Adjudication Officer/Equality Officer’s
Decision No: DEC-E/2016/155
Parties
Lyons
(Represented by Mr. Conor Bowman BL
Instructed by McCartan Burke Solicitors)
-v-
Irish Life Financial Services
T/A Irish Life
(Represented by Mr. Brian Conroy BL
(Instructed by In-House Legal Department)
File No: EE/2012/326
Date of issue: 6 December, 2016
1. DISPUTE
This dispute involves a claim by Ms. Suzanne Lyons (“the complainant”) that she was (i) discriminated against by Irish Life Financial Services Ltd t/a Irish Life (“the respondent”) on grounds of gender and/or family disability, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment; (ii) harassed by the respondent on grounds of gender and/or family status in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts and (iii) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2011.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a Wealth Management Consultant in March, 2000. She states that she enjoyed an excellent working relationship with senior colleagues at all times until October, 2010 when she informed her Line Manager (Mr. X) that she was pregnant and that she would be commencing maternity leave in late February/early March, 2011. She alleges that thereafter Mr. X treated her differently and made a number of inappropriate comments to her at team meetings which she submits amount to discrimination and/or harassment of her on grounds of gender and/or family status contrary to the Acts. She adds that she invoked the respondent’s Internal Grievance Procedure in January, 2012 and submits that the manner in which the respondent conducted this investigation and the subsequent appeal of this process amounts to victimisation of her in terms of section 74(2) of the Acts. The respondent rejects the allegations in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 14 June, 2012. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Pursuant to section 40(3)(b) of the Workplace Relations Act, 2015 I became an Adjudication Officer of the Workplace Relations Commission on 1 October, 2015, although this did not alter the delegation of the complaint to me in any way. My investigation of the complaint commenced on 6 November, 2014 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on November, 2014 and 10 February, 2015. A number of issues required further correspondence between the parties and the Equality Officer for a number of months subsequent to the Hearing.
2.3 At the outset of the Hearing on 14 November, 2014 an issue arose in respect of the authority of the Equality Officer to require the attendance of Ms. Z, a colleague of the complainant, to attend the Hearing to give evidence. The Equality Officer gave the parties the opportunity to advance argument on this matter before issuing a ruling on how he intended to procced. The arguments advanced and the reasons for this ruling are set out at Section 3 of this Decision.
2.4 In addition, it is noted that the complainant’s submissions contain allegations of unlawful treatment of her which postdate the date of referral of the complaint. It was noted that one of these alleged incidents concerned issues connected with the application of the respondent’s Income Continuance Plan to the complainant. However, this aspect of the complaint was withdrawn at the Hearing on 14 November, 2014. Consequently, the only element of the complainant (as advanced) which postdates the date of referral of the complaint to the (then) Tribunal was the appeal process of the internal investigation conducted by Ms. R. Counsel for the complainant argued that this alleged treatment in inextricably linked to the complaint she made about Mr. X and was the subject of the internal investigation and that it would be unfair if this element of her complaint was not considered as part of my investigation. Written submission were subsequently filed by the parties on whether or not this element of the complaint was properly before me for investigation having regard to the position adopted by the Labour Court in Hurley v Cork VEC[1] and whether the circumstances in the instant case could be distinguished from that Determination.
2.5 In this regard Counsel for the complainant submits that the appeal process is part of a continuum of unlawful behaviour which the complainant was subjected to. It is further submitted that had the complainant not filed her complaint until the outcome of the appeal her complaint to the Tribunal would have been statute barred. Counsel for the respondent submits that as the appeal findings were delivered more than two years after the complaint was referred to the Tribunal, the appeal process cannot be considered as part of the complaint. It is submitted that the appeal process cannot form part of a continuum of alleged unlawful treatment which arose prior to the referral of the complaint to the Tribunal. Counsel notes that the decision in Hurley requires there must be “some reality” in the behaviour forming a continuum which predates and postdates the referral of the complaint to the Tribunal.
3. PRELIMINARY ISSUE
3.1 By letter dated 5 November, 2014 the complainant’s Solicitor requested the Equality Officer to exercise his powers pursuant to Section 95 of the Employment Equality Acts, 1998-2011 and require the attendance of Ms. Z, a colleague of the complainant, at the Hearing scheduled for 14 November, 2014. I responded on 7 November, 2014 advising that following perusal of the submissions filed by the parties I was not disposed to exercising my statutory power to require her attendance. A copy of both pieces of correspondence were copied to the respondent’s representative in accordance with the standard practice of the (then) Tribunal. By letter dated 12 November, 2014 the complainant’s solicitor wrote seeking that I reconsider my decision and setting out, in significant detail, what information Ms. Z was in possession of and the reasons why she should be compelled to attend. In essence, this request centred on the argument that Ms. Z was in a position to give evidence that Mr. X (who was at different times both her and the complainant’s Line Manager) had behaved in a certain manner towards her (Ms. Z) which could go the credibility of Mr. X.
3.2 Having considered this new material I decided to require Ms. Z to attend the Hearing on 14 November, 2014 and issue a letter in this regard by email – this address had been furnished by the complainant’s solicitor. This letter was copied to the legal representatives of both parties. The respondent’s legal representative responded by letter dated 13 November, 2014 which queried my jurisdiction to revisit the matter, arguing that in making my original decision on 7 November, 2014 I was functus officio the matter. This letter did not come to my attention until the morning of November, 2014 – shortly before the Hearing was due to commence. I decided give both parties the opportunity to advance arguments on the matter at the outset of the Hearing before deciding on how to proceed.
3.3 Counsel for the respondent submits, in the first instance, that I have no jurisdiction to revisit the decision I reached on 7 November, 2014. He further submits that Ms. Z did not witness any of the alleged incidents of unlawful treatment of the complainant and as such she has no relevant information to my investigation. He adds that any evidence she can give relates to alleged incidents which occurred several years ago and in respect of which no complaint – internal or otherwise - was ever made. He adds that it is not corroborative of the alleged incidents which the complainant alleged in that she (Ms. Z) was not present and cannot therefore confirm whether they did, or did not, occur. In essence her evidence is described as “similar fact evidence”. Counsel argues that this is a doctrine which exists in very limited circumstances in criminal law - where its probative value outweighs its prejudicial effect. Her evidence therefore should not be permitted. In this regard Counsel relies on the judgment in DPP v Keogh where Kelly J referred to “the deep seated objection at common law to evidence of this type being adduced as…it would run counter to the concept of justice in our legal system.” and the judgement of Barron J in The People (DPP) v BK as follows “… there is similar fact evidence, which is inadmissible. In the latter case the reason is that just because a person may have acted in a particular manner on one occasion does not mean that such person acted in the same way on some other occasion.”.
3.4 Counsel for the complainant submits that section 95 of the Employment Equality Acts, 1998-2011 does not preclude me from revisiting my decision of 7 November, 2014. He adds that if I was prevented from making such a re-assessment it would be utterly contrary to the principles of fairness and natural justice. He states that the respondent declined to interview Ms. Z at any stage during the internal grievance process, notwithstanding the fact that it was aware of the information she possessed and the fact that Mr. X (in the course of that internal process) wished to have her identity made known to him and that he be afforded the opportunity to confront her. Counsel submitted that I was not bound by that decision and that I was absolutely at liberty to disregard any information proffered to me in the course of my investigation. He adds that the information Ms. Z has in her possession is personal experience of the attitude Mr. X has towards pregnant employees and his general discriminatory disposition towards female employees. Moreover, Counsel states that the a main basis of the complaint before the Tribunal is that the unfair manner in which the respondent conducted the internal investigation and appeal process constitutes victimisationof the complainant contrary to the Acts. A primary element of that allegation is its refusal to interview Ms. Z as part of that process. It is submitted therefore that this is information relevant to my investigation. Counsel relies on the judgment of Charlton J in Condron v ACC Bank plc[2] as follows “the trial judge is in the best position to judge the real issues in the case; when the case is opened; when the papers are read and as the case develops, what is crucial to the disposal of the case becomes increasingly obvious.” Counsel also draws attention to Charlton J’s comments that “evidence may be especially relevant if it rebuts a defence”.
3.5 Section 95(1) of the Employment Equality Acts, 1998-2011 provides as follows:
“For the purpose of enabling [an Equality Officer/Adjudication Officer] …. to exercise their functions under this Part, the [Equality Officer/Adjudication Officer]…
(a) may require any person, who in the opinion of the [Equality Officer/Adjudication Officer ]… is in possession of, or has in his or her power or control, any information that is relevant to the exercise of those functions and
(b) where appropriate, may require any such person to attend before [the Equality Officer/Adjudication Officer….”.
Firstly, it is not disputed that I have extensive powers under Section 95 of the Acts. However, they are powers which I have exercised on only a small number of occasions during the time I have been an Equality Officer/Adjudication Officer. I do not accept that they restrict me from making a decision on whether or not to use them to a particular point in time, or that I cannot revisit a decision initially reached in circumstances where more fulsome material come to light. Nothing in the provision points to such a restriction. In fact I am of the view that decisions of the nature at issue could be made at any time during my investigation, given the section enables me to exercise them for the purposes of functions conferred on me under Part VII of the Acts. In short, I do not accept that my decision of 7 November, 2014 rendered me functus officio.
3.6 The evidence which Ms. Z was in a position to proffer was characterised by both Counsel as “similar fact evidence”. This is a concept which is common in criminal law and in essence precludes evidence which touches on the accused’s previous bad character. However, it is not an absolute exclusion and in criminal trials the admissibility of such evidence is assessed on striking a balance between whether the probative value to the process outweighs its potential prejudicial effect on the accused. However, the instant proceedings are not criminal in nature. In County Louth VEC v Equality Tribunal & Brannigan[3] McGovern J held that “it is important to emphasise that a hearing before the Equality Tribunal is not a hearing in a court of law with all the intended formality that would exist in such a forum.”. He went on to say that it was open to such a Tribunal to relax these rules and exercise flexibility in order to investigate a complaint referred to it, provided it did not amount to prejudice to either of the parties.
