EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E 2016-037
PARTIES
Ms Mary Higgins
(Represented by Mandate Trade Union)
AND
Permanent TSB Plc
(Represented by Catherine Donnelly, B.L., instructed by A&L Goodbody)
File reference: EE/2014/047
Date of issue: 25th February 2016
HEADNOTES: Employment Equality Acts Section 74 Victimisation- adverse treatment.
1. DISPUTE
1.1 This dispute concerns a claim by Ms Mary Higgins (Claimant) that upon her return to work in October 2008 she was subject to victimisation by her employer Permanent tsb (Respondent). The Claimant claims that she was victimised in relation to her return to work as a consequence of pursuing an equality claim against the Respondent in 2005. The Claimant alleged this adverse treatment was contrary to Section 74 (2) of the Employment Equality Acts 1998-2011.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 6th February 2014. On 22nd September 2015 in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gerry Rooney, 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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 2nd October 2015 with subsequent hearings on 2nd November 2015 and 30th November 2015.
1.3 The parties provided further information to the Tribunal which was furnished after the last day of the hearing and exchanged with the parties. A final submission was made from the Claimant to the Tribunal dated 15th December 2015 and this was forwarded to the Respondent.
1.4 In addition to the hearings, the parties submitted an extensive amount of material, supporting evidence and books of authorities, all of which was carefully considered by the Tribunal before making its findings and decision.
1.5 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.
2. CLAIMANTS' SUBMISSION
2.1. The Claimant commenced employment with the Respondent in 1986 and is employed in the Respondent’s IT Department based in Cork. In 2005 the Claimant took an employment equality case against the Respondent following the Respondent’s refusal to grant her access to permanent part-time work. The Equality Tribunal issued a decision in May 2010. The Respondent appealed the Equality Tribunal’s finding of May 2010 to the Labour Court and the matter was settled on 8th June 2011.
2.2. Between 2005 and October 2008 the Claimant was absent from work due to sick leave, followed by periods of parental leave and a career break. The Claimant stated the reason for her career break was owing to the Respondent’s refusal to grant her access to permanent part-time work at the time.
2.3. In relation to the current claim, the Claimant raised three areas where she contended she experienced adverse treatment in reaction to her original claim to the Equality Tribunal. The three areas where she claimed adverse action were
2.3.1.Transfer ground: That when she returned to work in October 2008 she was not appointed to her previous role in PC Applications, but instead the Claimant was appointed to the Production Support Services (PSS). The Claimant contended that this decision has affected her ability to progress her career, and in effect is largely an administrative function with little or no technical ability required. She further contended that the PSS skillset was something that was only specific to Permanent tsb whereas if she was allowed to continue her career in PC Applications, which was a technical role, she would have developed specialist skills that are highly valued in the IT industry, and as such would afford her the opportunity to maximise those skills both internally and externally.
2.3.2.Part-time working ground: The Claimant applied for permanent part time work upon her return and this was granted to her but was subsequently withdrawn. The Claimant stated that she was not afforded a permanent part-time working arrangement unlike other colleagues who worked in the IT Department, and specifically in the PSS area. The Claimant identified some fourteen colleagues as comparators who she contended had been granted permanent part time work. She believed that the decision not to grant her permanent part-time was victimisation and adverse treatment, and occurred because she had raised a complaint to the Equality Tribunal in November 2005.
2.3.3. Grievance Ground: The Claimant alleged that when she set out to address her concerns and raised a grievance in October 2008 that the matter was not handled fairly by the Respondent. She contended that the Respondent delayed the progress of the grievance, denied her an opportunity to have her grievance heard properly, and refused her the opportunity to appeal the outcome of the grievance. She contended that her treatment by the Respondent in its mishandling of her grievance amounted to further victimisation; and as the handling of her grievance was protracted for some time this contributed to the adverse treatment she experienced.
2.4. As a consequence of the above issues the Claimant contended that she was not afforded a fair opportunity to have her case heard through the Respondents Grievance Procedures and she therefore raised her complaint to the Workplace Relations Commission under the Employment Equality Acts on 10th February 2014.
2.5. Specific Complaint in relation to the Transfer Ground.
2.5.1. The Claimant stated that in advance of her return to work she met with her line manager (AM) and the IT Department manager (RW) on 17th September 2008 to agree her return to work arrangements. The Claimant contended that at this meeting she was informed that she was being returned to a role in PSS rather than her original role in PC Applications. She asserted this decision was made without any assessment of her skillset, indicating that she had the skills to be able to continue in the role of PC Applications.
2.5.2. She believed the role in PC Applications was more technical in nature and viewed the role in PSS as one of a help desk administration role where she would be required to respond to queries in relation to the Bank’s own systems, and where she would perform data integrity checks. She felt this greatly disadvantaged her as it precluded her from advancing at a more technical level in the PC Applications role which she originally held before departing on her career break.
2.5.3. The Claimant further contended that the Respondent had the opportunity to meet with her and make arrangements well in advance of her return to work as she had advised the Respondent in July 2008, some three months before her return, of her intention to return. She informed the Tribunal that this notice period is a requirement contained in the Respondent’s Career Break Policy. She further contended that she could have got up to speed in relation to any technical changes that may have taken place when she was absent on her career break. She indicated that another person was in a PC Applications role temporarily and she could have been given this position as the Respondent would have had sufficient time to plan for her return.
2.5.4. On 2nd October 2008 the Claimant received an email from the HR Manager (MB) stating that she was not being returned to her previous role in PC Applications but would be tasked in the PSS area. The Claimant contended that the decision not to put her back in her role in PC Applications was decided by MB. She contended MB had been party to her earlier complaint to the Equality Tribunal and subsequent appeal to the Labour Court, and therefore his decision was not objective and amounted to victimisation. She understood that the HR Department should have accessed her skills regarding her suitability to return into the PC Applications role but this did not happen.
2.5.5. The Claimant contended that as a result of this decision her career prospects have been adversely affected, and sited an example of where she subsequently applied for a vacancy in the PC Applications but she was not shortlisted for this position.
2.6. Specific Complaint in relation to the Permanent Part-time Work Ground
2.6.1. The Claimant stated that her preferred option to return to work was to take on a position in a permanent part-time role. She indicated that she would have advised her line manager (AM) at her return to work meeting on 17th September 2008 that it was a matter of necessity for her to return to work on a part-time basis for both medical and childcare needs. The Claimant also provided evidence where she would have emailed the HR Manager (MB) at the time stating her need for part-time work (in addition to her desire to return to her role in PC Applications).
