ADJUDICATION OFFICER DECISION
Adjudication References: ADJ-00007375 and DEC-E2020-009
Minister for Defence
Ms Cliona Kimber S.C., with Ms Kathy Smith, B.L., instructed by the Irish Human Rights and Equality Commission
Mr Anthony Kerr, S.C., with Ms Grainne Fahey, B.L. on 1 – 3 September 2020, and Mr Martin Black, B.L., on 3 September 2020, instructed by the Chief State Solicitor's Office
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Dates of Adjudication Hearing: 11/04/2019, 9 and 10/03/2020, 1 to 3/09/2020
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015 following the delegation of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant filed case EE/2013/246 (DEC-E2020-009) on 1 May 2013 and obtained legal representation from the Irish Human Rights and Equality Commission on 8 August 2014. The complaint was subsequently scheduled for hearing with another Adjudication Officer but adjourned for reasons of the complainant’s ill-health, and my colleague relinquished the case. It was delegated to me on 17 July 2017. The Irish Human Rights and Equality Commission, instructed by the complainant, filed CA-00010023-001 (ADJ-00007375) on 25 January 2017, and it was delegated to me on 26 September 2017.
Early on, a dispute arose between the parties with regard to the Commission’s jurisdiction: The complainant argued that in order to give her access to an effective remedy for her complaint, I should disapply the provisions in the Employment Equality Acts which apply to members of the Defence Forces in favour of European law. The respondent argued that I had no jurisdiction to do so, and in the alternative, that the relevant provisions of the Employment Equality Acts, in conjunction with internal Defence Forces procedures, already constituted an effective remedy for the complainant’s complaints.
It was around the time when both complaints were delegated to me, in June 2017, that Clarke CJ referred the case Minister for Justice and Equality and Commissioner of An Garda Siochana v. Workplace Relations Commission [C-378/17] to the Court of Justice of the European Union for a preliminary ruling. Accordingly, I scheduled a case conference with the legal teams of both parties, at which the complainant was also in attendance, for 13 November 2017. The aim was to propose waiting for the outcome of the preliminary reference to gain certainty on the jurisdictional point, and therefore reduce the risk of unnecessary appeals. The parties were agreeable to this course of action.
Following the publication of the judgement in the above case by the CJEU on 4 December 2018, I scheduled a day of hearing for the parties’ arguments on the disapplication of the relevant provisions of the Employment Equality Acts, and to be able to ask questions of the senior counsel on both sides on this matter, for 11 April 2019. It seemed prudent to canvass this matter in detail, given that I had never undertaken such a process before. It became clear in the course of the day that it would not be possible to make a preliminary decision on these points, as counsel for the respondent had repeatedly suggested, and accordingly, I adjourned the matter for a full hearing of the entire evidence.
This hearing eventually took place on 9 and 10 March 2020 and from 1 to 3 September 2020. All hearings were conducted face-to-face. In light of the complexity of the matter, copious volumes of evidence and submissions were exchanged between the parties over the course of the investigation.
On the final day of hearing, in his closing arguments, Mr Kerr announced that he was instructed to withdraw his client’s objections to a possible disapplication of domestic law, respectively his client’s argument that the provisions contained in the Employment Equality Acts which apply to members of the Defence Forces, constitute an effective remedy for matters of discrimination. Accordingly, all that remains for me to do in this decision is to make a finding on whether the complainant was discriminated against or not. I will, however, revert to this matter in the context of my decision, given that the late withdrawal of the respondent’s objections caused an enormous delay in disposing of the within cases and with it, considerable detriment to the complainant.
The complainant is a former member of the Defence Forces. She joined the forces on 4 November 1991 as a Cadet and became a commissioned officer, in the rank of Lieutenant, on 4 July 1994. At the time the events took place which led to the complaints investigated in this decision, she served as a stores officer in the Air Corps in the rank of Captain. The complainant was retired from the air corps on grounds of ill-health on 26 July 2016.
In this complaint, the complainant asserts that the respondent discriminated her on the ground of her gender, in that it treated two lengthy absences from work, both on maternity leave, as equivalent to the sick absence of a male officer, and gave her a poor performance rating which impacted her ability to go on a mandatory training course which she would have needed to advance to the rank of Commander. The complainant raised an internal grievance about the matter, which was investigated and partly held in her favour.
The respondent argues that the favourable outcome of the investigation and the subsequent efforts of her superior officers to get her on the course, effectively cure the wrong she suffered. It denies discrimination.
In this complaint, the complainant complains about the delays which occurred in her retirement from the Defence Forces on the grounds of ill-health, which caused her significant financial detriment. She complains on the grounds of gender, family status, and disability and in the alternative, also complains of victimisation. Counsel for the complainant withdrew the complaint on the ground of disability in the course of the hearing.
The respondent denies discriminating against, or victimising, the complainant and further argues that she is estopped from maintaining this complaint due to a settlement reached by the parties on foot of a High Court judicial review brought by the complainant. The settlement document was made available to me on consent of the parties.
