ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008466
A Security Worker (2)
BDM Boylan Solicitors
Cliona Kimble BL instructed by Ronan Daly Jermyn
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 17/11/17, 26/03/2018 and 27/03/2018
Workplace Relations Commission Adjudication Officer: James Kelly
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. This complaint was heard with another similar complaint where the core matters were identical. I advised the parties that I would set aside the decision on this complaint until I had heard all the evidence in the related case and consider the two cases together. The final submission received on the related complaint was received on 9 February 2019.
During the course of the investigation and hearings it became clear that much of the evidence adduced related to sensitive security information which is of a nature that I have determined is not suitable to be placed in the public domain. Accordingly, I have decided to anonymise the parties and to make general statements as to practices and processes, rather than give specifics information as was presented to me during the course of the investigation in the interest of both the Complainant and the Respondent.
The Complainant’s case is that four male staff with less service than her were placed ahead of her on the roster for annual leave purposes. The Complainant claims that this amounts to gender discrimination. The Complainant also claims that she was subjected to harassment and victimisation in relation to an incident regarding her performance review and a ‘snapchat’ social media issue.
The Respondent denies the same. It claims that there was no gender discrimination, victimisation or harassment as per the Employment Equality Act 1998. It said that the Complainant was placed on its roster for annual leave on the day she joined that roster as was its practice.
Summary of Complainant’s Case:
A substantial amount of oral, written and documentary evidence was presented in this case. The following is a brief summary of the Complainant’s case.
The Complainant made the following submission in response to a preliminary application made by the Respondent arguing that the complaints were statute barred.
As regards the primary claim of gender discrimination, the Complainant said that the discrimination in relation to the annual leave roster constitutes a continuum as per Section 77 (5) of the Act. The Complainant referred to the Decision of the Labour Court in the case of Brothers of Charity Services, Galway – v – Kieran O’Toole,  EDA177, in particular where the Labour Court quoted, with approval, a previous decision of the Labour Court in the case of County Cork VEC – v - Anne Hurley,  EDA1124 where it held:- “Sub-Section (5) and Sub-Section 6 (A) of S.77 deal with different forms of continuing discrimination or victimisation. Under Sub-Section 6 (A) an Act will be regarded as extending over a period, and so treated as done at the end of that period, if an Employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the Complainant (Barclays Bank Plc – v – Kapur)  IRLR387).
This Sub-Section would apply where, for example, an Employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an Employer pursues a Policy or Practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the Policy or Practise is discontinued. Hence an aggrieved party could maintain a claim in respect of Acts or omissions which occurred in pursuance of the Policy or Practice regardless of which the Act or omission occurred”.
The Complainant said that the complaint in relation to one of the incidents referred to as the Snap Chat issue is still ongoing. The Complainant also cites a performance review issue in January 2017 as falling within the timescale allowable. Therefore, the Complainant claims that this is an ongoing situation.
The Complainant also referred to the Labour Court decision of Mary Dempsey – v – NUIG, where the Tribunal held: - “Having regard to my findings below, I find that this was a related Act of discriminatory treatment in relation to her conditions. I am also satisfied that the Complainant has established a satisfactory link between all incidents, and they can be considered as separate manifestations of the same disposition to discriminate and constitute an ongoing Act or a continuum of discrimination within the meaning of Section 77. I find therefore that the complaints were referred to within the 6-month time limits provided for in Section 77 (5) (a) of the Acts and that I have jurisdiction in the matter.”
The Complainant said that her situation is similar to the case in Dempsey and therefore can be considered by the Adjudication Officer.
The Substantive matter
The Complainant commenced working with the Respondent on 26 April 2011 and was made permanent from 1 April 2014.
The Complainant said that she and three other female staff members had been job sharing/ line sharing since around October 2011 on the permanent roster, Roster 1. The Complainant said that the rosters were re-organised in 2014 and on 1 April 2014, Mr. A, head of security, issued a document with respect to roster changes, and he made a reference to a mirror line. She claims that there was only one roster before the re-organisation. She said that the certainty of her place on the roster for hours of work for family reasons, was very important to her and positioning on the roster for annual leave purposes was essential. She said that when the reorganisation was done, there was little or no consultation with staff or Trade Unions.
The Complainant said that Mr. A acknowledged to her that the procedure was not correctly followed, when she and another work colleague, Ms. X, were removed from Roster 1, when the rosters were reorganised in 2014. She said that it is acknowledged and uncontroverted, that when the mirror line was created both the Complainant and Ms. X would be offered the next available positions on the permanent Roster 1, in addition to the creation of the mirror line arrangement. The Complainant said that it is clear from the evidence, that interviews were performed when one line became available. The only interviewees were the Complainant and Ms. X., where she obtained the position on Roster 1 at that stage. It is submitted that this is further evidence of the error made by Mr. A, when the Rosters were drawn up in 2014, and an acknowledgement of same. The Complainant said he promised the Complainant and Ms. X the next available positions on the permanent Roster 1.
On 16 December 2014, an amendment is agreed on the rosters in the company and it describes the permanent Roster 1 as being “X” lines plus one shadowing line (the mirror line). On 1 June 2015, a line became available in Roster 1. The line was not advertised, and the only people interviewed were the Complainant and Ms. X, both from the shadowing line.
She said that after noticing that her name was not in numerical order on Roster 1 for annual leave and having raised it with Mr. A about the possible implications for her; she said that, on 29 February 2016, she sent an email to Mr. A formally addressing this issue.