2.6.2. On 24th September 2008 the Claimant received a request by email to outline what part-time hours she wished to work, and the Claimant responded to this on the same day where she suggested 20 hours per week over 5 mornings would best suit her needs. Evidence also provided by the Claimant indicated that her line manager (AM) on behalf of the Respondent progressed with her request and proposed a compromise where she was offered a permanent job-sharing position working 3 days one week and 2 days the following week in the PSS area. As these arrangements suited her personal and family circumstances she was agreeable to move from the more technical role of PC Applications to the PSS role on the basis she was being offered permanent part-time work through a permanent job-sharing position.
2.6.3. Evidence was presented where on 29th September 2008 that the Claimant’s line manager (AM) again emailed her requesting a response to the permanent part-time job-sharing arrangements. The Claimant responded suggesting some options in how she could be facilitated. She contended her correspondence at that time was to ascertain the detail around the working pattern as this information had not been made clear to the Claimant by 29th September 2008.
2.6.4. Based on these emails and correspondence the Claimant understood that her line manager (AM) and the Department manager (RW) were in a position to offer her a permanent part-time role in the PSS area. However, on 2nd October 2008 the Claimant received an email from the HR Manager (MB) stating that not only was she not being returned to her previous role in PC Applications but the Respondent would not grant her request for permanent part-time work, despite offering this to her during September 2008. Instead she said she was invited to apply for part time work under the alternative working patterns on an annual basis. She was forwarded a relevant application form to apply for these arrangements, which would be renewed annually.
2.6.5. The Claimant also stated that based on this email she was advised by MB that if she applied for alternative work pattern arrangements in accordance with the Alternative Working Patterns Bank IT 2009 Policy they may be in a position to respond favourably. She was further advised by the HR Department that pending receipt and consideration of her application that she was expected to resume work in the PSS on a full time basis on Monday 6th October 2008. In effect the Claimant viewed this email from MB as withdrawing the offer of permanent part time work previously made to her by her Department Manager.
2.6.6. Consequently the Claimant responded to the Respondent stating that she was confused with the situation that had emerged as it did not address the offer she understood she had received from her Line Manager in relation to permanent job-sharing position in PSS. The HR Department reiterated its position that she would have to return to work in a permanent position in the PSS and subsequently apply under the Alternative Working Patterns for part-time role on an annual basis.
2.6.7. Further correspondence between the Claimant and the HR Department occurred on 7th October 2008. In this correspondence the HR Department wrote to the Claimant confirming that, as the Respondent and the Claimant had not been able to agree a job sharing arrangement acceptable to both, the Claimant could complete an application form for a temporary job sharing position, and return to work in the interim on a permanent full-time role in PSS.
2.6.8. The Claimant returned to work in the PSS area where she had to apply for part time arrangements on a temporary basis. Upon her return she realised that two of her new colleagues who were assigned to PSS were availing of permanent job-sharing. She also claimed that her job sharing partner in PSS had a permanent job-sharing arrangement without a job sharing partner, and that there were inconsistencies in relation to the application of permanent job-sharing scheme to other members of staff. During the hearing the Claimant identified some 12 members of staff in the IT Department that were availing of part-time work or permanent part time work arrangements, and that she was the only member of staff who was required to work in a permanent full-time role.
2.6.9. Upon her return to work the Claimant contended that she attempted to establish a part-time work arrangement that would suit her particular circumstances. She stated that the company could not facilitate the request for morning only working but could grant her job sharing on the basis of five days per fortnight, and that this arrangement would conclude on 31st December 2009. She advised that while she was now being offered a five day part-time working arrangement over a two week period, this was not a permanent job sharing position, noting a permanent job sharing position had initially been offered and subsequently withdrawn from her.
2.6.10. At this time the Claimant sought the permanent part-time arrangements that had been offered to her in PSS in September 2008, indicating that the temporary arrangement that was now being offered would do little to alleviate her health and work-life balance issues, and would likely impact negatively on both herself and her family. The Claimant stated that MB responded on the same day (15th October 2008) stating that the Bank was not in a position to grant the Claimant’s request and the original offer of permanent job-sharing was no longer an option. In this correspondence the Claimant was advised by the HR Department that they took the view that she had not accepted the original offer set out by her Line Manager on 21st September 2008 but instead and written to the Respondent with a “counter proposal” and consequently the Respondent made a decision not to give her the initial arrangements that had been offered. The Respondent advised her that they had now offered her temporary job-sharing under the Bank IT Flexible Working Patterns 2009 scheme and they were awaiting her response.
2.6.11. The Claimant advised the Tribunal that as a consequence she had no option but to accept the temporary job sharing offer, that she did so under duress, and informed her employer accordingly. She believed she was being unfairly treated and advised her employer that she intended to exercise her right in respect of the internal grievance procedures.
2.6.12. Specifically the Claimant highlighted that she understood the decision to grant her permanent part time work was initially made by local management, (as was confirmed in emails she received at the time and submitted as evidence to the Tribunal). The Claimant asserted that the subsequent refusal by MB to grant this arrangement amounted to victimisation. The Claimant contended MB’s decision was a consequence of her bringing a claim to the Equality Tribunal in 2005. In her evidence the Claimant advised that MB was the HR Manager who was central to her successful claim of discrimination to the Tribunal and which she asserted was upheld by the Labour Court. The Claimant therefore contended that the decision made by MB to overturn local management’s decision to grant her a permanent part time position in PSS amounted to victimisation under the Employment Equality Acts. She contended there was no objective ground to refuse her these arrangements, particularly as they had been recommended by local management in accordance with the Respondent’s policy, and other members of staff in her area enjoyed them.
2.6.13. The Claimant sought to have the matter, along with her appointment to a PSS role, addressed through the Internal Grievance Procedure.
2.7. Specific Complaint in relation to the Grievance Ground
2.7.1. The Claimant progressed with a grievance from 17th October 2008 where she met with her Line Manager (AM) to outline her grievance. The Claimant was requested by AM to submit her grievance in writing, and this was done in November 2008. This grievance was subsequently sent to the Employee Relations Manager (FS) where a meeting took place on 17th April 2009 between FS and the Claimant. The Claimant stated that this meeting took place some 5 months after submitting her grievance in writing.
2.7.2. At the meeting of 17th April 2009 the Claimant raised her concerns about her transfer to the PSS, the withdrawal of the permanent job-sharing arrangements, and in particular what she referred to as the hostile nature of the correspondence from MB in relation to this issue.
2.7.3. The Claimant contended that her grievance meeting with FS was not handled properly. She stated no notes were furnished to her in relation to the meeting. The Claimant had expected a more formal meeting would be convened but this never took place, and FS issued findings to the grievance on 27th November 2009, some 7 months after the initial meeting, and some 11 months after the grievance was initially raised.
2.7.4. The Claimant noted that FS found in favour of the Respondent on all the issues that she raised at the grievance. She sought to appeal these findings.
