(represented by Anthony Kerr B.L. instructed by Matheson Ormsby Prentice Solicitors)
1.1 The case concerns a claim by Ms. Marian Cassidy that Citigroup, Dublin, victimised her within the meaning of section 74(2) of the Employment Equality Acts 1998 and 2004.
2.1 The complainant submits that she was victimised by the respondent as a result of taking equality proceedings. She submits that she was transferred to the Luxembourg team which required less experience and that disciplinary proceedings were initiated in relation to her sick leave record. The respondent denies the complaint of victimisation. It submitted that movement across teams is standard to ensure that staff can improve their knowledge and provide greater levels of cover and it also submitted that Luxembourg funds are regarded as more complex. It submitted that it was appropriate to query the complainant's absenteeism and she was treated no differently than other colleagues were.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of the Equality Tribunal on 11 October 2004. On 3 April 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 17 May 2006 and from the respondent on 7 July 2006. A joint hearing of the claim was held on 23 May 2007. Final material requested from the respondent was received on 20 July 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that she was victimised by her employer as a result of taking a previous equality case. She submits that she was moved to the Luxembourg team within the Trustee Department. The Trustee reviews of Luxembourg funds can be achieved with nominal Trustee and compliance experience compared to reviews on her previous team (open-ended Dublin regulated funds). She submits that she was moved sideways and put on a team which would not exercise her full Trustee experience. She complained to her direct Manager at a team meeting and asked for the reasons for her move. At that meeting on 25 August 2004, the team was advised of a new person joining the team on 13 September as a result of an internal transfer.
3.2 The team was advised that the new person would be correcting their packs. The complainant submits that she queried how somebody with no trustee experience could join the Luxembourg team, correcting work of which he had no experience of completing. The transfer person was also joining in a specialist role which meant that there was no opportunity for promotion for her to that role. She submits that she believes that was another reason that management put her on that team. She submits that her colleagues were surprised and it was effectively a demotion for her. She believes that there was an agenda to continuously undermine her capability and to isolate her from the progressive end of the business. She submits that most specialist positions and above are being filled by external candidates who are sometimes required to be trained by the complainant and her colleagues.
3.3 The complainant submits that management have initiated a robust systematic due process approach against her. She submits that the purpose is to gather negative documentary evidence to suit the new agenda. She submits that on 6 August 2004, she attended a disciplinary meeting held in HR and was advised that it was in relation to two instances of sick leave. No specifics regarding dates were forthcoming at the formal meeting and the meeting was substantially adjourned until specifics became available. She submits that on 19 August 2004, she received selective, edited minutes of the meeting by e-mail and could not concur with HR regarding the accuracy of the minutes in terms of what had been discussed. A short period after the minutes were presented, HR informed her that the disciplinary meeting/hearing was substantially about two half days uncertified sick leave.
3.4 She submits that after being informed of these two instances, an outcome meeting took place in HR. She was presented with a letter and informed that she was being issued with a verbal warning. She submits that the harshest possible punishment was delivered to her for her first disciplinary offence in almost 6 years working for the respondent. No mitigating circumstances were tolerated by the respondent and she submits that it was victimisation under the Equality Acts.
3.5 The complainant submits that in January 2005, she received no increase to her salary which she submits was due to the negative appraisal, written and signed off by Ms. E who left the company in November 2004. She submits that the appraisal was sent to her by e-mail on 18 January 2005, a day before review date. She submits that on 21 January, her Manager advised her that she had yet again to attend a disciplinary meeting with HR regarding sick leave. She submits that she had an accident while on holidays at the end of 2004 and she suffered injuries to her leg. She was certified sick by her doctor for two months and she returned to work on 5 January 2005. She submits that during her sick leave, her employer asked her to attend an Occupational Specialist which she did.
