ADJ-00030872

Complainant

Respondent

Parties

Auveen  Coombes-Lynch

Housing and Sustainable Communities Agency  / The Housing Agency

Representatives

P. Leonard BL instructed by John Greene of P.C Moore & Co Solicitors

T. Mallon BL instructed by Patrick Walshe,  of Philip Lee 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-00041434-001

23/04/2020

The case concerns a complaint of Discrimination on the grounds of Gender and Family Status contrary to the Employment Equality Act,1998.  The acts of discrimination alleged were in the areas of Promotion, Training, Victimisation and Harassment.

The employment had commenced on the 3rd November 2015 and ended on the 12th February 2021.

At the date of the complaint being submitted the rate of pay was €1,796 gross per fortnight for a 37-hour week.

The employer was a Government Agency in a primarily technical area related to House Building and Construction.

However, as the work involved extensive interaction with the Public as house owners a considerable Administrative Section was required to complement the Technical Section. The Complainant was employed in the Administrative Section.

The Complainant submitted a detailed written statement supported by extensive Oral Testimony.

The Complainant is professionally qualified in Architecture. Due to the recession in the Construction Sector during the early years of the 2010 decade she found it necessary to work in other areas. She joined the Housing Agency in November 2015 as a Clerical Officer Grade 3 but rapidly moved through the ranks to a position of Staff Officer Grade 5 in the Pyrite Department in September 2016.

The Pyrite Department was in need of administrative overhaul and the Complainant was most efficient in introducing new systems and practices to remedy administrative defects. It was acknowledged by Senior Management of the Agency that her contribution here had been invaluable.

In September 2017 she was sponsored to undertake a Project Manager’s course run by the Institute of Project Management. She completed this course with academic distinction - her final mark being 81%.  It was commonly accepted that the Project Manager Course was almost a prerequisite to achieving a Project Manager position in the Public Service.  However, there was a perceived shortfall in Complainant’s position at any interview in that she lacked any Site Visits – going physically on to Construction sites to gain hands on experience. She raised this issue at her PMDS -Annual Performance review in January 2018 and later in January 2019. She was assured that this issue would be addressed satisfactorily. This, in her view, never happened in any realistic fashion, in stark contrast to male colleagues who were afforded multiple site visit opportunities.

In her view this Site Visit failure was symptomatic of the discriminatory climate that she faced.

In May 2018 the Complainant applied for a Project Manager (PM) position and was successfully placed on a twelve-month Panel. In June 2019, the Panel having expired, she applied for another PM position. However, a colleague, a Mr.AD was informed by a Senior Manager that “He was the right man for the job” just three days after the position was advertised. Unsurprisingly, Mr AD was appointed following the interviews. At the interviews the Complainant felt that she had been treated with a lack of professionalism especially by Manager, Mr. JM. Following Mr AD’s appointment other male colleagues were given extensive Site Visit experience which was denied to her. Eventually in December 2019 she was given a Site Visit opportunity but in a sexist manner regarding what clothes she should wear. A key issue was the fact that she was expected to do her ordinary day’s work as well as the site visit. This stipulation was not required of male colleagues.

The PM vacancy that rose in December 2019, from the internal departure of a colleague, was filled without any reference to her.

It was stated that Mr. JM’s actions during the course of 2019, especially from June onwards, followed a pattern of seeking to reduce the importance of the Complainant’s work. Issues with Audit queries and Payment Approvals were mentioned. E mail traffic was rerouted to make the Complainant’s work routines more difficult. Senior Management recognised that the Complainant had introduced good systems that could be used as a Template in other Sections. The issue of the new Energy Retrofit programme was referenced as an example. However, despite her expertise she was effectively subject to efforts by Mr. JM to re assign her. Inexperienced Male colleagues were given work, formerly done by her, by Mr JM, that they had to revert to her for instructions as to how to complete.

In her evidence especially, her Oral Testimony, the Complainant maintained that she was the victim of a “Male culture” in the Office. There could be no issue as to her technical qualifications and her work record, albeit in the Administration side, was exemplary. The Office environment and especially the experiences of a former female colleague Ms. R were of note.  Ms. R had gone back to the Parent Department, as it was alleged, she had found the Office “culture” not particularly conducive to women.

HR had made inquiries at the time regarding Ms. R’s possible negative Equality experiences in her dealings with Mr.JM. However, the issue had never been pursued as Ms. R had never made a formal complaint and simply left the Agency.

The Complainant’s Legal Representative strongly queried the Respondent line up of Management witnesses. It was maintained that the Respondent was effectively handicapping the Complainant’s case in reducing her opportunities to challenge Respondent witnesses especially in the area of Management actions.