On 2 March 2016, she issued an email to the Supervisors in relation to the annual leave list issue and requested a meeting. On 9 March 2016, she sent a further reminder email to the supervisors in relation to the annual leave list. On 11 March 2016, she sent a third email to the supervisors requesting a response regarding the annual leave list.
In March/April 2016, the Complainant was in an exchange with Mr. D, deputy head of security, and Ms. G, in HR, regarding her seniority position for annual leave purposes. In a meeting at this time, the Complainant claims that Mr. D confirmed to the Complainant that seniority was determined when one joins the roster and she said that she took the matter up formally as a grievance with Mr. A. She said that Mr. A said he would sort it but failed to do so and he left the organisation without it being resolved. He passed the matter over to Mr. I, while he still was head of department at the point. He subsequently left. The Complainant claims that when she spoke with her Trade Union Official, he said that if he made any changes to the arrangements, “he’d have the guys on his back”. The Complainant said that she interpreted that to be the 4 male staff members ahead of her on the roster for annual leave. She said that the Trade Union representative failed to assist any further.
When Mr. I replaced Mr. A, the Complainant sought a meeting with him to discuss her issues before a hearing on the matter. He said that he would look into it and revert to her. A hearing was arranged and Mr. I said that he tended to disagree with her view, even though he had not heard her case. However, matters were set aside until he spoke to more people about it including the Trade Union representative. She said that she was satisfied with that course of action. She left the matter with him until August, without reply.
On 25 August 2016 Mr. I officially wrote to the Complainant indicating that he was finding against her on the basis of a ‘custom and practice’ within the department. She appealed the decision by way of a comprehensive PowerPoint presentation to Mr. J, senior manager, and raised a number of comparators who she claims were treated differently to how she was treated. He claims that there were instances when people moved over to the permanent roster, they slotted in by reference to their staff number and that is the proper custom and practice that should have existed in her situation. She said that Mr. I made his decision in relation to her grievance without any knowledge of the shadowing line arrangement.
On 29 September 2016, Mr. J, wrote to the Complainant with respect to her final grievance appeal. He referred to the fact that the prioritisation of leave allocation is subject to custom and practice, reflecting local agreements which are not documented.
The Complainant presented evidence of ongoing difficulties after that grievance. She said she was reprimanded by a supervisor, Mr. E, in January 2017 for leaving her work station at a very busy time and a note was placed on her performance record. She said that period in question was actually her allocated break time. Whereas a few days later she was criticised for not taking her break at her allocated time by the supervisor on duty.
On 12 December 2016, she said that Mr. D, sought to question her about use of her mobile phone at work where others in her area seemed to get away with the same actions without any difficulties. She said that she felt she was being picked on. She said that she always scored well on her performance review and suddenly all the supervisors were picking up on the negative points.
The Complainant also raised issues with having to struggle with her supervisor in getting her days in lieu and other ad hoc holiday arrangements. She said this was systematic of how she was being treated.
The Complainant referred to an issue referred to as “the snapchat incident” with Colleague A, where she said this portrayed her in a negative light and demeaned her, and she claims that this is akin to victimisation. She said that she made a formal complaint to one of the supervisors after returning from holidays. She said that she wanted the matter dealt with under the “social networking policy” as a disciplinary matter and wanted an apology from Colleague A. She said that the supervisor said that she would have to take the matter up with HR.
She said that she spoke and met with Ms. H, from HR and mediation was discussed. A session was arranged, and Colleague A admitted the snapchat issue and proceeded to take over the meeting. She said that Ms. H could not control the meeting and the whole meeting fell apart. The Complainant said that she subsequently informed Ms. H that she was not happy with the mediation session. The Complainant said that she mentioned other mediators that might assist with a ‘second opinion’. She said that Ms. H told her if she was not happy with the outcome of the snapchat issue that she should contact the Company Equality Coordinator. The Complainant said that she never heard from the Equality Coordinator.
The Complainant said that she did have a meeting with Colleague A and another mediator, but she never got an apology. The Complainant said that there was no formal investigation of Colleague A.
She said that her complaint was at that time sent to the WRC as of 2 May 2017. She said that she felt that her performance levels were always good, but her performance rating was not keeping with previous years and she felt that was because she had taken a complaint.
The Complainant presented a work colleague Mr. Y and previously a shop steward, who stated that he was present with the Complainant for many of the meetings with Mr. I in relation to the appeal by the Complainant of her position on the roster. He corroborated much of the statements made by the Complainant with regard to the discussions held with Mr. I, who was not present at the hearing, and he also confirmed that the Trade Union was not consulted or voted on the roster situation. Mr. Y said that Mr. I said he would look into the situation and see if there was a better way to resolve this for the Complainant. He also confirmed his interpretation of the custom and practice for seniority for annual leave. He said that the staff number determined where an employee would be placed on the roster on joining the section rather than on joining a particular roster. He said the custom and practice was not put in writing as far as he was concerned.
The Complainant presented a work colleague, Ms. X who also confirmed that her understanding of the seniority for annual leave purposes was on a staff member joining the department rather than the roster and then the staff number.
On 2 May 2017, a complaint form was lodged with the Workplace Relations Commission alleging gender discrimination, victimisation and harassment.
The Complainant submitted that she had been discriminated on the basis of gender relating to her placement on Roster 1 for annual leave purposes. The Complainant and Ms. X gave evidence to the effect that when they were moved to Roster 2, they appeared at the top of that list, notwithstanding, the evidence of Mr. D and Mr. E, to the effect that seniority is dictated at the time that one joins a roster and despite this being the Respondent’s position as regards the custom and practice. The Complainant said she never left Roster 1.
