DEC-E2017-067

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-067

PARTIES

Mary Herbert

(Represented by Cathal McGreal BL, instructed by Ferrys Solicitors)

Complainant

AND

TNT Express (Ireland) Ltd
(Represented by MP Guinness BL, instructed by Kane Tuohy Solicitors)
Respondent

File reference: ET-155886-EE-15

Date of issue: 7th September 2017

1. Introduction:

1.1 On the 29th April 2015, the complainant referred a complaint against the respondent of discriminatory dismissal on the grounds of age. On the 25th January 2017, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an 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.

1.2 The complaint was scheduled for hearing on the 9th February 2017. The complainant was represented by Cathal McGreal, BL, instructed by Ferrys Solicitors. The respondent was represented by MP Guinness, BL, instructed by Kane Tuohy Solicitors. Three witnesses attended for the respondent. They are referred in this report as the Administration Director, the Administration Manager and the HR Coordinator.

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

2. Submissions and evidence of the complainant:

2.1 In opening comments, the complainant was born on the 24th June 1953 and said that this was a case about a dismissal that was unfair but also about her age. Where a dismissal was procedurally unfair, it asked the question as to the reasons for the dismissal. Where fair procedures are not present in a dismissal, this begs questions as to the reason behind the dismissal. In this case, the complainant’s initial reaction was that this was because of her age. The respondent said that it did not know the complainant’s age but this was on her CV. The complainant referred to newspaper coverage of the respondent, stating that pre-tax profits had tripled in 2014 and the respondent internationally was subject to a corporate transaction worth £1.6 billion. There was no need to make €500,000 savings in Ireland and the complainant disputed that the respondent faced dire straits. It was submitted that redundancy is a way for a company to get rid of “dead weight” especially in a company facing into multiple retirements.

2.2 The complainant had a very good record with the respondent, with complete attendance for ten years. Her remuneration was €940 per fortnight. The respondent had provided her with the following appraisals: in 2011, “no development needed”, in 2012 “very happy” and 2013 “consistently excellent, extremely hardworking and willing to learn”. The complainant denied completing a negative self-assessment in 2014 and she denied seeing this before. Prior to working for the respondent, the complainant worked in a variety of administrative roles, including in the public sector. The complainant commenced working for the respondent on the 25th November 1992 and initially worked in data entry in quality control and later in an administrative role in the credit control department. The variety of roles performed by the complainant showed that she had a broad administrative skillset and capable of doing the roles of colleagues. It was her submission that her redundancy was because of her age; she had the longest service at age 61. The staff who were made redundant were those with the most and the least experience. It was submitted that when someone with 22 years’ experience is dismissed, this raises the issue of age. It was unclear whether there was a retirement age as members of management continued beyond 66. The redundancy process used “Last In, First Out” (LIFO) in the event of scores being tied, but it was submitted that LIFO should have been used to decide between employees as a protection for the older worker. The complainant submitted that it was notable that the word “experience” had not been used in any of the redundancy documents. The phrase “future business needs” had never been explained to the complainant throughout the redundancy process. This suggested changing business needs, but it was an age-sensitive way of assessing experience. It was submitted that a process which results in the most experienced staff member being let go raises an inference of discrimination. It had been inappropriate to use LIFO only as a tiebreaker and this resulted in the complainant’s experience being overlooked. The complainant had been scored negatively because of absences in the preceding 12 months, but this should have been averaged out. She had very good attendance prior to 2013 and it was unfair to overlook her 23 years of service. The absence had been related to a certified illness, an infection for nine days followed by one day’s surgery. It was inherently unfair to mark the complainant down because of this. It was also potentially discrimination on grounds of disability.

2.3 In respect of the redundancy process, the complainant said that the information was not available to make a comparison of how others were treated. The respondent had not supplied any documentation and there were no notes of the deliberations. She required the notes and documents relating to colleagues to assess the process. It was her belief that the Managing Director had made the call regarding her dismissal. The Administration Manager was the one listed as the only decision-maker. During the meeting, the complainant had been read out her scores from the score sheet, and this sheet should have been provided to her. Neither the notes of the respondent’s deliberations or the score sheets were handed out. No “plan” relating to the redundancy process was provided to the complainant. The complainant had requested documents pursuant to section 76 of the Employment Equality Acts and the respondent had declined to provide documentation. The complainant said that inferences could be drawn pursuant to Murphy v Iarnrod Éireann [2010] E.L.R. 143. The data access request showed that no notes or communication had exchanged between managers. The complainant had been awarded 2/5 for skills and knowledge and this represented a failure. Skills and knowledge should have included experience, especially in the highly skilled role as that of the complainant. The criteria should also have referred to experience. It was for the respondent to show what future business needs had entailed, especially between 2015 and now. The complainant should have obtained a ‘5’ for customer focus as she had never been asked to actively seek feedback from customers. The complainant had previously been told that she gave 110% in performance. The complainant outlined that redundancy is a snapshot in time, but previous issues might be relevant in assessing the process. The reference to “adaptability” left people in their 60s in a vulnerable position. She had shown adaptability in previous decades and was never told what the future business needs would be. In respect of attendance and absence, the complainant had taken 22 days in 22 years, an absence rate of 0.04%. The respondent had the option to be flexible and needed to involve the worker in consultation.

