ADJ-00015986

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00015986

Parties:

Complaint:

Date of Adjudication Hearing:  31/01/2019

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

Background:

The Complainant was employed as a Personal Banking Executive and is seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998 and has submitted that she was discriminated against by her employer by reason of her gender, civil status, family status, sexual orientation, religion, age, and race where she maintained she was treated unlawfully by being discriminated in not being promoted, not being provided with training, in her conditions of employment, by being victimised, and by other means.

Summary of Complainant’s Case:

The Complainant was employed as a Personal Banking Executive with the Respondent from the 2^nd June 2015, until the 6^th April 2018.  She submitted that she had been discriminated under the grounds of gender, civil status, family status, sexual orientation, religion, age, and race grounds on the basis of receiving less favourable treatment regarding promotion opportunities, training, her conditions of employment, being victimised, where she maintained that she was generally treated unfairly.  In her written statement as part of her complaint the Complainant indicated some thirteen incidents of discrimination, and at the hearing she confirmed that she would have experienced seven separate acts of discrimination during the course of her employment. 

The Complainant was seeking acknowledgement from the Respondent that she had been discriminated against, and an apology for what she had experienced, and compensation.

The Complainant raised concerns that the Respondent had not submitted its written response until just before the hearing and as such the Complainant maintained that this disadvantaged her ability to respond to the response that had been submitted.

The Complainants allegations of discrimination were identified as follows.

Complaint of Discrimination Regarding Access to Training.

The Complainant submitted that upon her appointment in June 2015 as a Personal Banking Executive she was assigned to the organisation’s flagship hub where she worked with ten other employees.  She was a diligent worker, and of the seven advisors working in the area she maintained that she was the only member of staff who was not provided with training in mortgages and investments. She also submitted that during this time she had been bullied by one of the members of her team, and when she told management of her concerns she was asked not to tell anybody about the bullying.  The Complainant subsequently spoke to the team member and the team member advised the Complainant that she had been giving out to her because the Complainant had not been trained in mortgages and investments and this placed an unfair burden of work on the team member.  The Complainant advised that she told the team member to speak to management and following this the team member stopped verbally attacking the Complainant. 

The Complainant submitted that on the 27^th February 2017 when she was seeking to move to a new location (location A) that she required mortgage application training.  Her then manager advised that she would receive the training prior to starting in location A.   The Complainant maintained that she was not provided with the training by her manager before she moved to location A and she maintained that the reason for not being provided with the training was because she was female.  She submitted that the person trained in dealing with mortgage applications at location A was a male colleague and when she was transferred to location A she did not receive the training to enable her to perform her role and to benefit from the mortgage applications that she processed. 

Complaint of Discrimination Regarding Conditions of Employment- Access to an IT System

The Complainant’s second complaint of discrimination referred to an alleged treatment by the Respondent where she was not provided with access to the computer system to enable her to progress her mortgage applications.  She maintained that despite raising concerns about not being able to access the system from March 2017 to September 2017 she was still not given access to the IT system for mortgage applications.  The Complainant advised that the only party who had access to the system in location A was a male counterpart. She worked in location A from March to September 2017 and submitted that her lack of access to the computer system when comparted to her male counterpart amounted to discrimination on the gender ground.

Complaint of Discrimination Regarding Conditions of Employment- Mid Term Review

The Complainant’s third complaint referrers to less favorable treatment that she alleged she received at the end of her time in Location A.  The Complainant submitted that one of her colleagues had been experiencing bullying behaviour from her manager and the Complainant advised this colleague to talk to the manager about the bullying behaviour.  An investigation into the managers behaviour ensued a was in place in September 2017 when the Complainant was transferring to another location (location B).  She maintained that when she was leaving location A that she did not receive a proper midterm review from, her manager, that the process was completed in just 10 minutes, and it was a tick box exercise. As a consequence of the 10-minute midterm review the Complainant maintained that she raised her concern with HR by email, but nobody had followed up on her complaint.  She said she was treated unfairly when compared to other colleagues who had been provided with a more detailed review.    She maintained that other colleagues would have been given more time and whilst she cannot be certain that she was treated differently because she was a female, she maintained that was most likely the case in light of her other experiences.  She was also of the view that she was treated this way due to her involvement in the bullying allegations.  The Complainant acknowledged at the hearing that her targets and start of year review had not been forwarded by her former manager in the Flagship Hub,  and this impacted on the completion of her midterm review.

