Employment Equality Acts
DECISION NO: DEC-E2012-080
(Represented by Ms. Cliona Kimber BL on the instructions of Harrison O'Dowd Solicitors)
Henry Denny and Sons (Ireland) Ltd
(Represented by IBEC)
File No. EE/2008/719
Date of Issue: 20 June 2012
Employment Equality Acts - Discriminatory treatment - Gender - Family Status - Disability - Discriminatory dismissal - Victimisation - Claim for equal pay - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Sinead Rohan (hereafter "the complainant") that she was subjected to discriminatory treatment and discriminatory dismissal by Henry Denny and Sons (Ireland) Limited (hereafter "the respondent") on the grounds of her gender, family status and disability. Furthermore, the complainant claims that she was denied equal remuneration.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 31 October 2008 under the Employment Equality Acts. On 17 November 2011 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 7 February 2012. Final correspondence was concluded on 21 March 2012.
2. Case for the complainant
2.1. The complainant is a woman with children. Her daughter is a person with Down Syndrome and the complainant is therefore a person associated with another person with a disability. In relation to the last point the complainant relied on the preliminary ruling of the then ECJ in Coleman v Attridge Law and Steve Law (Judgment of the Court (Grand Chamber) of 17 July 2008).
2.2. The complainant had been employed by the respondent since 1988. During this time the complainant worked in various positions and most recently as a quality manager. The complainant had been a member of the senior management team since November 1991. The complainant had worked a four day week since September 2004 as a result of her family commitments and particularly in order to care for her child who has special needs. It was submitted that the complainant had to temporarily return to work on a full time basis between September and December 2007. The complainant was returned to a four day week in 2008 and stated that she did not request parenting leave as she did not anticipate the redundancy. It was submitted that the complainant was denied her statutory entitlement to parenting leave in the calculation of her redundancy package.
2.3. The complainant received a bonus in 2004 and 2005. This bonus was not paid to her from 2006 onwards. The complainant had queried the reason why the bonus was no longer paid to her during her personal review meeting but she never received any reply. It is the complainant's position that the reason why she did not receive this bonus is because she is a carer of a child with a disability and who, as a result, needed to work a shorter week.
2.4. The complainant had been offered a voluntary redundancy in January 2008. The complainant had rejected this offer because of the manner in which her entitlements were to be calculated. The complainant believed the offer to be discriminatory against part-time staff. In any case, the respondent withdrew the offer of redundancy in mid-January 2008.
2.5. In April 2008 the complainant advised the factory manager of her intention to take carer's leave. The complainant informed the respondent that she would work 15 hours a week in accordance with her statutory entitlements to carer's leave. During the course of this conversation the manager asked the complainant whether she would consider redundancy instead. As the complainant had understood that the threat of redundancy had been removed in January, the complainant felt very uncomfortable that the respondent would discuss the concept of a redundancy in the context of her seeking carer's leave.
2.6. On 2 July 2008, the complainant made further contact with the factory manager in order to comply with her statutory obligation to provide notice of her intention to take carer's leave. The complainant was deeply shocked when she was advised that the respondent would not accede to her request but intended to make her redundant instead. The complainant was informed that she was expected to train another staff member on the daily laboratory procedure and analysis. The complainant's position is that her position continued to exist and this position had at all times been given to other members of staff who did not have the same personal family commitments as the complainant.
2.7. The complainant received a letter, on her request, confirming her redundancy terms 20 August 2008. The complainant was informed that there was no longer a need for a full time technical person on the site and that attempts to secure alternative employment with the respondent had failed. The complainant had ceased her employment at the end of July 2008. The letter confirmed that the complainant's actual termination date was 26 September 2008.
2.8. The complainant submitted that she was treated less favourably by the respondent on the ground of her gender, her family status and on grounds of disability given that she has had to taken reduced hours due to her child's disability. It is the complainant's contention that she has been subjected to direct and indirect discrimination on those grounds. In particular, the complainant submitted that the respondent had:
1. failed to pay her bonus payments from 2006 onwards;
2. calculated her redundancy entitlements in a discriminatory manner by calculating her package on a 4 day week for the 20 years when the complainant had worked fulltime for the first 16 years;
3. provided her with lesser 'festival day' compensation in her redundancy package than other managers received (she received 0.5 days while other managers received 1.5. days per annum); and
4. selected the complainant for redundancy 4 months earlier than strictly necessary.
2.9. It was submitted that the facts of this case make it very clear that the complainant has received less favourable treatment in relation to other members of the senior management team. The claim that the complainant was discriminated against in relation to the calculation of her redundancy payment by the respondent who imposed a general rule or scheme to her. Thus it was argued that it is meaningless to talk about comparators as the discrimination is not linked with actual work done on a day to day basis. This rule or scheme arrived at and applied to her by virtue of her status as an employee working a reduced week. On this point the complainant relied on Five Named Complainants v Hospira Limited (DEC-E2011-083) which relates to the calculation of a redundancy package based on the complainants' age. The complainant rejected the respondent's reliance of the Redundancy Payment's Acts and submitted that they could not be used to justify a discriminatory ex-gratia payment.