2.7.5. A meeting then took place 16th April 2010 with the Claimant, her Trade Union representative and FS in an effort by the Claimant to progress matters. The Claimant stated that following this meeting she received no outcome until 3rd February 2011, a further 10 months later. At that time the Respondent advised the Claimant that it would not issue findings until the Labour Court had heard and issued its determination in respect of its Appeal of the Equality Tribunal hearing. As stated above this Appeal was settled in June 2011.
2.7.6. In December 2011 the Claimant contacted another HR Manager (KK) and the Head of IT (MO’C) stating that she felt unfairly treated on her return to work in October 2008 and that the matter in relation to her grievance remained unresolved. In January 2012 the Claimant agreed to forward MO’C her outstanding grievances in writing.
2.7.7. As the Claimant was in effect appealing FS’s grievance decision, the Claimant advised that the grievance procedure provides for a referral of a dispute to a Rights Commissioner at this stage. However in this case, given all the circumstances, it was agreed between the parties that the Respondent would appoint an external investigator (PF) who was an independent HR Consultant.
2.7.8. PF was appointed and contacted the Claimant in May 2012 after which she provided details to assist the investigation to be conducted by PF. PF was tasked to review:
- the handling of the Claimant’s return to work vis a vis the part-time role,
- the return to the PSS role rather than the previous PC Applications role, an
- the handling of the Claimants grievance by the Respondent.
Ms Mary Higgins -V- Permanent TSB PlcThe grievance report from PF was issued in May 2013. The Claimant advised that the report did not find in favour of her complaint regarding any of the issues raised. The Claimant stated that this independent report was erroneous and either failed or neglected to deal with significant and key elements of her grievances. She therefore wrote to the bank’s HR Director (TH) on 31st May 2013 outlining her dissatisfaction with the report and sought to establish if the Respondent considered the report was a conclusion of the internal process. The Claimant was subsequently advised on 9th September 2013 that the Respondent deemed the matter had been independently reviewed and was now closed.
2.7.10. In addition, and during the course of this Tribunal hearing, the Claimant contended that the evidence provided by the Respondent disclosed that MB was also initially involved in instructing the external investigator (PF). The Claimant opined that she was not aware of this at the time, and had she been aware at the time that MB was involved in instructing the external investigator she would not have engaged in that process as an alternative to bringing her claim to the Rights Commissioner. She advised that she would not have had any confidence in relation to MB’s involvement in hearing her grievance.
2.7.11. The Claimant presented evidence demonstrating that Respondent acknowledged that it received correspondence from the Claimant on 31st May 2013, (to the Hr Director TH) regarding her concerns about the report. The Claimant submitted a further e-mail on 6th September 2013 indicating that she had not received a response to her e-mail of 31stMay 2013, and seeking a response at that stage . The Claimant submitted e-mail evidence that the Respondent responded to her on 6th September 2013 with an e-mail form TH apologising if the Claimant has not received a response, and advising her that the external investigation is the final outcome and that TH would not get involved. TH also advised that a colleague would contact the Claimant the following week. A response was subsequently sent to the Claimant on 9th September 2013 advising her that the Bank considered the report is final and that the matter is at an end.
2.7.12. The Claimant, through her Trade Union wrote to the Respondent on 3rd December 2013 advising them that the Claimant believed the Bank’s actions towards her, from her return to work, amounted to victimisation and that the Trade Union was seeking a meeting to discuss the issues.
2.7.13. The Claimant received a response on 11th December 2013 advising her Trade Union representative that the Respondent considered that the Claimant’s issues had been subject to an internal investigation and an independent review, where the Respondent noted that the Claimant was unhappy with the findings, and where in September 2013 the Bank advised the Claimant that it considered the external report to be final, and deemed the matters were at an end. The Respondent advised the Trade Union that it does not intend to continue to return to these mattes where they believe they should be put behind us all and we focus on normal business.
2.8. The Claimant contends that under Section 74 (2) of the Employment Equality Acts that her actions of making a complaint about the employer in 2005 were protected. However, she contended that the Respondent acted contrary to the Section 74 (2) of the Act in that she alleged victimisation occurred where she experienced adverse treatment in relation to not been returned to her original role; not being provided with permanent part-time work despite other colleagues being facilitated with more favourable part-time work arrangements; the fact that whilst she was offered permanent part-time arrangements that was withdrawn by the HR Manager (MB); and in the manner that the Respondent handled her grievance as she sought to remedy what she believed was unfair treatment at the time.
2.9. Specifically the Claimant has contended that the Respondent’s refusal to issue findings in relation to the grievance was a reaction to her Tribunal Case (EE/2005/406). The Claimant stated that FS who was dealing with her grievance in April 2010,stated “the matters raised are inextricably linked to issues which will shortly be subject of a Labour Court Hearing it would be inappropriate for me to comment at this stage” and this is a strong indication that the Respondent was influenced in its decision not to deal with her grievance in a timely manner as a result of her original claim and subsequent appeal to the Labour Court. In this regard the Claimant referred to Monaghan County Council versus Mackarel EDA13/2012 where the Labour Court observed that the use of the words “as a reaction to” would reasonably amount to an influencing factor in the decision to impose an impugned detriment.
2.10. In referring to the action of the Respondent by not placing the Claimant in her original position in IT Applications, the Claimant referred to the Labour Court decision Nevins, Murphy Flood (claimants) V Portroe Stevedores (Respondent) EDA051 Labour Court [2005] 16 E.L.R. 282 which found that “discrimination is usually convert and often routed in the subconscious of the discriminator. Sometimes a person may discriminate as a result of in-built and unrecognised prejudice of which he/she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nevertheless, 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 co-aberration, must be approached with caution. Finally, it must be borne in mind that the prescribed reason need not be the sole or either the principle reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence”. The Claimant therefore alleged that the non-appointment to her original role in IT Department amounts to discrimination.
2.11. With reference to the withdrawal of the offer of permanent job-sharing and the involvement of the HR Department in the matter when the Claimant sought clarification, the Claimant referred to the Dictum of Justice, Peter Gibson, in IGEN Ltd (formerly Leeds Careers Guidance) and others (Appellants) versus Wong [2005] IRLR 258 which found the actions in themselves point to the possibility of victimisation and in the absence of any objective explanation for these actions it would be legitimate to infer that discrimination occurs and to draw that conclusion based on common sense. As such the Claimant stated that the primary facts infer that, on the balance of probabilities, she was subject to victimisation as a consequence of raising an equality complaint against the Respondent in November 2005.