Complaint of Discrimination Regarding Conditions of Employment- Overtime Payments

The Complainant’s fourth complaint of discrimination referred to overtime payments. The Complainant submitted that when she worked in location A between March and September 2017 she did not receive any overtime payments.  She maintained that when she agreed to the move in March she was of the understanding that all her terms and conditions including pay and entitlements would remain as they were in the Flagship Hub.  However, when she worked overtime in location A he did not receive overtime payments but instead her overtime was recorded as time in lieu.  The Complainant advised that everybody in location A was treated in this way, however this arrangement was different to other offices in the country.  She indicated that she would have sought to establish her entitlement as set out in her terms and conditions that she had before leaving the flagship hub, however this was not provided to her.  As a consequence of not being paid her overtime the Complainant submitted that she had been financially disadvantaged.  She maintained that this was due to her gender, however she also acknowledged that all staff in the location A did not receive overtime payments and would have been compensated by time in lieu.

Complaint of Discrimination on the Grounds of Age

The Complainant maintained that she subsequently moved from location A to a new location B which was closer to her home.  This movement took place on 8^th September 2017. She maintained that she had sought this move as she was unhappy with the arrangements and her experiences in Location A.  She advised that when she arrived in the office at Location B she would have witnessed conversations from her colleagues regarding her personality, that her colleagues would have dissected her personality and where she was described to be more like older members of the team than younger members.  She maintained that she was 37 years of age and where she would have been associated with another older colleague whereas the colleagues making the comments were in their early 30’s.  The Complainant therefore maintained that she had been discriminated on the age ground and raised her concerns verbally with a named HR Business Partner.

Complaint of Discrimination Regarding Gender- Secondment

The Complainant maintained that when she moved to Location B on the 27^th September 2017 she would have received a contract indicating that the role was a secondment position and it was a temporary role which initially stated that it would be for 6 months.  She would therefore have to return to location A, or to an alternative location at the end of the secondment.  The Complainant submitted that she also received a letter on the same day advising her that it was a 12-month secondment and she would have to return to her previous location or an alternative similar location at the end of the 12 months.  The Complainant maintained that she was not aware that the role was a secondment or was a temporary move.  She confirmed that she had sought to move from Location A and was offered either a position in Location B or Location C, but she took location B in view of the fact that it was closer to her home and on the understanding that it was a permanent role.  When she was subsequently informed that it was temporary role she was advised that it was for maternity leave cover and she was unhappy with this situation.  She submitted that she received a contract again on the 31^st October 2017 and she was asked to sign the contract, but she did not do so.  The Complainant submitted that she was treated less favorably by being moved into a temporary role on secondment rather than to a permanent role.  She maintained that this was discriminatory on the grounds of her gender. 

The Complainant submitted that she was subsequently told that she would have to move as the lady who was on maternity leave was returning.  The Complainant maintained that that she found this to be upsetting.  The Complainant said she was advised to apply for other work place roles in the organization which she did.  However, she maintained that this caused great uncertainty and stress for her as she was not provided with any direct alternative or proposal of where she was to be moved.  She advised that she was not sleeping well, that she did not know what to do, and nobody came to her to assist her.  She further stated that a member of the HR team had attended the office in March 2018 and would have been aware of her concerns but did not discuss the issue with her.  The Complainant submitted that by the Respondent not providing her with a fulltime job in Location C she was being discriminated on the grounds of her gender.  At the hearing she stated that she was not entirely sure as to the nature of the discrimination but described it as being unfair, and she could only assume that she was being treated this way because she was female.

Complaint of Discrimination on the Grounds of Gender Regarding Promotion

The Complainant advised that she was aware that a new Workplace Business Associate role was being advertised by the Respondent and she applied for the role in December 2017.  The role involved setting up bank information sites in workplaces to attract new customers.  She maintained that the role was a level 4 role and would have been a promotion for her as she was at level 5.   As she had not heard any further she also applied for the role in February 2018. 

The Complainant maintained that she heard nothing further about her applications and when she was on a training course in March 2018 she was advised by a colleague that the colleague had been successful at the level 4 appointment.  The Complainant was upset having heard this as she was not advised at any stage that the roles had been filled.  She stated that she would have sought an update on the process from the hiring manager, but she was directed back to her line manager. However, the line manager failed to respond to her request for information. The Complainant stated that she was ignored by her line manager and would have contacted HR about why she was not informed and as to why another colleague had been appointed.  The Complainant also maintained that a male colleague who had less service than her and who had also had been subject to a previous demotion in his role had been found successful.  Of those appointed she advised that there were six appointees, four of which were male and 2 were female.  She maintained that she was treated less favorably than male applicants to the position and as such was discriminated on the grounds of her gender.

