Complainant

Respondent

Parties

Valerie Smollen

Irish Prison Service

Complainant

Respondent

Anonymised Parties

Representatives

AndrewCody,Solicitor

Jim Benson, B.L.

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-00009824-001

21/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009824-002

21/02/2017

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

CA-00009824-003

21/02/2017

The Complainant contends that she was discriminated against contrary to the Employment Equality Acts 1998 – 2015 on grounds of gender.  The dispute referred under Section 13 of the Industrial Relations Act 1969 was withdrawn at hearing.

The specific complaints in relation to the Employment Equality Acts were received on 21^st February 2017 and are that:

Complaint 1 : The Complainant was discriminated against when she was removed from her position as Acting ACO, despite having 3 years experience and having been successful in competition for ACO, and another male colleague was placed on the roster.

Complaint 2: The Complainant was discriminated against when she was removed from a training course in circumstances where 3 other male colleagues remained on the course in the exact same circumstances.

 Complaint 3: The Complainant was discriminated against in relation to the provision of training.

The Complainant is a Prison Officer.  She joined the service on 27^th June 1994.    The Complainant contends that she has been the subject of discrimination over a period of time and the first serious incident of discrimination occurred in 2010.  The history of this situation was outlined in a previous equality claim submitted successfully by a colleague of the current Complainant but which also involved discriminatory treatment of her whereby she was asked to step down as Acting Assistant Chief Officer (ACO) because “there were too many female ACOs”.  At the time, the Complainant did not pursue an equality claim and she subsequently took up duty as Acting ACO.  In February 2014, Governor M conducted a meeting where he stipulated that he would assign all ACOs and Acting ACOs to undertake assessment of staff performance in the system known as Performance Management & Development System – PMDS.  The Complainant repeatedly requested training on the PMDS system during February 2014, and April and May 2014.  She was promised training on a number of occasions but this never materialised.  As a result, some of the 11 or so Officers assigned to her for PMDS had difficulty securing their increments, thus causing the Complainant to feel guilty and embarrassed because she could not perform the tasks assigned to her and this also resulted in her having a lack of management experience in promotional competitions.                                                   During this timeframe there were 3 Acting ACOs, 2 female including the Complainant and one male Officer R who, it is contended was the only Acting ACO to receive training in PMDS.

The second incident of which the Complainant makes an application of complaint of discrimination concerns her removal from a training course on 23^rd February 2016.   On that date, the Complainant was attending a training course.  In attendance were 3 ACOs from Prison M, 1 ACO from Prison C and 3 Basic Grade Officers from Prison C.  The Complainant was the only female Basic Grade Officer present on that day.  The Complainant was an Acting ACO at that time.  All 4 Basic Grade Officers had recently submitted applications for appointment as ACO.  It is contended that the subjects of the training course were essential to allow the Complainant fulfil her role as an Acting ACO as among her duties she was expected to take charge of over 800 prisoners and 16 staff on night duties.  The Complainant was seated beside her colleagues as the course was commencing when her name was called out over the open airwaves and she was subsequently informed by the ACO in charge of the detail that at a local Monitoring & Review meeting (which is attended by Prison Management and the Prison Officers Association (POA), it was decided that no Acting ACO or supervisor was permitted to attend any training course in advance of the completion of the current competition for new ACOs.    She asked the Branch Secretary Mr P why she was being removed from the course and he replied “because you would have an unfair advantage over me in the ACOs competition”.  The Complainant then contacted the Chairman of the Branch who instructed her that as a member of the union that she was not allowed to attend the course, due to a decision made by Governor B.  When the Complainant sought an explanation from Governor B he said he had based his decision on his belief that there had been a National Directive but no such Directive was ever furnished.  The Complainant believes no such Directive exists.  The Complainant was the only female Acting ACO attending training that day and was the only person removed from the course, despite 3 other male colleagues who were in the exact same position as her, having applied for promotion to ACO. 

