FULL RECOMMENDATION
PARTIES : M KELLIHER 1998 LIMITED REXEL DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00025772, CA00032775-001. Background The performance of salespersons, including the Complainant and the Comparator, was judged on a league basis.The €400,000 of mature contracts allocated to the Comparator was considered as part of that league table, putting the Complainant at a significant disadvantage. The Complainant submits that he would have to generate €400,000 of new business just to achieve parity with his younger comparator. The Complainant was subsequently dismissed based on figures contained within a League Table of sales. The quantum of those mature contracts played a fundamental role in the Complainant losing his job, while the Comparator remained in employment. If the quantum of those contracts had not been given to the Comparator, the Complainant would have been on an equal footing with him. Instead, he was required to undertake other duties and received no credit for those sales, so was not in a position to improve his position on the League Table. In response the Complainant said that he made it his business to check stocks. The complainant accepted that other sales staff were required to help out with trade counter work. He opened up two or three new accounts during his employment with the Respondent and there may have been other accounts that opened after he left. Similarly, he was not given set targets in sales roles in other organisations and in his experience sales targets were overall targets, rather than individually set. The Complainant understood that, with his experience, he was brought in to generate sales. He did not expect to be given existing accounts to work on when he took up the role. The Complainant said that he understood that his comparator was brought in to replace another person who had left but could not say why the Comparator was given an existing set of accounts to manage. It was agreed further systems training would be provided. At the August review meeting, the Complainant was advised that there was no improvement in his performance, especially in relation to sales. The Complainant requested and was given established accounts to see if his sales figures would increase. At the September review meeting, he was advised of three areas of concern relating to (1) the number of dockets and sales that were lower than expected, (2) poor engagement with team members and (3) repetition of questions, which was of concern given his level of experience and industry knowledge. At the September review meeting the Complainant queried why the named comparator was given existing accounts. It was explained to him that his colleague had worked with these clients in a previous role and was hired because of that client relationship, which was crucial to the success of the business. It was clarified to the Complainant that the company employs people of all ages and that it was purely a commercial decision to allocate contracts to a colleague, based on the fact that he had a pre-existing relationship with these customers. The decision to dismiss was upheld. Despite receiving additional training and being given a set of established accounts, his performance failed to improve. The Respondent submits that it operates a robust probationary process that is fair and transparent. A league table is not used for measuring performance. Employees are not set specific targets. Individual employee performance is not measured against other individuals. The Respondent submits that the Complainant has failed to provide facts from which a prima facie case of discrimination can be established, and the appeal should be dismissed. He was recruited because of his experience and contacts in the business. The role was a new position, which was explained to the Complainant when he started. The real focus of the role was to generate new business, as at the time, the business was extremely busy with trade calls. The Complainant would take overflow calls from the trade counter and sales office and bring in new business from his previous contacts. At the next review meeting, there was no improvement. The Complainant was still going to the stores to check stock rather than using the system. This impacted on his customer service and ability to generate sales. His dockets and sales were low. During some eight hour shifts he only produced three dockets at low value. The Complainant was given established accounts to see if his sales figures would increase. The data used at the Complainant’s review was information relating to him personally. Individual targets are not set, as that would lead to employees fighting over customers. All targets are shared and are based on team performance and branch sales. That is why information is shared on a daily basis. Information on branch sales is shared transparently on a daily, monthly, and annual basis, with a breakdown by product category. Names are generally listed in alphabetical order. He said that it was not in the format used to share information on daily, monthly, yearly sales in comparison to figures for the previous year. He did not know when or how the document was produced and suggested that the Complainant may have pulled the data from the system in that format. Mr O’Donoghue did not accept that the figures in the document provided an indication of one employee’s performance against another, as figures for sales margins achieved can differ widely, with different margins applying for different types of sales transactions and heavy discounting for certain accounts. His overall performance led to low sales. Mr O’Donoghue said that the Complainant was dismissed for poor overall performance, not just sales, although sales were a part of that. The number of dockets produced reflected the low sales. The Complainant only opened two or three accounts during his time with the company. He was fully aware that his role was to grow sales. He was given accounts when he requested it, but there was no improvement. In upholding that decision, he took account of a number of factors, including that the Complainant was recruited to do a particular role. His sales figures were poor, as were the number of new accounts he had generated. Mr Sugrue said he considered the Complainant’s allegation of age discrimination very seriously as 25% of the workforce are aged over 55. He did not believe that the Complainant was subject to age discrimination or treated less favourably than the Comparator on the grounds of age, as it made commercial sense to allocate accounts to the Comparator to manage. 