FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : AER LINGUS LIMITED (REPRESENTED BY MS ROSEMARY MALLON B.L; AS INSTRUCTED BY MS ELAINE METTLER, AER LINGUS) - AND - MARIA MCCONNELL (REPRESENTED BY MS CATHY MCGRADY B.L; AS INSTRUCTED BY DANIEL SPRING & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No ADJ-00006807.
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2015. A Labour Court hearing took place on 27th November, 2018.
The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Maria McConnell against the Decision of an Adjudication Officer ADJ-00006807, CA-00009071-001 under the Employment Equality Act 1998 – 2015 (the Acts) in a claim of discrimination by her employer, Aer Lingus Limited. Ms McConnell claimed to have been discriminated, subjected to harassment and victimised against by Aer Lingus on the grounds of age contrary to section 6(2)(f) of the Acts.
The claim under the Acts was referred to the Workplace Relations Commission on 13thJanuary 2017.
In a preliminary hearing, the Adjudication Officer found that there was no incident of discrimination within the cognisable period, therefore he held that the claims were out of time and were statute barred. Ms McConnell appealed that Decision to this Court.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Maria McConnell will be referred to as “the Complainant” and Aer Lingus will be referred to as “the Respondent”.
At the hearing before the Court Legal Counsel for the Complainant informed the Court that the claim of victimisation was withdrawn and that the claim relating to harassment was on the same set of facts as the discrimination claim.
Background
The dispute giving rise to this appeal concerns a claim by the Complainant, represented by Ms Cathy McGrady, B. L. instructed by Daniel Spring & Respondent Solicitors, that she was discriminated against by the Respondent on the age ground when she was removed from her position within the Catering Department as Manager In Flight Sales in August 2013. She was placed in the Respondent’s “Internal Resource Pool” and she alleged that she was maintained in that Resource Pool for discriminatory reasons until she was made permanent in December 2016. Ms McGrady submitted that this constituted a discriminatory act over a period of time which has had a clear and adverse effect on the Complainant and did not end until December 2016, which was within the cognisable period.
The cognisable period for the purpose of the Acts is 14thJuly 2016 until 13thJanuary 2017.
The particular incidents relied on within the cognisable period related to a claim that the Respondent made a decision/attempt to remove her from her role in November 2016, without good cause or any reason, to accommodate a younger colleague returning from maternity leave. Furthermore, she claimed that he was permanently demoted in December 2016.
Ms Rosemary Mallon, B.L. instructed by Ms Elaine Mettler, Aer Lingus Solicitor, on behalf of the Respondent, submitted that the Complainant had failed to identify any event which occurred during the cognisable period such that could come within the definition of discrimination under the Acts and she rejected the claim that there were acts of discrimination either within the cognisable period or at any time. She submitted that it was clear that all of the Complainant’s issues stemmed from the restructuring of the Catering Department which took place in 2013 and the fact that she does not accept that her role was validly made redundant at that time.
Approach of the Court
- 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,
The application of these provisions was extensively considered by this Court in Determination EDA1124Ann Hurley v County Cork VEC. The Court in that case decided that it was clear
- “that in order the acts or omissions outside the time limits to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.”
It held that:
‘there must be some reality in the claim that acts of discrimination actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”
Therefore, the Court must consider if the incidents relied upon by the Complainant can be regarded as part of a continuing act of discrimination for the purpose of Section 77(5) of the Act. In that regard, applying the principles identified above to the instant case, it appears that the admissibility of the claim in so far as it relates to alleged acts of discrimination in the period before 14thJuly 2016, depends upon the validity of the claim of discrimination which allegedly occurred in the period after that date. That is a question to be decided on the evidence.
Admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the cognisable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.
The Court therefore, consistent with its approach inCounty Cork VEC, 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 proposed to the parties that it should proceed with the preliminary point in relation to the time limit only. It proposed that for that purpose the Complainant should adduce evidence in relation to the occurrences that were within the time limit. It suggested that if these occurrences were found to be an act of discrimination the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences where found not to have involved an act of discrimination the complaint relating to the earlier occurrences could not be entertained having regard to Section 77(5) of the Acts as the most recent occurrences would have been outside the time limit.Both Counsel for the Complainant and for the Respondent agreed to proceed in the manner suggested by the Court.