The third situation that the Complainant complains of relates to her successful application for the position of Acting ACO in August 2013.  The position was a rostered position which included 7 night duties every 12 weeks where the Complainant and one other ACO would take charge of the entire prison and the smooth functioning of same was their responsibility. This included taking charge of in excess of 800 prisoners and 16 Basic Grade night guards.  The Complainant had successfully filled this position for a period of 3 years and had recently received a performance rating of 4.   On 12^th August 2016 she was informed by Supervising Officer M that he had made an agreement as Branch Secretary of the POA that the position on the ACOs roster would remain until filled by a new ACO from the panel.  On 17^th August 2016 she was told by another Officer “I see M has **** ***** you again”, and was told “you are being shafted off the ACO roster”.  The Complainant was subsequently told by Assistant Governor B that at a Monitoring & Review meeting on 16^th August 2016 it was proposed to fill vacant positions and possibly her position on the ACO roster with staff from the National Panel of successful candidates in the recent ACO competition.  The Complainant was a successful candidate and could not understand why she, a successful candidate, already in position as Acting ACO should be replaced by a similarly successful candidate.  On 22^nd August 2016, the Complainant sought clarification from Governor G.  The immediate response was that the Complainant should provide a new additional hours sheet and choose a prison officer roster to commence from 10^th September 2016.  This meant that the Complainant was being demoted from Acting ACO to prison officer and she was forced to vacate the position she had previously held.  Her position on the roster remained unfilled until 10^th October 2016.  The Complainant is Number 59 on the panel.  She is aware that there are 2 other colleagues Officer W at 54 and Officer C at 66.  Officer C was offered and declined a position as acting ACO.  The complainant contends that she has been overlooked in the selection procedure despite being higher than Officer C on the National Panel.   

It is contended that the foregoing 3 situations are all manifestations of the same discrimination.  Each situation involves Prison Governors attempting to reduce the number of females achieving promotion without proper or legitimate justification.  On considering whether or not matters complained of constitute a chain of linked events or if all of the incidences are separate events, the Labour Court has decided in County Louth VEC v Don Johnson EDA 0712 that                                         “in certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered a separate manifestation of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act”.

In all the circumstances, the Complainant suggests that there is a common thread namely an attempt by the Prison Authorities to reduce the number of female officers being promoted.  That common thread is the same in 2010 as it is today namely “too many female ACOs”.                              It is submitted that a prima facie case has been made out and the onus has shifted to the Respondent in the words of the Labour Court in EDA 1322 which “requires the Respondent to show a complete dissonance between the gender of the Complainant and the impugned act or omission alleged to constitute discrimination”.

It is submitted as a preliminary point that the Complainant has advanced her claim against the incorrect Respondent. The Irish Prison Service is an executive office of the Department of Justice and Equality and is not in itself a public body established under statute.  It has no separate legal identity and is not a corporation sole that may be used in its own name.  Therefore the proceedings have been maintained against the wrong Respondent.  It is submitted that the Workplace Relations Commission Act 2015 does not provide Adjudication Officers with jurisdiction to substitute another party into the proceedings. 

The Complainant’s allegations of gender discrimination can be divided into three parts:

i. August 2016 – Removal from Acting ACO roster – within time limitation period.

ii. February 2016 – Removal from training course – time barred.

iii. Failure to provide PMDS Training – time barred.

The Applicable Law

Burden on the Complainant to establish a prima facie case

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

It is submitted that the Complainant makes assertions in relation to her complaints but fails to provide corroborative proof of same in order to establish the required facts and therefore the complainant has failed to discharge the required burden.

Time Limits

Section 77 (5) (a) of the Acts provides :

“Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates”.

It is submitted that the complaints referred to at complaint ii and complaint iii are statute barred.  Notwithstanding the foregoing, it is accepted that an Adjudicator Officer can, when adjudicating on a complaint that is not time barred, take into consideration previous occasions (time-barred) in which the Complainant was allegedly discriminated against on the same ground.   However, in County Cork VEC v Hurley EDA24/2011, also cited in the Anne Delaney case it was ruled that

“occurrences outside the time limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them all part of a continuum”.

Accordingly, it is submitted that the Adjudication Officer in the within proceedings can only take complaints ii and iii into account if complaint i is within time and is sufficiently connected to the acts referred to in complaint ii and iii.   It is submitted that the Complainant has failed to establish facts from which it can be inferred that she was discriminated against on gender grounds in relation to complaint i – Removal from Acting ACO roster.  In such circumstances it is submitted that the Adjudication Officer is not entitled to consider complaints ii and iii.

