Complainant

Respondent

Anonymised Parties

Claims officer

Insurance company

Representatives

Carley and Connellan

IBEC

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-00030857-001

11/09/2019

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

CA-00030857-002

11/09/2019

CA-00030857-001. Complaint under section 77 of the Employment Equality Act, 1998.

 The complainant has presented a complaint of discrimination on grounds of gender and race.

The complainant has been employed with the respondent since April 2011, first as a claims officer, before moving on to other positions. Her current position is that of a Policy Management Officer in the Policy Administration unit.

She works 37 hours a week. Her gross monthly salary is €2776.

The last act of discrimination took place on the 22/3/2019.

She lodged her complaint with the WRC on the 11 September 2019.

I have decided to anonymise this decision as a recommendation on a dispute under the Industrial Relations Act, 1969 accompanies this decision. Section 13(8) of the Industrial Relations Act, 1969, requires that the investigation of a complaint should be conducted in private.

CA-00030857-002. Complaint under section 13 of the Industrial Relations Act, 1969.

This dispute centres on alleged bullying of the complainant by the respondent and the absence of fair procedures to address this dispute.

Jurisdictional issue.

The respondent questioned the jurisdiction of the WRC to examine this dispute as the worker has lodged a personal injury claim with the High Court based on the same set of facts.

At the hearing on the 13/10/2020, the Adjudicator decided to proceed without prejudice to the respondent’s preliminary position.

CA-00030857-001. Complaint under section 77 of the Employment Equality Act, 1998.

This is a complaint of discrimination on grounds of gender and race contrary to section 6(2) (a) and (h) of the Employment Equality Act, 1998.

At the outset of the first hearing on the 10/3/2020, the complainant’s solicitor made an application pursuant to Section 41 of the Workplace Relations Act,2015 to subpoena 3 witnesses named in his submission. He had also submitted the request in writing. The onus being on the complainant to prove a prima facie case of discrimination, she should be able to call any witness to prove her case and deal with any evidential deficit.

The complainant, a Portuguese national, has been employed with the respondent since April 2011, first as a claims officer, and ultimately occupying the role of Policy Management Officer at the relevant time.

There are five components to this complaint of discrimination.

1. The respondent’s failure to offer the complainant an interview for a Claims Handler (Portuguese language) position in the Claims Department in March 2019 in contrast to a male employee.

2. The marking down of her end of year performance rating due to her absence on maternity leave.

3. The less favourable treatment in terms of her bonus payment due to her absence on maternity leave.

4. The difference in the workload assigned to the complainant, a Portuguese employee, relative to her Irish counterparts

5. Harassment of the complainant on the grounds of race.

1. The respondent’s failure to offer the complainant an interview for a Claims Handler (Portuguese language) position in the Claims Department in contrast to a male employee.

Complainant’s direct evidence

The complainant in evidence stated that she applied on the 28 February for a Claims Handler (Portuguese language) position. On the 5th March she sent her CV to the recruitment section. On the 5 March, HR advised that it would be better to resolve her difficulties in her existing role before moving to another department. Notwithstanding the last piece of advice, the recruitment section, later that same day, sent her an internal application form. They asked her to indicate available dates for an interview. She obtained her departmental manager’s signature and returned the completed form to the recruitment section and offered the 8 March. On 7 March, the recruitment section advised that 8 March was unsuitable but that another date would be provided. The complainant emailed recruitment for an update on the 12 March.

In March the complainant questioned the respondent’s request to provide a medical statement confirming that she was fit to engage in an interview. She had been out on sick leave since 6 February. On 15 March she sent a medical cert attesting to her fitness to engage in an interview to HR. There was no reference at any stage by HR that interviews were taking place on 11 and 12 March. She sent emails and called recruitment and the HR Generalist concerning the anticipated interview. She heard nothing until the 22 March, when HR advised the complainant at a meeting that the job had been filled. The HR generalist at the same meeting on 22 March advised the complainant of the option of the grievance procedure to deal with any concerns which she might have.  The successful appointee was a Portuguese male who commenced in the contested position on 19/3/2019. He got an offer to compete for the job previously. The complainant now thinks he got the job on 12 March. When she applied for the job on 28 February and when she submitted her CV and completed her application form on 5 March, she was not told that she would not be interviewed or that the job was gone.

