Complainant

Respondent

Parties

Amanda  Ball

Peninsula Business Services (Ireland) Ltd

Representatives

self

Peter Murphy McInnes Dunne Murphy/ Rosemary Mallon BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00053579-003

07/11/2022

On her complaint form the Complainant states that:

“I met with the CEO during which there was a discussion about the steps I feel I may have to take. There were various comments made about what would happen if she "sued". I left the meeting after having advised that I was going to make a formal complaint. In the same month my colleagues Dublin appointments were 4x higher than mind. Full submissions to follow.”

In her written submission the Complainant details and refers to this complaint as follows:

“CA-00053579-003 (“Third Claim”) (dated 7 November 2022): That the Claimant was victimised (within the meaning of section 74 of the 1998 Act) for having notified the Respondent on 1 September 2022 of her intention to commence legal proceedings, in respect of which she seeks adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

Third Claim: Victimisation for indicating intention to institute legal proceedings 38. The Claimant was victimised for outlining to the Respondent her intention to bring legal action against it in relation to her complaints of discrimination in the distribution of leads. 39. The Claimant emailed RS on 1 September 2022, outlining the “unequal” and “unrealistic” demands being made of her in relation to the investigation of her complaint of discrimination in the distribution of leads. The Claimant concludes: “I will now be engaging a solicitor and making a formal complaint to the HAS” [See Tab 6 – Claimant Emails – Email of 1 September 2022] 40. As a consequence of having informed the Respondent of her intention to take legal recourse, the Claimant instructs that she faced adverse treatment from the Respondent. 41. The following adverse treatment is alleged: - - - - She was called “disrespectful and selfish” by Raj Singh for indicating her intention not to attend the dinner and drinks after a conference being held by the Respondent in October 2022; She was approached by Raj Singh at the conference of 14 October 2022 and, in front of other colleagues, was asked to rethink her position and to stay for dinner and drinks after the conference, which caused the Claimant distress and humiliation; The Claimant was brought to a disciplinary hearing on 26 October 2022 for refusing to attend the dinner and drinks after the sales conference; The Claimant will adduce further evidence at the hearing of this action concerning the adverse treatment she faced between 8 May 2022 - 7 November 2022 after, and as a result of, indicating to the Respondent that she intended to bring legal proceedings against it.”

The Respondent's position on this complaint, as set out in its written submission and confirmed in evidence by Mr Raj Singh, is as follows.

The Respondent contends as a preliminary matter that the complaint must fail because what the Complainant relied upon was not, even taken at its height, notice of an intention to institute proceedings under the Employment Equality Acts.

Mr Singh denies that he suggested the Complainant leave the business or that he proposed any means of her doing so. His evidence was that he offered to increase her earnings for a temporary period to assist her with financial difficulty and that she declined that offer.

In relation to the conference in October 2022, the Respondent says that attendance at conferences is a mandatory term of the offer letter of every Business Development Manager across the Group, and that this was the first occasion on which a major conference was held in Ireland. Mr Singh was informed that two employees, the Complainant and a male colleague, did not intend to attend the full event.

Mr Singh denies calling the Complainant disrespectful and selfish. His evidence was that he said that deliberately not recognising the efforts and achievements of colleagues would be selfish and disrespectful to those colleagues. He accepts that he approached the Complainant at the conference to try to persuade her to attend in full and says that they had a brief conversation in which she confirmed that she would not be attending. He gave evidence that he had a similar conversation with her male colleague and that the male colleague was also brought to a disciplinary hearing for breaching the terms of his role.

No sanction was imposed on the Complainant arising from that disciplinary hearing.

The Respondent's position is that the Complainant was treated in the same way as her male colleague and that the treatment complained of had nothing to do with any complaint she had made or any threat of legal proceedings.