2.12. She further asserted in her submission to the Tribunal that in making her complaint in 2005 in good faith that the subsequent actions of her employer on her in return to work in 2008, and the handling of her concerns from that point up to making the current submission of victimisation, is completely unacceptable. The Claimant asked that in finding in favour of her case that the Tribunal should consider the Von Colson and Kamann [1984] ECR 1891 case which indicated that the compensation awarded must fully compensate the Claimant for the economic loss which he/she sustained as a result of the breach, and it must also contain an element which reflects the gravity of the infringement and acts as a disincentive against further infractions.
3. RESPONDENT'S SUBMISSION
3.1. In its response the Respondent contended that the complaint is time barred and ought to be dismissed on that ground. The Respondent also denied the Claimant was subject to adverse treatment whether as reaction to her having previously sought redress for discrimination under the Employment of Equality Acts 1998-2011, or at all.
3.2. Time Bar
3.2.1. The Respondent in its submission stated that in accordance with Section 77(5) of the Employment Equality Acts “a claim for redress in respect of discrimination or victimisation may not be referred to under this section after the end of a period of 6 months from the date of the occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”.
3.2.2. In this regard the Respondent contended that in order for the Claimant to succeed in demonstrating continuum or chain of discrimination from the first complaint, it is necessary to demonstrate that there were acts of discrimination within a period of 6 months prior to the lodging of the complaint with the Tribunal. The Respondent also stated that consistent with Section 77(6)(a)(i) where a single act extending over a period of time (such as a policy, rule or practice) with the time limit referable to the point at which the victimisation ended, would render the complaint out of date. Specifically in this regard the Respondent was relying on the basis that the act of victimisation referred to by the Claimant was in relation to her return to work in October 2008, and no further alleged act of victimisation had occurred from that point in time. Whilst acknowledging that it took some time to deal with these issues the Respondent contended that these actions could not amount to on-going discrimination/ victimisation.
3.2.3. Referring to legal argument in relation to the time bar, the Respondent referenced Rafferty-V- National Education Welfare Board DEC-E2014-013 where the Tribunal held that the time will run from the date on which a decision regarding an alleged action of victimisation is made by a Respondent, but that there would be no subsequent act for the purpose of the Acts unless the Respondent varies or re-opens an new claim. In this regard, and referring to Caste-V-Croydon College, UK Court of Appeal [1998] IRLR318 which states that “a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision providing that there has been a further consideration of the matter and has not merely reiterated or reference back to the earlier decision”. On that basis the Respondent contended that in dealing with the issues from the Respondent’s return to work in 2008 it could not be deemed as a new or further act of victimisation. Accordingly the Respondent stated that:
(i) The transfer ground arose in September 2008 (that is where the complaint was reallocated to PSS rather than her previous role as PC Applications) and ultimately the rejection of her grievance by the external investigator occurred on 1st May 2013, and that would amount to the last act and therefore her claim would be out of time.
(ii) In relation to the part-time work ground this also arose in September 2008 and would have been subject to a rejection on 1st May 2013, when the external investigator submitted his report
(iii) In relation to the grievance ground which arose on 3rd February 2011, the Respondent contended the claimant was informed that the progression of her grievance would be postponed pending the resolution of the 2005 proceedings due to the fact that the issues raised by the Claimant in her grievance were “inextricably linked” to the 2005 proceedings, and at the latest this matter was also dealt with on 1st May 2013 by the external investigator and therefore would be deemed out of time.
3.2.4. With reference to the external review the Respondent also relied on the report from the external reviewer which stated “the process outlined below has been carried out in accordance with phase (d), the final phase of the Permanent tsb Grievance Procedures. While the Grievance Procedures provide for reference for a Rights Commissioner, at this stage in the process the company identified that it had been decided and agreed to refer to an independent third party. At a Preliminary meeting with the Claimant on 21st May 2012 she acknowledged to me that she understood it was the final stage of the Grievance Procedures and confirmed she was satisfied I act as independent third party in adjudication on her grievance in that context”. Furthermore the Respondent referred to its Dignity and Respect Policy which includes provision on victimisation, and which reminds employees in very clear terms that “nothing in this policy will prevent you from taking action under the relevant laws. You should familiarise yourself with the time limits that apply under the relevant laws.”
3.2.5. The Respondents stated that it viewed the 1st May 2013 as the final stage in the process. They contended there was no subsequent single continued act of victimisation from that point to the Claimant lodging her complaint in February 2014, and therefore it must be ruled out of time.
3.2.6. The Respondent did not accept that the response of the then HR Director (TH) dated 6th September 2013 could be viewed as a further act of victimisation in that it merely confirmed that the external report marked the end of the internal process.
3.3. Legal Principles in relation to Victimisation
3.3.1. The Respondent, whilst ascertaining that a claim must fail because it is out of time, further stated that in accordance with Section 74 (2) of the Acts “victimisation occurs where the dismissal or other penalisation of the Claimant solely or mainly occasioned by the Claimant having in good faith (a) sought redress under this act or any enactment repealed by this Act for the discrimination or failure to comply with an equal remuneration term or equality clause (or similar term or clause under any such repealed enactment)”. In regard to this statutory provision the Respondent referred to Barrett-V-Department of Defence EDA1017 which identified three components must be present for claim of victimisation to be successful namely
1 the action of a type referred to in accordance with paragraphs (a) to (g) of Section 72 (2) of the Act,
2 The Claimant must be subjected to adverse treatment by his/her employer, and
3 The adverse treatment must be a reaction to protected act having taken place.
3.3.2. The Respondent argued that the claim must fail on these three grounds as the Claimant was not subject to adverse treatment, and further contended that any treatment the Claimant experienced was not in reaction to Claimant’s pursuit of 2005 proceedings. The Respondent also contended that to establish victimisation had occurred it should be within the range of inferences which can reasonably be drawn from the facts presented. The Respondent therefore set to out explain its actions in relation to the three areas raised by the Claimant i.e. the transfer ground, the part-time working ground and the handling of the grievance ground.
3.4. Response to the Transfer Ground
3.4.1. The Respondent stated that the Claimant was treated in accordance with the terms and conditions of her employment, and in particular in accordance with the Respondent’s Policy on Career Break which were clear and unambiguous. The Policy states “you will return to work at the level you are at when your career break started. Every effort will be made to allow you return to the same area you worked in when you left, however this is not guaranteed.”
3.4.2. The Respondent stated that the Claimant was appointed to the same level of work (ITP3) on her return, albeit in a PSS position rather than in IT Applications position. The Respondent in the hearing stated that much change had taken place since 2005 when the Claimant had left for her extended leave including her career break. It was contended that the future survival of the Bank, due to the financial crisis, had been in question and a transformation of the staffing levels within the Bank had taken place. These changes included new technology and the requirement to respond to new and different methods, and a far reaching range of changes in the IT Application area.