2.10. The complainant seeks substantial compensation to reflect the financial loss she has suffered as a direct result of the termination of her employment, the discriminatory manner in which her redundancy entitlements were calculated and the distress suffered as a result of being a victim of discrimination particularly in circumstances where this has arisen in the context of her need and obligation to provide essential care to her disabled child.
3. Case for the respondent
3.1. The respondent rejected all claims made by the complainant. The complainant was employed at a plant at Castlegregory that in 2003 employed 450 staff. By June 2008 there were only 20 staff left in employment. The plant ceased trading in December 2008. Prior to the complainant's redundancy, the complainant was employed as a Systems and Process Development Manager.
3.2. The respondent rejected that the complainant performed 'like work' within the meaning of the Acts with any of the ten named comparators the complainant named in her letter dated 13 January 2009. It was accepted that the complainant had received a bonus payment in 2004 and 2005. However, it was submitted that the complainant's role did not justify a bonus payment and this is why her bonus payment was discontinued.
3.3. The respondent submitted that an aspect of the complaint had been submitted outside the time limits set out in the legislation. It is the respondent's contention that the allegations about festival days were raised for the first time at the hearing which took place three years after the complainant had left her employment. It was submitted that the issue of festival days was not referred to in the complainant's EE1 form or in any additional submissions made to the Tribunal.
3.4. In any event, it was submitted that the practice of providing for festival days for employees has been a practice that was not extended to employees who began working with the respondent after 1981. Only employees who had worked with the respondent prior to 1981 enjoyed this benefit. The complainant did not enjoy the benefit while working in the company and thus it was not a benefit that would have been calculated into her redundancy package. The calculation of 0.5 days into the complainant's package was a good will gesture. It was submitted that other workers were treated in the same on this matter.
3.5. It was submitted that the complainant's redundancy package was calculated in accordance with the Redundancy Payments legislation. The relevant section states that 'normal weekly remuneration' shall be calculated on 'normal weekly working hours as at the date in which he was declared redundant'. Thus, the respondent was entitled to calculate complainant's remuneration on the basis of the four day week because that was her normal working weekly hours at the time of her redundancy. Any other treatment would constitute preferential treatment vis-à-vis a working a five day week. The respondent relied on the (then) European Court of Justice decisions Douglas Harvey Barber v Guardian Royal Exchange Assurance Group (C-262/88) and Kowalska v Freie und Hansestadt Hamburg (C-33/89) to establish that redundancy payment is remuneration and that it cannot be seen as discrimination to pay employees in accordance with the hours that they work.
3.6. It was submitted that the burden of proof rests with the complainant. It is not sufficient to state that one is of a different gender, family status and/or disability to other workers to shift the burden of proof.
4. Conclusion of the equality officer
4.1. 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 Employment Equality Acts 1998 to 2008. 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. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. Bonus payment
4.2.1. The complainant submitted that the respondent introduced a bonus system in 2004. Senior managers were included in this scheme and the complainant received a bonus in 2004 and 2005. In 2006 the complainant was excluded from this scheme without formal notification and it was submitted that this exclusion has been on-going since then. The complainant's case is that the reason for the withdrawal of the bonus payment was because she availed of parenting leave in 2004. It is the complainant's position that she was a member of the senior management team and that her remuneration package ought to have been identical to theirs. I have found no evidence to support the complainant's claim of direct discrimination on gender, family status or disability ground. I note that another woman working with the complainant received such bonus payments and that this person has the same family status as the complainant. No facts were provided from which I could infer a nexus between the withdrawal of the bonus and the complainant's child having a disability.
4.2.2. I note that the complainant claims that but for the 4 day week arrangement, her role was the same as her comparators and that the reason why she no longer received the bonus payment was because she worked a shorter week. I accept that such a situation could give rise to an argument of indirect discrimination. However, I note that the facts provided to this investigation simply do not support such an argument. It is clear that the complainant started working a shorter working week in September 2002 as a temporary arrangement after her maternity leave (3 days). The complainant was on maternity leave in 2004 and then availed of parenting leave in 2004. The complainant was excluded from the bonus payment in 2006 (monies due from 2005). Thus, it is clear that the complainant did initially receive a bonus in 2004 and 2005 despite having been on maternity leave and having elected to work a shorter week. I must conclude that is another reason, not linked with the shorter working week, as to why the complainant did not receive the bonus payments after 2006. I am satisfied that there is no inference of indirect discrimination in relation to this issue.
4.3. Festival day related payments
4.3.1. The complainant acknowledged that the festival days issue was not referred to in the original complaint form. It was submitted that it was not required as the claim is encompassed within the claim made by the complainant that she was discriminated against in the manner in which her termination payment was calculated. EE1 is not a statutory form and its intent is to set out the broad outline of the claim. The complainant relied on County Louth VEC v The Equality Tribunal (Unreported, the High Court McGovern J. 12 July 2009). Furthermore, the complainant relied on Higgins v Permanent TSB (DEC-E2010-084) where the equality officer found that she did have jurisdiction to address direct discrimination in circumstances where the complaint originally only referred to indirect discrimination.