3.6 The complainant submits that when she was absent with stress, she was continuously harassed by the respondent, with couriered letters being sent to her home on a regular basis. She submits that with the harassment and victimisation she was suffering, she was left with no option but to resign.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent denies that it victimised the complainant during her employment whether by way of a campaign or otherwise. The complainant tendered her resignation from the respondent by e-mail dated 7 November 2005 following a meeting that morning with Mr. C of the respondent's HR department at which Mr C informed her that voluntary redundancy would not be a possibility. The respondent accepted the complainant's resignation by e-mail dated 7 November 2005.
4.2 All accusations or complaints made by the complainant have been investigated thoroughly in line with the respondent's internal policies. With respect to the two half day absences referred to by the complainant, the complainant had a meeting with her line managers in June 2004 at which her absenteeism levels were outlined. It was raised specifically in relation to them being in breach of the required levels of both certified and uncertified absence. Company policy provides for disciplinary action where the employee exceeds three instances of uncertified absence and five instances of certified absence within a 12 month period from the occurrence of the first instance. At the meeting, the complainant was formally advised of her absence levels for the previous 12 months and reminded of the policy requirements.
4.3 The subsequent disciplinary process was undertaken in August 2004 when the complainant had further uncertified absences despite the aforementioned meeting regarding her uncertified absence levels. The process undertaken with the complainant was held in accordance with the respondent's internal policy and procedures and the respondent refutes the suggestion that same was not based on fair principles and due process. It is the case that the complainant was treated no differently in relation to her absences than any other employee would have been in similar circumstances. Indeed two of the employee's colleagues in the Trustees unit were disciplined in July of 2004 on the basis of the same absenteeism policy breaches. The complainant had the right to appeal the decision but elected not to do so.
4.4 The fact that the complainant was on certified absence is not in dispute as was validated by Dr. D, an occupational health therapist nominated by the respondent. The complainant was asked to attend Dr. D given her frequent absences, 68 days in 2002, 49 in 2003 and 33 (as of the date of scheduling the appointment) in 2004. Although the respondent sympathises with the complainant's discomfort as a result of her injury, it did not feel that this was reason enough to postpone the initiation of the disciplinary process particularly as the complainant had been certified as fit to return to work.
4.5 When the complainant was certified absent because of stress, the respondent endeavoured to have her visit Dr. D to better understand what could be done to alleviate her situation. The respondent denies that such correspondence could be regarded by any reasonable person as harassment. On the contrary, the respondent was committed to providing the complainant with the required support for her successful return to work.
4.6 In relation to the complainant's move to the Luxembourg team within the Trustees Department, movement across teams is standard within the Trustees Unit to ensure that staff can improve their knowledge and provide greater levels of cover. Contrary to what the complainant asserts, Luxembourg funds are regarded as more complex given the regulatory environment, and as such would exercise her experience. In relation to the internal transfer of a colleague, a number of individuals of which the complainant is one, have successfully transferred into the Trustees Unit from other areas within the respondent. Any individual transferring into the Unit would be provided with the training to ensure that he/she would contribute in an effective manner. The internal transfer in no way limited the complainant's opportunities for promotion and/or advancement as the sole criterion for same is performance.
4.7 The respondent denies that specifics were not made available at the meeting on 6 August 2004. The complainant queried the dates and these were subsequently reconfirmed to the complainant. The respondent submits that it was entirely appropriate for the complainant's absences to be queried. Nor is it unusual or unreasonable for an employer to have requirements in place with respect to how absences should be certified. The respondent denies that the outcome of the process was "pre-determined". The decision was reached following a full investigation and the complainant was advised of her right to appeal which she chose not to pursue.
4.8 The respondent denies that the 2005 performance appraisal amounts to victimisation. The complainant did not receive a salary increase because of her rating. The timing of Ms. E's departure is of no relevance as the appraisal is prepared in consultation with the employee's immediate manager and is signed off by the manager of the person who prepared the document.