2.4 The complainant said that at the meeting of the 3rd February 2015, she was told of her scores and was also told not to go back to work after the meeting. At the meeting, the complainant immediately challenged the score given for attendance and also said that she was being made redundant because of her age. She was later handed a typed letter regarding her redundancy. This showed that this had been a pre-determined decision, with no possibility of appeal. The lack of fair procedures showed an ulterior motive and that the redundancy was not genuine. This asked the question of what was the reason for the redundancy. There had been no discussion at the meeting of the 29th January 2015 regarding the scoring scheme. The respondent says that length of service would be taken into account, but the question is, why wasn’t it? The complainant’s service had shown her accumulated experience, but this was not taken into consideration. There is no reference to alternatives to redundancy, such as part-time hours or lay off. After the redundancy, colleagues had been asked to do over-time and she was not asked to come back in June 2015, when a part-time colleague left. A named colleague had been kept on at the time the complainant was made redundant. Someone with less service should be let go first, in particular where they had less than two years’ service as this colleague had. This showed that the respondent was looking to get rid of the complainant. The complainant outlined that agency staff had been hired after her redundancy. There was work that the complainant could have done with no training or with a little training, but this was never put to her. It was submitted that the respondent was nervous about staff in their 60s and an assumption was made that such staff were not adaptable. Criteria used for redundancy must be precise and objective and here they were vague and subjective. As the person with the most experience, the complainant should have been retained.

2.5 In evidence, the complainant said that in advance of the meeting of the 29th January 2015, staff had been told of pending cut backs of €500,000, but she did not know whether it would affect her. They knew that two people would be let go from each department. The Administration Director had said that service would be taken into account. In respect of the meeting of the 3rd February 2015, the complainant said that she was the last to be called. She met with the Administration Director and the Administration Manager where they started by discussing her sick leave. The complainant that she had many years’ service without taking sick leave and this was confirmed by a colleague. They referred to the score sheet and the table of scores. She said that being told she was to be made redundant made her a failure for her 22 years with the respondent. She said at the meeting that this was because of her age. The respondent had sent her flowers on her 60th birthday and they knew her age. The complainant became very upset at the meeting and left the room; they pleaded with her to come back. After the meeting, the respondent would not let her return to her desk to collect her bag and coat and instead, fetched these items for her. She was devastated on leaving the workplace and still had to drive home. The respondent had not phoned to see if she had got home safely and she was later asked to come in on Friday. She was never told that she could make submissions or challenge the basis for the scoring, or that the scores were provisional. On the 8th February 2015, she was handed the letter of dismissal.

2.6 In respect of the three staff retained from the administration department, the complainant said that she never did purchasing but could have done this work with some training, perhaps over a week or two. She was never asked about doing training. She had worked on cash allocation and VAT at other times. She had also helped out in credit control and with accounts payable. In respect of the credit control department, the complainant said that two staff members took redundancy and one part-time member left. Two named members were retained and they did ad hoc ledgers, which she had done before. One of these colleagues was in her early 40s and the other in his early 20s. The complainant had done credit control, invoicing, accounts payable as well as relief work on reception. She would have done other roles and could have been agreeable to a pay cut. She said that while working for the respondent, she had undertaken functions related to VAT, cash allocation and had taken some of the Administration Manager’s role during a period of maternity leave. She loved working for the respondent and got on well with everyone. She had been totally hurt and humiliated but she would go back to the respondent. The complainant outlined that after the end of her employment, she sent many applications for jobs but had not been called for interview. She was now on a Community Employment scheme at a nursing home, where she did the payroll, rosters, annual leave and sick leave for the 130 staff employed by a nursing home.

2.7 In cross-examination, it was put to the complainant that the issue of cut backs had been raised in meetings in 2014 and that it had not been a surprise in early 2015 for the respondent to announce cut backs of €500,000; she replied that there had been no meetings and nothing said in 2014. In respect of the meeting of the 29th January 2015, the complainant said that this referred to cost-cutting and that two staff members from each department would go. She could not recall whether a scoring mechanism was mentioned or that service would come into play where candidates were on equal footing. She could not recall any reference to a scoring sheet. They were told on Thursday that two staff would be let go on the following Tuesday. In respect of the meeting of the 3rd February 2015, it was put to the complainant that the scoring sheet was explained in detail and it was made clear that she would be told her provisional score; she replied that she may have been too shocked to remember the detail. She acknowledged that she had raised how the respondent had scored her attendance. It was put to the complainant that the respondent had wished to discuss her scores; she replied that she had been upset and in a state of shock. She did not accept that the Administration Director had said to come back to her if she had any questions. She said that the Administration Manager stopped her from going back to her desk.

