ADJ-00013259

Complainant

Respondent

Parties

Louise  Moss

Health Service Executive

Complainant

Respondent

Anonymised Parties

Louise Moss

The Health Service Executive

Representatives

Gareth McCrory B.L. and Patricia McCallum B.L. instructed by JoleneMcElhinney,  McElhinney & Associates Solicitors

Bob McArdle, Solicitors of  Patrick J. Durcan & Co Solicitors

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-00017373-001

09/02/2018

This gender-based equality complaint concerns changes to an employee’s responsibilities following a period of maternity leave. It also is a complaint of victimisation, which arose after an equality grievance was raised with her line manager. The alleged adverse treatment is the deliberate frustration of a job evaluation application.

The Complainant worked as an assistant staff officer grade 4 in the paediatric department of a hospital. Prior to taking maternity leave in August 2014 her responsibilities were managing secretarial and administrative support, managing staffing cover, supervising 3 administrative assistants, assisting doctors when they were doing their paediatric placement and dealing with service user complaints.

The Complainant’s line manager was Coleen Rooney (CR). During her period of maternity leave in 2014/15 staffing changes occurred in the paediatric department whereby the administrative support staff, who had previously reported to the Complainant, were promoted to grade 4 but the Complainant was not promoted to grade 5. Also, during her maternity leave, the Complainant successfully applied for a post transfer however because the transfer was not sanctioned by CR, she was not permitted to take up the post. This post would have suited the Complainant as it was close to her home and she had just had a baby. At this time, she raised the transfer issue with a senior manager, but nothing could be done.  Also, during her maternity leave, CR did not inform her of a grade 5 vacancy that would have suited the Complainant and when the Complainant raised this issue with CR, CR responded by saying that upon the Complainant’s return from maternity leave, that it would be best if they no longer worked together. 

On her return from maternity leave, the Complainant’s role and responsibilities had been diminished. She spoke with CR who would not accept any of her grievances. CR told her that it had been a mistake on the Complainant’s part, to complaint to a senior manager and had she not done so, “she would be in the Stranorlar job now.” This was a reference to the transfer position that the Complainant had obtained but was not allowed to move to by CR. From this the Complainant believed that AB was intent on penalising her for raising a complaint.

The Complainant raised a formal equality grievance about her diminished role and also about the conduct of CR. She believed that she had been discriminated against by the changes to her responsibilities and because staff who had previously reported to her and who had been grade 3 level had been promoted to grade 4 while she was left at grade 4, despite her clear seniority to them. She also believed that AB, in a number of ways and by her own admission had acted in way to block the Complainant’s promotional aspirations.

Ultimately, her grievance was not upheld however one of the findings of the stage 2 hearing was a recommendation that thereafter she would report to a different line manager, which happened.  She thereafter reported instead to McL, who in turn reported to AB. However, the Complainant was not told this at the time.

The Complainant continued her grievance to a stage 3 hearing and the outcome of which was again that her complaint was not upheld but it was recommended that she apply to have her job evaluated under a new 2016 Job Evaluation Scheme, with the possibility of being re-graded to a grade 5 post. This recommendation was made in October 2016. This process offered some glimmer of hope to the Complainant that she could progress her career.

The following September 2017 the Complainant submitted her application under the Job Evaluation Scheme. The process of the scheme is to apply through one’s line manager for the purpose of having one’s position evaluated. If it is considered that the role has been wrongly graded, then the scheme allows for this to be rectified.

The Complainant did not receive an acknowledgement of her job evaluation application and wrote a number of emails on 11 October and again on 3 November 2017 asking McL whether her application had been received and was it being processed. There was no reply to this however by way of a telephone call on 9 November 2017, McL explained a number of issues with the format and content that the Complainant had adopted when filling out her application. She went on to explain that the Complainant’s former line manager CR had told her, McL, that unless these problems were rectified the application could not be processed. The Complainant was surprised and immediately extremely concerned as since the grievance outcome, the Complainant’s reporting duties were meant to have been entirely removed from CR. Up until this point the Complainant was not aware that McL reported to CR. She believed that this made a farce of the recommendation that she be removed from CR’s line management. The Complainant believed that it was entirely inappropriate, given the recommendation that the Complainant’s reporting duties be taken away from CR and yet now, CR was in a position of influence over whether her position would be evaluated under the job evaluation scheme and was impeding that evaluation.

