EDA231

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00030872, CA-00041434-001.

BACKGROUND:

2.This matter came before the Court as an appeal on behalf of the Housing Sustainable Communities Agency T/A The Housing Agency (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00030872, dated 17 June 2022) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received on 12 July 2022. Ms Auveen Coombes Lynch (‘the Complainant’) cross-appealed by Notice dated 18 July 2022. The Court heard the appeal in a virtual courtroom on 7 December 2022. The Complainant gave evidence on affirmation as did Ms Helen Cleary for the Respondent.




DETERMINATION:

The Complaint

The Complainant referred a complaint under the Act to the Workplace Relations Commission on 23 April 2020 in which she alleged discrimination on grounds of gender and family status. She also alleged she had been harassed and victimised. At the commencement of the within hearing, Counsel for the Complainant confirmed that the case before the Court on appeal was confined to discriminationsimpliciter onthe gender ground.

The Factual Matrix

In or about 2015, the Complainant was successful in a general recruitment campaign for the Civil Service at clerical officer level. She was assigned to the Respondent, initially as a receptionist, in November 2015. A number of weeks later she was transferred to the Respondent’s Accounts Department. She was subsequently promoted on two occasions: initially to the grade of Assistant Staff Officer and then to the grade of Staff Officer in both of which capacities she was employed in the Respondent’s Pyrite Department. It is common case that she made a significant contribution to improving the overall administration of that department and to establishing enhanced customer relations with homeowners who were availing themselves of its services.

The Complainant had ambitions to become a Project Manager. She therefore – with the financial assistance of the Respondent – enrolled on, and successfully completed, a part-time project management course with the Irish Institute of Project Management. The course was of six months’ duration. During her PMDS review in January 2018, it was identified that the Complainant’s lack of actual on-site experience was a potential barrier to her achieving her career objective. The Respondent ran a campaign to fill a vacancy for a Project Manager in mid-2018. The Complainant applied and was placed on the subsequent panel. She was provided feedback following her interview that indicated that her lack of practical on-site experience impacted on her overall scoring.

Again, the issue of the Complainant’s lack of on-site experience arose for discussion during her PMDS assessment in January 2019. She was assigned an on-site visit by her manager on 19 January 2019. A second opportunity to undertake an on-site visit arose on 11 December 2019 due to the departure of a colleague. The Respondent also conducted a competition to fill a vacancy at Project Manager level in August 2019. The Complainant applied. She was placed fifth overall and fourth on the resulting panel. The Complainant resigned her position as Staff Officer- Grade V with the Respondent in April 2021.

The Complainant’s Submission

The Complainant submits that she was repeatedly treated less favourably than her male colleagues in so far as she was denied the opportunity by her managers to obtain meaningful on-site project management experience while her immediate male colleagues were regularly facilitated in this regard. She alleges that the foregoing is indicative of a culture of discrimination within the Respondent that favoured the promotion of male candidates over female candidates. The Complainant has not taken issueper sewith the Respondent’s conduct of either the 2018 or 2019 promotional competition.

The Respondent’s Submission

The Respondent submits that the Complainant has failed to adduce any evidence that establishes facts from which an inference of discrimination on the gender ground can be drawn, within the six-month period immediately preceding her referral to the Workplace Relations Commission or at all. Counsel for the Respondent characterised the case advanced before the Court as amounting to a claim that an employer should be regarded as having an obligation to provide every employee with an opportunity to gain additional experience so as to facilitate their promotion.

Counsel also submits that the Complainant was employed in an administrative role by the Respondent. The male colleagues she alleges were treated more favourably by being afforded on-site opportunities denied to her were employed in technical roles as engineers who reported to a Project Manager who in turn reported to the Programme Manager. In Counsel’s submission, it made perfect sense, therefore, to assign the named male colleagues to undertake on-site work on a temporary basis when a Project Manager resigned. If the Complainant had been assigned to fill the role, albeit on a temporary basis, her important administrative role in the Pyrite Department would have to have been backfilled, a role which, according to her own evidence, was an extremely busy and demanding one.

Discussion and Decision

The Complainant alleges that there was a culture of discrimination in place within the Respondent that hindered her in her efforts throughout 2018 and 2019 to progress her career by achieving promotion to the grade of Project Manager. She further alleges that the Respondent, through its management, perpetrated a continuum of discriminatory acts throughout this period. She referred her complaint to the Workplace Relations Commission on 23 April 2020. It follows, therefore, that it is incumbent on the Complainant to first establish facts in relation to an alleged act or acts of discrimination in the six-month period prior to the referral of her complaint before any consideration can be given to alleged discrimination before that period.

