ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003378

Complaints for Resolution:

Date of Adjudication Hearing: 09/02/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Adjudicators Note

In addition to the complaints identified above this decision also addresses the complaint against the respondent (under a different trading name but accepted and agreed at the hearing by the current respondent) which was referred to the former Equality Tribunal.

The reference number of that case is et-155454-ee-15 and all the complaints in that reference are addressed as part of the general review of the case below and my decision addresses all issues raised under all of the complaints.

The submission contained eleven separate complaints as follows; unequal pay, victimisation, down grading, working from home issue, harassment and bullying, exclusion, limited access to education and training, loss of ‘Product Owner’ role, lack of access to promotion, miscellaneous less favourable treatment, and lost opportunities.

I have fully considered all of the complaints for the purposes of my Findings, Conclusions and Decision.

Complainant’s Submission and Presentation:

There are three complaints; one relates to discrimination against the complainant on grounds of his family status, one that he did not receive a statement of his Terms of Employment and finally a claim for equal pay.

He says that following a company reorganisation his role was down graded and restrictions were placed on his activities. In particular he lost the supervisory aspects of his position.

In respect of his complaint of discrimination on grounds of family status he had been facilitated with the option to work from home but was then told that he could no longer do so.

The complainant had made a complaint to the Workplace Relation Commission against the respondent under The Employment Equality Acts and says he was further discriminated against and then unfairly dismissed by reason of redundancy (on 27 November 2015).

Section 74 of The Employment Equality Acts defines such a penalisation as victimisation.

He also claims that he was denied the same pay as a number of named comparators on the basis of his race and/or family status. He says he was engaged on ‘like work’ with the comparators. He says that his direct report took over both his functions as Client Service Supervisor and Product Manager/Product Owner.

During initial team meetings as well as weekly meetings with his direct manager he produced a development plan for the service including an advanced ticket-tracking dashboard for a client. He says the company’s efforts were aimed at reducing his role within the team, downgrading him to an analyst position again and hindering his further professional development.

His second role as a ‘Product Owner’ was taken away from him and was not going to be returned. A number of meetings took place to seek to resolve this but failed to do so.

One of a Product Owner’s tasks is to manage production release process and was something he used to do in the past. Now, this responsibility was taken over a colleague. And the company attempted to put him into an analyst role again.

Unfortunately, despite his opposition he had to spend most of his time performing analyst tasks and this situation lasted for many months.

For example, in an email of 24 June 2015 he was given a detailed plan in relation to taking on new clients by the team with the same resources which would have meant a change into the analyst role.

He says then that his Client Service Supervisor role was taken over by a colleague and he expressed his opposition to these developments

Around the same time he had a performance review meeting with his manager. During the meeting he raised a number of areas that required improvement and gave specific examples. On Monday 23rd he received a letter from COO that his role would probably be redundant.

On Wednesday 25th he had a further consultation meeting. Meeting notes were sent to him on Friday 27th at 9:12 am. A few hours later I was told to leave the company, his computer was suddenly blocked and the company restricted him bidding goodbye to his co-workers. He treats this situation as unfair dismissal and victimisation.

Regarding the equal pay complaint, the complainant named a number of his former co-workers in connection with a claim for equal pay and this was the subject of additional submissions by the parties after the hearing.

The complainant identified four comparators and says that he used to ‘manage’ them. Two were employed as Senior Software Developers, one a senior member of the Quality Assurance team, and a Software Developer who no longer works for the company.

While he was paid €30,000 they were paid around €50,000. He says that these individuals were in the ‘same’ position as him and were part of the team he used to lead.

He did not specify the nature of the discrimination and it is taken to be race and/or family status.

Respondent’s Submission and Presentation:

The background to the case is as follows

The complainant’s immediate manager went on maternity leave in January 2013. The complainant and a colleague ‘acted up’ in her position as Client Service Supervisors (CSS) for the duration of her absence and were paid an allowance for doing so.

She returned to work following her leave in November 2013 but the acting up roles continued, although this resulted in a structure which was unique to that team.

In July 2014 the respondent decided on a reorganisation which included a decision to terminate the CSS position in which the complainant continued to act. This was to take effect in November 2014.

Subsequently the complainant and his co-worker in the former CSS role were offered the opportunity to transfer to another team as a ‘Data Analyst which the complainant accepted.

This was due to take effect in February 2015 but was delayed fro a number of reasons and this was fully explained to the complainant. A problem then arose about the complainant’s job title. As he would no longer have a supervisory role that terms would be removed but it was agreed that he would be known as a ‘Senior’ Client Service Analyst as this reflected the level of responsibility.

