Complainant

Respondent

Anonymised Parties

Medical services advisor

Medical insurance company

Representatives

Sean Ormonde & Co. Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011637-002

11/04/2017

The complainant commenced employment with the respondent on 2/2 /2015 as a medical services advisor. The complainant contends that the respondent discriminated against her on the grounds of gender and age in her conditions employment; that the respondent victimised the complaint; and that the respondent constructively and discriminatorily dismissed the complainant. The complainant was 27 during the course of her employment with the employer. Her employment ended on the 11 December 2017. The most recent date of discrimination was the 11th of December.

The complainant submitted a complaint to the WRC on the 11th of April 2017.

The complainant seeks redress in the form of compensation.

The complainant commenced her employment with the respondent on the 2nd of February 2015 as a medical services advisor. Her responsibilities included

pre-authorisation of inpatient treatment;

cost containment through tight adjudication, correct valuation of medical appropriateness and successful negotiation;

medical claims review;

ad hoc duties;

organisation of evacuations /repatriations while on night and evening shifts along with the evacuation manager on call- moving people to from say one location to another for purposes of medical treatment;

Using medical knowledge to decide on the medical necessity of the procedures and, materials to be used and reasonable and customary prices.

The complainant received a gross annual salary of €35,700 or €45,000 when night and weekend premia are factored in.

The complainant is a qualified registered nurse with wide experience in nursing and prior experience in a medical insurance company.

She was a member of a ten-person medical services advisor team comprised of 2 males and 8 females, led by Mr G.

Gender: Equal pay claim.

The complainant was paid a lower starting salary (€35,000) than the named, male comparator, Mr. D, (€39,000) a medical services advisor, doing the same or like work. The 2015 end of year salary increases for medical services advisors yielded a 2% increase for the complainant which saw her salary rise to €35,700 with a bonus and another gift giving an additional sum of €1375. She understands that a premium was given for having a second language.

She asked about the salary on numerous occasions and she was told by Mr G, her line manager it would be reviewed. She asked in an email on February 2016 for a salary review. It was reviewed - but no increase resulted. She believes the decision to place her on a lower salary than her named comparator D was unfair. She was never advised of the objective factors or the benchmarking which was applied to qualifications, experience in terms of the salary.

Age: Equal Pay claim

Ms. A, a female 7 years older than her who was appointed around the same time as the complainant was awarded 2.5% increase at the end of 2015 to her 2, plus a larger bonus.

Alleged less favourable treatment on Age and Gender.

The complainant was treated less favourably on the basis of age and gender in that the maximum cost which she could approve for release was €5000 and anything in excess of €5000 required approval. This restriction generated an increased workload as she had to manually input data and seek approval. She requested a review of the limit on 13 December 2015. It did not take place in 2015 in contrast to the male and older comparators who were permitted to exceed a release sum of €5000 at an earlier stage. She again requested an increase in her release limit on 12 of February 2016 and on 2nd of May 2016; she felt the amount should be the same as her colleagues some of whom started after her and had had their limit increased.

Complaint of Bullying.

The complainant states that she was treated to a sustained and ever escalating campaign of bullying by her manager Mr. G due to her age and gender. This campaign manifested itself in a number of ways.

Extension of her probationary period.

She views the decision to unnecessarily and unfairly place her on a PIP in July 2015, to extend her probation by 2 months to September 2015 because she did not meet the criteria contained in her job description, and to further extend it and PIP by one month to October in order for her to demonstrate her capacity to consistently meet the objectives set for her is evidence of bullying and discrimination on age and gender grounds as her male and older colleagues were not subjected to these processes. She was approved for appointment in October 2015.

She objected in an email dated 13 August 2015 to being failed on the PIP due to errors appearing in approximately 4 of the 150 emails she writes a week. Weekly meetings with Mr G were part of the PIP plan and most of the time she was uncomfortable with these meetings. He would be red-faced tense and with his hands clenched. She asked for another manager a number of times to sit in but this didn't happen. She was crying at one meeting. She advised Mr. G that it was damaging to her morale to be constantly critiqued and that she has become anxious. She maintains that the respondent failed to identify exactly what was required of her to successfully complete her probation and PIP.

Refusal to pay her overtime.