As a consequence of this the Complainant handed in her notice of resignation and she left her employment on 6^th April 2018. The Complainant advised that she had ben so upset by her experiences that she felt there was no point in complaining further, and when she was asked to complete an exit questionnaire she did not feel the Respondent was deserving of her time to complete the questionnaire as her comments would have no effect whatsoever, and therefore she only mentioned the reason for her leaving was due to  promotion/senior role.

Respondents Submission:

The Respondent submitted that it did not in any way discriminate the Complainant under any of the nine equality grounds.  It advised that the Complainant had resigned by way of letter on the 9^th March 2018 and within this letter of resignation there was no mention of a complaint of any nature. 

Preliminary Matters

The Respondent submitted that WRC did not have jurisdiction to hear the complaint, and that it should be struck out on a preliminary basis as the complaints of discrimination prior to January 2018 are time barred. The Respondent also submitted, without prejudice to this position, that the Complainant’s complaint is misconceived as it is not linked in any way to discriminatory treatment on the part of the Respondent.

With regard to the time limits, the Respondent submitted that in accordance with section 77(5)(a) of the Employment Equality Act, (the Act) … 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.  On that basis the Respondent submitted that complaints about alleged events prior to 25^th January 2018 must automatically fail.

Referring to jurisprudence (Cork County VEC v Hurley EDA 1124, and Musgrave Ltd t/a Musgrave Wholesale Partners v Zakaria EDA 1627) the Respondent further submitted that a continuum or chain of discrimination needs to demonstrate there are acts of discrimination within a period of six months prior to the lodgement of the complaint to the WRC and where there is a sufficient link between the alleged events.  The Respondent argued what must be first addressed is whether the act complained of within the six-month period in itself can establish a prima facia case of discrimination, and if not, then the Adjudication is not required to consider any complaints in respect of events made outside the six months preceding the date of the complaint to the WRC. The Respondent also argued that the alleged act of discrimination post 25^th January 2018, which it refuted was an act of discrimination, was not related to any alleged acts prior to 25^th January 2018, and in which case it also denied that any acts prior to this date amount to discrimination.

Furthermore, the Respondent contended that the Complainant submitted no grounds which explained or excused her delay and provided no reasonable cause for submitting complaints of alleged acts of discrimination pre-25th January 2018 which were outside the six month period, and where she was seeking the reference period to be extended to a twelve month period. 

In addition, the Respondent submitted that the Complainant’s complaint was misconceived and is not linked in any way to discriminatory treatment on the part of the Respondent and as such it should be dismissed in accordance with section 77A of the Act, on the basis the complaint is based on a fundamental misunderstanding of the legislation where it fails to show an arguable cause of action, and is entirely unfounded.

The Respondent also referred Val Peters -v- Melbury Developments Limited [2010] ELR 64 in which the Labour Court considered the extent of the evidential burden regarding acts of discrimination which a Complainant, under the Acts, must discharge before a prima facia case can be made out.  Referring to the Labour Court decision the Respondent quoted “Section 85A of the Act provides for the allocation of the prohibitive burden in cases within its ambit.  This requires that the Complainant must first establish facts from which discrimination maybe inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  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.  Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.  In that regard the Respondent stated that the Complainant had failed in her submission to provide evidence as to where discrimination took place under any of the nine equality grounds.  It maintained that the complaint in itself was more a grievance which related to industrial relations matters rather than under the equality framework.  It maintained that the Complainant was not in a position to provide direct evidence or comparators where she could demonstrate she was treated less favourably under any of the nine equality grounds despite making wide assertions that she had been discriminated.  In general, the Respondent maintained that the extent of the Complainant’s complaint was on a presumption because she was a woman rather than being in a position to provide direct evidence of where discrimination had taken place. 

Notwithstanding the above preliminary matters, and without prejudice to a consideration of such matters the Respondent responded as follows to the complaints raised by the Complainant

Response to Complaint of Discrimination Regarding Access to Training.

The Respondent disputed the allegation that the Complainant was bullied in her workplace and that management told her not to tell anybody about it. The Respondent submitted that it has a well-established Dignity and Respect at Work Policy and that the Complainant by her own admission would be aware of the policy as she had acted as a witness in an internal investigation.  As the Complainant did not raise an issue with HR about this alleged bullying at the time and had not raised it as an issue upon her transfer to Location A on 27^th March 2017, the Respondent contended that this complaint was time barred.   