The Complainant said that the test for custom and practice, was formulated in the case of O’Reilly – v – Irish Press [1937 71 I.L.T.R.194], wherein Mr. Justice Maguire expressed that the practice must be “……..so notorious, well known and acquiesced in that in the absence of agreement in writing it is to be taken as one of implied terms of the Contract between the Parties……..it is necessary in order to establish a custom of the kind claimed that it was so generally known that anyone concerned that should have known of it or could easily become aware of it”. The Complainant said that Mr. D had stated in evidence that if all staff were asked what the custom and practice was in relation to the seniority for annual leave, they would all give a different answer. She said that this admission clearly established that the Respondent failed to meet the requirements as set out in the Irish Press decision as to what constitutes custom and practice.
The Complainant submitted that the Respondent has failed to establish that a clearly defined custom and practice was in existence in relation to the allocation of annual leave, or indeed, the definition as to when one joins a particular Roster. She said that the evidence of the Respondent is inconsistent here, in particular between Mr. D’s view that the Complainant joined the permanent Roster 1 in 2014, and Mr. E’s view that the Complainant joined Roster 1.
The Complainant claims that the discrimination continued unabated, on the basis that the four male members of staff with less service remained ahead of the Complainant on the annual leave roster, and in that regard, the discrimination is continued.
The Complainant also submits that she has been victimised as a result of bringing the complaint as regards gender discrimination. The Complainant said she has been a victim of harassment in the workplace and said harassment has not been dealt with adequately by her employer. The Complainant said that Ms. H failed to invoke the clear terms of the Social Networking Policy knowing that the Complainant at the time had made a complaint with respect to the annual leave roster. The Complainant also raised the fact that her performance reviews in 2016 were not as positive as previously and this was in the full knowledge of the supervisor being aware of her ongoing grievance.
In support of her case the Complainant referred me to the Labour Court decision EDA 1017 in relation to the protection against victimisation, and also the Labour Court in determination EDA 1718 regarding a male getting more full-time roster hours ahead of a female worker with more experience. Where it was found that the Respondent failed to provide a non-discriminatory reason for her treatment.
The Complainant said that her complaint is clearly that the four males had been placed ahead of her, on the seniority list for annual leave despite having over two years’ less service. She said that this case is not a matter of what Mr. E’s intentions were, the practice is discriminatory.
The Complainant said she has established a prima facie case of discrimination on the basis of gender and it is a matter for the Respondent to establish that the practice is not discriminatory.
Summary of Respondent’s Case:
The following is a summary of the Respondent’s submission.
The Respondent said that the case is out of time as the Complainant did not file a complaint with the Workplace Relations Commission within 6 months of the discriminatory action. The complaint was made on 2 May 2017 and therefore only events which occurred on or after 3 November 2016 are within time. It said the Complainants case relates to matters in 2013 – as to her terms of contract, 2014 – in relation to performance review, and 2015 – supervisor reprimand on her performance. The Respondent said that all these are not related to the centre grievance of her position on Roster 1 for annual leave purposes.
The Respondent said that the Complainant’s central case of discrimination was the effects of her positioning on Roster 1 for annual leave which became known to her in and around February 2016. No complaint was filed with the WRC within 6 months from that date. The Complainant had subsequently gone out on sick leave since 22 June 2016 and had not returned to the workplace at the time she submitted her complaint or indeed at the time of the hearing. The Respondent said that no further events occurred after June 2016.
The Respondent said that the only incident within the 6-month time period of the lodging of proceedings with the WRC is the performance review of 31 January 2017 and if this is found not to be discrimination by way victimisation, the entire complaint is out of time.
The Substantive matter
Matters agreed between the Complainant and the Respondent
The following four items are agreed between the Complainant and the Respondent
1. That there was a mirror line put in place in April 2014 whereby it was agreed that the Complainant would mirror the working hours of another person on Roster 1.
2. That the Snapchat issue arose and that the Phrase “they won’t even sit with us now” was captioned on the Snapchat.
3. That the Complainant was appointed to Roster 1, in June 2015. Her seniority was unaffected at this time and this changed in February 2016.
4. That the Complainant became aware that she was on the bottom of the annual leave list in February 2016 for Roster 1.
The Respondent said that it refused to accept that it discriminated against the Complainant on the grounds of gender under the terms and conditions of employment contrary to the Employment Equality Acts, 1998; in particular where she was placed on Roster 1 for annual leave purposes as compared to four male members of staff. The Respondent also disputes the claims that she was victimised and unlawfully discriminated against by virtue of harassment.
The Respondent said that for the functioning of its operation it is required to have an equal number of males and females rostered to perform its functions in security; following discussions with the Trade Union internal restructuring and reorganising which took place in 2014 to create two rosters. Roster 1 for staff with predefined hours (for full time hours) and Roster 2 for staff with variable hours. The Respondent said it does not accept that she was on Roster 1. The new rostering arrangement came into play in 2014. There were at the time a number of vacant places on Roster 1 which were filled by moving some staff placed on Roster 2, the variable hours roster. The selection of the staff from Roster 2 was done in order of how they had scored in a performance skills rating score. The Complainant and her colleague Ms. X were not selected for Roster 1 and remained on Roster 2 because of that evaluation.
The Respondent said that subsequently following changes to the Complainant’s working hours she moved to Roster 1 in 2015 and on moving to Roster 1 she has a seniority date relating to that time in question.
The Respondent states that the list of staff for seniority for annual leave purposes, which is the crux of the Complainant’s claim, is determined according to which roster a staff member is on, and the position on that roster is determined as from the date when the staff member joined that roster. The Respondents said that this is the understanding of the practice and custom that is in place within the Respondent and applies to everyone.