She was refused payment for same unlike her male comparator, D, who was properly paid all overtime payments due to him.

Micromanaging as an example of alleged bullying on age and gender grounds.

D, the male comparator was not micromanaged. Mr G never sent any of his or older staff’s emails on to a third party, nor hailed or clapped their emails as an example of the merits of following his advice as he did with the complainant’s emails. She considered that this was intended to portray her as a child. In an email on 13 August   2015, the complainant objects to being the only advisor whose emails were constantly checked despite her having observed errors in other advisors’ emails.

Refusal to afford the complainant flexibility in her shifts.

She asked Mr G for 20 minutes off as she had an appointment; he refused. He did facilitate other members of staff getting time off.

On the 8th of August 2015, her request for time off to attend her grandmother’s funeral was met by a request from Mr G to furnish a death certificate the following Monday.

Frivolous sanctions and reprimands.

Hercomparator, D, did not receive frivolous reprimands and sanctions. Mr G falsely accused the complainant on 1 December 2015 of having offended a colleague which was denied by the same colleague.

Request for parity in opportunities for skills enhancement.

The complainant asked 20 February and 2 May 2016 for an increased involvement in medical services, evacuations and repatriations. It was refused.

Impossible targets:

She was required to complete 30 cases a day and send confirmation to 12 clients that their procedures would be funded by the respondent. Mr G sent her emails at 7am at the time of the handover after the night shift asking why things weren’t done. She raised this matter with Mr G but he would laugh it off and on and continue to do it.

Shadowing and mentoring of the complainant.

The complainant objected to being mentored by A in 2016. A started a few months before her but she was happy to be mentored by L a more senior medical advisor.

She found it very difficult and stressful to work with Mr G. He spoke more respectfully to her male colleagues, D and L. He took their opinions more seriously.

The complainant made an informal complaint of bullying on 27 July 2016 to the respondent. Her oral evidence was that she complained to the respondent that Mr G treats her differently to males. He treated her as if she was a child, for example, exaggerated clapping concerning her emails in front of other staff. She wasn’t sleeping at night.

She met Mr C, HR Business Partner on the 27th of July 2016. She said she'd like someone else to accompany her at meetings with Mr G. She didn’t want to submit a formal complaint because she didn't want to jeopardise Mr G's job. Mediation did take place. The complainant was moved to Mr. C’s team against her wishes. She wished to stay in her existing team but with a different manager. She believes the transfer only happened because she made a complaint of bullying against Mr G.

The complainant tendered her resignation on 11 October 2016 as her complaint had not been dealt with. She advised the medical team supervisor several times that she was only leaving because of the treatment she experienced. In the two months’ notice period no effort was made to dissuade her or to engage with her. Mr G did not greet her in the mornings. The complainant had to seek alternative employment because of her ill-health. Certificates were submitted indicating her unfitness to work.

The complainant found the exit interview to be degrading and very hurtful in that no apology came from management concerning the bullying. Her health was affected. She went to counselling. She would have liked to have stayed with the respondent and the situation is still affecting her.

Cross-examination by the respondent’s solicitor,

The complainant accepted that her contract of employment allows for the extension of her probation, PMAD and placement on PIP-all options exercised by the respondent. The contract also included a bullying and harassment procedure and grievance procedure and the complainant accepted that she agreed to these policies in her contract.

Salary. Regarding the complainant being offered a lower salary than male colleagues, the complainant accepts that Mr G has no input into the salary payable to the complainant. The complainant started on €35,000 and the company matched her expectations. The complainant stated that she was seeking a salary review, that she did not query her starting salary. She pointed to the fact that other medical service advisors had €4000 more than her. The respondent states that grade 6 is the medical service advisor grade and the complainant agreed that neither age or gender are included in the criteria. The complainant accepted that there were four male team members at the end of 2015; one male who was 13 years older, was paid €39,000, was a qualified SRN with 11 years’ experience and three languages, and an older female, with 2 more years’ experience in nursing and a language was paid € €39,000.

The respondent’s representative asked the complainant to identify where the company acted outside of its own policies as set out in that her contract of employment. The complainant responded that Mr G was difficult in that he over monitored her, that she notified him and his manager of this.