In final summary the Complainant maintained that, despite an exemplary work record and requisite technical qualifications, she had been subjected to a toxic “Male Only” culture which had denied her training and experience “Site visits” and thereby, as well as a campaign of undermining her in the work routines, had seriously handicapped her from promotions to Project Manager positions. She had effectively been discriminated against by Manager, Mr.JM, for being a female in a toxic “Male culture”. On Equality grounds this equated to Harassment and Victimisation.

Her Representative quoted extensive legal precedents that focused on the requirement of a Complainant to establish a good prima facie case as a ground for a discrimination claim.

In Oral Testimony the Complainant’s Legal Representative, Mr. Leonard BL, strongly contested with the Respondent Legal Representative, Mr. Mallon BL, the alleged conservative tactical approach of the Respondent in regard to evidence and the calling of witnesses.

The Respondent gave extensive Oral Testimony and a substantial written submission. Supporting witness evidence was also called in particular from Ms. HC, the HR Department representative. Detailed cross examination of the Complainant also took place.

The Respondent Legal Representative made, as his opening key point, that the Employment Equality Act,1998 required, in the first instance, that Complainant establish a sound prima facie basis for her claim of discrimination on the Gender and Family Status grounds. Allegations and assumptions of discrimination were not sufficient – a case had to be grounded on facts of a status sufficient enough to raise an inference of discrimination.

Legal precedent, in support, was cited especially the landmark cases of Southern Health Board v Mitchell v [2001] 12 ELR 201 and Cork County Council v McCarthy (EEA 20/2008).

The Complainant had successfully applied for the Project Manager (PM) positions in 2018 and 2019. She had been placed on the Panel of successful candidates. The filling of the vacancy in December 2019 was, in keeping with normal procedures, from the Panel. There can be no issues of discrimination in this process. The Respondent called in evidence Ms. HC, the HR Representative. She gave clear evidence of her senior experience and that she was completely satisfied that the PM interviews were in keeping with good procedures. Nothing was amiss.

The Respondent maintained that the Complainant’s claim was based on disappointment with her results in the recruitment processes. Various allegations about Managers, things allegedly said or not said and a purported “Toxic Culture” could not substitute for real evidence.

The Complainant was working on the Administrative side and the PM vacancies were on the Technical side. The Complainant was almost unique in seeking to move to a promotional position in the stream she was not based in. Gender had nothing to do with it. She had been facilitated with Site Visits as she had requested albeit at a lesser frequency than Male colleagues mentioned.

The Male colleagues mentioned were already working on the Technical side, prior to any PM interviews. Naturally as part of their daily work they would garner Technical experience such as Site Visits, that would potentially be to their advantage at any interview. Gender or Family Status had nothing to do with it.

The fact that the Complainant had successfully made the Panel of Successful candidates completely negated her allegations of discrimination.

She had been allowed to and supported in undertaking a Project Management Qualification, normally a technical qualification, even though she was applying from the Administrative side of the Agency. Any claim of discrimination on access to Training, in the light of this evidence, could not be substantiated.

The Complaint refers to a Family Status ground – no evidence at all was advance on this ground.

As regards suggestions and purported alleged assumptions of Gender discrimination against the Complainant by various individuals, these are simply unfounded and have no evidential basis.

The strong assertions by the Complainant Legal representative that the Respondent was being unduly conservative in presenting Management witnesses is a complete misunderstanding of the legal position. The initial Onus of Proof rests with the Complainant. The Respondent cannot be reasonably asked to effectively facilitate what would amount to an unjustified evidential “fishing exercise” among Management personnel by the Complainant Legal Representative.

The Complainant was successful in her PM applications and was placed on the Panel of successful candidates. She may have been disappointed with her placing, but the Recruitment process was fair and transparent.

Disappointment in a Recruitment process, well run and professionally carried out, is understandable but it cannot form the basis of a Discrimination case. This was identified as the key failing in the Complainant case.

A number of important technical issues, regarding reckonable time limits, were also raised by the Respondent. The Complaint was lodged on the 23 April 2020. Applying the normal six-month rule and even, unjustifiably and without sound grounds, extending it to twelve months back to April 2019 would render much of the Complainant’s case and supporting evidence out of time. Even if the Date of Last Discrimination on the Complaint form – 5th March 2020, was used the result would have been the same Out of Time conclusion.

 In final summary the complaint lacks the required standard of proof to establish a prima facie case of Discrimination, is replete with baseless unsupported suppositions and has technical time limit issues.

