Equality Officer's Decision
Rosa Maria Rosello Vila
Lionbridge Technologies (Ireland) Ltd.
File reference: EE/2006/040
Date of issue: 15th December 2008
1.1 This dispute concerns a complaint by Ms Rosa Maria Rosello Vila against Lionbridge Technologies (Ireland) Ltd. The complainant was employed by the respondent as a Temporary Linguistic Software Test Engineer on a two month contract to test software games at their Ballina, Co. Mayo site. She commenced employment on 18th July 2005 and her contract was terminated on 12th August 2005. The complainant alleges that during her period of employment she was discriminated against and harassed on the grounds of age contrary to the Employment Equality Acts 1998 to 2008.
1.2 The complainant referred her complaint under the Employment Equality Act 1998 (as amended) [hereinafter referred to as 'the Act'] to the Director of the Equality Tribunal on 14th February 2006. In accordance with her powers under Section 75 of that Act, the Director delegated the case on 28th May 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a joint hearing was held on 25th August 2008. The final piece of correspondence was received from the complainant on 29th August.
2. Summary of the complainant's case
2.1 On the day after commencing employment, the complainant met with Ms. A, the Human Resources Manager. During this meeting Ms. A requested the complainant's date of birth as she was assisting the complainant in filling out a form. The complainant responded 1970 which Ms. A wrote down as 1960 and the complainant had to correct her. The complainant alleges that this shows an inordinate interest in the complainant's age as her date of birth was already stated in her curriculum vitae.
2.2 On 5th August the complainant attended a meeting with Ms. A where she was dismissed with one week's notice. The reason given was because her English was not good enough. The complainant submits this was not the real reason. Ms. Rosello Vila maintains that is was because she was older than many of her colleagues. The complainant submits that there were frequent commentaries about the various ages of people. It reminded the complainant of a time she had previously been bullied.
2.3 The complainant maintains that her English was at the same level as her other colleagues. The complainant submits that Mr. D, a housemate and colleague said about the complainant three weeks after her commencing employment at the end of a workday to other workmates ' I don't understand why they [referring to the respondent] don't want her'.
2.4 After she had been dismissed various people commented to her that her English was more that adequate for the role. The complainant submitted a certificate obtained in April 2005 from Eden School of English, Dublin which classifies her level of English as intermediate.
2.5 The complainant acknowledges there were some performance issues but argues this is because of technology failures in the equipment provided to her by the company.
2.6 On the evening of her dismissal there was a company barbecue. At the barbecue the complainant alleges Mr. B, her Senior Project Manager, gave her a disdainful look.
2.7 Over the weekend after the barbecue and following the complainant's meeting regarding her dismissal, the complainant submits she overheard a conversation between two colleagues, Mr. C and Mr. D with whom she also shared a house. She alleges that Mr. C said to Mr. D 'she has been dismissed; Mr. B said to me that she was too mature'. The complainant alleges that Mr. C said 'Ms. E says that she is over 40, but her birthday was last week and she turned 35'.
2.8 The complainant states she did not mention her issues of discrimination during or immediately after the termination of her employment as she was trying to gather facts about her case.
2.9 The complainant referred to Dublin Airport Authority, Shannon Airport Authority (formerly Aer Rianta CPT ) and Omar Khatimy in which the Labour Court held:
In the Court's view the mere production by an employer of a policy statement of the type relied upon by the Respondent is insufficient to avoid liability for a subsequent act of harassment of one employee by another. In order to avail of the defence under either Section 32 (6) or Section 15(3) of the Act, the employer must satisfy the Court that it took practical steps to disseminate the content of the policy amongst employees and impress upon them the imperative of observing its terms.
3. Summary of the respondent's case
3.1 The respondent maintains that good English is a necessity for this role. The complainant's curriculum vitae describes her reading, written and verbal English as excellent, excellent and good. The respondent submits that this was not their experience.
3.2 The complainant received induction training on her first day including information on the respondent's 'Dignity and Respect at Work' policy.