The Respondent presented in evidence one of its supervisors, Mr. E, and he gave evidence on behalf of the Respondent on this issue. Mr. E is the supervisor with responsibility for drawing up and managing the annual leave arrangements and the rostering rota. Mr. E said that it is his view and from his experience in the Respondent that when a staff member joins a roster it is on that date that the staff member joins the seniority list for the purpose of annual leave and goes to the bottom of the seniority list. He said that if two or more people join the roster at the same time the person with the lowest staff number, which is awarded on the date of commencement in the Respondent, takes the higher position. He said that in most rosters that staff numbers are largely in sequence but then there are people with staff numbers out of sequence because of the date they joined that particular roster. Mr. E said that if a staff member leaves permanently from the organisation but comes back, they hold on to their staff number, but they go to the bottom on the list for the purpose of seniority for annual leave. In such instances the staff number will be out of sequence. He said if a member of staff leaves the roster to go on a trial elsewhere in the organisation or on secondment that on their time of return back to the roster, they are not punished for exploring that option and they are reinstated back on the list for annual leave purposes at the point they were at just prior to leaving.
Mr. E said that as he is the person that looks after the arrangements for annual leave and he applied this practice, as it was the practice that applied to him personally in his career within the Respondent previously and applied to him when he was appointed to the supervisor’ role. He said that there are a number of staff members in the supervisory grade who have longer service than him but have been placed behind him on the annual leave list because he joined the supervisory roster before those individuals.
The Respondent said that looking at the seniority list for annual leave on Roster 1, there are five people who are ahead of the Complainant and Ms. X. Four of these are male and one is female, but all five have staff numbers which are higher than the Complainant’s staff number and therefore would suggest that they joined the Respondent after the Complainant. The Respondent said that the female staff member ahead of the Complainant did join the organisation on the same day. However, as she joined Roster 1 prior to the Complainant she and the four men are ahead of the Complainant and it has remained consistent.
Mr. E gave evidence of two staff members on the list who are out of number sequence and explained how they arrived on the list, one of which left the organisation completely and returned and another left the Roster 1 for a trial but returned. Mr. E said that his application of the rules was not discriminatorily motivated. Mr. E said that he applied the rules to the Complainant and Ms. X on the same basis.
The Respondent acknowledged that the Complainant challenged that decision through the internal grievance’s procedures, where there was a substantial number of meetings, oral and written exchanges throughout. However, never during these exchanges was gender discrimination ever raised. The Respondent said that there were staff changes in and around that time and a new decision maker Mr. I stepped in to replace Mr. A and he made attempts to explore a solution.
The Respondent admitted that the custom and practice in relation to how the rosters were organised for seniority for annual leave was not written down, but Mr. E said the practice was as he applied it.
The Respondent said that the Complainant has cited the standard legal test for custom and practice as established in O’Reilly v Irish Press  71 ILTR 194 and said that test is not proper here as it relates to an Industrial Relations case. The Respondent presented a number of supervisors who all gave evidence about their understanding of the custom and practice. Mr. C said that he was in a similar situation to the Complainant in that he was promoted to his current role, he had more seniority than all the other jobholders in that grade but was placed at the bottom of the list for annual leave entitlement because he was last to join the roster.
Again, Mr. E stated that he is responsible for the allocation of leave and the preparation of the list for that purpose. He provided the hearing with his evidence as to the breakdown of the group on the roster and gave specific details of some of the comparator’s cited by the Complainant. He said that he applied the custom and practice as he understands it and that applied to when he joined different rosters.
The Respondent said that it applied the custom and there was no major ground swell of opinion saying it was from form the Trade Union on the ground that the practice was wrong or requiring change.
The Respondent presented Ms. H, the Respondent’s HR manager at the time and her evidence was that there were discussions throughout July and August 2016 with the Complainant with regard to the ongoing grievance on the rosters and seniority for annual leave issues and the snap chat issue. The Respondent disputes the Complainant’s view of events, namely that it failed to carry out a formal investigation. It claims that the Complainant pursued an informal route to the grievance and has expressed her satisfaction on how it was concluded. The matter was dealt with by Ms. H in a meeting with the Complainant and the work colleague who had posted the snap chat, where the work colleague admitted it had happened and apologised. The Respondent said that Ms. H had numerous meetings with both parties and was satisfied how she had dealt with Colleague A. The Respondent said that it understood that the Complainant had reservations about how it was left. Ms. H said that she informed the Complainant how she had dealt with it and if she wished to appeal that she should file an appeal with the Respondent’s Equality Coordinator. She said that the Complainant did not choose to appeal.
The Respondent said that the Complainant took it on herself to contact the Industrial Relations Manager who facilitated a meeting between the Complainant and Colleague A. Ms. H’s evidence is that the Industrial Relations Manager phoned her to inform her that the matter was resolved. The Respondent said it was not until it received a letter from the Complainant’s solicitor on 23 December 2016 that it noted that the issue was raised as unresolved again. The Respondent said that there was a number of exchanges between it and the Complainant’s solicitor. It was hoping that the Complainant would engage with it through the internal mechanisms available to her, but she was not engaging but rather was communicating via her solicitor. The Respondent said that the Complainant failed to use the internal procedures to pursue her grievance before she lodged her complaint with the WRC.
