ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047591
Parties:
| Complainant | Respondent |
Parties | Vikki Keenan | Allergy Standards Ltd |
Representatives | Self- represented | Mason Hayes & Curran |
Complaint(s):
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-00058551-002 | 29/08/2023 |
Date of Adjudication Hearing: 07/03/2024
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required. The hearing was conducted in Lansdowne House.
Oral evidence was presented by both the complainant and the respondent under affirmation. Witnesses were offered an opportunity to cross examine on the evidence submitted.
The complainant represented herself.
The respondent was represented by Mason Hayes & Curran. The respondent CEO, the Chief Operating Officer, and the Head of Learning and Development also attended and gave evidence under affirmation.
Background:
The complainant has submitted a complaint that she was discriminated against and harassed on family status grounds contrary to the provisions of the Employment Equality Acts 1998-2015. The complainant was employed as a Director of Marketing from 2/8/22 until her dismissal on 2/5/2023. The last act of discrimination occurred on 2/5/23. Her gross salary was €6660 per month She submitted her complaint to the WRC on 29/8/2023. |
Summary of Complainant’s Case:
The complainant maintains that she was discriminated against on family status grounds when the respondent implemented a remote working policy which flouted an agreement agreed between herself and the respondent in July 2022 and which was discriminatory. She was discriminatorily dismissed owing to her family status as her performance was only criticised after she objected to the remote working policy, a policy which failed to take account of her needs as a parent. This criticism gained momentum and led to her dismissal on 2/5/2023. She further claims that she was harassed on grounds of family status. The complainant was employed as a marketing director in this company, an international certification body which develops scientific standards to test consumer products for persons with specific allergies and conditions. Evidence of complainant given under affirmation. Remote Working Policy. The first act of discrimination was the introduction of a new Smart Working Policy (remote working policy) on 13/2/2023 which required the complainant to attend in the office for 3 days as opposed to the 2 which she had agreed with the respondent CEO and which she operated from August 2022- February 2023. The new arrangement conflicted with her own family arrangements. While her contract signed on 5/8/2022 provided for 2 days working from home, she came to a verbal agreement with the respondent CEO on 26/7/2022 to work two days in the office and three at home. He told her that there was no problem with her request and that they were flexible. He agreed that she would work Tuesday and Thursday in the office. The Chief Operations Officer was present at this meeting. Under the new policy, Monday was a core day. The Finance Director who lives in Galway, is only required to work in the office on two days a week. He has a family. She did object to the new policy with the Head of Learning and Development on 15/3/2023 who told her to bring it up with the CEO. She did not raise the matter with the CEO The complainant stated that she was not presenting a comparator of a different status. I explained to the complainant the requirement under the Act to present a comparator who did not have family status. The complainant stated that this was a change of policy which amounted to less favourable treatment compared to a comparator named Dr Anna O’Donovan who was not subject to the strictures of this Remote Working Policy. The comparator has children. Discriminatory dismissal. The second act of discrimination identified in her complaint form and in her submission was her dismissal on 2/5/2023. The act of dismissing her was the culmination of a series of criticisms levelled against her work, but only after she had lodged objections with the Head of Learning and Development in March 2023 concerning the Remote Working Policy. The complainant passed her probation on 24/11/22. The CEO stated that he was very happy with her performance to date. She was told that she was thrown in at the dep end and was doing a good job. She asked for areas of improvement and was told that there were none. The complainant disputes the respondent’s reasons for dismissing her; he described her as a “cultural mismatch”. The complainant disputes the respondent’s analysis of her performance which was largely focussed on her delivery of – in their eyes- an imperfect marketing plan. She engaged in developing it over time. The Business Development Manager was happy with the plan produced by her. She produced the first iteration of the plan in September 2022. She delivered a second, updated edition on 13/12/22 in which she included testimonials from clients commending the value of the company. She was told to update the December 2022 plan. Her efforts to complete the plan were constantly interrupted, with her being diverted onto other matters, and then being redirected back to the marketing plan which was very confusing for her. At a meeting on 27 February 2023, the CEO and Head of Learning and Development told her to finalise the marketing plan and to disengage from social media promotion for a specific event, When she asked questions about which customers she should target, or how she could source information for the preparation of materials for big trade events, she got no answers. She didn’t get the direction she sought when she was creating a plan for the building industry. Try as she might, the respondent failed to tell her to whom in the industry it should be directed. She sent an email on 28/2/23 seeking answers to last issue, but only received very vague answers. The respondent CEO told to refer to Chat GPT- which is an insufficient information site as it does not contain company data. She is of the view that the criticisms of her work originated with her objecting to the Smart Working Policy and to her trying to secure arrangements that were compatible with her parental responsibilities. Overall, her role was changed from Director of Marketing to Demand Generation in April 2023 without her knowledge.
