EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2016 – 122
PARTIES
Ms Linda Conway
and
Solas (represented by Mr Marcus Dowling, B.L., instructed by William Fry Solicitors)
File Reference: EE/2013/575
Date of Issue: 25th August, 2016
Keywords: gender – discrimination – S. 8 – treating cumulative events “in the round” – prima faciecase rebutted – victimisation – no prima faciecase – recommendations given to respondent.
1. Claim
1.1. The case concerns a claim by Ms Linda Conway that Solas discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2011, in terms of promotions and other discriminatory conduct. The complainant also complains of victimisation within the meaning of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 22 October 2013. A submission was received from the complainant on 3 February 2015. A further statement, detailing her victimisation complaint, was received on 30 April 2015. A submission was received from the respondent on 23 September 2015. On 16 October 2015, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 16 November 2015, which resumed on 28 April 2016. A substantive supplementary submission was submitted by the complainant on 28 April which necessitated another adjournment to ensure fair procedures for the respondent. The hearing then concluded on 14 June 2016. Documents were exchanged between the parties after the hearing and the last piece of correspondence in relation to them was received on 24 August 2016.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she worked for the respondent, formerly FAS, for 30 years. In 2003, she was promoted into the management grades of the organisation, by way of appointment to Assistant Manager, Grade 7. She complains that two male comparators were appointed to Acting Manager Grade 6 in 2012, with no advertisements and no interviews held for these appointments. Both of these appointments were extended several times into 2014. In 2014, the two male members of staff started to receive acting up allowances. Eventually, their posts were advertised by the respondent, and the two men were re-appointment to their positions following the competition. The same happened in January 2015. On that occasion, the complainant states that she was the only woman in a pool of four applicants for the two positions. While the interview panel recommended the complainant as “reserve” and therefore, in the complainant’s view, confirmed her suitability for a Grade 6 post, the two post holders were nevertheless reappointed.
2.2. The complainant contends that she has been doing the work equivalent of a Grade 6 Manager since 2010, when she was tasked with establishing a new unit within the respondent organisation, the Programme Evaluation Unit, and reported directly to a Grade 4 Manager. She contends that this involved significant upskilling for her, as well as recruiting and training new staff. The complainant made a business case to the respondent in September 2012 for an appointment as acting Grade 6 Manager, which she appended to her submission, which provides a wealth of details on the work situation the complainant found herself in, including a comparison of her work with the core competencies required of a Grade 6 Manager within the respondent organisation. The complainant also states that while delivering on this role, she reported to the Director of Adult Training and Risk Management.
2.3. The response which the complainant received from the respondent with regard to her business case is that re-grading her position was not an option for the respondent at the time (December 2012). This position was repeated to the complainant several times, while she in turn pointed out the cases of the two named male colleagues as evidence of promotions given to other staff despite the embargo.
2.4. The complainant also enclosed statistics of men and women in the two management grades in question (7 and 6), which the respondent’s HR department made available to her. These show a marked fall-off in women in the higher Grade 6, compared to women working at Grade 7.
2.5. Furthermore, the complainant enclosed copies of the emails by which the acting Grade 6 positions of her two named colleagues were confirmed. Furthermore, her contention that the acting appointments of her two male comparators constituted a professional development opportunity for these men is confirmed by the respondent’s policy on acting-up appointments, which highlights exactly this fact in the very first paragraph, and of which a copy was also submitted by the complainant in evidence. The complainant contends that the manner in which she was deprived of this development opportunity over a number of years constitutes discrimination by the respondent, especially with regard to the January 2015 competition referenced in paragraph 2.1 above.
2.6. With regard to her complaint for victimisation, it is the complainant’s contention that she was not successful in being assigned to another job in the respondent organisation, as a result of what she describes as a “deeply flawed process”, while the then Equality Tribunal was in correspondence with the respondent about her complaint. The complainant states that she was subsequently assigned to a role with no real responsibilities even at the lower Grade 7, kept out of communications and not involved in planning and decision making. She states that this led her to lose self-esteem and self-confidence and also led her to develop anxiety. The complainant states that she had to invoke the respondent’s grievance procedure to resolve this matter. She does not state the outcome of that procedure.
