FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : HENRY DENNY AND SONS (IRELAND) LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SINEAD ROHAN (REPRESENTED BY CLIONA KIMBER B.L. INSTRUCTED BY HARRISON O'DOWD SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 27th July 2012. A Labour Court hearing took place on the 6th March 2013. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Sinead Rohan against the Decision of the Equality Tribunal in her claim of discrimination made against her former employer, Henry Denny & Sons (Ireland) Limited. The claim was made on the gender, family status and disability grounds.
In this Determination the parties are referred to as they were at first instance. Hence, Ms Rohan is referred to as the Complainant and Henry Denny & Sons Limited are referred to as the Respondent.
The Facts
The material facts giving rise to the dispute can be summarised as follows: -
The Complainant is a woman with children. Her daughter is a person with Downs Syndrome. In advancing her claim in so far as it relates to the disability ground the Complainant relies on the judgment of the Court of Justice of the European Union (CJEU) in case C-303/06,Coleman v Attridge Law[2008] IRLR 722. Arising from that decision the Complainant contends that by reason of her caring responsibilities for her disabled child she is encompassed by what has come to be known as associative disability. The Respondent does not take issue with her contention in that regard.
The Complainant was employed by the Respondent at its Kerry plant between 1988 and September 2008 when she was dismissed by reason of redundancy. She was employed as a senior Manager from 1991 until the termination of her employment. There is some difference between the parties as to the precise description of the Complainant’s job role. The Complainant described it as‘quality manager’whereas the Respondent describes her role as that of‘systems and process development manager’. This difference in description is not material for present purposes.
In or about July 2003 the Complainant applied for parental leave pursuant to s.6 of the Parental Leave Act 1998. Her parental leave commenced on 1st August 2003 and continued until 8thSeptember 2003. Thereafter it was to continue for one day per week. In accordance with s.7 of the Act the aggregate duration of the parental leave was to be the equivalent of 14 weeks. However, the Complainant continued to work a four-day week until September 2007 when she resumed working a five-day week at the request of the Respondent. In December 2007 she reverted to four day working but intermittently worked a five-day week when the exigencies of the Respondent’s business so required.
In 2003 the Respondent introduced a bonus scheme for senior managers. In the case of the Complainant this scheme could generate additional earnings of up to 7.5% of basic pay. In or about February 2004 the Complainant received a bonus under the scheme. She did not receive any subsequent payments by way of bonus although other managers did receive such payments. There is a conflict between the parties as to the reason for the discontinuance of the bonus payments to the Complainant. The Respondent contends that in 2004 the management structure was reorganised and the Complainant ceased to hold a position in the management structure at a level to which the bonus scheme was applicable. The Complainant contends that there was no material difference in the role which she performed in 2003 and thereafter. She contends that the reason why the Respondent ceased to include her in the bonus scheme was because of her shortened working week. This in turn, she contends, related to her family responsibilities and in particular her role as the primary carer of her disabled child.
In or about April 2008 the Complainant again requested parental / carer's leave. She proposed to work 15 hours per week with the difference between those hours and her contractual hours being taken as parental / carer's leave. At that time the Complainant was asked by the Factory Manager if she would accept redundancy as an alternative. The Complainant declined this offer. The Complainant’s application for parental /carer's leave was refused by the Respondent on or about 2ndJuly 2008. Instead the Factory Manager informed the Complainant that she was to be made redundant. The Complainant’s redundancy lump sum, which comprised statutory redundancy and an ex-gratia element, was calculated by reference to her earnings based on a four-day week. The Complainant received an additional amount equal to 0.5 day’s pay per year of service in respect of what was referred to as‘festival days’. She contends that in the case of others this element of the redundancy payment was calculated as 1.5 days' pay per year of service.
The Complainant’s dismissal took effect from 26thSeptember 2008. There was some residual work, appropriate to her position, to be performed before the plant finally closed in or about February 2009. The Complainant contends that her dismissal was premature in that she could have been retained to perform this work and the decision to terminate her employment earlier was in response to her application for parental / carers leave.
