EMPLOYMENT EQUALITY ACTS
DECISION NO: DEC-E2017-031
PARTIES
A Manager
(Represented by Eugene F Collins Solicitors)
AND
A Logistics Company
(Represented by Purdy Fitzgerald Solicitors)
File reference: et -159795-ee-15
Date of issue: 5 May 2017
HEADNOTES: Employment Equality Acts Sections 6 & 8, - Gender, Getting a Job, Promotion, Conditions of Employment, Victimisation.
1: Background
This dispute concerns a claim by Ms. S that she was discriminated against on the grounds of Gender resulting in discrimination in getting a job, promotion, conditions of employment and victimisation by employer Respondent X in their Logistics business.
The Complainant referred a claim to the Director of the Equality Tribunal on the 23nd September 2015 under the Employment Equality Acts.
On the 25th January 2017, in accordance with the powers under section 75 of the Employment Equality Acts, the Director General delegated the claim to me, Michael McEntee, Adjudication / Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced.
Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to an initial hearing on the 28th February 2017.
2: Summary of the Complainant’s Submission
2:1 The Complainant is employed as HR Manager in the Respondent business. She is a member of the Management Team reporting directly to the General Manager Ireland.
She took Maternity Leave (A) from June 2014 to May 2015.
She commenced a second period of Maternity Leave (B) in October 2015. She had informed the Respondent of her second pregnancy prior to returning from Maternity Leave (A). On return to work from Maternity Leave (A) in May 2015 she discovered that the Respondent was recruiting a new Head of HR. The new position would act as Line Manager to the Complainant; thus changing her reporting relationship to the General Manager. This upset her greatly as, she, the existing HR Manager, had not been informed and it appeared the new role was designed to undertake her existing role. She believed this had been done as a direct result of her informing the Respondent of her plans for a second Maternity Leave (B) in October 2015.
She corresponded, detailing her Grievance, on the 18th June 2015 and expressing her concerns with the Respondent. The Respondent replied on the 29th June 2015 reassuring her that her concerns were unwarranted. The new Corporate Head of HR (based in the UK) would rewrite the job description for the position and she, the Complainant, was free to apply. Her position would remain unaltered.
To the complaint’s further distress, she was informed that the position of Head of HR had been filed and a new Manager, Mr AX, had been appointed from the 4th August 2015.
On Mr AX’s appointment it was clear that the Complainant’s role was being undermined. Examples were quoted.
She lodged a formal Grievance in September 2015 and following consultation with her GP went on sick leave until the commencement of Maternity Leave B in October 2015.
The Complainant did not trust that she would return to her exact unaltered position following the conclusion of Maternity Leave B.
The Complainant acknowledged that the Respondent had now removed both the Corporate HR Director in the UK and the new appointee Mr. AX in Ireland.
Never the less the Complainant maintained that her treatment by the Respondent following her return from Maternity Leave A and in the period prior to Maternity Leave B was discriminatory on the grounds stated -. Gender, Getting a Job, Promotion, Conditions of Employment. She had also suffered Victimisation.
3: Summary of the Respondent’s Submission.
3:1 The Respondent operates a Transport and Logistics company in Ireland. It is part of a wider UK based Group. The Complainant was employed in January 2013 as HR Manager.
She went on Maternity Leave in June 2014 returning in May 2015.
On her return from Leave in May 2015 she became aware that the Respondent was recruiting for new Head of Operational HR for Ireland.
The Complainant raised a Grievance on the 18th June 2015. This was replied to and the job description for the new position was altered. She was afforded the opportunity to apply. She was assured that her existing role would not change.
The Complainant wrote again on the 25th August and raised a formal grievance on the 23rd September 2015.
The Respondent replied on the 23rd September and, via their Solicitors, on the 25th September 2015. The Respondent felt that all the Complainant’s concerns were addressed satisfactorily in these letters. Her existing positon was guaranteed and both the Corporate Head of HR in the UK and Mr. AX in Ireland were no longer in the employment of the Respondent in September 2015. Oral evidence was given in relation to Corporate issues in the UK that had a major impact on the Irish operations and decision making regarding appointments/policy issues in the Irish subsidiary.