Complaint of harassment on grounds of family status. After the introduction of the Smart Working Policy on 13/2/2023, she was treated differently. Instances of Harassment On the 28/2/23, the CEO made a derogatory remark about the time that she was leaving the office. At a companywide meeting on 29/3/ 2023, the CEO told her to stop what she was doing. He stated that the company does not do marketing, rather they do demand generation. She found the workplace to be characterised by bullying after February 2023. On 7/3/2023, the respondent CEO criticised her work in front of colleagues. He asked her what collateral she had organised for an upcoming sales event in the USA. She had been unaware that he had expected her to produce a biography of him. It was very uncomfortable with him raising his voice at her, pointing to a folder and saying, “why isn’t it done”. The CEO asked her for an update on the marketing brochures. He was irritated that materials sought by him were still not available and this was played out in front colleagues. She was dismissed on 2/5/23. Cross examination of complainant. The complainant confirmed that all went well from August 2022 to February 2023. There was no evidence of any discrimination. She stated that this all changed after 13/2/23. She stated that she knowingly signed the contract containing the term that she could work 2 days from home. She stated that she knew she was wrong to have done that. Concerning her statement that the CEO and the Chief Operating Officer agreed to 3 days at home, the respondent’s solicitor stated that both will say that there was no explicit agreement on that point. The signed contract is not overridden by a verbal exchange as opposed to a commitment on this matter. As to the universal application of the Smart Working Policy, she stated that she did not know if it was targeted at her. To the question as to whether there had been any criticism of her work before the introduction of the remote working policy, the complainant stated that she had been merely asked to update her plan. To the question that the company didn’t sign off on the plan because it was poor, the complainant stated that the CEO wanted to update it. To the point that the marketing plan was the subject of weekly meetings, the complainant said that she had expected to be updated as necessary; the plan was live. She was never told that there was a problem with the plan. She confirmed that she never spoke to the CEO, the person with whom she stated that she had an oral agreement about 3 days. She said that she did not feel comfortable with him about the revised plan but did convey her concerns to the Head of Learning and Development. She confirmed that her family status did not prevent her from performing her role. The fact that she had to work 3 days in the office did not impede her progress. When asked to identify what less favourable treatment she experienced, she stated that it was having to come into work 3 days a week; this was interfering with her family obligations. She confirmed that the CEO did not sign off on KPIs. The respondent’s solicitor stated that the company will dispute that KPIs were not agreed to which point the complainant stated that she had been told by the Business Development that KPIs could not be agreed until the marketing plan was signed off. The complainant accepted that multiple meeting took place about marketing plan. She accepted that the plan had not been signed off. She confirmed that at a meeting on 27/4/23, she went through her job description with the HR Director She accepted that the four meetings which were held with the HR manager concerning the marketing plan may not have been driven by family status. Conclusion. The complainant asks the adjudicator to uphold her complaint of discrimination on grounds of family status.
