FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : O' NEILL & CO SOLICITORS (REPRESENTED BY SARAH WALSH B.L.) - AND - MICHELLE GILBOURNE DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision No DEC-E/2015/155.
BACKGROUND:
2. The Appellant appealed the Decision of the Adjudication Officer to the Labour Court on the 21 January 2016. A Labour Court hearing took place on the 30 March 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Michelle Gilbourne (the Appellant) against the decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2015 (the Acts). The Adjudication Officer held that the Appellant’s former Employer, O’Neill and Company Solicitors (the Respondent) had not discriminated against the Worker on the grounds of gender, civil status and/or family status in terms of Section 6(2) of the Acts and contrary to section 8 of the Acts in relation to the termination of her employment. In addition the Adjudication Officer held that the Appellant was not victimised by the Respondent contrary to Section 74(2) of the Acts.
The Appellant’s complaint was presented to the Equality Tribunal on 22nd October 2012 and the decision under appeal was issued on 11thDecember 2015.
Background
The Appellant was employed by the Respondent as a Solicitor from August 2005 until the termination of her employment in August 2012.
The Appellant clarified to the Court at the hearing that her contentions of discrimination under the Acts within the cognisable period are as follows:
- 1.That she was discriminatorily dismissed by the Respondent on grounds of gender, civil and family status having regard to Section 8 of the Acts.
- 2.That she suffered harassment within the meaning of the Acts. The acts of harassment identified at the hearing by the Appellant were:
- •repeated requests from the Respondent to the Appellant to work part-time.
- • a visit by the Respondent’s principal (Mr O’N) to the Appellant’s office in May 2012 during which Mr O’N outlined the difficulties faced by the business and stated that if the Appellant did not do something ‘something would be done to her’.
3. That she was victimised within the meaning of the Acts. The acts of victimisation identified by the Appellant at the hearing were:
- • One or more files were taken off the Appellant’s desk in the cognisable period of her complaint.
- • The Appellant’s pay was stopped for a period in July 2012.
- • The Respondent encouraged the Appellant to apply for a job with another firm in mid-2012.
- • The Respondent repeatedly refused to facilitate the Appellant with parental leave.
The Appellant has submitted to the Court that she was the subject of discriminatory treatment, was victimised and harassed. She further submitted that she had been the subject of a series of discriminatory acts in the period from 2009 until the termination of her employment on 29thAugust 2012. She contends that the events prior to the cognisable period of her complaint which is 23rdApril 2012 until 29thAugust 2012 should be viewed as a continuum of discriminatory events culminating in dismissal on 29thAugust 2012. The Respondent submits that events outside of the cognisable period for the within complaint are out of time.
Section 77(5)(a) of the Acts provides: -
- (a) 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 victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
Section 77(6A) provides: -
For the purposes of this section —
- (a) discrimination or victimisation occurs—
- (i) if the act constituting it extends over a period, at the end of the period,
- (a) discrimination or victimisation occurs—
The Court, in Cork County VEC v Hurley (EDA24/2011) in considering a contention that events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. The Court in that case decided
- ‘that if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences where found not to have involved victimisation the complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the act as the most recent occurrences would have been outside the time limit.’
The Court therefore, consistent with its approach in Cork County VEC v Hurley (EDA 24/2011), must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before it can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period.
The Court in the within matter therefore decided to consider first the events submitted by the Appellant to have occurred between the dates of 23rdApril 2012 and 29thAugust 2012.
Summary of the Appellant’s position
The Appellant has made complaints as regards discriminatory dismissal, harassment and victimisation and she submitted to the Court as set out in summary below.
Dismissal
The Appellant contends that she was made redundant because of her gender, civil status and because of her family status. She submitted to the Court that objective criteria were not applied to her redundancy. She submitted that others could have been considered for redundancy but that no or inadequate steps were taken in that regard. She also contended that meaningful alternatives were not properly explored and that when she suggested that options short of dismissal be considered, this suggestion was not taken on board or considered by the Respondent.
The Appellant acknowledged that the level of conveyancing work in the practice had declined but contended that she could have been allocated a greater degree of litigation work which would have increased her workload. She contended to the Court that the Respondent employed a male solicitor, Mr PB, to carry out litigation work and that work could have been re-allocated from the male solicitor to her.