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. Deliberations and Findings In any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof as between the Complainant and the Respondent. Section 85A provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed. Once these facts are proved, and if the Court regards them as being of sufficient significance to raise an inference of discrimination, then the onus of proving the contrary shifts to the Respondent. If a Complainant does not prove the primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination then the claim cannot succeed. The Complainant in this case alleges that he was discriminated against and treated less favourably than another employee on the grounds of age. The Complainant and the Comparator commenced employment with the Respondent as Internal Sales Representatives in and around the same time. There is an age difference between the two individuals of approximately 30 years. It is for the Complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the Respondent. InMelbury Developments Ltd v Valpeters[2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in its determination inMitchell v Southern Health Board[2001] E.L.R. 201. That three-tier test provides:- 1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed. 2) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination. 3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent,(Mitchell v Southern Health Board [2001] ELR 201) In this case the primary facts contended by the Complainant are: - 1. The Comparator was given approximately €400,000 of mature contracts to manage, whereas the Complainant was given none. 2. Sales achieved by the Complainant were benchmarked against sales made the Comparator using a League Table. The use of such a league table led to the Complainant losing his job, as the quantum of mature contracts allocated to the Comparator played a fundamental role in the claimant having his employment discontinued, while the Comparator remained in employment. The issue for the Court to consider in the first instance is whether or not primary facts can be established from which discrimination can be inferred. The Comparator was given approximately €400,000 of mature contracts to manage, whereas the Complainant was given none: Both the Complainant and his Comparator started working with the Respondent as Internal Sales Representatives in and around the same time. It is an accepted fact that the Comparator was given mature contracts to manage, whereas the Complainant was given none. The Complainant contends that the allocation of €400,000 of mature contracts to the Comparator, put him at a significant disadvantage from the outset, as he had to generate €400,000 of new business just to achieve parity with his comparator. The Complainant contends that the only difference between two was their difference in age. While both individuals had the same job title ‘Internal Sales Representative’, the Respondent submits that they carried out different roles. Mr Alan O’Donoghue, who was the main witness called by the Respondent, told the Court that the Comparator was hired to replace another sales representative who dealt with a specific client base, and that the Comparator was approached and interviewed for that specific role, as he had an existing relationship with that client base. By contrast, the Complainant’s role was a new role created to bring in business. For his part, the Complainant told the Court that he understood that he was brought in to generate sales, because of his extensive years of sales experience. On taking up the role, he did not expect to be given existing accounts to work on. He also understood that his comparator was brought in to replace another person who had left although he could not say why the Comparator was given an existing set of accounts to manage. The Court must consider if the fact that the Comparator was given mature contracts to manage, whereas the Complainant was given none, is of sufficient significance to raise a presumption of discrimination on the grounds of age. The Complainant accepts that he was recruited into a newly created role to generate new business. Based on the evidence presented, the Court accepts that the Complainant and his Comparator were recruited to carry out different roles, and that the Comparator was recruited to manage an existing client base. In circumstances where the Complainant accepts that he was appointed to a role to bring in new business and that he did not expect to be allocated existing accounts, the Court does not find that the fact that the Comparator was allocated mature contracts to manage, whereas the Complainant was given none, raises an inference of discrimination on the grounds of age. Sales made by the Complainant were benchmarked against sales made the Comparator using a League Table: The Complainant further relies on the use of a League Table as a primary fact to ground his claim of discrimination. He submits that the use of a League Table ultimately led to the loss of his job. As the existence and