DEC-E2016-128

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2016-128

PARTIES

A Complainant

and

An Employment Service

(represented by Peninsula Business Services (Ireland) Limited)

File References: et-158750-ee-15

Date of Issue: 19th September, 2016

1. Dispute

1.1 This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of gender, family status, religion and age contrary to sections 6(2)(a), 6(2)(c), 6(2)(e) and 6(2)(f) of the Employment Equality Acts in terms of access to employment, promotion and training. The complainant also claims that she was subjected to harassment contrary to section 14A of the Acts and victimisation contrary to section 74 of the Acts.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 18th August, 2015. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 19th February, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the complainant on 27th November, 2015 and from the respondent on 17th December, 2015. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 25th May, 2016.

2.2 The complainant confirmed at the oral hearing that she did not wish to proceed with the claim of discrimination in relation to promotion to the position which became available in November, 2014. Accordingly, this element of the claim was withdrawn.

2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.

3. Summary of the Complainant's case

3.1 The complainant was employed by the respondent as a Job Coach on a fixed term specified purpose contract from 13th October, 2014 to 26th June, 2015 when her employment was terminated. She was employed on a part-time basis and worked 18 hours per week. The complainant’s role as a Job Coach involved assisting people with disabilities to obtain and secure employment in the open labour market.

3.2 The complainant’s contract was due for review on 26th June, 2015 and she became aware in early June that that two temporary maternity cover Job Coach positions were due to become available in July, 2015. The complainant claims that she was not informed by the respondent about these positions in the appropriate manner and only became aware of the vacancies during the course of a “catch up” meeting with her Co-ordinator (Supervisor), Ms. A, on 11th June, 2015. The complainant submitted that Ms. A was severely critical of her performance during this meeting and she was totally taken aback by this criticism as this was the first occasion that any dissatisfaction or negative feedback had been conveyed to her by the respondent about the standard of her work.

3.3 The complainant submitted that she was informed for the first time by Ms. A at this meeting that her contract would be coming to an end on 26th June, 2015 as the person whose hours she had been employed to cover was returning to work full-time. The complainant claims that Ms. A informed her that there were two maternity cover positions being advertised and that it was open to her to apply for these positions. However, the complainant claims that Ms. A then proceeded to make comments regarding the difficulties that she would encounter in relation to childcare arrangements during the summer months and informed her that she would be wasting her time by applying for these positions. The complainant submitted that despite the negative comments from Ms. A about her performance and family status she decided to proceed with her application for these positions and following much inconvenience she submitted her application the following day (on 12th June, 2015) which was the deadline for submission of applications.

3.4 The complainant submitted that she subsequently made a formal complaint to the Company Board of Directors in relation to the manner of her treatment by the Co-ordinator, Ms. A, at the meeting on 11th June, 2015. The complainant submitted that the Board failed to properly investigate or take appropriate action in relation to her complaint and she attributes this failure on the part of the Board to the fact she is a practicing Catholic and some members of the Board are not. The complainant submitted that she had been promised by the Board that a meeting would be convened to investigate her complaint against Ms. A but this meeting did not take place. The complainant submitted that Ms. A’s attitude towards her deteriorated after she had made the complaint and when it became apparent that the Board were not going to take any action in relation to her complaint she decided to avail of outstanding annual leave and finish her employment a week early on 18th June, 2015.

3.5 The complainant was called for interview by the respondent on 1st July, 2015 in relation to the two maternity cover Job Coach positions. However, this application was unsuccessful following this interview and the complainant claims she was subjected to discrimination on the grounds of age as the two successful candidates were in their mid-twenties. The complainant submitted that she was not afforded any feedback by the Board or any reasons for her failure to be selected for these positions. The complainant submitted that the interview process was fundamentally flawed especially in light of the fact that the Coordinator, Ms. A, was a member of the interview board. The complainant claims that her failure to be selected for these positions also amounted to victimisation on the basis of her having made a grievance complaint against the Coordinator, Ms. A.

3.6 The complainant also claims that she was subjected to discrimination by the respondent with regards to access to training. The complainant claims that she did not receive manual handling training or have a risk assessment conducted during the period of her employment.