4.9 The respondent submits that the reason the complainant's career did not progress as she would have wished was due to deficiencies in her performance which were identified in a reasonable and fair manner. It submits that the complainant was treated no differently than any of her colleagues would have been in the circumstances. The fact that the complainant had taken a case to the Equality Tribunal had no bearing on the actions taken by the respondent.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that she was victimised within the meaning of section 74(2) of the Employment Equality Acts 1998 and 2004 arising from earlier equality proceedings taken by her. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
5.2 Section 74(2) of the Employment Equality Acts 1998 and 2004 provides, inter alia, that "victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer.
(b) any proceedings by a complainant.
(c) an employee having represented or otherwise supported a complainant.
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act.
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act of 2000 or which was unlawful under any such repealed enactment. or
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment. or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs."
The complainant referred complaints to the Equality Tribunal on 8 May 2003. Decisions in relation to her claims issued on 29 July 2005 and 26 September 2005. On 15 May 2006, the Labour Court issued a Determination in respect of the appeal of the decision in the equal treatment case.
Transfer to the Luxembourg team
5.3 The complainant submits that she was transferred to the Luxembourg team in April 2004 as a result of taking an earlier case against the respondent. She submits that she was moved sideways to a team that would not exercise her full potential. The complainant commenced work with the respondent on 2 January 1999 and subsequently in April 2001 applied for a post in the Trustee Department where she worked on the open-ended Dublin regulated funds team until her transfer to the Luxembourg team in March 2004. She submitted that new employees would start on the Luxembourg team or the closed ended team. The respondent submitted that the Luxembourg team comprised a cross section of people with varying degrees of experience. It submitted that the decision to transfer the complainant was made following discussions between the Section Manager, Ms. E and the Team Manager, Ms. W but that there were no notes in respect of the conversations regarding the transfer. Ms. W submitted that at the time of the complainant's transfer, there were new staff on the Luxembourg team and the complainant had a wealth of experience and her transfer was also made to arrange backup for cross training purposes. It submitted that it did not have a written policy on the transfer of employees from section to section and that once someone has completed twelve months in a section, a transfer was possible by agreement between employee and Manager. It submitted that if there was no agreement, there was no transfer. It also submitted that the Luxembourg team had been used as a starting team when people commenced their employment but that the policy had changed. The complainant submitted that it was not her understanding in relation to the transfer that she had a choice and she did not consider nor was she informed that she had a choice in accepting the transfer. The complainant's position both before and after her transfer was Senior Service Representative.
5.4 At the time of the complainant's transfer to the Luxembourg team in March 2004, there was four other staff. Two of the staff commenced work in the section in January and February 2004, one commenced in June 2003 and one commenced in May 2000. There was therefore a mixture of experienced and inexperienced personnel on the Luxembourg team. Whilst the respondent submitted at the hearing that there was no written policy in relation to transfers, it subsequently provided the relevant extract from the staff handbook (no date on document provided) in relation to transfers. The transfer details in the handbook refer to Employee Initiated Transfers and Citigroup Initiated Transfers. The latter was applicable to the complainant as she did not request a transfer. The handbook refers to three types of company initiated transfers, (i) career development transfers, (ii) critical skills transfers and (iii) performance related transfers.
5.5 In relation to career development transfers, the handbook states that the Manager will discuss the possibility of a move and the reasons behind it in full with the employee. If the employee wishes to proceed with the transfer, then the transfer process will continue. It further states that the Manager, Business Manager and HR Specialist will share responsibility for identifying a suitable position for the employee and when a suitable assignment has been identified, the employee will be interviewed for the position. The complainant submitted that she was not given a choice in relation to her transfer and taking into account that the respondent has no notes of conversations between the Managers or with the complainant in relation to her transfer, I accept the complainant's evidence on this matter. No evidence was submitted by the respondent that a discussion with the HR Specialist took place and a decision to transfer the complainant was made by the Section Manager and the Team Manager.
