FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A GOVERNMENT DEPARTMENT (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - A COMPLAINANT DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Decision of The Director of Equality Investigations DEC-E2002-024
BACKGROUND:
2. The complainant appealed the Equality Officer's recommendation on the 12th of June, 2002, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 6th of December, 2002, to deal with a number preliminary issues. The Court issued a letter on the 2nd of January, 2003, as follows:-
This is a preliminary determination of the Court in an appeal by the complainant brought pursuant to Section 83 of the Employment Equality Act 1998 (the Act) against the decision of an Equality Officer bearing the record number DEC-E-2002-024, entitled A Complainant v A Government Department.
The complainant applied to the Court to have the hearing of the appeal heard in public. The complainant also applied to the Court to summons a number of named persons to attend and give evidence at the hearing of the appeal, pursuant to the powers conferred on the Court by Section 21 of the Industrial Relations Act 1946 as adapted by Section 83(3) of the 1998 Act.
The Court decided to conduct a preliminary hearing to deal with the said applications.
Having considered the submissions made by the parties the Court determines as follows:Application to conduct the proceedings in Public:
The complainant submitted that since the alleged act of discrimination to which the complaint relates occurred while the Employment Equality Act 1977 was still in force, the hearing of the appeal should be governed by the provisions of Section 21 of that Act. Section 21(3) of the Employment Act, 1977 provided as follows:
The respondent contended that the hearing of the appeal is governed by the provisions of Section 83 of the 1998 Act. This Act provides at subsection 2 as follows:
Counsel for the respondent submitted that in the circumstances pertaining in the instant case Section 106 of the 1998 Act (as inserted by Section 47 of the Equal Status Act, 2000) provides, in effect, that Section 83 of the 1998 Act applies to the hearing of the appeal.
Section 106 of the Employment Equality Act, 1998, as inserted by Section 47 of the Equal Status Act provides as follows: -- 106.—(1) This section applies to a claim for redress under a repealed enactment—
- (a) which is made on or after the commencement of Part VII (the ' commencement date'), and
(b) which relates-
- 106.—(1) This section applies to a claim for redress under a repealed enactment—
(i) only to conduct before the commencement date, or
(ii) to conduct both before and after that date
(2) In this section—
'commencement date' means the 18th day of October, 1999;
'conduct' means conduct alleged to have occurred;
'repealed enactment' means the Anti-Discrimination (Pay) Act, 1974,
or the Employment Equality Act, 1977.
(3) A claim for redress to which this section applies shall—
(a) as regards the substance of the claim—- (i) if or in so far as the claim relates to conduct before the commencement date, be dealt with as if the enactment concerned had not been repealed, and
- (ii) in so far as it may relate to conduct after that date, be dealt with under this Act,
and- (b) in all other respects, be dealt with as if it were a claim under section 77.
- (b) in all other respects, be dealt with as if it were a claim under section 77.
(4) For the purposes of subsection (3)—- (i) if or in so far as the claim relates to conduct before the commencement date, be dealt with as if the enactment concerned had not been repealed, and
(5) A claim for redress under a repealed enactment which is pending on the commencement date shall, if the conduct to which it relates also occurs after that date, be treated as if it were a claim for redress to which this section applies, and accordingly subsections (3) and (4) shall apply in relation to it.
(6) A decision or determination on a claim for redress referred to in this section may, and at the request of the claimant shall, where appropriate, specify separate findings in relation to conduct before and after the commencement date.
(7) The Director or a person appointed under section 75(4)(a) to be an equality officer may exercise the powers of an equality officer under a repealed enactment.
(8) This section shall be deemed to have come into operation on the commencement date.".
Section 83 is contained in part VII of the Act. Hence, the effect of section 106 as a whole is that whilst the merits of a claim which predated the operative date of the Act is to be adjudicated as if the 1977 Act had not been repealed, the procedures for the investigation of such a claim is governed by the relevant provision of the 1998 Act.
The Court is, therefore, satisfied that the hearing of the instant appeal must be conducted in accordance with section 83(2) of the 1998 Act.
It is noted that section 21 of the Employment Equality Act 1977 made it mandatory on the Court to conduct a hearing in public, with the proviso contained at subsection 3(b), where an application in that behalf was made by any party to the proceedings. However, that position has now been changed by the Oireachtas. The power to conduct a public hearing, contained in section 83(2) of the Act is now a discretionary one exercisable by the Court at the request of any party to the appeal.