3.7 The complainant also claims that she was subjected to harassment contrary to section 14A of the Employment Equality Acts during her period of employment with the respondent and referred to a number of incidents including the following:

· On 15th April, 2015, the complainant was prevented by Ms. A from submitting a review piece on her employment as a Job Coach to external auditors due to the length of her service;

· On 25th May, 2015, the complainant was openly criticised by Ms. A in front of other work colleagues for a trivial matter.

· The Coordinator, Ms. A, made derogatory remarks to the complainant about her performance during the course of a “catch-up” meeting on 11th June, 2015. It is also claimed that Ms. A adopted an unpleasant tone of voice throughout this meeting.

· During the period from mid-April to 18th June, 2015 Ms. A ignored the complainant and refused to answer her telephone calls. The complainant claims that this was deliberate and its purpose was to make her working conditions unsatisfactory so that she would have to leave.

· On 15th June, 2015, the complainant claims that she was subjected to intimidation and bullying by Ms. A and was openly criticised by her in front of other work colleagues.

· On 15th July, 2015, the complainant claims that Ms. A refused to provide her with interview feedback and that she refused to provide a written reference.

3.8 In summary, the complainant claims that she was subjected to discrimination, harassment and victimisation by the respondent on the grounds of gender, age, family status and religion contrary to the Employment Equality Acts.

4. Summary of the Respondent’s case

4.1 The respondent is funded by the Department of Social Protection and offers a free confidential service that assists people with disabilities, mental health difficulty or those recovering from illness to access and maintain employment in the locality. The complainant commenced employment with the respondent on 13th October, 2014 as a part-time Job Coach on a specified purpose contract. This contract was reviewed on 31st December, 2014 and the complainant was subsequently issued with a second contract on 1st January, 2015 which was due to expire on 25th June, 2015.

4.2 The respondent submitted that the Coordinator, Ms. A, held a meeting with the complainant on 11th June, 2015 in which a number of issues were addressed including the complainant’s performance regarding the quality of internal administration, her non-compliance with the lone worker policy, her maintenance of client files and the cessation of her contract. The Coordinator was aware that the complainant’s contract was coming to an end and wanted to ensure that all of her files were updated and correct to facilitate a handover. The respondent denies that the Coordinator adopted an unpleasant tone or made any derogatory remarks about the complainant during the course of this meeting. The respondent submitted that the purpose of the meeting was to address concerns that had arisen regarding aspects of the complainant’s performance and the pending expiry of her contract. The complainant was informed by Ms. A at this meeting that the individual whose hours she had been employed to cover was returning to work in a full time capacity. It was communicated verbally to the complainant at this meeting that her contract would end on 26th June, 2015 and a letter confirming the expiry of her contract was sent to her on 12th June, 2015.

4.3 The respondent submitted that two temporary maternity cover Job Coach positions were due to become available in July, 2015 and these vacancies were advertised in the local newspaper and the DSP Employment Services Page. A copy of the newspaper advertisement was in circulation throughout the office and the respondent was of the belief that the vacancies were common knowledge amongst all members of staff including the complainant. The respondent submitted that an element of the complainant’s role involved searching the local papers and the internet for jobs and therefore, the respondent believed that the complainant was aware of the advertisements. The respondent submitted that the complainant was also reminded of the deadline verbally by the Coordinator, Ms. A, on 11th June, 2015 and encouraged to apply. The respondent denies that Ms. A attempted to dissuade the complainant from applying for these positions during this meeting.

4.4 The complainant submitted an application for the vacant positions before the deadline of 12th June, 2015 and an evaluation of her application was conducted on 19th June, 2015. The complainant was invited to attend an interview for these positions which took place on 1st July, 2015. However, she was informed by letter dated 6th July, 2015 that she had been unsuccessful in her application. The respondent submitted that the two candidates who were successful in this competition were selected ahead of the complainant purely on the basis of their higher performance at interview. The respondent submitted that one of the successful candidates was older than the complainant and therefore, denies that the reason the complainant was not selected was in any way attributable to her age.

4.5 The respondent also refutes the complainant’s allegation that she was unsuccessful in her application for these positions on the grounds of her family status and denies that the Coordinator, Ms. A, made the alleged remarks regarding her childcare arrangements at the meeting on 11th June, 2015. The respondent also denies that the complainant was subjected to victimisation in terms of her application for these positions for having made a complaint against the Coordinator, Ms. A, prior to the selection process. The respondent submitted that the complainant’s grievance complaint against Ms. A was fully investigated by the Board in accordance with its grievance procedures and was not upheld on the basis that the Coordinator had not acted inappropriately.