5.6 A Critical Skills Transfer is also referred to in the employee handbook whereby a department requests the services of a particular employee. In such circumstances, the Business Manager and the employee must agree to the transfer and then a formal interview takes place. The evidence presented does not support a transfer on the basis of a Critical Skills Transfer. The handbook also refers to Performance Related Transfers following or as a consequence of disciplinary action. At the time of the complainant's transfer, no disciplinary action had been taken. It does not appear that the complainant's transfer fell into either of the latter two categories and it was also not in compliance with the first category of company initiated transfers as the complainant was not given a choice and there was no evidence of a discussion between the Manager, Business Manager and HR Specialist in relation to identifying a suitable position for the complainant and she was not interviewed. The complainant's earlier complaints to the Tribunal were made on 8 May 2003 and a preliminary hearing in relation to both complaints took place on 4 February 2004. On the balance of probabilities and taking into account all the evidence presented including that the respondent has no notes in respect of discussions in relation to the complainant's transfer, that it was not in accordance with the employee handbook and the proximity in time to the complainant's earlier equality proceedings, I find that the complainant was victimised in relation to her transfer to the Luxembourg team.
Issue of sick leave and disciplinary process
5.7 The complainant submits that on 6 August 2004, she attended a disciplinary meeting in relation to two half days sick leave and was subsequently on 24 September 2004 given a verbal warning in relation to her absences. The respondent submitted that the complainant had a meeting with her line managers in June 2004 at which her absenteeism levels were specifically outlined. It submitted that at that meeting, she was formally advised of her absence levels for the previous twelve months and reminded of sick leave policy requirements. A copy of an e-mail sent to the complainant at that time advised her that for the year ended 24 May 2004, she had 6 instances of uncertified and 4 instances of certified absence. Company policy on sick leave provides for disciplinary action where an employee exceeds three instances of uncertified absence and five instances of certified absence within a twelve month period from the occurrence of the first instance. The respondent submitted that it undertook the disciplinary process when the complainant had further uncertified absences and that the complainant was treated no differently in relation to her absenteeism than any other employee would have been in similar circumstances. It further submitted that two of the complainant's colleagues were disciplined in July 2004 on the basis of the same absenteeism policy breaches.
5.8 The respondent's policy in relation to sick leave and illness (undated) states that if an employee is absent for short periods, especially for unrelated illnesses, the Manager must be satisfied that the absences are for genuine illness. If the employee fails to provide adequate evidence of sickness or if the Manager has good reason to believe that the absences are not due to genuine illness, the Manager may refer the employee to the Occupational Health Physician. It further provides that the disciplinary procedure may follow and sick pay may be withheld as a result. The respondent's sick leave records for the complainant as presented in evidence indicate that the complainant had 68 days sick leave in 2002, 49 days sick leave in 2003 and 21.5 days sick leave to the end of November 2004. The respondent provided a copy of an e-mail sent to the complainant on 13 August 2002 which stated that in the period from December 2001 to August 2002, the complainant had 4 instances of sick leave (approximately 50 days). The complainant was further advised in that e-mail that in accordance with company policy, any combination of certified and uncertified sick leave above 4 instances would result in disciplinary proceedings and any additional instances in her case would result in disciplinary proceedings. It was not until August 2004 that the complainant was invited to attend a disciplinary meeting in relation to her sick leave and she was subsequently given a verbal warning on 24th September 2004. By letter dated 20 January 2005, the complainant was also invited to a disciplinary meeting on 25 January 2005. The letter states that the meeting is called as a follow up to her recent absenteeism. At the meeting, she was given a first written warning.
5.9 The respondent submitted at the hearing that the complainant had been referred to the company doctor on numerous occasions. It later clarified by letter dated 29 June 2007 that it was not aware of any other dates of referral to medical personnel other than 29 September 2003 and 22 November 2004. The evidence presented does not therefore support the contention that the complainant was referred to the company doctor on numerous occasions prior to referring her to an Occupational Health Specialist as submitted at the hearing. An appointment with Dr. K, the company doctor, actually took place on 2 October 2003. I did not receive a copy of any report by Dr. K. The complainant's appointment with the Occupational Health Specialist took place on 2 December 2004. Dr. D's opinion in December 2004 was that the complainant was medically unfit to resume work until such time as a wound on her leg had healed. Another appointment was made for the complainant with Dr. D for 25 July 2005 which she did not attend.