When asked about how the shadowing was linked to her age she stated in response that she was comfortable with L, a more senior advisor and that she was micromanaged by Mr G.

The complainant’s representative submits that the comparator D was treated more favourably for the reasons set out above.

The complainant submits that if the named comparator is not applicable in any way, the complainant is entitled to rely on a hypothetical comparator who the complainant alleges would have had his repeated complaints of bullying and harassment addressed by the respondent. The complainant’s representative states that a comparator is not required in a complaint of harassment and victimisation.

Burden of Proof

The complainant’s representative relies on Ntoko v Citibank, (2004) ELR 116 which states 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 rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory” The complainant’s representative also refers to Dublin Corporation v Gibney’s EE5/1986” which describes prima facie evidence as ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”

Relying on the above cases the complainant’s representative states that the evidence submitted on behalf of the complainant raises an inference of discrimination and that the onus must shift to the respondent to rebut.

Complainant of victimisation

The victimisatory act of which the complainant complains is her involuntary transfer to another team in July 2016 in retaliation for her having made a complaint of bullying on age and gender grounds against the respondent. She had made numerous complaints which were ignored or inadequately addressed.

Constructive discriminatory dismissal.

The complainant’s representative refers to the decision of An Employer v A worker (Mr O(No 2) EED0410 where it was established that the same tests which apply in cases of constructive dismissal under the Unfair Dismissals Acts 1997-2001, apply in cases of constructive dismissal in the context of claims of discrimination. This was followed in FergaL Reilly v United Parcels Service CSTC Ireland Ltd DECE2013077 where the complainant had been held to have been discriminatorily constructively dismissed in circumstances where the respondent failed to provide reasonable accommodation and failed to satisfy the reasonableness test.

The complainant ‘s representative asserts that in either applying the reasonableness test or the contract test to the respondent’s behaviour towards the complainant, the evidence demonstrates that she was constructively and discriminatorily dismissed on the grounds of her gender and age.

The complainant had no choice but to resign in the face of the respondent’s failure to deal with her complaints of discrimination on gender and age grounds, the victimisation of the complainant for having raised complaints of discrimination, and the destruction of the mutual trust and confidence which should attend the employment relationship.

The complainant seeks compensation that is proportionate, effective and dissuasive

The respondent denies the charge that they discriminated against the complainant on age or gender grounds or that she was victimised or constructively discriminately dismissed.

The Complainant commenced employment with the Respondent on 2 February 2015 as a Medical Services Advisor. Her role corresponds to the duties set out in the complainant’s submission

The equal pay claim as evidence of alleged discrimination on gender and age grounds.

The complainant was offered a starting salary of €35,000. This level of salary was based on the complainant’s skills and experience and comparative market compensation for similar roles. The complainant received a 2% salary increase in January 2016 following her 2015 year-end performance rating of fully meets.

Eight new medical services advisors joined in 2015, comprised of seven females and 1 male. All bar the complainant started on the higher salary of €39,000 based on their clinical, other work experience and language skills. The difference in salary identified by the complainant between herself and the named, male comparator, is down to the fact that he had more clinical and evacuation experience and had additional languages whereas the complainant had English only.

The complaint of discriminatory pay arrangements based on age focussed on A, a female, a few years older than the complainant who got a higher increase at the end of 2015 based on her performance which was rated as exceeds as opposed to the complainant’s which was rated as fully meets. A had displayed excellent performance during her first year (2015) and was offered a pay increase for 2016 that was significantly higher than that being offered to the Complainant on the basis of that performance.

On 25 May 2016, the complainant raised a query with HR in relation to her salary, stating that she had become aware that an ex-employee, a female, in the same role as her had been in receipt of a higher salary. The relevant HR Business Partner responded

“A salary offered to an employee when they join A is based on a number of factors (quality of experience, language capability, educational background, interview performance, market rate, internal benchmarking, etc.). Candidates don’t tend to have the same background or interview performance hence differences in salary offered”

Extension of the probationary period and placement on PIP as evidence of alleged bullying and harassment on gender and age grounds