The three components of victimisation were set out by the Labour Court in Barrett -v- Department of Defence EDA 1017:

·       the claimant must have taken action of a type referred to in the Acts – for example, making a complaint of discrimination to the employer;

·       the claimant must be subjected to adverse treatment by his/her employer; and

·       the adverse treatment must be in reaction to the protected act having been taken by the claimant.

The Complainant alleges that she was victimised within the meaning of section 74(2) of the Employment Equality Acts after notifying the Respondent on 1 September 2022 of her intention to commence legal proceedings in relation to her complaint of discrimination in the distribution of leads.

She states that at a meeting with the Chief Executive there was discussion of the steps she might take and that comments were made about what would happen if she sued. She left that meeting having advised that she was going to make a formal complaint. She says that in the same month a colleague received four times the Dublin appointments that she received.

In her written submission she further alleges that she was called disrespectful and selfish for indicating that she would not attend the dinner and drinks following a conference held by the Respondent in October 2022, that she was approached by Mr Singh at the conference on 14 October 2022 in front of colleagues and asked to reconsider, which she says caused her distress and humiliation, and that she was brought to a disciplinary hearing on 26 October 2022 for refusing to attend.

She contends that this treatment followed from, and was a consequence of, her having informed the Respondent that she intended to bring legal proceedings against it.

The Respondent denies that the Complainant was victimised. It contends as a preliminary matter that what the Complainant relied upon was not, even taken at its height, notice of an intention to institute proceedings under the Employment Equality Acts.

Mr Raj Singh denies that he suggested the Complainant leave the business. His evidence was that he offered to increase her earnings for a temporary period to assist her with financial difficulty and that she declined that offer.

The Respondent says that attendance at conferences is a mandatory term of the offer letter of every Business Development Manager across the Group and that this was the first occasion on which a major conference was held in Ireland. Two employees, the Complainant and a male colleague, indicated that they would not attend the full event. Mr Singh denies calling the Complainant disrespectful and selfish and says that what he said was that deliberately not recognising the efforts and achievements of colleagues would be selfish and disrespectful to those colleagues. He accepts that he approached the Complainant at the conference to try to persuade her to attend in full. He gave evidence that he had a similar conversation with her male colleague and that the male colleague was also brought to a disciplinary hearing.

The Respondent's position is that the treatment complained of had nothing to do with any complaint the Complainant had made or any threat of legal proceedings.

This complaint is one of victimisation within the meaning of section 74(2) of the Employment Equality Acts. The complaint was received on 7 November 2022, and the cognisable period is the six months ending on that date.

The Complainant has separately complained of discrimination on the gender ground in relation to her conditions of employment. That complaint has been determined against her. That finding neither assists nor precludes this complaint. The Act provides protection to an employee because she has made a complaint, and victimisation falls to be considered on its own terms.

The Respondent contends as a preliminary matter that what the Complainant relied upon was not notice of an intention to institute proceedings under the Employment Equality Acts.

The Complainant's complaint form set out her complaint in short terms and her written submission expanded on it. Where the narrative in a complaint form is expanded in a written submission, or indeed raised orally at the hearing, an adjudication officer is entitled to deal with the complaint as so developed: Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210. The general nature of the complaint did not change, and the Respondent was on notice of the matters relied upon. I have dealt with the complaint as made and as developed before me.

The detriments alleged are that comments were made at a meeting with the Chief Executive about what would happen if she sued, and that in the same month a colleague received four times the Dublin appointments she received, that she was called disrespectful and selfish, that she was approached at a conference on 14 October 2022 in front of colleagues, and that she was brought to a disciplinary hearing on 26 October 2022. The complaint is lodged with the Commission on the 7th of November 2022.

Section 85A of the Acts governs the burden of proof and applies to a complaint of victimisation. The Complainant must first establish facts from which it may be inferred that she was victimised. Those facts must be proved on the balance of probabilities and not merely asserted (Melbury Developments Ltd v Valpeters [2010] ELR 64). Only where she establishes a prima facie case does the burden pass to the Respondent to prove the contrary.