4.6 The respondent also refutes the complainant’s claim of discriminatory treatment on the grounds of gender, age, family status and/or religion in relation to access to training. The respondent submitted that the complainant was allowed to attend training relevant to her employment on numerous occasions during her period of employment.

4.7 The respondent also denies that the complainant was subjected to harassment by the Coordinator, Ms. A, during her period of employment. The respondent refutes the claims of harassment by the complainant on the following dates:

· The respondent denies that the complainant was prevented from submitting a review piece on her employment as a job coach on 15th April, 2015 to external auditors. The respondent submitted that the complainant was sharing a case load with another job coach who had over 6 years’ experience and it was agreed that she and not the complainant would submit a review on behalf of the shared caseload.

· The respondent denies that the Coordinator, Ms. A, behaved in an aggressive manner towards the complainant on 25th May, 2015.

· The respondent denies that the Coordinator, Ms. A, ignored the complainant and would not answer her telephone calls during the period from mid-April to 18th June, 2015.

· The respondent denies that the Coordinator, Ms. A, subjected the complainant to harassment during the course of their meeting on 11th June, 2015.

· The respondent denies that the Coordinator, Ms. A, invaded the complainant’s personal space or made critical remarks about her in from of work colleagues on 15th June, 2015.

· The respondent refutes the allegation that the Coordinator, Ms. A, refused to give the complainant interview feedback and a written reference on 15th July, 2015. The respondent claims that the Coordinator’s diary illustrates that she was out of the country on this date.

4.8 In summary, the respondent denies that the complainant was subjected to discrimination and harassment on the grounds of gender, age, family status and/or religion or that she was subjected to victimisation contrary to the Employment Equality Acts.

5. Conclusions of the Equality Officer

5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters[1] where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule". In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

5.2 Section 6(1) of the Employment Equality Acts provide that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows: – “as between any 2 persons, ... that one is a woman and the other is a man", section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not”, section 6(2)(e) of the Acts defines the discriminatory ground of religion as follows:-“as between any 2 persons, …. that one has a different belief from the other, or that one has a religious belief and the other has not” andsection 6(2)(f) of the Acts defines the discriminatory ground of age as follows:- “as between any 2 persons, ….. that they are of different ages”.

5.3 Accordingly, the issues for decision in this case are (i) whether or not the respondent subjected the complainant to discriminatory treatment on the grounds of her gender, family status, age and/or religion contrary to the Acts in relation to access to employment and training (ii) whether or not the respondent subjected the complainant to harassment contrary to section 14A of the Acts and (iii) whether or not the respondent subjected the complainant to victimisation contrary to section 74(2) of the Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

Discriminatory Treatment in relation to Access to Employment

5.4 The complainant has claimed that she was subjected to discrimination by the respondent on the grounds of gender, family status, age and/or religion in relation to her application for the two maternity cover positions that were advertised by the respondent in June, 2015. The first element of this particular claim relates to the allegations by the complainant that the respondent failed to notify her about these positions in the appropriate manner and that the Coordinator, Ms. A, tried to dissuade her from applying for these positions during the course of the meeting on 11th June, 2015. Having regard to the evidence adduced, I am satisfied that the complainant was not treated less favourably than any of the other members of staff in relation to the manner in which the notification or advertisement of the vacancies for these positions was communicated. It is clear from the evidence adduced that these vacancies were advertised in the local newspaper and on the D/Social Protection Employment Services Page. I accept the respondent’s evidence that the respondent was genuinely of the belief that all relevant staff, including the complainant, were aware of the advertisement of these vacancies. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the ground of gender, family status and/or religion in relation to this element of her complaint.

