The female complainant was employed by the respondent as a security officer under a fixed term contract and subsequently a fixed purpose contract from March 2010 until 23 May 2011 as was a male colleague with further male colleague being recruited in October 2010.  The fixed purpose contracts were completed when the article the additional security was required for, the Cross of Cong, was no longer held at the museum.  The respondent provided security services to the client museum.

During her tenure the complainant raised a number of issues in respect of her gender.  Two months after she started she complained to the client that she had not been given keys because of her gender.  It subsequently became clear that her other part-time male colleague also did not have keys and this allegation was not upheld.  She asserted that “one day in March” 2011 she was offered a transfer by her manager to another site because of her gender as the other role included the cleaning of toilets.  It subsequently became clear that the other role was also offered to the other fixed term male employees.  This allegation was likewise not upheld.

She alleged victimisation when the rosters were changed on 15 March 2011 requiring her to work only night shifts from then on.  She alleged this was a reaction to her assertion that the alternate role was only offered to her because of her gender.  The matter is slightly complicated at this point because on 14 March 2011, some unknown time after the discussion with her manager about a transfer, the complainant also discussed her situation with a senior member of the respondent’s client’s staff (the museum manager) which greatly exercised her manager when he became aware of it the following day.  On that day, the day he became aware of the complainant’s discussion with the client, the manager changed the rosters.  The complainant alleged this changing of the rosters amounted to victimisation of her.  Her protected act was found to be her mention of the transfer being because of her gender to her manager sometime earlier in March and her conversation with the client, the museum manager on 14 March 2011.

The respondent stated that the rosters were changed back to their original structure once a date was known as to when the Cross would be leaving the museum.  The Equality Officer accepted that the change affected the complainant more adversely than her colleagues and she accepted that the treatment was in response to the complainant’s complaint to either or both her manager and the client.  No evidence is mentioned in the Decision that would support the complainant informing the client as to her gender related concerns with regard to the transfer.  That conversation appears to have been related to whether or not the client was satisfied with her work.

The Equality Officer quoted sections 74(2) (a), (f) and (g) relating to victimisation.  Subsection (a) can only relate to her conversation with her manager that took place “one day in March” with no apparent nexus to the changing of the roster.  The Equality Officer found that the manager’s action in offering the complainant the transfer was not discriminatory.  Indeed, an alternative view would be that it was in fact favourable treatment rather than unfavourable treatment, given that she was offered additional work, and therefore not something that is unlawful under the Act.

There is, however, a clear and immediate nexus between the complainant discussing her employment with the client and the manager changing the rosters.  The complainant went to the client with her difficulties and in some circumstances it is understandable that an employer would be aggrieved by this.

The complainant’s assertion that her dismissal was discriminatory was not upheld as the termination of her employment was "in accordance with the terms of her contract of employment and unrelated to her gender”.

The discrimination upheld in this Decision relates to the respondent’s failure to re-employ the complainant when further contracts were available.  This is a complaint relating to access to employment.  The Equality Officer was satisfied that the complainant had been informed that she would be taken back when there was work available and that the complainant had more experience than Mr. K.  She stated that the “inconsistency in the evidence of the respondent …forces me to look elsewhere for a reason as to why Mr. K was re hired and the complainant was not” and she found that it was due to the complainant’s gender and upheld this allegation.

The Equality Officer awarded the complainant €17,000 being “mindful of the remuneration which the complainant was in receipt of at the relevant time, and the length of time she was employed by the respondent”.  However, these matters related only to the victimisation allegation that was upheld.  In respect of the discrimination for not being re-employed, the complainant was not in receipt of remuneration from the respondent at the relevant time.

Why this case is of interest:

• It indicates the need for proper records about, e.g. performance, for employees on fixed term or fixed purpose contracts and when deciding to re-employ the person when further work arises.  This would be relevant for seasonal workers also.