INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
RACHEL MC CARTHY
(REPRESENTED BY KATE MCMAHON & ASSOCIATES)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2011.
2. This is an appeal under Section 83 of The Employment Equality Acts, 1998 to 2011. Labour Court hearing's took place on 22nd May 2013 and 8th October 2013. The following is the Court's Determination:
This is an appeal by Niscayah Limited against the decision of the Equality Tribunal in a claim of discrimination and victimisation by Rachel McCarthy under the Employment Equality Acts 1998 – 2011 (hereafter the Acts). Her claims before the Equality Tribunal were on grounds of gender, marital status, family status and age. The claims arise for her dismissal on grounds of redundancy in December 2008. In the appeal only the family status ground was relied upon.
In keeping with the normal practice of this Court the parties are referred to herein as they were at first instance. Hence, Ms McCarthy is referred to as the Complainant and Niscayah Limited is referred to as the Respondent.
The Complainant commenced employment with the Respondent in her capacity as an office administrator on or about 12thSeptember 2005. The Respondent was then known as Bell Security (Ireland) Limited. The Respondent maintained two offices in Ireland, one of which was located in Cork. The Complainant was employed in the Cork office. The Respondent maintained another office in Dublin.
The Complainant became pregnant in 2006. She went on maternity leave on or about 2ndMarch 2007. The Respondent recruited a replacement for the Complainant, a Ms D, to cover the period of her maternity leave. Ms D was employed on a fixed-term contract for that purpose. The Complainant trained Ms D in the duties of her job before her departure on maternity leave.
The Complainant returned to work in or about October 2007. She was informed that Ms D was being retained in the employment of the Respondent in a role described as CASH Champion. This description referred to the operation of a computer software system used by the Respondent. It appears that during the Complainant’s absence Ms D had been sent to the UK for a number of days to receive further training in the operation of this system.
The Complainant applied for parental leave pursuant to the Parental Leave Act 1998. In or about May 2008 she was granted parental leave of one day per fortnight. Her salary was reduced pro rata. Ms D provided cover for the Complainant on the days on which she availed of parental leave.
On or about 6thNovember 2008, the Respondent made a presentation to the staff in its Cork office on a redrafted staff handbook. The presentation, which the Complainant attended, was given by the Respondent’s Human Resources Manager, Ms Sheenagh McCullagh. This handbook contained details of a revised maternity leave policy. Whereas the Respondent previously paid employees on maternity leave the difference between State benefits and their normal salary, the revised arrangements were that no payments would be made by the Respondent during the currency of maternity leave but a lump sum payment would be made on return to work provided the employee undertook to work her normal working hours for one year following her return.
An e-mail was sent to all staff on 14thNovember inviting submissions on the content of the revised handbook. By letter emailed to Ms McCullagh on the same date the Complainant took issue with the proposed changes in the maternity leave policy. The Complainant believed that requirement in the revised policy that an employee returning from maternity leave commit in advance to working full-time would impact adversely on many mothers of young children who would be unable to give such a commitment. The Complainant did not receive a response to her email.
On the following Monday, 17thNovember 2008, the Complainant was approached at her desk by Mr F at approximately 4pm. He asked if she had received an email from him in relation to a meeting on that day. She enquired as to the purpose of the meeting and she was told that it was“just for a chat”.The Complainant then attended a meeting with Mr Frawley and Ms McCullagh. The Complainant was told that she was being made redundant and that her employment would terminate on 31stDecember 2008. She was further informed that she could leave early and that she would not be require to work after 12thDecember 2008.
Arising from these facts the Complainant contends that her dismissal resulted from her family status and/or was because of the complaint which she had made concerning the Respondent’s revised maternity leave policy.
The claim was referred to the Equality Tribunal on 29thJune 2009. The Decision of the Tribunal was issued on 21stDecember 2012. The Equality Officer concluded that the Complainant’s selection for redundancy was influenced by the fact that she had children and was therefore considered less productive than another person who did not have family responsibilities. The Equality Officer also held that the Complainant’s selection for redundancy was influenced by her complaint concerning the maternity leave policy which she had raised immediately before her dismissal.
The Complainant was awarded compensation in the amount of €24,000 in respect to her dismissal and €5,000 in respect of victimisation. The Equality Officer accepted that the Complainant could not recover double redress for her dismissal under the heading of discrimination and victimisation. The award for victimisation was based on a finding that the Complainant was isolated and ignored having made her complaint regarding the change in the maternity leave policy.
The Respondent appealed to this Court. There is no cross-appeal by the Complainant.