With regards to the need for mortgage training, the Respondent advised that to be able to sell mortgage products a Personal Banking Executive would require to have been skilled up with knowledge of the mortgage products and this would typically take place through on the job supports.  The Respondent submitted there was no requirement for formalised training as the standard QFA qualifications meet those needs.  However, for those selling mortgage products it would provide an opportunity for the skill set to be developed with support from a more experienced sales person. 

The Respondent submitted that the Complainant as a Personal Banking Executive was involved in the day-to-day banking of current and savings accounts and there was no requirement for her to be trained in mortgages, and when she moved to location A on 27^th March 2017 this role remained the same and there was already a Mortgage Executive at that hub.

The Respondent maintained that the Complainant had never sought for a formal training in mortgage products. If relevant and applied for, such a programme would have been provided.  The Respondent acknowledged that the Complainant may have been advised that she would receive mortgage product training from an expert in the Flagship hub before moving to the Location A, and similarly when she arrived at Location A that such facilities would be provided to her from the Mortgage Expert on site.  It explained that mortgages are done in the hubs by one or two people, and in Location A one mortgage expert was already in place and therefore there was not a requirement for another person to be formally trained in mortgage products. 

It therefore submitted that no act of discrimination had taken place. The Respondent further submitted that this complaint was time barred.

Response to Complaint of Discrimination Regarding Conditions of Employment- Access to an IT System

The Respondent maintained that it has two IT systems with regards to progressing its business.  It submitted that the Complainant had raised an IT service request through its intranet on 10^th April 2017 and the request had been dealt with appropriately. The Respondent provided a record of the Complainant’s work request and how it was handled, and that the service request had been closed by IT on 26^th April 2017 as being resolved. 

The Respondent maintained that it was not aware of any other specific concerns that the Complainant had with regard to accessing its IT system, and it was difficult to respond to a complaint without specific examples of where the Complainant alleged she was not supported and was treated less favourably regards to the IT system. 

Response to Complaint of Discrimination Regarding Conditions of Employment- Mid Term Review

The Respondent acknowledged when the Complainant was leaving Location A in September 2017 that her midterm review may not have been conducted in accordance with best practice.  The Respondent also acknowledged that the Complainant was upset about what she experienced. However, it maintained that there were no comments within the review from the Complainant relating to equality matters, and contended the Complainant was not treated less favorably due to her gender.  The Respondent advised that the manager providing the review was female. 

Whilst acknowledging that the review may have been imperfect, the Respondent contended that the extent of the complaint was that the time given to the review was too short.  The Respondent also referred to the Complainant’s assertion that she had been involved as a witness in a bullying complaint against the manager and whilst the investigation of these complaints may not have taken place by the time of the review it noted that the Complainant felt that the reason why she may have had a shorter review was due to her relationship with the manager.  The Respondent also confirmed that there was have been a delay in the start of year targets being shared with the manager in location A as the Complainant had relocated, however this amounted to poor HR practice but does not amount to discrimination. 

The Respondent contended that the Complainant in her submission had speculated that the manner of the midterm review was handled was due to her gender in light of other experiences she was having. The Respondent maintained that this was speculation on the part of the Complainant.  The Respondent denied that the performance review was a breach of its obligations under the Employment Equality Acts. Furthermore, the Respondent advised that the Complainant did not raise any equality concerns at this stage, and she emailed HR on 6^th September 2017 the day before she left location A stating that she was very upset about only having a 10-minute review.  In this correspondence the Complainant did not raise any equality concern.  The Respondent submitted that there was no equality issue at this stage, and the complaint is time barred.

Response to Complaint of Discrimination Regarding Conditions of Employment- Overtime Payments

The Respondent submitted that based on the Complainant’s request for a move she had relocated to Location A.  The Respondent advised that each location would have set its own arrangements regarding overtime where the location manager could either pay time in lieu or pay staff for overtime.  The Respondent submitted that location A treats overtime as time in lieu, and all staff in the location benefitted from time in lieu. It acknowledged that the Complainant’s contract on her move to location A would have indicated that she was entitled to carry forward all her terms and conditions, and where it also acknowledged that her terms and conditions did allow for a payment for overtime rather than time in lieu.  However, it was submitted that this was not a breach of the Employment Equality Act as the Complainant was not treated less favourably on the basis of her gender as alleged.  The Respondent maintained it was a management decision locally and this decision was consistent with how overtime was managed in the location.

On that basis the Respondent denied that the Complainant had been discriminated against with regard her overtime and indicated that this was an industrial relations issue rather than a breach of its obligations under the Employment Equality Act. The Respondent submitted email evidence that it contended demonstrated the matter was dealt with between HR and the Complainant on 31^st May 2017. The Respondent maintained that this complaint is time barred.