The Appellant contended that the Respondent had, in 2009, referred to her husband being a civil servant and she contended that this clear and unequivocal identification of her civil status as a married woman was a basis for the Respondent treating her less favourably in the workplace.
The Appellant contended that she was increasingly isolated in the practice by way of a concerted campaign by Mr O’N to deprive her of work of real quality and effectively to drive her from the firm. She submitted that the Respondent’s treatment of Mr PB was in marked contrast to his treatment of her and that Mr PB was not considered for redundancy.
The Appellant contended that Mr PB was afforded continuing access to litigation work in the practice while the level of conveyancing work, which constituted the majority of her work, declined significantly over a period of years.
Harassment
The Appellant contended that she was repeatedly asked to take a pay cut or to work part time and that these requests arose from the fact that she was married to a civil servant and had children. She contended that such requests were made during the cognisable period of the within complaint and constituted harassment within the meaning of the Acts at Section 14(A)(7)(a).
The Appellant also submitted that Mr O’N had visited her office in May 2012 and had outlined the difficulties being faced by the business. The Appellant submitted that the Respondent had stated on that occasion that if she did not do something ‘something would be done to her’. The Appellant submitted that this visit to her office and the events which occurred constituted harassment within the meaning of the Acts.
Victimisation
The Appellant submitted that she was victimised by the Respondent within the meaning of the Act at section 74(2) as a result of her bringing her concerns to Mr O’N on 11thNovember 2011 that she was being discriminated against on grounds of gender and family status.
She submitted to the Court at the hearing that the acts of victimisation which occurred during the cognisable period were (a) the removal by the Respondent of one or more files from her desk during the cognisable period, (b) the stopping of her pay for a period in July 2012, (c) a continuing refusal to facilitate her with parental leave during the cognisable period for the within compliant, and (d) an encouragement by Mr O’N in June 2012 to her to apply for a job with another firm in the area.
She submitted that these alleged events / occurrences / actions took place in response to her having raised in correspondence with Mr O’N in November 2011 that she was being discriminated against on grounds of her gender and family status.
Summary position of the Respondent.
The Respondent submitted that the Appellant was primarily engaged in conveyancing work throughout her period of employment. The Respondent submitted that the business suffered very serious and substantial decline throughout the period from 2008 to 2012 as a reflection of the economic crisis facing the country and the construction industry in particular. The Respondent submitted that the level of fee income generated by the Appellant declined substantially throughout the period through no fault of hers and that ultimately the fee income generated was incapable of supporting her salary and related costs.
The Respondent submitted that the practice was structured on the basis that he took responsibility for the bulk of litigation work and that the Appellant took responsibility for the bulk of conveyancing work. The Respondent submitted that the litigation work of the practice was carried out primarily by the practice principal and that he had recruited another solicitor, initially as a trainee and then as a solicitor, on a significantly lower rate of pay than the Appellant, Mr PB, to assist in this area of work. The Respondent submitted that he was responsible for litigation work and that Mr PB developed an expertise which was vital to the operation of this side of the business.
Dismissal
The Respondent contended that for some considerable period of time Mr O’N had sought to encourage the Appellant to alter her working hours or pay in response to the crisis being suffered by the business as a result of the catastrophic decline in conveyancing business. The Respondent submitted that the Appellant had at all times declined to alter her arrangements. The Respondent submitted that the Appellant had raised the issue of parental leave in November 2011but that she had not raised the matter further notwithstanding the continuing engagement between the parties to address the Respondent’s request to the Appellant to co-operate with a working arrangement which would align her salary and related costs to fee income generated by the conveyancing element of the business. The Respondent submitted that he had been seeking that the Appellant would make an alteration to her working hours or salary / pay arrangements which would produce a sustainable conveyancing element of the business. The Respondent submitted that no option existed to allocate litigation work to the Appellant because he depended on that work himself and he had been responsible for the development and growth of that aspect of the business for a number of years. He submitted that Mr PB was appointed to assist in the litigation work and that the arrangement for the division of responsibilities as between conveyancing and litigation was the functional basis for the operation of the practice.
The Respondent submitted that the redundancy of the Appellant took place in August 2012 as a result of the catastrophic decline in conveyancing work in the practice and the fact that the position of a solicitor focussed principally on conveyancing work was no longer sustainable. The Respondent submitted that repeated efforts to find alternative solutions thorough pay adjustment or alteration of working hours were unsuccessful over a long period of time.