5.10 The respondent provided evidence in relation to three other employees who were disciplined arising from their sick leave absence record. Employee A was issued with a verbal warning with effect from 12th August 2004 arising from 6 instances of certified and uncertified sick leave. The respondent clarified that he commenced employment on 3 May 2000. Employee B was issued with a verbal warning on 12 August 2004 arising from 11 instances of sick leave absences. Employee B commenced employment on 22 October 2002. Employee C was issued with a warning on 19th November 2004 arising from 8 instances of sick leave. Employee C commenced employment on 16 February 2004. The respondent clarified by letter dated 19 July 2007 that Employee A had 6 days uncertified absences for the 12 months prior to November 2003 which constituted 4 instances and Employee B had 21.5 days in the period to November 2003 which constituted 10 instances. It also clarified that Employee C had a total of 22 days absence in the period between February and November 2004 which constituted 8 instances. It further submitted that the respondent having perceived there to be an absence problem over the years started to address the problem, effectively for the first time in 2004.
5.11 Employee A, B and C at the times that they were disciplined in August and November 2004 had 6, 11 and 8 instances of sick leave respectively. Employee B who had the most instances of sick leave when he was disciplined in August 2004 had at that stage been in the employment of the respondent for almost two years. The complainant's first disciplinary meeting in relation to her sick leave took place on 5 August 2004. At the end of July 2004, she had 20 instances of sick leave amounting to 132 days and she had been in the employment of the respondent since 1999. It appears that as early as August 2002, disciplinary proceedings could have been commenced against the complainant as she had at that stage five instances of sick leave absences. However, no disciplinary action was taken against her until August/September 2004 and the explanation provided by the respondent for the delay in issuing proceedings against her was that the respondent started to address the problem of absenteeism for the first time in 2004.
5.12 The documentation provided by the respondent indicates that disciplinary proceedings were not necessarily commenced when an employee had in excess of four instances (certified or uncertified) of sick leave in accordance with the respondent's attendance policy. In 2004 when the respondent commenced disciplinary proceedings against the complainant in respect of her absenteeism record, it also commenced disciplinary proceedings against other employees with varying numbers of sick leave instances. I find that the complainant has failed to establish a prima facie case of victimisation in relation to disciplinary proceedings in respect of her sick leave record. On 22 November 2004 after disciplinary proceedings had been instituted against her, the complainant was advised that an appointment had been made with the Occupational Health Specialist for 2 December 2004. I must point out that it is of concern that the respondent commenced disciplinary proceedings against the complainant prior to referring her to an Occupational Health Specialist and it does not appear to have considered the provisions of the Employment Equality Acts, in particular whether the complainant's illnesses may have amounted to a disability within the meaning of the Acts.
5.13 The complainant also refers to not receiving her increment in January 2005 and attributes the non payment of her increment to a negative appraisal signed off by the Section Manager, Ms. E. The respondent submitted that the complainant did not receive a salary increase because of her rating. In the letter confirming the verbal warning received by the complainant on 24 September 2004, she was advised that the warning would remain active on her file for a period of 6 months. It further stated that during that period, she would not be entitled to a transfer, promotion, salary increase or amendment to her current benefits. I note that the employees disciplined in August and November 2004 were similarly advised in relation to salary increases. It therefore appears to be the case that the reason that the complainant did not receive an increment in January 2005 was due to the disciplinary proceedings against her.
5.14 In considering an appropriate award for victimisation, I have had regard to the very serious nature of victimisation particularly in terms of its potential to undermine the effectiveness of the equality legislation.
6.1 I find that the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts 1998 and 2004 in relation to disciplinary proceedings arising from her sick leave record.
6.2 I find that the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Act, 1998 in relation to her transfer to the Luxembourg team in March 2004.
6.3 In accordance with section 82 of the Act, I hereby order that the respondent:
(i) pay to the complainant the sum of €10,000.00 compensation in respect of the act of victimisation (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income).
9 August 2007