The complainant wished to keep ‘Supervisory’ in his title and this was refused. It was noted that the complainant was unhappy about this and a meeting was arranged to discuss it.

That meeting took place on February 27^th and also covered the continuing delay in transferring the complainant to his new team.

The complainant then underwent his annual performance review on March 3^rd which he refused to sign on the basis that it discriminated against him. A further meeting was arranged to discuss the charge of discrimination. In the event this meeting addressed more technical aspects of the performance review, such as the appropriate core competencies etc and that the proposed transfer to the new team was not ready for implementation. He asked for time to consider the move.

Subsequently he requested that he move on the basis of having a promotional position and when this was denied he sought a transfer elsewhere to a Products/projects role. Only the transfer initially proposed remained available at that stage.

The complainant was not satisfied with this and was advised on April 10^th regarding the making of a formal grievance.

He referred the matter to the Equality Tribunal on April 15^th.

The respondent kept the role intended for the complainant open to allow him to make a decision but eventually filled it in July 2015.

When he complainant’s manager returned from her second period of maternity leave in November the matter of the company restructuring came back on the agenda.

A meeting was held with the complainant on November 25^th at which it was noted that he had remained in a supervisory role and had declined the Data Analyst position and the purpose of the meeting was to see whether some other redeployment could be identified.

He said he would not be interested in working as Client Services Analyst and would only move if it was in a more senior position. The respondent had no such roles available. The conversation moved on to consider redundancy.

Following a further meeting at which the complainant was again offered the Data Analyst position he declined and was made redundant.

The respondent submitted that no prima facie case of discrimination had been made out by the complainant on the ground s of family status. The restriction on him working from home arose because he broke the conditions on which it is made available in relation to prior notice.

It says that the redundancy was not an act of penalisation but was the outcome of the process described above. The complainant had declined the offer of alternative employment and a bona fide redundancy situation existed.

In its subsequent submission the respondent says that there is no basis for the equal pay claim in that the comparators are not performing like work.

The complainant was employed as a Client Service Supervisor with secondary duties as a Product Analyst and requires no formal qualifications. Product Manager was used interchangeably with Product Analyst. The complainant’s work was at a low skill level. While one of the comparators was also known as a Product Manager this required skills at a much higher level, for which the complainant indicated at interview he did not have the requisite skills.

The complainant applied for a position as a Product Manager in January 2015 but did not have the required two to three years product management and other relevant experience.

The main comparator was BM and the complainant says he was performing like work to her. The respondent says that her skills are at a much higher level; developing ‘project roadmaps’, undertaking market analysis, and strategic direction for products. The complainant had acknowledged at the hearing that he did not have experience of product management validation

Other comparators require formal computer science qualifications and additional training and technical experience. To the extent that there was a narrowing of the responsibility gap between the complainant and the comparators this was done on a short term, part time basis only (a maximum of one day per week) and ended following the reorganisation of the teams in 2014.

The respondent says that any disparity in relation to pay is based on objective factors wholly unconnected with the Complainant’s race and/or family status. In addition, the Section 29(5) of the Acts, allow unequivocally for a difference in remuneration which is not based on one of the nine discriminatory grounds. There is no discriminatory link whatsoever between the Complainant’s race and/or family status and the Company’s alleged treatment of the Complainant.

Regarding the complaint under the Terms of Employment (Information) Act the complainant was given a statement of his terms on June 17^th 2011 and a copy was submitted in evidence. It says further that any changes required by the Act to be notified were communicated to him.

Findings and Conclusions

The complainant made an extremely confusing presentation in which it was difficult to identify the precise substance of his complaint. While it contained a very substantial amount of detail most of it was not related to the complaints he made. The hearing was briefly adjourned with the agreement of both parties to allow him the opportunity to crystallise his presentation, but to no great avail.

He attributes the alleged discrimination to either the race or family status grounds.

I can see no evidence anywhere in the evidence that race played a part in any aspect of what was going on in the case. The respondent appears to have significant numbers of employees of the same nationality as the complainant, indeed the person appointed to act up with him was.

He might be thought to have had an advantage in actually being transferred to the proposed new team and as he was the same nationality as the complainant no issue arises.

His case in relation to the family status ground appears to derive from the restrictions place on him on working from home, which is even flimsier. The respondent submitted that this was because he breached the terms of the scheme permitting working from home.