Harassment
The Respondent acknowledged that Mr O’N had repeatedly sought to secure agreement with the Appellant to an adjustment in pay arrangements or working arrangements generally with the Appellant so as to reduce the cost of delivering conveyancing work and to align that cost more closely with the capacity of the business to fund the work. The Respondent submitted that these engagements were solely focussed on the sustainability of the business and that the fact that the Appellant was primarily responsible for conveyancing work meant that she was the person whose arrangements were the focus of attention. The Respondent rejected that the engagement as regards the pay or working arrangements were related in any way to the gender, family or civil status of the Appellant.
The Respondent acknowledged that he had such an engagement in the office of the Appellant in May 2012 but rejected the assertion that he had stated that if the Appellant did not do something ‘something would be done to her’. He acknowledged that he did at that time emphasis to the Appellant the unsustainable position of the business and set out that the situation could not obtain indefinitely.
Victimisation
The Respondent refuted the Appellant’s contention that any significant number of files were removed from the desk of the Appellant. He acknowledged that a file relating to the daughter of a long standing client who had always been dealt with by Mr O’N was, with the knowledge of the Appellant, re-assigned to Mr O’N.
The Respondent submitted that there was an interruption in the pay of the Appellant in July 2012 and submitted that this interruption was related to an alleged failure by the Appellant to properly notify the Respondent of a sick absence in the manner required of her. The Respondent’s adviser, Mr H, supported this contention in evidence and confirmed that as soon as contact was made with the Appellant the matter was resolved by reference to the sick pay arrangements in place and her pay was adjusted accordingly. The Respondent rejected a contention that this event was connected to any matter other than the operation of the Respondent’s sick pay scheme.
The Respondent acknowledged that the Appellant had sought parental leave in late 2011. The Respondent submitted that the Appellant had not followed up her initial application in this regard at any time thereafter and contended, including in evidence, that the Appellant did not raise the issue of parental leave at any time during the cognisable period. The Respondent asserted that the matter of parental leave was not the subject of any substantive engagement between the parties and that the reason that parental leave arrangements were not put in place was because of the fact that the Respondent was seeking to put in place arrangements appropriate to the crisis facing the business rather than to any attempt to victimise the Appellant as a result of her alleging discrimination in November 2011.
The Law
The Appellant contends that she has been discriminated against on grounds of her gender, civil status and family status. The Acts make unlawful discrimination as between persons on any of the protected grounds. The Acts at Section 6(1) and Section 6(2) in relevant part provide as follows:
- 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where-
- (a) a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”)…….
- (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
- (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
- (b) that they are of different civil status (in this Act referred to as “the civil status ground”),
- (c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
- 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where-
The Acts make unlawful the victimisation of a person in consequence of his or her advancing specified positions or actions under the Acts. The Acts at Section 75(2) in relevant part provide as follows:
- (2) For the purposes of this Part, victimisation occurs where the 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…….
(7) (a) In this section—
- (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
- (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
- (b)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.
- (c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”.
Discussion and conclusions
The Court notes that the acts identified to the Court as constituting victimisation of the Appellant by the Respondent do not appear to be or include the act set out by the Adjudication Officer in her decision at first instance as having been advanced to support a complaint of victimisation.
Section 85A(1) of the Act provides as follows in relation to the burden of proof which a Complainant under the Act must establish:
- “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
- “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
- “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
- “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
Evidence has been presented to the Court of the very significant fall-off in fee income generated by the conveyancing element of the Respondent’s business from €192,486 p.a. in 2006 to €38,747 in 2011. Evidence has also been presented to the Court that the salary of the Appellant was €60,000 p.a.
It is accepted by both parties that the Appellants’ work in the practice was concerned mainly with conveyancing and that the level of such work fell away dramatically over a period and consistent with general economic factors affecting conveyancing of property. It is similarly accepted that the litigation work of the practice was carried out mainly by the Respondent assisted by Mr PB. It is not for the Court to take a view as to the operational decisions of the Respondent taken over a period of years in terms of practice design. Clearly, the Respondent’s practice was operated on the basis of primary responsibility for litigation falling on Mr O’N assisted by Mr PB and the primary responsibility for conveyancing falling on the Appellant. It appears to be common case that at all material times the vast majority of the workload of Mr O’N and Mr PB was taken up with litigation work and the vast majority of the workload of the Appellant was taken up with conveyancing.