3.7 The burden of proof in cases of discrimination is set out at section 85A of the Employment Equality Acts, 1998-2011. It requires a complainant, in the first instance, to establish facts from which an inference of discrimination could be inferred. On perusal of the documentation available to me on the morning of the Hearing and having regard to the arguments made by Counsel, it was clear that the complainant’s legal representative had made significant efforts to have Ms. Z interviewed as part of the internal investigation process and that the respondent resisted those efforts. It was also clear to me that the evidence Ms. Z was going to adduce was factual in terms of her direct experience with Mr. X. This evidence could be challenged by Counsel for the respondent and indeed Mr. X could give direct rebuttal evidence. Her evidence was not going to be corroborative of events alleged by the complainant – indeed it could not be so as she was not present on any of the occasions. Counsel for both parties could then advance arguments as to the weight I could attach to that evidence. In all of the circumstances and having regard to the authorities advanced by the parties, I was of the view that there was limited potential for prejudice to the respondent and any that might exist was outweighed by the potential benefit to my investigation. I therefore decided to take evidence from Ms. Z. I would decide subsequently whether or not it has any bearing or probative value to the issues comprising my investigation.
4 SUMMARY OF COMPLAINANT’S CASE
4.1 The complainant commenced employment with the respondent as a Wealth Management Consultant in March, 2000. She states that she enjoyed an excellent working relationship with senior colleagues at all times, including her Line Manager (Mr. X) whom she had worked with (as her direct Line Manager) since 2007. The complainant states that her working relationship with Mr. X changed in October, 2010 when she informed him that she was pregnant and that she would be commencing maternity leave in late February/early March, 2011.
4.2 The complainant states that she attended a meeting with Mr. X on 27 January, 2011 for the purposes of determining her annual appraisal rating for the purposes of bonus payments etc. The complainant states that her rating is determined by her performance in the previous two years. She adds that she had prepared thoroughly for the meeting and she was satisfied, based on her calculations, that she had achieved a rating of “4”. The complainant states that when she arrived for the meeting Mr. X was unprepared; that he informed her she was the last employee to be appraised and that he was under pressure to complete the process and pass the results upwards. She adds that from the details Mr. X was operating off she could see that the rating he was assigning to her was “3”. The complainant adds that she had to argue every single point with him and that the tenor of the meeting was stressful for her. She further states that she was very upset by the interaction and she began to cry. She adds that Mr. X was indifferent to her situation and just continued with the meeting – which lasted forty-five/fifty minutes. The complainant states that she would have expected something more from a senior manager in the circumstances, particularly as she was over seven months pregnant at the time. She adds that she felt demoralised and brow beaten by the entire process and eventually accepted the outcome. The complainant further states that the appraisal process could go on for a number of days during which issues in dispute are queried and debated and if necessary figures are re-adjusted. The complainant is unable to say the manner in which her four colleagues’ appraisals were conducted – she did not ask them and they are private – but she was unaware of any issues with them. In this regard she stated that such matters would filter out through the office grapevine and she was not aware of any such comments. In the course of the Hearing the complainant stated that the only other female on the team (Ms. P) was happy with the process and the outcome of same. She also said that as far as she knew she was the only member of the team Mr. X was proposing to give a rating of “3” to. She added that she did not believe Mr. X would have behaved in a similar fashion with any of her male colleagues; in particular he would not attend the appraisal meeting so unprepared. Finally she stated that her pregnancy was not mentioned at all during the meeting.
4.3 The complainant accepts that her rating was subsequently upgraded to a “4” but states that there was no alteration to the figures on which the persistency element of her bonus was calculated. She further states that as far as she was concerned this element of her bonus calculation was not up for discussion at the appraisal meeting on 27 January, 2011 and she just accepted it. She adds that Mr. X informed her (in the course of that meeting) that she could have a rating of “4” or the persistency bonus but she could not have both. The complainant further states that the manner in which her persistency bonus was calculated impacted on her bonus to the tune of €30,000. She states that this was the first time she had felt so intimidated at an appraisal meeting – she had attended over forty such meetings during her career – and on this occasion she was pregnant. The complainant accepts that after an internal evaluation some of the persistency bonus due to her had been paid (in October, 2014) but there were still monies outstanding. In the course of the Hearing the complainant stated that she was unaware if any of her male colleagues were treated differently to her in terms of her persistency bonus but she added that if they were she would have heard about it and no such comments were brought to her attention. She adds that in her view he did not fight her corner and he would have done so for her male colleagues. It is submitted on her behalf that the manner in which she was treated as regards these matters amounts less favourable treatment of her on grounds of gender contrary to the Acts.
4.4 The complainant states that the Mr. X made a number of inappropriate comments to her in the period following her advising him that she was pregnant - end 2010 until June, 2011. She adds that they were frequent enough and details three examples of these comments which, it is contended, are indicative of a pattern of such behaviour. She adds that two of them happened in the course of team meetings between December, 2010 and early March, 2011, the other occurred in June, 2011 when she brought her son into the office to meet colleagues and they went to lunch, although she was unable to provide specifics of the other occasions when she contends that comments of this nature were made. The complainant states that the team meetings were not particularly structured and were a “bit of a free for all” during which things were said that may not have been heard by all present. The complainant further states that in the course of a team meeting Mr. X said “Susie won’t be adding to the number this year so she doesn’t care”. The complainant submits that this refers to the fact that she would not be contributing to the overall output of the Team because she was going on maternity leave. She further submits that such a comment undermined her position and reflected her in a poor light because she was having a baby. She adds that on another occasion (she could not be specific when) Mr. X said “you picked a great year to leave”. The final comment which the complainant attributes to Mr. X is “If I could get pregnant, I would. It would be great to get away for maternity leave”. The complainant states that this comment was made to her in a café when she brought her son into the office in June, 2011.
4.5 In the course of the Hearing the complainant identified a number of colleagues whom she asserts these comments were made in front of. However, she did not specifically identify these persons as potential witnesses in her internal complaint as she did not want to involve them. She added that she did not report them to the respondent at the time because she did not believe that they would be taken seriously and she would be ostracised for complaining. Finally, the complainant stated that could not recall Mr. X behaving in a similar fashion with any of her colleagues. It is submitted on the complainant’s behalf that this alleged behaviour constitutes less favourable treatment and/or harassment of her on grounds of gender contrary to the Acts. The alleged comment in June, 2011 is also advanced on the ground of family status.
4.6 The complainant states that she contacted the respondent on 7 December, 2011 to advise that she would be returning to work the following Monday. She adds that she arrived at 8:30am that morning to find that she had no access to her computer. She further states that she logged a call to the IT Division and was advised that her Line Manager would have to make those arrangements. The complainant adds that she approached Mr. X immediately, furnished him with the relevant information and he (Mr. X) put things in train. She states that later that morning she contacted IT Division to get an update on the situation and was advised that it would take three days to get her reactivated on the system. The complainant adds that she made direct contact with someone she knew in the IT Division and that person arranged to have the complainant’s laptop reactivated. She was therefore able to access the system and make arrangements for her CPD. She further states that Mr. X left the office for a meeting later that day so she did not meet with him. The next day she had no contact with Mr. X – he left the Return to Work Procedures on her desk – so she merely prepared her CPD and dealt with the significant number of emails she had received during her absence. The complainant states that the following day she attended an all-day training course so she did not meet with him. She adds that Mr. X sent her an email on 20 December, 2011 informing her that he would sit down with her in January to deal with the Return to Work Procedures and any other business.
4.7 The complainant states that she was not aware of these Procedures until she received them at that time. She adds that Mr. X completely disregarded them. She makes particular reference to the clauses that (i) prevents her from meeting customers for the first week following her return; (ii) prevents her from returning to her role unless she is signed off as competent to do so by her Line Manager and (iii) the requirement that she spend her first two days back at work with her Line Manager. The complainant adds that she did not feel that her return to work was viewed in a favourable light by Mr. X; that she felt undermined, disrespected and unsupported; that she expected all of the preliminary issues to have been completed before she returned as Mr. X had sufficient notice of her date of return - and submits that his actions support these assertions. In the course of the Hearing the complainant stated that she was not aware of any colleague who was treated differently in similar circumstances – as far as she knew there was nobody who was absent for a long period – but she believed that this would not happen to a male colleague. She also confirmed that (i) she did not pursue the matter with him and she felt that he would get to her in his own time and (ii) that shortly after her return from maternity leave (16 December, 2011) she commenced long-term sick leave. It is submitted on her behalf that this amounts to less favourable treatment and/or harassment of the complainant on grounds of gender and/or family status contrary to the Acts.
4.8 The complainant states that she was due to return to work after maternity leave on 5 December, 2011. She adds that she was unable to do so due to a chest infection and that she contacted Mr. X by telephone on 1 December, 2011 to advise him of this and that she hoped to be fit to resume duty before Christmas as she wanted to be settled in before the New Year. The complainant states that in the course of this telephone conversation Mr. X asked her to secure a good restaurant for the staff Christmas party and advised her of the budget for same. She adds that she agreed to do so once she was feeling better and that she subsequently secured a booking at a high quality restaurant (details supplied). She states that she informed Mr. X of the booking and that subsequently some of her colleagues indicated they would prefer a cheaper restaurant and retain a greater part of the budget for drinks. The original booking was cancelled and an alternative venue arranged by another colleague Mr. Y. The complainant states the meal was particularly disappointing and that as they walked from the restaurant to the pub she made a comment to Mr. Y that the food was not particularly good but not to worry. She adds that sometime after they arrived in the pub she approached Mr. X and asked him given that the food was poor, how much the meal had cost. The complainant states that Mr. X told her in an aggressive tone to lay off Mr. Y as he was feeling bad enough. She adds that she replied she had spoken with Mr. Y about the matter earlier, that they had joked about it that he (Mr. Y) had not made an issue of things. She adds that Mr. X shouted at her that her opinion didn’t count and that she was only back from maternity leave a week. The complainant states she was shocked and upset by this comment and she left the pub. In the course of the Hearing the complainant was adamant that Mr. X used the words attributed to him and rejected the statements of a number of colleagues contained in the respondent’s submission about this incident. It is submitted on behalf of the complainant that this constitutes less favourable treatment and/or harassment of her on grounds of gender and/or family status contrary to the Acts.