The claims
Arising from the foregoing the following claims have been advanced by the Complainant: -
•She claims to have suffered discrimination in terms of pay in not being paid a bonus after 2004.•She claims discrimination in terms of pay in having her ex-gratia redundancy payments calculated by reference to her earnings in respect of her reduced working hours' liability rather than by reference to her contractual hours
•She claims discrimination in terms of pay in not having the ‘festival days’ element of her redundancy payment calculated at the same rate as that of others who received consideration for these days in the computation of their redundancy pay
•She claims discrimination in terms of conditions of employment and /or access to employment in being made redundant prematurely.
Position of the parties
The Complainant
The Complainant told the Court in evidence that she was a member of the Respondent’s senior management team. She attended meetings of senior management and her position within the Respondent’s management structure in that regard was always acknowledged. She said that because of her caring responsibilities she took parental leave in 2003 and on her return from the initial ‘block’ of leave she commenced working four days per week. She said that a bonus scheme was introduced for senior managers in 2003. In 2004 she received a payment under the scheme in respect of 2003. She did not receive any payment under the scheme thereafter. All other managers at the equivalent level continued to receive the bonus.
The Complainant told the Court that she sought an explanation for this omission but none was provided. She said that at the hearing before the Equality Tribunal the Respondent claimed that it was because she was not regarded as a ‘senior manager’. That was the first time she heard that explanation. According to the Complainant her role had not changed in any material way since 2003 when she received the bonus. She accepted that following the reorganisation of management structures in 2004 she reported to Ms Ann Kennelly rather than directly to the General Manager. However it was the Complainant’s evidence that she performed the same work as Ms Kennelly and that both were interchangeable.
In relation to the ‘festival days’ the Complainant told the Court that she was told by others that this element had been included in the calculation of redundancy payment at the rate of 1.5 days' per year of service. In her case it was included at 0.5 day's per year of service. She had not been provided with an explanation for this difference. The Complainant accepted in cross-examination that time off in respect of ‘festival days’ was afforded only to those employees whose employment commenced before 1981. She said that nonetheless at least one other manager whose employment commenced after that date was paid this element.
Turning to the circumstances of her dismissal, the Complainant told the Court that she applied to the Factory Manager for parental/carer's leave in April 2008 in order to care for her daughter. She proposed to work 15 hours per week with the remainder being taken as unpaid leave. She was asked by the Factory Manger to accept redundancy as an alternative. She declined this offer. Her request for parental / carer's leave was refused and she was told that she was being made redundant. She was asked to train a then current employee to perform some of the tasks for which she was responsible and to train a manager from another of the Respondent’s plants to perform other tasks. Those replacement staff continued to work in the factory until its final closure in or about the end of February 2009. The Complainant believes that the decision to terminate her employment at that time was in response to her request for parental/carer's leave, which in turn was related to her family responsibilities including her responsibilities to her disabled child.
The Respondent
The Respondent denies that the Complainant was discriminated against in the manner and on the grounds alleged or at all.
Evidence was given by Mr James O’Connor who was General Manager at the Kerry plant between 2001 and 2004. He told the Court that he introduced a bonus scheme for management staff in 2003. It was intended to provide an incentive for heads of departments to meet predetermined levels of performance. Targets were set for each individual participant in the scheme and their performance was then measured against those targets. This witness confirmed that the Complainant was included amongst those managers to whom the scheme applied. The witness was succeeded as General Manager in 2004 by Mr Tom O’Driscoll. He said that his successor wanted one person in each department to report directly to him and with that in view he reorganised the management structure. The witness was unable to assist the Court on the exact reasons why the Complainant had ceased to receive bonus but he thought that it was because she ceased to report directly to his successor as General Manager.
The witness was referred to the description of the Complainant’s role in 2007 and he was asked to identify any changes that had occurred since 2003. The witness confirmed that the description set out in 2002-2003 was similar to that recorded in the performance review document for the Complainant in 2007.
Mr Oliver Heffernan gave evidence. Mr Heffernan was Operations Manager at the Kerry plant in 2004. At that time five managers reported to this witness. According to Mr Heffernan, Mr O’Connor’s successor, Mr O’Driscoll, took over as General Manager in or about the end of January 2004. Mr O’Driscoll reorganised the management structure so as to have one person in each department reporting to him. In the case of quality assurance, the Complainant and Ms Anne Kennelly both reported to the General Manager. It was decided that only one of them would exercise that function. Mr O’Driscoll wanted the person so designated to be available five days per week and the Complainant was not in a position to undertake this role. Ms Kennelly applied for and was appointed to undertake that function.