Response to Complaint of Discrimination on the Grounds of Age

In response to the alleged discriminatory comments made to the Complainant when she moved to location B, the Respondent maintained that this matter was never generated into a complaint in September 2017 when it allegedly occurred. Responding to the evidence presented the Respondent stated that the complaint refers to discussions between colleagues, and where the Complainant has made an assumption that she was being discriminated on age grounds due to these comments. It stated that the Respondent was not involved in any of these discussions, nor was it aware of the discussions.  The Respondent maintained it did not treat the Complainant less favourably to any of her colleagues on the basis of her age.  It maintained that this complaint was speculative, there is an insufficient link between the complaint and the alleged acts in the Flagship Hub where she worked until 8^th March 2017, or in location A where the Complainant worked from 9^th March to 8^th September 2017.  The Respondent contended that this complaint is undated, that there is no record of a concern being raised with HR and where the HR Business Partner is now on maternity leave, and that acts of discrimination which occurred prior to 25^th January 2018 are time barred. 

Respondent to Complaint of Discrimination Regarding Gender- Secondment

The Respondent advised that the Complainant had applied for a transfer from Location A and it facilitated this request and that the Complainant was seconded to a job that had been advertised as maternity cover in Location B.  The Respondent submitted that it had been flexible in facilitating the Complainant for each of her moves. 

In response to the complaint that the Complainant was discriminated against in light of the fact she received a temporary contract when she moved from location A to location B, the Respondent denied that there was any act of discrimination based on gender, or any other grounds. The Respondent advised that the Complainant had sought a move from her position in location A and that it had facilitated a move to the location B which was closer to her home.  It advised that it was a lean organisation and it could only facilitate transfers on the basis that a vacancy existed in another hub. 

The Respondent submitted that two vacancies existed at the time, one in location B and one in another hub. When the Complainant considered both those options she decided to move to the hub at location B as it was closer to her home.  The Respondent acknowledged that it may not have formally advised the Complainant that it was a temporary vacancy due to maternity leave, however it advised that the Complainant did receive two letters at the time of the move on the same day which indicated that the vacancy was initially for 6 months, and then for 1 year.  The Respondent submitted that this correspondence would have provided the Complainant with information regarding the fact the vacancy was a 1-year position.  The Respondent advised that it issued a contract regarding the secondment to the Complainant in September 2017 and again in October 2017, that the contract was on the condition the Complainant would sign the contract, but despite the second written request in October 2017 the contract was never returned by the Complainant.

With regards to the allegation that the Complainant was discriminated against, the Respondent identified that at each and every time the Complainant sought to be moved it facilitated her request.  While the Respondent could not account for the fact that the Complainant argued that she was not informed by her manager that it was a temporary role on secondment, it nonetheless understood at the time that she was made aware as the job was advertised on that basis, and it believed the managers involved would have explained that to the Complainant at the time.  The Respondent stated that the managers involved were no longer in the business, but it maintained that a verbal discussion would have taken place with the Complainant at the time. The Respondent also presented as evidence of an Employee Change form which was generated at the time and noted the change was a secondment.   It advised that the Complainant’s permanent position was never in question, nor was she ever under threat of termination of her employment at the end of the secondment. 

It advised that the Complainant was treated no differently than any other staff member who would be transferred into a vacancy to facilitate their personal circumstances.  The Complainant maintained it was not clear on what grounds it would have breached the equality legislation with regard to facilitating the transfer of the Complainant.  It advised that the Complainant resigned before the end of the maternity leave contract and therefore her job was never terminated, nor was she treated less favourably compared to any other employee under similar circumstances. 

The Resp submitted that the Complainant in her evidence stated that she assumed that she was being treated this way due to the fact that she was a female.  The Respondent maintained that this was a speculative basis for a complaint and that there were no factual grounds that supported an act of discrimination where the Complainant was treated less favorably due to her gender.  On the contrary the Respondent maintained that the Complainant had sought a transfer and was facilitated with this transfer.  It therefore denied that the Complainant had been discriminated. It also submitted that as this transfer took place on 8^th September 2017, and documentation was provided to the Complainant in September and October 2017, the complaint was time barred.

Response to the Complaint of Discrimination on the Grounds of Gender Regarding Promotion

In response to the promotion vacancy regarding a Workplace Banking role, the Respondent advised that the concept of workplace banking was introduced to respond to its competitors, and where the Respondent would in effect set up pop-up banking in workplaces to attract new business.  The intention was that any new customers would be directed to a local hub for their banking.   The Respondent advised that it set up three areas for the Workplace Banking Role, namely Dublin North, Dublin South, and the South and West. 