4.9 The complainant states that she made a complaint under the respondent’s Internal Grievance Procedure on 30 January, 2012. She adds that this complaint made specific reference to the events at the Christmas party, the appraisal meeting in January, 2011 and allegations that Mr. X had made inappropriate comments to her as regards her pregnancy and maternity leave. Counsel for the complainant contends that this letter amounts to a “protected act” in terms of grounding a claim of victimisation contrary to section 74(2) of the Employment Equality Acts, 1998-2011. Counsel submits that the manner in which the respondent conducted certain aspects of the initial investigation process and the subsequent appeal by the complainant of the outcome of that process constitutes victimisation of the complainant contrary to section 74(2)(a) the Acts. In particular Counsel refers to the following matters in respect of the initial investigation process (i) the failure of the respondent (in the form of Ms. J and Mr. K) to interview Ms. Z; (ii) the failure of the respondent to allow the complainant to cross-examine witnesses who gave evidence by way of statement and (iii) the failure of the respondent to give appropriate weight to, or completely disregard, the evidence of Ms. P, Mr. C and Mr. Q. These issues are advanced in respect of the appeal process also and in addition Counsel refers to the following - the approach of the respondent (in the form of Ms. R) in the course of the appeal process to interview the complainant at length on each and every issue and only question Mr. X on the bonus issue. Counsel submits that the approach of. Ms. R can only be explained by the fact that she had predetermined the outcome of the process - which was focused on protecting Mr. X.
4.10 Counsel for the complainant submits that the appeal process adopted by the respondent – appointing Ms. R to conduct the appeal – is inconsistent with its own Grievance Procedures. It is submitted that Stage 4 of those Procedures merely provides for a meeting between the complainant and a Senior Manager and did not provide for a full appeal process before Ms. R. Counsel argues that the matter was at Stage 5 of the Procedure and as such the appeal should have been assigned to an external person to be agreed between the parties. In summary Counsel submits that the entire investigation and appeal processes were conducted in a manner which was inconsistent with fair procedures as enunciated in Re Haughey[4] . Counsel submits that the default standard of procedures to be applied where no proper procedures are in place in the workplace is those set out in SI 146/2000[5] and in particular Clause 6 of paragraph 4 of the Schedule to those Regulations which states as follows “The employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate factors or circumstance”. It is argued that the manner in which the respondent conducted the investigation and appeal of the complainant’s complaint breached this principle and that this breach amounts to victimisation of her in terms of section 74(2) of the Employment Equality Acts, 1998-2011.
4.11 In summary, it is submitted by Counsel for the complainant that the alleged behavior of Mr. X towards the complainant constitutes less favourable treatment of her on grounds of gender and/or family status contrary to the Acts. Counsel argues that, in the alternative, this alleged treatment constitutes harassment of her on the same Mr. X, the respondent victimised her in terms of section 74(2) of the Acts in the unfair manner in which it investigated her complaint and the subsequent appeal of that investigation. Counsel notes there are glaring differences in the evidence adduced by the parties on all elements of the complaint. He argues, in terms of the Christmas party, that the evidence adduced by the various witnesses at the Hearing differs significantly to the responses they furnished to the respondent’s internal investigation on that matter, particularly as regards the sequence of events, and submits that the evidence adduced to the Adjudication Officer is corroborative of the complainant’s version of events. Counsel further argues that many of the witnesses who gave evidence in respect of alleged events at team meetings qualified their responses, rather than saying they just did not happen, and submits that in those circumstances the comments could well have been made. He adds that the statement of Ms. P to the internal investigation, which was furnished to the Adjudication Officer by the respondent, supports the complainant’s assertion that a comment about her maternity leave was made at those meetings. Counsel further argues that the respondent failed to properly investigate the complainant’s complaint which she referred to it in January, 2012 both at first instance and on appeal. He submits that its failure to allow Ms. Z give evidence as part of that process and the general operation of unfair process amounts to victimisation of her contrary to the Acts.
5 SUMMARY OF RESPONDENT’S CASE
5.1 The respondent rejects the complainant’s assertions in their entirety. It states that the alleged incidents did not take place at all, or if they did that they did not occur as asserted by the complainant and consequently, they do not constitute unlawful treatment of the complainant contrary to the Acts. It adds that the complainant’s role as a Wealth Management Consultant is a well remunerated one which is largely self-directed and that a large proportion of her earnings are based on her sales figures. It adds in that regard a Wealth Management Consultant is under considerable pressure to meet sales targets.
5.2 The respondent (Mr. X) rejects the assertion that he made derogatory comments to the complainant about her pregnancy as alleged. He confirms that the working relationship between him and the complainant was good. He accepts that the team meetings could be lively; adding that the team members are high performing, competitive individuals and that exchanges between them could be heated. He further states that consequently, it could be difficult for him as Manager to keep the meetings focused on business issues. Mr. X states that each individual team members’ sales figures would be displayed on a board and discussed. He adds that if someone was going to be absent for a period his/her sales figures would be excluded. He further states that this would have happened in terms of the complainant but emphatically rejects the assertion that he made the comments attributed to him or that he made any comments which made reference to her maternity leave. Mr. X accepts that during these meetings comments could be made in jest by the participants but that he would attempt to maintain focus on the business matters at hand. Mr. X further accepts that he attended lunch with the complainant during her maternity leave but emphatically rejects that he made the commented attributed to him by the complainant. He also rejects the assertion that he made such comments to her in the course of one-to-one meetings or over the telephone.
5.3 The respondent states that annual appraisals are conducted in respect of the Wealth Management Consultants against strict numerical criteria involving objective metrics. The respondent (Mr. X) states that he completed all of the appraisals at the same time and accepts that the complainant may have been last to be appraised but states that the was nothing deliberate in that. Mr. X rejects the assertion that he was unprepared for the meeting and states that on the basis of his assessment of the data available to him the complainant’s rating was “3” and this was the rating he had inserted on his document. He adds that the complainant noticed this rating at the outset; that she became annoyed and the meeting proceeded in a heated fashion as the complainant sought to obtain a rating of “4”. In the course of the Hearing Mr. X rejected the assertion that the complainant was “in floods of tears” at this meeting or that he conducted it in an “aggressive or overpowering manner”, but accepted she was visibly upset and that there were tears in her eyes at the end of the meeting. Mr. X added that her demeanour during the meeting did not give rise to any concerns on his part which would lead him to terminate it, although she was upset at its conclusion. Mr. X states that he subsequently rechecked the data he had originally based his assessment on and found it was incorrect. He adds that the complainant also produced evidence that she had taken the lead in other work he was previously unaware of. He states that in light of this new information and having recalculated the data using the correct details, he found she was entitled to a rating of “4” and he changed the complainant’s rating accordingly later the same day.
5.4 The respondent (Mr. X) accepts that the complainant also raised an issue about her persistency bonus calculation in the course of this meeting but rejects the assertion that he told her she could have her rating or her persistency bonus reviewed but she could not have both. In the course of the Hearing Mr. X stated that there was a there was a volume of business which had gone from the complainant’s portfolio of business but which had stayed within the respondent. He added that as such he recommended that this business should be excluded from the calculation of her persistency bonus (and this not negatively impact of the value of the bonus) but that the decision on this matter did not rest with him. He stated that he brought this matter to the attention of Mr. A, the Regional Sales Director who decided to exclude only 50% of the value, following consultation with Mr. H - a Senior Manager in the Persistency Bonus Function. Mr. X stated that the business had been written recently and consequently, the respondent had paid the initial commission on that business and this was a factor in the outcome. He added that there was no fixed formula for the rate of business to be excluded in those circumstances but rejects the assertion that the calculation of same had anything to do with her pregnancy.
5.5 The respondent states that the Return to Work Procedures are specific to Financial Consultants to ensure compliance in the financial planning area - where the complainant worked - in terms of the Minimum Competency Code from the Central Bank. It adds that they were introduced in June, 2011 at a time when the complainant was on maternity leave. Mr. X accepts that, under these procedures, the complainant was required to complete certain training, undergo tests and certain supervision and had to be “signed off” by him before she could recommence the tasks she had previously performed and that she was not permitted to engage with clients until this was complete. Mr. X states that he welcomed the complainant back on 12 December, 2011and updated her on developments and that she attended a team meeting. He adds that she requested he activate her IT log-in and that he did so later that day. He accepts that the complainant may have contacted a colleague in IT personally and that she might have secured access prior to this. Mr. X states that in the course of this conversation they spoke of the compliance tests and it was agreed that she would complete the necessary tests and “sign off” would be completed in early January. He accepts that he should have done more preparation before her return and adds that he was unable to devote as much time as he might have liked to the process, due to the pressures of other work. Mr. X adds that this was not linked in anyway whatsoever to her gender or family status and that given the time of year she would have been unable to return to work before year end in any event. Mr. X states that he was unsure whether or not staff knew of the Procedures but in the course of the Hearing other staff in the area confirmed they were not aware of same. It is submitted by the respondent that its failure to bring them to her attention does not amount to less favourable treatment contrary to the Acts. It is further submitted by the respondent that such oversights are a common occurrence and that in the circumstances the complainant has failed to establish facts that these shortcomings are linked to the impugned grounds.
5.6 The respondent (Mr. X) rejects the assertion that he requested the complainant to organise a venue for the Christmas party. He states that the complainant volunteered to locate a venue in the course of a telephone conversation when she phoned to advise that she was returning to work following her maternity leave. Mr. X adds that he replied that she should liaise with Mr. Y as he was paying for the party with a company credit card. He adds that the complainant had organised the venue the precious year and it had been successful and he (Mr. X) was happy someone was willing to take the task on as it was the last thing on his mind. Mr. X states that the complainant secured a particular venue and subsequently this was not acceptable to other members of staff as they wanted to retain the bulk of the funds for drinks instead of an expensive meal. He states that the complainant approached him in the pub after the meal and asked how much the meal cost. He adds that he told her to ask Mr. Y as he had paid for it and she then went over to Mr. Y. The respondent (Mr. X) accepts that there was general agreement that the meal had been poor and states that Mr. Y approached him shortly afterwards asking if he (Mr. X) could ask the complainant to stop asking him about the meal as he was getting annoyed with her. He adds that a short time later he noticed that the complainant was in Mr. Y’s company and he (Mr. X) made his way over to where they were as he believed the issue was on the verge of spilling over. Mr. X states that he overheard the complainant mention the meal and he believed Mr. Y was going to react so he (Mr. X) said to the complainant “look I know the food was not good but can we just move on and enjoy the rest of the night”. He states that the complainant used foul language at him. He adds that three colleagues were present at the time (Mr. Y, Mr. E and Mr. F).