2.8 The complainant did not accept that the Administration Director had offered for someone to drive her home. She accepted that she had not gone back to the Administration Director between the 3rd February and the 6th February 2015. At the meeting of the 6th February 2015, she had been explained the details of the redundancy arrangements. She was hurt and distressed and did not raise the issue of the scores. It was put to the complainant that named colleagues did more complex roles; she replied that they had been trained in the complex roles. It was put to the complainant that she had challenged salary differences and they were explained to her. One colleague took on physical tasks while two other colleagues had 18 and 15 years’ experience respectively. It was put to the complainant that her role in credit control related to lower amounts due to the respondent; she said that she had contact with customers on money debt. The complainant accepted that she had scored the same as everyone else in “adaptability” and that she had not been marked down in this category. She accepted that even if attendance was taken out of the calculation, she would have still been in the bottom two. She accepted that her manager had carried out the assessment under the Skills and Knowledge category. It was put to the complainant that the roles of three named colleagues were more varied and demanding. It was put to her that according to her own evidence, two named colleagues deserve higher marks; she accepted this with regard to their own work. It was put to the complainant that her redundancy has nothing to do with age and that in this case, the youngest person was also made redundant. It was put to the complainant that she had been the only person at the meeting to mention the issue of age. It was put to the complainant that no factors pointed to age and that an objective assessment had been made; she replied that she had 22 years of service and could have done other roles. She had done well in the CE post she now held. It was put to the complainant that she was saying that she should have been kept on because of her length of service; she agreed with this. It was put to the complainant that a named female colleague had 18 years’ experience but was 21 years younger than the complainant; the complainant replied that she had been let go because of her age and that there had been no performance issues. In re-examination, the complainant confirmed that she would have carried out the roles of colleagues, even where they were better paid. She had experience in other relevant roles and 22 years’ experience in this workplace.

2.9 In reply to the post-hearing documents circulated by the respondent, the complainant stated that she was still querying the 2014 appraisal as she does not recall completing this form and the ‘C’ rating. She states that five tasks were omitted from her job profile, namely cash sales and transactions daily, cash allocation to cover cash allocation in [a colleague’s] absence, credit notes to process system and manual credit notes, VAT and duty in [a colleague’s absence] and charges forward connotes to ensure that they are billed separately.

3. Submissions and evidence of the respondent:

3.1 The Administration Director gave evidence. She said that the respondent is a global logistics and courier firm and has had a base in Ireland for many years. As Administration Director, she was responsible for billing, the collection of debt, procurement and for health and safety. The Irish operation was part of the UK-Ireland group and the UK component had struggled in 2014. During the course of that year, the respondent had carried out staff engagement meetings where they portrayed the state of the business unit to staff and sought feedback and suggestions. She believed that the complainant would have attended these meetings. She commented that she sat in an open plan office and had regular contact with all staff. In 2014, the respondent launched an outlook strategy to explain global difficulties and the UK/Ireland unit was tasked with reducing costs by €500,000. There had been a previous paring back in 2008 and redundancies made in Cork. The biggest cost was headcount. She said that all redundancies in the respondent were carried out on a department basis and employees in the administration and credit control departments were pooled separately. While the same scoring sheets were used across the respondent, decisions as to redundancies were made on a department basis. Credit control was different as it had a frontline role.

3.2 The Administration Director said that she had been charged with securing two redundancies in each team. They looked at all the functions in each department and made the decision to cease some of those functions. It arose that some of the functions that were to be ceased were within the complainant’s role. They dropped a checking function that the complainant had previously done. They also passed back functions to other units, for example data entry. The Administration Director said that they dropped the functions that were “nice to have” and retained everything related to productivity and quality.

In respect of the roles of colleagues in the department, the Administration Director said that she did not think someone could pick up a longstanding female colleague’s role in a week or even a month. She had assigned procurement tasks to this colleague, who was still developing in this area. It was not just about creating an order, but there was a need to build a catalogue and to control spending in the system. In respect of the other female colleague, the Administration Director accepted that she was responsible for cash allocation, the management of accounts and for databases. This role required precision. She said that the complainant could have done some cash allocation, but the role was a complex one. Write-offs were also complex and the complainant could not have been trained in this role within a week. A male colleague managed the reporting of VAT and duty on imports received and there was an onus on the respondent to reconcile with Revenue what it had collected and brought into the country. He provides a daily report for the Managing Director and it is a role that requires training. The Administration Director outlined that they received records from other respondent offices and had to chronicle and archive the documents.

