Complainant

Respondent

Parties

Grainne  Cowley

Aib Bank Plc

Complainant

Respondent

Anonymised Parties

Representatives

 Self  

Fiona Sheil  Solicitor, Mason, Hayes & Curran LLP

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-00051235-001

20/06/2022

The Complainant was employed by the Respondent for 28 years when she accepted a voluntary redundancy package.

The Complainant has submitted this complaint to the Workplace Relations Commission under section 77 of the Employment Equality Act,1998, her complaint being that the Respondent refused to issue her with a reference on the grounds of her age.

The complaint was received by the Workplace Relations Commission on 20th June 2022.

The hearing of the complaint took place on 16th May 2023.

The Complainant joined AIB Finance and Leasing in 1992 as a Temporary Official.  She applied and was made permanent part time in AIB Bank in 1993 – she was then promoted   to Staff Officer in 1995.

For 6 years the Complainant worked on shift work and was then transferred to Retail Banking – Branch Banking.

The Complainant progressed to Assistant Manager level – level 3. HRQMO.  HR Officer and Quality Management Official.  She completed 4 branch Re- Fresh Projects, working weekends and at night till 2 a.m.

The Complainant left AIB on a Voluntary Redundancy basis after 28 years’ service.

The Complainant states that she operated at a very high level, contributed at a high level, and was recognised by my many successful Performance reviews.  Her attendance was always exemplarily.

As HRQMO – she would have issued references for members of her team who left the bank.  This option (to issue references) was available on the HR system for the majority of her career. 

As a valued member of management who dedicated her career to AIB – on leaving she received a Statement of employment. 

The Complainant feels this is not reflective of her contribution and the level at which she operated.

She feels that this has had a negative effect on her applying for jobs. 

The complainant believes that for the majority of her career the policy was that a reference would be issued on leaving the company and she feels discriminated against that this is not available to her after such a long career in AIB.  The Statement of Employment is not conducive to obtaining further employment at an equivalent level. 

A statement of employment does not reflect the extensive knowledge, experience and the Complainant’s contribution at an extremely high level to AIB Bank over a 28-year period.

When applying for new jobs – a perspective candidate is asked for references – to which the Complainant could only supply a Statement of employment. Throughout the course of her initial emails with AIB one reply led her to believe a reference may be a possibility. This was not the case.

Background and Response to Allegation of Discrimination

 The Complainant claims that she was discriminated against in circumstances where the Respondent would not provide her with a detailed reference. The Respondent provided her with a statement of employment, as is the policy of the Respondent. It is strenuously denied that the Respondent has discriminated against the Complainant at any point.

 In relation to providing references to employees, between the period November 2012 to January 2021 the Respondent followed a reference rating approach for departing employees, whereby the type of reference provided depended on the employee’s performance. From January 2021 onwards, the Respondent’s policy of providing references to departing employees changed, whereby all departing employees receive a ‘Statement of Employment’ containing the basic details of their employment with the Respondent.

 The Complainant ceased employment with the Respondent in December 2021.

The Complainant contacted the HR Department by email on 28 March 2022. The Complainant enquired about the possibility of a reference. The following day, a member of the Advisory and Document Management Team, replied to the Complainant’s email asking her to confirm her details and subsequently provided the Complaint with a Statement of Employment.

 The Complainant acknowledged receipt of the Statement of Employment but requested a detailed reference. The Complainant was advised by email on 30 March 2022 that the Respondent “can only provide a standard Statement of Employment”. The Complainant was advised that it was against AIB policy to provide detailed references.

 The Complainant requested a copy of the policy in respect of references on 30 March 2022. The Respondent advised the Complainant that there was no requirement on the Respondent to provide the Complainant with a reference. The Respondent has no written policy on these matters, though their policy of providing a Statement of Employment upon request is applied consistently.

By way of email dated 31 May 2022, the Complainant acknowledged that “there is no absolute requirement for AIB to provide a reference”, however she asked that “an exception” be made in circumstances where she was employed by the Respondent for 29 years. The Complainant alleged that the lack of reference was hindering her from securing further employment.

By way of email on 7 June 2022, the Respondent again advised the Complainant that it was only possible to provide a Statement of Employment. The Complainant replied by email on the same day advising that she was “disappointed in the reply” and would be referring the matter to the WRC.

 It is bewildering and entirely unclear to the Respondent how the Complainant has been discriminated on grounds of her age, and the claim is rejected in its entirety by the Respondent.

Legal Submission.

Section 85A of the Employment Equality Act 1998, as amended (the “Act”), sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by a Complainant from which discrimination may be inferred, it shall be for the Respondent to prove the absence of discrimination. Section 85 of the Act states:

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.

 Section 85A requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. It is only if she succeeds in doing so, and only then, that is it for the Respondent to prove the contrary.

