Bernadette Treanor writes:

Employment Equality Decisions issued in July 2013 Reviewed

These decisions of the Equality Tribunal were reviewed by Bernadette Treanor, Managing Consultant, Beo Solutions, and former Equality Officer at the Equality Tribunal.

The first case reminds us that where a successful candidate in a selection process is a man and the unsuccessful but more qualified candidate is  a  woman is sufficient on its own to establish a prima facie case of discrimination.  This logic should be extended to all grounds so that, for example, where a successful candidate is of one race and the unsuccessful but more qualified candidate is of another race then this is likely to be sufficient to create a prima facie case of discrimination.

The second case interestingly, shows that dual claims on the same issue can be heard under the Maternity Protection Acts and under the Employment Equality Acts.  The case deals with the tricky situation of ensuring that the role a woman returns to after maternity leave is equivalent to the role she held before the leave.  In this case, what is addressed is not that the altered role was inappropriate of itself (in fact the Equality Officer accepted the need for change) but rather that the extent of the workload was excessive.

DEC-E2013-054, Susan O’Kelly v WYG Engineering (Ireland) Ltd. (In Liquidation)

Issues: Gender, family status, marital status, promotion of lesser qualified person, better qualified woman being unsuccessful is sufficient to establish prima facie case

The complainant was one of three people employed in finance roles with the respondent.  She had qualified with the Chartered Institute of Management Accountants.  Her two colleagues were male.  The complainant gave evidence that she always performed well in her role and got excellent appraisals.  The respondent, faced with restructuring in 2010, announced that the three posts were at risk and two new posts were being created.  One of the new roles attracted a salary of €45,000 focusing on balance sheet and the second attracted a salary of €55,000 focusing on profit and loss.  One of the three expressed no interest in the new posts and was made redundant.  The other, a part qualified male who was unmarried, had no children, had not completed his training and apparently had failed one or more of his ACCA exams, expressed an interest in the second new post as did the complainant who was fully qualified.  The part-qualified male colleague was successful while the complainant was unsuccessful in the interviews even though she was more qualified and had many more years experience in the Consulting Engineering sector than the successful male appointee.  She was made redundant in August 2010.

Others issues that arose in the case included the complainant’s line manager having previously asked the complainant how many children she had.  He also allegedly yawned and looked out the window during the complainant’s interview for the new role.  In addition, the complainant indicated that some answers recorded in the notes of the interview were not answers that she had provided or were low-level examples when she had also given high-level examples.  In particular, one response attributed to her related to depreciation and the complainant was adamant that she did not refer to depreciation at all during her interview while that would have been an area of work relevant to the successful candidate.

The Equality Officer referred to Wallace v South Eastern Education from the Northern Ireland Court of Appeal, NI 38[1980] IRLR 193 as authority for “the proposition that where a successful candidate for appointment to a post is a man and the unsuccessful but better qualified candidate is a woman, that fact alone is sufficient to establish a prima facie case of discrimination”.  The Equality Officer found that the complainant was a very cogent and credible witness.  She found that the complainant had established a prima facie case in respect of all three grounds referred, gender, marital status and family status which the respondent had failed to rebut.

She was awarded €45,000 as compensation which equates to approximately one year’s salary.

Why is this case of interest?

Issues: Return from maternity leave, equivalent post, no effort to ensure equivalent post, increased workload, excessive duties, lack of support for new duties, suspension

The complainant returned from maternity leave to similar duties but with the addition of new duties.  The Equality Officer accepted that the respondent experienced a fall in orders with the result that the complainant’s duties had reduced and that it was reasonable for her to be assigned additional duties on her return.  Time for training was allotted.

Many meetings appear to have taken place between the complainant and management but she indicated within three weeks of her return on 27 May 2010 that she had too much to do.  She was asked to produce a schedule of her work.  On 3 June she did not produce her schedule but it was agreed there would be another month’s training.  On 9 June there was a Capacity Plan meeting and on 16 June a meeting was held where errors were identified on the part of the complainant.  The complainant went on sick leave suffering from stress until 23 June 2010.  On that date she was called to a meeting where the respondent told her of a complaint from an important customer who was considering taking its business elsewhere and that the respondent considered her behaviour in the incident as gross misconduct.  The complainant was placed on suspension.  She lodged a grievance during that meeting stating that she considered that she had been given excessive duties on her return from maternity leave.

The disciplinary process was suspended while the grievance was handled but ultimately her grievance was not upheld and on 30 August the results of the disciplinary process issued along with a first and final warning.  The complainant went of sick leave on 1 September 2010.

The Equality Officer made much of the fact that the respondent had a clear idea of the tasks to be set for the complainant on her return from maternity leave.  When told of the complainant’s difficulties the respondent agreed to more training, even though the training to date had not assisted the complainant and asked her to produce a schedule of her work.  The person providing the training admitted that she had difficulties giving the complainant the time she needed for the training.  He also made much of the fact that the complainant was not at work following her suspension so she had no opportunity to deal with the respondent’s issues with her work.  He also states that the respondent made no effort to assist the complainant.

It appears from the Equality Officer’s comments that the respondent was very clear on the work being allocated to the complainant and it is therefore incongruous that it was not aware of the level of that work.  In addition, the respondent’s response to the complainant who was complaining of excessive duties was to ask for an additional schedule from her even though it appears there was clarity around her new duties.  While seeking this schedule from the complainant, the respondent was able to identify errors in her work.  As always, it is noted that the Equality Officer is likely to have been in receipt of more information than is possible to include in the Decision.

Finally, and interestingly, the respondent argued that as there had been an award already ordered by a Rights Commissioner in respect of these issues, i.e. changes in respect of the complainant’s conditions of employment, the Equality Officer had no jurisdiction to investigate the claim.  The Equality Officer decided that he had jurisdiction because there was no provision in the Employment Equality Acts precluding it.

The complainant was awarded €11,700 in respect of discrimination on the gender ground taking into account the award made by the Rights Commissioner.  No reference is made to her allegations in respect of her marital or family status.

Why is this case of interest?

- Where a woman recently returned from maternity leave is being considered for suspension care should be taken to consider if the circumstances relate directly to new duties assigned to her on her return

- This Decision suggests that the extent of duties being assigned is relevant when considering whether the role a person returning from maternity leave is being assigned is an “equivalent” role.

- Matters such as these can be considered under the Maternity Protection Acts 1994-2004 as well as the Employment Equality Acts.

Find the Decision here.