EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-008
PARTIES
Ms Jennifer Kane
AND
SMT Fund Services t/a SuMi Trust
File reference: EE/2014/392
Date of issue: 28th January 2016
HEADNOTES: Employment Equality Acts Sections 6, and 8A – Gender (Pregnancy) – Discrimination on Conditions of Employment.
1 DISPUTE
1.1 This dispute concerns a claim by Ms Jennifer Kane, that on 6th March 2014 she was discriminated against in relation to her terms and conditions of employment by SMT Fund Services t/a SuMi Trust on the grounds of gender contrary to Section 6 (2)(a) of the Employment Equality Acts.
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 21st July 2014 under the Employment Equality Acts. On 15th September 2015, in accordance with her powers under section 75(4A) of the Acts, the Acting 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 and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 21st September 2015.
1.3 The respondent was asked to provide further information to the Tribunal which was furnished after the hearing and forwarded to the Complainant. Following an exchange of the Complainants observations on the Respondent’s documentation, the respondent mad a final submission to the Tribunal dated 15th December 2015.
1.4 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 COMPLAINANTS' SUBMISSION
2.1 The Complainant commenced employment with the Respondent on 7th March 2013 in the position of Funds Administrator NAV Department. The position was offered on a full time fixed term basis with a termination date of 6th March 2014.
2.2 In February 2014 the Complainant was offered an extension to her contract for a 2½ month period until 26th May 2014 to cover a member of staff who was due to return from maternity leave on that date.
2.3 The Complainant alleged that she was treated less favourably than three of her male colleagues in that:
a. one named male colleague who had started one month after her was offered a permanent position (Comparator A),
b. another named male colleague who had started a month after her was offered a longer extension period (of 8 months) than she was (Comparator B);
c. a female employee was recruited after the Complainant and provided with a permanent contract (Employee A).
2.4 The Complainant also alleged that the two male colleagues had been warned about their performance whereas this had never happened to her. As a consequence the Complainant contended that she had been treated less favourably than the named male employees and as such she had been subjected to discrimination.
2.5 In her written complaint the Complainant also submitted that:
a. she was discriminated on the pregnancy ground as she was four months pregnant at the time of this decision;
b. her manager had made comments to her during the course of her employment about the amount of women going on maternity leave as being “unbelievable”.
c. there was a history of male colleagues getting promotions over female colleagues.
2.6 The Complainant advised that she had progressed her complaints through the Respondent’s grievance and appeals procedure but the Respondent failed to find in her favour.
2.7 At the hearing the Complainant acknowledged that she had not advised the Respondent that she was pregnant at the time, and consequently confirmed that she was not progressing with a claim of discrimination due to her pregnancy.
2.8 The Complainant stated that she had sought clarification from her supervisor (AN) regarding her contract on 31st January 2014 (regarding an extension) but was advised by him at that time that he did not know anything about it. The Complaint was then advised on 5th February 2014 by her Manager (DC) that her contract was being extended until 23rd May 2014 to cover for a member of staff who was on maternity leave. This member of staff worked on another team. At this time the Complainant learned that one of her male colleagues (Comparator B), who had joined after her, and who worked on another team, was offered a 2 year contract to replace a member of staff who had parted on a 2 year career break but was now not returning. This vacancy was in fact on the Complainant’s team whereas the Complainant was being transferred to another team to have her contract extended for a shorter period. The Complainant asserted that her colleague (Comparator B) had less service than her. As such the Complainant contended that she should have been offered the position as she had more experience that Comparator B, and as the vacancy occurred on her team. The Complainant further contended that she was being moved to Comparator B’s team to provide the 2½ month cover whereas he was being moved to the her team on a 2 year contract. She also asked her manager about a female employee (Employee A) who had joined on a permanent contract and was recruited after the Complainant joined, and she contended that her manager advised her this was a mistake but could only be addressed if Employee A did anything big.
2.9 The Complainant stated that she progressed her complaint to HR on 6th February 2014. On 14th February 2014 the Complainant was advised that the decision to appoint Comparator B to the two year extension rather than her was made as her contract was not near its end in December 2013/January 2014 when the decision was being made to fill the vacancy. She was therefore not considered for the extension at that time as Comparator B’s contract would have ended before hers.
2.10 The Complainant advised that on 18th February 2014 Comparator A was offered an eight month contract. She understood this has been offered to him on 14th February 2014. At this time she was contesting the fact that she had been treated unfairly by being only given a 2½ month contract. She therefore advised the Respondent that she was not in a position to accept the extended contract offered to her until matters were clarified. The Complainant was advised that the Respondent would endeavour to resolve the issues so the Complainant could decide if she intended to take up the 2½ month extension.