 The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

 Numerous decisions of the WRC and Labour Court refer to a key determination of the Labour Court, Melbury v. Valpeters ([2010] 21 E.L.R. 64) in which the Labour Court held that the Complainant must establish facts from which discrimination may be inferred and that it is required to be of sufficient significance to raise a presumption of discrimination and that:

“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence, mere speculation or assertions, 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 established test for deciding if the probative burden shifts is set out in Southern Health Board v Mitchell [2001] E.L.R. 201 in which the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof. The Court held: -

“The first requirement is that the Complainant 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 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 is no infringement of the principle of equal treatment”.

In Meath County Council v McDermott, the Court stated that “mere assertion cannot be elevated to the level of fact. A complaint under the Acts requires some evidence to support it.”

Section 6 of the Act sets out that: 

6.- (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i)                   exists,

(ii)                 existed but no longer exists, (iii)

(iii)                may exist in the future, or

(iv)                is imputed to the person concerned

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— …

… (f) that they are of different ages…

 It is submitted that the evidence does not establish any facts to raise a presumption of discrimination. However, without prejudice thereto, the Complainant was not treated less favourably than another person is, has been or would be treated in a comparable situation on the grounds of age and therefore discrimination cannot be taken to have occurred. The Complainant was treated as every other former employee is treated, irrespective of age.

In the case of Meehan v Leitrim County Council,(DEC – 2006 – 014) the Complainant alleged that he was treated less favourably than his younger colleagues in relation to promotion. The Equality Officer held in relation to interviews and the selection process that it was "Not of course the Tribunal's function to identify the most successful candidate but to examine whether the selection was tainted by age discrimination." It was held that the bare fact that a successful candidate is younger than the Complainant is not sufficient to shift the burden of evidential proof.

The only fact that the Complainant can point to is she was not provided with a detailed reference. As demonstrated by the Meehan case, as referred to above, the Respondent submits that fact, in the absence of anything else, is not enough to establish a prima facie case of discrimination and shift the burden of proof.

 The Complainant has failed to adduce evidence of any comparators as required by Section 6(2) of the EEA.

 In the case of Mr. Slawomir Sinikowski Vs Supermacs Ireland Ltd it was held that “the Respondent did not discriminate against the complainant on the ground of race pursuant to section 6(2) and contrary to section 8 of the Acts (the Employment Equality Acts 1998 to 2008) in relation to his conditions of employment regarding - the alleged refusal of a reference”

There is no general legal requirement that an employer provide a comprehensive reference or indeed, any reference at all in respect of an existing or former employee.

Conclusion

Without prejudice to the foregoing, the Complainant has not provided any evidence to support her claim, other than mere assertions and has not established facts on the basis of credible evidence such that the burden of proof would shift to the Respondent.

 The Respondent dealt with the Complainant fairly and in a timely manner.

The Complainant can point to absolutely no facts that might give rise to an inference of discrimination.

The Respondent respectfully submits that the Complainant’s claim should be dismissed.

The Complainant has submitted her complaint alleging that she had been the victim of discrimination on the grounds of her age.

Equality law is based on comparison; how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator. A comparator must be employed by the same employer as the complainant or by an associated employer.

In the instant case the Complainant has not named a comparator.

A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon. In many cases the comparator will be an actual person, but they need not be. Situations may arise where the complainant is the only person in the employment, or all other employees whose circumstances are similar may have the same protected characteristic as the complainant. In these situations, it is permissible to select a hypothetical comparator. A hypothetical comparator can be constructed by asking why the complainant was treated as they were. If the treatment complained of was because of a protected characteristic, a hypothetical comparator is a supposed person who does not have that characteristic but who is otherwise in the same position as the complainant. In the context of the instant case the hypothetical comparator would be an employee, younger in age than the Complainant who was also leaving the bank on voluntary redundancy and who was issued with a reference.

This is simply not the case.

At hearing Ms Clare O’Reilly from AIB gave evidence that the policy of the bank was to issue statements of employment and not personal references and that this policy had been introduced some time previously and was applied to all former members of staff requesting references. This type of policy is one that many companies have adopted.

As per submission the Respondent has highlighted the case of Melbury Developments andValpeters ([2010] 21 E.L.R. 64) in which the Labour Court held that the Complainant must establish facts from which discrimination may be inferred and that it is required to be of sufficient significance to raise a presumption of discrimination and that:

“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence, mere speculation or assertions, 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”.

In the instant case I feel that the Complainant has not established a prime facie case and it is for this reason I must find that the complaint as submitted under section 77 of the Employment Equality Act is not well founded.

In the instant case I feel that the Complainant has not established a prime facie case and it is for this reason I must find that the complaint as submitted under section 77 of the Employment Equality Act is not well founded.

Employment Equality Act 1988.