3.3 Regarding the confusion over the complainant's date of birth, the respondent submits that the complainant was required to fill out an employee start form which include details such as PPS number, date of birth, paypath details etc. According to Ms. A, the Human Resources Manager, the complainant had difficultly in filling out this form as her English was not good enough. Ms. A maintains that she filled out most of the form for the complainant. This form is submitted as documentary evidence. As part of this, Ms. A asked the complainant her date of birth. Ms. A misheard her initially and denies it was a sign of an ageist assumption.
3.4 The respondent submits that performance issues became apparent with the complainant's work. Mr F, the Senior Engineer to whom the complainant reported sent an email highlighting his concerns to his supervisor Mr. B on 27th July 2005. The email stated '...It is also my impression that her spoken English is not great and she seems to have difficulty following my general instructions to the team'. This email was forwarded to Ms. A. The respondent submits that Mr. F also mentioned his concerns about the complainant's performance to the complainant.
3.5 The respondent maintains that there was no improvement in the complainant's performance. Following discussion with Mr. B, Ms. A decided to terminate the complainant's contract of employment. She dismissed the complainant on 5th August 2005 giving one week's notice. The complainant did not voice any concerns or objections at this meeting. The complainant attended the company barbecue on that night. According to Ms. A, she seemed in good spirits.
3.6 The respondent denies that the complainant was ever harassed during her employment by any member of the company or that the complainant made any allegations of same during or within six months of the termination of her employment.
3.7 The respondent rejects the allegation that the complainant was discriminated against on the grounds of age. It states that is not in the respondent's interest to be ageist in the recruitment and retention of employees. It submits a table of dates of birth of the people employed on the same project as the complainant. As the complainant was born in 1970, the complainant is the oldest by two years. There were two people who were born in 1972, one in 1973, one in 1974, two in 1975, two in 1977, two in 1978, one in 1979, one in 1981 and two in 1983. Mr. D and Ms. E, who the complainant alleges were making comments about her age, were like Ms. Rosella Villa in their 30s.
4. Conclusions of the Equality Officer
4.1 The two issues for me to decide
(i) Was the complainant discriminated directly or indirectly on the grounds of age in terms of Section 6 of the Act?
(ii) Was the complainant harassed on the grounds of age in pursuant to Section 14 of the Act?
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is age. Section 14 (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds in the Act and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gesture or the production, display or circulation of written words, pictures or other material.
4.3 Section 85A of the Employment Equality Acts 1998 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 The complainant specifies three instances which she maintains contributed to her feeling harassed on the grounds of her age. The first instance regarding the confusion over the complainant's date of birth on her start form is detailed at Section 2.1 and 3.3. I find the respondent's evidence more compelling in relation to this incident. I accept Ms A's contention that she simply misheard the complainant and that it is not indicative of discrimination on the grounds of age.
4.5. In relation to the second instance detailed at 2.6, Mr. B denies giving the complainant a disdainful look. In the third instance, the complainant alleges she overheard a conversation between two of her work colleagues with whom she also shared a house. The conversation took place in this house during a weekend. It should be noted that the respondent does not provide accommodation to employees. Mr. B denies saying to Mr. C that he thought the complainant was too mature to work in Lionbridge Technologies Ltd. At the hearing, I asked Mr. B how well he knew Mr. C. Mr. B was a Senior Project Manager and therefore four levels higher than Mr. C in the company hierarchy and as Mr. C was a recent recruit to the firm Mr. B only knew him on a cursory level. Therefore, on the balance of probabilities, I find it unlikely that Mr. B would make such a comment. As Mr. C was not at the hearing, I cannot say whether he would attribute such a comment to Mr. B. In response to Mr. C, the complainant alleges Mr. D said 'Ms. E says that she is over 40, but her birthday was last week and she turned 35'. Again Mr D was not present at the hearing and, therefore, I cannot establish whether or not he made this comment. However, I do not find that this is a discriminatory remark; it is a factual statement.
I have concluded my investigation of Ms. Rosello Villa's complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998-2008. I find that
(i) the complainant has failed to establish the facts from which it may be presumed that there was discrimination on grounds of age in relation to her
(ii) she has failed to establish the facts from which it may be presumed that she was harassed on the grounds of age.
Therefore I find against the complainant.
15 December 2008