2.11 Evidence presented by the Complainant indicated that she was never advised that her contract would be extended or made permanent. However in her evidence she advised the Tribunal she was of the view that as other colleagues’ contracts had been extended that she would be treated similarly. The Complainant further advised in her evidence that she received feedback from the Respondent on 20th February 2014 where she was advised that management believed there was no obligation to renew any contracts, that such decisions were made with regard to what was best for the teams, and furthermore that the Complainant’s manager had advised HR he had some concerns about the Complainant’s work (which was contended by the Complainant).
2.12 The Complainant met with the Respondent on 27th February 2014 and following this meeting the Complainant advised her employer that she was not accepting the 2½ month extension to her contract.
2.13 On 28th February 2014 the Complainant again met with the Respondent and presented her concerns regarding the fact that she was not being treated fairly in relation to the handling of contract extensions. The Complainant was not satisfied with the outcome of this meeting and submitted a formal grievance on 3rd March 2014. She subsequently completed her last day of work on 6th March 2014 having decided not to accept the 2½ month extension. Following a meeting with her manager the Complainant re-submitted her grievance on 7th March 2014, attended a grievance hearing on 20th March 2014. Following this meeting responses from a number of managers were sought by the Respondent, these responses being exchanged with the Complainant.
2.14 On 16th May 2014 the Complainant received an investigation report which did not uphold her grievance. She appealed this report on 26th May 2014 where following a review of matters by the Respondent she received a final response that indicated the decision of the grievance procedure was upheld and it was not found that the Complainant had been treated unfairly. The appeal conclusions were that the actions of the Respondent were fair and reasonable, and the decisions made were based on the demands of the business. The conclusions of the appeal also identified that whilst a manager had made comments about the number of women on maternity leave working with the Respondent, these comments had been taken out of context.
2.15 The Complaint did not accept the Respondent’s final decision and contended that she had been discriminated against when compared to her male colleagues in relation to being offered a shorter contract extension, and subsequently made her claim of discrimination to the Equality Tribunal.
3 RESPONDENT'S SUBMISSION
3.1 The Respondent denied that the Complainant was discriminated against in relation to its handling of the extension of contracts. The Respondent stated that it always wanted the Complainant to stay with the company.
3.2 In setting out its response the Respondent explained that since 2010, due to the financial crisis, and at the time of the Complainant’s appointment its recruitment policy was to appoint people on Fixed term Contracts (FTCs) of varying duration depending on the circumstances and needs of the business. As vacancies occurred across the business it filled them by offering a vacancy to the person’s who’s FTC was next due to expire. Extensions were offered on this basis irrespective of the duration of the extended contract. The Respondent referred to this as “taxi rank” where the next person due to leave was offered an extension if the opportunity was there. The Respondent contended that the decision to extend contracts was not based on gender or any other criteria once the employee was suitable. Generally employees on FTCs had their contracts extended, and this may occur a number of times. In general staff turnover was very low, indicating most staff were retained on this basis. If an employee received a shorter contract renewal it was likely they would be offered a further extension, and the duration of such extensions depended on the next available vacancy.
3.3 The Respondent advised that this was the recruitment process they operated since 2010, and this process remained up to 2013. The company had been acquired in late 2012, and from May 2013 it was decided to recruit on a permanent basis, except for specified purpose contracts. It was on that basis Employee A, a female employee, was recruited in June 2013 and offered a permanent contract. At this time the Complainant was on a FTC, and as no suitable permanent positions existed, the Complaint was not offered a permanent position. The respondent continued to offer further FTCs to staff who were on FTC’s as their contracts came to their end provided such positions were available. They viewed this as an opportunity to ensure they retained experience in the business.
3.4 The Respondent contended the Complainant was offered a further 2 ½ month FTC in February 2014 to commence on 7th March 2014 as a vaancy became available close to the end of her own FTC. The respondent advised that the Complainant’s contract was due to expire on 6th March 2014. It advised the sequence of appointments was as follows:
a. the Complainant joined on 7th March 2013 on a 12 month FTC
b. on 10th April 2013 Comparator A, a male, joined on a 12 month FTC
c. on 5th June 2013 Comparator B, a male, joined on a 3 month FTC
d. on 8th August 2013 a female joined on an 11 month FTC
e. on 9 September 2013 Comparator B was offered a further 3 month FTC as a vacancy occurred and he was due to finish his initial FTC at that time
f. on 2nd December 2013 Comparator B was offered a further16 day extension
g. on 27th December 2013 Comparator B was offered a further 2 year FTC as a vacancy occurred and he was due to finish his extended FTC at that time.
h. On 5th February 2014 the Complainant was offered a 2½ month extension to start on 7th March 2014 to fill in for a maternity related absence.
i. On 28th March 2014 Comparator A was offered a 9 month extension to his FTC to start in April 2014, this was subsequently extended as a permanent contract on 1st July 2014 due to an internal promotion
j. On 26th June 2014 the female member of staff was offered a 6 month extension to her FTC due to Comparator A being made permanent. This staff member was subsequently made permanent on 1st December 2014 due to internal transfer of another staff member
k. Comparator B was subsequently offered a permanent contract in March 2015 due to non-return of employee on carer’s leave.