It has to be to be rejected.

3:1        Introduction – Summary of legal points raised

This case was supported by detailed Written submissions, extensive Oral testimony and vigorous cross examinations. In summary the main points were as set out by the Legal Representatives.

The Respondent Legal Representative, Mr. Mallon, argued that large elements of the case were “out of time” having occurred before the six-month time limit or even the twelve-month limit. The Complainant bore the onus of establishing a good prima facie case on the available allowed and legitimate evidence. Wild supposition was not evidence.

He continued that there was not any legal onus or requirement on the Respondent to assist in this process by providing oral or written evidence, specifically the presentation of Management witness, that the Complainant was, in his view, spuriously maintaining could be potentially of assistance to their case.  

The Complainant representative, Mr. Leonard, argued that there had been a “Continuum” of events from well before the six-month prior deadline and the Legal precedents allowed for this to be considered in a Discrimination case.

In addition, he maintained, the Respondent was, by their minimalist evidential approach and in particular the non-calling of key witnesses, effectively blocking the Complainant in her efforts to establish a prima facie case. This was in complete disregard to the underlying principles of Equality legislation.

However, it had to be noted, from an Adjudication point of view, that the Complainant had not specifically requested to the Adjudication Officer, prior to the Hearing, the calling of any named witnesses.  

3:2        Consideration of the above points

3:2:1       Time limits.

The Complaint was lodged at the WRC on the 23rd April 2020. The “most recent date of discrimination” on the Complaint form was 5th March 2020. Six months prior to that would have been the 5th September 2109 and, if allowed on the basis of good arguments, an extra six months would have been back to the 5th March 2019.

In this case therefore the May 2018 Project Manager competition is out of time and the June 2019 competition (unless a six-month extension is allowed) is also out of time. No formal application was made for an extension and so the period September 2019 to March 2020 is the reckonable period. The filing of the vacancy arising in December 2019 is in time.

The key question then arises as to the Complainant’s claim, under Harassment and Victimisation, that there was a Discriminatory Culture – a “Male Only” attitude in the Employment dating back well into 2019.

Section 77(6 A) can be referenced here.

(6A) For the purposes of this section —

(a) discrimination or victimisation occurs —

(i)            if the act constituting it extends over a period, at the end of the period,  

Taking this point and referencing Barclays Bank plc v Kapur [1989] IRLR 387 it is reasonable to allow the Complainant to refer to events prior to September 2019 in her arguments as regards to and in seeking to raise an inference of a discriminatory “Male Culture”.

This then moves to the question of establishing a prima facie case in this regard. However, the legal precedents, regarding unsupported assumptions, raised by the Respondent namely Southern Health Board v Mitchell v [2001] 12 ELR 201 and Cork County Council v McCarthy (EEA 20/2008) cannot be ignored.

3:2:2        The Burden of Proof and Evidence

The Respondent called the HR Executive Ms. HC in oral evidence. She was an excellent witness and testified that in the running of the Recruitment Competitions, of which she was a key part, no Discrimination occurred. The Complainant was placed on all Panels following a well-run professional Recruitment Competition. 

However, in cross examination she did agree that the day to day operation of the Complainant’s Department and what happened between the Parties there, was not really in her area of knowledge.

The Complainant’s main focus here was on her relationship with Mr.JM - her Manager. In her Oral Testimony and vigorous cross examination by the Respondent Legal representative she clearly maintained that Mr.JM had by a series of actions diminished her status, created a culture where the necessary, for Recruitment CV purposes, of “Site Visits” was discouraged and generally made it clear that it was a Male environment especially on the Technical side.

Her evidence was well delivered, and she presented as a very creditable professional officer. However, the difficulty for her was that she was effectively relying on her version of events regarding the Male culture without supporting evidence.

There was some questioning of Ms HC of the HR Department in relation to the reasons, possibly having an Equality overtone, for the Departure back to the Parent Department of Ms. R in late 2019. However, Ms. HC, while acknowledging that she had made a few inquiries, confirmed that nothing had ever come of it. Ms. R had never made any formal complaints.

The Complainant Legal representative argued that in the absence of certain key Management witnesses to be cross examined the Complainant’s case was stymied.

Section 76 and Section 81 of the EE Act 1998 are of interest here.

Consequences of failure to supply information etc.

