About this case:

• Citation:
  ADJ-00007285
• Judgment:
  External link
• Court:
  Workplace Relations Commission

Finding that gender discrimination had occurred when the officer had been removed from her position as acting assistant chief officer in August 2016, Adjudication Officer Gaye Cunningham found that there was a link between this and other incidents of discrimination as far back as 2010.

Background

Valerie Smollen has worked as a prison officer with the Irish Prison Service since June 1994. In her complaint to the Workplace Relations Commission under the Employment Equality Acts 1998 – 2015, Ms Smollen submitted that there has been a continuum of discrimination against her since 2010, the latest action of discrimination having occurred in August 2016 when she was taken off the assistant chief officer (ACO) roster (effective from September 2016). 

The specific complaints in relation to the Employment Equality Acts were that Ms Smollen was discriminated against:

1. When she was removed from her position as acting ACO, despite having three years’ experience and having been successful in competition for ACO, and another male colleague was placed on the roster.
2. When she was removed from a training course in circumstances where three other male colleagues remained on the course in the exact same circumstances.
3. In relation to the provision of training.

Three serious incidents of discrimination since 2010

The first serious incident of discrimination occurred in 2010, when she was asked to step down as acting ACO because “there were too many female ACOs”. Ms Smollen did not pursue an equality claim at this time, and she subsequently took up duty as acting ACO in August 2013. 

In February 2014, Governor M conducted a meeting where he stipulated that he would assign all ACOs and acting ACOs to undertake assessment of staff performance in the Performance Management & Development System (PMDS).

Ms Smollen repeatedly requested training on the PMDS system throughout 2014 and training was promised on a number of occasions. However, this never materialised and as a result, the Officers assigned to her for PMDS had difficulty securing their increments. Ms Smollen said she felt guilty and embarrassed because she could not perform the tasks assigned to her, and this also resulted in her having a lack of management experience in promotional competitions.

The second incident occurred in February 2016 when Ms Smollen was attending a training course. Ms Smollen was the only female basic grade officer out of the four in attendance, and all four had recently submitted applications for appointment as ACO. Ms Smollen submitted that the course was essential to allow her to fulfil her role as acting ACO.

Ms Smollen was removed from the course and informed that it had been decided that no acting ACOs were permitted to attend any training course in advance of the completion of the current competition for new ACOs. Ms Smollen was the only person removed from the course, despite three other male colleagues who were in the exact same position as her, having applied for promotion to ACO. 

The third incident occurred in August 2016. After successfully fulfilling the position of acting ACO for three years, Ms Smollen was informed that her position on the ACO roster would be filled with staff from the national panel of successful candidates in the recent ACO competition. Ms Smollen was no. 59 on the panel, but one of her colleagues who was no. 66 on the panel was offered her position as acting ACO.

Manifestations of the same discrimination

Ms Smollen contended that the three situations above were all manifestations of the same discrimination – a “common thread” involving prison governors attempting to reduce the number of females achieving promotion without proper or legitimate justification.

Adjudication Officer Cunningham considered the decision of the Labour Court in County Louth VEC v Don Johnson EDA0712, which stated that:

Ms Smollen submitted that a prima facie case had been made out – therefore the onus shifted to the Irish Prison Service as per the Labour Court in Board of Management, Our Lady of Good Counsel Girls National School v Maria Fitzgibbon EDA1322 which “requires the respondent to show a complete dissonance between the gender of the complainant and the impugned act or omission alleged to constitute discrimination”.

Adjudication Officer Cunningham found that:

• Ms Smollen established a prima facie case in relation to her treatment in relation to the complaint regarding her removal from the acting ACO roster.
• The Irish Prison Service failed to discharge the burden of proof that the treatment was in no sense whatsoever on the grounds of sex.
• There had been a history of discriminatory treatment as evidenced by the findings in relation to the complaint of removal from a training course and the failure to provide training.

In accordance with s.79(6) of the Employment Equality Acts 1998 - 2015, Adjudication Officer Cunningham held that the Irish Prison Service discriminated against Ms Smollen on the grounds of gender in relation to her removal from the acting ACO roster. Adjudication Officer Cunningham was satisfied from the totality of evidence that there was a link between this action and Ms Smollen’s removal from a training course and failure to provide PMDS training.

In accordance with s.82 of the Employment Equality Acts 1998 - 2015, Adjudication Officer Cunningham ordered the Prison Service to pay Ms Smollen €20,000 in compensation for the distress suffered by her as a result of the discrimination.

• by Seosamh Gráinséir for Irish Legal News