In the cross examination of the witness, the respondent’s representative pointed to an email from the HR generalist of 14 March to the complainant in which she states that the doctor has not confirmed that the complainant is fit to engage in interviews and meetings. The respondent was waiting for a medical cert attesting to the complainant’s fitness.

The complainant replied that the recruitment section did not advise her of this pre-condition for an interview.

The complainant’s representative stated that the respondent only disclosed for the first time on the 22 March that they had appointed a male, Portuguese employee to the position. This constituted the last act of discrimination. Her medical cert of 15/3/2019 states she is fit to attend an interview. On or before the 15 March, the company knew that the vacancy had been filled. She was told after the fact that she would not be interviewed. All of this is contemporaneous with the complaint about the team leader’s behaviour. The actions of the employer are not those of an employer with nothing to hide. Whatever communication passed between HR and Recruitment has not been disclosed. There was a total absence of transparency.

The complainant’s representative states that the complainant has raised a prima facie case of discrimination. He relies on Brennan V St Michaels House EE/19/1997 which held that

“Prima Facie evidence means evidence which in the absence of any convincing contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred”.

The complainant’s representative argues that the absence of any explanation as to why the complainant was denied an interview raises an inference of discrimination.

The complainant’s representative also relies on Valpeters v MelburyDevelopments EDA 09/2017, which requires that where the facts raise a presumption of discrimination, the onus must now pass to the respondent to rebut the case.

2. The marking down of the complainant’s end of year performance rating due to her absence on maternity leave

The complainant’s representative stated that the team leader told her that her End of Year Performance review in December 2018, attracted a “Far Exceeds” rating.  She was subsequently given a lower rating by more senior management due to her absence on maternity leave from November 2017 to May 2018. This is discriminatory treatment on the gender ground. Her review meetings are all positive.

3. The less favourable treatment in terms of her bonus payment.

The bonus was reduced to a lower level, matched to her lower rating which had been reduced because it is based on time worked which excludes maternity leave. This is discriminatory treatment on the gender ground.

Contrary to the respondent’s assertion that the complainant at no stage referred to discriminatory treatment, her representative pointed to her email of 12/3/2020 where the complainant did identify management’s decision date to reject her team leader’s assessment of her End of Year performance as highly effective due to her absence on maternity leave as discriminatory treatment on the gender ground. She understands that the bonus is paid on a pro-rata basis.

The decision around the deduction in the bonus due to the complainant having been on maternity leave during 2018 has not been disclosed.

The onus should now move to the respondent to rebut the presumption of discrimination.

4. Difference in treatment relative to workload.

The complainant stated that Portuguese employees were expected to take and make more phone calls than Irish employees or other English-speaking employees. Targets were higher for non- nationals.

Holidays were more curtailed in the sense that there had to be 2-3 people of the same language on site in order to be allowed go on holidays. Irish employees were not so restricted in terms of annual leave. The complainant raised this matter many times to no avail.

5. Complaint of harassmenton grounds of race.

The complainant contends that she was harassed on the grounds of race on the 5 February when the Team Leader shouted at her. Non- Portuguese employees were not subject to such harassment. Her concerns were not put to her team leader. She was further harassed after she had submitted her email of 6 March which does refer to harassment of her within her department.

The complainant’s representative stated that the statutory bar does not apply when the matter is ongoing. The complainant’s email of 6 March does refer to harassment of her within the department.

CA-00030857-002. Complaint under section 13 of the Industrial Relations Act, 1969.

IR complaint.

In response to the employer’s contention that this complaint should not proceed, the worker’s representative stated that such an application should have been made prior to the hearing. It was a distinct complaint of bullying and harassment. It should proceed though there are overlapping issues with the personal injuries claim.

The Adjudicator advised that she would make a decision on the preliminary and substantive points.

The worker stated that the team leader shouted and screamed at her on the 5/2/2019 and said on the 6/2/2019 that she would put her on a PIP if she didn’t improve her behaviour. The worker reported this incident to HR. She felt unwell and went home.