81

81.— If, in the course of proceedings on a reference under section 77(3) or of an investigation under section 79, it appears to the Circuit Court of the Director General of the Workplace Relations Commission as the case may be—

( a) that the Respondent failed to supply information which the Complainant sought by questions under section 76and which was in the Respondent’s possession or power, or

( b) that the information supplied by the Respondent in response to any such question was false or misleading or was otherwise not such as the Complainant might reasonably have required in order to make the decision referred to in section 76 (1) ,

the Circuit Court or the Director General of the Workplace Relations Commission (as the case may require) may draw such inferences as seem appropriate from the failure to supply the information or, as the case may be, for the supply of information as mentioned in paragraph (b).  

However, it must be observed, as noted above, that the Complainant had not sought to secure the attendance of key Management Personnel prior to the hearing and had relied, it appeared, on a presumption that they would be on the Respondent team sheet.

The Respondent Representative maintained that the Complaint lacked a prima facie case, was operating on the basis of disappointment at the fair results of recruitment competitions and lacked any evidence of discrimination save for her own assertions. He was not obliged to go beyond his basic case in for example calling witnesses that were unnecessary where a prima facie case had not been successfully made. The Burden of Proof had not been shifted to the Respondent.

The question of calling/not calling witnesses was considered as late as March 2022 by Justice Flaherty in O’ Rourke v O’ Rourke and others and Ulster Bank [2022] IECA 59. Paragraphs 123/124 (quoted below) of the judgment is interesting in this context. It is accepted that it is primarily a Commercial case, but the observations on witnesses would be accepted as having a wider remit.

123. It must also be said that this argument misunderstands the scope and purpose of those authorities that suggest a power to determine issues against a party when they could have, but failed to, call evidence to rebut a claim made by their opponent. The principle was explained by O'Donnell J. in Whelan v. AIB[2014] IESC 4, as follows:

“The drawing of an inference in this context, as indeed in any other, is an exercise in logic: when one party asserts a given set of affairs, which the identified witnesses available to the other party could be expected to rebut if untrue, then, if the second party does not call those witnesses to give evidence, the court may draw the inference in support of the case made by the first party, that those witnesses were not called to give such evidence because they would not in fact rebut the case made by the first party. Each case therefore, involves a consideration of the specific inference which the court is invited to draw. The position is well put in two authorities relied on by the bank in this regard. In McQueen v. Great Western Railway Company (1874 – 75) L.R. 10 Q.B. 569Cockburn L.J. said:

‘If a prima facie case is made out, capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence, then the inference fairly arises, as a matter of inference for the jury and not as a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it were adduced it would not disprove the prima facie case. But that always presupposes that a prima facie case has been established; and unless we can see our way clearly to the conclusion that a prima facie has been established, the omission to call witnesses who might have been called on the part of the defendants amounts to nothing.’ (para. 574)”

124. Here, however, there was no need for the defendants to call Ms. Gill because the issue on which her evidence was relevant was the issue not of where the documents were signed but of whether they were signed by the plaintiff and of whether he understood them. Given the other evidence that was adduced calling her would have avoided only an inference as to irrelevant facts-where documents were executed and who was there. 

Justice O’Donnell’s quoted comments above are also interesting.

“that those witnesses were not called to give such evidence because they would not in fact rebut the case made by the first party”. 

In the case here the Complainant’s detailed Complaint form and her written submissions clearly identified a number of Management personnel and one in particular who was, she alleged, largely responsible for the discriminatory “Male Culture”. 

Evidence from and cross examination of these witnesses would have either completely exonerated the Respondent or given sustenance to the Complainant’s prima facie case.

This became a matter of heated exchanges, during the Hearing, between the Legal Representatives.

On balance and from reviewing all the evidence, both Oral and Written given by the Complainant and Ms HC for the Respondent, the Adjudication conclusion has to be that inference, in support of the Complainant, has to be drawn from the absence of potentially vital evidence from key Respondent Managers. However, this has to be balanced by the fact that the Complainant could have sought, but neglected to do so, particular Managers called in advance.

3:3:           Summary Conclusions.

The Complainant has not established a prima facie case of Discriminations on the Gender Grounds in relation to Promotion and Training.

However, this conclusion has to be tempered by the allegations regarding the Male Culture as a basis for the Discrimination and Victimisation grounds. The Adjudication conclusion here is that the Complainant has established a sufficient inference for a strong complaint of Discrimination regarding the Male Culture.

This is largely arrived from good oral evidence from the Complainant and by drawing a strong inference from the considered tactical absence of key Management witnesses who could easily have fully rebutted or indeed supported, under examination, the Complainant’s case.

No evidence was given in relation to Family Status as a ground and this is set aside.

Equality, Burden of Proof, Witnesses, Drawing Inferences from non-attendance.