The Court heard oral evidence from Ms Sheenagh McCullagh who is the Human Resources Manager with the Respondent, Mr Nessan Frawley, who is General Manager with the Respondent and from the Complainant. Both parties also made comprehensive written submissions in which the material facts of the case and the legal principles applicable were addressed.
Evidence on Behalf of the Respondent
Ms McCullagh gave evidence on the circumstances surrounding the decision to make the Complainant redundant. She told the Court that the major part of the Respondent’s business involved providing security services to the banking sector. According to Ms McCullagh the financial difficulties which the banks encountered in or around 2008 had an adverse impact on the extent to which they used the Respondent’s services. The Court was told that in a three year period the Respondent’s turnover fell from €17m to €9m.
The Court was told that while she was providing cover for the Complainant’s absence it became apparent to the Respondent that Ms D was good at operating computer systems. The Respondent decided to adopt the CASH system. Ms D was asked to take responsibility for this system in the Cork office. That role was not a promotion and Ms D was paid less than the Complainant. No consideration was given to offering this role to the Complainant.
The Court was told that senior managers of the Respondent held regular meetings to discuss operational issues involving the business. At one such meeting held in September 2008 the implementation of cost saving measures was discussed. Amongst the measures discussed was the transfer of the service desk (on which the Complainant worked) to Dublin. At the next meeting, held in October 2008, a decision to transfer the service desk was taken. The minutes of that meeting were put in evidence wherein it is recorded, under the heading ‘Service and Maintenance’, as follows: -
“Cork-Service Desk facility to be transferred to Dublin”
The witness did not attend that meeting.
The Court was told that the Complainant’s redundancy followed from that decision. The decision to dismiss the Complainant was taken by a Mr Gerry Cronin. Ms McCullagh and Mr Frawley were told to implement that decision. The witness had not been asked to make an input into who should be made redundant.
Ms McCullagh told the Court that the letter sent by the Complainant on 14thNovember 2008 was not a factor taken into consideration in deciding to make her redundant. She said that the decision had, in effect, been taken in October. According to Ms McCullagh the Complainant was made redundant because her job was no longer required in the Cork office.
In her evidence Ms McCullagh accepted that the implementation of the Complainant’s redundancy ‘could have been handled better’. It was also accepted that there was no prior consultation with the Complainant before the decision to terminate her employment was taken. It was further accepted that the manner in which this redundancy was implemented was inconsistent with the process envisaged in the staff handbook in that regard.
The Court was told that there were further redundancies in March 2009. At that time there was prior consultation with affected staff, and the process envisaged by the handbook was followed.
Mr Frawley told the Court in evidence that he originally employed the Complainant. He described her as a great worker. They had a good relationship although they did not socialise. He told the Court that there were seven employees in the Cork office and he characterised the atmosphere in the office as good.
This witness attended the management meetings referred to by Ms McCullagh in her evidence. At the September meeting Mr Cronin first raised the possibility of moving the service desk from Cork to Dublin. He had no objection to this proposal as he believed that it was necessary to meet the requirements of the business.
Mr Frawley told the Court that it was clear to him following the October management meeting that the transfer of the service desk to Dublin would result in a redundancy. He inferred that it was the Complainant who would be made redundant. According to this witness the decision to dismiss the Complainant was taken by Mr Cronin and he did not have any material input into that decision although he agreed that moving the service desk to Dublin made business sense. Mr Frawley also agreed that the implementation of the decision could have been handled better. In particular this witness agreed that the process of selection and consultation prescribed in the Respondent’s staff handbook should have been followed. The witness said that this was the first redundancy effected by the Respondent and, as he put it, they learned by their mistakes. In Mr Frawley’s opinion neither the Complainant’s reduced working hours nor her objections to the new maternity leave policy had anything to do with the decision to make her redundant. Mr Frawley told the Court that he was unaware of the letter that the Complainant had sent to Ms McCullagh on 14thNovember 2008.
Asked when it was decided to arrange a meeting with the Complainant on 17thNovember to inform her of the impending redundancy, the witness said that he could not recall exactly. He believed that it was sometime in the previous week. Mr Frawley accepted that he had told the Complainant that the meeting on 17thNovember was‘just for a chat’. He said that he did not want to pre-empt the meeting and that he found having to make the Complainant redundant was difficult.
Mr Frawley was questioned in relation to allegations made by the Complainant in her written submission and in her evidence to the Equality Tribunal to the effect that he had ignored and isolated her in the period during which she was working out her notice. The witness denied any knowledge of the specific allegations made against him. He said that he had never refused to communicate with the Complainant.