3.4.3. The Respondent detailed at length the changes that had taken place, and these changes and responsibilities also effected the Claimant’s Line Manager (AM) who was now responsible for the PSS area whereas before, similar to the Claimant, she had responsibilities for IT Development. A new IT Department manager (RW) had also been appointed during the Claimant’s absence.
3.4.4. The respondent contended this necessitated a sensible return to work policy being adapted which takes account of all the developments that had taken place during the Claimants absence. As such the Respondent appointed the Claimant to an alternative location for her work due to the change in the business circumstances, and this was within the remit of the Company’s Career Break Policy (Returning from a Career Break). The respondent further contended that the Complainant was now entirely unsuited to a role in the PC Applications due to the changes in technology and circumstances that had taken place during her absence.
3.4.5. The Respondent also argued that the Claimant was not seeking to return to the same arrangements that she had departed on, which was full time. Instead she was seeking a permanent part time role in PC Applications. The Respondent explained this was not a viable option as there was need for full time cover in PC Applications, and the return of the Claimant to a part time role in PC Applications would affect the operational efficiency of the department and therefore it was not a viable option for the Respondent to implement.
3.4.6. The IT Department Manager (RW) in his evidence to the Tribunal explained the changes which had taken place in PC Applications, with new technology being introduced when the Claimant was on her career break. Restructuring took place during 2007 where a merger of the IT functions across the business occurred. From 2007 numbers were reduced which brought about challenges. RW and AM looked at the team during 2007, and in 2008 the IT support team was re-engineered. There was also a move from Visual Basic to Visual Basic net (VB Net), which involved different coding. As the skillset was not available internally, graduates were brought in to work on the applications. At this time, and to respond to the changing need which included the development of online banking, RW set out to establish a centre of excellence in web development for the company.
3.4.7. RW further explained in detail how the merging IT Department was operating from 2008, with the different structures and requirements of PSS and Applications Development. In his evidence RW outlined how, in general, IT evolves and the impact this has to staffing levels and to roles and responsibilities. In this regard he contended that it would take between 6 to 8 months to upskill the existing developers, and to meet these business demands other staff were moved to match the business requirements, which included staff moving from IT development to PSS.
3.4.8. The Respondent contended that set within this context the decision to place the Complainant in a PSS role upon her return was entirely based on business needs. The decision was RW’s recommendation, and the HR Manager (MB) was not involved in that decision. RW also explained that in making his decision he had to factor in the Claimant’s request for permanent part time work. To facilitate a part time role it was not, in his view, feasible to appoint her to PC Applications. He explained this was due to objective criteria which included the time it would take for the Claimant to get up to speed in the new software, and RW’s business need to have full time cover in PC Applications to meet the business demands.
3.4.9. RW was not involved in the Claimant’s earlier complaint regarding part time work and the subsequent equality claim. He believed he tried to facilitate her request for part time work when deciding on arrangements for the Complainant’s return to work in 2008. At the hearing, AM corroborated with the evidence provided by RW in relation to the decision to appoint the Claimant to a PSS role.
3.4.10. The Respondent also contended that the role in PSS was not an adverse move for the Claimant and explained the role was more diversified, particularly as the PSS team deals with business users, investigates and resolves issues, and acts as a second line of defence in IT. RW explained the PCC role is akin to a business analyst which involves complex problem solving with the same salary as an applications developer. In this regard the Respondent reported that the Claimant had excelled in her role since her return where she is regarded as a very effective and responsible member of the PSS team.
3.4.11. In further response to the Claimant’s assertion that her appointment to a position in PSS was adverse treatment, the Respondent advised that the Claimant had in fact expressed a willingness to move to a PSS position in September 2008 (if this addressed her work life balance issues). When she was initially informed of her transfer to PSS by her managers (AM and RW) at a meeting on 17th September 2008, and subsequent e-mail correspondence that day regarding the transfer, the Claimant did not object to her appointment to PSS.
3.4.12. The Respondent also advised that in 2010, after the Claimant returned to work, that an opportunity for a role in PC Applications arose where the Claimant initially applied for but subsequently withdrew her application to an appointment in PC Applications. The Respondent relied on this decision by the Claimant to emphasise the appointment to PSS was therefore not adverse treatment of the Claimant, indicating she had turned down an opportunity to apply for a role to PC Applications.
3.5. Response to the Part Time Ground
3.5.1. The Respondent denied adversely treating the Claimant in relation to how they handled the Claimant’s part time working request, and part time arrangements.
3.5.2. The Respondent contended that the Claimant was treated in accordance with her terms and conditions of employment and where they applied the company’s policies on flexible working arrangements as applicable to its IT department. Furthermore the Respondent also argued that it endeavoured to accommodate the Claimant’s requests where they went beyond the requirements of their policies.
3.5.3. In dealing with the Claimant’s issues the Respondent is relying on the Company’s alternative working scheme which was first established in 2004. The Respondent advised that the IT department’s procedures for dealing with part time work is less flexible than other areas of the Company. The Respondent applied the Company’s Alternative Working Patterns- Bank IT 2009 policy with regard to the Claimant’s application for part time working. In effect this policy advised staff that a particular consideration will be the need to avoid any negative impact on project delivery and customer service…Staff continuity is particularly important in IT where project delivery is subject to agreed timescales and deliverables. Due to the current and projected heavy project workload within Bank IT, it is likely that the number of staff that can be granted flexible working patterns will be low”.
3.5.4. The Respondent therefore contended that the granting of part time arrangements to the Claimant were consistent with this policy. The Respondent argued that due to the operational demands, and the nature of the project work being completed by PC Applications, it was not possible to grant a part time position to the Claimant if she wished to work in PC Applications.
3.5.5. The Respondent also contended that the Complainant has erred regarding the comparators she presented in relation to how she believes she was treated less favourably by the Respondent. Both in its written response and during the hearing the Respondent presented detailed evidence and an extensive list of supplementary documentation in relation to the 12 comparators raised by the Claimant. In its evidence the Respondent presented the background to each of the comparators, the basis for the part time working arrangements that were granted, and the conditions that applied to the comparator at the time of granting the part time arrangements.
3.5.6. Of the 12 comparators, the Respondent explained that only two work in PC Applications, three transferred from PC Applications to PSS in order to benefit from part time working arrangements, and the remaining seven who were working in PSS had transferred from other areas in the Company. In explaining the conditions that applied, the Respondent stated that different part time work arrangements applied to different staff members depending on the area they originally worked in, and the company had a harmonisation agreement in relation to these differing arrangements. However for historical reasons some of the arrangements for people working part time in the IT department differed.
