Case Number: DEC-E2012-042- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-042- Full Case Report
• Date: 12 April 2012
• Court: Equality Tribunal

EQUALITY OFFICER'S DECISION NO: DEC-E/2012/042

PARTIES

KEALY
(REPRESENTED BY ROSEMARY MALLON BL
INSTRUCTED BY ARTHUR COX - SOLICITORS)

AND

BROTHERS OF CHARITY SERVICES (CLARE) LTD.
(REPRESENTED BY ANTHONY KERR BL
INSTRUCTED BY IBEC)

File No: EE/2010/894 Date of issue 12 April, 2012

Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 15 & 74, victimisation - vicarious liability- law of agency- principal and agent.

1. DISPUTE

This dispute involves a claim by Ms. Mary Kealy that she was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008 after she had referred a complaint to the Equality Tribunal claiming equal pay with two named comparators in accordance with section 19 of the Acts. The respondent rejects the complainant's assertion in its entirety.

2. BACKGROUND

2.1 The complainant is employed by the respondent as Regional Director of Services for Clare. In March, 2006 the complainant and another female colleague referred complaints to the Equality Tribunal in which they contended that they performed "like work" in terms of sections 7 of the Employment Equality Acts, 1998 and 2004 with two named male comparators and they were therefore entitled to the same rate of remuneration as paid by the respondent to those named comparators in accordance with section 19 of the Acts. The complaints were assigned to the undersigned - Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. At the outset of my investigation the respondent submitted that there were grounds other than gender which rendered the rates of remuneration paid to the complainants and the comparators lawful in accordance with section 19(5) of the Acts. I decided to investigate this matter as a preliminary issue in accordance with section 79(3) of the Acts and issued my Decisions on 10 June, 2009 in which I found against the respondent.

2.2 The respondent appealed these Decisions to the Labour Court and in that Court's Determination of 17 September, 2010 (EDA 1015) it remitted the complaints back to this Tribunal for investigation and decision on the question of whether or not "like work" existed between the complainants and the comparators. Subsequently, the complainant's colleague withdrew her complaint from this Tribunal and I proceeded to investigate the existence, or otherwise, of "like work" between the complainant and the two named comparators. My Decision on this matter issued on 5 December, 2011. The complainant asserts that the actions of the respondent, in particular by appointing Mr. A, who was a comparator in her equal pay claim, to the position of Chairperson of the respondent's Board of Directors in April, 2010 and the subsequent behaviour of Mr. A towards the complainant, constitutes victimisation of her in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The complainant raised this matter in the course of a Hearing on her equal pay complaint on 25 November, 2010 and followed this up by referring a complaint form (EE1) to the Equality Tribunal on 8 December, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 9 December, 2010- the date the complaint was delegated to me. Submissions were received from both parties and Hearings on the matter took place on 31 March, 2011 and 18 April, 2011. A small number of points arose which required further clarification and this gave rise to correspondence between the parties and the Equality Officer.

3. SUMMARY OF COMPLAINANT'S CASE

3.1 The complainant is employed by the respondent as Regional Director of Services for Clare and as such is Chief Executive Officer (CEO) of the respondent. In March, 2006 she referred a complaint to the Equality Tribunal contending she performed "like work" in terms of sections 7 of the Employment Equality Acts, 1998 and 2004 with two named male comparators and she was therefore entitled to the same rate of remuneration as paid by the respondent to those named comparators in accordance with the Acts. The complaint was assigned to the undersigned and I decided to investigate, as a preliminary issue in accordance with section 79(3) of the Acts, whether or not the rates of remuneration paid to the parties were lawful in terms of section 19(5) of the Acts. My Decision on this matter issued on 10 June, 2009, in which I found against the respondent. This Decision was appealed to the Labour Court and a Hearing on the Appeal took place on 16 December, 2010 as a consequence of which the matter was referred back to the Equality Tribunal for a decision on the existence, or otherwise, of "like work" between the complainant and the named comparators.

3.2 The complainant states that in April, 2010 Mr. A, who had previously been named as a comparator in her equal pay case, was appointed as Chairperson of the respondent's Board of Directors shortly after his retirement from his role as Director of Services in another region. The complainant contends that this appointment was designed to cause her embarrassment and distress and arises as a direct response to her referring her equal pay complaint to this Tribunal and consequently it amounts to victimisation of her in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The complainant further states that the treatment of her by Mr. A after his appointment as Chairperson of the respondent also amounts to victimsation of her contrary to the Acts. She also contends that certain actions conducted by members of the National Body, in particular Ms. B (the CEO of the National Body) and Br. Z (the Chairman of the National Board) amount to victimisation of her contrary to the Acts. Finally, she asserts that the delay on the respondent's part in waiting until the appeal of the Tribunal's Decision on the preliminary point on her equal pay complaint came before the Labour Court to consent to the matter being remitted back to this Tribunal constitutes a further act of victimisation of her contrary to the Acts.

3.3 The complainant accepts that the Board of the Brothers of Charity Services (Ireland) Ltd. ("the National Body") appointed Mr. A as Chairperson of the respondent's Board of Directors in April, 2010. She states that this is contrary to the process provided for in the Governance Agreement (dated June, 2007) between the respondent and the National Body, which regulates the relationship between them and the respondent's own Articles of Association. It is submitted on her behalf that the actions of the respondent's Board of Directors, by effectively approving or at the very least acquiescing to the appointment of Mr. A as Chairperson, fixes it with liability for the actions of the National Body and/or (ii) the National Body was acting as an agent for the respondent when it appointed Mr. A to the position and in that regard the respondent is fixed with liability for the National Body's actions in accordance with section 15(2) of the Acts.

3.4 The complainant states that in late August, 2010 she received a telephone call from the Private Secretary to the Minister of State at the Department of Health and Children advising that he was visiting the Clare region in mid-September and invited her to meet with him. She adds that she asked the Minister if he would consider meeting with a family member, a client of the services, front line staff or members of the respondent's Senior Management Team (SMT) during his visit and he was amenable to this. The complainant states she was aware there had been relationship problems between the Minister and the National Body and she contacted Ms. B to inform her of developments. The complainant states that Ms. B suggested she (the complainant) should make the respondent Board aware of developments and she telephoned Mr. A in this regard on 2 September, 2010. The complainant adds that Mr. A told her the idea was wonderful, thanked her for informing him and wished her well. She states that she was out of the country on annual leave from 5-14 September, 2010 and when she accessed her e-mails, texts etc. she found she had received a text and e-mail from Mr. A instructing her to invite Mr. D, the respondent's Finance Manager, to attend at the meeting with the Minister.

3.5 The complainant states that she spoke with Mr. A by telephone on 14 September, 2010 whilst she was in an airport awaiting a flight home to Ireland from vacation. She adds that in the course of this conversation she was instructed to have Mr. D in attendance at all times during the meeting with the Minister and when she stated this would create privacy issues for the users and that she would have to cancel the meeting, Mr. A relented and stated that Mr. D could absent himself from those discussions but must be present at all other times. The complainant further states that Mr. A informed her that Br. Z was insistent she should not speak with the Minister alone. She adds that when she asked if the Minster sought to speak with her privately should she reply that she was not permitted to do so by the Board, Mr. A told her he would have to reflect on that. She further states that when she...