The Respondent advertised for candidates and initially, on 18^th December 2017, the decision was that a number of roles would be at level 5 and level 4. The Complainant was at level 5.  The Respondent identified that the key competencies for these roles were that the candidates would demonstrate strong relationships in the area, would demonstrate strong/proactive sales ability, and where the KPIs for the roles were sales driven.  The Respondent acknowledged that the Complainant would have applied for one of the roles on 16^th January 2018.   The Complainant was not invited for interview as she did not meet the fundamental requirements for the roles. As the applications were received the Respondent decided to review the profile of the candidates and the type of role that was required.  It decided by the end of January 2018, and after going to market, it would only appoint candidates to the level 4 role and not the level 5.  The level 4 role was a higher role to the level 5 role held by the Complainant. It advised that the hiring manager owned the process.  Accordingly, the Complainant’s line manager was not responsible for the decisions made.  The Respondent advised that in light of the revised role, and the Complainant’s three years’ experience and her shortage of local knowledge for relationship building, she was deemed less suitable for the role compared to other applicants.  It therefore decided not to progress with the Complainant’s application or put on her on a short list for interview. The hiring manager would have informed HR that the Complainant did not have the relevant experience in light of the changed dimensions for the role, and that it subsequently appointed six candidates to the role, four of which were male and two of which were female.  A number of the candidates were external candidates.  The Respondent maintained that between January and February 2018 the matters were still under consideration and the roles were not filled until mid to late February 2018.

The HR business partner at the hearing advised that the hiring manager would have been asked to inform the Complainant in or around 9^th March 2018 that her application had not been progressed.  It acknowledged that an email was received from the Complainant on the 9^th March 2018 requesting an update and where it would have advised the hiring manager at that time to inform the Complainant that her application was not successful.    

In response to the allegation that a male colleague who had been previously demoted and who had less experience to the Complainant was appointed to one of the roles, the Respondent advised that this colleague had worked at a level 4 role but following discussions with the colleague he decided to revert to a level 5 role.  When the level 4 Workplace Banking roles were advertised this colleague applied, and in light of his prior experience of building up a good relationships with customers the selection process was of the view the colleague was very suited to the role.  The Respondent therefore maintained that his selection was based on objective criteria appropriate to the role and that he was not treated more favourably to the Complainant based on gender. 

The Respondent acknowledged it did not have detailed records of the selection procedure regarding the positions, but it maintained that the outcome from the procedure where that four males and two females were selected, and this would demonstrate that there was no gender-based discrimination towards the Complainant.  It maintained that the company’s KPIs relevant to the role was what were considered and was the criteria that was applied with regards to the appointment of the successful applicants. 

The Respondent therefore maintained that the Complainant was not discriminated against and it was not in breach of its obligations under the Employment and Equality Act with regards to the selection of candidates for the role.  The Respondent acknowledged that there may have been failings with regards to the HR procedures adopted, and in the delay in informing the Complainant about her application, but it emphasised that from January to mid-February 2018 when matters were under consideration the circumstances changed with regards to the grading of the vacancies to level 4 only. 

The Respondent submitted that it is very committed to gender equality, that it has an Equal Opportunities Policy.  It further submitted that the Complainant resigned and stated in her letter of resignation that she had decided to move on to other opportunities and at her exit interview questionnaire she had selected Promotion/Senior Role as her reason for leaving.  She raised no complaint of discrimination at that time.

Findings and Conclusions:

The Complainant alleged in her written submission that she has been discriminated by reason of her gender, her civil status, her family status, her sexual orientation, her religion, her age, and her race. She maintained she was treated unlawfully by being discriminated in not being promoted, not being provided with training, in her conditions of employment, by being victimised, and by other means.  At the hearing the Complainant revised her complaint of discrimination to be related to her gender, and her age.

The Employment Equality Act 1998 (the Act) as amended, defines under S6 that discrimination shall be taken to occur when a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in the Act referred to as ‘discriminatory grounds’). With reference to the case within, the discriminatory groundis where one is a woman and the other is a man(in this Act referred to as “the gender ground”), and that they are of different ages… (in this Act referred to as “the age ground”).

In addition, Section 8(1)(b) to (d) of the Act, states an employer shall not discriminate in relation to conditions of employment, to training or experience for,… or in relation to promotion or re-grading of an employee.