In relation to the performance review issue, the Respondent said that the Complainant was assessed on her performance for the year and received a grade 3 rating, which states that her performance is totally satisfactory. The Respondent said that the Complainant took issue that one of the supervisors had noted in her review that she was going through some challenges within the organisation at the time. The comment was one of support and not anything derogatory. There was no reprimand, determent or loss. The Respondent went on to state that the Complainant received the same rating as 46% of her work colleagues. She had the opportunity to appeal that rating which she did and following that appeal was heard by Mr. D who upheld the rating awarded. The Respondent said that no evidence was presented to suggest that the rating was linked to victimisation because she had lodged her claim to the WRC.
The Respondent claims that the action of the Respondent was in no way a reaction to the fact that she made a complaint. It referred to the decision in Barrett V Department of Defences Dec-E2015-017 as the appropriate authority for guidance here.
Findings and Conclusions:
Preliminary Matter - Statute Barred
The Relevant Law
Section 77 of the Act, as amended, provides inter alia the following:
“(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.
(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5) (a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.
(6A) For the purposes of this section-
discrimination or victimisation occurs-
if the act constituting it extends over a period, at the end of the period.
if it arises by virtue of a term in a contract, throughout the duration of the contract, and
if it arises by virtue of a provision which operates over a period, throughout the period,
a deliberate omission by a person to do something occurs when the person decides not to do it, and
a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either-
does an act inconsistent with doing it, or
the period expires during which the respondent might reasonably have been expected to do it.”
The Respondent claims that the Complainant’s case is out of time. The complaint was filed with the Workplace Relations Commission on 2 May 2017 and therefore only the events that occurred on or before 3 November 2016 are within the time limit and as no event occurred within that time the whole claim is statute barred.
The Complainant claims that the case is within the time limits, the primary claim relates to the ongoing scenario of the Complainant’s placement on the roster for annual leave purposes and one of the other issues relied upon, the ‘snap chat issue’ is not resolved and is subject to a formal external investigation. The other issue with regard to her performance review was in January 2017.
Having considered the parties evidence and arguments in relation to the preliminary matter raised, I have reviewed with interest the relevant authorities in this area and I have decided that the complaints are properly before me and are not statute barred. The reasons being as follows, the alleged events that the Complainant raised are the basis of a list of events that indeed stretch into the past, some of which go back to 2012 and could in their own right be construed as stand-alone incidents and therefore are long outside of the permittable time limit. However, the Complainant has argued that the case as a whole is one of discrimination on the gender ground and that derives from a practice or policy that the Respondent had established or has decided to hold that is in itself discriminatory and remains in place still today.
To support my decision on the matter I have carefully studied the cases in particular the pre-mentioned decisions in Dempsey v NUIG and in Cork VEC v Hurley, I note in the latter where it specifically deals with the question of Section 77(6)(a) where it allows for an act to be regarded as extending over a period “where an Employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has a clear and adverse effect on the complainant”. I note that the Complainant maintains that this is the case here and claims that the Respondent’s practice/policy for placement on the list for annual leave purposes is discriminatory and I am satisfied accordingly, that the continuum has been established to allow me jurisdiction to examine the case.
The Substantive matter
The Relevant Law
Section 6 of the Employment Equality Acts 1998 -2015, states as follows:
“6.-(1) For the purposes of this Act and without prejudice to its provision relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –
a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as ‘the discriminatory grounds’), which -
existed but no longer exists,
may exist in the future, or
is imputed to the person concerned,
a person who is associated with another person –
is treated, by virtue of that association, less favourable than a person who is not so associated is, has been or would be treated in a comparable situation, and
similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
(2) As between any 2 persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are-
that one is a woman and the other is a man (in this Act referred as “the gender ground”) …
(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”
Indirect discrimination on the gender ground
Section 22 of the Act, as amended, provides as follows:
“22. -(1) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
The issue that I have to determine here under both direct and indirect discrimination, which I will do in turn below, relates to the placement of the Complainant on the work roster and the effect of that placement on her entitlement for annual leave purposes. The staff higher up the list get preference on selecting annual leave. I have to determine whether it was a discriminatory act and if the seniority policy for annual leave ipso facto is a discriminatory policy.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If s/he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
In the case of Melbury Developments v Arturs Valpetters [EDA0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other either is a man". Accordingly, the issue for decision in this case is whether the Complainant was discriminated against by the Respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
From the evidence adduced much of the core issue appears to stem back to the re-organisation of the rosters in 2014. The Complainant is adamant that Mr. A at the time was aware of the predicament he had created in that re-organisation and he had reassured the Complainant and Ms. X that they would be accommodated and would not lose out. The mirror line or shadowing line solution was set up to correct that imbalance, and where the Complainant and Ms. X’s annual leave seniority would be dictated from the top of Roster 2 (the part time roster). I am satisfied that the Complainant recognised that the crux of this issue lay with the re-organisation of the rosters, but I am satisfied that she does not claim discrimination on the re-organising of the rosters by Mr. A but instead on realising of her placement on Roster 1 on annual leave entitlement which created a disadvantage for her.
I also take note that again the Complainant failed to hold any grave issue with moving on to Roster 1 sometime later, again on the premise that as long as her terms and conditions were not adversely affected. The Complainant has articulated what she perceives as less favourable treatment, namely that because of her placement on the annual leave list she is the last one to nominate her block of annual leave each year and effectively must wait until everyone else on the roster chooses their preference for holidays before her. She explained that had she been placed higher up the panel, as she suggests she should be placed, she would have better options opened to her; namely, if she was placed ahead of four male colleagues who have less service than she has.
The Complainant’s evidence is that the Respondent’s claim to rely on custom and practice for the methodology for her placement on the list for annual leave purposes has not been established and she cites the decision in O’Reilly v Irish Press, where the test for determining custom and practice is set out. She points to what she claims are inaccuracies in the Respondent’s evidence that there is a lack of transparency here and her appeal of her grievance.