Summary of the Complainant’s Case
The Complainant was born in 1960.
The Complainant alleged that her removal from her role as Manager In-flight Sales in August 2013 was discriminatory on the age ground. She disputed the Respondent’s contention that it was for redundancy reasons and alleged that the Respondent had acted in breach of her rights and entitlements and its own policies and procedures. She also maintained that it had repeatedly failed to properly address her grievances and its failure to redeploy her into a suitable alternative role was discriminatory on age grounds. She said that the Respondent’s alleged discriminatory actions had caused her great distress.
Ms McGrady submitted that the Complainant was removed from her role and placed involuntarily in the “Internal Resource Pool” and maintained as such for discriminatory reasons. She contended that younger colleagues performed the duties which she previously performed and other younger colleagues were preferred and/or appointed to positions that were suitable for the Complainant, without any explanation or transparency, until December 2016.
In her written submission and in her evidence to the Court, the Complainant said that she was informed of the impending Catering reorganisation which would result in her role being made redundant on 23rd July 2013, while she was on holidays in Portugal. The Complainant said that this news came out of the blue, without notice or consultation. At the time she said that she was unaware that a review had been carried out into the operations of the Catering Department. She said that when she enquired as to the reasons for the restructure she was redirected to the HR Department.
At a meeting on 31stJuly 2013, attended by the HR Business Partner and the Director of Change and Engagement the rationale for the restructuring was explained to her and she was informed that there was no longer a role for her in the Catering Department. By letter dated 2ndAugust 2013, she was formally informed that her role would ceased with effect from 7thAugust 2013.
The Complainant disputed the rationale for the elimination of her role, she proceeded to raise a formal grievance with management and sought restoration to her managerial role in the Catering Department. She invoked a number of stages of the grievance procedure. The outcome of her grievance held that the Respondent was entitled to restructure the Catering Department in 2013. However, they held that the consultation and communication processes were inadequate and, in that regard, held that there were shortcomings in the Respondent’s approach, however it held that these shortcomings did not warrant the redress sought by her.
On 16thOctober 2013 she was offered the role of Team Manager in the In-flight Services Department however, this role was unsuitable to her as it involved shift work.
On 23rdNovember 2013, the Complainant was placed on a temporary placement in the training section of In-flight Services for a period of twelve weeks as an In-flight Training Administration Assistant. That role continued on a temporary basis into 2016. The Complainant told the Court that in November 2016, management informed her that her placement role in the Training Academy would be coming to an end and that she would be returning to the Resource Pool. The Complainant said that this was to accommodate a younger person returning from maternity leave.
At a subsequent meeting with management she made representations that she should not be in the Resource Pool and sought clarification as to her status, which management undertook to provide. In December 2016, management confirmed that given the length of time that had passed, the Complainant was no longer in the Resource Pool and was a permanent member of the Training Academy staff. She has continued in this role to present time.
In her evidence to the Court the Complainant said that there were three employees in the Training Academy at the time. In addition to her role as In-flight Training Administration Assistant there was a Training Co-ordinator who was a permanent member of the Academy and an employee on a short-term contract. In August 2015 the Training Co-ordinator went on maternity leave and she took over her duties. At the meeting in November 2016, she was advised that now that the Training Co-ordinator was returning from maternity leave and as she had been covering for her, there was no longer a need for her services in the Training Academy and she was to be returned to the Resource Pool. The Complainant contended that as she had been performing her duties to a high standard and had received her bonus each year, the only reason she could deduce for her removal from her role was her age. The Complainant was in her 50’s while the Training Co-ordinator was in her 30’s.
Under cross-examination, the Complainant accepted that she was in a temporary role in the Training Academy and that the Training Co-ordinator was a permanent employee of the Academy. It was put to the witness that when she objected to being removed from the Training Academy and explained that she had been there for three years, not only was she not removed but her position was made permanent. The Complainant accepted this, however, she said that she had requested that her role be reassessed.
Furthermore, the Complainant accepted that she had been offered a role while she was in the Resource Pool as a Team Manager, however, as the rostered hours did not suit her she declined the offer.
The Complainant alleged that as she was declared permanent in December 2016 in a role which she considered was a demotion from the role she held as Manager In-flight Sales, that this was a further act of discrimination on age grounds. She said that in the latter role she had the tile “Manager” which she no longer retained.