The complainant’s performance was tracked and managed using the agreed processes-Respondent’s Performance Management and Development (PMAD) process. At the 4-month review meeting on 9 June 2015, the records indicated that she had completed her training but that her trainer had some concerns about her progression. Her manager advised her to use the remaining 2 months of the probationary period to develop and get to know her role better. At the next meeting on 2 July 2015, her manager, (to whose team she had by then transferred), advised her that there were still issues in relation to her performance and her ability to successfully complete her probation period. The complainant was presented with a Performance Improvement Plan (PIP) setting out specifically in a list what her targets were for successful completion over the 8-week period of the PIP. The issues identified at that meeting with the complainant were medical competency, attention to detail and the volume of queries handled per day. As part of the action plan to address these issues, it was agreed that there would be weekly meetings to discuss progress, a daily audit of responses to queries, and daily feedback and monitoring. The complainant signed off on these lists.

On 12 August 2015, Mr G met with the complainant to review her progress. He had formed the view by that time that the complainant had, some 3 weeks ahead of schedule, made sufficient progress for the formal conclusion of the PIP. He recommended that she should pass her probation stating in an email to his line manager that “currently she is at the expected level of a new start. We find the time left until we finish the probation period enough to conclude about her consistency.” However, as Mr G was himself relatively new to management, he would have to discuss the matter with his line manager, Ms R, before finalising the decision. Mr G, Ms R (Assistant Manager, Medical Services), in consultation with HR, decided to further extend the complainant’s probation period by a further month (to 2 October) in order to confirm that she was able to consistently display the basic standards of performance that she had now achieved following completion of the PIP. The complainant was advised on 28 August 2017 that her probation would be extended and of what was required to successfully complete it.

On 13 August 2015 and not yet aware of the status of her PIP, the complainant sent a lengthy email to Mr G asserting that she is being overly scrutinised in terms of her performance. There is no mention or accusation of bullying or any other inappropriate behaviour on the part of Mr G or any other manager. In fact, the complainant states towards the end of the email: “I appreciate the time and effort that you have given me.”

On the 1 September the complainant also asserts that she is “…being treated unfairly in this department”, although she offers no basis for this complaint nor does she allege that Mr G has done anything improper.

Mr G responded on 4 September 2015 setting out the responses to the complainant’s questions – many of which had already been provided in earlier emails or face to face conversations with her.

The complainant successfully completed her probation on 2 October 2015.

At the end of 2015, the complainant was rated as a “Fully Meets” in her end of year performance rating. In his comments on her performance for the year, Mr G noted the following:

“SHE had a good second half of the year after successfully finishing her performance improvement plan (PIP). She is now very fit in the team…S is one of the complaints’ champions of the department”.

The complaint of bullying.

The respondent denies that the complainant made repeated complaints of bullying to the respondent. The complainant in August 2015 expressed the view in an email to Mr G that she was being treated unfairly. On or about 27 July 2016, the complainant raised an informal grievance concerning Mr G’s management style and made allegations that he had bullied her. Mr C, HR Business Partner, met with the complainant by way of an initial meeting to determine the scope of her complaint. The complainant made it clear that she did not want to make a formal complaint but rather wanted to proceed on an informal basis.

The substance of her bullying complaint as conveyed to the respondent was as follows:

Mr G’s communication with her was childish, unprofessional and inappropriate. She felt that Mr G did not like her and put unnecessary pressure on her, that he was looking over at her in the office and sending her emails at 7am asking why things weren’t done; and that Mr G needed to be more explicit and to the point in terms of performance management.

Mr C and Ms M (Medical Services Manager) agreed that Ms M meet directly with the complainant. Ms M reassured the complainant that the issues raised would be resolved informally. Subsequently, an opportunity arose to transfer the complainant into a different team of Medical Services Advisors, within the department. A team led by Mr. C (Medical Services Supervisor) to whom the complainant had previously reported, had taken on a major new client, which required English language only Medical Services Advisors. As the complainant’s only working language was English, it was decided that it would be appropriate for that reason to move her to this other team. It also seemed to be to the benefit of all parties involved, as the complainant and Mr G obviously had a difficult professional relationship. The complainant requested, unreasonably, that she should continue working in the same team, but under a different manager. In parallel with this, Ms M continued to coach and mentor Mr G to further develop his management capabilities particularly in relation to dealing with requests for bereavement leave. Despite her initially refusing to move teams, the complainant ultimately moved to the team of Mr C. At an early one to one meeting with Mr C, the complainant commented that she was actively searching for external positions and was not intending to remain with the respondent. The complainant also informed Mr C that she felt that Mr G had not managed her properly but that she did not want to raise a formal grievance. She made no mention of bullying. From the company’s perspective, the complainant’s informal grievance had been closed, in that she had moved from Mr G’s team and now reported to Mr C, and she did not wish to raise a formal grievance.