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Summary of Respondent’s Case:
The respondent denies that the complainant was discriminated against or harassed on the grounds of family status. Nor was the complainant discriminatorily dismissed. Preliminary Point: The respondent stated that the complaint of dismissal due to a protected disclosure and contained in her written submission did not feature in her complaint form lodged on 29/8/23 and should be inadmissible on those grounds. There was no relevant wrongdoing and no disclosure of same was made to the respondent. Her written contract allowing her to work two days remotely reflects the company position. Evidence of CEO given under affirmation The witness confirmed that he was happy to accede to the complainant’s request to change her title to Director of Marketing He stated that he hired the complainant for sales events, press releases, acquiring leads / prospects, new business. He wanted her to enlarge the company’s footprint, to generate more business, additional clients. Events are an important opportunity to secure more customers. Dismissal of complainant Her preparation for big sales events was below par. He discovered on the eve of a USA trade event that she was ill prepared for a big sales marketing conference, was inconsistent with branding, using European documents, and failed to supply important materials. Concerning the complainant’s statement that she was not advised of any concerns before the 13/2/23, the witness states that he was very unhappy with her performance. She couldn’t find documents, necessary for a conference, which were readily available on the company website. Her claim that the KPIs which she claims were not agreed were her own. He leaves it up to employees at her level to craft their own KPIs which they are then expected to keep track of and meet. She was unable to meet her own KPIs. The respondent submitted documentary evidence of KPIs at the hearing and a tracker showing they had not been met. Marketing Plan The witness asked her to revise the plan dated 19/9/22. The company position was that the two marketing plans produced by the complainant were not of sufficient quality to sign off on. He had a heavy heart in dismissing her, but he had to do the right thing for the company. He told her that he was not firing her; she was not a cultural fit. He told her he’d help her get a new job, and would emphasise her strengths Smart Working Policy The policy introduced on 13/2/23 was to align everyone with post -covid roles. Monday is a core day. The complainant never raised any issue with having to work on a Monday. He disputes the fact that he agreed that the complainant could work from home for 3 days a week. In February when the respondent issued the remote working policy, she did not approach him regarding the alleged verbal agreement. Instances of Alleged Harassment on grounds of family status. On 7/3/23, the witness gave her the playbook for the upcoming conference in the USA. He identified the requisite materials, including scientific abstracts. She was unable to source readily accessible material such as allergy standards. Concerning the alleged harassment on 29/3/23, this was a request to the complainant to focus on a marketing plan and was not harassment. The witness asked her to put the emphasis on demand generation as a subtext of the plan. The complainant never raised any issue with having to work on a Monday. Her title never changed on her contract, on the website or in a letter or email from the witness. Cross examination of witness. The witness confirmed that he did not send emails or letter reviewing KPIs to the complainant.
Evidence of Chief Operating Officer given under affirmation. She worked with the complainant on the US Certification Programme. The witness attended the meeting on the 26/7/2022.She does not recall any agreement permitting the complainant to work 3 days from home and 2 on the office. The witness was unaware of underperformance issues. Evidence of Head of Learning and Development. The witness functions as the HR Manager. She was not involved in drafting the complainant’s contract. The witness disputes the complainant’s statement that she worked from home 3 days each week before February 2023. The records indicate that she worked only 10 days at home in the period August 2022- February 2023. The witness met the complainant in excess of 15 occasions to support her in her development of the marketing plan. The witness could assist in the framework of the plan but could not assist her with the elements/ ingredients. It quickly became apparent that the plan was not progressing. The Smart Working Policy. The complainant notified the witness that she was unhappy with the element of the policy which required her to attend in the office on 3 days a week. The witness said to the complainant to leave it with her but that she had to be fair to all staff- full time and part time. The complainant never came back to her after that. She met the complainant on the 27/4/23 for the purposes of going through her job description so as to ensure absolute clarity as to what was expected of her and to inquire as to whether she could meet these expectations. The complainant could not clarify to the witness the exact assistance required to complete tasks. The complainant was of the view that things would improve. It was clear to the witness that the complainant could not meet the demands of the role. She tried to help the complainant, to elicit from the complainant what was being done. She planned to coach her. Dismissal meeting on the 2/5/2023. The waiver letter in which the complainant was asked to waive rights to make future claims in return for a sum of money was not given to her at this meeting as alleged but 6 weeks later Cross examination of witness In relation to the witness’s statement that the calendar showed that the complainant only worked from home 10 days – and not 3 days a week – in the period August 2022 to February 2023, the complainant asked the witness to accept that she did not always update her calendar to state that she was working from home. The witness stated that she could only go on what was in the calendar. Concerning the meeting on 15/3/2023, the witness stated that the complainant while she expressed unhappiness at the change , did not make a request to the witness, nor did she come back to the witness. Conclusion. The respondent argues that the complainant has failed to raise a prima facie case of discrimination on family status grounds and that, accordingly, her complaint should be dismissed.