5.5 There was a complete conflict in the evidence of the parties regarding the issue of whether or not the Coordinator, Ms. A, attempted to dissuade and deter the complainant from applying for these positions during the meeting that took place between them on 11th June, 2015. The complainant, on the one hand, claims that Ms. A tried to dissuade her from applying for the positions on the basis that she had children and would find it difficult to cope with childcare arrangements during the summer months. The respondent, on the other hand, totally refutes the complainant’s contention and claims that Ms. A not only reminded her about these vacancies but also actively encouraged her to apply during the course of the meeting on 11th June, 2016. In considering this issue, I have found the evidence of Ms. A to be more compelling and I accept her evidence regarding the nature of the discussions that took place during this meeting. I have also taken into account the respondent’s undisputed evidence that the complainant had been afforded a certain amount of flexibility by Ms. A in relation to her hours of work to facilitate the dropping and collection of her children to and from school. In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the ground of gender, family status and/or religion in relation to this element of her complaint.

5.6 The next element of the complaint relates to the complainant’s claim that she was subjected to discriminatory treatment in relation to the manner in which the selection competition was conducted for the two maternity cover vacancies. In considering this issue, I have taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill[2] where the Labour Court held that "Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result". Thus, it is a principle that has consistently been followed by both Equality Officers and the Labour Court that it is not the Equality Officer’s/Adjudication Officer’s role to examine whether the most meritorious candidate was successful in a selection process. Rather, the Adjudication Officer’s role is to examine and decide whether or not the selection process is tainted by discrimination i.e. in this case on the gender, family status, age and or/religious grounds.

5.7 Having regard to the evidence adduced, I am satisfied that the interview board that conducted the selection process was properly constituted and that they conducted their business in accordance with accepted good practice. I have taken note of the fact that the interview board, which comprised of a three person panel, included an external solicitor and representative from the Department of Social Protection. I am satisfied that neither of these members of the interview panel would have had any prior knowledge of the complainant or any issues that arose during the period of her employment on the fixed-term contract. Furthermore, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that there was any element of unfairness or irregularity in terms of the manner in which the selection criteria was applied to the complainant's application during the interview process that was conducted in relation to the competitive process for the two maternity cover positions. I have had sight of the individual interview assessment/scoring sheets that were used by the three members of the interview board to assess the complainant and the successful candidates. I am satisfied from this documentation that there is no evidence to suggest that the assessment of the complainant’s application and marking of her interview was in any way tainted by unlawful discrimination on the grounds claimed.

5.8 I have also found the evidence of Ms. A to be very credible and consistent regarding the manner in which the selection processes was conducted. I accept her evidence that the complainant’s gender, family status, age and/or religion were not factors which were taken into consideration when assessing her application for these positions. I fully accept the respondent's evidence that the reason why the complainant was not successful in this competition was because of the fact that the two successful candidates were deemed to be more suitably qualified for the position than the other candidates (including the complainant) that presented for interview. Having regard to the totality of the evidence adduced, I find that the complainant has failed to raise a prima facie case of discrimination on the grounds of gender, family status, age and/or religion in terms of the manner in which the selection process was conducted in relation to the two maternity cover positions.

Discriminatory Treatment in relation to Training

5.9 The next element of the complaint relates to the complainant’s claim that she was subjected to discrimination by the respondent in relation to access to training during her period of employment. The complainant claims that she did not receive manual handling training or have a risk assessment conducted during the period of her employment. I accept the respondent’s evidence that the complainant was allowed to attend training relevant to her employment on numerous occasions during her period of employment. The complainant has not adduced any evidence from which I could reasonably conclude that she was treated leas favourably on the grounds of gender, family status, age and/or religion in terms of access to training. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of her complaint.

Harassment

5.10 The complainant has also claimed that she was subjected to harassment and bullying on the grounds of gender, family status, age and religion by the Coordinator, Ms. A, on a number of occasions during her period of employment with the respondent. For a complaint of harassment under the Employment Equality Acts to be made out, the complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground. Harassment is defined by section 14A (7) of the Acts which states:

“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. 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”.

5.11 In considering this issue, I note that alleged harassment relates to the interaction that took place between the complainant and Ms. A during the course of a number of encounters/meetings in the period from April, 2015 to July, 2015. There is a complete conflict in the evidence of the parties in relation to the issue as to whether or not the alleged incidents of harassment that have been described by the complainant actually occurred. The complainant, on the one hand, has claimed that she was subjected to intimidating behaviour and derogatory remarks at the hands of Ms. A on a number of separate occasions, during this period. The respondent, on the other hand, has denied that the complainant was subjected to any such treatment or behaviour by Ms. A. I heard detailed evidence from both parties in relation to all of these incidents and, on balance, I have found the evidence of Ms. A to be more compelling and credible in relation to these incidents.