The witness told the Court that the only occasion on which the Complainant raised an issue concerning the bonus was in the course of her performance review in 2006. She asked why she was not being considered for a bonus. The witness said that he undertook to find out why that was so and he spoke to Mr O’Driscoll. He was told that it was because the Complainant reported to Ms Kennelly. The witness said that he thought that he conveyed this to the Complainant but he was unsure on that point.
The witness agreed that the Complainant attended meetings of senior management but he said that others also did so who were not regarded as part of the senior management team. Mr Heffernan accepted that he reviewed the Complainant’s performance in 2006. He was referred to the documents used for that review and he agreed that the description of her role and functions recorded in that document did not differ materially from the description of her role in 2002.
Mr Michael Munnelly gave evidence. He became General Manager in 2007. He said that when he was appointed to that position he was given a list of those eligible to participate in the bonus scheme by Mr O’Driscoll. He continued to operate the bonus scheme in respect of those included in the list and he did not question why the Complainant was not included. The witness agreed that the Complainant attended senior management meeting but this did not mean that she was regarded as part of the senior management team. He said that others who were not so regarded also attended. The witness also told the Court that others who attended these meetings, besides the Complainant, were not included in the bonus scheme.
Mr Munnelly told the Court that the Complainant returned to full-time work in 2007 at his request. However the plant lost business in or about December of that year and the Complainant was returned to a four-day week.
The Court was told that a decision was taken in 2008 to close the plant and staff were made redundant as the plant was wound down. The Complainant’s job became redundant when it was decided that the need for a quality assurance manager no longer existed. The witness said that some residual work was required but it was of little significance and would not have been sufficient to occupy the Complainant for four days per week. However, matters surrounding the Complainant’s redundancy were dealt with by the then Factory Manager and the witness had no direct dealings with this matter.
Conclusion
Grounds Relied Upon
In this case the Complainant has relied,inter alia, on the disability ground in advancing her claim. In essence she claims that she was treated less favourably because she was prevented from working full-time due to her need to care for her disabled child. Thus, she claims that the less favourable treatment of which she complains was by reason of her association with her disabled daughter.
The Complainant also relied upon the family status ground. Family status is defined by s. 2 of the Act as:-
- “family status” means responsibility— 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 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, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability”
Comparators
It is settled law that an equal pay claim must be grounded on the difference in remuneration of the Complainant relative to that of a real as opposed to a hypothetical comparator with whom he or she is engaged on like work. This was made clear by Budd J. inBrides v Minister for Agriculture[1998] 4 IR 250. In this case the Respondent contends that the Complainant has not identified such a comparator. It is clear, however, that in her claim before the Equality Tribunal the Complainant did nominate a number of comparators. Moreover, in the Court’s view, the nature of the claims is such that the requirement for a comparator can be easily satisfied.
In relation to the payment of bonus, it is clear that the Complainant is relying on the fact that the payments in issue were made to all other managers who, on that account, are potential comparators. The Complainant was paid the bonus in respect of 2003 and it can safely be assumed that she was then engaged in like work with all other managers who also received a bonus. On the uncontested evidence of the Complainant the Court is satisfied that the range of duties and responsibilities of the Complainant, and the circumstances under which they were performed, remained the same from 2002 up to the time that her employment came to an end.
