Complainant

Respondent

Parties

Ganna  Polishchuk

Accenture Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Síobhra Rush Lewis Silkin Ireland LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062211-001

13/03/2024

The complainant commenced employment with the respondent on 7 December 2020.  She works 40 hours per week, and she is paid a monthly gross salary of €3,200.

In her written submission to the WRC dated 11 November 2024, the complainant submits that she was discriminated against in that she was subject to discriminatory practices related to promotion and to pay in her workplace, specifically grounded in age discrimination. She submits that despite meeting the qualifications, experience and performance standards required for promotion, she has been unfairly passed over for advancement opportunities, in favour of younger, less experienced individuals. The complainant claims that her pay has been unfairly impacted upon by missing promotion, resulting in a disparity between her pay and compensation and that of younger colleagues who perform like work.

The complainant submits that on 21 July 2023, three vacancies for T2 Copyright Analyst were announced. The complainant applied for the position of T2 and after the first stage evaluation she along with two colleagues was selected for the role.  The “ramp up process” for the three candidates was initiated on the same date. Due to annual and sick leave the complainant fell behind the two comparator colleagues in relation to the ramp up process.  The complainant failed a particular exam (the SH Exam) in September 2023 and was referred for additional training. She successfully passed the said exam on 9 November 2023, and she moved the 3rd stage of the 2Incubation stage.  From 10 November 2023, the complainant was engaged in like work as her comparators and other T2s. 

From 10 November 2023 until 15 January 2024, the complainant submits that she achieved the targets and fulfilled the Incubation Stage of the ramp up process, moving to the final T2 promotion stage in accordance with the procedure.  Following this the complainant successfully passed an interview thereby fulfilling all stages and obligations under the contract.  According to the ramp up procedure, once an applicant has competed these steps the respondent management will process the career level change as previously applied to the comparators. The complainant submits that the respondent management failed to implement career level changes and further amendments relating to the complainant.

The complainant submits that she raised concerns with senior management about discrimination in her promotion and level up process, which was not applied to her since she was one of three candidates, the two other comparators having been promoted.  Despite her complaint, no resolution was found.  The complainant had to perform like work with her comparators on a daily basis without equal pay with them.

The complainant submits that she was discriminated against in the promotion process on the age ground.  The two comparators are younger than she is; they are both in the 20s whereas she is in her 40s. the complainant submits that discrimination in the final promotion was caused by her slower progress in the ramp up stages compared to the comparators because of her age difference and less favourable treatment in similar situation based on the protected ground. She failed to pass the SH Exam at her first try, additionally only she has asked for the extra week of SH hours prior to the SH Exam and senior management appointed the complainant for extra training after her exam failure, which significantly extended the timeframe in the promotion process. The complainant provided information on cognitive abilities and the ability to memorise, and the difference between age groups in performance.

Regarding a remedy the complainant submits that as the respondent complied with its obligation and promoted her in June 2024, with remuneration adjustment according to the appropriate career level (11) stated in the position’s description and the ramp up procedure. The complainant is therefore seeking compensation to cover the shortfall in salary over the period 15 November 2023 to 1 June 2024, taking into account inflation, this comes to a total amount of €1,980.34.

In closing her submission, the complainant submits that her evidence demonstrates a pattern of discriminatory practices that have adversely affected her professional development opportunities, financial wellbeing and caused distress to her due to the indifference of senior management to her requests.

Ms Polishchuk gave evidence on Affirmation at the hearing.

Ms Polishchuk, the complainant, stated that she is 44 years of age.  She was much slower than her colleagues who are younger people. She failed the first exam while her two younger comparators passed their exams.  There was a break between her doing the first exam and taking a repeat exam during which she got special training.  She said that after she failed the first exam she was “abandoned” by management; she followed her agreement, they did not.

The complainant stated that she was slower due to her age, that her memory, reactions, etc., are slower than her comparators. Her slow progress was due to her age and her slow progress meant she was not promoted.

The respondent provided a written submission.

The respondent submits that the complainant was not promoted at the same time as her two named comparators because at the time they were promoted she was not eligible for promotion as she did not have the required criteria for promotion.  The complaint was subsequently promoted having acquired the necessary qualification.

The respondent submits that there is no evidence that the promotion policy and the implementation of same, put a particular class of people at a disadvantage.  There is no evidence to suggest that the respondent’s policies adversely put any age group at disadvantage.

The respondent submits that the complainant was paid commensurate with her grading. Her salary has nothing to do with her age.

Mr Craig Lawlor, ER Lead in Ireland for the respondent company, gave evidence on affirmation at the hearing.

Mr Lawlor explained the promotion system used by the respondent. It is a fully transparent system and there is no visibility of age in the application process. He explained that there are windows of time when promotions take place and times when staff may be waiting for a window to be promoted. Sometimes those awaiting a promotion window, may do the work of the next level up without being paid at that level.   

In closing the respondent asserted that the complainant has failed to make a prima facie case but even if she did everything done by the respondent was objectively justified by reference to the company’s policy on promotion.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a:

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Finding on Preliminary Issue

Although the complainant did not mention the age ground in her complaint form to the WRC, she did make it clear in her written submission that her claim of discrimination was made on the age ground.  I find the respondent was on notice of this well in advance of the second hearing.  I find I have jurisdiction to decide on the matter on that basis.

Establishing a prima facie case.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

To determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

1.       She is older than her two comparators.  She passes the first test.

2.       She was not promoted at the same time as her comparators. As a consequence, she was not paid the same as her comparators. She passes the second test.

3.       The reason she was not promoted at the same time as her comparators was not due to her age but because she was not eligible for promotion at the time her two comparators were promoted. When she achieved the qualification needed for promotion she was promoted at the next available opportunity. The complainant has failed to provide any evidence that the delay in her promotion was related to her relative age in comparison to those of her two comparators. A younger person in similar circumstances would have been treated in the same manner. She does not pass the third test.

The complainant has failed to establish a prima facie case, and her complaint cannot succeed.

The complainant was not discriminated against.

Age. Prima Facie. Evidence.