Section 8(4) of the Act states A person who is an employer shall not, in relation to employees or employment— (a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to inter alia conditions of employment, to training or experience for or in relation to employment, or to promotion or re-grading of an employee; (b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

Section 8(6)  of the Act states Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one— (a) the same terms of employment (other than remuneration and pension rights), (b) the same working conditions, and (c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

Section 8(7) of the Act states Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

Section 8(8) of the Act states Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds— (a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or (b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities. 

Having considered the complaints raised, the preliminary objections raised by the Respondent regarding the time permitted to make a complaint and where the Respondent has submitted that the complaints were speculative in nature and were not grounded in any of the equality grounds, I make my findings as set out below.

Preliminary Issues

The Complainant’s initial complaints submitted to the Workplace Relations Commission on 24^th July 2018 was broad and did not specifically ground the alleged actions under any of the equality grounds other than presenting a complaint in general terms.  It is acknowledged that the Respondent wrote to the WRC seeking more detailed statements regarding the complaints being raised by the Complainant and that the Complainant did subsequently submit a more detailed statement.  This statement was shared with the Respondent in advance of the hearing and the Respondent again wrote to the WRC seeking further details.  Notwithstanding, before the hearing the Respondent did provide a detailed submission to the complaints and where it addressed the issued raised by the Complainant in this written response.

The Complainant objected to receiving the Respondent’s written detailed response on the day before the hearing and was of the view that in light of the detail of the response she needed further time and advise before presenting her case.  The Respondent maintained that most of the documentation provided in its submission were documents that had been submitted by the Complainant during the course of her employment, and that the further submissions it presented at the hearing referred to jurisprudence that the Respondent wished to rely on.  The Respondent also submitted that it was difficult for it to respond to the complaints before the hearing as what had been submitted by the Complainant was not specific, and that the complaints were not grounded within the equality legislation.

Whilst acknowledging these issues it is understandable that the Complainant was frustrated at the timing of the submission made by the Respondent, particularly in circumstances where the WRC had asked the parties to make their submissions in advance of the hearing and in circumstances where the Respondent was represented by a reputable law firm.

At the hearing the Complainant was invited to clarify the specific nature of her complaints and I am satisfied that having been provided with this opportunity she clearly outlined what she believed amounted to cases of discrimination under the gender and age ground which occurred from March 2017, and where she maintained there was a continuation of the legislative discrimination from that date up to her notice of resignation in March 2018. She submitted that she felt there was no option in March 2018 but for her to give notice of her intention to resign her position due to what she preserved was the continued discrimination she had experienced. The Complainant also acknowledged at the hearing that some of the complaints raised in her written submission were not discriminatory breaches under the Act.  Accordingly, the hearing only considered the specific allegations of discrimination.  

Preliminary Issues- Time Limits to Make a Complaint

The Respondent maintained that in accordance with Section 77 of the Employment Equality Act 1998 (the Act) each of the complaints of discrimination are required to be submitted within six months of their occurrence, and that the Respondent further contended that Complainant had demonstrated no reasonable cause for raising complaints of discrimination outside the six months jurisdiction.  The Respondent also contended that there was no continuance of the alleged events to allow the Complainant to rely on events that occurred prior to 24^th January 2018. The Complainant’s submission was received by the WRC on 24^th July 2018. 

It further maintained that each and every one of the complaints raised by the complainant did not amount to discrimination but were purely speculative in nature. 

Section 77(5) of the Act states (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 General of the Workplace Relations Commission…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 to 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 Act states 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 Complainant has not made an application to extend the time period for redress from 6 to 12 months on the basis she maintained the acts of discrimination commenced in February 2017 and continued until March 2018.  

In considering whether it is in my remit to entertain complaints dating back to March 2017, some 16 months before the Complainant submitted her complaint to the WRC, and complaints of alleged discrimination which occurred in September 2017, some 9 months before the Complainant submitted her complaint to the WRC, I am obliged to consider the preliminary submission presented by the Respondent. I must therefore consider inter alia the precedent set in Cork County VEC v Hurley EDA 1124, and Musgrave Ltd t/a Musgrave Wholesale Partners v Zakaria EDA 1627).  In this regard the Labour Court has determined that there needs to be a sufficient link between the alleged events to allow for them to be considered beyond the six month period; and that before such consideration can be made in deciding whether such a continuance  exists  what must be first addressed is whether the act complained of within the six-month period in itself establishes a prima facia case of discrimination. If not, then the Respondent has contended that the Adjudication is not required to consider any complaints in respect of events made outside the six months preceding the date of the complaint to the WRC. 