The case has the appearance of one in which the grievances and the facts were retro-fitted to suit the purposes of a complaint under the Employment Equality Act.

Turning to the events of March-April 2015 one sees two strands.

The first relates to the ongoing but unresolved issue of the transfer of the complainant to his new department. Related to this is a dispute about his job title and his attempts to retain some element of a supervisory role in it. No issue of discrimination is as yet visible.

Then, secondly he has his annual performance review in the course of which a disagreement emerges about the correct core competencies for the purposes of the assessment of his performance. The complainant wrote to his manager stating;

‘Unfortunately this document discriminates me [sic] and I cannot sign it in such a form’

I have read the performance review report and while it is far from glowing I could see nothing there which indicated anything of a discriminatory nature. In the course of the follow up meeting he indicated that he was not sure if he wished to move to the Configuration team. Six days after being advised about raising an internal grievance he referred the matter to the Equality Tribunal.

The validity of any grievance the complainant may have had is not in issue here. It is whether it can be said to fit within the parameters required under equality legislation and the requirement to establish a prima facie case.

The respondent relied on the case Margetts v Graham Anthony and Company EDA 038 in which the Labour Court outlined the evidential burden to be met as follows;

‘The mere fact that the complainant falls within the discriminatory grounds under the Act is not sufficient in itself to establish a case of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.’

In his submission the complainant was wont to refer to other would be comparators as not having ‘family status’, by which it is assumed he meant not the same family status as the complainant as everyone as some ‘family status’ or other.

However, this is not the test set out above and he has failed to establish a prima facie case.

Likewise, the chain of events which led to his redundancy was well underway before he made any complaint under the Employment Equality Acts. More importantly, he was offered a number of opportunities to interrupt that chain at various stages which he declined to avail of, and in the circumstances somewhat unreasonably.

Accordingly I find that the termination of his employment by reason of redundancy was not an act of penalisation as prohibited by the Act.

I also find that his complaint under the Terms of Employment (Information) Act 1994 is not well-founded. He was provided with a statement which complies with the requirements of the Act.

Regarding the equal pay claim I invited the parties to make further detailed written submissions on the comparators following the hearing and they did so. The arguments are summarised above.

The complainant appeared to rely on either the race and family status grounds, and the only argument advanced was that the comparators were of ‘different family status’ to him.

It is well settled law that simply being a member of a different one of the categories to a comparator will not be sufficient to ground a complaint. Where the difference is accounted for by factors other than family status or race, for example then no case of discrimination arises.

The respondent referred to Dyflin Publications Limited v Ivana Spasic (EDA0823) in which the Appellant, a native of the Republic of Serbia, claimed that the respondent discriminated against her on the grounds of race by not paying her the same rate of pay as her chosen comparator.

The Labour Court stated that

“where as in the present case, it is contended that the impugned difference in pay is grounded in factors other than the nationality or ethnic origin of either the Appellant or the comparators, there is an onus on the Respondent to make out that assertion. If the Respondent succeeds in so doing any inference of discrimination which might otherwise arise is negated”.

The Labour Court found that;

‘the difference in pay as between the Appellant and her comparators is grounded on considerations which are wholly unrelated to the nationality and ethnic origin of either the Appellant or the comparators’,

concluding that

“on that basis the Court must hold that the Respondent has made out a defence under Section 29(5) of the Act”.

Having reviewed the detailed submissions off the parties on this specific claim I find that the complainant has failed to establish a prima facie case of discrimination on any of the grounds.

His equal pay claim is likewise not well-founded.

I accept the submission and evidence of the respondent that ‘ disparity in relation to pay is based on objective factors wholly unconnected with the Complainant’s race and/or family status. In addition, the Section 29(5) of the Acts, allow unequivocally for a difference in remuneration which is not based on one of the nine discriminatory grounds. There is no discriminatory link whatsoever between the Complainant’s race and/or family status and the Company’s alleged treatment of the Complainant.’

Accordingly for the reasons set out above, this and his other complaints therefore fail.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I do not uphold complaint CA-00004867-001 that the complainant was penalised for making a complaint under the Employment Equality Act 1977 and it is dismissed.

I do not uphold complaint CA-00004880-001 that the complainant was not given a current statement of his terms of employment as required by the Terms of Employment (Information) Act 1994 and it is dismissed.

As noted above these findings also address et-155454-ee-15 which complaint is not upheld as the complainant failed to establish a prima facie case.

Complaint CA-00004881-001 was withdrawn at the hearing.

Dated:   21 April 2017