Complainant

Respondent

Parties

Josephine Delehanty

Galway Clinic Doughiska Limited

Representatives

Marc Delehanty

Alastair Purdy and Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027043-001

14/03/2019

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

CA-00027043-002

14/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00027043-003

14/03/2019

The complainant was employed by the respondent from on or about 5th October 2009 until her employment ended on 27th February 2019. The complaints were submitted to the Workplace Relations Commission on 14th March 2019 and related to alleged breaches of the Employment Equality Acts, 1998 - 2015. Specifically, the complainant contends to have been discriminated against on the age ground and in relation to her conditions of employment. The complainant also asserts that she was not provided with equal pay due to her age. The complainant also states that she was dismissed for opposing discrimination. A further complaint relates to an assertion that an employment agreement contains a provision which is discriminatory.

Both parties provided written submissions at the adjudication hearing. The parties provided supplemental submissions after the hearing had concluded. The date of receipt of the most recent supplemental submission was 3rd February 2020.

Naming of the parties

The parties are being named in this decision as is the practice of the WRC in relation to complaints submitted in accordance with the provisions of the Employment Equality Acts, 1998-2015.

The respondent raised a number of preliminary points at the adjudication hearing. The respondent stated that the complainant was employed on a “zero-hour contract” with no obligation to accept the hours of work offered to her. The respondent stated that as the complainant did not accept the fixed term contracts offered in October 2018, she remained on the zero hours contract until she resigned on 27th February 2019. The respondent contends that as there was no mutuality of obligation between the parties, the complainant is not an employee and cannot bring a claim under the Employment Equality Acts, 1998-2015.

In relation to the termination of the complainant’s employment, the respondent contends that the complainant resigned. In those circumstances the respondent contends that the complaint is one of Constructive Discriminatory Dismissal and the complainant bears the burden of proof in establishing that she had no other option but to resign from her employment due to the conduct of the employer.

In relation to the complaint of Equal Pay, the respondent stated that Section 77 of the Employment Equality Act only permits an Equal Pay claim pursuant to the differences in treatment between men and women. The respondent referred to the provisions of the Equal Treatment and Equal Pay Directives in support of its position that an equal pay complaint on the age ground is not permitted.

Preliminary Points

In addressing the respondent’s preliminary points, the complainant stated that there is no requirement to demonstrate that mutuality of obligation exists in order to bring a complaint under the Employment Equality Acts 1998-2015. The complainant contends that the definition of an employee is broader under the Employment Equality legislation and includes other contracts of employment where no mutuality of obligation exists.

In relation to the issue of dismissal, the complainant stated that her contract of employment was one of indefinite duration with no fixed hours of work and no retirement age. The complainant accepts that the staff handbook provides guidance as to the normal retirement age but that it had no application to her employment. The complainant stated that the respondent’s letter of 10th January 2019 confirmed that the dismissal would take effect in February 2019 if the fixed term contract on offer was not accepted. The complainant stated that the respondent, by its actions, misinterpreted the terms of her contract and imposed a termination date where none previously existed. The complainant contends that this was discriminatory and that she was dismissed for opposing such discrimination.

In relation to the equal pay claim, the complainant contends that complaint is permitted as the legislation provides for an equal pay complaint under any of the nine discriminatory grounds.

Substantive issues

The complainant contends that she was discriminated against on the grounds of her age in contravention of the legislation. The complainant stated that she was discriminated against by comparison to younger staff members employed by the respondent and was treated less favourably in terms of pay related issues such as sick leave, related annual leave accrual and holiday pay and the payment of attendance bonuses. These issues also form the basis of the complaint relating to equal pay.

The complainant stated that she initially raised the issues with the respondent in April 2016 when she sought a pay increase and a reclassification of her contract of employment from a “zero hours” contract to that of a “permanent part time” contract. The complainant stated that the issue of the contract was not pursued at the time due to assurances she had received that there were no permanent part time contracts available. The complainant stated that she raised this issue again in 2018 having heard that those contracts were available and were/had been offered to younger employees of the respondent. The complainant stated that after raising the issues again with management, she was offered a fixed term contract with inferior terms to those applicable to younger members of staff. The complainant stated that she declined the fixed terms contracts on the basis that the they were not contracts of indefinite duration and on the basis that while some of the pay related issues were addressed in the newly offered contracts there was no provision for the retrospective application of the additional benefits to her.

The complainant stated that her grievances were not addressed by the respondent and that it did not follow its own procedures in relation to the issues raised by her. The complainant also stated that she was intimidated by the respondent and was threatened with dismissal which ultimately occurred in a letter dated 10th January 2019 from the Chief Executive Officer. The complainant contends that the actions of the respondent towards her constitute victimisation within the meaning of the Acts.

The complainant is seeking compensation in relation to the complaints of discrimination and victimisation and is also seeking compensation in relation to her equal pay complaint and her complaint that the revised contracts offered to her in October 2018 contained provisions that were discriminatory.

