DEC-E2016-137

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-137

PARTIES

Agnieszka Nowak

(Represented by Peter Nowak)

AND

Intesa Sanpaolo Life Limited

(Represented by Advokat Compliance Limited)

File reference: et-158913-ee-15 & et-159578-ee-15

Date of issue : 4th October 2016

HEADNOTES: Employment Equality Acts, Section 6, Discrimination on grounds of family status, race, ( promotion, training, conditions of employment, harassment, victimisation, equal pay)

1. Dispute

1. The complainant referred her claims to the Workplace Relations Commissions on the 18th August and 4th September, 2015 under the Employment Equality Acts. On 13th July, 2016, in accordance with his powers under section 16 of the Workplace relations Act 2015, the Director General of the workplace Relations Commission delegated the case to me, Niamh O’ Carroll Kelly, an Adjudication Officer for investigation, hearing and deciding the within claims. I proceeded to a hearing on 25th July, 2016.

2. 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.

Complainant’s Submissions

1. The complainant commenced her employment with the respondent company in April, 2006. She had experience in finance prior to commencing her employment with the respondent. Her experience included bookkeeping, accounting and financial reporting. She has a M.A. in economics from Warsaw University and a Post Graduate Diploma in Accounting and Finance from Warsaw school of economics.

2. The complainant commenced her
role with the respondent as a Trainee Management Accountant. Her contract of employment was silent on the issue of ACCA qualification or timeframe for completion of those exams. The complainant states that she was not contractually obliged to do the ACCA exams. She felt that to do the ACCA exams would merely be a repetition of her previous studies and had little or no relevance to her daily tasks. Furthermore, she felt that the exams do not verify potential of an individual but merely demonstrate ones exam techniques and theoretical knowledge.

3. In 2014 a team leader left the company. That team leader had ACCA qualifications. Two Italians were employed. It is not known to the complainant whether they had ACCA qualifications or not. Then an Irish lady “employee 1” was employed. The complainant helped her by essentially training her in. She wasn’t as qualified as the complainant. Employee 1, after only a few months in the position was promoted to Team leader/Up-line. The complainant alleges that she was overlooked for the promotion because she is polish.

4. In relation to training, the complainant alleges that she did not receive sufficient or relevant training which could have helped her in her day to day tasks. The finance director did ask her about her ACCA exams. She did register but only got two exemptions. She expected more. She passed one exams. She had to do 14 exams. She told the respondent that she didn’t want to do the exams as it was just repetition. She didn’t do them.

5. She was offered a course in 2012 in Time Management but it never happened. Employee 1 was offered a course in people management which was not offered to the complainant. She alleges that it was not offered to her as she was polish and a single mother and Employee 1 was the Financial Director’s favourite.

6. In relation to the conditions of employment, she was not allowed to participate in the respondent’s flexi time arrangements. That prevented her from taking time off in lieu of the overtime which could have translated in time off or paid leave. She alleges that the conditions in relation to the flexi time arrangements are silent on whether or not it is applicable to part time workers and therefore it should have been made available to her. Her problems began in 2011. She worked four hours per day and found this was not enough to get the work she needed to do, done. She raised a grievance. Her grievance was dealt with and the outcome of same was made known to her in October, 2011.This was around time the complainant began to get ill. She was very stressed and couldn’t cope with her work load. Her colleagues were not very nice to her.

7. She alleges that she was afforded the same breaks as her Irish colleagues and she only received a bonus is 2008 and 2009.Other employees who travelled to Italy or from Italy to Ireland had their flights and accommodation paid for. She did not. Also she was not afforded the same annual leave as other. Employee 1 got seven weeks leave and she only had 6 weeks in the same comparable year.