The respondent denies that the Mr G passed around emails as an example of how the complainant had improved, nor did Mr G hail her emails with clapping as alleged. The respondent does not accept that bringing the complainant into a room on 1 December 2015 to discuss alleged comments made to another colleague is tantamount to a charge of misconduct which is the construction put on this episode by the complainant.

Victimisation.

The complainant in August 2015 expressed the view in an email to Mr G that she was being treated unfairly treated. She made a complaint of bullying against Mr G in 2016.She made no complainant of discrimination. The respondent denies that the transfer to Mr C’s team could be held to be adverse treatment. Even were it to be seen as retaliation, it could not be held to amount to adverse treatment.

Constructive discriminatory dismissal.

The respondent states that there is no evidence to ground a claim of constructive discriminatory dismissal. The evaluation of the complainant through the agreed processes was as per her contract of employment. Even were it to be held to be held that the requirement for continuous assessment and support was unnecessary, which is denied, there is no inevitable link between the employer’s behaviour and the age and gender grounds. The respondent has not behaved in a way or exhibited behaviour that would leave her with no choice other than resignation.

The respondent referred to the decision of the Supreme Court in Ruffley v The Board of Management of St Anne’s School [2017] IESC 33, which dealt with the issue of managing staff performance- a frequently difficult experience for the employee concerned. However, it does not amount to bullying or harassment simply by its occurrence. The Court stated” …Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task…Appropriate interventions may not be pleasant and must simply be taken in the right spirit.”

Other than her comment about being treated unfairly in her email of 1 September 2015, the complainant had raised no issues in relation to her employment or her relationship with Mr G.

The complainant raised an informal grievance about bullying behaviour. She declined to appeal the outcome.

Refusal to extend the complainant’s experience as evidence of alleged discrimination.

The respondent submitted copies of emails from 2015-2016 which outlined to the complainant what was required of her in order to increase her release limit of €5000, and enjoy greater experience and engagement in evacuations and repatriations – limited access to which she cited as evidence of discrimination on age and gender grounds.

In a meeting with Mr. G in July 2016 in which she was discussing enhancing her on- the -job experience, the complainant expressed that she was disappointed that no-one had “…apologised to her…”, although she did not indicate for what. Mr G told her that Ms R would respond to her on this issue. The respondent also submitted copies of emails which acknowledged her positive contribution to the company. Evidence of meetings between Mr G and the complainant were submitted. These again amplified the respondent’s expectations and assessment of the complainant’s performance and provided reasons for same.

Mentoring as evidence of alleged bullying.

Mr G had a one to one meeting with the complainant on 16 February 2016. Mr G also suggested that the complainant seek out a mentor (either inside or outside the Respondent’s organisation), as this could assist the complainant. Mr G sent an email to the complainant to confirm what they had discussed. He indicated the complainant should “Feel free to add your side of the story”.

Leave and non- payment for overtime as evidence of alleged bullying on gender and age grounds.

During a meeting on the 14 July 2016, Mr G also discussed with the Complainant the fact that she was refusing to take annual leave to attend external appointments as was normal practice, even though he and the respondent had been flexible in this regard but could no longer do so. The complainant refused and stated that she was entitled to have paid time off for those appointments. Time in lieu for overtime was discussed. Mr G pointed out the respondent’s time and attendance software. She was not entitled to overtime based on data collected. She challenged the reliability of the systems.

The complainant was subsequently invited, on 11 October 2016, to an absence review meeting with HR and her line manager, to review her high levels of absence -24 days in a rolling 12-month period compared with an average absence rate of 3.5 days. Contrary to her assertions in her submission, none of the medical certificates submitted by the complainant during 2016 mention stress of any kind as a reason for her absence.