Turning to the decision to retain Ms D in employment following the Complainant’s return from maternity leave, Mr Frawley told the Court that it was decided to introduce the CASH system throughout the business. This system had been partially used previously by the Complainant. The Complainant had trained Ms D on that part of the system that she operated. He said that it was then decided to offer Ms D the role of CASH champion. This was a new role within the business. At the time the Complainant was less competent in the system than Ms D. The witness accepted that both the Complainant and Ms D were equally competent overall but that it was a new role and in these circumstances he did not consider offering it to the Complainant.
In her evidence to the Court the Complainant recalled the history of her employment with the Respondent and the duties that she performed. These involved general administrative work including answering the phone, ordering stationary, processing time sheets for engineering staff, logging calls and pricing jobs.
In 2007 the Complainant became pregnant. That did not pose any difficulty in her employment. Ms D was recruited to act as her replacement during her maternity leave. She trained Ms D in the duties for which she was responsible. It was the Complainant’s understanding that Ms D would only be employed for the duration of her maternity leave.
The Complainant resumed her employment in October 2007. She learned that Ms D had undergone training in the CASH system during her absence. Mr Frawley told the Complainant that things were good in the business and that Ms D was being kept on. She was told about the CASH Champion role. She did not raise any issue in relation to this matter as she felt secure in her own position. According to the Complainant, as a result of the training that she had received, Ms D could do reports on the CASH system whereas she could not.
In or about April 2008 the Complainant applied for parental leave. In May of that year she was granted one day of unpaid leave every second week.
The Complainant told the Court that on or about 6thNovember 2008 a revised employee handbook was launched. A meeting of staff was held to introduce this document. She recalled that at that meeting a colleague had asked Ms McCullagh if there was any likelihood of redundancies in the Cork office. It was the Complainant’s evidence that Ms McCullagh told the meeting that there was no such prospect.
On examining the revised handbook the Complainant noticed that a new policy on maternity leave was proposed. She had a particular concern at the proposal to make payments for maternity leave by way of a lump sum on a woman’s return to work on condition that she committed to working her normal working hours for one year. Such a commitment, she felt, would be impossible in many circumstances.
The Complainant referred to a letter dated October 2008 which was circulated to staff on 14thNovember 2008 inviting comments in writing on the content of the handbook by 15thNovember. This letter stated that unless an employee raised any concerns by that date they will be deemed to have accepted the document in full. The Complainant drafted a letter setting out her concerns at the revised maternity leave policy which she emailed to Ms McCullagh on 14thNovember 2008.
The Complainant recalled the meeting of 17thNovember 2008 at which she was told that her employment was being terminated. Mr Frawley, Ms McCullagh and herself were the only ones present. Mr Frawley told her that due to the downturn in business the service desk was being transferred to Dublin and that she was being made redundant. She was shocked by this announcement which she had not expected. She was told that the decision was final.
The Complainant received a letter from the Respondent dated 18thNovember confirming her dismissal and providing details of the redundancy payment to which she was entitled. She refused to accept this payment until June 2009 when her financial circumstances forced her to do so. The Complainant remained at work until 12thDecember 2008 and she found it extremely difficult to continue working during that period.
The Complainant told the Court that during her notice period she was ignored by Mr Frawley. She told the Court that on one occasion Mr Frawley came out of his office and convoyed an instruction to her through a colleague. On another occasion Mr Frawley was looking for an item of stationary. Despite knowing that she was responsible for stationary supplies Mr Frawley avoided asking her where the item was located. After she left the employment she drafted a letter to the Respondent setting out her complaints at the manner in which she had been treated. She drove to the Cork office on or about 16thDecember to hand-deliver this letter to Mr Frawley. Mr Frawley was not available to meet her and she left the letter for his attention.
After her dismissal the Complainant continued to have contact with Ms D, who told her that she was performing her former duties in the office.
In cross-examination the Complainant accepted that she had been told that the CASH Champion role was being assigned to Ms D and that she voiced no objection. She said that at that time she was busy with her new child and the new arrangement was not a major concern to her.
The Complainant told the Court that when she was absent Ms D covered her duties. She accepted that she could not perform the full range of duties that Ms D performed in that she could not produce reports on a CASH system. She said that she would have been able to perform that function had she been given two or three day’s training. She said that at the time of her dismissal she provided administrative support to four engineers. She accepted that the number of engineers with whom she worked had declined since 2006. She said, however, that there was no overall diminution in her workload overall.
Turning to the circumstances surrounding her redundancy, the Complainant told the Court that there had been no prior indication of what was in contemplation. No alternatives were discussed and she was told that the decision was final. She believed that there were viable alternatives and that she would have been prepared to consider redeployment or working reduced hours. She said that she was not provided with any opportunity to make a case as to why she should be retained in preference to others.
The Complainant told the Court that she believed that the letter that she had sent to the Respondent on 14thNovember 2008 was a significant causal factor in the decision to terminate her employment.