To establish a prima facie case of victimisation the Complainant must show that she committed a protected act, that she was subjected to adverse treatment, and that there is a causal connection between the two.

The test is set out by the Labour Court in Barrett -v- Department of Defence EDA 1017. By analogy in a case brought under a different Act where there are competing operating causes it will be more problematic to ground the complaint Toni and Guy Blackrock Limited v O'Neill [2010] ELR 21. The detriment must have been incurred because of, or in retaliation for, the protected act. Where more than one causal factor is present, the protected act must be an operative cause, in the sense that but for the protected act the detriment would not have been suffered. That involves consideration of the reasons which influenced the decision maker.

The allocation of appointments

The Respondent's records show the appointments the Complainant received in each month of the relevant period. Her allocation did not reduce following 1 September 2022. Her lowest month on each of the three measures recorded was August, before the date of the protected act, and her September and October figures were higher than her August figures. Her allocation of inbound appointments in those two months was at or above the average received by her male colleagues. The Complainant asserts that a colleague received four times the appointments she received in the same month. The Respondent's records do not bear that out.

The reduction of which she complains therefore preceded the protected act rather than followed it. The Respondent's evidence, which I accept, is that allocation was governed by conversion performance, and that explanation was already in operation before 1 September 2022 and did not alter afterwards. The protected act was not an operative cause of her allocation and the but for test is not met on this limb. Arguably a prima facie test is not as strict, but it must meet the requirement as set out in Barrett that links the detriment to the making of a complaint. That has not been met here.

The meeting with the Chief Executive

Mr Singh gave evidence that no adverse treatment resulted from the fact that a claim had been made or was threatened. A denial is of limited weight. What the surrounding evidence shows is that the Complainant's allocation did not change after the meeting.

The conference and the disciplinary process

A disciplinary process is capable of amounting to victimisation. It does not do so merely because the employee regards it as unfair. It does so where the process was instituted because the employee committed a protected act.

The Respondent's evidence was that attendance at conferences is a mandatory term of the offer letter of every Business Development Manager across the Group, and that this was the first occasion on which a major conference was held in Ireland. The Complainant indicated that she would not attend the event in full. Mr Singh spoke to her at the conference to try to persuade her to attend. He denies calling her disrespectful and selfish and says that what he said was that deliberately not recognising the achievements of colleagues would be selfish and disrespectful to those colleagues. A disciplinary process followed. No sanction was imposed.

There are two competing explanations for that sequence. The first is that it was a response to the Complainant having indicated an intention to take legal proceedings. The second is that it was a response to an employee declining to attend an event which her contract required her to attend, on an occasion of some significance to the employer, in circumstances where that example left unaddressed would have had implications for the wider sales team. On the evidence the second is the more probable. It is supported by the fact that a male colleague who also declined to attend was spoken to in the same terms and was likewise brought to a disciplinary hearing. That does not of itself dispose of the complaint, because victimisation is concerned with why the Complainant was treated as she was rather than with how others were treated. It does show that the employer had a reason for acting which was unconnected with the Complainant's protected act and which it applied to another employee in the same position.

The absence of any sanction is also relevant. The process concluded without consequence for the Complainant. That is not what one would expect of a process instituted in retaliation.

Conclusion

Taking the evidence as a whole, the Complainant has not proved on the balance of probabilities a causal connection between the protected act and the treatment complained of. Her allocation of appointments did not alter after 1 September 2022 and the explanation for it predated that date. The disciplinary process has a clear and independent explanation in her nonattendance at a mandatory event, and it produced no sanction. The protected act was not an operative cause of any of the matters complained of.

The Complainant has therefore not established a prima facie case of victimisation, and the burden of proof does not shift to the Respondent. The complaint of victimisation fails.

I find that the Complainant was not victimised. The complaint is not well founded. The Complainant has not established a prima facie case of victimisation, and the burden of proof does not shift to the Respondent. The complaint of victimisation fails.

Prima Facie –Facts and Causation-Failure to shift the burden of proof