4.3.2. I find that I have jurisdiction to investigate this issue of the inclusion of festival day payments in the redundancy package provided that fair procedures are adhered to. The respondent did not raise any concerns of prejudice in relation to this aspect of the claim and I am also satisfied that the respondent was afforded additional time to respond to the issue. I am also satisfied that the matter relates to a complaint that had been broadly set out within the required time limits.
4.3.3. In relation to the festival day claim I have found no evidence to support a nexus between the alleged less favourable treatment and the complainant's protected grounds. It was suggested that the complainant received 0.5 day bonus per annum while other members of the management team received 1.5 day bonus per annum. I note that it is the respondent case that the payment 0.5 days in the complainant's redundancy package was a good will gesture but that in order for the complainant to qualify for the 1.5 day payment the condition that the complainant needed to comply with was the requirement to begin her employment prior to 1982. The complainant has not provided any facts from which I could infer that she was in receipt of 1.5 festival day bonus during her full time working week and that this was disproportionally reduced while she worked a shorter working week.
4.4. Calculation of redundancy package
4.4.1. I note that redundancy pay is remuneration within the meaning of these Acts. It ought to be noted that the purpose of redundancy pay is to compensate a person for the loss of future earnings and is therefore not intended to remunerate employees for past service. It is a common fact that the complainant was on a 4 day week when her employment came to an end. The complainant pointed out that she was entitled to avail of parenting leave but accepted that she had not done so (she was in the process of seeking carer's leave when she discovered she was to be made redundant). The complainant was not therefore availing of a statutory reduced working week. I have been provided with no evidence to support an assertion that a man, a person with no children and/or a person without a disability working similar hours than the complainant was any differently treated by the respondent in the manner in which their redundancy was calculated.
4.4.2. I have been provided with no facts from which an inference of direct discrimination in relation to the complainant's entitlement to equal remuneration can be drawn. I note that the Labour Court in T.S.B ESOP Trustees Limited and Ors v Mary Brady and Ors (EDA053) citing its own reasoning in Easons and Sons Limited v Browne (ADE 02/12) stated:
"The court is satisfied that the complainant's entitlement to the same rate of remuneration as that paid to the compressor can be met if they are both subjected to the same rules or criteria in the calculation of their overall pay and in fact receive the same remuneration relative to hours worked."
The complainant's case is that her redundancy remuneration package was less than that of others because it was calculated on pro rata basis in respect of the period preceding the redundancy. I am satisfied that such calculation was the norm for all the employees who were made redundant. There is therefore no evidence that the complainant received less favourable treatment as the treatment provided to her and others is to compensate for the loss of earnings that the complainant and her co-workers would have earned if they had continued working with the respondent. Accordingly, I am satisfied that the complainant's compensation in relation to her loss of future earnings means that she was not discriminated against within the meaning of sections 19(1) and 29(1). In circumstances where I am satisfied that there is no evidence of unequal treatment I see no necessity to consider a defence of objective justification.
4.5. Early selection for redundancy- discriminatory dismissal
4.5.1. There were no facts from which an inference that the complainant was selected for an early redundancy can be drawn. I have been provided with nothing more than assertion that the complainant was selected for redundancy because she is a woman, has family status and/or a child with a disability. The complainant was formally made redundant on 26 September 2008, two months before the plant fully ceased trading. I note that she had rejected an earlier offer for voluntary redundancy because she did not agree with the manner in which her reckonable service was to be calculated. I note that the complainant objected to the fact that she was requested to train another person to carry out her duties for the brief period while the plant remained open. It is the complainant's case that the reason why another woman was asked to carry out her duties was because of her protected ground(s). No facts to support such an assertion were provided.
4.5.2. While I note that the complainant was distressed that redundancy was mentioned to her in April 2008 when she approached the factory manager to discuss a possible career leave or parenting leave I find nothing discriminatory about the fact that the complainant, like other staff members, were approached about this issue. Redundancy was clearly a reality for the plant's employees and I note that the complainant was one of the last people to be made redundant. I have found no evidence of less favourable treatment in relation to this claim.
There is nothing in the facts of this case that supports an argument of unequal treatment.
4.6. As a specialist body dealing with discrimination I do accept it as a common fact that women who are parents in general and of a disabled child in particular are more likely to be at a disadvantage in complying with a condition that suggests that a person must work full time. The facts of this case do not support that such a condition was imposed. It is clear that the complainant had been accommodated with a shorter working week on her request and that she had availed of parenting leave in the past. The respondent cannot be held responsible for a situation where an employee had not sought specific statutory leave.
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. The complainant has failed to establish a prima facie case of direct discrimination on the gender, family status and/or disability ground.
5.3. The complainant has failed to establish a prima facie case of indirect discrimination on the gender, family status and/or disability ground.
5.4. The complainant has failed to establish a prima facie case of indirect discrimination in her entitlement to equal pay in accordance with section 19 and/or 29 of the acts.
20 June 2012