3.3 The Administration Director did not accept that the complainant’s evidence that she had worked in credit control. Where there were accounts of value below €250, the respondent would create a debt collection list and a withheld list. The complainant worked on the withheld list and made telephone calls to debtors. This was a softer approach to debt collection. The value of these accounts was small and there was no KPI attached to the role. It could not be compared to credit control. She described credit control as a “sales” job and that it was an art. She questioned the suitability of the complainant for this role, even with training. The respondent had been told to immediately reduce costs, so it could not look to a period of training over six months. They had to ensure that they had all services operating the next week. With regard to the meeting of the 29th January 2015, the Administration Director said that she had spoken at the meeting and said that the respondent would have to make redundancies. The HR Manager went through the scoring sheet and said that each manager would be tasked with scoring. She was not sure whether the HR Manager had referred to the 12-month assessment period for absences.

3.4 In respect of the meeting of the 3rd February 2015, the Administration Director said that they were then in a temporary building and used an upstairs meeting room to meet staff as it was private. There set up a tea station adjacent to the meeting room. This was a difficult time for the staff who lost their roles and for those who had to take on additional roles. They spoke to the credit control team first and then with the administration team. During her meeting, the complainant became very upset and said that she should stop. The Administration Director sought to go through the procedure and said that it was provisional and that the complainant could come back to her. She did everything she could to console the complainant, who told her to stop doing this. The complainant questioned the scores given for attendance, but did not question the other scores. The complainant raised the issue of her age and the Administration Director reassured the complainant that this was not because of her age. The Administration Director said that this saddened her and that she would not select someone on discriminatory grounds. After the meeting resumed, the Administration Director went through the scores and concluded by saying that they were provisional and that the complainant could come back with any queries. They then went through the package. The complainant had been upset after the meeting and the Administration Director wanted her to have a cup of tea and asked whether she was okay to drive. They offered to bring her bag and coat up.

3.5 The Administration Director said that there was overtime for a short while after the redundancies. As things had happened quickly, they had to implement the changes, for example the roll back on data entry. The respondent also increased the rate charged to customers, which took some time to implement and required staff to work overtime. The Irish customer service role had been outsourced to the UK and data entry reduced by 50%. The Administration Director said that she had a good relationship with the complainant and there had been no performance issues. She said that based on established skills, she stood over the scores given for skills. She generally favoured mature staff members as they were more reliable.

3.6 In cross-examination, the Administration Director said that she commenced with the respondent in 1998 and she was not sure whether her contract of employment contained a retirement age. It was put to the Administration Director that the Managing Director wanted to get rid of people close to retirement and the absence of a retirement age was relevant; she replied that to her knowledge, the instruction had been to reduce running costs by €500,000. She was asked whether there was documentation regarding the €500,000 savings; she replied that she had cascaded information through the company and she could not say how it had been cascaded to her Regional Manager. In respect of the Managing Director’s role, the Administration Director said that he charged management with making the savings and he was also involved in deciding how they would be made. Her role had been to deliver a message regarding the cut backs on behalf of management and the Country General Manager. In respect of a telephone call she made to the complainant after the dismissal, the Administration Director said that she acknowledged that she had called the complainant and that it had been a personal call. She could not remember their conversation. It was put to the Administration Director that she had told the complainant that the Managing Director had made the decision; she said that it was understood that the decision was that of the Country Manager but she absolutely did not say that it was the Country Manager who decided that the complainant should be made redundant. It was put to the Administration Director that his signature is on the scoring sheets; she replied that this is where he approved the scores. She was asked whether he had known what he was signing and how the scores were calculated; she replied that prior to signing, he had been aware of the meetings with the two departments. The Administration Director was asked whether there had been a discussion with the Managing Director about the complainant; she replied that he had been involved in the scores via the HR Manager and that he had managers to run departments and he left it to them to evaluate roles. She said that she had destroyed her diary for 2015 and the HR Manager had taken notes of the meeting. In respect of the earlier meeting with staff, she had spoken to staff at a brief and not very formal meeting and this had followed on from 2014. The HR Manager took notes. The Administration Director was asked where the redundancy plan was; she replied that the spread sheet is the plan. It was put to the Administration Director that a plan was needed to devise a pool, criteria and the course of the meetings; she replied that there is an established process at the respondent and that a decision had been made at global level and actions were required at local level. She was asked whether there had been a briefing note and she said that she needed to check. She commented that the respondent was good at briefing staff and at communication. She was asked whether that good communication was in writing and she replied that it was not usual to hand out sheets about losing €500,000.