5.7 The respondent (Mr. X) stated that he replied to her “you are only back a week and you are using abusive language at me”. He strenuously denied that he made any reference to her maternity leave. Mr. X added that he could not recall any other occasion when the complainant used foul or abusive language to him. In the course of the Hearing Mr. X stated that he was a demanding manager who requires high performance of his team and that people could build up frustration with that and things can be said at social events. He added that he could understand this frustration building up with someone who had worked with him all year but she was only back a week. He added that this was a “turn of phrase” and had nothing to do with her maternity leave. It was submitted on behalf of the respondent that the three employees who were present during this altercation considered that Mr. X acted diplomatically, that the complainant acted aggressively and used bad language and that Mr. X made no reference to her maternity leave. It is further submitted that the complainant has failed to discharge the probative burden required of her and this element of her complaint must fail. The respondent originally argued that this matter was outside the scope of section 14A of the Acts but in the course of the Hearing Counsel for the respondent withdrew this argument and accepted that the Christmas party was covered by section 14A of the Acts as it was in “the course of employment”.
5.8 The respondent accepts that the complainant submitted a complaint against Mr. X to its HR Department on 30 January, 2011. This complaint was referred under the respondent’s Grievance Procedure but the respondent considered the subject matter (in some respects) to fall within the scope of the respondent’s Dignity and Respect at Work Policy and the matter was processed under both policies. The respondent states that on receipt of the complaint it commenced the process of investigating the complaint. It adds that in accordance with the policies Ms. J (HR Manager) and Mr. K (Regional Sales Director) were appointed to investigate the complaint. The respondent states that Ms. J wrote to the complainant on 7 February, 2011 acknowledging receipt of the complaint; advising the she and Mr. K had been appointed and that the complaint had been forwarded to Mr. X for reply; that any response would be copied to her on receipt and that the Investigation Team would revert to her in due course advising of how best to progress the investigation. It adds that Mr. X’s response was copied to her on 13 February, 2011. The respondent states that for a variety of reasons (some of which relate to the unavailability of the complainant) the complainant’s interview did not take place until 2 April, 2011. It adds that Investigation Team interviewed all persons who appeared to be in a position to offer relevant evidence/information in relation to the allegations made by complainant. It further states that the Investigation Team took this information into account in reaching its conclusions. The respondent accepts that notes that the complainant sought that Ms. Z be interviewed as part of the internal investigation. It states the Investigation Team noted that Ms. Z was not identified as a witness to any of the alleged incidents comprising the complainant’s complaint and confirmed same to the respondent. It further states that in accordance with legal advice furnished to the Investigation Team, the Team decided that it would have been unjust, improper and unfair to Mr. X to have regard to responses provided by Ms. Z in circumstances where she had no direct knowledge of the incidents under investigation and it decided not to interview her.
5.9 The respondent states that the Investigation Team issued its Report on the investigation on 25 June, 2012 and the complainant was given a right of internal appeal of this Report. The respondent submits that such an appeal is clearly contemplated by its Dignity and Respect at Work Policy and its Grievance Procedures. It further states that the complainant availed of this entitlement on 18 July, 2012 and that Ms. R (Director of Customer Service) conducted the appeal and issued her findings on 5 September, 2014. The respondent states that there was substantial correspondence between it and the complainant’s solicitor between these two dates concerning how the appeal process should proceed. It contends that the investigation and appeal processes were conducted in a fair manner in accordance with its internal procedures and complied with natural and constitutional justice for investigations of that nature. It further submits that the investigation was conducted in a manner which is consistent with Clause 6 of paragraph 4 of the Regulations in SI 146/2000[6] The respondent argues that the authorities relied on by the complainant can be distinguished in that in Glover v BLN Ltd[7] involve circumstances where an employee was being investigated for gross misconduct. It adds that in Re Haughey[8] the plaintiff was being investigated by the Public Accounts Committee of the Oireachtas. In the instant case the complainant was not being investigated at all rather she was making serious allegations of discrimination and harassment against Mr. X. The respondent also submits that should the investigation or appeals processes be found to be flawed (which is denied) than any such defect does not amount to victimisation of the complainant and she has failed to establish a prima facie case that is the case.
5.10 Counsel for the respondent submits, without prejudice to its arguments, that the alleged incidents do not amount to unlawful treatment of the complainant contrary to the Acts, that only one of the alleged incidents advanced by the complainant occurred within the six month time limit prescribed at section 77(5) of the Acts and consequently the remaining alleged incidents are statute barred unless they form part of a continuum as required byHurley v Cork VEC[9] . Counsel submits that the four alleged incidents are separate and discrete and cannot form part of a continuum. He argues, as regards the incident at the Christmas party, that the three witnesses who said they heard the conversation between the complainant and Mr. X heard no reference to maternity leave and submits that the complainant has failed to establish a prima facie case as regards this element of her complaint. Counsel makes similar arguments in respect of the alleged comments at team meetings and further submits that no evidence was adduced that her pregnancy or upcoming maternity leave was mentioned at the appraisal meeting. As regards the complainant’s allegations of harassment, Counsel argues, notwithstanding the respondent’s position that the alleged incidents do not amount to harassment, that it is entitled to avail of the defence under section 14A(2) of the Acts. In particular he states that it had (i) a Dignity and Respect at Work Policy and (ii) Grievance Policy in existence at the time and it applied them immediately on receipt of the complainant’s complaint. Finally, Counsel submits that the manner in which the internal investigation was conducted was fair and transparent. He further submits that those charged with the investigation and appeal approached their task with an open mind and made every effort to discharge their responsibilities in accordance with natural justice. He argues that there is an array of caselaw on the issues connected with internal investigations and contends that no definitive approach has emerged. Counsel submits that any shortcomings in the process cannot amount to adverse treatment of the complainant, as required by section 74(2) of the Acts, and therefore does not constitute victimisation in terms of that section.
6. EVIDENCE OF RESPONDENT’S WITNESSES.
6.1 Mr. L, is a Wealth Management Consultant and is a member of the complainant’s Team and confirms that he attended team meetings where the complainant and Mr. X were in attendance. Counsel for the respondent put the comments which the complainant attributed to Mr. X (to Mr. L) and asked him if he recalled Mr. X making those comments or comments of a derogatory nature about pregnancy or maternity at those meetings and he replied that he had not. The witness added that this did not mean that comments about pregnancy would never be made, but suggested that they would have be said in jest and would be supportive in nature. He added that he was at the pub after the Christmas party and did not witness the interaction between Mr. X and the complainant. The witness stated that, in his experience, there was no standard duration for appraisal meetings; that there was regular dispute/disagreement about the figures which would form part of the appraisal process and that these issues were open to discussion/argument between the employee and Mr. X. In response to questions from Counsel for the complainant Mr. L stated that it would be highly unlikely that a comment would be made at a team meeting which he did not hear. The witness confirmed that he saw the complainant leave the pub on the night of the Christmas and noticed she was upset. He added that he followed her outside and spoke with her for five to ten minutes. He stated that he understood the complainant was upset because she had a row with Mr. X although he could not recall whether or not she mentioned to him (at that time) the nature of the comment which she now attributes to Mr. X.
6.2 Mr. Q is a Wealth Management Consultant and is also a member of the complainant’s Team and confirms that he attended team meetings where the complainant and Mr. X were in attendance. Counsel for the respondent put the comments to him which the complainant attributed to Mr. X and asked him if he recalled Mr. X making those comments or comments of a derogatory nature about pregnancy or maternity at those meetings and he replied that he had no recollection of them being said. The witness stated that, in his experience, the duration of appraisal meetings varied. He added that these were financial reward meetings and as such employees were seeking to maximize the financial reward they could. In that regard he stated that the meetings could be heated if there was dispute about the figures being used but there was always scope to discuss these. In response to questions from Counsel for the complainant, the witness stated that team meetings were “vocal and robust” but clarified that these comments were not made in his presence. He further stated that comments would be made in jest between colleagues and that comments about maternity or pregnancy could be made but that such comments were not made in his presence because he would remember them. The witness did not attend the pub after the meal on the day of the Christmas party.
6.3 Mr. Y is a Wealth Management Consultant but is not a member of the complainant’s Team. In response to questions from Counsel for the respondent the witness confirmed that he had booked the venue where the Christmas party took place. He added that the complainant had contacted him with an alternative venue but that the group decided to go with his venue as it was “the cheap and cheerful” option. The witness accepted that the food was “terrible” and that the complainant approached him on leaving the restaurant to make her views known. He stated that the complainant approached him on the matter when they arrived in the pub he told the complainant that it was over “there was nothing that could be done about it, it was what it was and we are on a night out”. Mr. Y stated that the complainant continued to attempt to discuss the matter and by this time he was getting irritated about it. He then went to Mr. X and told him that the complainant continued to raise the matter and it was annoying him. The witness stated that the complainant approached him again and brought the restaurant into the conversation again; that Mr. X told her to leave it; that she used foul language at Mr. X and that he then remarked that she was just back from leave and she was being abusive. Mr. Y added that there was no mention of maternity leave. In response to questions from Counsel for the complainant the witness stated that his recollection of the events was that the complainant raised the issue of the restaurant with him in front of Mr. X; that he (Mr. X) told her to leave the matter alone; that the complainant then swore at him; that Mr. X replied making reference to her only being back a week from leave and being abusive; that she swore at him again and told him she would have him for that and she stormed off.