On the same date, the complainant submitted her letter of resignation indicating that she had received an offer of employment as a Staff Nurse in a private hospital and that the offer was “…too exciting for me to decline.” She thanked Mr C for the opportunity to work for the Respondent. She did not make any mention of difficulties in relation to her employment or allude to any other reason for her resignation.

The Relevant Law

Employment Equality Acts 1998 to 2008.

Onus of Proof.

The person making a complaint of discrimination is obliged by virtue of section 85A of the Acts to establish facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only when these facts have been accepted as sufficient to raise an inference of discrimination that the onus moves to the respondent to rebut the inference of discrimination.

The respondent relies on Melbury Peters V Arturs Valpeters, EDA 0917. The labour Court further developed the onus, set out in the latter case, which rests with a complainant, in Margetts v Graham Anthony and Company Ltd which stated that

“The mere fact that the complainant falls within one of the protected grounds is not sufficient to establish a claim of discrimination. The complainant must establish other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

The respondent submits that the complainant has failed to discharge the burden of proof and the claim must therefore fail.

The matter for adjudication is whether or not the respondent discriminated against the complainant, and contrary to Section 6 (1) of the Employment Equality Act, 1998.The complainant asserts that she was treated less favourably on grounds of gender and age.

Burden of proof

The onus of proof is on the complainant to establish a prima facie case of treatment contrary to the Acts. Section 85A of the Acts provides that facts must be “established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her …      

The argument that mere membership of a protected class and difference in treatment is sufficient for a complainant to meet his or her burden of proof in terms of section 85A was rejected by the Labour Court in Melbury Peters V Arturs Valpeters, EDA 0917.

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit…All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The complainant, a female, is within the protected class as set out on section 6(2) a of the Act which prohibits discrimination.

Equal Pay Claim: Gender.

Section 19(1) of the Act provides that “it shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer”.

The complainant and the comparator are employed on like work. The complainant is paid a lower salary.

Salaries were based on defined criteria applied universally. The application of the stated criteria resulted in 6 females, who commenced around the same time as the complainant, attracting a higher starting salary than the complainant based on prior experience and languages. Her complaint that she was paid less than D based on her gender is not supported by the evidence. He had greater clinical experience, other relevant experience and languages. The respondent advised her of the various criteria which informed the salary level. Her complaint that her failure to keep pace with the pay increases awarded to males as evidence of discrimination is not supported by the evidence. Salaries were reviewed annually based on performance. She did not challenge the rating of fully meets which she secured at the end of 2015. This earned her 2% increase as opposed to the 2.5% increase netted by those medical services advisors whose performance attracted the rating of exceeds.

I find that the respondent has made out a defence under section 19(5) of the Act which states “Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees”.

Having evaluated all of the evidence adduced I find that the difference in pay as between the complainant and her comparator is grounded on considerations unrelated to her gender or the gender of the comparator.

Equal Pay Claim; Age

Section 29(1) of the Acts provides for equal pay on the non- gender grounds listed in section 6 (2) of the Act. The complainant and the comparator are employed on like work.

This complaint focuses on the fact that the comparator, Ms A, 7 years older than the complainant was awarded a total end of 2015-year package of €3125 compared to the complainant’s package of €2055 (incorporates salary increase, plus bonus, plus gift).

I accept that the difference in the end of year pay awards was attributable to the uncontested performance rating. I find that the respondent can rely on section 29(5) of the Act which states “Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees”.

I therefor conclude that the difference in remuneration paid to the complainant relative to the comparator Ms A is grounded on factors other than age.

Probation and placement on PIP,

I can accept that falling shy of the employer’s expectations can be a very difficult experience. However, the complainant was contractually obliged to co-operate with the respondent’s processes for tracking an employee’s progress and suitability from commencement of her employment right up to probation. She did not object to the tools used to measure her or the indicators. She did not identify which part if any of their analysis was incorrect. She characterised it as unfair and demoralising but that is not a critique of the model of assessment or the indicators used in the PMAD. Reports of 9 June ,2 and 13 July concerning where she needed to improve were not challenged by the complainant. She signed the review of 2 July as an accurate analysis. She did state that the demands were excessive but not, it appears, at the time. I do not find the application of PMAD, her extended probation and placement on PIP constitute discrimination on gender and age grounds. I cannot find that the application of agreed processes- however challenging ,yet universally applied irrespective of age and gender- albeit producing different ratings – was inherently discriminatory on age and gender grounds.