From that point onwards, i.e. from November 2017 until the WRC complaint was issued in January 2018 the Complainant requested that the issues as communicated to her by McL be set out in writing. The reason that she requested this was because she now had reason to believe that the criticisms of her application had no basis but rather were a stone walling device by her McL, on foot of direction from CR, to prevent her job from ever being evaluated. She believed this because McL had already prevented her advancement in the past on a number of occasions and now wanted to penalise her from bringing an equality complaint against her in the first place. The evidence of lack of good faith was evidenced by the comment that CR had made “If you hadn’t gone to the senior manager, you’d now be in the Stranorlar job.”. The Complainant knew that McL would not act against the instructions of CR and this meant that, ultimately, she was still under the management of CR. As a result of this, her promotional prospects had been and would continue to be, frustrated.

The Complainant’s WRC equality complaint initially was for firstly for direct discrimination and secondly, victimisation for making an equality complaint against CR. During the course of the adjudication the complaint for direct discrimination was withdrawn leaving the victimisation complaint to proceed.

The Respondent concedes that the original equality grievance constitutes a protected act under the 1998 Act. The Complainant submits that the failure to progress her Job Evaluation Application from September 2017 onwards and the failure to provide written reasons as to why the application was defective, as suggested by the Respondent between October 2017 to February 2018 is adverse treatment. In light of the manner in which CR dealt with the Complainant an inference should be made between the protected act and the adverse treatment, which is prima facie evidence of victimisation/ penalisation.

The Respondent submits as follows;

For a victimisation complaint to succeed one needs to show:

The existence of a protected act, adverse treatment of the Complainant and evidence that the adverse treatment occurred solely or mainly as a result of the protected act being made.

The Respondent accepts that there was a protected act (in the bringing of an equality grievance in 2015). They do not accept that the delay from September 2017 to February 2018 constitutes adverse treatment (given that that Job evaluation process is still fully available to the Complainant) They fully dispute the contention that the delay occurred solely or mainly as a result of the protected act being made.

No nexus has been shown connecting the raising of the original equality complaint, by way of an internal grievance in 2015, and the delay in progressing the Complainant’s job evaluation application from September 2017 to February 2018

The job evaluation scheme is an objective analysis of an employee’s grade. It involves a consideration of the work done presently by the employee and the responsibilities that are held at the time the application is brought. It is not a mechanism to resolve a complaint when responsibilities of a post are changed or reduced or if an employee that a grievance complaint has not been upheld. Therefore, the JES process whereby an application is brought is strictly formulated. The purpose of the JES is to ensure that the work being done, at the present time, is correctly graded.

The Complainant was unhappy that her grievance was not upheld in 2015/16, she was unhappy with the way she had been treated by CR, she was unhappy that her post responsibilities were changed during the period that she was out of maternity leave, however the JES was not a resolution to that. The JES rather is there to assess the work being done at present. The process of the JES is for an employee to liaise first with his/her line manager to ensure that the JES application meets the format criteria and once that is done, the application is forwarded to the general manager. It is a completely separate process to the issues that the Complainant raised in her grievance, a grievance was that not upheld and about which she did not raise a WRC complaint at the time. The Respondent submits however that in the mind of the Complainant she has conflated the two processes and saw the JES a way to remedy the unsuccessful outcome of her grievances, which it was not.

The Complainant filed her JES in late September 2017. The time line after that does not indicate either excessive procrastination on the part of the Respondent nor any attempt, as is alleged by the Complainant, by CR to punish or penalise the Complainant. CR’s involvement with the application was very limited to advising McL on the JES criteria and identifying possible problems or defects with the Complainant’s application as it then was. CR returned the application form to McL in October and informed the Complainant of this by email on 24 October. If she was responsible for any delay it was for a matter of days. Thereafter she had no involvement with the application.

