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Executive who felt ‘treated like a waitress’ at work function loses equality case

ERS Genomics chief executive would have asked whoever held the company credit card to order wine, regardless of gender, adjudicator rules

'I turned around to him and said: ‘I’m not a waitress,'' former finance executive told WRC equality hearing. Photograph: iStock

Stephen Bourke
Thu Apr 4 2024 - 17:12

A former finance manager at a leading biotech firm has lost an equality claim in which she accused its chief executive of treating her “like a waitress” when he asked her about getting more wine at a company dinner.

The exchange in October 2022 was part of a sequence of events set out in evidence by Tracey McGann, the former head of finance at biotech firm ERS Genomics, who alleged discrimination, victimisation and discriminatory constructive dismissal under the Employment Equality Act 1998 in statutory complaints.

The complaints, which were denied by the company, have been rejected by the Workplace Relations Commission (WRC) in a decision published on Thursday.

“I stood up to go to the bathroom, Eric was there with the guys ... [he] turned around to me and said we’ve no red wine,” Ms McGann said of the company’s chief executive, Eric Rhodes, when her case opened last October.

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“I turned around to him and said: ‘I’m not a waitress’,” she told the WRC last year.

Examining Mr Rhodes, Rosemary Mallon, appearing for the company, instructed by Lewis Silken & Co, said Ms McGann had described a scene where the witness was “surrounded by all the boys” and told her: “We need more wine.”

“I’m fuzzy on all the details because it was a long time ago. Tracey was generally the one who held the corporate credit card in euros that would be used here to pay so we wouldn’t face payment fees,” he said.

“My thinking was, ‘We’re okay to spend more money here Tracey – I’m authorising this additional expense’,” he said.

He said he was not aware Ms McGann had already passed the company credit card to another member of staff so she could leave early.

“Did you make that comment to [Ms McGann] about extra bottles of wine because she was a woman?” Ms Mallon asked.

“No,” Mr Rhodes said.

“If, as she says, ‘one of the boys’ was holding the corporate credit card, would you have made the same comment to them?” counsel asked.

“I would,” Mr Rhodes said.

Ms McGann’s solicitor, Adrian Twomey, said in legal submissions that his client had previously “annoyed” her bosses by quoting the company’s internal salary data to them to compare the pay rises given to men and women in the company in 2020 – and secured a backdated pay increase for herself when she did so.

Ms McGann’s case was that the company then denied a request she made in 2022 to reduce her hours and hire an assistant to take on more “menial” work. She argued the hiring process was later put on hold, with the company then moving to advertise for a vice-president to take charge of finance.

Other alleged acts of discrimination included Ms McGann not being invited to dinner with the company directors after presenting at board meetings, and later being “excluded” from meetings in July and October 2022.

“I did say: ‘Would I be expected to do the s*** part of the role?’” Ms McGann said of a discussion with Mr Rhodes in November 2022 about the move to hire a vice-president for finance.

Mr Rhodes’s response was that it would be “up to the head of finance to decide, but yes”, Ms McGann said.

“He cupped his hand around his mouth and said: ‘Start looking for a new job’,” she added.

Ms McGann resigned accusing the company of constructive dismissal in January 2023, the tribunal heard.

In cross-examination, Ms Mallon characterised this as a “pantomime-villainesque” description of the chief executive. Mr Rhodes said he had been emphasising “the option of looking elsewhere” to Ms McGann. He said she was “talking back” to him and because of this he could have used the words: “Tracey, you know you can always look for another job.”

“You resigned because you got another job working four days a week and it suited you,” Ms Mallon said to the complainant.

“I resigned because of everything Eric and ERS put me through. They wanted me gone,” Ms McGann said.

Mr Twomey, in his closing submission, told the tribunal: “The company was perfectly happy, because that was the outcome it had wanted – it had wanted my client to go.”

“To say to someone walking past your table who has the company credit card to order a bottle of wine isn’t discriminatory. Even to say, ‘When you’re passing the bar, get another round of drinks in,’ is not a discriminatory comment,” Ms Mallon had submitted.

“There needs to be some realism about how nights out in the workplace work – and it doesn’t matter whether you’re a man or a woman,” she said.

In his decision on the case, adjudicator Michael MacNamee wrote that Ms McGann had resigned without giving the firm a “reasonable opportunity” to consider a grievance she had lodged just under a fortnight before giving her notice and rejected the claim of constructive dismissal.

He found the company’s move to hire a vice-president for finance was linked “at least in part to [Ms McGann’s] request to work part-time rather than a reaction to the pay complaint in 2021. However, he noted that the board had been discussing taking on a finance VP before Ms McGann looked to go part-time.

Ms McGann’s claims in regard to the company denying her part-time working arrangements were “factually incorrect”, the adjudicator wrote. The evidence was that a male comparator she had named “did not actually apply” and that Mr Rhodes had assured her she would be paid at her full-time rate for part-time hours.

The adjudicator also noted the evidence that the male non-directors who were invited to dine with the board after certain board meetings – while Ms McGann was not – were involved in “strategic planning which did not involve the finance department”. Mr MacNamee said this was “legitimate”.

On the wine incident, Mr MacNamee said it was “difficult to understand” why this was not cited in Ms McGann’s grievance letter. He said he was satisfied Mr Rhodes asked Ms McGann about more wine because he thought she was holding the company credit card.

“The fact that the complainant never told Mr Rhodes that she was not is unfortunate, and it seems to me that, had she done so, Mr Rhodes would then have made the request to whomsoever was in possession of the company credit card, regardless of that person’s gender,” Mr MacNamee concluded.

“There is no evidence to support any suggestion or implication that Mr Rhodes had a discriminatory disposition against the complainant,” he added.

The adjudicator ruled that none of the issues raised by the complainant amounted to either victimisation or discrimination and rejected the complaints.

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