The Respondent was prepared to concede that, while denied, there was a possibility that the appointment of Mr AX might be seen as discriminatory. However, all the issues involved had been resolved speedily. The Complainant had suffered no loss and/detriment. The Respondent Solicitors letter of the 25th September 2015 was a comprehensive reply and addressed all the Complainant’s concerns.
The Respondent gave detailed arguments to each of the specific complaints set out in the Complainant’s claim form.
Accordingly, there was no basis for this Discrimination claim.
4: Findings and Conclusions:
This claim comprises five elements
1. Discrimination on the Grounds of Gender
2. Victimisation contrary to Section 74(2) of the Employment Equality Acts
3. Decimation in Conditions of Employment
4. Discrimination in getting a Job
5. Discrimination in getting a promotion.
4:1 Legal issues / Burden of Proof. The factual basis required.
Considering the background factors to this case, particularly the UK and Ireland Corporate issues outlined in Respondent evidence, the Burden of Proof requirements to sustain a Discrimination claim are crucial.
It is now well accepted law that the first requirement for a successful claim lies in establishing a prima facie case.
In this regard, I consider that it is appropriate for me to firstly consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”.
The Labour Court continued
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”
Furthermore, the Labour Court in EDA038 of August 2003 stated that
“The mere fact the Complaint falls within one of the discriminatory grounds laid down in the Act is not sufficient in itself to establish a claim of discrimination. The complaint must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”
Accordingly, in the case in hand, the key and primary issue is for the Complainant to establish facts that clearly indicate that acts of discrimination occurred.
4:2 Legal Issues / Maternity considerations
When Maternity is additionally an issue the law is also now quite clear cut.
It is useful also to quote from Bolger, Bruton and Kimber, Irish Employment Equality law - 2012 - Roundhall Press here.
Pregnancy-related dismissal
Section 4-144
“It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy. In effect for an employer to dismiss a woman during her pregnancy, regardless of the reason for that dismissal, they must have duly substantiated reasons for the dismissal given to the employee in writing. Where an employer fails to do that, it is likely that the dismissal will be found to have been unlawful even though no such requirement exists in relation to any other dismissal outside of the pregnancy situation.”
It is accepted that no considerations of Dismissal arose in this case but the quoted extract highlights the high legal bar that applies to the Pregnancy ground in Employment Equality matters.
Accordingly, an additional key question in the case at hand is whether acts of discrimination on the Gender grounds specifically related to Pregnancy and allied Victimisation took place?
4:3 Consideration of the evidence presented
Considerable oral and written evidence was given by the Parties.
The key witnesses for the Respondent were the General Manager and the Operations Director.
4:4 General Observations:
Since the incidents referenced in the claim (mostly in 2015) the business in Ireland had been the subject of a TUPE transfer to another Logistics provider.
However, in reference to the Respondent Company, as it then was in 2015, it was clear that the business in Ireland had been very closely integrated with the UK parent.
The Operations Director gave evidence of operating closely with UK Head Office, of attending regular meetings there and generally clearing most decisions in Ireland with the relevant UK departments before implementation.
It was in this context that the appointment of Mr AC - the Corporate Head of HR had to be seen. He had been appointed in the UK at main Board level and had initiated a range of operational and policy changes in the HR Operation throughout the organisation. In this context, a number of sub Board appointments in HR appeared to have been made across the Organisation. The new Corporate Head was appointing “his team”. The analogy was that of a Professional Football Manager and his coaching team. It was clear that the new Corporate Head had little or no knowledge of the Irish operation. His focus appeared to be almost exclusively on the UK.
The Irish appointment of Mr AX was clearly in this context.
The career of the Corporate Head in the UK was short lived and he was out of office by September 2015. To continue the Football Manager analogy most of the sub ordinate team went with him including Mr. AX in Ireland.
The witnesses for the Respondent made it clear in good evidence that the Irish Management team had absolutely no input into either the arrival or departure of the Corporate Director in the UK and little influence regrading Mr AX’s appointment in Ireland.
4:5 The Gender Discrimination claim
From a purely Gender Discrimination point of view even allowing for the fact that the first complaint and Grievances of the Complainant had been handled clumsily I found it hard to see where active pre-mediated acts of Discrimination on the Gender grounds had taken place. Put in plain English, Corporate Multi National internal politics had been taking place and the Ireland operation did not feature.