The Complainant accepted that she did not raise an allegation of age discrimination until she referred her claim under the Acts to the Workplace Relations Commission in January 2017.
In support of the Complainant’s contention, Ms McGrady citedMoate Community School v MoriartyEDA0718 in which the Labour Court assessed the burden of proof in age discrimination cases in the context of a promotion, it held:-
- ‘‘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.”
Summary of the Respondent’s Position
Ms Mallon stated that the decision to make the Complainant’s role redundant in 2013 was not related to her age nor was it performance related. She said that in 2013 it carried out a review of its Catering Department operations and decided to restructure the Department’s activities into two business units with their own separate management, a Flight Kitchen and a Supply Chain function which was to be subsumed within the Strategic Sourcing Department under a new Corporate Supply Chain Director. Arising from this the Complainant’s management role was no longer required and was made redundant.
As the Complainant’s role no longer existed, she was given the option to take a voluntary severance package or opt to be placed in the Resource Pool, which was designed to support employees who were displaced due to business change or restructuring with continuing employment and redeployment opportunities. Management stated that the Resource Pool provided an intensified search for an alternative permanent role, interim project work/placements, training and upskilling courses and other supports. It also provided the Complainant with a red circling of her remuneration and terms and conditions of employment.
Ms Mallon stated that since 2013, the Complainant has been offered a considerable number of role opportunities as part of the Resource Pool process, including the Team Manager role which would have been ideally suited to her as it involved people management responsibilities. She told the Court that the Complainant’s employment terms and conditions have not varied in any way nor has her grade changed. She has suffered no loss in terms of her remuneration and has benefited from pay increases during this time.
In November 2016, the Complainant was advised by her Line Manager that her placement role in the Training Academy would be coming to an end and that she would be returning to the Resource Pool. A meeting was subsequently arranged between the Complainant and the Head of Restructuring to discuss the Complainant’s position. The Complainant and her representative made representations to the Head of Restructuring that she should not be in the Resource Pool and sought clarification as to her status, which management undertook to provide. Management decided that given the length of time that had passed, she was no longer in the Resource Pool and was a permanent member of the Training Academy staff. She has continued in this role to the present time.
Ms Mallon disputed the Complainant’s contention that her permanency in December 2016 was an act of discrimination. She said that throughout the entire period from 2013 to the present day, her remuneration, all terms and conditions of employment have been preserved. She retains a managerial salary and holds the grade of Superintendent 1. The Complainant has received a bonus award for her performance for the years 2013, 2014, 2015, 2016, 2017 and 2018.
Conclusions of the Court
The Court carefully evaluated all of the evidence tendered in the course of this appeal together with the careful submissions made on both sides, the witness testimony and the extensive documentation put in evidence.
The allocation of the burden of proof as between the parties is now governed by Section 85A of the Acts. This Section provides a three-stage test.The Complainant must first prove the primary facts upon which she relies in advancing her claim of discrimination. If the primary facts are proved, or are admitted, the Court must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination. If the first two limbs of this test are satisfied by the Complainant the Respondent must then prove, as a matter of probability, that the Complainant was not subjected to unlawful discrimination.
The Court examined the events submitted by the Complainant to have occurred between the dates 14thJuly 2016 until 13thJanuary 2017. The Court is satisfied that the Complainant was informed that her role was at risk of redundancy when the Training Co-ordinator returned from her maternity leave. The Court is satisfied that this occurred due to a misunderstanding and when clarification was given to management she was not declared redundant and in fact was made permanent in her role. Hence, it would appear to the Court, this aspect of the case is moot.
Furthermore, the Court does not accept that sufficient facts have been established to infer that the Complainant was demoted when she was made permanent and as such no inference of discrimination on the age ground arises.
Taking all of the above matters into account the Court concludes that the Complainant has failed to establish primary facts from which it could be inferred that she was discriminated against during the cognisable period for the within complaint.
Therefore, she has failed to discharge the burden of proof which rests upon her and has failed to establish aprima faciecase 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 Complainant 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 Complainant on the age ground in contravention of the Acts at Section 8.
Determination
The Court determines that the Complainant was not discriminated against on the age ground.
The Adjudication Officer’s Decision is upheld, and the appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th December 2018______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.