Complainant

Respondent

Anonymised Parties

{A Complainant}

{A Media Company}

Representatives

Owen Keany BL

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-00054361-001

05/01/2023

The Complainant has worked for the Respondent since 28th October 2014.

The Complainant is employed as Planner and is working for fifteen years for the Respondent. The Complainant is the most senior employee in her team, most experienced and trains in new members of staff. The Complainant trained in the successful candidate who was promoted to team leader.

The Complainant alleges discrimination on the family status ground as she was passed over for promotion having recently returned from maternity leave.  Two years ago, she received training to lead the team from the former Head of HR. She has always taken on the role of acting team leader, and taking on additional responsibility. Comments were made to her on her return from maternity leave saying “timing is everything” and calling out her extended maternity-leave.

The Complainant did not wish to pursue an internal grievance against the Respondent as this procedure is not impartial, with outcomes unfavourable to employees. She was also concerned this may delay her complaint to the WRC.

The Complainant says the reasons for her not being appointed to the team leader role regarding learning and development and leadership experience also apply to the successful candidate. She trained the successful candidate for the role in administration/planning twice.

The Complainant was notified she was unsuccessful for the role by a generic email. There was no phone call or meeting offered to discuss her future in the company or other options, despite her length of service.

The Complainant was excluded from an important planning meeting following the death of Queen Elizabeth II.

The Complainant’s complaint of discrimination due to family status is groundless and misconceived.

The decision to appoint another member of staff to Team Lead followed a robust, fair and transparent recruitment process which considered five internal candidates including the Complainant. The interview process included an interview and presentation by each of the candidates. The assessment was carried out by three senior members of the Respondent by reference to objective scoring criteria. The Complainant has not identified any substantive basis for contending the decision to appoint another candidate is discriminatory. The Complainant informed the Respondent CEO that she decided to bring the claim to the Workplace Relations Commission. She refused to lodge an internal grievance which could be investigated.

The Complainant claims she was led to believe she was the natural successor for the role. The Complainant is inviting the Adjudication Officer to carry out her own assessment of the merits of the recruitment process. This is not the role of the Adjudication officer as determined in DPP v Sheehan.

The role is Planning Lead. It involves management of a Team of which the Complainant is a member. The role was advertised in an internal competition and five candidates including the Complainant were interviewed. The interview panel was made up of Ms. C HR, Mr. N and Ms. D from the Respondent.

The Planning Lead is required to unite two teams with low morale and support new team members. The Complainant presented some good ideas regarding content of the role. However, the successful candidate displayed greater understanding of business needs, strategic knowledge, other recommendations, and a structure to unite both teams.

The Complainant was notified she was unsuccessful on 14th October 2022. She emailed Ms. C to say she is the longest serving team member and if her experience is compared with the successful candidate there is no contest. She said the only differentiating factor was her recent maternity leave. The Complainant was advised on numerous occasions that the most effective way to deal with the issue was through the grievance procedure. The CEO urged the Complainant to get feedback on her interview.  In this meeting Ms. C made a statement “timing is everything” in the context of new team members coming on board who may need additional support. The Respondent denies there is any discriminatory motive.

The Complainant sent an email of 9th November 2022 criticising the process, saying that no one on the interview panel had planning experience, reference was made to her having returned from “extended maternity leave” which she considered to be passive aggressive, and her exclusion from a planning meeting following the death of Queen Elizabeth II. The wording “extended maternity leave” was used by Ms. D but this did not take place at the interview and did not convey or suggest criticism of the Complainant. The Respondent says the Complainant was not excluded from a planning meeting but the channels she was working on were not affected by the changes.

The Respondent says the criticisms are unwarranted and the complaint is without merit. Following the events, the Complainant submitted a certificate to say she is unable to attend the office on medical grounds. The Complainant has been absent on sick-leave since 17 April 2023. The Complainant is a highly valued member of the team.

The Respondent relies on the Labour Court ruling in Southern Health Board v Mitchell DEE011 that the Complainant is required to present facts from which it can be inferred that she was treated less favourably than another person is has been or would be treated on the discriminatory grounds. The Respondent says the Complainant has failed to adduce any facts from which an inference of discriminatory treatment may be drawn, and she has failed to identify any comparator in support of her claim.

The Respondent relies on the decisions in Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 and Margetts v Graham Anthony & Company Ltd EDA038 which stated: “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Respondent relies on the Labour Court decision in DPP v Sheehan EDA0416 which stated:

“In the present case, the responsibility for assessing the merits of the candidates for the disputed post was deputed to a selection board consisting of members whose qualification for the task assigned to them is beyond question. In these circumstances, and in the absence of evidence of unfairness in the selection process or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the selection board”.