3.7 In further cross-examination, the Administration Director was asked why a letter had not issued to the complainant regarding the process or why she had not been given the criteria, in particular as she had been so shocked; she replied that every effort had been made at the meeting of the 3rd February 2015 to give information to the complainant. Anyone would be upset at such a meeting and it was irrelevant whether people wanted to go or had indicated they wished to go. There was a need for business continuity. She was asked whether there was a document to say that the complainant could be involved in the process; she replied that she informed the complainant on the 3rd February 2015 that this was provisional and she could speak further to them and to HR. It was put to the Administration Director that for this to happen, the complainant needed to have the scores; she replied that no document giving the scores had been handed to the complainant. She said that the scores were provisional and she had repeated this when the meeting resumed. It was provisional as the complainant could come back with new evidence. She said that the scoring mechanism had not been given to staff. The scoring system had been used many times and was common knowledge; it was not, therefore, handed out. The HR Manager was available to go through the scores and it was always better to do this in person. It was put to the Administration Director that the complainant had raised the credit control role; she replied that this work was on lower value accounts and the complainant raised the option of small companies. The Administration Director said that the complainant did not have the skills for large companies and accepted that she had used the word “brilliant” about the complainant. It was put to the Administration Director that the 2012/13 appraisal had said that the complainant was willing to learn and there had been a cost in training colleagues in their additional functions; she replied that she could not give the cost but that there was a cost in still having to do the work. It was not a matter of training and there was no time or necessity for training. In her experience, it took six months to train up a person in administration or credit control.

3.8 The Administration Director said in cross-examination that they had removed a layer of management in credit control as well as a field sales controller. It was put to the Administration Director that the respondent should have retained the complainant and made a named person in Credit Control redundant; she replied that this colleague was not within scope and that she had not considered moving someone into this role where they had not established the skills with regard to the KPIs. With regard to not being within scope, the Administration Director said that credit control was a standalone department and had been evaluated separately. Two redundancies had been identified and they were not looking at merging departments. The complainant also did not have the skills. It was a matter of scope and of skills. The named colleague would also have to do more now that one colleague had been made redundant and another had left. It was put to the Administration Director that the complainant had comparable experience; she replied that this was to do with skill. The colleague had run a full ledger of 800 accounts and she had intended to increase the value of his accounts. The complainant did not have the skills and her ledger of accounts worth less than €250 each. It was put to the Administration Director that the complainant had pursued debt of the value of €10,000. She said that she had not considered making a named male colleague redundant and moving the complainant to his role. It was put to the Administration Director that the day of the hearing was the first time the spread sheet was produced; she replied that she was here to meet the claim and that her role had been to reduce two roles from a team of five. She had to look at the tasks performed by people and that there was no reason to retrain staff as the team had the skills. In respect of the spread sheet, the Administration Director said that this had been generated in January 2015 and the highlighting had been made on the eve of the hearing.

3.9 The Administration Director acknowledged that named colleagues of the complainant were on higher salary. It was put to her that this additional money should have been used for training and the Administration Director replied that the colleagues had the skills to do the roles. In respect of the tasks identified in the spread sheet, it was put to the Administration Director that the complainant had not had the chance to do relevant training and that she could have done this; she replied that staff were assessed according to their individual scores. It was put to the Administration Director that the complainant had not been asked for her input and she says that she has the skills. In respect of a named male colleague, the Administration Director said that part of the decision to keep him was because he did palleting but he also did the daily VAT return and for reporting goods in/out. It was put to the Administration Director that stock maintenance was not part of this colleague’s role; she replied that he did this with another colleague. She said that this colleague had performed well and she had not said that the complainant could not do the job. It was put to the Administration Director that there was a difference between doing what was best and what was easy and it had been easy to keep two male colleagues – they had been given the same scores; she replied that the complainant would have required a large amount of training and might not have been able to do the role. They also did not have the time to accommodate this.

3.10 In further cross-examination, it was put to the Administration Director that she had referred to a period of ten days; she replied that she had to implement the cutback strategy while maintaining continuity. She told the complainant that she did not know her age and said to her that she thought she was 61 or 62. She acknowledged sending the complainant flowers on her 60th birthday. Referring to the spread sheet, the Administration Director accepted that eight of the red areas all related to the complainant. She accepted as about right that the respondent had a headcount of 201 in 2015. It was put to the Administration Director that there had been overtime after this redundancy and that one part-time colleague subsequently left. She said that there had been sporadic overtime after the redundancies and while the part-time worker had left, this role had not been within scope. She had a good record of communicating with staff. It was put to the Administration Director that the complainant had not been offered an appeal; she replied that none was available. She was asked whether the complainant was allowed representation at the meeting of the 3rd February 2015; she replied that the structure of the meeting was to go through the scores. She was surprised that the complainant did not come back to her after the meeting to raise the issue of the scoring and to get clarifications. She accepted that she had not contacted the complainant after this meeting. It was put to the Administration Director that the complainant had been good at dealing with the public in a frontline credit control role; she replied that there was a difference between internal and external customers and the complainant had received a ‘4’ for customer focus. The lack of notes and the fact that the scores were all the same was put to the Administration Director; she replied that the score sheet is the note and that they looked at performance and it was not unusual to come out with the same scores. It was put to the Administration Director that they were symmetrical; she replied that this was an opinion. She had not included the reception role in the pools and staff could be assigned to credit control for specific projects, such as converting customers to EFT payments. In re-examination, the Administration Director stated that the Managing Director had no input in making the complainant redundant. She also said that no one had yet retired from the respondent.