The Complainant accepts that from 2004 onwards she reported to Ms Kennelly rather than to the General Manager as previously. However, a reporting relationship is not a factor to be taken into account in determining if jobs are of equal value. This Court so decided in Determination EDA0720,Health Service Executive and Twenty Seven Named Complainants. Here the Court was required to consider if female Directors of Public Health Nursing were engaged in like work with male Directors of Nursing (Mental Health). In contending that the complainants and their comparators were not engaged in like work the Respondent placed considerable emphasis on the different reporting relationships of the respective groups. The Complainants reported to the General Manager in their area whereas the Comparators reported to the Local Health Manager (LHO), which was a higher level of management. The Respondent contended that this was a significant factor indicative of the greater degree of responsibility attaching to the post of Director of Nursing (Mental Health). In rejecting that submission this Court held: -
- The Court does not accept that a reporting relationship is a matter which should properly be taken into account in measuring the value of two different jobs for the purpose of applying the provision of s7(1)(c) of the Act. Reporting relationships are determined by the employer and are often reflective of the importance which the employer accords to a job. If a reporting relationship were to be regarded as a determinative factor in measuring like work it could easily be used to concealwhat is in reality a discriminatory pay arrangement, thus circumventing the protection of the Act. As was pointed out by Barron J. inC & D Food Ltd. v Cunnion[1997] 1 IR 147, the decision as to what constituted “like work” is for the Court and not the employer. If the employer’s evaluation of the work is incorrect it cannot be relied upon to avoid liability under the Act.
The claim arising from what was termed ‘the premature redundancy’ of the Complainant raises an issue of equal treatment. Consequently a hypothetical comparator can be relied upon. In Determination EDA1129A Worker v Two Respondents, this Court pointed out that in order to construct a hypothetical comparator the Court should establish the factual criterion for the impugned decision and consider if that criterion would have similarly been applied in the case of a person without the protected characteristic (see the observations of Lord Nicholls inShamoon v Chief Constable of the Royal Ulster Constabulary[2003] IRLR 285, paragraphs 8-12). Consequently the appropriate comparator for the purposes of this aspect of the Complainant’s claim is a hypothetical person who did not have the same family responsibilities as the Complainant and who did not apply to work reduced hours by reason of his or her family status.
For these reasons the Court is satisfied that the within claims are properly grounded by reference to an appropriate comparator.
Burden of proof
The Court must consider if the probative burden has shifted to the Respondent in accordance with s.85A (1) of the Act, which provides: -
- Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that, where the primary facts alleged are proved, it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish aprima faciecase. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (See also Determination EDA0821,Kieran McCarthy v Cork City Council).
Where the probative burden passes to the Respondent it must be shown that there was no discrimination whatsoever in the sense that the protected ground relied upon was nothing more than a trivial influence in the impugned decision (Wong v Igen LtdEWCA Civ 142).
The Court must then turn to a consideration of whether, by application of those principles, the onus of proof has shifted to the Respondent in this case and, if so, has the inference of discrimination thus created been rebutted. Each of the Complainant’s claims is considered in turn.
Bonus
As already found elsewhere in this Determination the Court accepts that the Complainant was engaged in like work with other senior managers who received a bonus. The Court has also found that there was no material change in the nature of the work performed by the Complainant after 2003, when she was removed from participation in the bonus scheme. The only difference between the circumstances of the Complainant and those of the other managers who were regarded as qualified to receive a bonus, apart from any difference in reporting relationships, was that the Complainant worked a four-day week whereas the others worked a five-day week. The Court also accepts the Complainant’s evidence that she sought an explanation from Mr Heffernan for her exclusion from the bonus scheme and that none was provided.
In this case the facts relied upon by the Complainant are not consistent with a claim of direct discrimination. It is not alleged that the bonus payments ceased because of her family responsibilitiesper se. Rather, the gravamen of the Complainant’s case is that she was removed from the bonus scheme because she worked a four-day week. It is clear that this Court, as an expert tribunal, is entitled to draw on the knowledge and experience of its members in reaching conclusions of fact. That principle was enunciated by the Court of Appeal for England and Wales inLondon Underground v Edwards (No.2) [1998] IRLR 364 and by the Northern Ireland Court of Appeal inBriggs v North Eastern Education and Library Board[1990] IRLR 181. This Court adopted a similar approach inInoue v MBK Designs[2003] 14 E.L.R. 98, as did the High Court in the more recent case ofBenedict McGowan and ors v The Labour Court, Ireland and the Attorney General and Ors[2010] 21 E.L.R. 277.
Based on its own knowledge it is perfectly clear to this Court that women having the family status of the Complainant, and in particular women who are the carer of a disabled child, would find it more difficult to work full-time than either a man or a women whose family responsibilities are different. Consequently, a requirement to work full-time is a provision, criterion or practice which determines entitlement to a payment in employment. Consequently it can constitute indirect discrimination on the ground of family status if it operates so as to place persons having the same family responsibilities as the Complainant at a particular disadvantage.