Complaint i – August 2016 – Removal from Acting ACO roster

The Complainant alleges that she was removed from the Acting ACO roster on foot of an agreement between her representative body the Prison Officers Association and the Governor of the prison, wherein it was agreed that all officers from the National Panel for ACOs would fill the vacancies based on the order of merit in the national panel.  The Complainant had taken part in this competition and had been placed on the national panel.  Therefore the Complainant is not alleging gender discrimination in that regard.  The Complainant appears to take no issue with her removal save in the manner in how her removal was delivered.  Therefore her sole contention that she was discriminated against because of gender is that the national panel was not subsequently administered in regard to the order of merit.  The Complainant alleges that she was replaced on the Acting ACO roster by a named male individual Officer C, who was allegedly placed below her on the national panel.  However, it is submitted that the Complainant does not prove any primary facts, does not provide any documentary or witness evidence and therefore the Complainant has failed to meet the tests of burden of proof as outlined in Southern Health Board v Dr Teresa Mitchell which found that the “claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.

It is therefore submitted that as complaint i is unfounded that complaints ii and iii should be dismissed.

Complaint ii – February 2016 – Removal from Training Course

Without prejudice to the foregoing, the following is submitted in relation to complaint ii.

It is accepted that the Complainant was removed from the training course on 23 February 2016.  The Complainant should not have been detailed this course as she was an Acting ACO only.  She was removed on foot of an agreement between the local branch of the POA and the Governor which said agreement was made at a monitoring and review meeting on 11 February 2016.  The said agreement was that the course would only be attended by actual ACOs in that it was a frontline management course.  The Complainant asserts that she was informed by her branch secretary that she was removed to prevent her having an unfair advantage over him in the upcoming permanent permanent ACO competition.  Therefore, based on her own contention, the Complainant accepts she was not removed from the course due to her gender.

Complaint iii – Failure to provide PMDS Training

Without prejudice, in relation to complaint iii:

The Complainant maintains that she was not provided with PMDS training.  She was offered training but same was cancelled due to staff shortages.  The Complainant has failed to establish facts or provide evidence that failure to provide training was due to her gender.  The named male Officer R did not receive PMDS training as alleged by the Complainant.  The POA objected to the practice of basic grade officers giving PMDS ratings to other basic grade officers, even if they were acting as full-time supervisors.  Accordingly, PMDS training was not delivered to relevant officers, whether they were male or female.   The Complainant has been promoted to the role of Assistant Chief Officer and it is therefore submitted that same evidences the frailty of the Complainant’s claim of unlawful discrimination due to gender.  

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the claimant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”

In Cork City Council v Kieran McCarthy EDA0821, the Labour Court found:

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.  The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.  This entails a range of conclusions which may appropriately be drawn to explain a particular set of facts which are proved in evidence.  At the initial stage the complainant is merely seeking to establish a prima facie case.  Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely explanation which can be drawn from the proved facts.  It is sufficient that the presumption is within the range of inferences which can be drawn from those facts”.

In the U.K. Court of Appeal case, IGEN v Wong [2005] IRLR 258, the extent of evidential burden was also addressed:

“(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

Time Limits

The Respondent has argued that two of the complaints are out of time, and that the previous litigation relating to incidences in 2010 should not be taken into account.

Section 77 (5) 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.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may for reasonable cause direct that in relation to the complainant, paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference of such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly”.

Section 77 (6A) of the Acts provide:

“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 effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six month period prior to the date on which the complaint was received  unless the acts relied on constitute ongoing discriminatory treatment.    In this case, the complaint was received on 21^st February 2017 and the last date of alleged discrimination was 22^nd August 2016, when she was removed as an Acting ACO from the roster, thus the complaint was received within the 6 months time period specified.

In Cork VEC v Hurley EDA24/2011, the Labour Court ruled that:

“occurrences outside the time limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them all part of a continuum”.

In County Louth v Don Johnson EDA0712, the Labour Court considered the issue of linked events :

“Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim.  In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discrimination against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act”.

Having noted that in this instant case, complaint 1 – removal from roster is within the time period, I now consider the facts relating to that incident and whether there was ongoing discrimination and whether the incidents were interlinked.  

Complaint 1 – removal from Acting ACO roster.