A Note on Witness Ranks
In this decision, I have left the military ranks of the respondent officers who were involved in the complainant’s story as they were at the material time. All of them have since achieved promotion, and I certainly mean no disrespect to them. However, I believe that it is more helpful for a general readership to approach the matter as I do, to give a better sense of their respective positions within the Defence Forces at the material time. All witnesses have been anonymised regarding their names in line with the Commission’s normal practice.
Summary of Complainant’s Case:
At the time the situation arose which led to this complaint, the complainant was serving as a stores and refuelling officer, in the rank of Captain, in Baldonnnel Aerodrome. Her stores officer role encompassed overseeing the spare parts stores for the force’s aircraft, including some very expensive craft. The complainant was responsible for the organisation of about 1.5 million spare parts. She also served as refuelling officer before these duties were assigned to another officer. According to her performance appraisal by her immediate supervisor, Comdt E., she carried out her duties diligently and well.
In terms of further career progress for the complainant, or for any other officer in the Defence Forces who serves in the rank of captain, it is mandatory to attend, and successfully complete, a training course called the Junior Command and Staff Course (hereafter JCSC), a residential course of several months’ duration which the Defence Forces organise once or twice a year.
The complainant had begun this course in 2007 but had withdrawn from it. As she stated in her oral evidence, all other participants on the course had a third level qualification except for her. This had a negative effect on the complainant’s confidence – she stated in cross-examination that it made her “feel inferior”, and in the following years, she concentrated her energies on gaining permission to obtain a third level qualification through USAC, the respondent’s third level education programme. In fact, her first efforts to obtain a third level qualification through USAC go back to 1996, as shown in the documents. The complainant was never successful in any of these efforts.
The complainant was somewhat contradictory in her evidence on these points. On the first day of her evidence, she stated that she hoped to attain promotion without completing the JCSC, solely on the strength of gaining a third level qualification. She stated in cross-examination that she was aware of officers who had been promoted without completing the JCSC. Whilst the complainant did not provide any further detail in terms of actual names, she is supported in this contention by documentary evidence submitted by the respondent, a document which sets out, inter alia, the conditions for promotion to Commandant in the Air Corps. The relevant passage reads:
“Air Corps officers will be deemed eligible to compete for promotion to Commandant within their stream if they fulfil the following criteria:
- Have successfully completed the Junior Command and Staff Course, or alternatively, have been certified by the Chief of Staff as having successfully completed a course acceptable in lieu of the Junior Command and Staff Course, or that he/she has otherwise reached a satisfactory standard as determined by the Chief of Staff. [Emphasis added].
On the second day of her evidence, the complainant stated that once she had her family, she resolved to make the best of her career in the Defence Forces, to complete the JCSC, and therefore become eligible for promotion to Commandant. As I will show in my conclusions, not much turns on this for the purpose of adjudicating on the complainant’s case, but it seems important to record this fact nevertheless.
The complainant’s attempts to start her family were not free of problems. In addition to her successful pregnancies, two of which are at the centre of this complaint, she also suffered several miscarriages, one of which took place in 2009. Therefore, when she found herself pregnant again in early 2010, she was present at work from 1 January to 21 February 2010, and thereafter absent on a mix of sick leave, maternity leave, annual leave, and additional maternity leave until 7 March 2011. She then returned to work only Fridays, and worked full-time during the months of June, July and August 2011. The complainant was pregnant again at this point and had her second child on 25 October 2011. Her maternity leave started on 17 October 2011, and prior to that, she was absent on sick leave from 14 September. The complainant had another successful pregnancy in 2013.
The complainant had received a “good” performance rating in 2009. This is common case between the parties, even though the relevant documentation is lost. However, in 2010 and 2011, she received a “weak” performance rating. On foot of this rating, the General Officer Commanding of the Air Corps (hereafter GOC) recommended against her attendance at the JCSC, thereby effectively barring the complainant from becoming eligible for promotion to Commandant.
Given that the complainant was out of work for most of both years in connection with her pregnancies, she was not able to do more at work than fulfil her regular duties. In addition, the refuelling officer duties had been removed from her on health and safety grounds. The complainant therefore found the rating both unfair and discriminatory – given that her absences were pregnancy-related – and raised an internal complaint. She also commented on the fact that she felt discriminated against on the performance appraisal forms themselves and refused to accept her “weak” rating.
The complainant’s internal grievance was partly upheld, and the complainant’s performance assessments were amended to “good”. She also received a recommendation to attend the JCSC and hoped to attend the course which commenced in January 2013. The documentation shows that the complainant lobbied actively for inclusion on that course, and she also confirmed this in her oral evidence. However, the GOC was so slow on signing off on the amended performance assessments that she was only cleared to attend the JCSC in November 2014. By then, the complainant’s general health had deteriorated too much for her to be able to avail of the training, and she was later retired from the Defence Forces on grounds of ill-health. Furthermore, the complainant’s complaint of discrimination was not upheld either internally, nor in her complaint to the Ombudsman of the Defence Forces, when he handed down his decision in 2018.
Both the original and amended performance assessments of the complainant form part of the documentary evidence of the case. The complainant was asked to fill out her narrative for the 2010 performance assessment in September 2011 and was given three hours to complete it. This presented a problem for the complainant, in terms of reconstructing in her mind what she had done many months before in the previous year, but it did not occur to her to ask for more time. She completed the narrative for her original performance assessment in May 2012. The original forms for both years were countersigned by her superior officers in the same month, but as noted above, the complainant did not accept her rating.