8. The complainant alleges that she was subjected to Bullying and Harassment whilst employed by the respondent. Her child was ill in 2009. He had a very high temperature and was vomiting. She called an ambulance but was informed that with those symptoms it was better to stay at home with the child. She couldn’t come into work because she had nobody to mind her son and she didn’t want to leave him when he was so ill. The respondent classified her absence as “unauthorised”. Another employee had the same illness on the same day, she went to the hospital. The claimant doesn’t know if she was paid or not or had any holiday entitlements to use. She did have sick certificates for her son which are submitted into evidence and were given to the respondent at the material time. The respondent wrote to the complainant on the 11th November stating “I have spoken to ... regarding your two days unapproved days of absence due to the illness of your baby. In this situation if you felt you wanted to be at home with ... we would have expected you to use some of your holiday entitlements to cover the days you were out. Even though you have no holiday entitlement left it is unacceptable that you do not come into work. Notwithstanding that this is the first time this has happened we are however prepared to allow you take one day as “ force majeure” and the” other day will be unpaid. She did get paid for one day.

9. In March, 2015 an e-mail was sent to all employees. The complainant saw it the next day. The office layout was being changed. She was very surprised and nobody had put her on notice of the change. She was only given 2 or 3 hours to pack up her stuff and move desk. Her new desk was close to the TMS machine and the entrance and a secretary was directly in front of her. Her new desk was not a good place. She knew very quickly that it wasn’t going to work for her. She couldn’t concentrate. It was too noisy. She had tears in her eyes with the frustration. She spoke to Employee 1 who called the Financial Director. He came and asked what the issue was and the complainant told him. He said that someone had to sit there and it was better have someone on 4 hours a day than 8 hours. He also said that if her performance drops it could be justified due the position of the desk. There was also a large TV on the wall in front of her. The images were flashing and it was very distracting. She asked an IT person about it and was told that Employee 2 was in charge of the TV. He turned it off for her. The Financial director came in later to talk to the IT person and he then in turn came to talk to the complainant. He said the TV must be left on at all times. It was a management decision. He said that TVs are on in many places of work, banks, pubs etc. She was angry and said “ this is not a pub”. He asked her to write and set out her concerns. 30.03.15 she wrote to the Financial Director setting out her concerns and she received a reply on the 31st. The Financial Director said she could move her PC position. The lighting was also an issue, too bright. She asked if she could move to another desk. She did move but it was beside the photocopier and it was too noisy for her. On the 01.04.15 an assessment was organised for her desk. 03.04.15 she became ill, she was dizzy and felt sick. By the 06.04.15 she was having palpitation and was having difficulty breathing. 09.04.15 the assessor came to assess her desk and to do an eye test. The Assessor stated to the complainant that the TV would drive her crazy. She was also advised by the assessor to have a professional eye examination. She felt very unwell this day and had to go to the doctor. Her appointment was for 2.30pm on the 13.04.15. On the 10.04.15 she called Employee 1 to report that she was ill. She had to leave a message. The doctor informed her that she was having a “nervous” reaction. On the 30.04.15 she went to see an Irish doctor who also diagnosed a “ stress”. 28.04.15 she came back from sick leave. 29.04.15 she became unwell and was very dizzy again. People were talking around her, she couldn’t stand it, she couldn’t concentrate. It made her dizzy. She went to the kitchen where she was told by another employee that she should find another job because her employer was doing everything they could to get rid of her. She immediately requested a meeting with Employee 1. At that meeting she was given the Dr. F’s report which stated that she had a non work related condition that should be treated and that would prevent her from attending work. She was asked to go home. She remained out on sick leave for some time. On the 12.05.15 the respondent wrote to her asking her to attend with Dr. F again on the 18.05.15. She attended for that appointment. Following that Dr. F reported that her previous acute illness had resolved. There was no evidence of any mental health issues and her treating psychiatrist had not prescribed any medication for her. He certified her fit to work. However, her psychiatrist certified her unfit to work. She was very stressed over being forced to work at her new desk. Whilst she was on sick leave the company bombarded her with letters and e-mails. This only added to her stress and anxiety. The complainant was so upset by Dr. F’s report that she informed the respondent that she was reporting him to the medical council and that she found his independence questionable. She had a nervous breakdown because of all of this. She refused to return to work and was then subjected to a disciplinary procedure. On the 04.08.15 she received a formal final written warning because she refused to attend a meeting with Employee 2. She appealed the decision. The matter escalated and on the 20.08.15 she was dismissed. She appealed that decision. The appeal was unsuccessful.

3. Respondent’s submissions

1. The only complaint that is not statute barred is the issue in relation to the desk. The complainant did have a number of complaints against the company going back as far as 2009. Her specific complaints are as follows:

· 2009, not being paid for her one day unauthorised leave

· 2009 being sidelined and/or overlooked.