The worker wanted to resolve matters informally with HR and the team leader present, preferably via mediation. The team leader was a great friend of the Department Manager.

A meeting was arranged for February 13 to discuss the incident of the 5 February. HR advised her that the team leader would dedicate an hour to this meeting. The non- attendance of the team leader is indicative of a difference in treatment on the grounds of race and was disrespectful. HR later told the complainant that the team leader was unwilling to engage in mediation

The employer failed to engage with her on her issues of bullying.

The worker relies on McCarthy- V -ISS Ireland Limited and the HSE (2018), 1ECA 287, which held that it is critical that there is a robust investigation into complaints of bullying and harassment. No such investigation occurred. The employer’s letter of 2 March 2020 indicates that neither the department manager who could have been interviewed prior to her departure from the company or the team leader had been interviewed.

The employer failed to address the worker’s complaint and failed to provide a fair process for the purposes of examining her complaints in an impartial manner. The employer’s assertion that the adjudicator should not hear the complaint might be worthy of consideration where the process is impartial and conducted by an external person. Provision for an external eye only arises at stage 4 of the grievance procedure. The employer permitted the team leader to opt out of the informal process when invoked by the worker on 13/2/2019.

At stage 2 of the grievance procedure, the company refused her solicitor’s requests for an external, independent approach. The employer preferred to deal with the worker rather than her solicitor. This is not legitimate when confidence in the process is not merited.

The worker’s representative refutes the employer’s assertion that the grievance had reached stage 3 of the procedure as if it remains unresolved at stage 3, It then moves to stage 4. The employer’s letter of the 15 November 2019 offering the worker the opportunity to have her complaints examined in accordance with the respondent’s bullying and harassment policy is evidence that they were not proceeding to stage 4 but were transferring the complaint into another process. No correspondence issued from the employer at any stage of the procedure.

By 2nd March 2019, only 3 persons, the HR Generalist, the Assistant Manager, Policy Management Department and a Talent Acquisition Manager had been Interviewed, but the team leader had not been interviewed. No interviews took place between March and September when the complaint was lodged. It was a sham investigation of her complaints as by September 2019 neither her team leader or department manager had been interviewed.

CA-00030857-001. Complaint under section 77 of the Employment Equality Act, 1998

The respondent stated at the reconvened hearing on the 13 October in relation to the 3 witnesses subpoenaed, that

The team leader is on long-term sick leave.

The recruitment executive no longer with company.

The departmental manager has left the company.

The complainant has been employed with the respondent since April 2011. Before going on sick leave in February 2019, she held a Policy Management Officer role in the Policy Administration unit.

The respondent refutes the complaint of discrimination on grounds of race and gender.

1. The decision not to offer the complainant an interview for the Claims Handler (Portuguese language) position in the Claims Department.

The complainant was out on sick leave due to work-related stress from 6 February.

IBEC stated that the reason the complainant did not get an interview was the delayed receipt of the medical statement attesting to her fitness to engage in an interview; it was not received in time. They could not delay the interviews for other candidates.  IBEC point to an email of 11 March from the HR department to the complainant advising that medical confirmation of fitness to engage in interviews is required. The respondent emailed the complainant on the 12 March advising of an appointment with an occupational health physician on the 14 March. The absence of an interview was entirely unconnected with either her race or gender. The complainant was interviewed for a second vacancy in April 2019 after the respondent received a medical statement confirming her fitness to engage in an interview this demonstrating consistency.

Concerning the complaints before the hearing, the complainant never raised or ever referred to a complaint of discrimination on the gender and race grounds.

Evidence of Witness 1.

The HR Generalist in evidence stated that all jobs are advertised on the company website as was the contested Claims Handler’s job.

The HR Generalist stated that she was concerned about the complainant’s sick leave around the time that the vacancy arose. It was the first time the witness encountered an applicant applying for a position while out on sick leave. The witness doesn’t know if there was a closing date for receipt of completed applications.

There were 128 applicants for the position; there was a mix of internal and external candidates, evenly divided between males and females. All candidates were screened. The witness was unsure as to the number interviewed. The complainant was qualified for the role.