The Court is satisfied that against the background of the structure of the practice a genuine redundancy took place in 2012. The Appellant has failed to establish that the decision to execute a redundancy was tainted in any way by consideration of the gender, family status or civil status of the Appellant. The Court is satisfied that the redundancy which occurred arose directly from the crisis facing the conveyancing element of the practice and that the Appellant was the person whose workload was primarily concerned with conveyancing work.
The Appellant has contended that the Respondent has discriminated against her by harassing her within the meaning of the Acts. The incidents contended to constitute harassment are events wherein the Respondent engaged or sought to engage with the Appellant to address the unsustainability of the conveyancing element of the practice. The Appellant in those engagements fundamentally disagreed with the Respondent as regards her obligation to co-operate with measures to align the costs of the conveyancing business with the income in the area. The Appellant has failed to establish facts from which it could be inferred that the Respondent’s engagements with her on this matter were tainted by discrimination on grounds of gender, family or civil status. The Court is satisfied that the Respondent’s engagements were entirely motivated by and founded on a desire to structure the business in a manner which addressed the loss of fee income arising in the conveyancing element of the business for which work the Appellant had for a number of years been responsible.
The Appellant has submitted that she complained to the Respondent in November 2011 that she was being discriminated against. She has contended that the Respondent victimised her within the meaning of the Acts as a reaction to her making that complaint. The acts which she has put before the Court to support this contention, which are different to the act set out by the Adjudication Officer in her decision at first instance as having been the act of alleged victimisation in the contention of the Appellant, relate to (a) an allegation that an unquantified number of files were removed from her desk albeit she accepted at the hearing that the number of any such files was small, (b) a stoppage to her pay in July 2012, and (c) the Respondent’s continuing failure to afford her parental leave throughout the cognisable period of the within complaint.
The Respondent has submitted, including in evidence, that a single file was re-assigned from the Appellant to MrO’N within the cognisable period of the within complaint and that the file related to a family member of a long-standing client of the business whose business had historically been handled by MrO’N. The Appellant has not disputed the Respondent’s assertions as regards that file and has not detailed any other file which had been re-assigned to Mr O’N in reaction to her complaint of discrimination.
The Respondent has asserted that events surrounding the temporary stoppage of the Appellant’s pay related solely to the operation of the sick pay scheme of the Respondent. The Court accepts the Respondent’s evidence in this regard and that of the Respondent’s adviser who was responsible for operation of the Respondent’s payroll at the material time.
The Appellant finally submits that the Respondent’s continuing failure to afford her parental leave in the cognisable period constituted victimisation within the meaning of the act but she had put forward no details as regard any occasion when parental leave was the subject of engagement between the parties during the cognisable period for the within complaint. The Court, on the basis on the submissions of both parties, believes that engagements within the cognisable period were focussed on the challenges facing the conveyancing aspects of the respondent’s business and, while the opportunity existed for the parties to discuss an earlier parental proposal, no such discussion took place within the cognisable period. As such, the Court cannot accept that the Respondent made any decision as regards parental leave within the cognisable period.
Taking all of the above matters into account the Court concludes that the Appellant has failed to establish facts from which it could be concluded that she was victimised during the cognisable period for the within complaint.
The Court concludes that the Appellant has failed to establish primary facts from which it could be inferred that discrimination has occurred during the cognisable period for the complaint. The Appellant has failed to discharge the burden of proof which rests upon her and has failed to establish a prima facie case of discrimination within the cognisable period of the within complaint. In consequence of this conclusion the Court cannot address the contention that events occurring within the cognisable period were part of a continuum of discrimination and as a result the Court does not have jurisdiction to consider the complaints made by the Appellant relating to events outside the period set out in the Acts for the making of a complaint of discrimination.
The Court therefore concludes that the Respondent did not discriminate against the Appellant on the grounds of gender, family status or civil status in contravention of the Acts at Section 8.
Determination
The Court determines that the Appellant was not discriminated against on grounds of gender, civil status or family status.
The appeal fails and the decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
25 May, 2017Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.