, one day before it was due in Training unit. The respondent submits that the late submission of the application form meant that there was no time to contact the complainant’s previous AP in order to ascertain her suitability for the course.
5.4.10 The complainant advised the hearing that she had only become aware of the training course when a work colleague had emailed her on the 8th of April, 2015 and had forwarded the application form to her. The complainant raised an issue that she had not been advised of this training opportunity by her HR unit who are obliged to notify staff who are absent from work on maternity and other leave of training and promotion opportunities. The complainant advised the hearing that she had written to HR unit on two occasions firstly in September, 2014 and again in November 2014 requesting that she be notified of any promotion and or training opportunities during her maternity leave. The complainant submits that a reply was issued to her by HR indicating that her request would be forwarded to her line managers in order that she would be forwarded any relevant emails during her absence. The complainant stated that following this she did not receive any notices from HR or from her line managers and that the notification regarding the training course was forwarded to her by a colleague who emailed her the course application details.
5.4.11 In response to this the respondent stated that they were not aware that the complainant was interested in the particular training course. The complainant advised the hearing that there was an obligation on the respondent to notify her of office notices and competitions during her maternity leave and referred to Circular 31/06 which outlines the obligations of Departments regarding the implementation of the Regulations of the Maternity Protection Act 2004. The complainant also submitted emails dated 30th of April, 2015 in which she raises a concern about the deadline for applications in respect of the training course and in which Mr. M responded to her telling her not to worry about the deadline.
5.4.12 Mr. M advised the hearing that he was asked to ‘form an opinion’ on the complainant’s suitability for the course and for the reasons already stated he was unable to form an opinion on the complainant’s suitability for the course and so he passed it to Mr. D, the Principal Officer for an opinion.
5.4.13 The Principal Officer, Mr. D advised the hearing that he had the decision making role in relation to this matter and stated that he looked at the experience and suitability of the complainant. Mr. D advised the hearing that the complainant had during the previous four and a half years been absent for seventy four days. Mr. D stated that he had to consider whether the complainant could donate the time required for this course rather than the three year diploma course which preceded it. Mr. D stated that he was not sure what the complainant’s previous experience was but that she had been dealing with customer service in her current role. Mr. D outlined the modules of the course and stated that he wasn’t sure if the complainant had the experience and ability for the course. The complainant in response to this advised the hearing that her application form for the course contained details of her education and academic qualifications and indicated that she already had an honours degree.
5.4.14 Mr. D advised the hearing that he was he who made the decision regarding the complainant’s application for the training course as it was referred to him by Mr. M. The respondent advised the hearing that the complainant’s application was deferred rather than refused and that she was free to apply again the following year and her application would be considered. The respondent also stated that the complainant had not applied for the course the following year. Mr. D also stated that the complainant’s attendance at work had averaged about two days per week in the past year and added that he might have recommended that she apply for the three year diploma course rather than the one year degree programme.
5.4.15 Mr. D when questioned, conceded that it is not Revenue’s role to accept an applicant on to the course but to make a recommendation following which the University of Limerick has the final say in whether someone is to be accepted to the course or not.
5.4.16 The respondent advised the hearing that Mr. D was also new to the Section and that given that neither he nor Mr. M had any experience in working with the complainant they could not recommend her for the course as they were not in a position to form an opinion on her suitability.
5.4.17 The respondent advised the hearing that this was not the only reason for refusing the complainant’s application and stated that increased work demands on the district also influenced the decision not to recommend the complainant. The complainant disputed this and stated that she was not provided with any specific details in this regard.
5.4.18 The complainant in her submission to the Commission had asked the respondent to provide a breakdown of those who had applied for the course with details of successful and unsuccessful candidates broken down by gender and family status. The respondent at the hearing stated that these figures were not available in the form requested and stated that figures could only be provided for the South West region as those were the only ones who returned the figures for unsuccessful applicants.