I note the Respondent’s evidence where it relies on the re-organisation of the roster as a necessity at the time, the Complainant and Ms. X were proper to the Roster 2 but accept that Mr. A had an arrangement in place to facilitate the two workers until a permanent solution on the permanent Roster 1 came about through natural means. As noted above the crux of this case is when the Complainant and her colleague Ms. X had moved to Roster 1 and the consequences of the move was not apparent until February 2016 when they realised that their names were not in (staff) numerical order on the list for annual leave purposes. The Respondent has said that grievances were raised and representations were made but as far it was concerned the determining factor for placement on the list for annual leave was firstly the date the staff member “joined that roster” and in the event of the same date assignment of two or more staff, the staff number sequence order.
The Respondent presented Mr. E at the hearing, who’s role was to manage the annual leave requirements and determine the definite list of seniority. It was his evidence that the practice that he followed for assignment on the annual leave list was, as far as he was aware, the custom and practice that existed and that had been applied to him in his own career and within his understanding and experience was how he applied the rules to the roster he had prepared. It was in effect the custom and practice for seniority as he knew it.
I note that the Complainant and her colleague Ms. X, went to great levels to demonstrate their objection to the practice applied. A grievance followed, and they were less than satisfied with the outcome. I note that the Complainant in her presentation of her grievance demonstrated where she had felt she should be positioned on the annual leave list and noted the 5 co-workers ahead of her – one female and four male – that she felt should be behind her on the annual leave list.
I do note that at this point in time the central issue raised by the Complainant was not a suggestion of gender discrimination but rather akin to an industrial relations nature. I accept the Complainant is entitled to present her grievance as she sees fit. However, it is a point I noted. I also note that the Complainant could accept that the female placed ahead of her on the list was entitled to be there and she gave her reason as this worker joined the Respondent the same day as she and Ms. X and she has no issue. However, I note that her staff number is in effect after the Complainant’s staff number and she has also been placed on the annual list ahead of the Complainant. That cannot be discounted.
The Complainant has said that the Respondent’s lack of demonstrating a custom and practice for determining placement on the list for seniority - the High Court test in O’Reilly v Irish Press – suggests that there was none. I note the very unsatisfactory grievance process carried out by the Respondent, where a decision and recommendation seemed to have been delivered and then held back with the suggestion that more time for investigating into the process was needed, and then the confusion whether the decision had been delivered at all and whether a further appeal should lie. This is a matter where I can only suggest that the Respondent is trying to unravel a mess, that goes back to the re-organisation of the roster in the first place and with possibly all good intentions poor decisions resulted. The Workplace Relations Commission and the Labour Court have often been critical of situations where there are poor processes in place or where Respondent’s fail to follow their own processes and where a lack of transparency is found. I too have to be critical here as the lack of certainty from the Respondent has not helped to unravel a complex situation. However, I am clear that this in its own right does not establish a prima facie case of discrimination.
On the facts of this case I have to determine whether a prima facie case has been established and if so, has the rebuttal been sufficient. Applying the test in Melbury above I am satisfied that the Complainant has demonstrated sufficient facts that she was placed lower down the seniority list for annual leave purposes. Both her and Ms. X evidence was that when this was been worked through at the time, a Trade Union representative said that he would have “four males on his back” if both the Complainant and Ms. X were successful on the grievance and/or appeal. It was inevitable that someone would lose out. I note that the Complainant has also gone to some lengths to highlight the composition of the work environment at the time, it was heavily male orientated, all the supervisors were male, all management were male, and all trade union representatives were male. I am satisfied that she has established a prima facie case of discrimination.
I note that the Complainant has challenged the Respondent’s claim that there was in place a custom and practice in relation to the placement on the seniority for annual leave. There is no written policy, I am satisfied with that, and I now have to look at the Respondent’s claim that a policy was in place and it was on the basis of this policy and discrimination that the Complainant and her Colleague were placed on the list. Prior to that I believe I need to address the structure of the two rosters. I understand that the Complainant and Ms. X were in the reckoning for Roster 1 when the re-organising of the rosters was first carried out. The Complainant and Ms. X lost out as the Respondent decided to use a score of a test that all staff are graded on. They lost out to females and not males and they remained on Roster 2 accordingly, with a shadowing line arrangement. The Complainant claims that the re-organisation did not mean that she left Roster 1, the shadowing line arrangement kept her in association with that roster. However, it is clear that she was placed on Roster 2 for annual leave purposes and that is where she is listed. Determining whether she remained on Roster 1 on re-organising is critical to the case, because if she is entitled to remain on Roster 1 then on the basis of the Respondent own methodology, she joined the roster ahead of the 4 males and 1 female. Notwithstanding the said agreement with Mr. A, it is clear that the Complainant wrongly or rightly was placed on Roster 2. The mirror line gave her comfort. However, its purposes for the determining what roster the Complainant was on for annual leave does not help the Complainant’s case.
The custom and practice that the Respondent relies on, or more specifically what Mr. E has used to determine his decision, has been challenged by the Complainant. However, I have been presented with evidence from three supervisors who have independently stated there understanding on the custom and practice. In particular I note with evidence from Mr. E, that the custom and practice relied upon is not just limited to Rosters 1 and 2. He said it is the custom and practice used in at least all the other areas he has worked in within the Respondent and was used to determine his own positioning on his specific roster. I also note the other examples cited, which demonstrate that there is some thought put into the methodology rather than a simple casual rule when the terms suit. I note that Mr. E was tasked with the role of devising the list rather than a wider group of people which might have variant views on how the rule should apply. I have not been presented with evidence to support that a different practice was applied in the Respondent. I note that the Complainant’s career with the Respondent was confined to these rosters and this might restrict her knowledge of practices elsewhere.