InFlynn v Primark[1997] E.L.R 218, Barron J said the following (at 223): -
- The principles of law established by the case law to which I have referred are not in my view in dispute between the parties. Once as between workers doing like work there is a difference in pay which prejudices significantly more women than it does men then, whatever the reason, there is aprima faciediscrimination and an onus rests on the employer to establish that this difference is not gender based but that the reasons for such difference are objectively justifiable on economic grounds.
The Court is satisfied that the primary facts surrounding this aspect of the Complainant’s case are of sufficient significance to raise an inference that the Complainant was discriminated against on grounds of her family status. Consequently, since this is a case of indirect discrimination, it is for the Respondent to objectively justify the non-payment of the bonus to the Complainant on grounds unrelated to her family status.
None of the witnesses who testified on behalf of the Respondent could give direct evidence of the reason for the Complainant’s exclusion from the bonus scheme. Mr Heffernan told the Court that he believed the reason to be the Complainant's indirect reporting relationship to the General Manager. Mr Munnelly’s evidence was to similar effect. However, their evidence was based on discussions which they had with Mr O’Driscoll. Consequently their evidence must be regarded as hearsay. It was Mr O’Driscoll who decided to remove the Complainant from the bonus scheme. Only he could give reliable evidence as to the reason for that decision and the basis upon which it could be objectively justified. Mr O’Driscoll did not give evidence.
The decision of the UK Employment Appeals Tribunal inBarton v Investec Henderson Crosthwaite Securities LtdIRLR 332 (per Ansell J) indicates that since the facts necessary to prove an explanation for a seemingly discriminatory act would normally be in the possession of the respondent, a tribunal should expect cogent evidence to discharge the burden of proof. In this case there is no cogent or reliable evidence before the Court concerning the actual reason for the Complainant’s exclusion from the bonus scheme. Nor is there any evidence upon which it could be held that her exclusion was objectively justified on grounds unrelated to her family status as that term is statutorily defined.
Accordingly the Complainant is entitled to succeed in this aspect of her claim.
Calculation of ex-gratia redundancy lump sum
There is no dispute concerning the material facts surrounding this aspect of the Complainant’s claim. All employees who were made redundant, including the Complainant, had their ex gratia redundancy payments calculated by application of the formula provided in the Redundancy Payments Acts 1967-2003, that is to say, by reference to their actual earnings.
In contending that the Complainant was entitled to have her ex gratia redundancy lump sum calculated by reference to her earnings based on a five-day week, her Counsel, Ms Cliona Kimber, B.L, relied upon the decision of the CJEU in C- 116/08Meerts v Proost NV[2009] All ER (D) 259.
That case involved a preliminary ruling by the Court of Justice in proceedings concerning the dismissal of the applicant by her former employer, Proost NV, whilst she had been on part-time parental leave. The applicant had been employed on a full-time basis since September 1992 under an employment contract of indefinite duration. From November 1996, the applicant had various forms of career break and, from 18 November 2002, worked half-time as a result of parental leave, which was due to end on 17 May 2003. On 8 May 2003 the applicant was dismissed with immediate effect subject to payment of compensation for dismissal equal to 10 months' salary calculated on the basis of the salary she had been receiving at the time, which was reduced by half because of the equivalent reduction in her working hours. She challenged the amount of that compensation for dismissal before the Labour Court of Turnhout, claiming that her employer should be ordered to pay compensation for dismissal calculated on the basis of the full-time salary which she would have been receiving if she had not reduced her working hours in connection with parental leave. Her application was dismissed by judgment of 22 November 2004. On appeal, the Antwerp Higher Labour Court upheld that judgment. In her further appeal, the applicant submitted that, both at first instance and on appeal, the courts interpreted national law without regard to the provisions of Council Directive 96/34/EC (on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, as amended by Council Directive (EC) 97/75). In due course, the national court stayed the proceedings and referred a question to the CJEU concerning the interpretation of Clauses 2.4 to 2.7 of the framework agreement on parental leave which was annexed to the Directive.