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Findings and Conclusions:
I am required to establish if the complainant was discriminated against and harassed on grounds of family status in terms of 6 (2)(c) and contrary to section 8 of the Acts. The acts of alleged discrimination are: A. The introduction of a remote working policy which in February 2023 required employees to work 3 days a week in the office . The complainant contends that this is in conflict with an agreement she reached with the CEO in July 2022, permitting her to work 3 days at home and 2 in the office, B. her dismissal on the 2/5/23, Harassment on the grounds of family status. Relevant Law: Section 6 (2)(1) of the Acts provides as follows: “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. Section 6(2)(c) states discrimination can occur where “One has family status, and the other does not (in this Act referred to as “the family status ground”, Section 2(1) of the Acts defines family status as “a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or (b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,” Burden of proof. The first obligation which the complainant must meet is compliance with section 85A of the Employment Equality Acts 1998-2015 which lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that “In any proceedings where facts are established by or on behalf of a complainant from which it may be presumed that discrimination has occurred in relation to him/her, it is for the respondent to prove the contrary”. In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded 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 was no infringement of the principle of equal treatment”. The complainant must discharge this evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her family status. If she does not, her case cannot succeed. In order to achieve compliance with section 85(A)- the first step- she must satisfy three elements of a test laid out in Minaguchi v Mr. Ray Byrne, T/A Wine port Lakeshore Restaurant DEC-E/2002/20. These three requirements are: - That she is covered by the relevant discriminatory ground(s), - That she has been subjected to specific treatments; and - That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.” Application of the above preconditions to the circumstances of the instant complaint. The complainant is a parent and meets the family status requirement, The specific treatment included the introduction of a new policy in February 2023 which required her to work 3 days in the office, which the complainant maintains flouts an agreement reached with the respondent in July 2022 that she could work three days from home and ignores her childcare responsibilities. That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated? The comparator, a parent with children, and put forward by the complainant has the same status as that of the complainant. The complainant accepts that the policy was applied universally and with the exception of a person with family status, pointed to no other employee who was not subject to its terms. While the evidence indicates ambiguity at the very least about the reported commitment enabling her to work three days from home in July 2022, undone by the arrival of the February 2023 policy, this complaint is submitted under the Act of 1998. The issue is not whether the revised arrangements, operative from February 2023 are subjectively fair or conflict with an earlier arrangement, but whether the policy was applied selectively and because of her status. No evidence was offered showing the respondent honouring an equivalent arrangement for a person of a different status to that of the complainant or applying different standards to employees of a different status who had objected to this policy. The policy applies to all employees. The workforce includes employees with children and those without. While it didn’t take account of this particular complainant’s needs and family obligations, that does not mean that it is less favourable based on her family status. Discrimination on the family status grounds arises where you treat a worker less favourably because of their family status when compared with another worker (a comparator) who has no family status and who performs the same or similar functions to the complainant. The complainant was unable to identify any other employee with a different family status who was treated more favourably than the complainant. The fact that another employee was allowed more flexible arrangements may indicate less favourable treatment of the complainant, but to succeed in this element of her complaint, she must connect this less favourable treatment to her family status. The complainant has failed to demonstrate a prima facie case of discrimination based on ground of family status. Discriminatory dismissal based on family status. The complainant included this in her complaint form and also referenced it in her submission. The complainant in her oral evidence maintained that unjustified criticisms of her work which culminated in her dismissal on the 2/5/23 occurred only after and because of her objection to the introduction of a policy requiring her to attend in the office on three days a week, an