She chose not to use the grievance procedure to correct any of the respondent’s inaccurate assessments.

Refusal to extend her experience

The respondent’s refusal to increase her involvement in particular areas such as evacuation and repatriations s and to increase her release limit, advanced as evidence of discrimination was in the context of her requirement to keep pace with her targets. As stated there is no evidence that she submitted comments or analysis to the report forms connected with PMAD to challenge this analysis or at the adjudication hearing. I do not find this to be evidence of discrimination.

While the     complainant is dissatisfied with how she was treated by the respondent and he might have been more responsive to her sense of grievance, having   considered the evidence, I find that the complainant has not established primary facts that establish a prima facie case of discrimination on age or gender grounds.

Complaint of Victimisation.

In the case of   Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts:

“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts;

(2) The Complainant was subjected to adverse treatment by the Respondent, and;

(3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant must have taken an action of a type referred to at Section 74(2) of the Acts before considering the second and third limbs of the test. Even if the complaint of discrimination does not stand up as already determined, it is the making of such a complaint that triggers protection under this Section. Section 74 of the Act of 1998 as amended defines victimisation as

“(2) For the purposes of this Part, victimisation occurs where 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,

(b) any proceedings by a complainant,

(c) n/a”

To make a representation to your employer that you are being treated less favourably than males and in addition that you are being bullied is a protected act. The respondent states that no complaint of discrimination was made.

The second element of the test at 2 above is that the representation resulted in adverse treatment, identified by the complainant as the involuntary move out of Mr. G’s team and into Mr. C’s team. The respondent did acknowledge that there was a problematic relationship between Mr. G and the complainant. The complainant’s contract appointed her as a medical services advisor and not to any specific team. In Mr. C’s team she was paid the same wages and none of her conditions altered to her detriment. Given that the complaint was insistent on using the informal method it was unreasonable for the complainant to expect the respondent to move Mr. G out of his team based on complaints made by her, but which were not subject to the rigours of a formal investigation. That was the only means by which the respondent could establish their validity or accuracy. Her complaints and Mr. G’s behaviour merited such scrutiny. The complaint did not move into the formal stage and appeal the decision not to move Mr. G and to move her instead.

A genuine vacancy existed in Mr. C’s team. They required a person with familiarity with the English market and competence in English.

I can accept that she believed that her complaint warranted a different response but that does not necessarily constitute adverse treatment.

As I do not find the move to Mr. C’s team to be adverse treatment it is not necessary for me to consider the connection between the protected act and the involuntary transfer to Mr. C’s department.

I do not find that the evidence supports the complainant ‘s contention that she has raised a prima facie complaint of discrimination on age and gender grounds based on this complaint of victimisation.

Constructive discriminatory dismissal.

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides: “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…”

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The same tests apply to a complaint of constructive discriminatory dismissal as apply to complaints brought under the Unfair Dismissals Act 1977.

This contrast with the position where dismissal is not in issue. This definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

In support of her assertion that the employer’s conduct was so unreasonable as to leave her with no option other than resignation, the complainant points to the complaints of discrimination, bullying and victimization which were ignored. But the respondent submitted more persuasive evidence demonstrating the efforts made to explain to her what was required. There is an absence of oral and written evidence supporting the complainant’s contentions. She chose not to use the platforms which she was required to use to give her side of the story. The complainant failed to use the agreed processes to have these complaints rigorously examined and remedied.

The Labour Court in a recent case concerning a constructive dismissal complaint-UDD 1810 -again referred to the requirement to use agreed processes

“a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank LimitedUDA474/1981”. UDD 1810

The complainant initiated a complaint but did not see it through.

The medical certificates which she submitted to the respondent failed to link her illness to the workplace.

I do not find that the respondent’s actions leave the complainant with no option other than resignation.

I have decided to anonymise the parties as the complainant is rebuilding her career.

I do not find that that the complainant has established facts from which discrimination based on gender and age grounds, victimisation and discriminatory dismissal can be inferred. Therefore, her complaint cannot succeed.

Victimisation, constructive discriminatory dismissal, discrimination on age and gender grounds. Failure to use processes