An issue arose as to whether clauses 2.4 to 2.7 of the framework agreement on parental leave were to be interpreted as meaning that, where an employer unilaterally terminated an employment contract without urgent cause or without compliance with the statutory period of notice, at a time when the worker was availing himself or herself of arrangements for reduced working hours, the payment in lieu of notice that was due to the worker had to be determined by reference to the basic salary calculated on the basis that the worker had not reduced his or her working hours as a form of parental leave in accordance with Clause 2.3(a) of that agreement.
The Court ruled that Clauses 2.6 and 2.7 of the framework agreement on parental leave had to be interpreted as precluding an employer from calculating the redundancy compensation payable to a worker on part-time parental leave on the basis of her reduced earnings at the time the dismissal takes effect.
The Court does not accept that the decision in this case can avail the Complainant. The decision relates to the interpretation of Directive 96/34/EC (The Parental Leave Directive) which is transposed in this jurisdiction by the Parental Leave Act 1998, as amended. That Act provides an exclusive legislative route by which the entitlements derived from the Directive can be pursued. It involves a reference at first instance to a Rights Commissioner and a full appeal to the Employment Appeals Tribunal. This Court has no statutory jurisdiction under that Act and it cannot arrogate such a jurisdiction to itself. Moreover, the Court notes that the Complainant commenced her statutory parental leave on or about 11thAugust 2003. She availed of a four-week block of leave and the remainder of her entitlement was to be taken in the form of one day per week. Section 7 of the Parental Leave Act 1998, as amended, provides an employee with an entitlement to 14 weeks leave, or where it is taken otherwise than in a single block, the equivalent of 14 working weeks. Although the Court makes no finding on the point it appears that the Complainant’s entitlement under the Act of 1998 was exhausted long before her employment came to an end and that her reduced working hours could not be classified as being in consequence of statutory parental leave although it was clearly related to her caring responsibilities.
In the Court’s view this aspect of the Complainant’s case must be determined by reference to the Employment Equality Acts and the jurisprudence applicable thereto. InKowalask v Freie und Hansestadt HamburgECR 1-2591 the CJEU ruled that the obligation to treat a group of part-time workers made up predominately of women equally, in relation to a redundancy scheme, to that of a group made up mainly of men, meant that both groups should be treated equally in terms of the rules and conditions of the scheme applied pro rata to the hours worked (see also Determination EDA036,Mary Brown v Eason & Sons Limited).
In this case the Complainant was treated in the same way as all others who were made redundant in that her entitlements were assessed by reference to her weekly earnings at the time the redundancy took effect. Consequently there was no less favourable treatment and no discrimination. It follows that this aspect of the Complainant’s claim is not well-founded.
Festival days
The Respondent took issue with the Complainant’s entitlement to pursue this aspect of her claim. It submitted that this matter was not referred to in the initiating form submitted to the Equality Tribunal and was first raised at the hearing before the Equality Officer. It was submitted that the date of the hearing was more than three years since the date on which the redundancy payments were made and at the date of the hearing her claim under this heading was statute-barred.
The Court cannot accept that submission. As was pointed out by the High Court inCounty Louth VEC v The Equality Tribunal, (Unreported, High Court, McGovern J, 12thJuly 2009), the form used to initiate a complaint to the Equality Tribunal has no statutory basis and is intended to provide a broad outline of what is being claimed. It can be amended at any stage in the procedure provided the nature of the claim remains the same. It is clear that at all times the Complainant was contending that her ex-grata redundancy payments were calculated in a discriminatory manner. In that context the inclusion of the ‘festival days’ element was in the nature of a particularity of her original claim rather than a new claim.
In these circumstances this element of the claim is properly before the Court.
The facts surrounding this aspect of the claim are that some employees had an element included in their redundancy pay which related to additional leave granted to attend a local festival. It was accepted that this leave only applied to employees whose employment commenced before 1981. The Complainant was employed after that date and she did not have the benefit of this additional leave. According to the Complainant, others who were made redundant had an additional 1.5 days' pay per year of service added to their ex gratia redundancy pay. The Complainant was given an additional 0.5 day's pay per year of service attributable to this additional leave. The Respondent accepted that at least one full-time employee who, like the Complainant, did not have the benefit of this additional leave while employed, had the full allowance in respect of this leave (1.5 days' per year of service) added to his redundancy pay. The Respondent said that this was because he remained until the eventual closure of the plant although none of the witnesses tendered could give direct evidence as to the actual reason. If full-time workers received 1.5 days' pay in respect of this element in calculating their redundancy pay the Complainant had aprima facieentitlement to four-fifths of that allowance (1.2 days') rather than the 0.5 day's which she received.