6.4 Mr. F is a Wealth Management Consultant but is not a member of the complainant’s Team. He is on the same Team as Mr. Y. In response to questions from Counsel for the respondent the witness stated that he was standing with Mr. E in the pub and the complainant approached them seeking their views on the meal. He added that it was clear to him that the complainant had considered the meal quite poor. He further stated that shortly afterwards he was standing with Mr. E, Mr. X and Mr. Y and the complainant approached them and raised the issue of the meal. He added that Mr. X intervened and said “Suzanne leave it out, you are only back a week” and the complainant replied by swearing at him (Mr. X). The witness stated that he could not recall Mr. X making any reference to maternity leave and that the last things he recalls is the complainant saying “I will have you for that”. In response to questions from Counsel for the complainant the witness stated that in his view Mr. X’s intervention was an attempt to calm the situation down and that the complainant’s reaction was in direct response to the comment made to her by Mr. X. The witness later clarified, in response to questions from the Adjudication Officer, that the comment made by Mr. X to the complainant was “you are only back a week” and that there was no reference to “leave” made.
6.5 Mr. E is a Wealth Management Consultant but is not a member of the complainant’s Team. He is on the same Team as Mr. F and Mr. Y. In response to questions from Counsel for the respondent the witness stated that he was standing with Mr. F in the pub and the complainant approached them seeking their views on the meal. He added that it was clear to him that the complainant had considered the meal quite poor. He further stated that shortly afterwards he was standing with Mr. F Mr. X and Mr. Y and the complainant approached them and raised the issue of the meal. He added that Mr. X said to her “you are only back a week and you are giving out”. He further stated that the comment was not made in an aggressive fashion and that there was no mention of maternity leave or leave in a general sense. The witness stated that the complainant then used foul language at Mr. X and told him “I’ll have you for this”. The witness was unclear exactly when this comment was made but was quite clear it was said as at the time he thought it was a strange comment to make. In response to questions from Counsel for the complainant Mr. E stated that the complainant’s foul language was in response to the comment made to her by Mr. X.
6.6 Mr. A was Regional Sales Director in the respondent at the relevant time and was Mr. X’s Direct Line Manager. In response to questions from Counsel for the respondent the witness explained the mechanism for calculation of the persistency bonus in the following terms. He stated that there was a threshold of loss on business within which an employee had to remain below. If it was considered that someone would be unduly treated because of a particularly large loss or something extraordinary happened, then those issues could be examined in terms of the calculation of a persistency bonus at the year end. He confirmed that these arrangements applied in the case of the complainant and he would have discussed these issues with Mr. X. The witness stated that in his opinion, the complainant was entitled to a persistency bonus regardless of whether the figures which she expected to be excluded from her calculation were excluded or not. The witness stated that Mr. X had raised the issue of excluding the entire amount of the disputed figures from the calculation of the complainant’s persistency bonus but that it would only be at year end that the cost of any intervention could be quantified. Nothing final was agreed at that time. He added that in January, 2011 he considered excluding the full amount of the disputed figures from the calculation to be “too rich” as it would cost the respondent too much. Mr. A further stated that his decision in this regard was generous in the circumstances which prevailed – if he was to provide the letter of the law she would not have received any additional payment. As it was she received an additional bonus payment of €13,000. The witness stated that the fact the complainant had been on maternity leave had no bearing on his decision.
6.7 In response to question from Counsel of behalf of the complainant Mr. A stated that despite the contents of Mr. X’s email of 19 January, 2011 to Mr. H (which was copied to Mr. A) – which indicates that the full amount of the disputed figure would be excluded from the calculation of the complainant’s persistency bonus, that this was not his (Mr. A’s) understanding of the situation as the cost to the company cannot be quantified until year end. The witness stated that Mr. X may have held this view, but this view was a mistaken one. Mr. A could offer no explanation why he had taken no action to correct Mr. X’s incorrect view at that time, other than to say his recollection of events was different. He did accept on reflection however, that it would have been easier to take that action at the time.
6.8 Mr. K was Regional Sales Director in the respondent at the time he was appointed to investigate the complainant’s internal complaint against Mr. X. In response to questions from Counsel for the respondent Mr. K confirmed that he was a peer of Mr. A in terms of his position with the respondent. The witness stated that the policies which governed the investigation process did not permit an oral hearing with cross examination by legal representatives and consequently the Investigation Team did not go down that route. The witness confirmed that the complainant was permitted legal representation at the meeting on 2 April, 2011 as the respondent had indicated she was entitled to same. Mr. K stated that whilst there were differences about the incident at the Christmas party the Investigation Team felt that there was more consistency and credibility in a number of witnesses’ responses and they went with those in reaching their conclusion on that matter. The witness further stated that as Ms. Z was not present at any of the alleged incidents comprising the complainant’s complaint the Interview Team formed the view that there was no merit in interviewing her. Mr. K stated as regards the appraisal meeting that they were satisfied that what the complainant ultimately sought or expected from that process - a rating of “4” – was subsequently given to her, so she suffered no disadvantage. He added that the Investigation Team was unable to determine the tone of the meeting. The witness stated that he received no documentation/spreadsheets regarding the persistency bonus – he would have been familiar with such a process given his day to day role – and consequently the investigation did not address the persistency bonus issue. Finally, as regards the complainant’s return to work the witness stated that the Investigation Team noted the busy working environment at the time and it was not unusual for shortcomings to arise, He added that the Investigation Team was satisfied that Mr. X had made “every attempt to bring things into place” when the complainant returned to work.
6.9 Inresponse to questions from Counsel for the complainant Mr. K confirmed that this was the first bullying/harassment/grievance investigation he had ever conducted but stated that he had conducted disciplinary investigations in his role as a manager. He also confirmed that he brought his personal experience to bear when reaching his conclusions in the course of the investigation process he conducted. The witness also confirmed that as far as he was aware the witnesses were furnished with copies of their record of interview before they were sent to the complainant and Mr. X but he was unsure if changes were made to same as that matter was handled by Ms. J. The documents furnished were not a verbatim note of the interviews rather they were a synopsis of the Investigator’s understanding of the responses given. The witness also stated that he was unaware of the provision in the respondent’s Dignity and Respect at Work Policy which permitted the Investigation Team to organize face-to-face meetings between the disputants in circumstances where they gave conflicting evidence. The witness concluded by saying that he believed the investigation process was conducted in a fair and transparent manner and the conclusions reached on the balance of probabilities. In response to a question from the Adjudication Officer, the witness was unable to point to anywhere in the Terms of Reference or other authority which permitted the Investigation Team to make a recommendation that the respondent’s disciplinary process should be invoked against the complainant where she accepted she had used foul language to Mr. X at the Christmas party. He rejected the assertion that this might amount to victimisation contrary to the Acts.
6.10 Ms. R stated that at the relevant time she was the respondent’s Director of Customer Service and that her professional background was as an Actuary. In response to questions from Counsel for the respondent and the complainant the witness stated that she had no acquaintance or knowledge of either the complainant or Mr. X prior to being appointed to hear the appeal of the complaint. The witness explained how she had calculated the complainant’s persistency bonus and on the basis of the information available to her she adjusted that figure upwards by €13,800. The witness stated that the full amount of the excluded losses had been taken into account in her calculations. She confirmed that her decision to exclude the full value of them was based on the email thread between Mr. X, Mr. A and Mr. H at the end of January, 2011 and the absence of any document which contradicted this or advised the complainant of something to the contrary. In essence she believed this was the fair thing to do in all of the circumstances despite the fact that the normal practice was not to allow the full amount to be excluded. The witness also confirmed that there were no spreadsheets on the file when she took seizin of it – the spreadsheets were furnished to her in mid-June, 2014. The witness stated that she made every effort to represent her conversation with the respondent as best she could and she shared her notes with the complainant for commentary. Ms. R added that she did not consider it necessary or appropriate to interview Ms. Z as she was not a material witness and she (Ms. Z) had not made a complaint about the alleged treatment of her. She further stated that whilst she considered it within her remit to re-interview witnesses who had been involved with the initial investigation but she decided against it because the complainant did not refute the contents of the statements in any significant manner; she (Ms. R) was of the view that quite a number of the statements were corroborative of each other and she was also of the view that it was unlikely they would all misrepresent the facts. She added that moreover, she did not consider there were any were any new specific facts or issues raised by the complainant.
6.11 The witness stated that in her view the comment which Ms. P made in the course of the initial interview was a comment about capacity of the team and she (Ms. R) did not consider the comment attributed to Mr. X to be derogatory in nature. She added that she took the comment as one that was related to planning for the next year and who would be there to contribute to the sale figures and who would not. The witness strongly rejected the assertion from Counsel for the complainant that the entire appeal process was merely a review of the original decision and was a charade, which displays a predisposition on her part against the complainant. She stated that she took her responsibility extremely seriously and conducted the process in a fair manner; she went through the file with a fine tooth comb - although she accepted that she did not reach a conclusion on each of the eleven grounds of appeal, adding that she requested the complainant’s solicitor to provide the additional information on several of those issues and he failed to do so. Finally, Ms. R accepted that she had remained silent on the recommendation contained in the initial Investigation Report that the complainant might be disciplined as she did not see it as an indication that the original Investigation Team were not impartial or independent. In response to a question from the Adjudication Officer the witness stated that she had never conducted a hearing of this nature previously and had no training in such matters. She further stated that her understanding of her role was to review the original decision; to hear argument from the complainant and to decide whether or not the original outcome was correct having regard to any new information that might emerge during the appeal process.
7 CONCLUSIONS OF EQUALITY OFFICER
7.1 The issues for decision by me are whether or not (i) the complainant was discriminated against by the respondent on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment; (ii) the complainant was harassed by the respondent on grounds of gender and/or family status in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts and (iii) the complainant was victimised by the respondent contrary to section 74(2) of the Employment Equality Acts, 1998-2011. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
7.2 Section 85A of the Employment Equality Acts 1998 - 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of the Equality Tribunal (now WRC) and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer/Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required her case cannot succeed.
7.3 In McCarthy v Cork City Council[10] the Labour Court elaborated further on how the initial probative burden might be discharged. The Court stated “In most, if not all, cases of discrimination the core fact in issue is the motive or reason (whether conscious or subconscious) for the act or omission complained of.”. The Court went on to say“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 a prima facie case. 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.”