The complainant’s first-line superior, Comdt E., gave her a very positive appraisal in both years. The main issues which her second-line superior, Lt Col. B., had with her performance centred on the facts that she was not serving as a refuelling officer at the time; that he felt the complainant was contributing insufficiently to the Unit and that the complainant needed to “improve the running of her appointed section” in order to make a “more tangible and worthwhile contribution to improving her area of core responsibility in the future” (2010). In 2011, Lt Col B., notwithstanding that he himself acknowledges that “Capt O’Rourke proved competent and effective in completing the tasks assigned to her” and “[l]ikewise she successfully undertook a number of additional tasks which she lists in the non-gazette appointments and responsibilities section of this report”, nevertheless found that “I find her performance and contribution is not consistent with an officer who has served in her current appointment for such a long period of time”.
Lt Col B. also took issue in both years with the fact that the complainant did not complete her fitness assessment and noted that “failure to complete the annual fitness test may curtail her participation in certain courses in the future”. Lt Col B. used identical wording on the issue of the fitness tests in both years.
It is the complainant’s case that since she was pregnant, failure to complete the fitness test in either year should have had no bearing on her access to training, and therefore by extension, eligibility for promotion. She stated in evidence that this is how her lack of a fitness test was handled for her 2009 performance appraisal, when she was pregnant and later suffered a miscarriage. As already noted, the documentation of her 2009 performance appraisal was lost.
Lt Col B gave the complainant an overall rating of “weak” and did not recommend her for promotion. The GOC of the Air Corps, in turn, did recommend the complainant for promotion, but did not recommend her for overseas service. (The complainant stated in evidence that she had, at various points in her career, expressed a wish to serve overseas.) As noted, the ratings were changed to “good” following the investigation of the complainant’s grievance, and all negative recommendations were transformed into positive ones.
The complainant’s internal grievance, under the Defence Forces Redress of Wrongs procedure, was investigated by Comdt A in the summer of 2013. The complainant stated that whilst she felt “heard” by Comdt A., she had no trust in the whole procedure at this point in her career. This was due both to the five years it had taken the respondent to address an earlier grievance of hers, and also in terms what she had seen colleaguesgo through when they tried to use the procedure. In the course of her evidence, the complainant stated repeatedly, and with almost passionate emphasis, that “the system works for no one”. Therefore, she brought the within case, and also lodged a complaint with the Ombudsman for the Defence Forces. According to the complainant, again speaking in direct evidence, she wanted to make sure that she was heard in “a forum”, the “a” spoken with emphasis.
The complainant also stated that whilst she was away from work on maternity leave, her post as stores and refuelling officer was discussed to be possibly suppressed, and that she was not properly informed of this. She also complained of being not invited to meetings to which she should have been invited by virtue of her rank and role in the team, when she was at work.
Finally, the complainant noted in her evidence that the GOC remarked to her about her family obligations, and being busy with three children, and also that he later expressed concern to other officers that the complainant would complete the JCSC if sent on it. The complainant states that this amounts to a negative perception of her ability and commitment that is influenced by her gender and family status.
In her closing argument, counsel for the complainant emphasised the long line of cases from the CJEU which highlight that absences for pregnancy-related illness and maternity leave must not be taken as the equivalent of a man’s sick leave – the court has repeatedly held that since only women can experience these conditions, to be disadvantaged in connection with them is prima facie discrimination on the ground of gender. The relevant cases and legal arguments were also contained in the complainant’s submissions. Counsel therefore argued that what had happened to the complainant during her two pregnancies, the performance assessments which effectively barred her from access to training and therefore by extension, from eligibility for promotion, constituted a primafacie case of discrimination which had not been rebutted.
Ms Kimber also stated that what had befallen the complainant pointed to a “systems failure” within the Defence Forces, a point I will address further in my conclusions.
This complaint concerns the delays which occurred in the complainant’s retirement on grounds of being medically unfit to continue to serve, which left her in a very precarious financial situation, since at the material time, she had neither her salary, nor her pension, and because her employment had not officially come to an end, no opportunity to look for other work. She was also the main breadwinner for her family. As noted above, counsel for the complainant withdrew the complaint of discrimination on the ground of disability in the course of the hearing. She confirmed that the complaints of discrimination on the grounds of gender and family status flowed from the complainant’s earlier complaint and confirmed, in response to a direct question, that the complainant did not have a comparator for her allegations as defined by S. 6(1) of the Employment Equality Acts. Also, in response to a direct question as to why the complainant specifically complaint about discriminatory dismissal, counsel stated that she complained of constructive discriminatory dismissal within the meaning of S. 2 of the Employment Equality Acts.
As regards her alternative complaint of victimisation, the complainant gave evidence that she never returned to work after the events that constitute complaint EE/2013/246 due to ill-health, principally anxiety, but also other medical problems. When the Defence Forces Medical Board recommended her retirement on medical grounds on 2 July 2015, the complainant chose not to appeal this recommendation and informed the relevant decision-makers accordingly. Therefore, on 6 July 2015, the General Officer Commanding of the Air Corps recommended her retirement. It nevertheless took until 26 July 2016 for the complainant’s retirement to be finalised, whereas her salary had stopped October 2015. The complainant’s retirement was finalised on foot of Judicial Review Proceedings initiated by her, which were settled by the respondent.