The Complainant was successful in her application for the position of Acting ACO in August 2013.  She served in this position and was rostered as an Acting ACO for 3 years.  She applied for the position of ACO and was placed on the panel for same in 2016.  She continued to be rostered as Acting ACO.  On 17^th August 2016 she came to a belief that the POA at local level were involved in “shafting” her off the panel.  She sought clarification from the HR Governor who told her that at the Monitoring & Review Meeting between Management and POA, it was proposed to fill vacant positions, and possibly her position on the ACO Roster with staff from the National panel of successful candidates in the recent ACO competition.  I note the evidence in relation to the description of the decision to “fill vacant positions and possibly her position”.  The Complainant sought further clarification from Governor G on 22^nd August 2016, at which point she was effectively requested to provide a new additional hours sheet and choose a new prison officer roster.  I note the intention to fill vacancies on the roster with newly appointed ACOs.   I note the evidence that the Complainant was higher on the panel than Officer C and that he was offered a place.  I note the Respondent refuted this, but failed to provide clear evidence supporting that position.   I note that the Monitoring & Review Committee, who no doubt perform sterling work in co-operating with the running of the service, set out certain agreements in relation to the ACO roster.  “All officers on the national panel to be offered the ACO roster in order of seniority to fill the 2 Full time and 2 Temporary vacancies.”

The fact is that the Complainant was in the position of Acting ACO for 3 years, and the import of the decision was to remove her from her position.  I accept the Complainant’s representative’s point did it make sense to remove the Complainant as the only female? and while it was accepted that vacancies could be filled, a vacancy was effectively created to facilitate male members of the panel.   I find it significant that there was agreement between POA and Management to remove the Complainant from the roster and replace her and while the POA is not responsible for the actions therein, the Complainant has established the significant facts from which inference may be drawn that the Respondent has by their actions discriminated against the Complainant on the ground of sex.

The Respondent, while offering an explanation for the removal of the Complainant from the particular position, has not established to my satisfaction that in the words of the U.K. Court of Appeal case, IGEN v Wong [2005] IRLR 258, “that the treatment was in no sense whatsoever on thegrounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive”.

In relation to Complaints 2 and 3, I find that I can consider the evidence in relation to those incidents, and reasonably conclude or otherwise that there is a link between the incidents.

Complaint 2 – Removal from training course – February 2016

I note the evidence in relation to the manner in which the Complainant was removed from the Front Line Managers training course in February 2016.  I find that the manner in which she was removed, was not, as the Respondent’s representative submitted, her only complaint.  The facts show that at the time, there were other basic grade Officers (Acting ACOs), all male, attending from another prison.  I note the existence of a local agreement at the Monitoring & Review Committee on 11^th February 2016, “ACO training course only for ACOs”.   I accept the Complainant’s evidence in relation to the POA representative advising her that she was taken off the course so that she would not have a disadvantage over him in the ACO competition.  As found previously in this report, the POA is not responsible for the resultant potential discriminatory actions, as they are not the employer.  However, the Complainant has established the significant facts from which inference may be drawn that the Respondent has by their actions discriminated against the Complainant on the ground of sex.  She was the only female officer removed from the course.

Complaint 3 – failure to provide PMDS training

I note that the Complainant sought unsuccessfully for almost 2 years to receive this training.  I would find that this was merely a flaw in the Respondent’s HR procedures, except that I note that male Officer R received training albeit informally during one Sunday shift.  No such facility was offered to the Complainant.

 My findings are:

·         The Complainant has established a prima facie case in relation to her treatment in relation to complaint regarding her removal from the Acting ACO Roster.

·         The respondent has failed to discharge the burden of proof that the treatment was in no sense whatsoever on thegrounds of sex.

·         There has been a history of discriminatory treatment as evidenced by the findings in relation to the complaint of removal from a training course and the failure to provide training.

Decision:

I have completed my investigation and in accordance with section 79 (6) of the Employment Equality Acts 1998 -2015, I have decided that :

The Respondent discriminated against the Complainant on grounds of gender, in terms of section 6 (2) of the Acts and contrary to section 8 of those Acts, in relation to

Her removal from the Acting ACO roster, and I am satisfied from the totality of evidence that the Complainant has established a link between this action and her removal from a training course and failure to provide PMDS training.

In accordance with section 82 of the Acts, I order that the Respondent pay the Complainant the sum of €20,000 by way of compensation for the distress suffered by her as a result of the discrimination.

Dated:   25.7.19

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham