Complainant

Respondent

Anonymised Parties

A Senior Contracts Administrator

An Aircraft Leasing Company

Representatives

Barry Crushell, Solicitor

Rosemary Mallon BL

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-00027418-001

01/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00029713-001

16/07/2019

Chronology

In September 2011, the complainant joined the respondent’s business as a Contracts Administrator.   She had worked for a predecessor of the company from 1998 until 2006.   Her appointment came about when she heard that the respondent had taken on a new portfolio and she contacted the CFO to let him know that she was interested in a job. She was offered a role in either San Francisco or Singapore. In her evidence, the complainant said that she told the CFO that she didn’t want to relocate because she has four children.   She was then offered the same job in Dublin on a six-month trial basis, which was extended to 12 months, following which, in May 2012, she was offered a permanent contract.

The complainant reported to the Contracts Manager in the respondent’s headquarters in San Francisco, who I will refer to as “LM.” LM reported to the Vice President for Finance (VPF) who attended the hearing of this complaint. For many years, the complainant was the only member of the contracts team in Dublin, and sometime in 2017 or 2018, she recruited an administrator who shared her office. In March 2018, her job title changed to that of “Senior Contracts Administrator” (“SCA”) to reflect her experience, although the title didn’t attract any additional pay.

In 2018, the company was going through significant growth that resulted in an increase in work for the contracts department. In May, a member of the team in San Francisco resigned and, rather than fill the vacancy there, a decision was made to recruit a SCA for the Dublin office.   On July 25th, the complainant sent an email to LM and VPF in which she said,

“I am reaching out to you both in relation to the new Contracts position which is yet to be filled in the Dublin office. From my understanding, you are looking for a super strong CA with extensive contracts management / administration experience along with a good working knowledge of (software).

“With over 15 years’ aviation experience …my B.A. (hons) degree in Accounting and Finance in addition to my ACCA qualification …I believe that I would be more than capable to excel in this role, if given the opportunity.”

On the same day, VPN replied saying, “We are looking for a Senior Contract Administrator and you already are a Senior Contract Administrator.”

While interviews were held with several candidates, no one was appointed to the role and on August 22nd 2018, a recruitment agent proposed a candidate who was eventually selected for the job. I will refer to this person as “SC.” From the outset, the recruiter notified LM that SC has three children. In response to the recruiter’s mail of August 22nd, LM said that they were busy training new contracts staff and that they were putting the role in Dublin on hold for the moment. The recruiter persisted and LM and VPF interviewed SC by telephone in October. They considered her experience of 20 years, her current role in which she managed a team of eight contract administrators and her technical skills and they decided that, if she was appointed, she would be at a more senior level than the complainant. On October 17th, VPF phoned the complainant and informed her about the interview with SC and the possibility that she could be recruited as a “Super Contracts Administrator” which was anticipated to be more senior than the complainant’s job.   On the same day, the complainant sent VPF an email in which she said,

“Just to reiterate with the growth of the team and the obvious increase in workload for everyone, I would relish the opportunity to be considered for the super CA position.”

On November 7th 2018, the company announced that SC would be appointed to a new role with the job title of “Team Manager.” On November 12th 2018, the complainant’s solicitors wrote to the company to confirm that she had resigned with effect from the previous Friday, November 9th. On November 27th, in response to a letter from the company asking her to retract her resignation and to deal with her grievances in accordance with the company’s grievance procedure, the complainant’s solicitor asked the company to hold off issuing her P45 and said indicated that she was open to discussing her concerns. The complainant returned to work on January 3rd 2019.

Both sides agreed to the appointment of an investigator, who I will refer to as “INV.” Terms of reference were drawn up and a copy was included in the documents submitted in evidence at the hearing. INV’s final report of March 28th 2019 shows that, during his interviews with her, the complainant “abandoned the contention” that she was discriminated against on the ground of gender. INV found no evidence of discrimination on the ground of age or family status.

Just before his report was issued, the complainant informed INV that she had an audio recording of a telephone conversation with LM on July 5th 2018, which, she claimed, demonstrated that she was not considered for the more senior role because she has four children.

The complainant appealed INV’s findings and a review was carried out by the Chief Operations Officer (COO). COO listened to the audio recording of the phone call of July 5th 2018 between the complainant and LM. In the end, he upheld the findings of INV that no discrimination had occurred in the appointment of SC to the job of Team Manager in November 2018.

On July 5th 2019, the complainant resigned. She claimed that her relationship with LM and VPF had broken down and that minor issues were being blown out of proportion. Her case is that she was not considered for the role of Team Manager because she has four children. In the form she submitted to the WRC, she claims that she has been discriminated on the ground of her gender, age and family status. Due to the conduct of her employer in this regard, she claims that she had no alternative, but to resign from her job.   Her second complaint therefore, is an allegation of constructive dismissal.

Direct Evidence

Answering questions from Mr Crushell, the complainant outlined how she was offered her the job of contracts administrator in 2011 and her appointment to a permanent position after 12 months. When she was interviewed by CFO, she said that he asked her if she had any more children (following her departure from the previous company in 2006). When she told him that she now had four children, she said that he responded, “four kids…typically Irish!”

The complainant was promoted in March 2018. She said that she felt that the contracts department needed someone “at another level” and this promotion to SCA reflected her experience. She said that her duties or her salary didn’t change because of the promotion and her team continued to be comprised of her and two others based in San Francisco.

Apart from the contracts department, the main part of the Dublin operation was the technical group, made up of 22 men. There were two to three reception staff that are female and an analyst and the complainant’s assistant, who are female. Asked about instances of discrimination in the company, the complainant said that when a member of the Finance Team in San Francisco went on maternity leave for the third time, she was excluded from an important aircraft deal when she returned.

When the decision was made to appoint a new Contracts Administrator in Dublin in the summer of 2018, the complainant was not approached about her suitability for the job. When she made enquiries about it, she said that her line manager, LM told her that, because she has four children, she wouldn’t be considered. She said that, from May until October 2018, she had numerous conversations LM about the job. On July 5th, she said that she was on a call with LM and she had the phone on speaker. She explained that the reason the phone was on speaker was so that her assistant could learn from the conversations between her and her manager. During the call, the complainant said that her assistant asked her, “will I record this?” The assistant then recorded the call on her mobile phone and sent the complainant the recording on WhatsApp. On the call, LM said that, when considering the suitability of someone for a promotion, that someone told her that the company takes account of the number of children they have.

When she was asked why she didn’t tell the investigator, INV about the recording, the complainant said that she didn’t want to get her assistant into trouble by revealing that she made the recording. Then, when she read the interview notes and she saw that LM denied saying what she said on the call, she felt that she had to tell INV about the recording.

INV’s report was issued on March 28th 2019 and the complainant appealed against the findings. The appeal took the form of a 25-minute telephone conversation with the COO, who attended the hearing of this complaint. The complainant passed the recording of her July 5th telephone call with LM to COO. Six weeks after her appeal conversation, INV’s findings were upheld and the complainant’s appeal was unsuccessful. In a statement from the HR Department, the complainant was informed that the content of the July 5th telephone call was unfortunate, but that it did not reflect company policy. The complainant’s position is that “it may not be company policy but it is company practice.”

The complainant said that, in March 2018, at her annual review, she was informed that she was “the strongest member of the contracts group” and she received the highest increase and the largest bonus. She claims that “it doesn’t stack up” that she didn’t get the job (of Team Manager). At her March 2019 review, she had just returned following her first resignation and she didn’t get a salary increase and she received the lowest bonus of her career with the company. She said she was told that her performance had deteriorated. The complainant said, “if I hadn’t been going through this, I think my bonus and wages would have been in line with previous years.”

After March 2019, the complainant said that she found working in the Dublin office very difficult.   SC was in place as the new Team Manager and she had no problem working alongside her. However, because of her allegation of discrimination, her relationship with LM broke down and she was sharing an office with her assistant, who didn’t co-operate with the investigation.

Mr Crushell asked the complainant why, before resigning for a second time, she didn’t submit another grievance regarding how she was treated. The complainant said that she had no faith in the company’s ability to investigate her issues and she could see no other options. She said that the experience of the previous year took its toll on her, she had problems with sleeping and she suffered from stress and had to attend a counsellor. She said that she was informed that the new job was to be a Team Leader job and not a Team Manager job and that she should have should have been given an opportunity to apply for it.

Cross-Examining of the Complainant

In response to questions from Ms Mallon, the complainant said that, after SC joined the company as Team Manager, she discovered that she was a mother of three school-going children. The complainant confirmed that she has withdrawn her claim of gender discrimination.

Ms Mallon asked the complainant if her complaint is based on the fact that she has four children, compared to SC, who has three. The complainant agreed that this is the basis of her case. She said that, if she had three children, she thinks that she may have been considered for the job.

Ms Mallon referred to the complainant’s evidence about when she got the job of Contracts Administrator in 2011. The CFO, who offered her the job in either San Francisco or Singapore, knew that she had four children. Ms Mallon suggested that a role was created a job for her in Dublin, to accommodate the fact that she has children.

The complainant said that she was still pursuing her claim of discrimination on the ground of age.   She said that she didn’t know how old SC is, but she thought that she was probably younger than her. She said that the company hired young people to replace older people. Ms Mallon submitted that the difference in age between SC and the complainant “is not dramatically different.” Ms Mallon pointed out that the complainant’s line manager and her head of department are both females and older than her. The complainant responded that she believed that she should have been given an opportunity to apply for the job of Team Manager. In May 2018, when she was involved in interviewing candidates for the job, which was then a Senior Contracts Administrator role, she was told that the person would eventually become a Team Leader for Dublin and Singapore.

Ms Mallon referred to the fact that the job proposed in July 2018 was that of a Senior Contracts Administrator. The complainant disagreed, saying that LM told her that she would send an email to VPF to ask if she would consider the complainant for the job. Ms Mallon suggested that the company was entitled to create a role if a good candidate came along. The complainant responded that, in her view, the company had a duty of care to her.

Ms Mallon referred to the phone call recorded in the complainant’s office on July 5th 2018 between her and LM. She said that the call lasted about an hour, although the recording is just four and a half minutes long. Ms Mallon suggested that the recording shows that an un-named person suggested to LM that the company would not promote a woman who has four children.   On the call, LM doesn’t say that this is true, but that “maybe it’s true, it’s just that maybe there are side conversations that they are not involving me.”

Ms Mallon asked the complainant why, instead of resigning, she didn’t raise a formal grievance about how she felt she was discriminated against. The complainant said that her relationship with LM had broken down.   Finally, she said, “what was the point?”

Ms Mallon referred to a letter from the complainant’s doctor that was submitted in evidence showing that she consulted her doctor about a work-related issue in September 2018.   In her letter, the doctor refers to her consultation notes of September 2018 and the reference to a “legal case ongoing.” Ms Mallon suggested to the complainant that she contemplated litigation as far back as September 2018.

Answering further questions from her own Counsel, the complainant said that when she consulted her doctor, she was upset because she was not being allowed to apply for the new position.

Evidence of the Chief Financial Officer

The CFO said that he recruited the complainant in 2011, creating a role in Dublin for her. He knew she had four children. He said that he founded the company 32 years ago and he has hired hundreds of people. He currently oversees five departments including Contracts, Finance, Accounting and Tax. Each department head is female, many have children and none are younger than 40.

Ms Mallon referred to Monday, November 5th 2018, two days before SC was appointed to the role of Team Manager. The complainant sent CFO an email asking him to meet her in Dublin. CFO said that he was at Heathrow Airport when he got the email and he had an audit committee meeting on Tuesday and he left Dublin on Thursday following a heavy schedule of meetings. He said that he was shocked to get the complainant’s first letter of resignation on November 12th.

Ms Mallon pointed out that the complainant’s case is that she wasn’t offered the Team Manager job because she has four children, compared to the person who got the job, who has three children. CFO said that this was “nonsense.” CFO said that he didn’t interview the successful candidate. He was asked by LM and VPF for approval to add a resource and he gave his approval. He was then asked to approve the salary for the role, which he did.

Cross-Examining of the Chief Finance Officer

Mr Crushell said that, from his research, it appears that 12 of the most senior managers in the company are male. CFO said that four of the 12 are female, and most have been with the company since it was founded.

Evidence of the Vice President of Finance

VPF said that she is responsible for three sections of the business, comprising Finance, Risk and Contracts. She joined the company in 1988 and has had two children during that time. She said that this never caused any issue with her employer. VPF said that she is quite a bit older than the complainant. She said that the complainant’s line manager, LM, is older again.

CFO described herself as a “math nerd” and said that most of the roles in her department require a proficiency in complex financial calculations.

Referring to the vacancy in the Dublin office, VPF said that, around May 2018, the two senior managers in Dublin, the Head of Technical and the Head of Legal, got involved in the recruitment process with the complainant. VPF said that she was looking for someone with relevant experience who could help LM. During 2018, they recruited people in San Francisco with very little experience and they wanted to try to balance this out.

Ms Mallon referred to the complainant’s evidence that she heard that the person who got the job would be a Team Leader. VPF disagreed. Ms Mallon asked how the company went from looking for someone to help LM to appointing a Team Manager? VPF said that when she checked out the successful candidate’s profile on LinkedIn, she discovered that she was a “super-user” of the predecessor version of the software used by the respondent. She also had experience in testing and design and she is an aeronautical engineer with a strong background in maths. In her role before she joined the respondent, she managed a team of people. VPF said that these are the reasons she was offered the job.

Cross-Examining of the Vice President of Finance

Mr Crushell asked VPF why she didn’t select the complainant for the vacancy. She replied that at the level of a Contracts Administrator role, the work is mostly standard administration. On the other hand, LM’s job is 90% complex and 10% administrative. VPF said that the complainant was excellent at dealing with the company’s clients, could produce invoices quickly and was always helpful, but she was not strong on maths or on systems. VPF said that she knows that the complainant disagrees with this opinion.  

Mr Crushell said that it appears that from a cultural perspective, the company engages in micro-managing its staff. He asked VPF how she would describe LM’s management style. VPF said that LM is responsible for training and she could draw on her when she needed to. She said that, in her view the complainant and LM got on well. She said she was shocked when she heard the phone transcript of the conversation between LM and the complainant on July 5th 2018. She said that she doesn’t know why LM said what she said.    

The complainant’s case is that she has been discriminated against on the grounds of gender, age and, according to her written submission, “primarily family status.” She makes these allegations because she was not given the opportunity to apply for a role for which she considered herself eminently qualified. She alleges that the reason is because she has four children.

When the vacancy for a Contracts Administrator role for Dublin was proposed in May 2018, the complainant was not approached about her suitability for the job. She claims that her manager, LM, told her that, due to her four children, she would not be considered. On July 5th, the complainant recorded a telephone conversation with LM in San Francisco. A transcript of this conversation was submitted at the hearing and LM is recorded speaking about someone who told her that a person with more than two children would not be considered for promotion.

By July 2018, it appears that a decision was made to assign a more senior status to the Contracts Administrator vacancy and the complainant sent an email to LM and VPF indicating that she wished to be considered. VPF replied and informed her that she was already a Senior Contracts Administrator and that this was the role they were seeking to fill. On November 7th, the respondent announced the appointment of SC in the role of Team Manager, working four days a week. Aside from the appointment of SC to the role of Team Leader, the complainant’s submission notes that she was upset that she was recruited on a four-day week basis. In 2014, while she was permitted to take one day a week off as parental leave, after several months, she was required to revert to working full-time.

The complainant claims that, at the investigation to consider this matter, her manager lied about the comments she made regarding the complainant’s prospects, considering she has four children. She had a recording of this conversation which she claims was not considered by the investigator.   INV concluded that the complainant’s allegations of discrimination on the grounds of family status, age and gender were not upheld, although, the investigator notes that, during his enquiries, the complaint of discrimination on the ground of gender was not pursued.

Legal Precedents

The complainant’s submission refers to the following legal precedents in support of her claim of discrimination:

The outcome of the case at adjudication of Valerie Smollen and the Irish Prison Service, ADJ 00007285 addresses the requirement of complainant to discharge the burden of proof in complaints of discrimination.

The Labour Court case of Mitchell v Southern Health Board, DEE011 addresses the issue of the evidential burden of proof.

In the Labour Court case of Cork County Council v McCarthy, EDA 0821, the Court determined that, at the initial stage of a hearing, the complainant is 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 proven facts.”

The UK case of Igen v Wong, IRLR 258 shows that when a complainant has established the facts from which a conclusion can be drawn that discrimination has occurred, “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.”

In the instant case, the complainant argues that the audio recording proves that, on the balance of probabilities, she has been discriminated against on the grounds of her gender, age and family status.

The respondent submitted that the complainant has failed to raise a prima facie case of discrimination on any ground. In this regard, Ms Mallon, like Mr Crushell, referred to the burden of proof in the case of Mitchell v Southern Health Board, DEE011.

The Labour Court decision on Arturs Valpeters v Melbury Developments, [2010] 21 ELR 64, is a complaint about discrimination on the ground of race, but Ms Mallon submitted that it is relevant to the current case.   Here, the Labour Court held that an inference of discrimination could only be drawn “if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably.” Also, in this case, the Court noted that the facts being relied on had to be more than “mere speculations or assertions, unsupported by evidence.”

During the investigation in March 2019 into her grievance, complainant conceded that she was not discriminated against on the ground of gender. Ms Mallon submitted this complaint must therefore fail.   Similarly, the respondent’s case is that the complainant cannot substantiate a claim that she was discriminated against on the ground of her age; her manager and her manager’s manager are both older than her. SC, who was appointed to the role of Team Leader, may or may not be older than the complainant and there is no evidence that she was appointed to the role because she is younger. The respondent does not know SC’s age.

In relation to the claim of discrimination on the ground of family status, it is the respondent’s case that this must also fail. When the complainant returned to work for the company in 2011, she was the mother of four children. The complainant’s manager and her manager’s manager are also mothers. In October 2018, when she was interviewed by the respondent’s managers, SC informed them that she wanted to work four days a week and not on Fridays because she has three children. It is the respondent’s case that if they had a difficulty with the family status of any individual, it is not plausible that they would appoint SC to the role of Team Manager.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”).

“…discrimination shall be taken to occur where –

(a) 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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section 6(2)(c) and (f) respectively, the “family status ground” and “the age ground” are listed as two of the nine discriminatory grounds.

At the hearing on October 9th 2019, and during the investigation into her complaint in March 2019, the complainant conceded that no gender-based discrimination occurred.   Her case is that, because of her age and family status and specifically, because she has four children, she was subjected to discriminatory treatment by her former employer. She claims that this discrimination occurred when her former employer refused to consider her for a role as a Senior Contracts Manager or a Team Leader or a Team Manger in the Dublin office of their Contracts Department.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (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 effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than a younger employee and/or an employee who has no children.

Concerning the requirement of the complainant to discharge the burden of proof, Mr Crushell and Ms Mallon both referred to the Labour Court decision in Mitchell v Southern Health Board, DEE 11, [2001] ELR 201. Mr Crushell’s case is that the complainant has satisfactorily established her case and Ms Mallon argues the opposite.   Describing the evidential burden on the complainant in Mitchell, the Labour Court held that,

“The first requirement is 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.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The Primary Facts

In 2018, when the respondent’s managers were looking for a Senior Contracts Administrator in Dublin, a recruitment agency sent them SC’s curriculum vitae. SC had more qualifications and experience than they were initially looking for and, because of this, in November 2018, they decided to change the job specification and they offered her a more senior position, that of Team Manager.

Before SC came to the attention of the company, in May 2018, the complainant asked if she could be considered for the new role. She was told that the job they were hiring for was at the same level as her job. On July 5th 2018, on a telephone call lasting more than an hour, the complainant procured a recording of a four-minute segment, during which her manager said “somebody told me…” that the complainant would not be considered for a more senior job “…not that she’s not capable. I mean she can do it she’s good but they said they are thinking she has four kids.”

By October 2018, the complainant understood that her managers were looking for a “Super Contracts Administrator” and, based on her experience, she felt that she was suitable.   On October 17th, she sent an email again to VPF who replied, “we will keep the team updated as we move forward on the resource search.”

The complainant resigned on November 9th 2018, two days after SC was appointed. She was persuaded to return to work in January 2019, and to engage in an investigation into her grievance about the fact that she was not considered for the job of Team Manager and her perception that the cause was related to her age and the fact that she has four children. When the investigator produced the notes of his interview with LM, the complainant revealed that she had a recording that contradicted LM’s evidence.

Having considered “the entirety of the evidence” presented to him, on March 28th 2019, the investigator concluded that the complainant was not discriminated against on the grounds of gender, family status or age. He decided however, that the complainant’s grievance regarding the respondent’s failure to consider her for the role of Team Leader was well-founded. At paragraph 39 of his report, he stated:

“I emphasise that the basis upon which the Grievance is upheld is not that the Complainant was not given the Super CA/Team Leader role. Rather, the grievance is upheld on the basis that the complainant is reasonably and legitimately entitled to feel aggrieved about (the respondent) appointing (SC) to that role without the Complainant having been given the opportunity to apply, and without (the respondent) having interviewed the Complainant. In the overall context, the Complainant was not treated fairly.”

While the investigator concluded that the complainant should have been invited to apply for the new role, he did not reach a conclusion that the fact that she was not appointed amounted to discrimination.

Findings

The opening section of the preamble to the Employment Equality Act 1998 tells us that the legislation is derived from certain EU directives on equal pay for men and women and equal treatment as regards access to employment. The objective of the legislation is to make “further provision for the promotion of equality between employed persons.” The Act goes on to provide that, in respect of access to employment and terms and conditions of employment, employers must not discriminate under nine specific headings, the “discriminatory grounds,” which, for our purposes here, include family status and age.

Aside from the obligation not to discriminate, the Employment Equality Act does not prescribe how recruitment is to be carried out. Employers are free to use a variety of means, such as application forms and interviews or, they can use no means at all, and fill vacancies arbitrarily, selecting family, friends and neighbours if they wish. For a variety of reasons, such an arbitrary approach is not recommended, but it is not unheard of and it may not be illegal, unless a prospective candidate can establish that they were not considered for a job because they are a member of one of the nine discriminatory categories.   I make this point because, while it may not feel right, and it may seem unfair, it is not discriminatory not to consider a current employee for a newly-created senior role.

In 2011, when the complainant was recruited for the job of Contracts Administrator, a vacancy was not advertised and she was appointed following her own enquiries, her skills and experience and the fact that she had worked for a predecessor company. She has four children and when she informed the CFO that she wasn’t willing to re-locate to San Francisco or Singapore, he created a job in Dublin that was suitable for her.

In 2018, when SC was proposed by a recruiter for the Super Contracts Administrator role, she was working in a more senior job with a competitor. The respondent then created a more senior role that was suitable for her and they also agreed that she could work four days a week (for four days’ pay) because she has three children.

It seems to me that the decision to create a job for SC in 2018 with the title, “Team Manager” does not differ dramatically from the decision in 2011 to create the job of Contracts Administrator in Dublin (and not San Francisco or Singapore) for the complainant. The objective for the respondent on both occasions was to recruit the best people for the jobs.

As set out by the Labour Court in the Valpeters decision, to establish that discrimination has occurred, I must find that, in respect of the recruitment decision made in 2018, “there was evidence of some weight from which it could be concluded” that the complainant was treated less favourably because she has four children, compared to SC, who has three.

The Telephone Call on July 5th 2018

The complainant’s evidence is that her manager’s comments during their telephone call of July 5th 2018, indicate that she was discriminated against. I have some concerns about the complainant’s reliance on the recording of this telephone call. Firstly, she said that the call went on for over an hour, but we have only four and a half minutes of a transcript, and we do not know how the conversation started, why LM engaged in a discussion about employees with children or the context in which the conversation took place. It would appear from the transcript that LM was trying to explain to the complainant why she was not being considered for the new role, because the recorded section starts with a justification for the company’s decision:

“The person who is there, they know that I am so upset about, you know, I am all about hiring right away, somebody who is really very good but then if the resumé is fantastic, the test is great but let’s try the person first and if they’re good promote them but if we can promote internally first to kind of motivate people let’s promote them first.”

This segment of the conversation has LM telling the complainant that she thinks it’s a good idea to “promote internally first,” but that a challenge arises when a “fantastic resumé” turns up. It seems to me from this section of the conversation, that LM is trying to say, “if it was me, I would give you an opportunity to apply.” While this might have been LM’s view during the call, the primary objective of the company is to find the right person for the job and, in the end, LM’s preference for promoting internally did not hold sway.

It is clear from the transcript of the following part of the call, that LM seeks to explain that the reason why the complainant was not being considered might be related to the fact that she has four children. LM referred to an employee with three children: “X used to be the favourite okay, but X started going on maternity leave, almost three consecutive years she has three small kids…after she has kids they don’t want to give her anything.”

The problem with relying on this statement is that the company filled the role of Team Leader with a woman who has three children. Also, we don’t know what happened to X after she returned from her third maternity leave and the statement made is entirely based on conjecture and gossip.   The complainant provided no evidence to back up the contention that X was treated in a discriminatory fashion, apart from her contention that she was left out of a deal. We don’t know if X wanted to be left out, or if she was involved in another deal.

Later in the call, still on the subject of maternity leave, the complainant says:

“You’re actually better off with people who have already had their family because I’m not going to go on maternity leave again whereas other young people, they are the ones who are going to go. You know, they are going to be out of the office, they are going to take maternity leave.”

From this, it appears that, rather than consider who might be suitable for promotion, the complainant makes a case for older women with children. I don’t think she considered how this approach would discriminate against young mothers.  

The statements made on this telephone call are the personal views of the two participants.   It seems to me that LM is making an effort to reassure the complainant, and to let her know that she is appreciated, but she goes about it the wrong way by engaging in gossip and conjecture, aided and abetted by the complainant’s responses. It is not a conversation about which either participant can be proud.

The complainant contends that, in May 2018, she was not considered for the vacancy of Super Contracts Administrator because she has four children. She presented no evidence that the fact that she has four children was, at any time, an issue for her employer. She alleged that in 2011, CFO remarked, “typically Irish!” when she told him she has four children. If this remark was made, it is a comment about Irishness more than a criticism of the complainant, and, in any event, in the knowledge that she has four children, CFO offered her the job.

It is apparent that the skills and qualifications of the person who was appointed to the role are different to the complainant’s skills. The complainant is an accountant and is engaged mainly in the administrative, invoicing and lessee-relationship aspect of the job.   SC is an engineer, a people-manager, she has systems expertise and a strong maths background. For an employer trying to fill a new position in Dublin, it seems that SC’s skills complemented those of the complainant and I can appreciate why, when she resigned in November 2018, the respondent persuaded to change her mind.

Having considered these facts, the complainant’s case that she was not considered for the job because she has four children does not stand up, because the person who was appointed has three children. I cannot conceive of any employer favouring one woman for promotion over another because of a 25% differential in the number of children they have. Without pursuing this argument to a ridiculous extent, in 2018, the complainant’s youngest child was 12 and the others were teenagers. I can see no circumstances in which this would present a problem for her employer, and the complainant has not provided any evidence to support her contention that her children are the reason she was not considered for the job.

In May 2018, the respondent started out looking for a person at the same level at the complainant, with a different skill-set, so that some of LM’s workload could be shared by someone in Dublin. When the early interviews didn’t produce a suitable candidate, a persistent recruiter persuaded the respondent to have a telephone interview with his candidate.   The job was not as senior as the role this candidate was in, but she was interested because the respondent’s premises was located close to her home. After two interviews, the managers decided to re-configure the role to suit this candidate and the job of Team Manager emerged.

Conclusion

I refer to the Labour Court appeal of Graham Anthony & Company Limited against the decision of the Equality Officer in respect of the complaint of Mary Margetts, EDA 038.   This was a complaint by Ms Margetts that she was discriminated against on the grounds of her marital status, her family status and her age. The point made by the Chairperson of the Court, Ms Jenkinson, is relevant here:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The complainant’s case is that she was discriminated against on the grounds of her age and family status. No other facts have been presented to support this contention and, it is my view that she has not shown that, on the balance of probabilities, she was subjected to discrimination based on these criteria. For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

I have concluded that the complainant has failed to discharge the burden of proof which requires her to establish the primary facts that can be relied upon to establish a complaint of discrimination. Based on this conclusion, I have decided that her complaint under the Employment Equality Act fails.

It is the position of the complainant that the respondent failed to conduct a fair and reasonable investigation into her complaints regarding the filling of the role of Team Leader in November 2018. She argues that the subsequent failure of the respondent to conduct an adequate appeal, considering a recording which, she argues, substantiated her original claims, left her in an untenable position and without any alternative but to resign from her job.

For the complainant, Mr Crushell submitted that there is a general obligation on an employer to not, without good reason, engage in conduct that is likely to undermine the trust and confidence of an employee if the employment relationship is to continue in a manner envisaged by the contract. It is the complainant’s case that, by July 5th 2019, when she resigned, the conduct of the respondent could not have been tolerated for a moment longer.

Legal Precedents

In support of her argument that her dismissal was unfair, the complainant submitted that the following cases are relevant:

A Worker (Mr O) v An Employer (No 2), [2005] 16 ELR 132

Here, the contract test and the reasonableness test are set out, one or both of which may be invoked by an employee who is claiming that they have been constructively dismissed.

Western Excavating (ECC) Limited v Sharp, [1979] IRLR 332

In this case at the Court of Appeal in the UK, Lord Denning described the operation of the contract test:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance.”

Caci Non-Life Limited v Daniela Paone [2017] UDD 750

In this case at the Labour Court, the Chairman expanded on the effect of the contract test and the reasonableness test:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

The Labour Court held that an employee must fully exhaust the employer’s grievance procedures before resigning so that the employer is on notice of the issues that require to be resolved and has an opportunity of resolving them.

Mr Crushell’s submission referred to page 340 of “Dismissal Law in Ireland” by Dr Mary Redmond (© Tottel Publishing, 2007), where constructive dismissal is described in the light of a dismissal by an employer:

“There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer, for reasons of fairness and actual justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed. Conway v Ulster Bank Limited, UDA 474/1981, the EAT considered that the complainant did not act reasonably in resigning without first having substantially utilised a grievance procedure to attempt to remedy her complaints.”

Berber v Dunnes Stores, [2009] ELR 61

In this case at the High Court, referring to an employee’s decision to resign because of the conduct of their employer, Mr Justice Finnegan held that,

“In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.”

Finally, the complainant’s submission refers to the case of Gogay v Hertfordshire County Council, [2000] IRLR 7030 and the finding that the major impact of an implied term of a contract of employment is the obligation of an employer not to act in an “arbitrary, capricious or abusive exercise of managerial power” so that the employee’s trust and confidence are lost.

In her submission on the employer’s response to the claim of constructive dismissal, Ms Mallon also referred to the cases of Berber v Dunnes Stores and Western Excavating (ECC) Limited v Sharp to support her contention that the complainant cannot make out a case that the respondent has acted so unreasonably or in breach of her contract that she had to resign.

Ms Mallon referred also to the case at adjudication of A General Operative v A Religious Society, ADJ00002814 of March 2017, which quoted from the Berber case concerning the critical issue of the behaviour of the employer, but also that of the employee.

In respect of the complaint under consideration, the respondent’s case is that there was no fundamental breach of her contract that justified her decision to resign.   Regarding the reasonableness test, Ms Mallon submitted that the employer was entitled to appoint “a highly-skilled, very experienced individual to the position of Team Manager when that candidate became available through a recruitment process.” Ms Mallon referred to the investigation that was carried out by an experienced barrister, who investigated the complainant’s allegations of discrimination on the grounds of age, gender and family status. The respondent also provided her with an opportunity to appeal against the investigator’s findings.

It is the respondent’s case therefore, that the complainant was treated with fairness and reasonableness and that she was not entitled to resign and to claim that she was constructively dismissed.