7.4 The complainant contends that she was discriminated against, harassed and victimised contrary to the Acts and details a number of alleged incidents in this regard. In several of these alleged incidents she seeks to use the same facts to ground claims under both of these headings. In A School v A Worker[11] the Labour Court held “ that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts. The Court will, however, deal with these overlapping claims as if they were pleaded in the alternative.”and I propose to adopt the Court’s approach in the instant case.
7.5 Counsel for the respondent argues that all except one of the alleged incidents of unlawful treatment occurred outside of the six month time period prescribed at section 77(5)(a) of the Employment Equality Acts, 1998-2011 and consequently those alleged incidents are statute barred unless it is found that they form a continuum of unlawful treatment. In Hurley v Cork VEC[12] the Labour Court held that section 77(5) of the Acts encompasses a situation involving a series of acts which are sufficiently connected so as to constitute a continuum. The Court further held that in order for acts outside of the time limit to be taken into account there must have been acts of unlawful treatment within the time limit and there must be some reality to those acts. In the instant case the relevant period is 15 December, 2011-14 June, 2012. Two of the alleged incidents advanced by the complainant occurred during this period – the incident at the Christmas party and the internal investigation of the complainant’s complaint. The first alleged incident of unlawful treatment of the complainant is the appraisal meeting between the complainant and Mr. X in January, 2011. This was advanced on the basis that it was related to the complainant’s pregnancy i.e. the discriminatory ground of gender. The remaining incidents, up to and including the incident at the Christmas party, also involve interaction between the complainant and Mr. X and these are also advanced, inter alia, on the basis of her pregnancy and/or maternity i.e. the discriminatory ground of gender. I consider these incidents sufficiently linked so as to form a continuum of potential unlawful behavior. Consequently, should I find that the incident at the Christmas party is unlawful in terms of the Acts I will proceed to investigate those alleged incidents from January, 2011 onwards.
7.6 It is common case that the appeal element of the investigation process took place after the complaint was referred to the (then) Equality Tribunal. In Hurley v Cork VEC[13] the Labour Court held that events which occurred after the referral of such a complaint could not be comprehended by that complaint for the purposes of obtaining redress for those incidents. It added that evidence could be adduced in respect of such incidents to determine whether or not they had any probative value in respect of the alleged incidents encompassed by the complaint. I concur with the Court’s reasoning in this regard and adopt its rationale. Consequently, having taken evidence on those alleged incidents which occurred subsequent to the referral of the complaint to the Tribunal, I will only have regard to them in terms of any probative value they might have in respect of alleged events which are encompassed by the complaint. For avoidance of doubt I am satisfied that the issue of the conclusions of the Investigation Report, which occurred on 25 June, 2012, is encompassed by the complaint as it arises as a direct consequence of events that commenced during the statutory period covered by the complaint.
7.7 One final issue of a preliminary issue remains. In the course of my investigation Ms. Z attended at the Hearing and gave evidence as to her experience with Mr. X in 2007 (when he was her Line Manager) concerning new positions in his area of responsibility. The witness clarified that the impugned comment was said to her by another member of staff and not Mr. X. She also confirmed that no new appointments were subsequently made following her discussions with him. The witness also made reference to a second batch of posts which emerged in 2008. She confirmed that she did not subsequently apply for those posts. I note the authorities opened to me by Counsel for both parties on the admissibility of evidence of this nature (see section 3 of this Decision above). Having carefully considered these authorities and the nature of the responses furnished by Ms. Z, I have concluded that this evidence has little or no relevance to my investigation. Moreover, were I to permit its inclusion, it could be significantly prejudicial to Mr. X. I have therefore decided to exclude the evidence presented by Ms. Z and it will have no bearing whatsoever on my conclusions in respect of the substantive elements of the complaint.
7.8 I shall now look at the substantive elements of the complainant’s complaint, commencing with the incident at the Christmas party. It is common case that the complainant was unhappy with the standard of the food at the meal earlier in the evening and that she had raised this matter with a number of her colleagues, including Mr. Y, who had organised the venue. I am satisfied that Mr. Y was irritated with the complainant’s actions and that he spoke with Mr. X about it. I am further satisfied that Mr. X’s intervention in the pub was in order to diffuse a potential argument between the complainant and Mr. Y. The complainant states that she used unacceptable language to Mr. X in response to a comment he made about her recent return to work from maternity leave. Mr. X denies that he made any reference to maternity leave; that he initially asked her to desist from referring to the meal and she swore at him and that it was then that he said “you are only back a week and you are using abusive language at me”. Witnesses to this incident did not hear the word maternity being mentioned. However, two of the witnesses (Mr. E and Mr. F) stated that the complainant’s intemperate language was in response to something Mr. X had said to her. On balance therefore, I am satisfied that the sequence of events was as outlined by the complainant.
7.9 As stated above nobody other than the complainant heard the work “maternity” being mentioned. The complainant had only recently returned to work following maternity leave and was perhaps rather raw at what she perceived as a lack of respect for her by Mr. X on her return. Consequently, it is likely that her senses were heightened insofar as he was concerned and in that regard it is possible that she misheard the comment given the level of background noise in a pub and believed that he had made an explicit reference to maternity leave. Mr. X accepts that he used the words “back a week”. I am satisfied that this was a reference to her absence on maternity leave. Moreover, it was said in front of the complainant’s colleagues. These colleagues were fully aware that the complainant had been absent on maternity leave and had only recently returned to work. In the circumstances I am satisfied that the comment was at the very least pejorative in nature had the effect of reflecting the complainant in a poor light because she had only recently returned to work from maternity leave. Whilst the complainant was unable to point to a comparator who was treated differently in similar circumstances, the Acts permit the use of a hypothetical comparator in appropriate circumstances. I am satisfied that the instant case amount to appropriate circumstances for the use of such a comparator and I find, on balance, that a colleague who have been absent for a prolonged period for another reason and had only recently returned to work, would not have been treated in the same manner the complainant was. Consequently, the complainant has established a prima facie case of less favourable treatment contrary to the Acts. Section 6(2A) of the Acts provides as follows -:
“…. discrimination on the gender ground shall be taken to occur, where on a ground related to her pregnancy or maternity leave, a women is treated,…. less favourably than another employee is, has or would be treated.”
In light of the foregoing that complainant has discharged the initial probative burden required of her and I find that the complainant has established a prima facie case of discrimination. The respondent has not adduced any evidence to rebut the inference of discrimination raised and the complainant is entitled to succeed with this element of her complaint.
7.10 The complainant contends that the manner in which Mr. X conducted her annual appraisal meeting in January, 2011 amounts to less favourable treatment and/or harassment of her on grounds of gender contrary to the Acts. She states that Mr. X was unprepared for the meeting and was only willing to give her a rating of “3” whereas she believed she was entitled to a rating of “4”. She further states that Mr. X behaved in an aggressive and overpowering fashion during this meeting; that she had to argue every single point with him; that the tenor of the meeting was stressful for her and that she was so upset by the interaction she began to cry. She adds that Mr. X was indifferent to her situation and just continued with the meeting and states that she would have expected something more from a senior manager in the circumstances, particularly as she was over seven months pregnant at the time. Mr. X rejects the assertion that he was unprepared for the meeting and states that on the basis of his assessment of the data available to him the complainant’s rating was “3” and this was the rating he had inserted on his document. He adds that the complainant noticed this rating at the outset; that she became annoyed and the meeting proceeded in a heated fashion as the complainant sought to obtain a rating of “4”. He rejects the assertion that the complainant was “in floods of tears” at this meeting or that he conducted it in an “aggressive or overpowering manner”, but accepted she was visibly upset and that there were tears in her eyes at the end of the meeting. He adds that her demeanour during the meeting did not give rise to any concerns on his part which would lead him to terminate it, although she was upset at its conclusion.
7.11 I note that the complainant is a member of a group of employees within the respondent who are well remunerated, high achieving, self-motivating individuals – traits that I am sure evolve from the role of Wealth Management Consultant. In the course of the Hearing the complainant’s peers provided some insights into the appraisal process and it is clear to me that these meetings could be tense affairs with each side fighting their respective corners. I am satisfied that the impugned meeting falls into that category. Having evaluated the evidence adduced I am satisfied that the complainant became aware from early on it the meeting that Mr. X only intended to rate her as “3”. Her expectation (which later turned out to be correct) was that she was entitled to a rating of “4” and this dispute created a negative dynamic in the room. I am satisfied that such an outcome would emerge regardless of the individuals involved. In my view the debate transformed into one where the complainant sought to secure what she believed was her entitlement and this had a significant emotional effect on her. This emotion manifested itself in her becoming upset – an outcome Mr. X says only came to his notice at the end of the meeting. The complainant states that she would have expected him to stop the meeting in the circumstances because she was seven months pregnant at the time. I am satisfied, on balance, that Mr. X handled this meeting in an insensitive fashion. However, insensitivity does not automatically equate to less favourable treatment. I note that the complainant accepts that her pregnancy or maternity leave was not mentioned at this meeting. I further note that Mr. X corrected the complainant’s rating later that same day on review of further information he received. I have carefully considered the evidence adduced by the parties and I find that the complainant has failed to establish facts from which an inference of discrimination could be concluded.