Upon questioning, the witness confirmed that she did not provide the complainant with a date by which a medical statement attesting to her fitness to engage in an interview should be submitted. The witness stated that she did not know the procedure to be used when an individual is not to be called to interview. The witness confirmed that no date for an interview was supplied to the complainant.

The recruitment department informed the HR Generalist at a date between the 11-15 March 2019 that a person had been appointed to the role. She was to inform the complainant that she did not get the job.

The job the complainant had applied for was a grade 7, attracting the same salary currently enjoyed by the complainant.

The witness later stated in evidence that she knew the vacancy had been filled on the 14 March and that she had intended to meet the complainant on the 22 March.

Upon being questioned, the witness did not know what criteria were used to select applicants for interview and to select the successful applicant. It could have been experience.

2. The marking down of her end of year performance rating due to her absence on maternity leave.

The respondent submitted records of the end of year performance assessment. There is no evidence of the team leader rating the complainant as “highly effective “on the 13 December 2018. The respondent accepts that she was marked down but that it occurred further up the chain.

The company policy is that employees on maternity leave should be rated “normally meets’’ for the period during which they were in the office.

3. The less favourable treatment in terms of her bonus payment.

Concerning the denial of a full bonus where employees are on statutory maternity leave, the IBEC representative stated that the bonus was applied on a pro-rata basis - based on time worked.

This is an equal pay issue and the complainant has not submitted an equal pay claim. Section 8 of the Act of 1998, guaranteeing the same terms of employment on any of the protected grounds specifically excludes remuneration and pension rights.

Without prejudice to this preliminary point, the respondent maintains there was no discrimination on grounds of gender when the respondent reduced the complainant’s bonus, pro-rata, for the period which she spent on maternity leave. The respondent maintains that their only obligation is to pay the complainant the bonus for the period of compulsory maternity leave which is 6 weeks. The respondent, furthermore, relies on a decision of the EU court of Justice, Gillespie and Ors v Northern Health and Social Services Board and ORS (C-342/93) which ruled that neither Article 119 of the EEC Treat nor Council Directive 75/117/EEC of 10 February 

“requires that a woman should continue to receive full pay during maternity leave, nor lay down specific criteria for determining the amount of benefit payable to them during that period”

The respondent also relies on another decision of the Court of Justice of the European Union, Susanne Lewen v Lothar Denda (C-333/97) which held that an employer

“when granting a Christmas bonus is precluded from taking the period for the protection of mothers ( in which they were prohibited from working) into account , so as to reduce the bonus pro- rata.”

Therefore, the respondent is only obliged to pay the complainant the bonus for the 6-week period during which she is prohibited from working. The company paid her the bonus in respect of the six weeks.

4. The difference in the workload assigned to the complainant, a Portuguese employee, relative to her Irish counterparts.

Witness 2.

The Assistant Manager, Policy Department, rejected the complainant’s assertion that non- Irish employees were expected to make more phone calls. The Assistant Manager stated in evidence that there were no target number of phone calls which an agent must make. He stated that he does not have telephone statistics to hand.

5.Complaint of Harassment on the grounds of race.

The instance of alleged harassment of the complainant by her team leader occurred on 5 and 6 February and so is out of time. The respondent offered the complainant the opportunity to have these complaints examined using agreed procedures. The complainant declined to engage with the procedures.

Burden of Proof

Section 85A of the Acts lays the burden of proof with the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. Where the complainant demonstrates that such a prima facie case has been established, the onus then shifts to the respondent to rebut the inference of discrimination raised.

The respondent relies on the case of Southern health Board v Dr Teresa Mitchell, (2001) ELR 201 which set out the test for applying section 85A (burden of proof). This required the complainant to prove,

 “on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of discrimination”

Where the complainant demonstrates that such a prima facie case has been established, the onus then shifts to the respondent to rebut the inference of discrimination raised.

The respondent also relies on Valpeters v Melbury Developments Limited EDA -0917, a case concerning alleged discrimination on grounds of race, where the Labour Court addressed the probative burden contained in Section 85A of the Acts which a complainant must meet in trying to raise an inference of discrimination. They stated

“This requires that the complainant must first establish facts from which discrimination may be inferred. ….... Mere speculation or assertion, 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.