3.5.7. On that basis the Respondent explained that the only part time arrangements that was available to the Claimant in 2008 upon her return to work were the arrangements that applied under the IT Departments Alternative Working Patterns policy. In 2008 the IT Department was only offering part time arrangements where staff had to apply for these arrangements on an annual basis. There was no part time arrangement scheme open in October 2008, and the next scheme was for the 2009 period, and that staff had to apply for these arrangements. It was acknowledged that not everybody was happy with these arrangements, and a greater number of people were looking to work part time in the PC Applications than the Respondent could facilitate.
3.5.8. The Respondent therefore contended that the Claimant was not treated adversely, and that in order to address her specific needs her local managers offered her a permanent part time position in PSS. This they believe demonstrates that a very significant effort was made to accommodate her to the extent that the offer made was not in accordance with the Respondent’s own policy, i.e. that part time work arrangements were no longer offered on a permanent basis at that time.
3.5.9. The Respondent maintained that when the local managers offered this position to the Claimant on 24th September 2008 she rejected them in a responding email on 29th September 2008. The Respondent drew a conclusion that the Claimant, in her response, was now seeking to have a very particular and precise accommodation made for her which went beyond the Respondent’s policy. The Respondent views this as the Claimant “seeking to persuade the respondent to depart from its policies and practices (even further than it had already done) and to afford her special part time working arrangement, not available to anyone else”. It therefore decided to withdraw the offer of permanent part time working.
3.5.10. The Respondent stated that it then extended further special treatment to the Claimant by offering her an opportunity to apply for temporary part time work upon her return under the 2009 scheme, and on 13th October 2008 the Respondent offered these part time arrangements. The Claimant subsequently agreed to the arrangement and remained in a part time working arrangement until December 2010.
3.5.11. At the hearing, and in its evidence, the Respondent also acknowledged that the permanent part time arrangements offered to the Claimant were approved by the Head of IT, and was shared with the HR Manager (MB). RW in his evidence acknowledged that the permanent part time arrangements had been prepared by AM and he had approved them, believing it was within his gift to do so.
3.5.12. After offering the Claimant the part time working arrangements RW, in his evidence, argued that he became aware that he had offered the permanent part time position to the Claimant outside of his authority to do so. RW advised that he had not consulted with MB at the time of making the offer to the Claimant.
3.5.13. The Respondent advised that AM provided the Claimant with the details for the permanent part time role. (Working five full days over two weeks on a two day/three day week pattern). Following this AM advised that she had three or four long phone calls with the Claimant where AM attempted to resolve the issue with the Claimant by working within the parameters she was given regarding the actual days the Claimant was to work. AM shared the issues with her manager, and MB, and she advised the matter was then taken out of her hands at that stage.
3.5.14. AM in her evidence to the Tribunal she said that she remembers being upset about trying to make the arrangements with the Claimant, she was doing her best, and she was caught between so many people. AM could not change the two day/three day week working pattern and felt that what was being offered to the Claimant at the time was a golden opportunity for her. AM stated that she was frustrated that the Claimant could not work the hours being offered.
3.5.15. AW consulted with management, and at this stage the Respondent had drawn the conclusion that the Claimant had rejected their offer.
3.5.16. In her evidence to the Tribunal AM stated that any comments in relation to the Claimant’s return to work arrangements was to be passed to her managers including MB as she understood there were concerns that making a decision on the Claimant’s part time arrangements could prejudice the ongoing case (i.e. the Claimants equality claim from 2005). Therefore all issues had to be passed to RB. AM in her evidence said she had to be careful and she wanted to be above board to everyone. AM also advised that the handling of the return to work of the Claimant was different, it had to go to HR, there was slightly more interest in it, and it was her opinion that this was probably because a (equality) case was in progress.
3.5.17. Having concluded that the Claimant had rejected the offer, RW advised that the Respondent decided to withdrawn the offer for permanent part time working, and this decision was made following the advice of MB. AM also advised the Tribunal that she was not party to that decision. She imagined she got a copy of the letter a week after the decision to withdraw the part time arrangements was made, and she was not aware this was going to be the decision. AM stated that she had received a phone call from management advising her that they were withdrawing it.
3.5.18. AM explained in her evidence to the Tribunal that in 2008, before the Claimant’s return to work, two other PSS staff members were approved for permanent part time working arrangements and this had been granted following consultation with MB. These staff had participated in part time arrangements in 2006/07 and transferred to PSS on a job sharing arrangement similar to that which the Claimant was seeking, but on a pilot basis.
3.5.19. Despite withdrawing the offer, the Respondent denied treating the Claimant adversely. The Respondent explained the Claimant’s local managers progressed to make arrangements to facilitate the Claimant by allowing her be granted part time arrangements in advance of the 2009 scheme. This was sanctioned by MB.
3.5.20. The Respondent advised that the Claimant did not apply for any further part time work post December 2010, and did not apply for a once off offer to all staff for reduced hours that was offered in January 2015. The Respondent therefore contended that this casts doubt on the extent to which the Claimant actually regards the withdrawl of an offer of permanent part time work as adverse treatment.
3.6. Response to the Grievance Ground
3.6.1. The Respondent contended that its grievance procedure was conducted in a careful and considered manner, which was fully in accordance with its internal process. As such the Respondent contended its handling of the Claimant’s grievance did not amount to adverse treatment of the Claimant.
3.6.2. The respondent acknowledged the grievance commenced in October 2008 and contended it was concluded on 27th November in 2009 with a report (The FS Report). The Respondent advised that in March 2009 the Claimant raised pay issues and indicated these were dealt with as a priority before addressing the grievance matters. The payroll issues were sorted in June 2009.
3.6.3. At the hearing FS acknowledged that he did not exchange any notes with the Claimant (to confirm same) following their meeting in April 2009. He viewed this as not being necessary as the meeting was recorded and therefore did not need to have the record verified. He acknowledged also meeting the Claimant’s managers as part of his review, but he did not think it was appropriate to forward notes of these meetings to the Claimant before making his report.
3.6.4. The respondent advised that the FS Report did not uphold the Claimant’s grievance issues that were raised in October 2008, and in his report FS apologised for the delay in finalising the grievance.
3.6.5. The Respondent argued that the Claimant did not appeal the FS Report within 10 days in accordance with the policy.
3.6.6. The Respondent therefore argued that there was no adverse treatment of the Claimant in the handling of her grievance. The Respondent also argued that the tumultuous economic period which the Respondent was experiencing resulted in the Respondent having to deal with a greater number of grievances than usual, which meant that, in general, the length of time to deal with grievances was increased. The Respondent further opinioned that it was unrealistic to have the grievance procedure completed in 30 days, as per its policy.
3.6.7. The Respondent acknowledged that in early 2010 the Claimant’s Trade Union raised a concern to the Respondent. The Respondent met again with the Claimant and her Trade Union representative on 16th April 2010. The Respondent acknowledges that following this meeting issues were not progressed at that time, contending that as the Claimant had intertwined issues relating to the 2005 Proceedings with her grievance in 2008 it decided it would not progress the grievance until the 2005 Proceedings were settled. The Respondent contended that the Claimant was satisfied with this. The Labour Court process was completed in June 2011.