The inconsistencies in the Complainant’s treatment in relation to this matter are, in the Court’s opinion, facts of sufficient significance to raise an inference of indirect discrimination against the Complainant as a person who worked part-time by reason of her family responsibilities. It is, therefore, for the Respondent to objectively justify the difference in treatment. No adequate explanation was proffered in evidence. Accordingly, the Complainant is entitled to succeed in this aspect of her claim.
Timing of Redundancy
The Respondent ceased production in Tralee and all of those employed there were made redundant. The Complainant is not disputing her redundancyper se. Rather she contends that her dismissal was premature in that at the time of her dismissal work appropriate to her role remained to be done. She contends that others were assigned to this work and that she was required to provide them with training to undertake that work.
In April 2008 the Complainant applied to reduce her working hours to 15 per week with the remainder being taken as parental / carer's leave. The reason for this request was to allow the Complainant to care for her disabled child. The application was made to the Factory Manager, Ms Sonia McDiarmid. She was asked to take redundancy as an alternative. The Complainant declined this offer. In or about July 2008 the Factory Manager refused the Complainant’s request for parental / carer's leave and instead told her that she was being made redundant. The Court accepts that the Complainant was asked to train others to undertake parts of her job for which there was a continuing need up to the eventual closure of the plant in or about the end of February 2009.
The Complainant accepted that the requirement for the substantial parts of her job had ceased at the time the redundancy took effect. She had no direct knowledge of the extent to which aspects of her former role remained to be done. According to witnesses who gave evidence for the Respondent the amount of work remaining to be done was insignificant and the substantial parts of the Complainant’s job had become redundant as part of the gradual wind-down of the plant.
This aspect of the case must be considered by reference to how a hypothetical employee of the Respondent, similarly placed to the Complainant, the substantial part of whose job had become redundant, but who did not have the same family responsibilities, would have been treated. There is no evidence before the Court from which it could be inferred that such a hypothetical person would not have been made redundant at the same time as the Complainant. In these circumstances the Court must hold that the Complainant has failed to establish facts from which discrimination could be inferred in the timing of her dismissal. Accordingly this aspect of her claim cannot succeed.
Outcome
For all of the reasons set out herein the Court finds as follows: -
•The Complainant was denied equal pay, on the ground of family status, in relation to bonus payments. The Act prescribes a three-year limitation period in equal pay claims. Consequently the Complainant is entitled to recover arrears of bonus payment in respect of the three years before the date on which herclaim was presented to the Equality Tribunal.•The Complainant was not discriminated against on the ground of family status in terms of pay in the mode of calculation used by the Respondent in computing her ex-gratia redundancy lump sum.
•The Complainant was denied equal pay on the ground of family status in being paid an allowance of 0.5 day's pay per year of service in respect of festival days rather than 1.2 days' pay per year of service. She is entitled to recover the difference of 0.7 day's pay per year of service by way of arrears of pay.
•The Complainant was not discriminated against in terms of access to employment in being made redundant in September 2008.
Redress
The Court directs the Respondent to pay to the Complainant:-
1. Arrears of bonus measured at 7.5% of her salary for each of the three years preceding the date on which her claim was presented to the Equality Tribunal.2. Arrears in respect of her ex-gratia redundancy lump sum being the difference between an allowance of 0.5 day’s pay per year of service and 1.2 day’s pay per year of service, namely, 0.7 day's pay per year of service.
Section 82(5) of the Act allows for the awarding of interest on compensatory amounts where the discrimination found arises on the ground of gender. As the Court has not found that the Complainant was discriminated against on the ground of gender the question of awarding interest does not arise.
The amounts referred to at 1 and 2 above related to remuneration and are liable to income tax.
Determination
The appeal is allowed in part. The decision of the Equality Tribunal is set aside and substituted with the terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
3rd April, 2013Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.