2.7. In total, the complainant contends that the respondent discriminated against her pursuant Sections 7(1)(c) (performing work of equal value), 8(1)(d) and (e) (promotion and re-grading and classification of posts), 8(4) (discriminatory practice), 8(8) (not affording an employee opportunities for promotion) and 22(1) (indirect discrimination on the ground of gender). As already noted, the complainant also complains of victimisation pursuant to S. 74(2) of the Acts, as outlined in more detail above.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant has not substantiated her complaints of equal pay and indirect discrimination and it contends that the complainant is prohibited from appending a victimisation complaint to her existing complaint.
3.2. It is the respondent’s contention that given the huge reorganisation and restructuring it underwent upon the dissolution of FÁS, the time during which those changes happened is not an appropriate time to look at staff distributions by gender in the organisation.
3.3. The respondent nevertheless further argues that the complainant’s statistics are a “snapshot” which is not a fair reflection of the distribution of men and women in management grades, since of the 13 current Grade 4 and 3 Directors and Executive Directors, 6 are female and 7 are male. It also submits that its overall workforce is 49% female and 51% male. As of July of this year, the respondent employs just 205 employees, 56% of whom are female and 44% male. The respondent also states that given plans to merge the Grade 7 and 6 Managers into one management grade, questions of gender distributions are set to become moot.
3.4. Regarding the specifics of the complainant’s submission, the respondent states that several other project units were also headed by Grade 7 Managers. It further states that the complainant required a great deal of supervision from the Grade 4 Director, who reviewed the complainant’s work substantially and signed off on most documents prepared by the complainant before they were finalised. The respondent states that this would not be customary of a Grade 6 Manager. Examples were appended to the submission. The respondent makes no statement on the amount of guidance the complainant’s comparators may have needed on appointment to their acting-up positions.
3.5. The respondent also argues that the budget managed by the complainant was only about €250,000, while another Grade 7 Assistant Manager managed a budget of about €400,000. The two named male comparators managed budgets of €500,000 and €2 million, respectively. Also, according to the respondent, the complainant managed four employees whereas her comparators managed 8 and 15 staff.
3.6. The respondent further argues that the complainant’s comparators were appointed to acting roles of existing posts, where the actual managers were out on long-term sick leave, resp. had retired.
3.7. With regard to the complainant’s lack of success in the two competitions in January 2015 which saw her comparators re-appointed to their previously held acting-up positions, the respondent states that the independent person on the interview panel was a Grade 4 Director who as not working in the area in which the appointments fell. I note from the respondent’s submission, however, that this person was the complainant’s manager, Ms M. Overall, it is the respondent’s position that the complainant was unsuccessful because she did not perform strongly in her interview. The respondent insists that all four candidates were evaluated against the same set of criteria, and that the complainant’s failure to be appointed was in no way connected with her complaint to the Equality Tribunal. The respondent appended the interview score sheets to its submission.
3.8. With regard to the complainant’s complaint that she was frozen out of communications and decision making in her new position, it is the respondent’s contention that this was successfully resolved following the grievance raised by the complainant and is therefore moot. It also disputes that the grievance is in any way a victimisation as defined in the Acts and contends that this is a common grievance raised by staff.
3.9. In summary, the respondent contends that the complainant has failed to raise a prima facie case of discrimination on the ground of gender, or victimisation, and that her complaint should fail.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminated against and victimised within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. During the hearing of the complaint, counsel for the respondent made it part of his strategy to question the credibility and the character of the complainant in a fairly constant manner. I find it therefore important to state at the outset that I found the complainant to be a credible and consistent witness. I am further satisfied that she did raise a prima facie case of discrimination, in that the facts she relied on, and which she extensively documented in her submissions, do indeed raise an inference that discrimination may have occurred.