3.11 The Administration Manager gave evidence. She said that the respondent had made the decision that two people would have to go from each team. She did the scoring and the scores were very tight. The complainant fell down on skills and knowledge and commented that it took a long time to complete training. At the meeting of the 29th January 2015, the Administration Director had gone through the redundancy process and that two people would go from each pool, referring also to the scoring mechanism. The Administration Manager could not recall whether the 12-month period for absences had been mentioned. The HR Manager said that length of service would be a tie-breaker. She and the Administration Director met on the Friday and scored staff on a provisional basis. At the meeting with the complainant of the 3rd February 2015, the Administration Director went through the scores and the complainant raised the issue of attendance, saying that it had been certified sick leave. The complainant asked to see the scores allocated to others. She was informed that the scores were provisional and the Administration Director addressed the issue of the credit control team. The complainant raised the issue of age. After the meeting, a colleague had offered to get the complainant’s bag and coat and she was offered a lift home. The complainant met with the HR Manager on the 6th February 2015, where she was given the letter of dismissal. The Administration Manager had not heard from the complainant after the 3rd February 2015 and she was not surprised by this. In respect of scoring, they looked at the functions and tasks, cover, performance and future business needs. Age was not an issue taken into account. It had not been necessary to train the complainant to do other tasks. In the past, the Administration Manager had worked in billing with a longstanding female colleague and the complainant. The complainant had been happy in her role and had not asked for training. This was why there were no yellow triangles associated with her in the spread sheet.

3.12 In cross-examination, the Administration Manager said that there had been no timeframe for the redundancies, but they had to be completed quickly. She had looked at staff members’ job profiles and appraisals, and denied looking at personnel files. She only had the complainant’s current job profile. She had looked at appraisals over the complainant’s last four or five years and had also worked with her on a day-to-day basis. She said that the complainant was consistent, efficient and willing to learn. She had a great deal of service in her current role. The Administration Manager said that the complainant’s experience outside of the respondent was not relevant. She scored the complainant a ‘2’ for skills and knowledge on the basis of future business needs. She had to ensure that she could continue to run the department and the complainant and another colleague had scored the lowest scores. She acknowledged that it was her handwriting on the score sheets and that while there had been certain discussions, the scores did not change. The Administration Manager said that she had no involvement with the Managing Director in compiling the scores. She had discussed the scores with the Administration Director and asked questions on the areas where she had less knowledge, for example purchasing. She acknowledged that she reached the same scores as the Administration Director and said that the scoring had been tight. She did not accept that she had to follow the scores of the Administration Director. She was aware of the training needs for each role and there was no need to provide training to others and nor was it necessary to provide further training to the complainant. She did what was best for the department. She had not had any dealings with the Managing Director. The meeting of the 6th February 2015 had been about making the necessary arrangements and the complainant did not mention making an appeal. The complainant was upset at this meeting and she tried to console her. The Administration Manager said that she felt responsible for her part in making the complainant redundant. As she had been upset, it was not appropriate to contact the complainant afterwards. She was aware that other colleagues had contacted the complainant. She accepted that she would learn from this experience and that she continued to learn from the Administration Director. She said that the complainant’s only reaction had been to raise the issue of age and how absences were treated.

3.13 In closing comments, the respondent outlined that this is a claim of age discrimination. While the redundancy could have been done better, the complainant’s redundancy was not based on age discrimination. The complainant must be able to rely on facts that suggest discrimination and the mere facts of age and redundancy were not sufficient. The complainant accepts that both female colleagues scored higher and that they were better qualified for the role. The complainant had scored the same as other candidates in relation to adaptability and the only area of relevance was skills and knowledge. In a redundancy process, there was no onus to save one employee over another and the onus was on the employer to look objectively at those considered for redundancy. Someone’s experience is not an entitlement not to be made redundant. It had been a fast, transparent process and open to be challenged. It acknowledged that the paper trial was not perfect, but there had been a detailed assessment of the role. Nothing, including the established facts, raised any inference of age discrimination. The respondent relied on the Labour Court authorities of Concern v Anthony Martin (ADE/05/15) and Mitchell v Southern Health Board [2001] E.L.R. 201.