On 9 November 2017 McL telephoned the Complainant to tell her that certain attachments on the application would have to be removed before the application could be forwarded to the general manager.

It is accepted that from 20 October 2017 the Complainant requested that the criticisms of her application be put in writing to her. It is accepted too that on 10 November 2017 the Complainant repeated this request and that this was never done in advance of the WRC complaint being issued in February 2018, however McL had requested the Complainant to meet with her to discuss the matter in October 2017 and the Complainant had refused to do that. The delay in dealing with the application was because the Complainant refused to accept that there were defects with the application that she had filed. These defects had been raised with the Complainant as early as 11 October 2017 when McL phoned the Complainant to discuss her application. The defects in the application were that she should not include references which accompanied the application (because that might be classed as canvassing) and she was confined to describing her current job function (not the one she had held before her maternity leave). The phone discussion 11 October 2017 was only a general highlighting of the defects however had the Complainant gone to McL and discussed it in person, as McL had suggested, the defects in the application could have been clarified in greater detail. The problem was the Complainant did not want to accept the criticisms of her application and once she heard that CR had given advice on the application she became immediately defensive and assumed odious explanations when the real explanation were valid, ie the JES criteria were being ignored by the Complainant. At no stage was did CR instruct McL to delay the application. McL delayed in providing the Complainant with a written response to her application, but this was because she would have preferred to sit down with the Complainant to go through the application verbally as emailing was “not really her thing.”  McL retired soon after the WRC complaint was brought. McL had hoped that the Complainant would have come to her office to discuss the application as suggested and she was surprised when the WRC complaint was brought because while she accepts that the Complainant requested the reasons to be furnished in writing, she did not say that she would go to the WRC if they did not.

CR gave evidence that her involvement with the Complainant’s job evaluation scheme application was limited. The reason she discussed it at all with McL was because McL had asked her, she was McL’s line manager and only she and the HR manager knew how the new JES criteria were applied. She returned the application to McL in October and merely told McL that references would have to be excluded because they might constitute canvassing and also that some of her job responsibilities were inaccurately described. Thereafter she had no involvement in the process. Her advice to McL would have been exactly the same had there been no adverse work issues between herself and the Complainant in the past. She denies ever saying to the Complainant on her return from maternity leave that she would have got the transfer to Stranolar if she hadn’t complained about her to a senior manager.

It is regretful that an Industrial Relations case was not taken alongside this equality complaint, because if it had, this complaint would have found a remedy.

I am in no doubt that the way that the Complainant was treated in relation to the processing of her JES application was, at best, untoward.

The finding of the stage 2 grievance, that was, to remove the Complainant from CR’s line management was not something that had been sought by the Complainant in the grievance process. This suggestion had first come from CR. Nonetheless this is what was decided upon by the stage 2 decision makers and the Complainant accepted this outcome. I do not question the appropriateness of this decision, I assume that the level of unhappy interpersonal difficulties between the Complainant and CR had reached such a height that this change in line management was considered what was in the best interests of the parties and the best interest of the management of the department. However this was the outcome that was decided.

That being the case, why CR did not immediately decline any involvement in assessing the Complainant’s job evaluation application, when McL sought this advice from her, is surprising. It was not up to McL to identify the conflict of interest because she had not known about the previous equality grievance brought against CR. The conflict of interest was the responsibility of CR’s to identify and she should have stepped aside from any such involvement.  Then having not stepped aside but having quickly identified that the only contribution she would make would be one that would be critical of the Complainant’s JES application, I am surprised again that CR did not pause to take a step back from this involvement. As she admitted in evidence, the HR manager could have assisted McL with the JES criteria. And yet CR did not step back. Given the unhappy history between them, given that the Complainant’s grievances had not been upheld, although her work was clearly held in high value, given that the stage 2 recommendation was to replace CR as the Complainant’s line manager going forward, for CR then to even consider having any involvement in the Complainant’s line management especially when it was going to be critical of her attempt at being regraded, was misguided, at best.