7.12 Another issue was discussed at this meeting was the calculation of her persistency bonus. The complainant asserts that Mr. X informed her that she could have a rating of “4” or the persistency bonus but she could not have both. Mr. X rejects this assertion. It is common case that the failure of the respondent to exclude certain lost business from the calculation of the complainant’s persistency bonus had a negative impact on the amount of bonus she received. A number of emails in connection with this matter were made available to me in the course of my investigation. From perusal of same it is clear to me that the complainant and Mr. X were under the impression that a significant volume of business which had transferred from the complainant’s portfolio would be discounted from the calculation of her persistency bonus. I note Mr. A’s evidence at the Hearing (who was Mr. X’s immediate Line Manager) that Mr. X had raised this matter with him previously but that this was not his (Mr. A’s) understanding of the situation. Firstly, Mr. X did not have the authority to sign off on those figures. Secondly, any decision on the matter would only take place at year end when the cost of any intervention could be quantified. Nothing final was agreed at that time. I further note that he (Mr. A) considered excluding the full amount of the disputed figures from the calculation to be “too rich” as it would cost the respondent too much and that ultimately he made the decision to exclude 50% of those figures from the calculation of the complainant’s persistency bonus and that his decision in this regard was generous in the circumstances which prevailed – if he was to provide the letter of the law she would not have received any additional payment. As it was she received an additional bonus payment of €13,000
7.13 I have carefully considered all of the evidence adduced by the parties on this matter. Firstly, it is clear to me (in particular from his email to Mr. A and Mr. H on 19 January, 2011) that Mr. X was operating under a misapprehension about the exclusion of the lost business from the calculation of the complainant’s persistency bonus and in those circumstances I am of the view that it is likely he communicated that understanding to the complainant. Accordingly, the complainant had an expectation that this would happen. It is also clear to me that Mr. A made the decision not to exclude the entire amount of this business from the calculation for financial reasons and instead approved the exclusion of 50% of the value – a decision that was at his discretion – and that this decision was reached the week before the complainant’s appraisal meeting with Mr. X. I am satisfied that the loss of this business from the complainant’s portfolio had nothing to do with her pregnancy. I am also satisfied that it was open to the respondent not to exclude it at all. In the circumstances, I am of the view that the complainant was treated in a favourable manner. She was unable to identify a colleague who was treated differently in similar circumstances. Consequently, she has failed to establish facts which would enable me conclude that she was treated less favourably on grounds of gender contrary to the Acts and this element of her complaint fails.
7.14 The complainant submits, in the alternative, that the incidents detailed in the last four paragraphs amount to harassment of her on grounds of gender contrary to the Acts. Section 14A(7) of the Employment Equality Acts, 1998-2011 defines harassment as follows:
“In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
It is evident that the complainant found the meeting with Mr. X in January, 2011 quite difficult. She was clearly upset on the day and displayed signs of distress at the end. The meeting was however, intended to assess whether or not the complainant’s performance during the year warranted payment of a sizeable financial bonus. One would expect therefore that the exchanges might be robust. The complainant has not adduced any evidence which would lead me to conclude that the conduct and content of that meeting constitutes harassment of her on the basis of her pregnancy. I must therefore find that she has failed to establish a prima facie case that she was harassed on grounds of gender contrary to the Acts and this element of her complaint cannot succeed.
7.15 The complainant states that Mr. X made a number of inappropriate comments to her in the period following her advising him that she was pregnant - end 2010 until June, 2011 and that this amounts to less favourable treatment and/or harassment of her on grounds of gender contrary to the Acts. This is denied by Mr. X. The complainant adds that they were frequent enough and details three examples of these comments which, it is contended, are indicative of a pattern of such behaviour. She adds that two of them happened in the course of team meetings between December, 2010 and early March, 2011, the other occurred in June, 2011 when she brought her son into the office to meet colleagues and they went to lunch. The complainant states that the team meetings were not particularly structured and were a “bit of a free for all” during which things were said which may not have been heard by all present. This view was confirmed by Mr. X at the Hearing, who stated that the team meetings could be lively and sometimes he struggled to maintain employees’ focus at them. The complainant states that in the course of a team meeting Mr. X said “Susie won’t be adding to the number this year so she doesn’t care”. The complainant submits that this refers to the fact she would not be contributing to the overall output of the Team because she was going on maternity leave. She further submits that such a comment undermined her position and reflected her in a poor light because she was having a baby. Mr. X states that at team meetings each individual team members’ sales figures would be displayed on a board and discussed. He adds that if someone was going to be absent for a period his/her sales figures would be excluded. He further states that this would have happened in terms of the complainant but emphatically rejects the assertion that he made the comments attributed to him or that he made any comments which made reference to her maternity leave.
7.16 In the course of the Hearing Mr. L, a member of the complainant’s Team who had attended team meetings, stated that he did not recall comments about pregnancy or maternity being made by Mr. X at those meetings but that this did not mean comments about pregnancy would never be made, and suggested that had they happened they would have be said in jest and would be supportive in nature.
Another colleague (Mr. Q) stated that he had no recollection of Mr. X making those comments or comments of a derogatory nature about pregnancy or maternity at those meetings. I also note Mr. X accepts that during these team meetings comments could be made in jest by the participants. In the course of the internal investigation the Investigation Team interviewed another colleague of the complainant – Ms. P. She did not attend the Hearing as she was unavailable for personal reasons but the respondent furnished me with the record of her interview with the Internal Investigation Team. It is well established law that a forum such as the then Tribunal (now the Commission) is not restricted by the attendant formality of a court of law and can depart from same once it does not result in prejudice to one of the parties. As the interview record was furnished by the respondent (with the benefit of legal advice) I am satisfied that I can take account of the contents of record in reaching my conclusions and attach any weight considered appropriate to it.
7.17 The record of interview contains the following comment “[Ms. P} outlined that she does remember [Mr. X] saying that Suzanne would not be adding to the number but that was just about sales numbers as Suzanne would be on maternity leave.”. In my view this is corroborative of the complainant’s version of events. In addition, I note that the meetings were noisy affairs and that comments of that nature could have been made without having been heard by all present. Moreover, Mr. L accepted that comments connected with pregnancy or maternity could be made at team meetings but that they would be made in jest, a point that was supported by Mr. X. In addition, Mr. Q gave what I consider to be a carefully crafted response – he had no recollection of Mr. X making the comments or comments of a derogatory nature about maternity or pregnancy. He did not say the comments were never made and his response was based on a subjective assessment – his opinion as to whether or not comments were derogatory. Having carefully considered the above factors I am satisfied, on balance, that the comment was made by Mr. X. I am further satisfied that it is connected to the fact that the complainant would be absent on maternity leave later that year and was intended to reflect the complainant in poor light as a result of that absence. Again, at the very least the comment was pejorative in nature. I note that the complainant was unable to identify a colleague who was treated differently in similar circumstances. However, I am satisfied that this is a scenario where the use of a hypothetical comparator is permissible. I am satisfied that Mr. X would not have treated another employee who was going to be absent for any other reason in a similar fashion. In light of the foregoing I find that the complainant has established a prima facie case of discrimination on grounds of gender contrary to the Acts. The respondent has not offered any credible non-discriminatory explanation to rebut this and consequently the complainant is entitled to succeed with this element of her complaint.
7.18 The complainant asserts that on another occasion Mr. X said “you picked a great year to leave”. She was unable to be specific when this occurred. The final comment which the complainant attributes to Mr. X is “If I could get pregnant, I would. It would be great to get away for maternity leave”. The complainant states that this comment was made to her in a café when she brought her son into the office in June, 2011. Neither of these comments were witnessed by anyone. I have carefully considered this matter and I find that the uncorroborated evidence of the complainant does not go far enough to discharge the probative burden required of her and this element of her complaint fails.
7.19 The complainant submits that the manner in which she was treated by Mr. X on her return to work following maternity leave in December, 2012 amounts to discrimination and/or harassment of her on grounds of gender and/or family status contrary to the Acts. She states that she contacted the respondent on 7 December, 2011 to advise that she would be returning to work the following Monday – this was sufficient notice to enable him make the required internal arrangements for her return. She adds that she arrived at 8:30am that morning to find that she had no access to her computer. She states that she was advised she required input from Mr. X in this regard and she approached Mr. X immediately, furnished him with the relevant information and he (Mr. X) put things in train. She states that later that she made direct contact with a person she knew in the IT Division and she arranged to have the complainant’s laptop reactivated and she (the complainant) was therefore able to access the system and make arrangements for her CPD. She further states that Mr. X left the office for a meeting later that day so she did not meet with him. The next day she had no contact with Mr. X – he left the Return to Work Procedures on her desk – so she merely prepared her CPD and dealt with the significant number of emails she had received during her absence. The complainant states that the following day she attended an all-day training course so she did not meet with him. She adds that Mr. X sent her an email on 20 December, 2011 informing her that he would sit down with her in January to deal with the Return to Work Procedures and any other business. The complainant states that she was not aware of these Procedures until she received them at that time. She adds that Mr. X completely disregarded them and as a consequence of his failure to comply with the Procedures she was precluded from commencing the process which would enable her recommence the tasks which were central to her role. The respondent states that the Return to Work Procedures are specific to Financial Consultants to ensure compliance in the financial planning area - where the complainant worked and were only introduced in June, 2011 at a time when the complainant was on maternity leave. Mr. X accepts that, under these procedures, the complainant was required to complete certain training, undergo tests and certain supervision and had to be “signed off” by him before she could recommence the tasks she had previously performed and that she was not permitted to engage with clients until this was complete. He states that he welcomed the complainant back on 12 December, 2011and updated her on developments and that she attended a team meeting. He adds that she requested he activate her IT log-in and that he did so later that day. Mr. X states that in the course of this conversation they spoke of the compliance tests and it was agreed that she would complete the necessary tests and “sign off” would be completed in early January. He accepts that he should have done more preparation before her return and adds that he was unable to devote as much time as he might have liked to the process, due to the pressures of other work. It is further submitted by the respondent that such oversights are a common occurrence and that in the circumstances the complainant has failed to establish facts that these shortcomings are linked to the impugned grounds.
7.20 It is clear that the actions of Mr. X before and after the return of the complainant from maternity leave in December, 2012 are far from ideal. He made no effort to put matters in train before her return, although he had just under a weeks’ notice that she was retuning on a given date. Moreover, he did not comply with the Return to Work Procedures which were implemented by the respondent earlier that year. The result of this is that the complainant would, in normal circumstances, have been delayed resuming her tasks. It is common case that the complainant was welcomed back to work by Mr. X that morning and subsequently attended a team meeting. In addition, he acted promptly when asked by the complainant to put the IT arrangements in train. This enabled the complainant access her emails and several of the training modules she was required to complete. It is common case that Mr. X had a prior business engagement on 12 December, 2012 and was unable to spend more time that day with the complainant. The respondent states it was agreed that the remaining training modules would be deferred until the New Year. This is disputed. However, Mr. X had this in mind as a solution because he emailed the complainant on 20 December, 2011 informing her of this. Consequently, despite the fact his actions were not ideal, Mr. X did not ignore the complainant altogether. I accept, on balance, the respondent’s argument that this was an extremely busy time of year and any shortcomings on the part of Mr. X arose due to pressure of work. I note that this was the first occasion that the Return to Work Procedures were to be implemented and consequently some departure from them would be likely. Moreover the complainant was certified unfit for work on 16 December, 2011 and was absent from work on a long-term basis thereafter. This was only three days after she had returned from maternity leave and it restricted Mr. X’s opportunity to complete the tasks required under the Return to Work Procedures. Having regard to all of the aforementioned circumstances I am satisfied that there are factors wholly unconnected with the complainant’s gender or family status which provides a credible non-discriminatory explanation for the actions of Mr. X. I therefore find that the complainant has failed to establish a prima facie case of less favorable treatment and harassment on either or the discriminatory grounds advanced and this element of her complaint fails.