3.14 During the adjudication hearing, I requested additional documentation from the respondent relevant to the case. This was circulated to the complainant. The documentation included appraisals and performance reviews of the complainant and extract from the respondent’s employee handbook. The respondent submitted job profiles of colleagues and confirmation of those who had retired from the respondent. The respondent supplied handwritten notes of the meeting of the 3rd February 2015. The handwritten notes record that the complainant raised the issue of age in the course of the meeting. It records that this allegation was denied by the Administration Director and the meeting broke for a time. It is further recorded that when the meeting resumed, the Administration Director said that the scores were provisional and that even if attendance was not considered, the complainant would still score lower than others. In the 2009 appraisal (completed in 2010), the complainant is recorded as enjoying assisting credit control with the ad hoc ledger. The Administration Manager notes the complainant’s role in this regard and states that this has helped reduce the debt owed and “continues to do a valuable job in collected cash.” She also comments on the need for timely and accurate work. The appraisal lists 17 objectives. It notes that the complainant has a good manner with customers. The Administration Director provides reviewing comments and is very complementary of the complainant’s work ethic and contribution, including her great work on the ad hoc ledger. In the 2010 appraisal (completed in 2011) is similar to the previous year’s positive assessments and lists as objectives the timely billing of certain transactions. In the 2011/12 appraisal (completed in September 2012) the Administration Manager notes an additional reporting objective in the period of her maternity leave. It is similarly positive of the complainant’s performance, including the ad hoc ledger role. The 2013 objective setting/appraisal document is a different format to the previous years and the complainant scores an “exceeds” rating and her potential is listed as “growth track” where she “demonstrates the ability to operate one job higher in 1 – 4 years. Expands competence, gaining depth and breadth. Demonstrates competencies beyond what is required in current role.” In the 2014 objective setting document/appraisal, the complainant scores herself and is scored by her manager as a ‘C’ against three business critical behaviour criteria. The document omits the rating and potential assessment present in the previous year’s document. The complainant’s job profile of the 9th January 2012 lists nine key tasks, including assisting credit control on the ad hoc ledger and maximise cash collection.

4. Findings and conclusions:

4.1 The complainant commenced employment with the respondent on the 25th November 1992 and this came to an end on the 6th November 2015. It ended by reason of redundancy. The complainant asserts that the respondent discriminatorily dismissed her on grounds of age in selecting her for redundancy. In paragraph 10 of her submissions, she points to ten elements relating to her performance, adaptability and the flawed redundancy process that raise a prima facie case of age discrimination. The respondent denies the claim, stating that on the complainant’s own evidence, she was not better qualified than those who scored higher than her in the redundancy matrix. It states that while the redundancy process could have been done better, this cannot amount to age discrimination.

4.2 Section 85A of the Employment Equality Acts sets out the burden of proof in relation to complaints of discrimination. It requires the complainant to prove the primary facts upon which she relies on in seeking to raise an inference of discrimination. If the complainant can establish the necessary facts, and where they are of such significance to raise the presumption of discrimination, the burden of proof then falls to the respondent.

4.3 In Moate Community School v Moriarty (EDA0718), the Labour Court assessed the burden of proof in age discrimination cases, albeit in the context of a promotion:

“In the case of age discrimination particular additional difficulties can arise. There can be problems of definition in that, unlike the other proscribed grounds, there is no definitive point of distinction between the young, the middle aged and the old. These classifications, particularly at their interface, are often based on perception or opinion which can vary from one individual to another. Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices.

Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.”

4.4 In Citibank -v- Ntoko (2004) 15 E.L.R. 116, the Labour Court summarised the approach in assessing claims of discrimination as follows:

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof. Support for this approach can be found in the speech of Lord Browne-Wilkinson in Glasgow City Council -v- Zafar at p. 958, in which he quoted with approval the guidance given to Employment Tribunals by Neill L J in King v Great Britain China Centre [1992] I.C.R. 516, as follows: 'From these several authorities it is possible, I think, to extract the following principles and guidance.

1. It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.

2. It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in."
3. The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.
4. Though there will be some cases where, for example, the non- selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v. Noone ([1988] ICR 813 at 822), "almost common sense."
5. It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.'”

Appraisals

4.5 The first issue to address is the conflict in evidence between the parties regarding the 2014 appraisal. The respondent submits this in evidence and in the appraisal, the complainant is awarded a ‘C’ rating. The complainant does not recall signing the 2014 appraisal or receiving a ‘C’ rating. The appraisals are significant as the evidence was that they fed into the scores assigned to the complainant. Before addressing the 2014 appraisal, it is necessary to first compare this appraisal with previous appraisals submitted to the adjudication. The appraisals of 2009, 2010 and 2011/2012 all follow the same format, where the employee and the two managers are invited to insert a large of amount of text. The appraisals also provide for a rating of 1 to 10, but no mark appears to have been given in the complainant’s case. The respondent effusively praises the work ethic and contribution of the complainant in these three appraisals.

4.6 A different format is used in the 2013 appraisal, which provides less room for comment and requires only that ratings and development points be given. The complainant rates a ‘B’ in this appraisal, which is “exceeds expectations” and shows “growth potential”. It is of note that the complainant awarded herself an ‘A’ in the ‘Drives for results’ category while the line manager awards a score of ‘B’. The 2013 appraisal document states that a ‘C’ performance rating is “Fully Meets – Fully met responsibilities and most of objectives and often effectively demonstrated required behavioural competencies. Overall is perceived as a valuable performer.”