The complainant’s complaint is based on unproven assertions of discrimination on the basis of race and gender. She has not met the evidential burden and her complaint must fail.

CA-00030857-002. Complaint under section 13 of the Industrial Relations Act, 1969.

IR dispute

The IBEC representative stated that the complaint of bullying and harassment submitted under the Act of 1969 should be adjourned and should not proceed in the Workplace Relations Commission if it is running under a Personal Injuries claim in the High Court. Without prejudice to this position, investigations of bullying are always done internally by the respondent HR department unless you can show that you are prejudiced by persons doing internal investigation. The personnel assigned by the employer to do the investigation were external to HR.

The employer’s HR Generalist stated in evidence that the investigation never got off the ground as the worker initially wanted mediation with the team leader -the alleged perpetrator of the bullying behaviour. When the team leader chose not to engage with mediation, the worker failed to pursue her complaints through the grievance procedure. The worker wanted an investigation by an independent investigator, external to the company. When that was not available, everything stalled. The company gave the formal procedure to the complainant many times.

The HR generalist stated upon being questioned that the examination of the worker’s grievance had paused at stage 3 of the Grievance Procedure. The HR generalist confirmed in response to a question from the worker’s representative that no decision issued, as required, after stage 3 had been concluded, nor did the grievance proceed onwards to stage 4 where an external person could have been engaged.

IBEC representative points to the Bullying and Harassment procedure, a process offered to the worker in September 2019 which allows for named witness of the parties to be interviewed.

The worker was unwilling to engage even where third persons tasked with the investigation of her complaints are from different departments in the company.

CA-00030857-001. Complaint under section 77 of the Employment Equality Act, 1998

I am required to establish if the complainant was discriminated against on grounds of race and gen der contrary to section 6 (2)(a) and (h) of the Acts.

This complaint incorporates 5 elements.

Failure to offer the complainant an interview in March 2019.

Her end of year performance assessment in December 2018 was adversely affected by her absence on maternity leave.

Her work load as a Portuguese employee was greater than the workload of her Irish counterparts.

Her Bonus for year ending 2018 was reduced owing to her absence on statutory maternity leave.

She was harassed on the grounds of race.

1. Failure to offer the complainant an interview in March 2019.

Legal Context.

I am required to establish if the complainant was discriminated against on grounds of race and gen der contrary to section 6 (2)(a) and (h) of the Acts.

I must first consider if the complainant has established a prima facie case of discrimination.

Burden of Proof.

Section 85A of the Employment Equality Acts 1998-2015 lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A of the Acts provides that facts must be

“established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her …” which it may be presumed that prohibited conduct has occurred in relation to him/her …”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded that”

 “a complainant 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 these 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 was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

In Hallinan v. Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, the equality officer held that in order to establish a prima facie case of discrimination, the following must be established:

(a) The complainant must establish that he or she is covered by the protected ground;

(b) Establish the specific treatment has allegedly taken place

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground

Applying the above provisions, the complainant is covered by the protected ground by virtue of section 6(2) (a) of the Employment Equality Acts 1998-2015 in that the person who was considered for the vacancy and appointed to it is a male.

A specific event occurred in that the complainant was denied an interview for the vacant Claims Handler Position.

While the respondent states that no extra salary would attach to this vacancy, the treatment was less favourable in that she was denied mobility to move within the company and to access a vacancy in a different department in March 2019, a mobility and opportunity offered to a male candidate. Section 8(6) of the Employment Equality Acts 1998-2015 requires the employer to offer the same “conditions of employment” as between a male and female employee and this includes in section 8(6)(c) an obligation to provide equal treatment in relation to “transfers”.

In O’Higgins V UCD 2013, EDA 131, the Labour Court in varying the decision of the Equality Tribunal that the complainant had not made out a prima facie case of discrimination held that

 “It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn”

Due to the obscure nature of the selection process and the conflicting messages about the viability of her candidacy, the failure to interview her for a position because of her gender comes within the range of probabilities. I find that the complainant has raised an inference of discrimination. Hence the burden shifts to the respondent to disprove that it was for grounds other than her gender that she was excluded from the competition to fill the position of Claims Handler (Portuguese language).