Specifically in response to the respondent’s argument that this settlement estops the complainant from bringing her victimisation complaint, counsel for the complainant pointed out that the settlement only settled the Judicial Review proceedings and that victimisation is not mentioned in same.
The complainant also stated that she was in need of surgery in 2015, which the Defence Forces paid for. She stated that her superior officer said to her that if she was retired now, she’d “better have a chequebook and private insurance, because you could be retired at any time”. The complainant perceived this remark very negatively. She had no private insurance. She clarified, in response to a direct question, that her surgery was done privately.
The complainant was not aware of anyone else in the Defence Forces who had waited for a similar length of time for an ill-health retirement to take effect. She also stated that one of the physicians who examined her at St. Bricin’s Hospital said to her that she “ruffled a few feathers”, which the complainant connected to her earlier complaint of discrimination.
She further pointed to a legal memorandum by Lt Col. D, which highlighted concerns on the respondent side of further legal action by the complainant and the need for the respondent to progress her retirement with great care, as evidence of victimisatory intent.
In addition, counsel for the complainant submitted that there is no onus for a complainant to prove intent on the part of a respondent to victimise an employee pursuant to S. 74(2) of the Employment Equality Acts, and that therefore the complainant had met the prima facie case of establishing a complaint of victimisation.
Summary of Respondent’s Case:
The respondent accepts, in line with the results of its own internal investigation, that the complainant was wronged in how her performance assessments for the years 2010 and 2011 were handled but argues that the remedies implemented on foot of Comdt A.’s investigation cure any ill-treatment which the complainant may have received.
The respondent submitted copious written evidence, including a printout of the entire Redress of Wrongs Procedure; all papers of Comdt A.’s investigation including his report; and the complainant’s original and amended performance appraisals, as well as extensive email correspondence relating to the complainant’s training and in particular, the JCSC.
The respondent called three witnesses: Comdt A., who investigated the complainant’s grievance, Lt Col. B, who was the complainant’s second-line supervisor at the time of the contested performance appraisals; and Lt Col C., who succeeded Lt Col B. in his role and was the complainant’s second-line supervisor during the years which led up to her ill-health retirement.
The officer who was appointed Military Investigation Officer (MIO) to investigate the complainant’s grievance under the Defence Forces’ Redress of Wrongs Procedure, Comdt A., was the first respondent witness to give oral evidence. He was appointed on 15 April 2013, after the previously appointed MIO had to recuse himself. Comdt A. was working in personnel management at the material time and stated that he was familiar with the Redress of Wrongs Procedure, but that this was his first investigation.
Comdt A. stated that he felt confident in his ability to conduct such an investigation, although he had no academic background either in law, or in human resource management. When asked about his understanding of discrimination, he replied that he viewed it as less favourable treatment between two people. In so doing, he referred to the definition of discrimination in Chapter 1 of Administrative Procedure A7. The chapter, really a separate booklet, was provided in evidence and I will quote from it and examine it in greater detail in my conclusions. In addition, Comdt A. stated that he could ask Lt Col D, then the acting legal officer of Comdt A.’s brigade, and now, on promotion, Legal Advisor to the Defence Forces, for advice. He said, however, that he and Lt Col D did not have much engagement. Lt Col D is a qualified barrister. He was not called to give evidence. Comdt A. said that Lt Col D did not request any changes to his finished investigation report.
In cross-examination, Comdt. A stated that he was not aware of specific legal concepts attaching to the law on discrimination, such as what constitutes a prima facie case in different situations, and the concept of a shifting burden of proof as set out in S. 85A of the Employment Equality Acts. He also said that at the material time, he was not aware that pregnancy and maternity related absences are not treated like ordinary sick absences for the purposes of a discrimination complaint.
With this background, Comdt A. commenced his investigation into the complainant’s grievance. He did not know either of the parties before. He commenced his work in April 2013 and completed it in June. Given that a previous grievance procedure instigated by the complainant had taken five years to complete and that she had lodged the within complaint on 1 May 2013, I asked Comdt A. whether he was in any way aware of the within complaint, or under any pressure from his superiors to complete his work quickly. Comdt A stated that he was unaware of the complaint and that he was not pressured to complete his investigation quickly, but rather, that these were the timeframes for such an investigation laid down in the procedure, which he tried to adhere to as best he could.
In terms of potential influence from superiors in a very hierarchical organisation, Comdt A. denied that any superior officer influenced him. He stated that the GOC of the Air Corps, a Brigadier General three ranks above him, disagreed with his conclusions, but that he did not alter them.
Comdt A. struck me as a person of very high personal and professional integrity throughout his testimony, and I fully accept this evidence.
Comdt A investigated the complaint thoroughly. He found that the complainant had been wronged as follows:
Timelines pertaining to the performance assessment process for 2010 and 2011 had not been adhered to and
The narratives in both performance appraisals did not support her general performance rating of “weak”.