The Labour Court in EDA 1124 has determined that “in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit. In the case within, the Complainant did not present a detailed argument as to why the earlier cases of discrimination (that is the alleged events before 25^th January 2018) were not submitted within the six month period as specified under section 77 of the Act, other than to maintain that the decision not to appoint her to a level 4 Workplace Banking Executive in March 2018 amounted to a further and final act of discrimination.  She submitted in her complaint that the earlier acts occurred in between February to September 2017, but where no specific date was provided for those alleged acts. These earlier complaints of discrimination which were made under either the gender or age ground, referred to significantly different acts of alleged discrimination, by different people and in different locations when compared to the alleged act of discrimination on the gender ground regarding a promotion in March 2018. The Complainant never raised the earlier incidents as acts of discrimination at the time, yet it appears she had options to do so particularly when seeking access to the IT system in 2017, when she complained about the handling of her mid-term performance review in 2017, and when she was seeking to address matters in relation to her secondment.  She had complained about some of her earlier experiences to HR but did not at any time raise these matters as being acts of discrimination.

I am satisfied that the last alleged act of discrimination occurred on 8^th March 2018 and that this complaint was submitted within time.  In this regard the Complainant had understood all of the seven alleged incidents between March 2017 to March 2018 could be heard.  I also acknowledge the Complainant was upset by her experiences.

Finding to the Complaint of Discrimination on the Grounds of Gender Regarding Promotion

S6 of the Act defines that discrimination on the ground of gender shall be taken to occur when a person is treated less favourably than another person is, has been, or would be treated in a comparable situation where one is a woman and the other is a man.Section 8(1)(b) to (d) of the Act, states an employer shall not discriminate in relation to promotion or re-grading of an employee.

Having considered the evidence regarding the Respondent’s handling of the Complainant’s application for the Workplace Banking role, I am satisfied that the evidence supports that the Complainant did apply for the job in January 2018.  At that point the Respondent was considering a number of appointments at Level 4 and Level 5, however by the end of January 2018 the circumstances changed with regard to the desired level for that role and it was decided the role would be at Level 4.  The Complainant’s application was considered with the other applicants at that time.  However, she was found not to be suitable to the role due to the competencies identified at level 4.  Decisions regarding the filling the role continued until late February 2018 where two females and four males were appointed, but the Complainant’s application was deemed unsuccessful. The Respondent has not notified the Complainant of this decision at the time, and by early March 2018 she had heard a colleague had been successfully appointed. 

The Complainant maintained that she was discriminated against on the basis of her gender where she identified a male comparator whom she submitted was treated more favorably than her, particularly as this male comparator had previously been demoted from a Level 4 grade.

Having considered the response with regards to this comparator I am satisfied that the basis for the selection of this candidate was based on objective criteria relating to the sales experience and customer relationship experience required for the role. Furthermore, evidence provided regarding the comparator indicates he was not demoted but had previously agreed through a mutual arrangement with the respondent to revert to a level 5 role. However, when assessed for the new Workplace Banking role his skills and experienced were deemed more suitable than the Complainant’s. I am satisfied he had not been demoted in the manner inferred by the Complainant.   I am also satisfied that the outcome of the process, which appointed two females, does not demonstrate discrimination on a gender ground.  I am satisfied on the evidence adduced that the decision to select a candidate was based on the competencies identified for the role and where the male comparator identified by the Complainant was not treated more favorably due to his gender.  The Respondent provided credible evidence with regards to the male comparator’s career history and the basis of his appointment. 

I do find that that the manner in which the Complainant was informed of the outcome of the process, and the inadequate feedback as to why she was not shortlisted falls short of good HR practice, but it does not amount to discrimination under S6 and S8 of the Act.  I therefore do not uphold this complaint. However it would be appropriate for the Respondent to review its HR practices and record keeping regarding promotion competitions in order to address the obvious shortcomings in its practice as identified during the hearing.

Findings in relation to the complaints of Discrimination Regarding Access to Training; Discrimination Regarding Conditions of Employment- Access to an IT System, Mid Term Review, and Overtime Payments; Discrimination on the Grounds of Age; and Discrimination Regarding Gender- Secondment

Having found that the complaint which was within time does not amount to discrimination, I find that the remaining complaints are outside the time limit prescribed by s.77(5) of the Act and are statute barred.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

As I have not found that the Complainant was discriminated in relation to her application for promotion in March 2018 the complaint fails.

As I have found the complaints from February to September 2017 to be statute barred these complaints fail.

Dated:   July 10^th 2019

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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