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…”

The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee and, considering how her grievance was addressed, was it reasonable for her, or was she entitled to terminate her employment?

Examination of the Evidence

In her evidence, the complainant said that she found it very difficult to remain at work after March 2019, when the report of the investigation into her complaint of discrimination was finalised. Her relationship with her line manager had broken down and she was finding it difficult to share an office with her assistant, who had refused to participate in the investigation into her complaint. It is my view that it was not unreasonable for her to feel completely demoralised and uncomfortable. The issue for consideration is, was it reasonable for her to ascribe the cause of her discomfort to her employer?

In her evidence, the complainant described as “pointless,” any effort to pursue a grievance about her predicament after her allegation of discrimination was dismissed. In the penultimate paragraph of her letter of resignation, she set out her position:

“In conclusion, I believe that I have exhausted all internal procedures with respect to my complaint. This whole process has had a deep and very detrimental impact on my personal well-being, my professional standing and has also affected my family life. Since making my complaint, I have been isolated and excluded by the Contracts Group in San Francisco to such an extent as to render my position untenable.   Following my return to work in January, both (LM) and (VPF) have taken every possible opportunity to undermine my position in a very public way by trying to show that I am incompetent, which is absolutely not the case … At no point during this process did (the respondent) even attempt to offer any solutions to address the working environment or repair the broken relationship between me and the managers of the Contracts Group.”

While I understand how she must have felt at this time, I think that she could have asked for some changes to her working arrangements to relieve the pinch points of her problems.   In her evidence, the complainant said that she had no issues with SC, and she could have asked to report to her instead of LM. She could have requested an office move, so that she wasn’t sharing with her assistant, or she could have asked for her assistant to be moved. In the end, she decided that there was no point, and that is her prerogative; however, by resigning before even setting out in writing the issues that would cause her to resign, she prevented her employer from having an opportunity to resolve her grievances. In this respect, the findings in the seminal Conway v Ulster Bank case are relevant, where the Employment Appeals Tribunal (EAT) described the duty of the employee to utilise the grievance procedures as “an imperative.”

The Contract Test and the Reasonableness Test

Many years of case law on constructive dismissal point to the requirement for a complainant to show that the conduct of the employer must fail at least one of two tests, the contract test and the reasonableness test.

In the complainant’s submission, Mr Crushell referred to the English case of Western Excavating (ECC) Limited v Sharp [1978] (IRLR 332), where Lord Denning concluded;

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance.”

The Supreme Court case of Berber v Dunnes Stores was referred to by both sides. Here, it was held that:

“In determining whether there has been a breach of the implied term of mutual trust and confidence in employment contracts:

1 The test is objective.

2 The test requires that the conduct of both the employer and the employee be considered.

3 The conduct of the parties as a whole and the cumulative effect must be looked at.

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

There is no evidence that the respondent in this instant case “no longer intended to be bound by the contract.” From an objective standpoint, no changes were imposed to the complainant’s terms and conditions of employment. The conduct complained of is the respondent’s failure to allow the complainant to be considered for a promotion. As I have stated in my findings on the complaint of discrimination, this may have seemed to the complainant to be unfair, but it was not “so unreasonable and without proper cause” that she had to resign.

I accept the complainant’s evidence that she was distressed because of how things turned out after her complaint of discrimination was investigated; however, I cannot stretch to a finding that the conduct of the employer meets he standard of being an “arbitrary, capricious or abusive exercise of managerial power” as described in the Gogay v Hertfordshire County Council case, that made it reasonable for her to resign.

Conclusion

It is well established that the burden of proof required in cases of constructive dismissal is a high bar for a complainant. It’s clear from her evidence that the complainant’s relationship with her manager had broken down and her relationship with her assistant must have been extremely strained. She received no salary increase in 2019 and her and bonus award was less than what she received in 2018. To succeed in a complaint of unfair dismissal however, the complainant must demonstrate that her employer has inflicted a fundamental breach on her contract of employment or, has acted so unreasonably, that she had no alternative but to resign. This complainant has not shown that her employer was in breach of her contract, or, that they acted unreasonably in their treatment of her.

In conclusion, while I understand that the experience of not being considered for the job of Team Leader was upsetting for the complainant, and I accept that the aftermath of the investigation into her grievance must have caused significant discomfort for her at work, I find that she has not made out the standard of the burden of proof required that demonstrates that the conduct of her employer was such that she had no alternative, but to leave her job.

I find that the complainant has not demonstrated that her employer behaved so unreasonably, or that there was a fundamental breach in her contract of employment that she had to resign from her job. Because of this finding, I have decided that this complaint under the Unfair Dismissals Act is not well founded.

Discrimination, age, family status, constructive dismissal