Comdt A. found that the complainant had not been discriminated against in terms of her performance appraisal, had not been discriminated against in terms of access to the Junior Command and Staff course, and had not been discriminated against regarding being recommended for overseas service.
Comdt A. recommended, inter alia, that the complainant’s performance assessments should be re-initiated considering his findings, or else “amplified” and that a place on the 2015 JCSC should be reserved for the complainant.
The complainant told him that she felt discriminated against, but Lt Col B. denied discrimination to Comdt A., and specifically, that the complainant’s long absences from work in 2010 and 2011 influenced his assessment. According to his oral evidence, Comdt A. based his finding that the complainant had not been discriminated against on Lt Col B.’s assurances, including his assurances that he did not intend to discriminate against the complainant.
Lt Col B. was the second witness called in connection with the within complaint. He was the complainant’s second-line superior, and the officer in overall charge of aircraft maintenance in the corps at the material time. In this role, he was responsible for 130 staff, including a few female non-commissioned officers and a single commissioned female officer, which was the complainant.
He accepted in his evidence that he may not have been entirely aware of the length of the complainant’s absences in the years in question, but stated that despite her good performance ratings, the complainant had not left a very positive overall impression on him whilst he was her superior. He perceived the complainant as not very motivated in her work and said that with “lots going on in the squadron”, she could have involved herself more.
He explained his “weak” rating with the issue of the complainant’s duties as a refuelling officer. He said, as he did indeed in his amended narrative on her performance assessments, that he was not aware that the duties of refuelling officer had been removed from the complainant. They were given back to her in 2012. He did not agree that these duties posed a health and safety risk for the complainant while she was pregnant and said that they were to a very large extent office-based. He denied that anyone instructed him to change the complainant’s rating from “weak” to “good”.
He stated that he supported both the complainant’s USAC applications and her attendance at the JCSC. This latter assertion is supported by his narrative even in the original 2010 and 2011 performance appraisals. In the original 2011 appraisal, Lt Col B. wrote: “She previously withdrew her participation in a Junior Command & Staff Course in 2007. Accordingly, I urge her to make every effort to secure a place on the next available course to and to successfully complete this course.” He confirmed the complainant’s evidence that the GOC of the Air Corps did indeed not recommend the complainant for the JCSC because of her “weak” rating, even though this was not a formal barrier to participation in the course. Lt Col B. was insistent, in his evidence, that the JCSC was mandatory for promotion to Commandant, and that it was impossible to be promoted without having successfully completed it.
Regarding the fitness tests, he explained that it was a local practice in Baldonnel to demand completion of fitness tests as a precondition of access to other professional training courses. He explained that without such a rule, Air Corps officers were not doing them. He stated that he was not aware of any exemptions for pregnant women.
Regarding the timelines in the performance appraisals, which Comdt A. found had not been adhered to, Lt Col B. stated that it could often be the case in the Defence Forces that these timelines slipped. He said that he himself once processed five years’ worth of performance appraisals in a single year. He offered the opinion that it was up to the individual officer to keep records, either on paper or electronically, or a mix of both, of what their work had been so that they would be able to recall their duties in a given year. He disputed that such delays made it difficult for people to do themselves justice.
As regards the potential suppression of the complainant’s position, which ultimately did not happen, Lt Col B. stated that he did not mention anything to the complainant in order not to upset her. Documentary evidence was provided on this issue which shows that Lt Col B. did argue forcefully for the retention of the complainant’s position and was ultimately successful in his efforts. He also stated that if the complainant’s position had been suppressed, she would have been given another position in the air corps.
In his closing arguments, counsel for the respondent argued that the complainant had not succeeded in raising facts of sufficient significance to establish a prima facie case of discrimination, or in the alternative, that it had been rebutted.
The respondent argues that the complainant is estopped from pursuing a complaint of victimisation on foot of the Judicial Review settlement which the parties reached in July 2016. The respondent bases this on the principle first set down in Henderson v. Henderson (1843) 3 Hare 100, 67 ER 313, which prevents complainants from receiving compensation twice when their complaints flow from the same set of facts.
In the alternative, the respondent denies victimising the complainant regarding the delays which occurred in effecting her retirement. The respondent put a great number of documents in evidence which show the slow progress of such a retirement decision through the system, even though the General Officer Commanding of the Air Corps had issued his recommendation to retire the complainant on grounds of ill-health a mere four days after the medical board reached its conclusion that the health of the complainant was below the standard required to serve in the Defence Forces.
In addition, although the complainant had waived her right to appeal, there were concerns on the respondent side that she might change her mind, and therefore, that the relationship between the parties might deteriorate further if the retirement were finalised in haste. From the documentation opened in evidence, this included concerns about additional legal action on the part of the complainant. The complainant had a previous long sick absence in 2003/04, after which a medical board cleared her as fit to return to duty, and she had raised a complaint about the inordinate amount of time it had taken to constitute this medical board. Therefore, in the instant case, the respondent waited for the relevant appeals periods to expire.
The respondent states that once a retirement is recommended by the Defence Forces, it goes to the Department of Defence, and ultimately to the Government, since a cabinet decision is needed to make it effective. It is the respondent’s case that the general election of 26 February 2016, and the subsequent difficulties in government formation further added to the delay in the matter.