It seems clear from the wording of Section 83(2) Act that the Court should normally conduct an appeal in private. In the Courts view it follows that it should only embark upon a public hearing where there are special circumstances relating to the particular case which makes it desirable to do so. The Court is further of the view that it is for the party seeking to have an appeal conducted in public to establish that such special circumstances exist.
In the instant case the complainant has submitted that it is in the public interest for the Court to conduct its business in public. The complainant also contends that he has the right under the Constitution of Ireland and in European law to a hearing of his appeal in public. The complainant also contends that as the respondent is a Government Department the proceedings are a matter of public interest and, therefore, should be open to the public.
The respondent submitted that here are no reasons why the Court should depart, in this case, from the statutorily recognised normal practice of hearing appeals in private.
Having carefully considered the submissions made on this point the Court has come to the view that there is not a sufficient basis upon it should exercise its discretion to conduct the hearing of this appeal in public.
The Labour Court is a creature of statute and its powers and duties are derived solely from statue. Had the legislature intended that the Court should conduct its business in public, or that it is a matter of public interest for it to do so, it would not have framed Section 83(2) of the 1998 Act in the terms in which it was enacted.
It is the Court's view that a determination to conduct an appeal in public should only be made where there are special circumstances relating to the particular case, which makes a public hearing, desirable. No such special circumstances have been established in this case. Further, the Court is satisfied that the nature of the evidence likely to be adduced in the course of the hearing could cause serious and unnecessary embarrassment to individual witnesses.
For these reasons, the Court does not accede to the complainant’s request to conduct any part of the hearing in public.Summons to Witnesses:
The complainant submitted a list of persons whom he wished the Court to summons as witnesses to give evidence in his appeal.
The Court will only exercise its power to compel the attendance of persons before it in circumstances where:
2. That the prospective witnesses are unable or unwilling to attend unless compelled to do so.
In the present case the complainant has not sought the voluntary attendance of any of the persons concerned. Further, the complainant has been unable to indicated what if any evidence could be given by the person named which would have any probative value in the prosecution of his appeal or which would not be available from other witnesses who will be attending on behalf of the respondent.
For these reasons the Court does not propose to exercise its statutory power to require the attendance of any of the persons listed.
A second hearing took place on the 8th of April, 2003, but was adjourned so that the complainant could seek legal advice. A further hearing took place on the 10th and 11th of May, 2005. The following is the Court's determination:-
DETERMINATION:
Background:
This is an appeal by the complainant brought pursuant to Section 83 of the Employment Equality Act, 1998, against Equality Officer decisionA Complainant v A Government Department No: DEC-E-2002-024.This claim arises from a comment allegedly made to the complainant by a more senior male colleague on 7th October, 1999, and the manner in which the Department investigated that complaint.
He alleges that he was subjected to harassment, including sexual harassment and victimisation by the Department contrary to the Employment Equality Acts, 1977, and 1998 when a senior male colleague made a comment to him of a sexual nature concerning a female colleague and himself.
The Equality Officer had concluded that the complainant had not substantiated his claim of sexual harassment in terms of Section 2(a) (b) and (d) of the Employment Equality Act, 1977, and was consequently not discriminated against on the basis of his gender or marital status contrary to the provisions of the Employment Equality Act, 1977. Secondly, the Equality Officer concluded that the respondent did not penalise the complainant for having in good faith referred a complaint under the Acts to the Office of the Director of Equality Investigations. The Equality Officer found that no liability attached to the respondent in the manner in which it had dealt with the allegation made by the complainant.
The complainant appealed the decision of the Equality Officer to the Court.
Preliminary Issues
Counsel for the respondent requested a preliminary ruling on what issues exactly were before the Court. He explained that a letter dated 15th November, 2000, was sent to the Equality Officer, after a decision had been made to extend the time for making the original complaint - the subject matter of these proceedings. In that letter, the complainant had made a further series of complainants of alleged misconduct on the part of his colleagues, alleging that he had been discriminated against on the grounds of his age, religious beliefs, family circumstances and nationality. The respondent stated to the Court that it was unaware of these further complaints until the letter of 15th November, 2000, and had not been given an opportunity to investigate them. The respondent had since attempted to carry out such an investigations but, on legal advice, the complainant declined to co-operate with this investigation.
The respondent contended that it was fundamentally unfair to ask it to respond to a further series of complaints, which expanded and mutated the original complaint in this fashion. It stated that :
- “it is entirely inappropriate that a complaint should be regarded…. as some form of “opening bid” to which he can subsequently add such further matters as occur to him in the context of the investigation process.”
