Case Number: DEC-E2016-037. Workplace Relations Commission

CourtWorkplace Relations Commission
Date25 February 2016
Docket NumberDEC-E2016-037
PartiesMs Mary Higgins -V- Permanent TSB Plc
EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E 2016-037 PARTIES Ms Mary Higgins (Represented by Mandate Trade Union) AND Permanent TSB Plc (Represented by Catherine Donnelly, B.L., instructed by A&L Goodbody) File reference: EE/2014/047 Date of issue: 25th February 2016

HEADNOTES: Employment Equality Acts Section 74 Victimisation- adverse treatment.

1. DISPUTE

1.1 This dispute concerns a claim by Ms Mary Higgins (Claimant) that upon her return to work in October 2008 she was subject to victimisation by her employer Permanent tsb (Respondent). The Claimant claims that she was victimised in relation to her return to work as a consequence of pursuing an equality claim against the Respondent in 2005. The Claimant alleged this adverse treatment was contrary to Section 74 (2) of the Employment Equality Acts 1998-2011.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on 6th February 2014. On 22nd September 2015 in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Gerry Rooney, an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 2nd October 2015 with subsequent hearings on 2nd November 2015 and 30th November 2015.

1.3 The parties provided further information to the Tribunal which was furnished after the last day of the hearing and exchanged with the parties. A final submission was made from the Claimant to the Tribunal dated 15th December 2015 and this was forwarded to the Respondent.

1.4 In addition to the hearings, the parties submitted an extensive amount of material, supporting evidence and books of authorities, all of which was carefully considered by the Tribunal before making its findings and decision.

1.5 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2. CLAIMANTS' SUBMISSION

2.1. The Claimant commenced employment with the Respondent in 1986 and is employed in the Respondent’s IT Department based in Cork. In 2005 the Claimant took an employment equality case against the Respondent following the Respondent’s refusal to grant her access to permanent part-time work. The Equality Tribunal issued a decision in May 2010. The Respondent appealed the Equality Tribunal’s finding of May 2010 to the Labour Court and the matter was settled on 8th June 2011.

2.2. Between 2005 and October 2008 the Claimant was absent from work due to sick leave, followed by periods of parental leave and a career break. The Claimant stated the reason for her career break was owing to the Respondent’s refusal to grant her access to permanent part-time work at the time.

2.3. In relation to the current claim, the Claimant raised three areas where she contended she experienced adverse treatment in reaction to her original claim to the Equality Tribunal. The three areas where she claimed adverse action were

2.3.1.Transfer ground: That when she returned to work in October 2008 she was not appointed to her previous role in PC Applications, but instead the Claimant was appointed to the Production Support Services (PSS). The Claimant contended that this decision has affected her ability to progress her career, and in effect is largely an administrative function with little or no technical ability required. She further contended that the PSS skillset was something that was only specific to Permanent tsb whereas if she was allowed to continue her career in PC Applications, which was a technical role, she would have developed specialist skills that are highly valued in the IT industry, and as such would afford her the opportunity to maximise those skills both internally and externally.

2.3.2.Part-time working ground: The Claimant applied for permanent part time work upon her return and this was granted to her but was subsequently withdrawn. The Claimant stated that she was not afforded a permanent part-time working arrangement unlike other colleagues who worked in the IT Department, and specifically in the PSS area. The Claimant identified some fourteen colleagues as comparators who she contended had been granted permanent part time work. She believed that the decision not to grant her permanent part-time was victimisation and adverse treatment, and occurred because she had raised a complaint to the Equality Tribunal in November 2005.

2.3.3. Grievance Ground: The Claimant alleged that when she set out to address her concerns and raised a grievance in October 2008 that the matter was not handled fairly by the Respondent. She contended that the Respondent delayed the progress of the grievance, denied her an opportunity to have her grievance heard properly, and refused her the opportunity to appeal the outcome of the grievance. She contended that her treatment by the Respondent in its mishandling of her grievance amounted to further victimisation; and as the handling of her grievance was protracted for some time this contributed to the adverse treatment she experienced.

2.4. As a consequence of the above issues the Claimant contended that she was not afforded a fair opportunity to have her case heard through the Respondents Grievance Procedures and she therefore raised her complaint to the Workplace Relations Commission under the Employment Equality Acts on 10th February 2014.

2.5. Specific Complaint in relation to the Transfer Ground.

2.5.1. The Claimant stated that in advance of her return to work she met with her line manager (AM) and the IT Department manager (RW) on 17th September 2008 to agree her return to work arrangements. The Claimant contended that at this meeting she was informed that she was being returned to a role in PSS rather than her original role in PC Applications. She asserted this decision was made without any assessment of her skillset, indicating that she had the skills to be able to continue in the role of PC Applications.

2.5.2. She believed the role in PC Applications was more technical in nature and viewed the role in PSS as one of a help desk administration role where she would be required to respond to queries in relation to the Bank’s own systems, and where she would perform data integrity checks. She felt this greatly disadvantaged her as it precluded her from advancing at a more technical level in the PC Applications role which she originally held before departing on her career break.

2.5.3. The Claimant further contended that the Respondent had the opportunity to meet with her and make arrangements well in advance of her return to work as she had advised the Respondent in July 2008, some three months before her return, of her intention to return. She informed the Tribunal that this notice period is a requirement contained in the Respondent’s Career Break Policy. She further contended that she could have got up to speed in relation to any technical changes that may have taken place when she was absent on her career break. She indicated that another person was in a PC Applications role temporarily and she could have been given this position as the Respondent would have had sufficient time to plan for her return.

2.5.4. On 2nd October 2008 the Claimant received an email from the HR Manager (MB) stating that she was not being returned to her previous role in PC Applications but would be tasked in the PSS area. The Claimant contended that the decision not to put her back in her role in PC Applications was decided by MB. She contended MB had been party to her earlier complaint to the Equality Tribunal and subsequent appeal to the Labour Court, and therefore his decision was not objective and amounted to victimisation. She understood that the HR Department should have accessed her skills regarding her suitability to return into the PC Applications role but this did not happen.

2.5.5. The Claimant contended that as a result of this decision her career prospects have been adversely affected, and sited an example of where she subsequently applied for a vacancy in the PC Applications but she was not shortlisted for this position.

2.6. Specific Complaint in relation to the Permanent Part-time Work Ground

2.6.1. The Claimant stated that her preferred option to return to work was to take on a position in a permanent part-time role. She indicated that she would have advised her line manager (AM) at her return to work meeting on 17th September 2008 that it was a matter of necessity for her to return to work on a part-time basis for both medical and childcare needs. The Claimant also provided evidence where she would have emailed the HR Manager (MB) at the time stating her need for part-time work (in addition to her desire to return to her role in PC Applications).

2.6.2. On 24th September 2008 the Claimant received a request by email to outline what part-time hours she wished to work, and the Claimant responded to this on the same day where she suggested 20 hours per week over 5 mornings would best suit her needs. Evidence also provided by the Claimant indicated that her line manager (AM) on behalf of the Respondent progressed with her request and proposed a compromise where she was offered a permanent job-sharing position working 3 days one week and 2 days the following week in the PSS area. As these arrangements suited her personal and family circumstances she was agreeable to move from the more technical role of PC Applications to the PSS role on the basis she was being offered permanent part-time work through a permanent job-sharing position.

2.6.3. Evidence was presented where on 29th September 2008 that the Claimant’s line manager (AM) again emailed her...

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