THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-026
(represented by Ciara O’Day B.L. instructed by Ó’ Scanaill and Co. Solicitors)
Liberty Mutual Insurance Europe Limited
[trading as Liberty International Underwriters Limited]
(represented by Conor Power B.L. instructed by McCann Fitzgerald Solicitors)
Keywords: Employment Equality Act, Gender, Family Status, Discriminatory treatment, No prima facie case
1.1. The case concerns a claim by Ms. Caroline Slevin that Liberty Mutual Insurance Europe Ltd, discriminated against her on the grounds of gender and family status contrary to Sections 6(2)(a) and (c) of the Employment Equality Act 1998 [hereinafter referred to as ‘the Act’], regarding her conditions of employment. At the hearing, the complainant withdrew her claim of victimisation in terms of 74 (2) of the Act.
1.2 Through her legal representative, the complainant referred a complaint under the Act to the Director of the Equality Tribunal on the 12th September 2006. On 7th November 2008, in accordance with her powers under Section 75 of the Act, the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. Submissions were received from both parties and a joint hearing was held on 28th January 2009 as required by Section 79(1) of the Act. The last piece of correspondence relating to the complaint was received on 24th March 2009.
Summary of the complainant’s case
2.1. The complainant began employment with the respondent on the 9th April 2001 as a Personal Assistant to both the Managing Director and the Financial Director. There was a company reorganisation in the following year and both the Managing Director and the Financial Director (Mr. A) were transferred to the London office. Ms. Slevin was placed in the Casualty Underwriting team as a Sales/Underwriting Assistant. Her duties entailed dealing directly with brokers as well as providing administrative support to the Underwriters.
2.2. On 2nd May 2003, prior to leaving on maternity leave, Ms. Slevin had a meeting with Mr. A. She requested that she return to work on a shortened working week when her maternity leave expired. The respondent stated that it could not do without a person in the position of the complainant on a daily basis and, therefore, offered her a shorter working day. The complainant submits that it was agreed that Ms. Slevin would work 25 hours per week starting at 10:00 a.m. and finishing 3:00 p.m. In her written submission, the complainant said it was agreed with Mr. A that she was allowed a 15 minute lunchbreak.
2.3. Ms. Slevin returned to work on 7th October 2003. Her complaint refers to events from this date. According to the complainant, on her first day back Mr. B (her line manager) advised her that she would be obliged to take a lunchbreak of a minimum of 30 minutes because of health and safety requirements. Ms. Slevin submits that she informed the respondent that a lunch break was not compulsory unless she worked in excess of 6 hours. She maintains that Mr. B asked her whether she wanted to cause trouble for Mr. A who had arranged the new work-pattern for her. She submits that Mr. B said to her that her replacement while she was on maternity leave received the same remuneration working on a full-time basis as Ms. Slevin did on a part-time work pattern. The complainant submits that she found being confronted with such issues distressing on her first day back at work. The complainant did independent research to find out the correct position as detailed in an email from a member of the Human Resources team in London in response to Ms. Slevin dated 7 October 2003: “…Anyway I found the Department of Enterprise, Trade and Employment ‘Organisation of Working Time Act, 1997’ and you are correct that a 15 min break is all that is needed over a 4.5 hour period of working.” It was ultimately agreed that Ms. Slevin would be allowed to take her desired break of 15 minutes.
2.4. Ms. C was the only other person on the complainant’s team that worked on a part-time basis. Ms. C assisted in training up the complainant in her role in the Casualty Underwriting team. Shortly after the complainant’s return to work, the complainant submits that she and Ms. C were told that they could no longer have a coffee break together at 10:30 a.m. as the complainant was only taking a 15 minute lunch. The complainant submits that what the respondent calls a ‘coffee break’ did not constitute ‘time out’ from her work. It consisted of waiting while the kettle boiled, discussing work matters only and returning to their respective desks with their hot drinks. The complainant submits that this made her feel victimised as others were free to boil the kettle at any time during the working day.
2.5. The complainant maintains that one of the Senior Underwriters was picking on her by being overly-pedantic and setting unrealistic deadlines for work that was not urgent. According to Ms. Slevin, he also used to make snide remarks about English people (Ms. Slevin is a British national) and then apologise to the complainant on the basis that he forgot her nationality.
2.6. The respondent hosted various events for insurance brokers in the evenings. The complainant submits that some these were organised at such short notice that she was unable to make childcare arrangements in order to be able to attend. She also said that she was not invited to some of them. As a result, Ms. Slevin maintains that she felt ostracised and treated as if she was not a team-player.