· 2011, flexitime not being made available to her.

· 2012, not being asked to do a People Management Course

· 2014, being over looked for promotion

· 2015, the desk issue.

The complainant conceded under cross examination that the only complaint she has that is within the six month time limit is that in relation to her desk. The complainant did not put forward an argument legal or otherwise as to why the adjudicator should consider all her other complainants going back as far as 2009. Therefore the adjudicator only has jurisdiction to consider the 2015 complaint in relation to her desk.

2. The respondent did move an entire section of the workforce to a different position. Their new positions ie in relation to who they sat beside, in front of etc were exactly the same. They literally move down closer to the front of the office space. Previously they were closer to the back of the room. The difference amount to three desk spaces. The complainant did e-mail the respondent on the 30th March, 2015 outlining her concerns in relation to the space. The respondent acted promptly in relation to the complaint and employed an Ergonomic Workstation Assessment. That was carried out on the 09.04.15. All of the complainant concerns were outlined to the assessor. Her finding were as follows:

“ I failed to notice any significant volume of people coming and going or any disturbance for the TMS machine. The noise level was low considering I arrived at 8.45, the busiest time as most staff were arriving into work. No phone calls during the assessment and I was informed that calls were limited over the day. I would recommend relocating the TV out of sight of the complainant, as this was causing a distraction, and stated her right eye was tired, muscle tightness and strained. Monitor lower 3cm for direct line of vision and moved closer to a comfortable viewing distance approx arms length. No adjustment of the chair. Explained that the entire building is very bright due to all the glass that is surrounding the office and very difficult to control. A VDU eye test was carried out following her work place station assessment. Failed: far vision test”

The respondent sent her for her eye test. The complainant then submitted a medical report from a Dr. O’ C. which recommended that “she be placed in an environment where she is able to concentrate on her work”. The respondent wrote to Dr. O’ C on the 15.04.15 setting out the factual situation on the ground and requested that he liaise with Dr. F in relation to the matter.

The respondent also arranged for an occupational health assessment to be carried out. That was done on the 15th April, 2015. It stated “In my opinion the employer has made all reasonable accommodations and therefore it is not going to be possible to reposition her because of her individual perception of her work environment”

The respondent sent the complainant for two medical assessments. The complainant’s allegation that her complaint was not been taken seriously was simply not true. The respondent engaged two separate independent reports to assess the working environment. They sent her for two separate medical assessments. All of the staff worked in the same open plan environment. She was in the same room before and after the move as were all of the other staff. She was subjected to the same conditions as everyone else in the office. Her employment ended due to a disciplinary matter and she was afforded and exercised all of her rights during that process.

4. DECISION.

1. Discrimination on the grounds of Family Status.

Section 77 (5)(a) states:

Subject to paragraph (b) a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimization to which the case relater or as the case maybe, the date of the most recent occurrence.

Section 6 (1) states:

“(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”)

The complainant alleges that back in 2009 when her son was ill she was discriminated against by the respondent due to the fact that she was a single mother. She was forced to take time off to care for her ill son. She had no other childcare arrangements in place to cover such an event. The respondent stated that the claim stated that this part of the claim is statute barred.

I find that this part of the complainant complain is statute barred. It is an isolate occurrence which took place in 2009. She did not lodge her complaint form until August, 2015 well outside the six months time limit.

2. Discrimination on the grounds of Race

Section 6 (1) states:

“(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

1. In 2011 the complainant stated having raised the issue about Flexi - time she was informed that it was not available to her as she worked part time. The complainant has made the case that she was denied the option of flexi-time not because she worked part-time but because she is Polish. Other than the raising of the issue in 2011 the complainant seems to have accepted that it was not available to part-time workers and didn’t approach the subject again with the respondent.

I find that this part of the complainant’s complaint is statute barred. The issue first occurred in 2011. The complainant seemed to accept thereafter that because she only worked four hours a day that the option of flexi-time was not available to her. She made to further complaints about it until she lodged her claim in August, 2015 well outside the six months time limit.