Rebuttal of discrimination

The respondent’s case is that the decision not to offer the complainant an interview was wholly attributable to the absence of a medical statement attesting to her fitness to engage in an interview. It is correct to say that they encouraged her to stay put and let her know that a medical statement would be required.

But the respondent presented no evidence concerning when the date for the interview was decided. The respondent did not advise the complainant that there was a closing date for applications, or an interview date, or a closing date for receipt of a statement of medical fitness to attend the interview. Nor was she advised in the absence of such medical confirmation of the date after which she would forfeit the opportunity for an interview.

The respondent told the complainant on the 22 March that her candidacy was no longer live and that an appointment had been made without giving her an interview though the job was still posted as a vacancy on the company website. An email from the HR Generalist, dated 5 March acknowledges the complainant’s willingness to attend the company doctor and advises that the department will be in touch shortly with a date for the medical appointment. An email from the respondent dated 14 March states that ‘once we receive this confirmation (medical fitness), I can provide you with another an interview date’, though it is possible that the appointment had been made by this time.

The purpose of sending the complainant for a medical assessment on the 14 March was to assess her fitness to engage in an interview for a vacancy which no longer existed as the respondent witness stated that the appointment was made between the 11 and 15 March. She later stated that the appointment had been made on the 14 March. The respondent’s interactions with the complainant failed to inform her that her candidacy for the post was no longer live– at what point it expired was not clarified by the respondent and is not clear. On the contrary, she was misled and advised that her candidacy was still live pending a medical statement with no timelines provided. The respondent was initially unable to confirm the exact date of the interview, nor the criteria used to shortlist for interview, the nature of the selection process or even if an interview, at all, took place. The absence of information as to how the candidates for interview were selected and the successful appointee chosen, demonstrates a total lack of transparency. If the barrier to an interview was merely a statement of medical fitness, this does not explain the failure to arrange a medical assessment in time given her stated willingness on the 5 March, or the failure to provide her with timelines. Therefore, the respondent is unable to prove that the selection was wholly unconnected to her gender. In A Government Department v An Employee (Ms. B) (2) the Labour Court took account of the decision in Nagarajan v London Regional Transport and Swiggs (3) (1999) IRLR 572, HL in holding

 "that the proscribed ground need not be the sole or even principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a significant factor".

The latter decision also recognised the potential for unconscious bias to influence an employer’s behaviour.

The Labour Court in O’Higgins v UCD stated that

 “where the onus of proof is on the respondent the question the Court must ask itself is whether it is more probable than not that the complainant's gender had nothing to do with her failure to be promoted. If, on the basis of all the evidence, the Court answers this question in the affirmative the respondent will have discharged its burden. If the Court cannot answer that question in the affirmative, or if it concludes the probabilities are equal, the respondent will not have discharged that onus and the complainant must succeed.”

The respondent is therefore unable to rebut the presumption. The complainant must succeed.

I find that the respondent discriminated against the complainant on the grounds of race regarding access to a competitive selection process contrary to Section 8(1) of the Employment Equality Acts.

I require the respondent to pay the complainant the sum of €6000 in compensation for the effects of this act of discrimination.

2. The marking down of her end of year performance rating due to her absence on maternity leave.

This complaint of less favourable treatment on the gender grounds occurred on the 13 December 2018. Section 77(5) of the Employment Equality Acts requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. Applying this provision to the instant case, the marking down of her End of Year Performance rating occurred on 13 December 2018, her complaint was lodged on 13 December 2019, and so is inadmissible. Section 77(5)(b) of the Employment Equality Acts which allows for the making of a claim under the Acts to be extended up to twelvemonths where “exceptional circumstances” exist does not arise in this instance as this case was not made.

I do not have jurisdiction to hear this element of the complaint.

3. The alleged less favourable treatment based on her gender in terms of her bonus payment.

Section 19 of the Employment Equality Acts 1998-2015 requires that a complainant must demonstrate, in the first instance, that s/he performs “like work” in terms of section 7 of those Acts, with a named comparator of the opposite sex, who is an employee of the same, or an associated employer, yet receives a lower rate of bonus than the named comparator. No such complaint has been made out in accordance with the requirements of section 19 of the Acts.