arrangement which she maintains discriminates against her on family status grounds. She did not characterise this a victimisation. No evidence was offered showing the respondent honouring an equivalent arrangement for a person of a different status to that of the complainant or applying different standards to employees of a different status who had objected to this policy. The evidence reveals that the respondent was unhappy with her performance from before the 13/2/23, even if that was not conveyed to her in writing. The complainant refers to the absence of any written notification to her that her work was below par, the failure to introduce a PIP, or disciplinary process as evidence of discrimination. These deficiencies in how she was dealt with may indicate an absence of fairness but are not necessarily connected to her family status. It is clear that the complainant disputes the respondent’s conclusions which led to her dismissal. The merits of the respondent’s decision are not within the frame of the Act of 1998 as this is a complaint under the Employment Equality Act, 1998 and not the Unfair Dismissals Act, 1977, unless the complainant can raise a prima facie case of discrimination that her dismissal was based on her family status. Evidence points to a conflict as to what she believed her job should entail and the level of support and backup to which she was entitled. The company wanted a more self-reliant employee who could design a plan, pinpoint the requisite information to flesh out the plan and could source the information herself. The company wanted her to produce the plans at a greater speed. Based on the evidence, I find that the complainant has failed to raise a prima facie case of discrimination on grounds of family status and her complaint cannot succeed. A complaint of harassment on family status grounds. Definition of Harassment. Section 14A (7) of the Act provides as follows: “(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. The Act provides at section 14A (1) that “Such harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment” Instances of alleged harassment. On 28 February 2023, the respondent CEO made a derogatory remark about the time at which she was leaving the office. On 7/3/2023 the respondent CEO criticised her work in front of colleagues. The evidence is that the respondent CEO asked her for an update on the marketing brochures. He was irritated that materials sought by him were still not available and this was played out in front colleagues. At a meeting on the 29/3/2023, the CEO stated that we do not do marketing but do demand generation. While I find the remark of the 28/2/23 to be wasteful and insensitive, it’s a once off remark and not part of a sustained pattern of engagement with the complainant. The complainant in evidence stated that her family status did not impede her in the performance of her job. The CEO’s observations on the 7/3/23 and on the 29/3/23 about what he saw as the company’s requirements and placing an emphasis different to her own vision of the role may have been delivered in a brusque manner, but I do not find these comments were purposely and needlessly designed to undermine or humiliate the complainant or that they could be construed as harassment due to her family status as provided for in the Act. The complainant did not raise these issues of alleged harassment with the respondent while employed by them. It is up to the complainant to establish a prima facie case that the alleged harassment was related to her family status. The uncontested evidence is that the respondent was unhappy with the rate of progress in her work assignments. On the basis of the evidence, and facts I find that the complainant has failed to produce evidence establishing a nexus between her family status and the remarks made to her which she characterises as harassment. Based on the evidence, I find that the complainant has failed to raise a prima facie case and her complaint cannot succeed. Complaint of penalisation due to a protected disclosure. In the complainant’s written submission, she described her dismissal as an act of penalisation due to her having raised a protected disclosure. This case was not made out at the hearing. The characterisation of a complaint to the respondent about how this new policy goes against a previous agreement and is incompatible with her childcare responsibilities does not comply with the definition of a protected disclosure contained in section 5 of the Protected Disclosures Act, 2014. Conclusion What is missing in the complainant’s evidence is that the driver of the respondent’s treatment of her is her family status. I find that the complainant is unable, therefore, to raise a prima facie case of discrimination as required by section 85A of the Acts. Her complaint cannot succeed.
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Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I decide that the complainant has failed to set out a prima faice case of discrimination based on family status grounds, in terms of section 6(2)(c) of the Act of 1998 and section and her complaint cannot succeed. |
Dated: 29-05-2024
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Family status; prima facie case. |