Conclusions of the Court
The legal principles applicable in a case such as this are not in dispute and can be briefly stated. The Complainant case is predicated on the assertion that her dismissal was tainted with discrimination on grounds of her family status and / or that it was an act of victimisation in consequence of her opposition to the Respondent’s revised maternity leave policy. The Respondent accepts that the letter which the Complainant sent on 14thNovember in which her objections to the maternity leave policy were set out constitutes a protected act for the purposes of s.74(2) of the Act.
Ostensibly, the dismissal of the Complainant on grounds of redundancy was lawful. However, if the decision to select the Complainant for redundancy was in any material sense attributable, or connected, to any of the matters upon which she relies, it was rendered unlawful and she is entitled to redress. Hence, the true motives or reasons which influenced that decision are crucial in determining this case.
The Burden of Proof
Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent.
The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
It is also well settled that 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 the Determination of this Court inKieran McCarthy v Cork City CouncilLabour Court Determination EDA082).
Where aprima faciecase is made out the onus shifts to the Respondent to prove the absence of discrimination. This requires the Respondent to show a complete dissonance between the protected characteristic relied upon (in this case family status) and the impugned act or omission alleged to constitute discrimination. InWong v Igen Ltdand others IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. In practice the Court will look to the Respondent to shown that the protected characteristic relied upon had no material influence whatsoever in arriving at the impugned decision.
The decision of the UK Employment Appeals Tribunal inBarton v Investec Henderson Crosthwaite Securities Ltd IRLR 332, is authority for the proposition that where the burden of proof rests on the Respondent a Court should normally expect cogent evidence to discharge that burden since the facts necessary to prove a non-discriminatory explanation would normally be in the possession of the respondent.
Has the Burden of Proof Shifted?
On the evidence the Court is satisfied that the decision to transfer the service desk from the Cork office to Dublin was taken for economic reasons and that this is not a case of a contrived redundancy. However, that conclusion is not determinative of the case as it does not dispose of the question as to why the Complainant was selected for redundancy.
The evidence has disclosed that the process by which the Respondent arrived at the decision to dismiss the Complainant was peremptory in nature and wholly lacking in procedural and substantive fairness. The Complainant was given no prior indication that her dismissal was in contemplation. It is also clear that no consideration was given to any alternative course of action that could be adopted to deal with the situation that had arisen. Nor was the Complainant given any opportunity to make representations on her own behalf as to why she should be retained or on alternatives that might be available. Moreover, the process used in this case was in marked contrast to what was envisaged in the Respondent’s stated policy as enunciated in the staff handbook. It provides, in relevant part, as follows: -
- “In the case of compulsory redundancy the Company will ensure that employees are fully consulted both individually and collectively. A selection criterion where appropriate will be adopted and alternative work will be considered if any is available. You will be given every opportunity to put forward any views of your own during consultation”
While a discriminatory taint is not the only inference which can be drawn from that confluence of facts, it is within the range of inferences that can reasonably be drawn. In these circumstances the Court is satisfied that the Complainant has established facts which are of sufficient significance to place the probative burden of showing an absence of discrimination on the Respondent.
The onus which the Respondent bears is to prove that there was no discrimination whatsoever in the impugned decision. The standard of proof is the normal civil standard of the balance of probabilities.In Miller v Minister for Pensions 2 All ER 372 Denning J (as he then was) explained in relation to that standard: -
- “If the evidence is such that the tribunal can say: ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal is not”
In these circumstances the Court must hold that the Respondent has failed to discharge the burden of proving the absence of discrimination or victimisation in the decision to select the Complainant for redundancy.
Turning finally to the claims of victimisation in the period during which the Complainant was on notice, the Court is not convinced that the events relied upon can be classified as acts of victimisation. The Court does not believe that Mr Frawley was actuated by ill-will or animus towards the Complainant. Rather, from the evidence which he gave, the Court is more inclined toward the view that Mr Frawley was uneasy with the manner in which the Complainant had been treated and that he was embarrassed by having to implement her dismissal.
It follows that the Court cannot uphold the Equality Tribunal’s decision on this aspect of the claim.
For all of the reasons set out herein the Court has concluded that the Equality Tribunal’s finding that the Complainant’s dismissal was tainted with discrimination and victimisation must stand. That part of the Equality Tribunal’s decision and the award of compensation in the amount of €24,000 are affirmed. That award is for the effects of discrimination and is not in the nature of remuneration. The separate finding of victimisation and the award of compensation in the amount of €5,000 is set aside.
The decision of the Equality Tribunal is varied accordingly.
Signed on behalf of the Labour Court
7th November 2013______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.