2.7. In 2004 Ms. Slevin became pregnant again. Because her pregnancy was difficult, she submits that her performance at work was not up to the usual high standard that she sets for herself. At a later stage (her review in January 2006 after she returned from maternity leave) the complainant maintains that Mr. B said that her attitude during her second pregnancy was terrible and that if it had not improved upon her return to work she would have been fired. Ms. Slevin submits that this implies that if she was not pregnant they would have terminated her contract.
2.8. Approximately six weeks prior to Ms. Slevin’s return from maternity leave after her second child, the complainant met with Mr. B to discuss arrangements for her return to work. The complainant submits that Mr. B informed Ms. Slevin that she was to be separated from Ms. C. According to the complainant, Mr B requested that she drop into his office to greet him when she started work in the morning and left in the evening. Ms. Slevin maintains that he also asked her not have breakfast at her desk but to commence work immediately. The complainant submits that this statement implied that she had a problem with timekeeping which she stated was not the case. According to the complainant, others frequently had breakfast at their desks. She also maintains that it shows the respondent was determined to make her position uncomfortable with the aim of forcing her to resign.
2.9. In October 2005, the complainant sought to be allowed a more flexible work arrangement. According to the complainant, Mr. B was not receptive to this and instead requested that Ms. Slevin work an extra hour. This did not suit Ms. Slevin for family reasons. She maintains that she said to him that she would think about it. This issue was not brought up again. However, the complainant maintains that she felt under pressure.
2.10. In June 2006, the complainant notified the respondent of her intention to take six weeks parental leave. She did not receive a final response on whether she could take it in August or not. According to Ms. Slevin, she instead received a letter informing her that there was a change to the company sick leave policy and that as she had three periods of certified sick leave within the last 12 months further absences would be treated as unpaid leave. The complainant submits that this was always the policy while she was working there but that only she and Ms. C were informed of this ‘change’. According to Ms. Slevin, there was a male underwriter who had more than three periods of sick leave in a year and this issue was not raised with him. The complainant submits that this was discriminatory on the grounds of gender and family status.
2.11. In August 2006, Ms. C requested a week off and the complainant submits that she was told that Ms. Slevin would be on parental leave. The complainant submits that this was a complete surprise to her as she had not been informed that she could take parental leave at that time.
2.12. The complainant submits that some of the comments that Mr. B made in his preparation for appraisal in January 2006 were too personal and did not focus on her work performance e.g. ‘Getting involved in other people’s business – earwigging and interrupting business conversations she has no role in’ and ‘At present I am largely happy with her output but find her approach frustrating and distracting’. The complainant submits that the bullet point ‘Distracting behaviours in the office. Distracts other people – essential to improve this if part-time is to continue’ shows Mr. B’s dissatisfaction at the complainant working part-time. Ms Slevin worked part-time because of her family status as a parent and, therefore, she contends this remark is discriminatory.
2.13. In August 2006 Ms. Slevin resigned. According to the complainant, Mr. B said that he was sorry to she her go and that he would happily re-employ her. She submits that she did not make a formal complaint until this time as she ‘did not want to rock the boat’. She submits that she was also advised, on an off-the-record basis, by somebody senior in Liberty Mutual Insurance Europe Limited that her issues would not be taken seriously if she made a formal grievance. At her exit interview with Mr D, her Branch Manager, the complainant outlined many of her concerns. The complainant submits that these issues were not taken seriously as Ms. E, the Human Resources Manager, did not contact her subsequently.
2.14. Ms. Slevin submits that the emails from Mr. B offering the reference, suggesting a career in event management as she was good at it was after her exit interview with Mr. E so that he was ‘trying to keep her sweet’ as he knew she had consulted her solicitor.
Summary of the respondent’s case
3.1 The respondent denies all charges of discrimination. It submits that it offered the complainant and she accepted a shorter working day on return from her first maternity leave. Liberty Mutual Insurance Europe Ltd. states that the complainant was not the only employee given this flexibility. Ms. C who continues to be employed in the Dublin office works on a part-time basis as does one other person there. According to the respondent, this as well as paying the complainant in full for both periods of maternity leave is representative of its family-friendly ethos.