The complainant has failed to establish a prima facie case in respect of an entitlement to equal pay with a named comparator, on the ground of gender. Her complaint cannot succeed.

4.The difference in the workload assigned to the complainant, a Portuguese employee, relative to her Irish counterparts and the more limited opportunities to take leave.

The complainant advanced the unequal distribution of the workload as evidence of discriminatory treatment on grounds of race. The complainant states that she was expected to take and make a greater number of telephone calls relative to her non- Portuguese co-workers.  This element of her complainant was insufficiently particularised and was undated. The complainant has been on sick leave since 6 February. Her claim form was submitted on 11 September 2019.

The complainant states that there were fewer slots available to her during which she could take leave than were available to non-Portuguese employees. The evidence suggests that there are far fewer Portuguese than English speaking employees and the business demands a Portuguese language presence on site to deal with their many Portuguese speaking clients. The respondent’s written evidence did indicate that the complainant had been refused leave in November 2018.

Both the issue of the disproportionate number of telephone calls assigned to the complainant and the more restricted opportunities for Portuguese employees to take annual leave relative to their non-Portuguese colleagues occurred prior to 6 February after which date the complainant was on sick leave. Her claim form was submitted on 13 September 2019. Therefore, these elements of her complaint are statute barred by virtue of Section 77(5) of the Employment Equality Acts which requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. No exceptional circumstances were put to me to permit an extension of time as provided for in section 75(6).  The refusal to offer the complainant an interview, communicated to her on the 22 March, is a separate and discrete event, unconnected to the matter of phone calls and refusal of requests for leave and is therefore incapable of bringing these matters within the statutory time limit.

I do not have jurisdiction to hear these elements of the complaint.

5.The complaint of harassment on the grounds of race.

This instance of alleged harassment on grounds of race occurred on 5 and 6 February 2019. Her complaint form was submitted to the WRC on 11 September 2019. Therefore, these elements of her complaint are statute barred by virtue of Section 77(5) of the Employment Equality Acts which requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. No exceptional circumstances were put to me to permit an extension of time as provided for in section 75(6). Nor is the statutorily compliant instance of discriminatory treatment connected to this element of the complainant’s complaint so as to render it admissible.

I do not have jurisdiction to hear this element of the complaint.

CA-00030857-002. Complaint under section 13 of the Industrial Relations Act, 1969.

This dispute centres on alleged bullying of the worker by the employer and the absence of fair procedures, specifically an external investigator, to address this dispute.

The details of the bullying complaint are contained in the personal injuries claim, which has been lodged with the High Court. Aside from its intended examination in the High Court, an examination of the instances of bullying require scrutiny by way of the application of the agreed procedures before I can intervene. The deficiencies in the process designed to deal with such complaints is also a matter before the High Court.

When the alleged perpetrator declined to engage in a mediation exercise, a voluntary exercise, the examination of the worker’s complaint stalled. The employee’s absence on sick leave was a complicating factor. I note the employer’s stated uncertainty at the hearing about where the grievance procedure was paused.

Circumstances have moved on since then, and since the company refused the request to engage an external party to examine the worker’s complaints. While there is no element of their grievance procedure which inherently offends S.I. 146, and neither does their failure to fast track the engagement of a third party to examine the complaints, the fact is that the worker is now engaged in litigation with the employer. She has been out of work for a lengthy period. This suggests the engagement of a third party to examine ways of accommodating her return to work.

I recommend that the employer enlists the assistance of a third party to explore ways of achieving her return to the workplace.

CA-00030857-001. Complaint under section 77 of the Employment Equality Act, 1998

I find that the complainant was discriminated against on the grounds of race regarding access to a competitive selection process contrary to Section 8(1) of the Employment Equality Acts 1998-2015.

I require the respondent to pay the complainant the sum of €6000 in compensation for the effects of this act of discrimination.

CA-00030857-002. Complaint under section 13 of the Industrial Relations Act, 1969.

I recommend that the employer enlists the assistance of a third party to explore ways of achieving the worker’s return to the workplace.

Discrimination on grounds of gender; refusal to offer an interview; obscure selection process.

IR complaint. Complaints being litigated in the courts.