In relation to direct discrimination the essence that the Complainant has to demonstrate is that she received less favourable treatment and that was because of her gender. I am satisfied that in applying the rule Mr. E applied in relation to the Complainant, she in effect moved five places down the seniority list for annual leave purposes, and that she determines seniority should have applied. As I have mentioned above it is clear that the Complainant was worse off than five other staff members that she claims received more favourable treatment than her. Those are her comparators and no matter what the Complainant has said about the other female that has a staff number after her and she has no issue with, this female was treated more favourably than the Complainant too and therefore it has to be said that her comparators are a mixture of both male and female. Therefore, the decision cannot be said to be based solely on gender.
The Complainant and Ms. X gave evidence that a Trade Union Representative had raised a comment about the “4 males would be on his back”. I cannot attribute those comments to the Respondent, the Trade Union is a staff body supporting the rights of the employees and not defending the position of the Respondent.
For all the foregoing, I find that on the balance of probabilities that the Respondent has successfully rebutted the inference of direct discrimination on the ground of gender.
The Complainant has advanced a claim that she was indirectly discriminated against by the Respondent’s practice by placing her at the bottom of the seniority list for annual leave.
Indirect discrimination arises where an apparently neutral provision criterion or practice puts persons having a protected characteristic, in this case gender, at a particular disadvantage. In Stokes v Christian Brothers High School Clonmel  IESC 13, the Supreme Court per Clarke J, as he then was, at par 9.2, referred to the meaning to be ascribed to the term “particular” as used in this context. He held as follows: - “I am satisfied that the use of the term "particular" brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable.”
The practice that the Complainant said giving rise to the particular disadvantage contended for in this case is the placement of her on the annual leave list below her colleagues, who have less seniority in the Respondent than she does. This practice, the Respondent claims, is done on the basis of when a staff member joins a roster. They are from that date entered on the list for annual leave and it is not based on their overall service with the Respondent. In advancing that argument the Respondent cites a number of examples when co-workers left the roster on a temporary measure and on a permanent measure and what happened to their seniority respectively on their return. The claim to indirect discrimination would normally involve identifying a pool of people (the disadvantaged group) who because of this practice would fare worse off than a comparison group (the advantaged group) and those who do not (the disadvantaged group) and comparing the number in each category by reference to the protected characteristic in issue, in this case gender. If, in the context of the instant case, the advantaged group comprised significantly more male staff members that those in the disadvantaged group there is prima facie discrimination and the Respondent must objectively justify the practice that gives rise to the disadvantage. This approach was also adopted by the Labour Court in PSEU v Minister for Finance and CPSU EDA072. It has been held by the UK Court of Appeal in Grundy v British Airways PLC  IRLR 74, that the correct principle is that the pool must be one which suitably tests the particular discrimination complained of, but that is not the same thing as the proposition that there is always a single suitable pool for every case.
Applying those general principles to the facts of the instant case, it appears that this case has not been made out and I cannot determine how it could be made out from the facts of the case.
It is well settled that the test for establishing if the probative burden shifts to the Respondent in a case involving discrimination is that formulated by this Court in Southern Health Board v Mitchell  ELR 201. I also take note of the decision in Stokes v Christian Brothers School Clonmel, Clarke J, as he then was, pointed out, at par 10.10 that the onus of establishing particular disadvantage rests on the person claiming indirect discrimination.
I find that the application of the Respondent’s practice of assigning staff to a roster for the purpose of annual leave on the basis of when they join that roster is not determined by gender, it is solely determined on the date of joining the roster. I am satisfied that it has no bearing on gender.
I am satisfied that the Complainant has failed to make out a prima facie case of indirect discrimination. Accordingly, I cannot find in favour of the Complainant and the claim cannot succeed.
The next element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to the Acts. Section 74 (2) of the Act, as amended, provides as follows:
The relevant law,
“(2) For the purposes of this Part 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) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant
(f) an employee having opposed by lawful means an act that is unlawful under this Act….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
In the case of Tom Barrett -v- Department of Defence EDA 1017 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. In the instant case, I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.
The other notable date where it can be said that the Complainant had raised a concern about gender discrimination in the work place with the possibility of making a formal complaint against such matters is 23 December 2016, where her solicitor wrote to the Respondent and raises a concern. From my reading of the evidence here, the Complainant’s case is very much centred around the Respondent’s incorrect application of a policy for seniority on a roster heretofore. The Complainant has said that it was obvious that it was a matter of gender discrimination, that 4 males were placed ahead of her. However, I am satisfied on hearing all the evidence that there was no discussion about gender discrimination in the workplace before this. There is no suggestion prior to 23 December 2016 that the Respondent was on notice of a claim for gender discrimination.
The Complainant has claimed that she was subjected to victimisation by the Respondent in relation to an incident that occurred in or around 5 August 2016 “the snapchat issue” during which she contends that the Respondent failed to conduct an enquiry under the appropriate policy or deal sufficiently with her complaint. I note that this event predates the complaint referral to the WRC on 2 May 2017, where without doubt the Complainant officially lodged a complaint about gender discrimination in her work place.
I have heard extensive evidence from both sides on the efforts made to find a solution to this grievance. I note that mediation was attempted a number of times and by different mediators. I note that Ms. H suggested to the Complainant that if she was not happy with the outcome, she could formally take a case to the Equality Coordinator. I note that she did not; but instead met with the Respondent’s Industrial Relations Manager, who facilitated more discussion. I understand that the Industrial Relations Manager informed Ms. H that all matters were resolved. I understand that Ms. H met with Colleague A and put her on notice of her future conduct. I also note that Colleague A offered an apology however, the Complainant did not accept it.