3.5 In support of the above issues the Respondent provided documentation relating to contracts offered to the employees concerned verifying the above dates and sequence of events.
3.6 The Company therefore contended that the issuing of FTC’s and permanent contracts related to the Comparator’s identified by the Complainant was conducted in a fair and reasonable manner, and denied that discrimination has occurred. It also demonstrated that another female staff was treated in a similar fashion.
3.7 In response to the complaint that a manager made remarks about the number of female staff on maternity, the Respondent acknowledged that a manager would have made comments to the Complainant about the amount of women on maternity leave, but argued that his statement was made without malice. The Respondent provided information to the Tribunal which confirmed the manager would have mentioned there was a significant amount of maternity leave in the office considering the size of the office and stated this may have been taken out of context by the Complainant. The Respondent therefore contended this was not an act of discrimination.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The Complainant alleges that she was discriminated against on grounds of her gender in relation to how the Respondent dealt with her appointment to an extension of her fixed term contract, and in the appointment of employees to permanent positions as compared to her appointment. The Complainant alleged that the Respondent’s decisions favoured her male colleagues and as such it amounts to discrimination, and is contrary to the terms of the Employment Equality Acts.
4.2 The essential issue for decision by the Tribunal therefore, is whether the Respondent discriminated the Complainant on grounds of her gender in relation to Section 6 and contrary to Section 8 of the Employment Equality Acts 1998 to 2011. In reaching its decision the Tribunal has taken account of all submissions, oral and written, made to the Tribunal in the course of its investigation, including evidence presented at the hearing, and further submissions requested and made by the Respondent to clarify matters raised by the Complainant at the hearing.
4.3 Under Section 6 of the Act, the Tribunal must consider
6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which—
(i) exists,
(ii)existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned…
(2)As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a) that one is a woman and the other is aman (in this Act referred to as “the gender ground”)…
Having considered the evidence presented, the Tribunal finds that the Respondent operated a procedure where the extension to fixed term contracts was on the basis that the next person due to have their contract renewed was the one selected. The evidence provided demonstrated this was applied consistently over the time the Complainant raised her complaint, i.e. between December 2013 and April 2014. As part of this process the Respondent offered the Complainant a 2½ month extension to her FTC, but she decided not to accept this offer believing it was unfair on her, and discriminatory. The Respondent heard the Complainant’s grievance on this matter and also considered an appeal by the Complainant.
4.4 The Tribunal, whilst acknowledging that the extensions to contracts offered to the Complainant’s colleagues provided them with more favourable extensions, it also notes one of the Comparators (Comparator B), a male colleague, was offered extensions of a similar duration (of 3 months, and a 16 day extension). In addition a female Comparator was also offered an extension of longer duration, highlighting that the decision by the Respondent to provide more favourable contracts was not based on gender. On that basis the Tribunal is satisfied that the Respondent was applying its policy consistently across staff who were on fixed term contracts irrespective of gender. Therefore the Tribunal does not find that in accordance with Section 8 of the Acts, that discrimination on a gender ground has occurred in relation to:
a. access to employment, conditions of employment, and classification of posts; or
b. having rules or instructions which would result in discrimination against an employee or class of employees; or apply or operate a practice which results or would be likely to result in any such discrimination (Section 8).
It is clear both males and females benefitted from FTC extensions in a similar fashion. Whilst the application of the Taxi Rank procedure meant there were different lengths to contract extensions, this in itself does not amount to discrimination on gender grounds.
4.5 The Complainant also alleged that a male manager made remarks about female employees and maternity. Based on the evidence provided the Tribunal is satisfied that the male manager did make remarks about maternity to the Complaint and that the respondent investigated these remarks believing they were being quoted out of context. This Tribunal is satisfied that remarks commenting on maternity were made to the Complainant by her manager during her early stages of pregnancy, although she had not disclosed her situation to the manager and he could not have reasonably known that she was pregnant. The Tribunal also notes that the Complainant did not raise this as an issue until she was appealing the 2½ month extension to her contract.
With reference to the legislation, Section 6.1 states:
For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a)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) (in this Act referred to as the ‘discriminatory grounds’) which—…
(iv) is imputed to the person concerned,
Based on the requirement as set out in the legislation The Tribunal does not uphold that the Complainant was discriminated against by the remarks made as it was a general comment that in no way could be construed as amounting to less favourable treatment, particularly as the Tribunal has found the Complainant was not discriminated with regard to the extension of her contract. Similarly, as the manager was not aware that the Complainant was pregnant the comment made could not reasonably be concluded as imputing the Complainant.
5 DECISION OF THE EQUALITY OFFICER
5.1 Having considered the evidence presented I find the Complainant was not discriminated with regard the decisions made in relation to the extension of her fixed term contract, or in relation to comment made by her manager.
____________________
Gerry Rooney
Equality Officer
28th January 2016