The six-month period in question is the period commencing on 24 October 2019 and ending on 23 April 2020. The 2019 recruitment campaign to fill a vacant Project Manager role had concluded by 28 August 2019 and so is not within the aforementioned period.

The one event that did occur within the cognisable period is a site visit the Complainant was requested to undertake by the Programme Manager, Mr John Murphy, on 11 December 2019. She describes this event as follows in her written originating complaint to the Workplace Relations Commission:

• “In December the role of Project Manager became available again as [PR] left the department. December is the busiest time for my team as we have to process a large volume of payments with the ultimate responsibility of the work falling to me. We are also under resourced and reliant on temporary staff. I was provided with a laptop as I also needed to work at home to complete the work involved. At the time [AD] was on leave for his wedding and John Murphy came to my desk and asked me to carry out some tasks on behalf of a Project Manager. John Murphy wanted me to attend two hand backs. This was the second on-site experience I received in 2019 which I have referred to earlier ….
  As I was eager to gain experience and the opportunity to gain on-site experience rarely presented itself, I felt I could not refuse the chance to go on-site, despite my heavy workload. I attended the site on the afternoon of Wednesday 11^thDecember 2019. However, there was no one to cover my other work so I still had to do that as well. Before I attended the site I was told “not to wear good clothes going on site”. After the site visit I had to work late into the evening to cover my other workload.
  The following day John Murphy asked if I enjoyed “my day out” of the office as though I had been on some sort of adventure. While this conversation was cordial, I felt John Murphy disregarded the work load I had and treated my site visit almost like a fun outing rather than a serious Project Manager’s task. I was very disappointed by this and could not understand why on-site visits were regarded as very important when carried out by other project managers but when I carried out the task it was treated like a bit of a joke.”

In summary, the Complainant appears to complain about the following matters in connection with the half-day site visit she undertook on 11 December 2019: (i) that she was asked to complete this site visit at a busy time of year for her department; (ii) that as well as undertaking an additional task, she was still required to complete her normal day’s work; (iii) that she was advised by the Programme Manager before going out on site not to wear good clothes while going on-site; and (iv) on her return to the office the following day, she was asked if she had enjoyed her day out of the office. The question that falls to be determined by the Court at this juncture is this: does the Complainant’s narrative of events in relation to her site visit on 11 December establish primary facts which give rise to a presumption on the gender ground?

The Law

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
  It is only if 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 is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

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”.

Conclusion

The Court is of the view that the Complainant’s evidence in relation to the site visit of 11 December 2019 does not meet the burden of proof required by section 85A(1) of the Act. That is to say, the Court does not accept that the Complainant’s narrative account in relation to that event establishes a prima facie case of discrimination on the gender ground. Her clear evidence to the Court is that from January 2018 onwards she actively sought the opportunity to complete on-site visits in order to enhance her chances of securing a position as a Project Manager. She now complains that she was offered such an opportunity on 11 December 2019 which happened to fall during a busy period for her department and she was required to complete her own work in addition to undertaking the site visit. She asserts that had a male colleague been asked to undertake a site visit he would not have been required to complete his day job at the same time. This is nothing more than an assertion, unsupported by evidence. Mr Murphy, when offering the Complainant the opportunity to undertake the site visit, advised her not to wear her good clothes when doing so. It is unclear to the Court why the Complainant has chosen to interpret what appears to it to be eminently practical advice as somehow indicative of a male oriented culture in the Respondent’s workplace. When the Complainant returned to the office on the day following her site visit, she says that Mr Murphy asked her had she enjoyed her day out of the office. The Court sees nothing exceptional in this question and certainly can see no basis for the Complainant’s allegation that it indicates that Mr Murphy was thereby discriminating against her on the gender ground. In the Court’s experience, such questions are routinely asked of employees, regardless of gender, by colleagues in circumstances where the employee returns to the workplace having been assigned to do something off-site and outside their normal office-based routine.

In conclusion, the Respondent’s appeal succeeds and the Adjudication Officer’s decision is varied accordingly. The Complainant’s appeal is unsuccessful.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
IK	______________________
7 January 2023	Deputy Chairman