use of league tables to benchmark individual sales performance was strongly disputed between the parties, the Court must carefully evaluate the evidence adduced in order to establish which is preferred. The Complainant submitted a document to the Court which he asserts is a League Table of sales achieved by 16 named sales representatives in the year to date. The Complainant relies on this document to assert that his sales figures were benchmarked against sales achieved by other sales representatives, including the Comparator. The Complainant was listed 15thon the table, whereas the Comparator was listed 9th. The Complainant contends that he was placed at a disadvantage compared to the Comparator, as sales performance was used as a factor in his dismissal, and his Comparator who had established accounts to manage and greater sales figures remained in employment. The Respondent disputes the use or existence of a League Table. Mr O’Donoghue gave evidence that no-one was judged against a League Table and that no such document existed or was used at any of the Complainant’s review meetings . He submitted that only data that related to the Complainant personally was shared with him at his review meetings. Mr O’Donoghue did acknowledge that the document submitted in evidence by the Complainant was produced internally within the company but said that he did not know when or how it was produced and that it was not presented in the format used to share data with staff. Furthermore, Mr O’Donoghue submitted that the figures contained in the document do not provide an indication of one employee’s performance compared to another, as sales margins achieved differ widely, with different margins apply for different types of sales transactions, with heavy discounting for certain accounts. Mr O’Donoghue strongly disputed that a League Table was used to measure performance. He submitted that individual employee performance is not measured against other individuals and that individual targets are not used on the basis that they would lead to employees fighting over customers. He told the Court that all targets are team based, with performance assessed against branch sales, which is why sales data is shared amongst staff on a daily basis. Data on branch sales is shared transparently on a daily, monthly, and annual basis, with a breakdown by product category, and with staff names are generally listed in alphabetical order. The Court found some inconsistencies and contradictions in the evidence that the Complainant gave regarding the use and existence of a League Table. The Complainant told the Court that the performance of all salespersons, including the Complainant and the Comparator, was judged on a league basis, yet submitted that he was never advised that he would be judged on a League Table basis, and that he was not provided with details about the use of a League Table in his contract of employment or in the company handbook. In evidence he accepted that the term League Table was a term his own description, and that the document which he calls a League Table, and which he submitted in evidence in support of his claim, was not produced or referenced at his probation review meetings. The Complainant concurred with the evidence given by Mr O’Donoghue that he was not given an individual set of targets. He also told the Court that he did not have individual targets in sales roles that he held in other organisations. In his experience sales targets were overall targets, rather than individually set. The Court has carefully considered the written and oral submissions of the parties. On balance, the Court prefers the evidence of the Respondent that league tables were not used to benchmark performance. Mr O’Donoghue gave cogent and compelling evidence on the rationale for not setting specific individual targets and why individual employee performance is not measured against other individuals. The Complainant for his part accepted that the term League Table was a term of his own description and that the document he submitted in evidence never formed part of his probation reviews. As a result, the Court does not find that the Comparator has established as a matter of fact that League Tables were used to benchmark individual sales performance within the organisation. As a result, the Complainant has failed to establish the use of a League Table as a primary fact upon which he can rely to raise an inference of discrimination. The Complainant submits that the allocation of existing sales contracts to one new employee but not to another, when the only material difference between both is age, in a situation whereby the dismissal was based on a League Table of such sales, rendered his dismissal unfair on age grounds. In circumstances, where it has been established that League Tables were not in used to benchmark one sales representative’s performance against another, and where performance targets are team based relating to overall branch sales, the Court finds that the Complainant cannot rely on his assertion that his performance was benchmarked against the Comparator in a League Table and the use of such a League Table led to the Complainant losing his job. As set out by the court inSouthern Health Board v Mitchell[2001] E.L.R. 201cited above it is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. It is the opinion of the Court in the instant case, no such facts were established. As the Complainant, has failed to establish a prima facie case of age discrimination the appeal must fail. Determination For the reasons set out herein, the Court is satisfied that the Complainant was not discriminated against on the ground of age. The Complainant’s appeal cannot succeed, and it is dismissed. The Decision of the Adjudication Officer is set aside.
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