Having examined the matter, the Court notes that the only reference to a date on which these events occurred was where the complainant stated that “some time prior to the incident of sexual harassment” Official B made “an uncalled for and hurtful comment concerning his religious beliefs” and that he made offensive comments regarding his age and nationality. These allegations could only be considered under the provisions of the 1998 Act.
On the available evidence from the complainant, the incidents of alleged discrimination took place prior to the coming into operation of the 1998 Act, and thus were not unlawful at the time. Therefore, they are not recognisable in these proceedings. The Court is assisted in this regard by the complainant's direct evidence that his substantive claim was made under the 1977 Act. In the letter of 15th November, 2000, the complainant also raised further allegations of victimisation. However, prior to that date, the complainant had never referred to these matters, which should properly have formed the subject matter of a separate complaint.
Since this is an appeal from the decision of an Equality Officer, the Court's jurisdiction is confined to an investigation of such complaints as were before the Equality Officer. Accordingly, the Court can only deal with the original complaint of harassment and incidents of victimisation up to 5th July, 2000, the date of making the claim.
The Facts
This case concerns a complaint against the Department under the Employment Equality Acts, 1977 on the grounds of sexual harassment and discrimination and under the 1998 Act for victimisation. The allegation that the complainant was treated less favourably than a person of the opposite sex is within the scope of Section 2 (a) of the 1977 Act, which states that discrimination shall be taken to occur where:
- by reason of his sex a person is treated less favourably than a person of the other sex
and within the scope of Section 2 (b) which states that discrimination occurs when;
- because of his marital status a person is treated less favourably than another person of the same sex
The complainant also alleged that he had been penalised for having in good faith taken an action in pursuance of his entitlements under the 1977 Act, in breach of Section 74 (2)(a) of the 1998 Act which provides:-
- victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith –
- (a)sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
The factual background to these complaints is as follows:-
The complainant (Official A) is employed by the respondent as an Assistant Principal Officer in a Government Department. On 13th October, 1999, he made a written complaint to the Secretary General of the Department concerning “an entirely inappropriate comment” made by an Assistant Secretary (Official B), in charge of his work area, concerning him and a female colleague.
Two managers were appointed by the respondent to investigate the complaint. The investigation concluded that the complaint made was not well founded. Acting on the investigators report, the respondent dismissed the complainant’s complaint and advised the Assistant Secretary in question that the type of comment he acknowledged making, which was considerably different to that which the complainant alleged he made, could cause offence and that it would be better to avoid making comments like it, even in circumstances where the offence is not intended.
On 12th November, 1999, the complainant applied for an internal competition for promotion to Principal Officer. Part of the competition required an assessment by his immediate superior and by the Assistant Secretary, named in his complaint of 13th October, 1999. The assessment found that he was unsuitable for promotion and consequently he was precluded from going forward for promotion. The complainant stated that this action constituted victimisation for making the complaint.
The Complainant’s Case
In his complaint to the Office of Director of Equality Investigation (ODEI and now known as The Equality Tribunal) the complainant claimed that he was sexually harassed and was consequently discriminated against on the basis of his gender and marital status contrary to the provisions of the Employment Equality Act, 1977, when a senior member of the Department (hereafter referred to as Official B) made sexually offensive remarks towards him. He also claims that these complaints were not adequately addressed by the Department and, furthermore, that he was victimised by the Department for seeking redress under the Act when he was found unsuitable for promotion.
By letter dated 13th October, 1999, to the Secretary General of the Department, the complainant alleged that when he asked Official B if Ms. X was going on a trip with the complainant and a group of EU civil service interns that Official B made “an entirely inappropriate comment” to him in response. The comment was “are you having sex with her?”. The complainant responded by saying“I am a Jesuit boy. I am pure”.He further alleged that Official B responded by saying “not f***ing likely”.
In his complaint letter to the Secretary General, the complainant explained that the request was not made for any personal sexual gratification, that it was an entirely inappropriate comment which reflected badly on his character, and he sought an apology for both himself and Ms. X.
Prior to his written complaint to the Secretary General, he had made initial verbal complaints to his immediate superior (Official C) and to the Department’s Personnel Section. Official C spoke to Official B about the matter who indicated that he regretted what he said and was contrite about the incident. However, Official B did not apologise directly to the complainant who decided to pursue the matter further.
The complainant explained that he became ill as a consequence of the effects of this incident. His doctor diagnosed his illness as “severe anxiety” related to a serious stress reaction to his complaint of sexual harassment.