5.12 In coming to this conclusion, I have found a number of inconsistencies in the complainant’s evidence in relation to a number of the alleged incidents. In particular, I have had regard to the evidence adduced from the parties in relation to the meeting that took place between the complainant and Ms. A on 11th June, 2015. It is important to note that it was accepted that this meeting was convened at the behest of Ms. A during which she raised a number of concerns with the complainant regarding certain aspects of her performance including the quality of internal administration, her maintenance of client files and her non-compliance with the lone worker policy. I accept Ms. A’s evidence that this meeting was convened to address the legitimate concerns held by the respondent in relation to these issues. In this regard, I note that the complainant accepted that she had been in breach of the lone worker policy and had apologised to Ms. A for this at the meeting on 11th June, 2015. In assessing the credibility of the complainant’s evidence on this issue, I find it significant that she gave oral evidence at the hearing that Ms. A. had “lambasted her with derogatory remarks” and “said I was dreadful and useless” during the meeting on 11th June, 2015. However, the written record which she compiled following this incident (and which was submitted in evidence by her) does not make any reference to such language or remarks being used during the course of this meeting. I find it implausible that the complainant would not have recorded the use of such language or remarks in her written note of this meeting if in fact such language had been used by Ms. A.

5.13 On a related issue, the complainant has claimed that the respondent failed to properly investigate the complaint that she made to the Company Board of Directors arising from the alleged harassment by Ms. A on 11th June, 2016. Having regard to the evidence adduced, I am satisfied that the complainant’s grievance was fully investigated by the Board in compliance with its own internal grievance procedures and that Ms. A was cleared of any wrongdoing or inappropriate behaviour following this investigation.

5.14 Having regard to the evidence adduced, I am satisfied that the complainant has not presented any evidence from which I could reasonably conclude that she was subjected to harassment contrary to Section 14A of the Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 14A of the Acts.

Victimisation

5.15 The final element of the complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimisation occurs where dismissal or other 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) …….

(c) ….

(d)

(e)

(f) an employee having opposed by lawful means an act that is unlawful under this Act….

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

5.16 In Tom Barrett v Department of Defence[3] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a “protected act”, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. In the instant case I must decide, in the first instance, whether or not the complainant took action that could be regarded as a “protected act”.

5.17 In considering this issue, I note that it was not in dispute that the complainant made a complaint to the Company Board of Directors in relation to the alleged harassment by Ms. A during the course of the meeting on 11th June, 2015. I therefore find that this fact satisfies the requirement outlined in (i) above. The adverse treatment contended by the complainant in the present case relates to the refusal by the respondent to select her for one of the temporary maternity cover positions on the basis of the complaint she made against the Coordinator, Ms. A. Having regard to the evidence adduced, I am not satisfied that the complainant has adduced any evidence from which it could be reasonably concluded that she has been subjected to victimisation within the meaning of the Acts in relation to alleged adverse treatment claimed.

5.18 I have already found that the complainant was not subjected to discriminatory treatment in relation to the manner in which the selection process was conducted regarding her application for these positions. As indicated earlier in my decision, I am satisfied that the selection process was conducted in a fair and transparent manner and that there was no evidence from which I could reasonably conclude that the assessment of the complainant’s application and marking of her interview was in any way tainted by unlawful discrimination. In the circumstances, I find that the complainant has failed to establish facts from which it could be inferred that she was subjected to victimisation within the meaning of section 74(2) of the Acts in the present case.

6. Decision

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find as that:

i. The complainant has failed to establish a prima facie case of discrimination on the grounds of gender, family status, age or religion contrary to section of the Acts in relation to access to employment and training.

ii. The complainant has failed to establish a prima facie case of harassment on the grounds of race contrary to section 14A of the Acts.

iii. The complainant has failed to establish a prima case of victimisation contrary to section 74(2) of the Acts.

Accordingly, I find in favour of the respondent in this case.

______________

Enda Murphy

Equality Officer/Adjudication Officer

19th September, 2016

Footnotes

[1] EDA0917

[2] EDA0817

[3] EDA1017