I have heard and considered the written submissions, oral evidence of the parties and their witnesses. Given the sensitive nature of the complaint, it is appropriate to anonymise the parties’ identities.

The Complainant complains that she has been discriminated against due to her family status in terms of S6 (2) (c ) of the Employment Equality Acts 1998-2021 and contrary to S8 (d) in a competition for promotion to Team lead following her return from maternity-leave in August 2022.

S6 of the Employment Equality Acts 1998-2021 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

The burden of proof is set out in Section 85A(1) of the 1998-2021 Acts which provides that:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The “family status ground” is defined as where one person has family status and the other does not.

The Complainant returned from maternity-leave in August 2022. She is the longest serving member of the team with fifteen years of service, and most experience. She was responsible for training in other staff on the team, including the successful candidate for Team Lead. The Complainant said that on her return from maternity-leave in August 2022, Ms. D Manager referred to her “extended maternity-leave”. The Complainant found this to be a passive aggressive comment.

In September 2022, the Head of the area left her out of a meeting regarding the death of Queen Elizabeth II which impacted planning. She had previously attended planning meetings following other high profile deaths. The Complainant was informed she was unsuccessful in her application for Team lead on 14th October 2022.  She continued to work for a number of months after the interview process, but felt humiliated and embarrassed. She had previously been the acting manager and point of contact. She felt she was being managed out. At the time of the hearing, the Complainant was on unpaid sick-leave. She said two people on the interviewing panel have no experience in planning.  She was concerned about the interview feedback from the HR Representative Ms. C on the panel after the interview which said “timing is everything” to her twice.

The company says there was issues with morale on the team, disharmony and lack of engagement while the Complainant was on maternity-leave. Another team member on maternity-leave was invited to apply for the position of Team lead, and was also unsuccessful. Five candidates were assessed by interview, presentation and psychometric testing and there was a robust process. The process was transparent and fair and objective criteria were used in the assessment. The company says the successful candidate’s presentation was stronger and had a more focused vision for uniting the two teams. There had been problems with morale on the Team while the Complainant was out. The areas which the Complainant was working on were not affected by the changes, which is why she was not invited to the meeting.

The company says the Complainant has not identified any facts from which an inference of discrimination may be drawn. The company says the Complainant only raised discrimination issues after she was unsuccessful in her application for promotion. She refused to take a grievance which the company could address.

There were three internal managers on the interview panel, Mr. N, Ms. D, and Ms. C. The assessment process consisted of an interview, presentation and a psychometric test.  Composite Interview scoring sheets for the five candidates were provided. No information was given regarding the candidates scores in the presentation assessment, the use of the psychometric tests and the composite scoring. There were five criteria used to assess the candidates at interview: knowledge and understanding of the role, professional and technical expertise, communication, leadership capabilities, planning and organising, and attitude and flexibility.

The Complainant gave evidence that when she returned to work after her maternity-leave, the Head of area Ms. D referred to her “extended maternity-leave”. The Complainant felt this was a passive aggressive comment. This comment was made by a senior member of management at a time where there was company concern regarding staff morale, turnover and attrition on the planning team. The comment was made by Ms. D prior to the interview. Ms. D was a member of the interview panel to select the Team Lead in which the Complainant was unsuccessful. Ms. D was not present at the hearing to answer questions. There was no independent external member of the selection panel.

In the DPP v Sheehan EDA0416 the Labour Court held that an inference of discrimination can arise from an unexplained procedural unfairness in the selection process and said:

“What the Complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred. There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies. However, an inference of discrimination can arise where, for example a less qualified man is appointed in preference to a more qualified woman (Wallace v South Eastern Education and Library Board [1980 BI38 IRLR 193] It can also arise from an unexplained procedural unfairness in the selection process”.

I am satisfied that this comment raises an inference of discrimination against the Complainant due to her family status, which the company has failed to rebut. Consequently, this raises concern about the impartiality of Ms. D on the selection panel and her objectivity in the selection process for Team Lead in which the Complainant was unsuccessful. It is notable that the successful candidate was marked five for “attitude and flexibility” but the Complainant was only marked three in this category.

In the circumstances, I find the Complainant was discriminated against as a parent, and the selection process for appointment of planning Team Lead was tainted with discrimination. I award the Complainant compensation of 30,000 euro for the effects of discrimination. I also direct the Respondent to carry out equality and unconscious bias training for all staff within twelve months.

The Complainant was discriminated against as a parent. I find the selection process for appointment of planning Team Lead was tainted with discrimination. I award the Complainant compensation of 30,000 euro for the effects of discrimination. I also direct the Respondent to carry out equality and unconscious bias training for all staff within twelve months.