3.6.8. The Respondent acknowledged that the grievance recommenced upon the Claimant’s request in December 2011, also acknowledging there was delays on both sides regarding progressing matters.
3.6.9. In April 2012 an external third party (PF) was appointed to investigate matters. In his evidence at the hearing PF advised he received a phone call form Group Head of HR (TH) and was asked to meet a member of the Respondent’s management team to complete work for the organisation. PF met with MB and dealt with procedural matters, but PF was not aware of the nature of the work at that stage.
3.6.10. In his evidence PF said he understood he was being appointed as the final stage of the grievance procedure instead of a Rights Commissioner, and PF understood he was fulfilling this role with agreement of the parties. PF also said his contemporaneous notes indicated that he advised the Claimant at the time about how he had been appointed, and that he would also have explained to the Claimant that his Grievance Hearing was the final stage of the internal procedures, which is also mentioned in his report. PF confirmed that whilst he drafted terms of reference he did not issue these.
3.6.11. PF advised that when he met the Claimant she mentioned MB, and at that point in time he advised the Respondent that MB could no longer be a point of contact, and the Bank appointed another person to this role.
3.6.12. PF advised that he issued his report on 1st May 2013.
3.6.13. The Respondent stated that it afforded the Claimant the opportunity to have its initial grievance report (the FS Report) reviewed, and the Group Head of HR (TH) decided that an external third party would be an option instead of the Rights Commissioner, and this was agreed with the Claimant. The Respondent argued that this external investigation was to be a final outcome, that the Claimant had agreed to this and therefore there was no grounds to allow her appeal the findings.
3.6.14. As the external report was issued in May 2013 the Respondent deemed that the Claimant’s complaint was out of time.
3.6.15. The Respondent acknowledged that it received correspondence from the Claimant to TH on 31st May 2013 regarding the Claimant’s observations on the report; and the Claimant submitted a further e-mail on 6th September 2013 indicating that she had not received a response to her e-mail of 31st May 2013, seeking a response at that stage. The Respondent confirmed it responded to the Claimant on 6th September 2013 with an e-mail from TH apologising if the Claimant has not received a response, advising her that the external investigation is the final outcome, and that TH would not get involved in matters from this point. TH also advised that a colleague would contact the Claimant the following week. A response was sent to the Claimant on 9th September 2013 advising her that the Bank considered the report is final and that the matter is at an end.
3.6.16. The Respondent confirmed that it received further correspondence from the Claimants Trade Union on 3rd December 2013 advising them that the Claimant believed the Bank’s actions towards her since her return to work amounted to victimisation, and that the Trade Union was seeking a meeting to discuss the issues.
3.6.17. The Respondent responded to the Trade Union representative on 11th December 2013 and advised the Trade Union that the Claimant’s issues had been subject to an internal investigation and an independent review where it noted that the Claimant was unhappy with the findings, and where in September 2013 the Bank advised the Claimant the it considered the external report to be final, and deemed the matters were at an end. The Respondent also advised the Trade Union at that time that it does not intend to continue to return to these mattes where they believe they should be put behind us all and we focus on normal business.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1. The Claimant alleges that she was victimised by the adverse action taken against her by her employer regarding arrangements that we put in place upon her return from a career break in October 2008. The Claimant also alleged victimisation in relation to the handling of a grievance she raised in October 2008 relating to these matters, and which took until May 2013 for the Respondent to deal with. In addition when the Claimant attempted to raise concerns about the grievance these were disregarded by the employer in May, and again in September 2013.
4.2. Decision in relation to the Timing of the Complaint
4.2.1. The Claimant has contended that the last date of adverse treatment was in September 2013 when, after making representations to the Respondent, the Respondent refused to consider any element of her appeal regarding the external Grievance Procedure. In making its decision not to consider the Claimant’s concerns, the Respondent relied upon its assertion that the matter was now closed as the external investigation was the last stage of the grievance procedure, and that was the end of matters.
4.2.2. The evidence presented to the Tribunal confirms that the external grievance report related to:
a. a grievance raised by the Claimant in October 2008 regarding her appointment on her return to work,
b. an offer for a permanent part time position being withdrawn on instruction from a named manage. The Claimant contended that the manager making this decision had been central to the Claimant’s previous equality complaint in 2005.
c. attempts to have her grievance dealt with which led to a protracted process which lasted from October 2008 to 9th September 2013, at which time the Respondent decided not to address concerns raised by the Claimant in relation to a report about her grievances that was issued in May 2013.
4.2.3. Section 77 (5) (a) of the Employment Equality Acts 1998 - 2007 states that there is a six-month time limit for the submission of claims which starts from the “date of occurrence of the discrimination or victimization to which the case relates or, as the case may be, the date of its most recent occurrence”, this can be extended to twelve months where there is “reasonable cause”.
4.2.4. The approach generally taken in relation to deciding on the time limits is set out in Cast v Croydon College, UK Court of Appeal [1998] IRLR 318, which states that: “a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision.”
4.2.5. I am satisfied that the external report which issued in May 2013 did not in fact make further consideration of the matters in relation to the appointment of the Claimant to a PSS role, or to the withdrawl of the permanent part time work, both of which occurred in September/October 2008. In relation to these two issues the external report merely referred back to the earlier decisions regarding the matters. As such it does not constitute a new decision. I therefore conclude these two issues are out of time and cannot be considered by the Tribunal.
4.2.6. In relation to the handling of the grievance, it is clear that the Claimant was dissatisfied with procedural and substantive issues relating to the conduct of the external investigation. The Claimant sought to appeal some of the issues decided upon in this report which was issued on 1st May 2013. These appeals included her concern that the external report failed to address the time taken for her grievance to be held in the first instant. She raised her concerns to the Respondent on 31st May 2013, and the Respondent failed to address her concerns. She raised them again on 6th September 2013. On 9th September 2013 the Respondent decided that, without demonstrating any intent to fairly consider her concerns about the report, the matter was at an end. The Respondent further decided in December 2013 that the issues should be put behind us all and we focus on normal business. In making these decisions the Respondent chose not to consider the actual nature of the complaints about the May 2013 report being raised by the Claimant. It therefore failed to consider them before deciding whether they had merit or not.
4.2.7. The Claimant subsequently raised her complaint with WRC on 9th February 2014, which I find is within six months of a decision made by the Respondent on 9th September 2013 not to entertain the Claimant’s request to review the alleged flaws in the PF report, which she argued also failed to address the respondent’s handling of the Claimant’s grievance.