The charge brought here by the Complainant is that she was victimised for bringing her complaint of gender discrimination and because of that nothing was done regarding the snapchat issue. I cannot accept that nothing was done in relation to the snapchat issue. I am satisfied that steps were taken in trying to find a solution between the Complainant and Colleague A. I am also satisfied that Ms. H handled the disciplinary issue with Colleague A. I am satisfied that the Complainant may not be fully happy with the outcome but that is not her responsibility. It is firmly within the Respondent’s gift to determine that.
I note that the Complainant’s solicitor came on board on 23 December 2016 and there was considerable communication between the parties thereafter. I am satisfied that this created a different dynamic on how the Respondent interacted with the Complainant thereafter. Notwithstanding, I cannot accept that the situation amounts to victimisation as provided for under the Acts.
The second issue raised by the Complainant relates to perceived victimisation on her performance review in January 2017. The Complainant claims that she received a grading of 4 previously and felt that she deserved similar for the year under review. She only received a grading of 3 and she gives examples of only negative issues raised with her in that time – a coffee break and use of a mobile phone. The Respondent holds the view that a 3 grading is completely satisfactory, and that the vast majority of her colleagues got the same grade as her and only 5 staff from 24 staff got grade 4 for 2016, whereas 8 staff got a grading of just 2.
I am satisfied that a yearly performance review is only a review of that year and is no way linked to previous years or previous performances. I note that a grade 3 is the satisfactory grade and attaining this grade is recognition of good performance. Each year must be evaluated separately. As noted above in cases of victimisation there needs to be evidence of the existence of adverse treatment. I have considered the arguments presented and I determine that there is no substantial evidence to determine that the system was flawed here, and that the Complainant suffered unquestionable adverse treatment accordingly.
In relation to the other two issues raised regarding the use of a mobile phone while working and taking a break when busy; I have heard the parties’ evidence and I am satisfied that the supervisor has a role to manage resources on the floor and staff are expected to take instruction associated to their role. I do not see these matters as much more than the usual interaction and possible difference of opinion between a jobholder and a manager that would occur regularly in many workplaces. Again, as noted above, in cases of victimisation there needs to be evidence of the existence of adverse treatment, I am satisfied that these do not amount to victimisation as provided for under that Acts.
I accept that the issue at the crux of this case and possible solution was a scrappy situation and it was always going to be difficult to resolve it to everyone’s complete satisfaction. I am satisfied that an approach was taken in how to handle this situation and as far as the Respondent was concerned it had found a possible solution. I note that the Complainant is far less satisfied that the matters are near resolved. However, I am satisfied that the matters do not fall within Section 74(2) and satisfy the test set out in Barrett -v- Department of Defence; the first instances of victimisation well predate the protected act and the modus operandi for dealing with this issue was in train well in advance of the mention of gender discrimination on 23 December 2016. I find that the case regarding the performance rating simply does not establish the necessary inferences of discrimination in particular with regard to supposed adverse treatment. Therefore, on the balance of probability, I do not find that it can be tantamount to victimisation as it fails to meet the test set out in Barrett -v- Department of Defence.
Accordingly, I find that the Complainant has failed to establish facts from which it may be inferred that he was subjected to victimisation contrary to Section 74(2) of the Acts.
Harassment is defined in Section 14A(7) of the Acts which states: “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. 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” (my emphasis added).
Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground(s). It is well accepted that the Employment Equality Acts do not apply to generalised bullying or harassment, when there is no link to the discriminatory grounds. This was made clear in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (S.I. No. 208 of 2012) which came into force on 31 May 2012.
Therefore, it is clear Section 14A(7)(i) of the Act defines “harassment” as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
The only two matters that appear to be relevant here relate to the snapshot incident and the performance review matter. Another matter referred to at the hearing was in relation to doctor’s appointments. However, I note that these occurrences happened well after the complaint was referred to the WRC.
From strict application of the law the Complainant must establish a prima facie case of harassment on the basis that there was unwanted conduct on any of the protected discriminatory grounds, namely in this case on the gender ground.
I am satisfied that a number of the claims mentioned above are of a historical nature and relate to two co-workers, none of which are central people in the general gender complaint against the Respondent. The Complainant does cite the Respondent’s lack of urgency to fully investigate and resolve/take appropriate action against the accused. I cannot see the correlation between the incidents noted as harassment and the gender ground. No evidence has been presented to substantiate that they qualify as unwanted conduct on any of the protected discriminatory grounds, namely on the gender ground as proved for under the Acts.
Having regard to the foregoing and the totality of the evidence adduced, I find that the Complainant has failed to establish a prima facie case in relation to her claim of harassment. Accordingly, I find in the Respondent’s favour.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:
(i) the Respondent has not discriminated the Complainant on grounds of gender in terms of Section 6(2) and contrary to Section 8 of those Acts.
(ii) the Respondent has not discriminated the Complainant on grounds of gender in terms of Section 22 of those Acts.
(iii) the Complainant has failed to establish a prima facie case of Victimisation in terms of Section 74(2) of the Acts.
(iv) the Complainant has failed to establish a prima facie case of Harassment contrary to Section 14A of the Employment Equality Acts.
Accordingly, her complaint fails.
Dated: 11th December 2019
Workplace Relations Commission Adjudication Officer: James Kelly
Employment Equality Acts – gender – Victimisation – Harassment – rosters