2. In 2012 the complainant felt she was discriminated against because she was not afforded the opportunity to go on a ‘people management’ training course. One of her Irish colleagues was afforded this opportunity. She also felt that despite being offered a Time Management Course in 2012 it never happened because she is Polish.

I find that this part of the complainant’s complaint is statute barred. The issues in relation to her lack of opportunity to up skill both occurred in 2012. There were two specific isolated occurrences. The complainant did not lodge her claim in relation to these matters until August, 2015 and therefore are statute barred.

3. The claimant stated that she was over looked for promotion in 2014. An Irish colleague of hers got the position. She alleges that she was not considered for promotion due to the fact that she is Polish. Again this is an isolated incident which occurred in 2014. The complainant did not lodge her claim in relation to this complaint until 2015 and therefore I find that it is statute barred.

4. The issue in relation to the complainant’s desk did continue up and until her employment was terminated in August, 2015 and I find that I do have jurisdiction to hear this part of the complaint.

The complainant’s work station was originally situated towards the back of the office. In order to facilitate the arrival of eight new staff member the office had to be reorganised. All of her colleagues, who worked as part of a team, were moved some 40 feet up to the top of the office. They all maintained the same working positions in relation to one and another. The complainant did lodge a complainant in relation to her new work station. I find that the employer took this complaint seriously and took several courses of action to try and elevate the complainants concerns. She moved to another desk but had issues with that desk due to noise. Within days of the complaint they had an Ergonomic study carried out and shortly after that An Occupational Health Assessment. They had her assessed by an independent medical doctor, they wrote to her doctor setting out the factual situation and invited him to liaise with their doctor. The complainant made some very serious allegations about the some of the witnesses in the case and in relation to the independence of some of the experts called in to assess her workstation. I could find nothing either in her evidence or in any of the documentation submitted to substantiate the allegations. The complainant did not identify a comparator against whom she was treated less favourably. I find that all of the staff in the office were treated in the same way in relation to the new work station positioning. I find that the issues the complainant had were due to her own personal sensitivities and not due to anything the respondent did or didn’t do. I therefore find that this part of the complainant’s case fails due to the fact that she has failed to establish a prima facia case of discrimination on the grounds of race.

3. Harassment

Harassment is defined bysection 14A (7) (i) of the Acts which states:

“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

The complainant alleges that she was harassed by the respondent when they refused to move her to a new position. She specifically told her employer that she couldn’t concentrate with the noise of people clocking in and out, the TV on the wall in front of her, employees talking to each other while she was working, the brightness of the office and fact that she was stationed beside the secretaries. She alleges that the respondent failure to take this complaint seriously amounts to harassment. She did not link the alleged harassment to her race or any other statutory defined category of discrimination As stated previously, I find that the respondent did everything a responsible employer should do to address the complainant’s concerns and in doing so demonstrated that they did take the complainant’s complaint very seriously. Just because she didn’t get the outcome she was hoping for and was forced to remain at her assigned workstation in the circumstances of this case, does not amount to harassment of her. I find that the complainant had failed to establish a prima facia case of harassment.

4. Equal pay.

No evidence was adduced in relation to his matter.

5. Victimisation.

No evidence was adduced in relation to this matter.

6. FINDINGS & CONCLUSIONS

I have to decide if the complainant was the subject of discrimination pursuant to Section 6 (2) (c) and (h), Section 8 ( b) (c) and (d) and Section 14A and Section 74 (2) In reaching a decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

I am satisfied that all of the claims lodged (save for discrimination on the grounds of race in relation to the desk issue and the harassment claim) are statute barred. I am satisfied that the claim in relation to discrimination on the grounds of race does not come within the scope of the act and that there was no evidence to support the complainant’s complaint that she was discriminated against by the respondent based on the fact that she is Polish. Furthermore, I am satisfied that the claim in relation to Harassment does not come within the scope of the act and that there was no evidence to support the complainant’s complaint that she was harassed based on the fact that she is Polish.

7. DECISION

I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:

· The complainant failed to establish a prima facia case of discrimination.

· The complainant has failed to established a prima facia case of victimisation

· The complainant has failed to establish a prima facia case of harassment.

· The complaint fails.

____________________

Niamh O’Carroll Kelly B.L.

Adjudication Officer/Equality Officer

4th October 2016