The respondent refutes the complaints. In relation to the complaints of discrimination on the age ground the respondent stated that the complainant has not discharged the burden of proof in relation to the assertions that she has made. The respondent stated that it acted positively and proactively in offering the complainant fixed term contracts in an attempt to address the issues raised by her. The respondent stated that the complainant was approaching 65 years of age and both parties were aware that this was the normal retirement age within the employment. It was on that basis that the fixed term contracts were offered to the complainant at that time in an attempt to resolve the complainant’s issues. The respondent denies any suggestion that it victimised the complainant within the meaning of the Act as claimed. The respondent stated that it made numerous attempts to address the issues raised by the complainant and its offers to her in October 2018 were indicative of an employer seeking to address and resolve the issues raised by the complainant. The respondent stated that the complainant frustrated the process throughout and ultimately refused the offer of the fixed term contract up until her 66th birthday and left the employment on 27th February 2019.

Both parties provided extensive written submissions at the adjudication hearing and submitted supplemental submissions in the months that followed. Having considered the totality of the information submitted, my findings and conclusions are as follows:

Preliminary Issues

Having considered the respondent’s preliminary issues, I am satisfied that the Employment Equality Acts, 1998-2015 have a broader application than submitted by the respondent and that the complaint is properly before the WRC for adjudication.

In relation to the terminations of the complainant’s employment, the parties are in direct conflict on this issue. The respondent contends that the complainant resigned, whereas the complainant contends that she was dismissed following a letter from the CEO of the respondent dated 10th January 2019. I will address this issue in my substantive findings below.

In relation to the complaint of equal pay, I am satisfied that Sections 28 and 29 of the Employment Equality Acts, 1998-2015 provide for complaints of equal pay based on any of the nine discriminatory grounds. Accordingly, the complaint is properly before the WRC for adjudication.

Substantive complaints

The issues complained of arise as a result of matters raised by the complainant in April 2016 following her request at that time for a pay increase and confirmation that the status of her contract of employment was that of a “permanent part time” employee. The complainant did not pursue the issue of the contract status at that time as she had been assured there were no such contracts available.

Following a conversation in September 2018, the complainant sought a “permanent part time” contract with the additional benefits (holiday pay, sick pay and attendance bonus) retrospectively applied to April 2016 when the issue was first raised.

The complainant was subsequently offered a 12-month Fixed Term Contract with effect from 15th October 2018 which she did not accept. The complainant subsequently received the offer of an updated fixed term contract which had the expiry date extended to 28th February 2020 (the day after the complainant’s 66th Birthday). Although this contract provided for sick pay and attendance bonus, the complainant did not accept the contract on the basis that it was classified as a “fixed term” contract as opposed to a “permanent part time” contract and that there was no retrospective application of the extra benefits to her.

The complainant asserts that the totality of the treatment she received from the respondent since April 2016 constituted discrimination on the grounds of her age. The complainant also asserts that the respondent failed to address her grievances, did not follow its own procedures, intimidated her in an effort to have the complaint withdrawn and ultimately terminated her employment. The complainant stated that this constituted victimisation within the meaning of the Act.

The Applicable Law

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Victimisation

Section 74(2) of the Employment Equality Act, 1998 states as follows:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a complainant must satisfy:

85A(1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Observations

In evidence at the adjudication hearing, the complainant outlined that she was dismissed by the respondent. The respondent, however, stated that the complainant resigned from her employment in circumstances where she did not accept the offer of a fixed term contract up until her 66th birthday (27th February 2020) and the respondent was unable to offer her anything further at that point in time. The respondent confirmed in evidence that had the complainant accepted its offer, it would have reviewed the issue in advance of February 2020 and would have considered offering the complainant a further fixed term contract if she wished to continue in employment at that time.

While the complainant asserts that the termination of her employment was notified to her by letter from the CEO dated 10th January 2019, I do not accept this assertion. The letter in question simply stated, inter alia, that if the complainant did not accept the contract extending her employment to her 66th birthday, her employment would end on 27th February 2019, which is in line with the normal retirement age provided in the staff handbook.

It appears to me that the respondent took a proactive approach in October 2018 in relation to the complainant’s circumstances and its efforts to retain the complainant in employment beyond her 65th birthday and to address, in good faith, the other issues that she had raised.

Having considered the entirety of the matter it appears to me that the complainant was overly concerned with the words “fixed term” and “permanent” and when a permanent contract was not offered to her, the complainant wrote to the respondent on the 7th February 2019 outlining her intentions to refer the complaints of unfair dismissal, discrimination and victimisation to the WRC. In my view, after the letter of 7th February 2019 was issued, it was highly unlikely that the matter would be resolved. The respondent had made its offer to the complainant and I accept that it was not in a position to make any further offer to her at that time. On balance, I find that as of 7th February 2019, the complainant had decided her course of action, refused the respondents offer andleft the employment on 27th February 2019.

Conclusions

In all of the circumstances of the within complaints, I find that the complainant was not discriminated against on the grounds of age in relation to the issues raised by her. I also find that the complainant resigned from her employment in February 2019. I do not find that there was any adverse treatment of the complainant as a reaction to her raising her complaints, or at all, and on that basis, I find that the complainant was not victimised within the meaning of the Acts.

In relation to the complaints relating to equal pay and the complainant’s assertion that an employment agreement contains a provision which is discriminatory, I find that the complainant has not established facts on these issues from which an inference of discrimination can be drawn and has not discharged the burden of proof which she bears. In my view, the complainant’s terms and conditions were reflective of her initial contractual relationship with the respondent which were different to other employees but were not related in any way to the complainant’s age.

Having considered the submissions and evidence of both parties, I find that the within complaints; CA-00027043-001, CA-00027043-002 and CA-00027043-003 are not well founded and I decide accordingly.

Discrimination, Victimisation, Equal Pay