The complainant contended that a reasonable person would accept that the words spoken come within the definition of sexual harassment. In support of this contention, he explained that it was unwelcome and offensive, and both men and women have a right to work in an environment free from sexual harassment. He referred to the Determination of this Court in the case ofA Garage v A WorkerEE2/85, where it held that:
- “freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect. The Court considers that employers have a duty to ensure their employees enjoy such working conditions”
He submitted that the Labour Court had conceded the principle of equality between men and women as human beings when it recognised that under the 1977 Act same-sex harassment could be actionable. He referred the Court to a further case ofA Worker v A Company[1992] ELR 40 where it stated :
- “Where two persons of the same sex are involved, it is the court’s view that particular circumstances must be established to justify the claim that the conduct of one constitutes sexual harassment of the other.”
The complainant stated that sexual harassment is not about sexual attraction between members of the opposite sexes, it can be a power thing about one or more persons, using his or her position of authority to put down and undermine another person using sex as a weapon. In referring to the Department of Equality and Law Reform’s reference to sexual harassment in its Code of Practice onMeasures to Protect The Dignity of Women and Men at Work, the complainant describes Official B’s behaviour as akin to “an excessive desire to dominate”.
CitingAllen v Dunnes Stores Ltd. [1996] ELR 203, he referred to the subjective approach taken by the Court under the 1977 Act:
- “Whether behaviour amounts to sexual harassment in a particular instances is determined from the point of view of the victim and what she/he regards as acceptable behaviour. Behaviour regarded as acceptable and innocent by the perpetrator, his colleague and others may nonetheless be unacceptable to the victim and so could constitute sexual harassment”
The complainant submitted to the Court that ‘words alone’ can constitute sexual harassment, and made reference to the fact that section 23 of the 1998 Act provides for protection against sexual harassment, which includes acts, requests or conduct which are unwelcome, includingspoken words, which can reasonably be regarded as offensive, humiliating or intimidating to the victim, such as occurred in his case.
Furthermore, he raised many concerns regarding the conduct of the investigation into his complaint, which may be summarised as follows: -
•Official B’s immediate superior was not interviewed as part of the investigation,
•one of the investigators was junior in rank to the Officer being investigated,
•the investigators ignored the medical evidence of the injury done to him,
•the focus of the Department’s investigation was too narrow.
The complainant contended that he brought to the Department’s attention his concern that the two senior officers who blocked him from entering a competition in November 1999 were directly connected to his complaint to the Secretary General. Consequently, he maintained that he had a valid claim under section 74 of the 1998 Act, which provided for protection against victimisation by persons who sought redress under Act. He claimed that he should have been allowed to go before the Interview Board as had occurred in previous competitions.The Respondent’s case
It is the respondent’s position that the complaint made is not a complaint of sex discrimination within the meaning of the 1977 Act (or, for that matter, the 1998 Act) and it has taken all reasonable steps to prohibit sexual harassment in the workplace and has properly and fairly investigated the allegation made. The Department totally refutes the allegation that two officers blocked him from going forward for promotion as a result of his complaint of sexual harassment.
The respondent submitted to the Court that the alleged harassment by a male officer of the Department does not come within the provisions of the 1977 Act. Counsel for the Department cites decisions of the Labour Court in support of its contention,A Worker v A Company(E0395 [1996] ELR 85 andA Worker v A Company(EE0294) [1994] ELR 202, where the Court made a finding of sexual harassment based on the fact that the complainant had been subjected to lewd, improper and sexually improper remarks by a male co-employee “which would not have been addressed to a male worker and which was addressed to the complainant because she was a woman”.
It contended that the alleged same-sex harassment did not constitute sex discriminationfor the purposes of the 1977 Act and, therefore, fell entirely outside its scope. The respondent also cited fromA Worker v A Company(EE0294) [1994] ELR 202 where it showed that the Court had adopted a very restrictive approach to the scope of same-sex harassment for the purposes of the 1977 Act:
- “In this case, while the offensive remarks made by the general manager were demeaning to the worker as a woman they do not come within the scope of the accepted meaning of sexual harassment – the unwanted real, implied or perceived request for, or threat of extracting, sexual favours. Where two persons of the same sex are involved, it is the court’s view that particular circumstances must be established to justify the claim that the conduct of one constitutes the sexual harassment of the other.”