5.4.19 The complainant advised the hearing that following the refusal of her application she had lost confidence and had not applied for subsequent training courses as she felt that any future application would also be denied. The respondent at the hearing stated that the complainant had no basis for forming such a view as she had been advised by them that following her return to work, after a year or so, they would be in a better position to form a view as to her suitability for this course or another one.
5.4.20 The complainant advised the hearing that the respondent values education and qualifications and that it has been made very clear that the chances of success of candidates going for promotion to higher grades is greatly increased by the candidate having attained qualifications and having taken steps to further their educational qualifications. The respondent did not dispute this. The complainant stated that promotion from Clerical Officer to Executive Officer is particularly difficult to achieve despite having numerous years of experience at the Clerical Officer grade.
5.4.21 The respondent in this case has pointed to the complainant’s ‘considerable absences’ from work as the first reason for not approving her application for a training course. In addition, the respondent concedes that these ‘considerable absences’ were due to pregnancy and pregnancy related sick leave. In this case the link between the treatment i.e. the refusal of the complainant’s application for training and the ground have been linked not only by the complainant in her claim but also by the respondent in referring to the complainant’s pregnancy related absences as a reason for not approving the complainant’s application. The respondent at the hearing submitted that this was not the only reason for refusing the complainant’s application and also stated that the fact that the AP and PO were new to the area and had no experience of working with the complainant meant that they were not in a position to form an opinion on her suitability.
5.4.22 In examining the respondent’s reasons for refusing the complainant’s application I find it hard to believe that there was no one in the section or in other sections within Revenue who could have been contacted in order to ascertain the complainant’s suitability or otherwise for the training course in question, given that the complainant herself had at the time worked in Revenue for 9 years. It is the nature of the civil service that people move around between sections and divisions and it is certainly not unheard of that a manager who had moved to another section or indeed who had retired would be contacted by the new incumbent of his/her post in relation to staffing matters and/or in relation other matters of relevance to their previous post.
5.4.23 The fact that the AP and PO had no experience of working with the complainant was stated to be partly due to the fact that the complainant had been absent on pregnancy related leave. The fact that the AP and PO were also new to the area and could not form an opinion on the complainant’s suitability was not something which the complainant should be penalised for and given that she had worked in Revenue for nine years, the opinion of a previous supervisor should have been sought where the existing supervisors had no experience working with her, before making a decision regarding her suitability for the training course.
5.4.24 Overall, on examination of all the evidence, on balance, I am satisfied that the complainant has raised an inference of discriminatory treatment on the grounds of gender in relation to her treatment by the respondent in its refusal of her application for nomination to a training course namely the BA (Honours) in Applied Taxation, which the respondent has failed to rebut. Furthermore, I note that the complainant was not advised of or informed by the respondent of promotion/training opportunities relevant to her while she was on maternity leave. I am satisfied from the totality of the evidence adduced, that the complainant was discriminated against by the respondent on the grounds of gender in relation to these matters.
5.5 Family Status Ground
5.5.1 The evidence adduced by the complainant clearly related to matters relating to pregnancy and to pregnancy related leave and thus supported her claim on the grounds of gender.
5.5.2 The complainant adduced no evidence in support of her claim on the family status ground and provided no evidence of a comparator with a different family status. Accordingly, I am satisfied that the complainant has not established a prima facie case of discrimination on the ground of family status and I find that she was not discriminated against by the respondent in relation to these matters.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –
that the complainant was discriminated against by the respondent on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of giving her training
that that the complainant was not discriminated against by the respondent on grounds of family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of giving her training
6.2 In making my award, I must thus ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, and the length of time the complainant was employed by the respondent I consider an award of compensation in the sum of €16,000 to be just and equitable in the present circumstances.
6.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
____________________
Orla Jones
Adjudicator/Equality Officer
2nd of August, 2016
Footnotes
[1] [1994] ECR 1-3567
[2] [1998] ECR 1-04185
[3] [1990] ECR 1-3941
[4] ibid
[5] Intrium Justitia v Kerrie McGarvey Determination No. EDA095