7.21 The complainant submits that the manner in which the respondent conducted its investigation of the complaint which she submitted in writing through the internal process on 30 January, 2011 amounts to victimisation of her contrary to the Employment Equality Acts, 1998-2011. Counsel for the complainant contends that this letter amounts to a “protected act” in terms of grounding a claim of victimisation contrary to section 74(2) of those acts. This was not challenged by the respondent and I am satisfied that the complaint constitutes a “protected act” in terms of that provision. Whilst the entire investigation process in now challenged, Counsel for the complainant highlighted the following matters as the primary focus of the allegation of victimisation - (i) the failure of the respondent (in the form of Ms. J and Mr. K) to interview Ms. Z; (ii) the failure of the respondent to allow the complainant to cross-examine witnesses who gave evidence by way of statement and (iii) the failure of the respondent to give appropriate weight to, or completely disregard, the evidence of Ms. P, Mr. L and Mr. Q. The respondent rejects this and states that the process was conducted in accordance with its internal policies; in a fair and impartial manner and to the best of the investigators abilities which complied with natural justice.
7.22 Section 74(2) of the Acts defines victimisation as follows:
“victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) …….
(c) ….
In Tom Barrett v Department of Defence[14] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a “protected act”, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
7.23 In the instant case the complainant referred her complaint under the respondent’s Grievance Policy. The respondent extended coverage of it to its Dignity and Respect at Work Policy. I have examined the complaint and it made reference to her gender and family status. These were features of the Dignity and Respect at Work Policy and I concur with the respondent’s approach in that regard. In my view this was a more favourable outcome for the complainant in that it provided her with access to a formal investigation process. The Dignity and Respect at Work Policy sets out (i) a timeframe for the commencement of the process and (ii) in general terms, the steps to be followed and the options open to the Investigation Team. I have examined the significant array of correspondence between the parties at this time and I am satisfied that the respondent acted in a prompt fashion. The appointment of the Investigators was also in compliance with the Policy. The Investigation Team interviewed all witnesses either indicated by the complainant or whom the Investigators considered had information relevant to the matter at hand, save Ms. Z. The Investigator (Mr. K) stated that they decided not to do so for what he believed were legitimate reasons. The Investigation Team was perfectly entitled to reach this conclusion. He also gave evidence at the Hearing as to why and how it reached the conclusions it did. These conclusions were communicated to the parties by way of a formal written Report dated 25 June, 2012.
7.24 The complainant was afforded a right of appeal, which she availed of. She was not afforded the right to cross examine the witnesses and she takes significant issue with this. I note that the Policy affords the Investigator(s) the discretion to have a face-to-face meeting between the parties in circumstances where conflicting evidence is adduced. This did not happen in the instant case. Mr. K stated that he was unaware of this provision and I accept his evidence on this point. I do not however, accept that the provision as composed and contained in the Policy extends to the entitlement to cross examine. The respondent submits that the circumstances of the instant case can be distinguished from those in the authorities submitted by the complainant and I concur with that argument. The authorities cited related to allegations of gross misconduct in Glover v BLN Ltd[15] and an investigation overseen by the Oireachtas Public Accounts in Re Haughey[16] - the plantiff was being investigated by the Public Accounts Committee of the Oireachtas. In both cases the individuals at the centre of the case was the subject of an investigative process. In the instant case the complainant had brought a complaint and was seeking investigation of that issue. In O’Brien V AON Insurance Managers (Dublin) Limited[17] the High Court (Clarke J) agreed with the Defendant’s argument that the investigation of a complaint and the disciplinary process which might follow were separate parts of a two phase process. He also concurred with the Defendant’s argument that the rules of natural justice do not apply at the investigative stage, accepting that such entitlement arises only if the employer concerned moves to a formal disciplinary process. He stated “even if there are infirmities in the methodology of the investigators (and I express no view on that issue) and even if those infirmities may have affected the contents of their report, the fact remains that the recommendations of the report do not amount to a sanction and therefore Haughey rights do not arise”.This judgement was recently affirmed by Murphy J in the case of Rowland v An Post[18].
7.25 In light of the foregoing I am satisfied that the approach adopted by the Investigation Team was not contrary to the principles of natural or constitutional justice. In addition, I am satisfied that the investigation was conducted in a manner which is consistent with the principles set out in SI 146/2000[19]. However, two aspects of the investigative process - which equally applies to the appeal process - gives rise to some concern. Firstly, neither Mr. K nor Ms. R had any formal training in respect of the conduct of investigations and in both cases it was the first time they had conducted such a process. I find it quite astonishing that this would occur in an organisation of the respondent’s size given that it is inconsistent with best practice in the area. I suggest that it take immediate steps, if it has not already done so, to overcome this matter. Secondly, the Investigation Team recommended that the complainant be subjected to the respondent’s Disciplinary Policy in respect of the abusive language she used to Mr. X at the Christmas party. It is clear that this was not part of the matter before it and in those circumstances I suggest that this recommendation be expunged from the complainant’s record. In light of my comments in this and the preceding two paragraphs I find that the complainant has failed to establish facts from which an inference of victimisation could be raised and this element of her complaint fails.
7.26 The complainant’s advances the same arguments in respect of the appeals process as she did in respect of the initial investigation and for the reasons set out above I have reached the same conclusions as regards the appeal process that I have in respect of the initial investigation. However, she adds a number of additional items in respect of the appeals process. Firstly, she submits that the appointment of Ms. R to conduct the appeal is inconsistent with the respondent’s Grievance Procedures. Whilst this is correct I note that the respondent extended its Dignity and Respect at Work Policy to the complaint, notwithstanding that the matter was not referred under that process. I have concluded above that this amounts to a more favourable outcome for the complainant as it provided her with access to a formal investigation and appeal process. Furthermore, I note that Ms. R was at senior management level and was senior (i) to all those involved in the complaint and (ii) to Mr. K. I also note that her professional background was as an actuary - which provided her with a particularly relevant skillset to address a central element of the complainant’s complaint – the calculation of her persistency bonus. In the circumstances I cannot accept the complainant’s assertion in this regard.
7.27 Secondly, Counsel for the complainant submits that the approach of Ms. R can only be explained by the fact that she had predetermined the outcome of the process - which was focused on protecting Mr. X.I have examined the appeal findings reached by Ms. R and she has reached a conclusion on each element of the complaint under appeal. It seems to me that for a case of victimisation to be made out these conclusions would have to be perverse. I am satisfied that the complainant has adduced no evidence to support her assertion in this regard. It is settled law that mere assertions are insufficient to discharge the initial probative burden required[20]. Consequently, the complainant has failed to discharge the initial probative burden required of her. Moreover, as a result of the appeal Ms. R recommended that the complainant receive the disputed element of her persistency bonus. This was a central element of her complaint. In the course of the Hearing Ms. R stated that she recommended the payment because she believed it was fair in all of the circumstances and I accept her evidence in that regard. In my view this outcome is inconsistent with the assertion that Ms. R had predetermined the outcome of the process. I have considered all of the evidence adduced by the parties on this matter and I find that the complainant has failed to establish a prima facie case that the conduct of the appeal process constitutes victimisation of the complainant contrary to section 74(2) of the Acts.
8. DECISION OF THE EQUALITY OFFICER
8.1 I have completed my investigation of this complaint and in accordance with (i) section 79(6) of the Employment Equality Acts, 1998-2015 and (ii) section 41(5) of the Workplace Relations Act, 2015
I issue the following decision. I find that –
(i) the complainant was discriminated against by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment.
(ii) the complainant has failed to establish a prima facie case of discrimination on grounds of family status, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts in respect of her conditions of employment.
(iii) the complainant has failed to establish a prima facie case of harassment on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts.
(iv) the complainant has failed to establish a prima facie case of harassment on grounds of family status, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts.
(v) has failed to establish a prima facie case that she was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998 – 2011.
8.2 Section 82 of the Employment Equality Acts, 1998-2011 provides that where a complaint of discrimination is upheld, an award of compensation can be made for “the effects” of that discrimination. I believe that the comments made by Mr. X were ill-advised and demonstrate a significant lack of judgement on his part but I do not consider them to fall into the higher range of discrimination. In the circumstances I find compensation in the sum of €18,000 to be just and equitable and in accordance with my powers under the Acts I order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination of her. This award is to reflect the infringement of her entitlements under the Acts and does not include any element of remuneration. It is therefore not subject to the PAYE/PRSI code.
_______________________________________
Vivian Jackson
Adjudication Officer/Equality Officer
6 December, 2016
Footnotes
[1] EDA 1124
[2] [2012] IEHC 395
[3] [2009] IEHC 370
[4] [1971] IR 257
[5] Industrial Relations Act, 1990 (Code of Practice on Grievance & Disciplinary Procedures) (Declaration) Order, 2000
[6] Industrial Relations Act, 1990 (Code of Practice on Grievance & Disciplinary Procedures) (Declaration) Order, 2000
[7] [1973]IR 288
[8] [1971] IR 257
[9] EDA 1124
[10] EDA 0821
[11] EDA 122
[12] EDA 1124
[13] EDA 1124.
[14] EDA1017
[15] [1973]IR 288
[16] [1971] IR 257
[17].[2005] IEHC 3
[18].[2011] IEHC 272
[19] Industrial Relations Act, 1990 (Code of Practice on Grievance & Disciplinary Procedures) (Declaration) Order, 2000
[20] EDA 0917 Melbury Developments v Arturs Valpetters