Lt Col C., who was the complainant’s superior officer at the material time, strenuously denied making the remark about the complainant’s chequebook, about the surgery she was undergoing in the Mater Private Hospital and which the Defence Forces paid for. He did, however, accept that he pointed out to the complainant that one benefit to her in the delay of her retirement was that she continued to enjoy the generous medical cover which is available to Defence Forces personnel.
Lt Col C., in his evidence, emphasised that he never worked directly with the complainant, because she was absent on sick leave for the entire time between his appointment and her retirement. He stated that his main objective was to facilitate the complainant’s return to work.
The correspondence between Lt Col C and the complainant was also opened in evidence.
Findings and Conclusions:
The issue for decision in this case is whether the complainant has been discriminated against by the respondent on the ground of gender in relation to promotion, due to the treatment of her absences on maternity leave in her performance appraisals, which hindered her access to the training necessary to become eligible for promotion.
The longstanding jurisprudence from the Court of Justice of the European Union is clear that maternity leave and pregnancy-related sick leave are conditions which only women can experience, and which must not be equated with sick leave absences which a man might accrue. Therefore, any less favourable treatment based on these types of absences from the workplace is prima facie discrimination on the ground of gender.
This jurisprudence is so established that it was even incorporated in the Recast Gender Directive (2006/54/EC), where it says in Recital 23:
“It is clear from the case law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex.”
And in Recital 24:
“The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a women’s biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality.”
Three of these cases are of particular relevance to the within complaint, as they establish clearly that absence on maternity leave and pregnancy-related sick leave must not be equated to a man’s absence on sick leave. These are
Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus (case C-77/88) and Handels- og Kontorfunktionaerernes Forbund i Danmark (acting for Hertz) v Dansk Arbejdsgiverforening (acting for Aldi Marked K/S) (case C-179/88), both published on 8 November 1990, and Webb v. EMO Air Cargo (UK) Ltd (case C-32/93), published 14 July 1994. As the European Court put it very strongly in Webb:
“[T]here can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy […] of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons.
As Mrs Webb rightly argues, pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations which may justify the dismissal of a woman without discriminating on grounds of sex. […]
Given how strongly and repeatedly the CJEU has stated that pregnancy- and maternity-related absences from work cannot be equated with illness or absenteeism of a man for justifying dismissal, it follows that the same applies to management decisions which negatively impact the worker who is absent on maternity leave or pregnancy-related illness.
This, however, was exactly the hypothetical scenario which both Comdt A. and Lt Col B. ran in their minds when attempting to assess whether the complainant had been discriminated against. As per their uncontroverted evidence, they treated the complainant’s lengthy absences from work in 2010 and 2011 like those of a male officer who had been absent for sickness and concluded that such a male officer would have received the same treatment.
To see how they could fall into such a fundamental error, it is necessary to examine the information that was available to Defence Forces members at the material time as a next step. To do so, I now turn to Chapter 1 of Administrative Procedure A7 which I already mentioned in the summary of Comdt A.’s evidence.
This document, which in the version that is relevant to the within proceedings, was distributed to all Defence Forces staff in 2006, bears the title “Interpersonal Relationships in the Defence Forces”. The slim colour brochure is something of a handbook for all staff for how to comport themselves whilst on duty, and in some instances, off-duty. It was the complainant who was able to assist the investigation with an original copy of the 2006 version, of which I made photocopies for the respondent and myself. In addition to its provisions on discrimination, which I will quote in full in the following paragraphs, it is remarkable for two details: The provisions on sexual harassment run to a full 1 ½ pages, three times the length of what it has to say on discrimination, and pregnancy-related discrimination is not mentioned at all. It seems that, even though women have been serving in the Defence Forces since 1979, the possibility of sexual misconduct exercised senior commanders’ minds much more than the notion that women could be disadvantaged or discriminated against because of pregnancy.
The section reads in full:
Section 4 – Discrimination
- Direct Discrimination. Discrimination occurs where a person is treated less favourably on any of the nine grounds in a situation that exists, existed but no longer exists, may exist in the future or is imputed to a person.
Discrimination by association has also been introduced. This occurs when a person who is associated with another person is treated, by virtue of that association, less favourable [sic] than a person who is not so associated is, has been or would be treated in a comparable situation.
- Indirect Discrimination. Indirect discrimination is defined as occurring where an apparently neutral provision puts a person who is a member of one of the nine groups at a particular disadvantage due to being a member of that group, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Statistics are admissible to determine whether or not a person is put at a disadvantage in a particular situation.
- Complaints. Complaints of discrimination that have nothing to do with sexual harassment, harassment or bullying will be dealt with under Section 114 of the Defence Act 1954 as amended (Redress of Wrongs).
- As regards an anti-racism policy, the Defence Forces Dignity Charter (see Annex “A” to Chapter 1 Admin Instr A7) clearly annunciates the requirement for all Defence Forces personnel to uphold values of tolerance, dignity and understanding and to respect the right of each individual to dignity in their work environment and in all activities of their service.
