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-00070478-001

07/11/2022

In her complaint form, the Complainant summarises her claim as follows:

My male colleagues were given significant preferential treatment with regards to opportunities to sell and ultimately earn a living. I have been raising these issues in writing with management for the best part of 18 months to two years and have since submitted a large bullying complaint to which I have received the outcome and subsequent appeal outcome in which everything was deemed unsubstantiated despite having raised numerous issues about failures in the investigation process. Full submissions to follow.

The Complainant believed that at a point in her employment the leads she received became poorer and the better leads were being given to male colleagues. The Respondent refuted that any discriminatory practice occurred. The Respondent relied upon the system used to allocate leads which was based on the salesperson conversion level. It also relied on the factual earnings of work colleagues that detailed how a female colleague earned more than the male comparators identified by the Complainant. The Respondent explained that the cost of generating a lead is expensive and that investment in lead generation must be allocated on a sound business basis. That meant that success or conversion levels was a primary driver of lead allocation.

The Complainant alleges that changes introduced to the lead allocation system during 2020 disproportionately benefited male Business Development Managers, and in particular the male comparator she identifies, while disadvantaging female Business Development Managers including herself and a female colleague.

She states that she had been a successful salesperson between 2015 and 2020 but that her earnings reduced significantly thereafter. She attributes that decline to changes in lead allocation rather than to any reduction in her own performance.

According to the Complainant, Business Development Managers were categorised as Red, Orange or Green. Those classified as Red were not eligible for certain appointments and were required to generate their own opportunities. She contends that, although the system was neutral on its face, it resulted in male colleagues receiving more and better quality inbound and premium leads.

She relies on examples from 2022 which she says demonstrate that her male comparator received substantially more inbound leads and appointments than she received. She also relies on seminar event and appointment allocation figures which she says show a pattern of preferential treatment towards male colleagues.

The Complainant contends that this limited her ability to earn commission and adversely affected her income. She states that she repeatedly raised her concerns with management but that they were not satisfactorily addressed.

The Respondent denies that the Complainant was discriminated against on the gender ground in relation to lead allocation, appointments, commission opportunities or bonus earnings.

The Respondent states that the Covid-19 pandemic significantly reduced business opportunities and required changes to the sales model. It maintains that appointments and leads were allocated using objective commercial criteria, principally sales conversion rates.

Mr Raj Singh, Chief Executive of Peninsula Ireland at the time, gave evidence that he examined the Complainant's concerns and was satisfied that she received a fair allocation under the system. He stated that measures had been introduced to reduce discretion in the allocation process, including allocation by territory, diary availability and operational requirements.

The Respondent maintains that gender played no role in the allocation of leads or appointments and that both male and female Business Development Managers were subject to the same methodology.

The Respondent further submits that office generated appointments were only one source of business and that Business Development Managers were expected to generate opportunities through networking, referrals and self-generated leads. It also argued that concerns regarding the allocation system were expressed by both male and female employees.

The Respondent contends that the Complainant has failed to establish any connection between her gender and the treatment complained of and maintains that any differences in opportunities or earnings arose from a performance-based allocation system rather than from sex.

The complaint before me is one of discrimination on the gender ground in relation to the Complainant's conditions of employment, contrary to the Employment Equality Acts 1998 as amended. The complaint was received on 7 November 2022 and the most recent date of discrimination stated on the complaint form is 2 November 2022. The cognisable period is therefore the six months ending on 7 November 2022.

The Complainant relies on a course of conduct which she says began with the introduction of a revised lead allocation system in 2020 and continued until she made her complaint. To deal with her complaint on the broadest basis open to her, I have considered the evidence across the full period she relies upon and not only the six months preceding the referral. That is considered to give context to what is claimed to have occurred during the most recent 6-month cognisable period where ongoing discrimination is alleged.

Section 85A of the Acts governs the burden of proof. The Complainant must first establish facts from which discrimination may be inferred. Those facts must be proved and not merely asserted, but they need only be of sufficient significance to raise a presumption of discrimination. That is the test set out by the Labour Court in Southern Health Board v Mitchell DEE011, [2001] ELR 201 and in Melbury Developments Ltd v Valpeters [2010] ELR 64. If the Complainant establishes such facts, the burden passes to the Respondent to show that the treatment complained of was not related to gender.

I am satisfied that the Complainant has met that first requirement. Her earnings fell substantially after 2020. She received fewer office generated appointments over the period in question than several of her colleagues. Those are established facts and not assertions, and they are of sufficient significance to raise a presumption which the Respondent must answer. The burden of proof therefore shifts to the Respondent.

The Respondent gave evidence through Mr Raj Singh, Chief Executive of Peninsula Ireland, who designed the allocation system. His evidence was that the cost of generating sales leads, particularly through online advertising, is substantial, and that leads must therefore be directed to those most likely to convert them. Past conversion performance was used as the indicator for that purpose. He gave evidence that he examined the Complainant's concerns when she raised them, and that measures were introduced to reduce individual discretion in the allocation process, including allocation by territory and by diary availability.

The Respondent produced its records of appointment allocation, conversion performance and earnings for the relevant period. Having considered that material in the round, it does not support the Complainant's case.

The appointment records show that the female Business Development Managers received appointments at or above the average received by their male colleagues on each of the measures recorded and in each of the periods recorded. The Complainant's own allocation of inbound appointments, the category she identified as converting best, was at or above the average received by her male colleagues across each of those periods. She received fewer office generated appointments than both the male and the female averages from July onwards, and it is that reduction which raised the presumption the Respondent was required to answer.

The conversion records show that the Complainant's conversion rate was below the team average in most months of 2022, and below that of the male comparator she identified in every month recorded. On the Respondent's stated rationale for allocation, that is what explains the difference between the Complainant and her male comparator, and it is a rationale which applied to men and women alike.

The earnings records show that in 2022 the female comparator earned substantially more than the Complainant, while several of the male comparators earned substantially less. Across the years covered by those records the variation in earnings between individuals of the same sex was considerably greater than any variation between the sexes.

Taking that evidence together, I am satisfied that the difference in the allocation of leads and appointments, and the consequent difference in earnings, was determined by conversion performance and not by sex. The same system applied to male and female Business Development Managers alike, and its operation produced no pattern along gender lines. A female colleague working under the same system outperformed the Complainant and out earned her. Male colleagues working under the same system did less well than her.

The Complainant experienced a reduction in the opportunities available to her and in her income under the revised system, and she held her concerns about it sincerely. The question I must decide is not whether that system was fair to her but whether she was treated less favourably because she is a woman. On the evidence before me she was not.

The Respondent has discharged the burden which passed to it under section 85A of the Acts. The complaint fails. The Complainant was not discriminated against on the ground of gender.

I find that the Respondent did not discriminate against the Complainant on the ground of gender in relation to her conditions of employment. The complaint is not well founded.

Gender discrimination. Conditions of employment. Lead allocation. Commission. Burden of proof. Section 85A. Complaint not well founded.