4.3. Decision in Relation to Victimisation
4.3.1. I must therefore consider whether the handling of the Claimant’s grievance amounts to victimisation.
4.3.2. Victimisation is defined in broad terms under the Employment Equality Acts1998-2011. Section 74(2)provides:
“(2) For the purposes of this Part victimisation occurs where dismissal orother adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant…”
4.3.3. Section 74(2) of the Acts sets out the acts which are protected from adverse treatment onthepart of the employer, and the actions which an employee must have taken/indicatedan intention to take, from which the reactionary behaviour of the employer emerged. It is clear, therefore, that section 74(2) is expressed in terms of there being both a cause and an effectin thesensethattheremustbeadetrimentaleffectontheemployeewhichiscausedbyhimor her having undertaken a protected act of a type referred to in section 74.
4.3.4. The key elements of victimization provided for in section 74(2)of the Acts therefore areas follows:
· The employee had taken action of a type referred to at section 74(2)of the Acts(a protected act),
· The employee was subjected to adverse treatment by the Respondent,and,
· The adverse treatment was in reaction to the protected action having been taken by the employee.
4.3.5. In order to meet the burden of proof required by section 85A of the Employment Equality Acts1998-2011,the employee must demonstrate that there is a causal connection between their taking of proceedings ,or protected act, and the adverse treatment by the employer. Therefore an employee alleging victimization is required to demonstrate the primary facts from which it can be inferred that the respondent has victimised the employee, and that these facts are of a sufficient weight to raise a presumption of discrimination in order for them to meet the burden of proof required of them and for the burden of proof to shift to the employer.
4.3.6. With regard to the claim for victimisation relating to the handling of the Claimant’s grievance, the evidence presented confirms the Claimant raised her concerns through the Respondent’s grievance procedures on 17th October 2008. It took some 13 months for this stage to be completed by the Respondent and it issued its finding in November 2009. The Claimant was dissatisfied with both the procedures and the outcome of this stage of the grievance procedure, and appealed them. At this time a complaint to Equality Tribunal which had been submitted by the Claimant in November 2005 was progressing. This complaint, which had been adjourned in November 2008 was again heard by the Equality Tribunal on 18th January 2010, and was subject to decision which found in favour of the Claimant on 28th May 2010. The Respondent appealed the decision to the Labour Court, and the appeal was settled in June 2011.
4.3.7. It is clear from the evidence presented that it took some 4 years and 7 months for the Claimant’s grievance and associated appeals to be dealt with and concluded by the Respondent. As part of this process the Respondent clearly informed the Claimant it was not prepared to address her grievance until a matter relating to a different equality claim lodged by the Claimant in November 2005 was concluded, stating it deemed the 2008 grievance to be inextricably linked.
4.3.8. The Tribunal finds that the Claimant’s 2008 grievance was not inextricably linked to the 2005 complaint. The 2005 matter and the 2008 matter remain completely different as the complaints relate to entirely different decisions made by the Respondent, albeit both, in part, relating to part time working arrangements.
4.3.9. As such the Tribunal finds that the Respondent’s decision to view both matters as being inextricably linked, and as a consequence to decide not to progress the Claimant’s 2008 grievance at the time it was raised is unjustified and amounts to victimisation, and adverse treatment. The adverse treatment was compounded by the Respondent further deciding not to consider the Claimant’s concerns regarding the external report in May 2013, and again by its decision in September 2013 to deem matters were concluded without first considering the Claimant’s concerns.
4.3.10. The Tribunal, in making its findings in this regard, is also cognisant of the fact that the Respondent in its defence contended that the Claimant’s claim is out of time, yet it directly contributed to delaying its progress at every stage, and namely in its:
a. handling of the Claimant’s grievance from October 2008 to November 2009;
b. refusal to progress the Claimant’s appeal against its 2009 decision until after the Equality Tribunal and the Respondent’s subsequent appeal to the Labour Court which was settled in June 2011;
c. delay in progressing the Claimants subsequent request for matters to be reviewed after the Labour Court settlement until April 2012; and
d. its refusal to respond to the Claimant’s concerns regarding the May 2013 report until 9th September 2013, at which time it dismissed them without demonstrating any genuine intent to consider and respond to them in a transparent and fair manner.
4.3.11. In this regard the Respondent, by deciding not to consider the Claimant’s concerns about the external report, did not provide the Claimant with fair procedures as it failed to:
a. adhere to any reasonable time scale in addressing the grievance,
b. decided that the 2008 grievance was inextricably linked to the Claimants 2005 complaint,
c. consider the Claimant’s objections to the external report on the basis it deemed matters to be closed.
4.3.12. In addition the Respondent’s inexplicably protracted a resolution of the Claimant’s grievance, adding to the adverse treatment.
4.3.13. With regard to section 74 (2) of the Acts, and with reference to Monaghan County Council v Mackarel EDA 12/2012, this section of the Act is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. As identified by the Labour Court, the use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment, although it need not be the only or indeed the principal reason for the decision. In the Labour Court’s view, it is sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker. Furthermore the Labour Court identified one must be alert to the possibility of subconscious or unrecognised influence by surrounding events operating on the mind of the decision maker (see Nevens, Murphy Flood v Portroe Stevedores[2005] 16 ELR 282). Hence seemingly honest evidence denying any connection between a protected act and the decision to impose a detriment must, in the absence of corroboration, be approached with caution.
4.3.14. However in this case the Respondent clearly stated the matters were inextricably linked, and therefore the Claimant’s previous complaint to the Equality Tribunal has had a direct bearing on the decision of the Respondent, and clearly influenced its decision not to offer the Claimant a fair or impartial review of her 2008 grievance in a timely manner, and not to consider her concerns in May and September 2013 relating to further decisions made by the Respondent in the handling of her grievance.
4.3.15. Accordingly the Tribunal finds that the protracted handling of the Claimant’s grievance, in addition to the decision not to consider the Claimant’s concerns regarding the May 2013 report, amounts to adverse treatment where she was victimised as a result of having progressed a previous complaint to the Equality Tribunal under the Acts.
5. DECISION OF THE EQUALITY OFFICER
5.1. I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts:
5.1.1. The claims in relation to victimisation regarding the Claimant’s appointment upon her return to work, and the withdrawal of a decision to allow her work on a part time permanent basis are out of time in accordance with section 77 (5) of the Employment Equality Acts.
5.1.2. The Claimant was victimised in relation to the handling of the grievance by the employer including a decision by the employer in May 2103 and the 9th September 2013, and this amounts to adverse treatment and victimisation under Section 74 (2) of the Employment Equality Acts. I hereby order the Respondent pay the Claimant €48,750 for the effects of the adverse treatment. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
____________________
Gerry Rooney
Adjudication Officer/Equality Officer
25th February 2016