These short paragraphs amount to the entirety of how discrimination was described to Defence Forces personnel in 2006. They were drawn up in response to the enactment of the Employment Equality Acts and Equal Status Acts and replace an earlier instruction from 1996 which predates Irish equality legislation. Most of the text is an abridged and edited version of S. 6(1) and S. 22 (1) and (1A) of the Employment Equality Acts. The nine grounds for discrimination are not even clearly identified. And not even a passing mention is made of the established anti-discrimination law in respect of pregnant service members, even though women started serving in the Irish Defence Forces 27 years earlier.
As per Comdt A.’s oral evidence, the paragraphs quoted above constituted the totality of the information available to him when he carried out his investigation into the complainant’s grievance. Ms Kimber’s long and probing cross-examination of both Comdt A. and Lt Col. B confirmed that for either man, the rights of pregnant women in anti-discrimination law were, in the often-cited phrase of the former US Secretary of Defence, Donald Rumsfeld, an “unknown unknown”.
I therefore concur with Ms Kimber that the complainant was a victim of a major systems failure on the part of the respondent. That the complainant was not the only female service member to suffer so is evident in the facts which make up the case of Captain Diane Byrne, whatever the outcome of that particular litigation due to legal arguments. It beggars belief that women should have been serving in the Irish Defence Forces for decades, without the Forces’ systems and instruction ever having been appropriately updated to ensure they reflect anti-discrimination law as it applies to pregnancy and maternity.
To identify the complainant’s experiences as a systems failure is also important in respect of the reputations of the officers who were involved in the matter and who gave evidence on behalf of the respondent. All three of them struck me as men of personal and professional integrity and good will who would have done right by the complainant if they had been appropriately instructed in what to do, and in the case of Comdt A., what to look for. This is not a matter of any of them either intentionally or consciously misbehaving, and the outcome of the within complaint should not be laid at their feet, either internally or by the wider public.
That said, I am satisfied that through the uninformed actions of Lt Col B., the complainant was indeed discriminated against in access to promotion, as she complained. The chain of causality between her long pregnancy- and maternity-related absence from the workplace in 2010 and 2011, her resulting inability to have much of an impact there, the discriminatory local practice of demanding the completion of the fitness tests, her “weak” rating, and the subsequent decision of the GOB of the Air Corps not to recommend her for the Junior Command and Staff Course which would have made her eligible for promotion, is too obvious to allow for any other interpretation.
In terms of the respondent’s rebutting argument that the subsequent upgrading of the complainant’s performance assessments and efforts by the respondent to send her on the JCSC from 2014 cures the wrong which was experienced by her, I cannot accept this. First, the response from the respondent, especially from the GOC of the Air Corps, was very slow, and considering the complainant’s deteriorating health, too slow to be effective. Second, I cannot accept that it is possible to cure discriminatory actions without acknowledging them first. A good part of the administration of justice would probably become redundant were it not for some profound human emotional needs, such as being heard, being vindicated, clearing one’s name, or being acquitted. This is also obvious, time and again, in the power of public apologies. It is clear from the persistence which the complainant has shown in maintaining the within complaint, that an acknowledgement of the wrong done to her was as important to her as any remedial action.
Accordingly, I find that the respondent has not rebutted the prima facie case which the complainant has established, and that she is entitled to succeed.
The complainant’s complaints of discrimination on the grounds of gender and family status cannot succeed due to the fact that she has no comparator, as requested by S. 6(1) of the Employment Equality Acts. In addition, an ill-health retirement which a worker does not contest simply cannot be comprehended as a constructive discriminatory dismissal, given that the concept of constructive dismissal rests on the notion that it is the worker who ends the employment relationship by giving notice. The relevant definition in S. 2 of the Employment Equality Acts states that
“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “ dismissed” shall be construed accordingly; [Emphasis added].
Therefore, to interpret the complainant’s situation as a constructive dismissal would stretch the concept beyond breaking point, and certainly beyond anything the Acts envisage, and counsel for the complainant did not offer any specific argument how this distance could be bridged, conceptually.
Accordingly, the complainant’s discrimination claim cannot succeed.
As regards the complainant’s claim of victimisation, three issues arise:
Is the complainant estopped from bringing this claim because she settled her judicial review proceedings with the respondent?
Has the complainant raised a prima facie case of victimisation within the meaning of the Acts?
If so, did the respondent victimise the complainant?
As regards the first issue, I do not find that the complainant is estopped from bringing her complaint, even though that complaint arises from the same facts as were subsequently settled between the parties. Counsel for the complainant is correct that the settlement agreement does not mention victimisation, and the general principle of compromised claims is that a complainant cannot sign away future complaints. Furthermore, as the complainant herself remarked in an exchange with Mr Kerr, the settlement only covered her financial loss, and does not include any compensatory element for unlawful conduct. I accept this argument even though it was perhaps slightly out of turn for the complainant to advance it herself, instead of through her counsel.
In addition, it seems important to me to examine the claim on its merits, given how critical I was forced to be of the respondent in my findings on complaint EE/2013/246. If the respondent did not victimise the complainant, it is important to record any such finding. The consideration which has moved between the parties in the settlement agreement, however, would certainly inform any compensation if the complainant is successful.
The next question which arises is whether the complainant has established a prima facie case of victimisation.
I have to say that need to take the complainant’s case at its height to do so.