3.2 Regarding the lunchbreak issue, the respondent submits a note written by Mr. B from Ms. Slevin’s personnel file dated 7th October 2003. According to the note, Ms. Slevin approached Mr. B to say she was not happy with taking a 30 minute lunchbreak as recommended in the company handbook because it reduces her take-home by about 10%. According to this record by Mr. B of the meeting, Ms. Slevin expressed the view that she did not like the way she was advised of this upon her return rather than formally being agreed before she went on maternity leave. In the note, Mr. B states that he responded to the complainant by pointing out there may have been health and safety implications particularly regarding employees who use computer screens but that Liberty Mutual Insurance Europe Limited was trying to be as flexible as possible to accommodate her in her request for part-time hours.
3.3 Before her departure on maternity leave with her second child, the respondent submits that Ms. Slevin’s work performance had deteriorated. This is something the complainant acknowledges in her submission. In his email to his team informing them when Ms. Slevin would be returning to work, Mr. B outlined the difficulties that he had with the complainant’s work prior to going on maternity leave ‘I have also set out that this year there will be no room for persistent chattering about non-work items as this was a problem last year.’ He also decided to separate her and Ms. C. While there was some criticism of the complainant in Mr. B’s preparation for 2005 appraisal (January 2006) there was also praise: “She has done a good job getting the department’s diary and chase up to speed”.
3.4 On 8th April 2005 the complainant was diagnosed with post-natal depression. The respondent submits as evidence an email that was sent from Mr B to Ms. E, the Human Resources Manager on 20th June 2005:
Caroline Slevin has unfortunately been signed off sick for this week. Caroline is suffering from post-natal depression. She has been fine at work and tells me that being back is helping her, but her oldest son has broken his collar bone (aged 3) last week, and this has necessitated Caroline being off as he cannot go into crèche.
In addition to making you aware of Caroline’s condition in case you think it prudent that we put any special arrangements into place for her, I want to clarify what the protocol should be when an employee asks for unpaid leave.
Caroline called last week to ask if she could go into unpaid leave rather than use holidays.
Also submitted as evidence is an email dated 17th August 2005 where the complainant specifically thanked Mr. B for being understanding about her post-natal depression. The respondent submits that this is in total contrast to the picture now painted by the Complainant that Mr. B discriminated against her.
3.5 The complainant requested more flexibility regarding her working hours in
October 2005. The respondent submits that it did consider her request but also suggested an alternative of a 12:00 p.m. to 5:00 p.m. working day as detailed in an email exchange between the complainant and Mr. B on the 19th October 2005. The respondent maintains that this demonstrates that the complainant is wrong to suggest that the respondent wished her to work an extra hour until 4:00 as claimed in her submission. The respondent also submitted as written evidence that Ms. Slevin she admitted she was late on a number of occasions in this request for a change in her working pattern. The respondent submits that this is in direct contradiction to her written submission where the complainant states that ‘Punctuality and timekeeping have never proven difficult for me in any job’.
3.6 The respondent submits that it was still considering the complainant’s intention to take parental leave when she resigned. Regarding sick leave, the respondent contends that it was following procedures as per its employee handbook. According to the respondent, the male employee that the complainant names as having three incidents of sick leave had personal issues that was impacting on his work performance. The respondent states that this was a situation Mr. B was managing.
3.7 The complainant resigned on 21st July 2006. The respondent submits that it understood the resignation to be on the basis of personal reasons. Farewell drinks were organised by the respondent for Ms. Slevin. Given the complainant’s resignation in July 2006, the respondent maintains that it is difficult to believe that (as the complainant asserts in her submission) that Ms. C was told in August 2006 that the complainant would be on parental leave for that month.
3.8 An exit interview was held between the complainant and Mr. D, her Branch Manager, on 2nd and 3rd August 2006. According to the respondent, this was the first time concerns such as not feeling part of the team, being made feel small and the lunchbreak issue were raised. The respondent submits that Mr. D offered the complainant the opportunity to speak with Ms. E, the Human Resources Manager and that Ms. Slevin was to revert on this.
3.9 The respondent submits that if the complainant did not wish to bring the issues mentioned in the exit interview to anybody in the Dublin office prior to her resignation she could have raised them with Mr. A to whom she was formerly a P.A.
3.10 Regarding the social events, the respondent submits that the complainant showed no interest in attending them before she had children. The respondent denies she was ostracised as a result of her non-attendance. According to evidence given by Mr. B, there were a few events where it was not appropriate for the complainant to attend. An example was a performance of Riverdance where only high-value clients, the appropriate underwriters and their respective spouses were invited.