The inappropriateness of this manner of dealing is not evidence of a breach under the equality legislation but it was in breach of the outcome of the stage 2 grievance outcome and as such the Respondents acted in breach of their own IR protocols.

However, this is an equality complaint and more specifically it is a complaint of victimisation.

It is conceded by the Respondent that the equality grievance constitutes a protected act under the Employment Equality 1998 Act, as amended.

The complaint relies on the delay between September 2017 and February 2018 as constituting adverse treatment. A contention that is rejected by the Respondent.

I find that insufficient evidence exists to support the Complainant’s assertion that on the balance of probabilities that the sole or main reason the Respondent, through its agents CR and McL, delayed or deliberately procrastinated in progressing the Complainant’s job evaluation application between September 2017 and February 2018 was as result of the Complainant raising the equality grievance against CR in 2015.

I find that other non-Act-breaching explanations for the delay to be equally as probable; for example, because McL did not reply to the Complainant in writing from October 2017 or address the Complainant’s request in any way. This may have been because not knowing about the Complainant’s grievance against CR she underestimated the seriousness of the situation or the necessity that she provide the reasons, in writing, as had been requested.  However this explanation for the delay would not be a breach under the equality legislation.

An equally probable explanation for the delay was the interpersonal difficulties between CR and the Complainant that pre-dated the bringing of the 2014 equality grievance; which would not constitute a breach of the Employment Equality Act 1998.

Therefore, and not without sympathy for the Complainant, I do not accept that her belief or assertion that the five-month delay in dealing with her JES application constitutes prima facie evidence that she was victimised for bringing an equality grievance on her return from maternity leave in 2015. The case law on this is settled, the Complainant must prove primary facts upon which an inference of discrimination may be raised, and this inference cannot be made lightly. The wording of “solely or mainly” in section 77 (2) of the 1998 Act is significant and this must be probable, not possible.

“Victimisation occurs where the… penalisation of the complainant was solely or mainly occasioned by the Complainant seeking redress under this Act.”

The length of the delay is material in this case, because if the delay was short it can more easily be explained by someone not getting around to doing something rather than a deliberate intention to procrastinate or delay. However, I do not accept that CR had absolutely nothing to do with the delay, as has been contended. CR gave specific advices to McL that MCL proceeded to follow. There was no doubt in McL’s mind that the defects as identified by her line manager needed to be rectified and if not rectified, the JES application was not to be progressed. In this way there is no dispute that McL was giving effect to the instructions given to her by CR.

I think that most likely explanation as to why the JES application was not progressed from October 2017 onward was because when the Complaint legitimately asked for the criticism of her application to be put in writing, McL, not knowing the background of the equality complaint, failed to appreciate how serious the matter was from the Complainant’s point of view. I believe that McL’s failure to give the reasons in writing arose more out of her dislike of email communication and a belief that it would have been best to sit down and go through the application with the Complainant directly rather than arising out of the 2015 equality complaint against CR.

I am not unalert to the possibility that CR delegated to McL a direction which impeded the JES application and this might have been because she  had an interpersonal difficulty with the Complainant in the past but it might also have been and this is equally as possible, that she honestly believed that the application was defective as it was and she was not going to allow the Complainant to use a back channel of the JES procedure to rectify her unhappiness that the grievance process had not been successful.

The Complainant’s belief about the motivation behind the delay is not entirely without basis, but the proof that on the balance of probabilities it was the sole or main cause of the delay has not, in my view, been discharged. I accept that Complainant’s belief is a possible explanation for what occurred, but other non-breaching explanations are similarly possible, and I find that there is insufficient evidence to prove that it was the probable explanation for the delay.

I am also not convinced, but to a lesser extent than the main reason provided, that the 5 month delay constituted adverse treatment per se. This is because I understand that the JES process is still available to the Complainant and in this regard, I note that the Complainant’s JES application can now continue under the supervision of the HR manager.

For the above reasons I do not find that a prima facie case of victimisation under section 74 (2) of the 1998 Act had been adequately made out and for this reason this complaint is not well founded.