Counsel for the complainant is correct that a complainant does not need to prove intent, i.e. essentially something similar to mens rea, to raise a valid complaint of victimisation. In light of this, I am prepared to accept the complainant’s sincerely held belief that the long delay to give effect to her retirement was an adverse treatment in response to the equality complaint she lodged in 2013.
That said, not everything bad that happens after an equality complaint is made is automatically victimisation. Despite the relatively open definition of victimisation contained in S. 74(2) of the Employment Equality Acts, which states that
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,
( d ) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
( g ) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
one would generally look, in considering the totality of the evidence after careful investigation, and not just based on a complainant’s initial assumptions, for elements of revenge, retaliation, or punishment. A deliberate act or acts to “get back” at an employee, former employee, or witness, as the case may be. Having investigated the matter, I am satisfied that this is not the case here.
I note in particular that the complainant did not produce the witness who allegedly said to her that she had ruffled a few feathers and that this was the cause for the delay in her retirement. However, even if the witness had been presented to confirm his words, I would rate this evidence as weak compared to the documentation provided by the respondent. I cannot accept that Col. D’s legal memo is evidence of victimisatory intent, as the complainant claims. It simply speaks of the desire of the respondent to complete the retirement process without triggering additional litigation. The respondent was well within its rights to take this position and it cannot, by itself, be considered victimisation.
Apart from the delays which arose from the respondent proceeding cautiously in this matter, it is also clear that the complainant’s file simply got “stuck” at various points in the chain – for example, there are nearly three months between the retirement recommendation of the General Officer Commanding of the Air Corps, and its confirmation by the Deputy Chief of Staff (Support). Further similar delays arose in the Department of Defence itself, including the Minister’s office, before the 2016 general election introduced further delays until the necessary cabinet decision was finally furnished. But it is very evident from the documentation that none of this was a concerted action in any way with the goal of disadvantaging the complainant. Rather, it was a succession of matters going wrong by reason of unconnected actions and events, however dire the actual financial effect on the complainant.
Accordingly, the complainant’s case of victimisation has been rebutted and cannot succeed, either. It is positive to note, however, that the respondent mitigated the complainant’s financial loss from this string of mishaps in the settlement which the parties entered in 2016.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to both complaints in accordance with the relevant redress provisions under section 82 of the Acts.
Based on the discussion in the preceding section, I find that the respondent has discriminated against the complainant, on the ground of gender, in terms of access to promotion contrary to S. 8(1) of the Acts.
Accordingly, I hereby order pursuant to S. 82 of the Act, that the respondent:
Undertake a comprehensive review of training and information materials, instructions, and local practices within the Defence Forces to ensure their compatibility with the protections pregnant personnel enjoy under anti-discrimination law, and more generally, to ensure that the basic provisions of Irish anti-discrimination legislation are clearly and accurately depicted in the materials referenced above. This review should be completed by 31 December 2021.
Roll out a training programme for all Defence Forces personnel with staff responsibilities to ensure they are appropriately aware of the updated materials. This training programme should be completed by 31 December 2022.
Pay the complainant €117,814 in compensation for the discrimination suffered. This is the maximum award of two years’ salary which I have the power to make, based on the complainant’s base salary of €54,412 per annum, plus her military service allowance of €4,495 per annum, as agreed between the parties at the hearing of the complaint. I am making this award because of the unacceptable systemic failure which the complainant fell victim to, the fact that it spanned two absences on maternity leave, its detrimental effect on her overall health, and in line with the principle set out in Von Colson v. Land Nordrhein-Westfalen [Case C-14/83, 1984], that compensation awarded in discrimination cases should be “adequate in relation to the damage sustained” in order to be “effective and to ensure it has a deterrent effect”.
To compensate the complainant specifically for the enormous delay to the investigation and hearing of this matter, because the respondent did not withdraw its jurisdictional objections earlier than during the closing argument for the within complaints, I also order, as I have the power to do in complaints on the ground of gender pursuant to S. 82(5) of the Acts, that the respondent pay the complainant interest at the rate which is applicable under section 22(1) of the Courts Act, 1981.
I note in particular that the applicable rates are those before and after the change effected in the Courts Act 1981 (Interest on Judgment Debts) Order 2016, that is, 8% until 31 December 2016, and 2% thereafter. It is clear from the Parliamentary Question referenced below that the Oireachtas did not intend the interest rate reduction to be retrospective:
The interest payments ordered are in respect of the compensation amount set out above for the period beginning on 1 May 2013 (being the date of the reference of claim EE/2013/246) and ending on the date of payment.
Based on the discussion in the preceding section, I find that the respondent did not discriminate against the complainant, and did not victimise her, within the meaning of S. 2, S. 6(1) and S. 74(2) of the Employment Equality Acts 1998-2015.
In light of the complexity of the retirement process for military officers, and the experiences of the complainant, I nevertheless recommend that the respondent, if it has not already done so, appoint a liaison person in its HR division who can provide information to officers affected by such bureaucratic delays, make inquiries, and if necessary, speed up the process to minimise disadvantage to the officers concerned.
Dated: 2nd December 2020
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Discrimination – gender – pregnancy – maternity leave – pregnancy-related sick leave – performance – promotion – grievance – victimisation – constructive dismissal.