3.11 The respondent submits that all employees are free to boil the kettle at any time during the working day. Following a complaint by their receptionist about the loud laughter emanating from the kitchen, Mr. B did raise this issue with the complainant and Ms. C. Neither the complainant nor Ms. C responded negatively to the request not to have a formal coffee break together.
3.12 Regarding asking the complainant to drop in the morning and evening, the respondent maintains this was an attempt to be sensitive to the complainant’s post-natal depression. The respondent submits that there was a general rule within the Casualty team regarding not eating breakfast at desks but that is not to say it was always adhered to. However, the respondent contends that other employees were also asked not engage in this practice.
3.13 In response to the complainant’s submission that one of the underwriters made racially offensive remarks to Ms. Slevin, Liberty Mutual Insurance Europe Limited state that she never raised a grievance at the time. The respondent submits that the complainant was usually assertive about raising concerns. For example, she pursued the lunchbreak problem during her first week back from maternity leave and often brought work issues to Mr. B’s attention.
3.14 The respondent submits that it accommodated the complainant as much as possible notwithstanding that it caused some operational difficulties and notwithstanding her own mediocre work performance. The respondent rejects the complainant’s retrospective reinterpretation of events.
Conclusions of the Equality Officer
4.1.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 grounds in this case are gender and family status. Therefore, the issue for me to decide is whether the complainant suffered discriminatory treatment in relation to her conditions of employment on the grounds of gender and family status. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. 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.
4.3 Regarding the lunchbreak issue (Paragraphs 2.3 and 3.2) the complainant and respondent agree generally on the facts of the incident. Ms. Slevin did not wish to take a 30 minute break as it would affect her pay. Liberty Mutual Insurance Europe Ltd. had concerns that a shorter break might be in breach of the health and safety legislation. Upon checking the relevant legislation, the respondent allowed the complainant to take the break she requested. Therefore, in relation to this incident, I do not find that the complainant was treated less favourably because of her gender and family status.
4.4 On the subject of the coffee break (Paragraphs 2.4 and 3.11) I find the respondent’s evidence, on the balance of probabilities, more compelling. I accept that the respondent asked the complainant and Ms. C to desist from taking a morning break together following a complaint from a member of staff about the noise levels emanating from the kitchen. I do not find this action discriminatory in terms of 6(1) and (2) and contrary to Section 8 of the Act. Similarly, I find the complainant’s evidence less credible than the respondent’s that she was singled out for eating breakfast at her desk.
4.5 Regarding the events organised for brokers (Paragraphs 2.6 and 3.10), the complainant said at the joint Hearing that she ‘could not remember’ whether she attended these occasions prior to having children. From this, I drew the inference that she generally chose not to go to these events at that time. I accept the respondent’s contention that there was not a business need for her to attend some of the high-level networking events. Consequently I do not find that the respondent treated her less favourably because of her gender or family status in relation to this issue.
4.6 Ms. Slevin submits that she felt micro-managed by Mr. B when he requested on her call into his office every morning and evening (Paragraphs 2.8 and 3.11). Mr. B maintains it was because he was concerned for her welfare because of her post-natal depression. Either way, I do not find this action, on its own, to establish a prima facie case of discrimination.
4.7 In relation to the complainant’s request for more flexible working hours (Paragraphs 2.9 and 3.5) there are discrepancies between the complainant’s submission and the written evidence submitted by the respondent. Regarding the complainant’s intention to take parental leave (Paragraphs 2.10 and 3.6), under Section 18 of the Parental Leave Act 1998 (as amended), a Rights Commissioner shall hear any dispute or difference between an employee and his or her employer relating to the entitlements of the employee under this Act. Therefore, it is the Rights Commissioner’s role to investigate whether there was any breach of this Act and I have no jurisdiction in this matter. I accept the respondent’s contention that it was considering whether to postpone parental leave or not when the complainant resigned. The complainant has not adduced any evidence that her proposal to take parental leave was handled in a discriminatory way by the respondent. Having read the employee handbook, I find that the respondent was implementing the sick leave policy in a fair and transparent manner. Accordingly, I make no finding of discriminatory treatment in this regard.
4.8 I do not accept that Mr. B’s statement at 2.12 is evidence of discrimination within the meaning of the Act. I am satisfied that he was frustrated at some aspects of the complainant’s performance at work rather than because she was a woman or a parent.
I have concluded my investigation of Ms. Caroline Slevin’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against her on the grounds of gender
(ii) the complainant has failed to establish the facts from which it may be presumed that she was discriminated on the grounds of family status.
Therefore I find against the complainant.
3rd April 2009