4.7 The 2014 appraisal followed the 2013 format, but does not include the same detailed performance and potential rating information; the complainant receives no potential rating in this appraisal. The detailed rating of “business objectives” is also omitted in this year. Given that the complainant signed and dated the 2014 appraisal, it seems indisputable that the document was passed before her for signing. I, however, note that the 2014 appraisal document does not explain what a ‘C’ rating is, as the criteria are not set out in the document. There is no way of knowing whether a ‘C’ in 2013 is the same as a ‘C’ in 2014. Given that there is no explanation in the 2014 document of what a ‘C’ means, it is hardly credible to rely on the score given in this appraisal, in particular where the complainant is recorded as awarding herself this grade.

4.8 What is striking about the appraisals is that they chart an apparent decline in the respondent’s assessment of the complainant’s performance. What is absent is any performance management response on the part of the respondent. Despite this apparent change in the complainant’s record at work, there is no reaction from the respondent. It is not surprising that the complainant did not recall signing the 2014 appraisal as it was not a labour-intensive document to complete. This contrasts with the earlier appraisals. What is also striking, as noted above, is the complainant’s self-grading of her contribution as a ‘C’ when this was lower than previous years and with no ready way of assessing her own performance.

The credit control function

4.9 A second conflict between the parties relates to the significance of the ad hoc ledger credit control work undertaken by the complainant, in particular as a possible alternative to redundancy. It is clear from the appraisals that the complainant’s work on these accounts was important. The appraisals record the “very valuable job” done by the complainant. I note that this credit control work was also included in the complainant’s most recent job profile.

The redundancy process

4.10 The complainant relies on procedural frailties in the redundancy process as evidence of age discrimination. The respondent accepts that elements of the process were not perfect but that it had been a fast and transparent process. It is fair to say that there were a number of frailties associated with the process and it falls to consider their significance in the context of an age discrimination claim. One frailty relates to the lack of an obvious point for the complainant to provide input into the scores given to her. While I accept that the respondent stated at the meeting of the 3rd February 2015 that the scores were provisional, there was no mechanism available for the complainant to have an input in, for example, her score of 2 for ‘skills and knowledge – match these against future business needs.’ This arises because of the lack of a written, structured procedure for the redundancy process, which would give specific opportunity for such input. While the respondent may have been surprised not to receive feedback from the complainant on the scores, there was no ready avenue for the complainant to do so. The meeting of the 6th February 2015 was not about reviewing the scores, but about finalising the termination of the complainant’s employment.

4.11 A further frailty in this case is that the pertinent documentation, for example the complainant’s scoring sheet and the spread sheet of tasks, were not made available to the complainant during the redundancy process. They were made available as part of the adjudication of this complaint. This documentation formed an important part of how the respondent decided a key element of this case, i.e. the rating of ‘2’ given to the complainant for ‘skills and knowledge – match these against future business needs.’ The spread sheet shows that eight of the complainant’s key areas were no longer to be done by the respondent in Ireland. In fact, only six remaining areas of the complainant’s functions are marked in blue, the colour assigned for ‘core job’. It arose during the hearing that all the areas marked in red in the spread sheet as a whole fell within the complainant’s functions. The respondent gave evidence of the range and complexity of each task, and that some were less onerous than others. It is a noteworthy coincidence that all the tasks to go fell within the ambit of the complainant’s role.

Conclusions

4.12 I accept that the respondent was tasked with the difficult job of reducing head count in a small, already pared back office. The 2014 appraisal stands out. It is the worst assessment of the complainant, but one with the least to say about her performance. It is hard to stand over the ‘C’ rating, in particular as the appraisal does not explain what this rating means. It is also striking that the functions to go following the re-ordering all fell within the complainant’s role. I am satisfied that it is fair to conclude that the procedural frailties point to a determination made by the respondent that the complainant would go as a result of this process. I am further satisfied that these are frailties are of such significance to point to age being a factor in the respondent’s assessment of the complainant. This establishes the prima facie case required by section 85A. I appreciate that this was a marginal call for the respondent, and that even with a better process, the same outcome may have been reached. I acknowledge that this was a small, established team faced with letting people go. I am not satisfied that the process was free of age discrimination, in particular with regard to the complainant. The respondent has not rebutted the inference raised.

4.13 In respect of redress, I note that the complainant lost her employment after many years of service with the respondent. I note that the respondent was required to reduce head count quickly. I note that the complainant received her statutory redundancy lump sum entitlement and an ex gratia payment of €10,654. Taking these factors together, I award redress of €10,000 pursuant to the Employment Equality Acts.

5. Decision:

5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79 of the Employment Equality Act, that the complainant was the subject of discriminatory treatment on grounds of age.

5.2 In accordance with Section 82 of the Act, I order the respondent pay to the complainant €10,000 in compensation. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

_______________________________

Kevin Baneham

Adjudication Officer / Equality Officer

September 2017