4.5. To highlight just the most important aspects of the complainant’s case, it is curious that two male workers who are tasked with leading work areas with which they are already familiar should receive an upgrade of their position, whereas a female worker who is tasked with starting an entirely new unit would not. It is also curious that these male workers should be re-appointed in these leadership positions without internal competitions being held, despite a public service moratorium on promotions and in breach of the respondent’s HR policy, until they have so much experience in their jobs that their appointment to substantive positions is virtually guaranteed, and that others who compete for them, including the complainant, a woman, don’t stand a chance in that competition. To the complainant, this must have looked very much like two men being sorted out with their careers, in breach of both internal and external rules, whereas the complainant’s business case for an upgrade of her position was refused on the grounds of the public service moratorium on promotions.
4.6. I further concur with the complainant that any acting-up position, however short, and whether it is accompanied by an acting-up allowance or not, is of enormous value to the person so appointed, since within the promotions culture of the public sector, it flags them as a candidate for later substantive promotion to their superiors. Counsel for the respondent sought to downplay this fact, but I do not agree with him on this.
4.7. Counsel also very much attacked the complainant’s argument that what happened to her male colleagues ought to be seen on a cumulative basis, instead of viewing each aspect of their treatment in isolation. Again, I do not agree. I very much do think that a sequence of events like the complainant outlined can, and indeed should be, looked at in the round, as long as it can be proven that the first event happened for discriminatory reasons, especially given that it was the same people involved in all of them. To impose a standard by which a complainant has to prove each small step of such a course of events separately as being discriminatory would mean that it would be nearly impossible for a complainant to prove that members of an in-group were “sorted out” with respect to their careers, as it were. Such scenarios are by no means limited to gender, they can equally happen on all of the protected grounds.
4.8. That said, a prima facie case in itself only creates a rebuttable presumption that discrimination has occurred. The evidence of the respondent’s only witness, Dr M., was also credible, and, rather than contradicting the complainant, provided the factual context from which the rebuttal does arise, and which could not have been known to the complainant since she would not have been privy to the deliberations of the respondent’s senior management.
4.9. In terms of the two men who were appointed to acting-up positions to lead their respective units, Dr M. gave evidence that this happened because both units were more critical than the complainant’s, in terms of government exposure, fee generation, and also pending legal proceedings. These men, who had worked in the respective units, could fill those leadership roles with the least amount of disruption, something the respondent placed a premium on. While it seems clear that the complainant also did very valuable work for the respondent, I do accept that this was indeed the weighting senior management gave to the units her two comparators worked in, and that it had nothing to do with her comparator’s genders.
4.10. Furthermore, and this is even more important for the respondent’s case, it became clear that a whole number of grade 7 managers reported directly to grade 4 directors, and that these managers were evenly split between men and women. Dr M. submitted a document in support of this which more than anything else convinced me that there is no culture of gender discrimination in the respondent organisation, and that the complainant’s two comparators are in many ways outliers who owed their promotion trajectory to circumstances other than gender. The complainant, in her written response to this document which was received post-hearing, sought to challenge the level of responsibilities assigned to these men and women, which she claims were lower than her own, but given that these assertions have not been tested in cross-examination, I do not assign a probative value to them which could topple Dr M.s direct oral evidence in any way. I am therefore satisfied that the respondent has successfully rebutted the prima facie case raised by the complainant, for the reasons outlined above.
4.11. With regard to the complainant’s case of victimisation, I did not find the complainant’s evidence that she was assured of a specific position strong enough to raise a valid case of victimisation. Neither can I be satisfied, based on the evidence before me, that the manager who left the complainant without any meaningful work to do did know in any way that she had raised a complaint with the then Equality Tribunal. At any rate, that situation was resolved through the respondent’s internal grievance mechanisms and is therefore moot.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Solas did not discriminate against Ms Linda Conway on the ground of her gender contrary to S. 8 of the Acts, and did not victimise her contrary to S. 76 of the Acts.
5.2. I would nevertheless recommend to the respondent to adhere closely to its own procedures for promotions and acting-up positions, or, where these are deviated from for specific operational reasons, to be more transparent about those reasons and to communicate these to staff in an appropriate manner.
______________________
Stephen Bonnlander
Equality Officer
25 August 2016