This high-profile, and complicated, case involves allegations of systematic victimisation of a Director of Services (effectively Chief Executive) in the health sector. K had an ongoing equal pay case at the Tribunal and before the Labour Court. Her victimisation complaints commenced when one of the male comparators in her case (Mr A, himself a former Director of Services in another region) was appointed Chairperson of the Board of Directors in Clare by the National Board. Other complaints were directed at Mr A’s treatment of K, the appointment of an outside consultant to review Clare Services and also her treatment by the Chief Executive and Chairperson of the National Board of the Brothers of Charity. Finally, she complained about the respondent’s treatment of its appeal to the Labour Court in the equal pay case.
Ultimately, the Tribunal found it difficult to distinguish a general deterioration of relationships within the Board of Directors, and between Clare Services and the National Board, from ‘adverse treatment’ based on her equal pay claim. Nonetheless, she succeeded on two of her complaints, namely that the Chief Executive of the National Board had briefed an independent consultant, drafted in to conduct a review of services in Clare, about K’s equal pay claim. Secondly, she also succeeded on the complaint that the draft review report was circulated to members of the Board of Clare Services but not the complainant, although the review was of Clare Services as a whole.
The case was not just complicated in an evidential sense. The Tribunal has to cope with issues of the extent to which the respondents, Brothers of Charity Services (Clare) Ltd, against whom the equal pay claim had been brought, could be liable for acts at the National Board level.
On the one hand, the Tribunal rejected arguments that the National Board was in some way an ‘agent’ for the respondents, for example, in the Appointment of Mr A as Chairperson. On the other hand, the Tribunal, noting the case of Whooley v Millipore Ireland BV and Millipore Corporation, accepted that the respondent could be liable for the actions of those at the level of the National Board, the former being a wholly owned subsidiary of the latter. Clark J, in Whooley, is quoted as stating, “"If her employer, as a subsidiary within a group, allows personnel from other companies within the group to have a direct role with her in the context of her employment, then her employer is responsible for those persons ... Any acts carried out by personnel from other companies within the group as a result of such a structure are actions for which the subsidiary employer must bear responsibility."
The Tribunal also relied on the three-fold test in the Labour Court decision in Tom Barrett v Department of Defence in its application of section 74(2) on victimisation. First, it must be clear that at the relevant time the complainant had taken a protected act in terms of section 74(2) of the Acts. The next issue is whether or not the treatment of the complainant constitutes "adverse treatment" in terms of section 74(2). Finally, the adverse treatment must be in reaction to the protected act having been taken by the complainant.
The Decision is valuable in showing how reversal of the burden of proof, once a prima facie case is established, requires an employer to explain why a particular course of action was followed. It also shows that, even in sensitive investigations such as in this case, employers and governing bodies must be able to justify every stage of the process, particularly when pre-existing court or tribunal proceedings may be brought into play. In this case, the two successful elements of her claims could not be explained except on the basis of a reaction to her equal pay claims and the complainant was awarded €45,000.
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