As worst the appointment of Mr.AX could be seen as clumsyand open to inferences of Discrimination against the Complainant. The rapid rewriting of the Job Description in late July 2015 and the alleged opening of the Recruitment competition to the Complainant were not helpful to the Respondent’s case. The evidence of the Complainant as regards the actual behaviour of Mr. AX while in the position in August 20125 was equally unhelpful.
However, in the broader context these were venial issues rapidly addressed by the comprehensive Respondent correspondence which issued in September 2015. The Purdy Fitzgerald letter of the 25th September 2015 was absolutely clear on all issues and the Complainant could have no grounds for further complaint on any of her discrimination Grounds.
The Respondent letter of the 23rd September from the Operations Director had offered to meet the Complainant’s legal bill, to the value of €3,000, as a goodwill gesture.
In summary and referencing again the Labour Court in EDA038
“The mere fact the Complaint falls within one of the discriminatory grounds laid down in the Act is not sufficient in itself to establish a claim of discrimination. The complaint must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”
The Complainant was at work during the Summer months of 2015. The relationship with Mr. AX was obviously going to be difficult for her. I felt that irrespective of her gender or family status this was always going to be the case in the Corporate scenario described.
Her fears regarding her second Maternity leave were initially understandable. However, the Respondent actions and letters on late September were more than sufficient to set these fears at ease.
Accordingly, I could not find strong enough grounds to justify a claim, on the balance of probabilities described above, for Discrimination on the Gender Grounds.
I dismiss this claim.
4:6 The Discrimination on Conditions of Employment claim
I could not find strong evidence to substantiate this claim. The Complainant was afforded good conditions regarding her first Maternity Leave and was offered the same regarding her second leave.
I set this claim aside as not well founded.
4:7 Getting a Job and being denied Promotion claims.
Here the difficulties lie in the manner in which Mr. AX was recruited and the timing of the recruitment competition. However as stated above regarding the primary Discrimination claim I felt that the required link to her gender, as opposed to being the Irish based incumbent, was not strong enough. The evidence pointed to the fact that the process was happening at UK Head Office Board level and the Irish incumbent, regardless of gender, was not a consideration.
I set these claims aside as not well founded.
4:8 The Victimisation Claim
Section 74 (2) of the Employment Equality Acts defines victimisation as
“Dismissal or other adverse treatment as a reaction to inter alia a complaint of discrimination made by the employee to the employer”
The Complainant was not dismissed and remains on sick leave to the date of the oral Hearing. The Respondent letters of late September clearly remove any basis for this claim.
I set it aside as not well founded.
4:9 Rebuttal Actions of the Respondent
In strict legal terms the Respondents actions and correspondence in September 2015, referenced above more than adequately meet the required standards.
4:10 Final Summary Conclusions
The Complainant was inadvertently embroiled, largely as a bystander in Ireland, in fall out from Corporate policies at main UK Board level in the Summer of 2015. The Actions of the Respondent Irish management to rapidly rectify issues in September 2015 were comprehensive and meet all standards of “Rebuttal”.
Accordingly, the claim of Discrimination and the allied claims of Victimisation, Conditions of Employment, Not Getting a Job and Promotion fail.
5: DECISION
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.
I have investigated the Complaints as set out in the claim and make the following decisions in accordance with section 79 of the Acts that:
5:1 Discrimination on the Grounds of Gender
This claim fails as a prima facie case as required by the Employment Equality Acts has not been established.
5:2 Victimisation contrary to Section 74(2) of the Employment Equality Acts
This claim fails a prima facie case as required by the Employment Equality Acts has not been established.
5:3 Discrimination in Conditions of Employment
This claim fails a prima facie case as required by the Employment Equality Acts has not been established.
5:4 Discrimination in getting a Job
This claim fails a prima facie case as required by the Employment Equality Acts has not been established.
5:5 Discrimination in getting a promotion.
This claim fails a prima facie case as required by the Employment Equality Acts has not been established.
__________________
Michael McEntee
Equality / Adjudication Officer
5 May 2017