For completeness sake, the respondent stated that the relevant provisions of the 1998 Act expressly exclude same-sex harassment from its scope; this is in the context of legislation which was intended to broaden the scope of anti-discrimination legislation in the State. In summary, Counsel for the respondent contended that the Court cannot entertain the notion of same sex discrimination, even in exceptional case, under the 1977 Act.
Counsel for the respondent also stated that the complainant is not suggesting that he had been subjected to an“unwanted real, implied or perceived request for, or threat of extracting, sexual favours.”The fact that he contended that the comment caused offence to him, does not of itself indicate that it was an act of sexual harassment; ‘offensiveness’ – actual or intended – may be an essential element of sexual harassment, however, it is not sufficient in itself.
At all times material to the complaint, the Department, and the Civil Service generally, had a clear and explicit policy prohibiting sexual harassment, which the complainant was fully conversant with.
There was no suggestion by the complainant that he had ever made a complaint of sexual harassment to the Department on any previous occasion.
The complaint was investigated under the Department’s Grievance Procedure as a formal complaint about an inappropriate comment allegedly made by a superior officer, as at no stage prior to the claim being made to the Equality Tribunal did the complainant characterise it as “sexual harassment”.
The respondents disputed the complainant’s contention that the investigation was “not fair and impartial” and that one of the investigating officers was junior in rank to him. The Department states that the assigned investigating officer was the appropriate officer to carry out the investigation and, furthermore, the complainant did not object to her involvement before the conclusion of her report.
The report concluded that the complaint could not be substantiated. However, the investigating officer, referred to above, informed Official B in question that if the comment allegedly made had been made it could have caused offence and ought not to have been made.
The respondent maintained that the complainant had exaggerated his complaints, from initially one of “an entirely inappropriate comment” to one of “sexual harassment, harassment and victimisation”. This exaggeration extended to the use of perverse language to describe its effects on him, in a letter to an Equality Officer on 15th October 1999. The respondent maintained that this analogy was so strained as to be bizarre.
CONCLUSIONS OF THE COURT
The Court investigated the complaints in the application made to the Office of the Director of Equality Investigation on 5th July 2000,de novo.
The Court found a conflict in the evidence adduced by the complainant and that adduced on behalf of the respondent in relation to some of the material aspects of this case.
The essence of the claim relates to a conversation which took place on 7th October, 1999, between the complainant and Official B. There is some dispute whether this conversation took place on the telephone or in the Official B’s office. The Court is of the view that this is of little relevance to the substance of the claim. However, what is clear from the evidence is that there is a conflict between the parties as to the content of the words used in the conversation.
The Court notes that when questioning Official A, Counsel for the respondent put it to him that the words he alleged were used could not reasonably have given rise to the inference he puts on them. The words actually suggest the opposite of what he is complaining about, and suggest that it was unlikely that he was having sex with Ms. X. In that regard, Counsel pointed out to the Court that Official A did not appeal the Equality Officer's conclusion on this point.
In his direct evidence to the Court, Official A recounted that prior to the incident complained of, he had spoken to Official B on the telephone about the possibility of Ms X going on the trip. He said this had been raised simply to clarify the number of persons travelling. He was extremely shocked and surprised when Official B made the comment and he went to his office to ask him why he had made such a comment, but before that subject could be broached Official B told him that Ms X would not be going on the trip.
Official B said that Official A had “persecuted” him about whether or not Ms. X would be accompanying the Polish group on the trip to Limerick and that, in exasperation, he had made what could be described as an inappropriate comment connecting the complainant with Ms. X.
The complainant did not allege that the behaviour of Official B in his office is part of the act of discrimination; he stated that the sole act of discrimination is the comment made by Official B.
The complainant explained to the Court that after the incident, and before he lodged a formal complaint, he spoke to his immediate boss (Official C) about a matter he was “unhappy” about. Official C’s evidence was that the complainant had told him that Official B had made an offensive remark to him like “Are you having an affair with her”. He said that Official A did not seem to be particularly upset at the time. Official C then spoke to Official B, who denied having made the remarks attributed to him but said that he did not intend to upset Official A and if he did, he was sorry. Official C agreed that Official B had indicated that he was regretful for the comment made. In his evidence, Official C stated that as far as he was concerned this was the end of the matter and he expressed concern that Ms. X’s might be distressed if her name was used in conversation with others in relation to this matter.
However, the complainant was not satisfied that the matter was resolved. He required a formal apology from Official B. In pursuance of this objective, he made a formal complaint by referring it both to the Personnel Department and to the Secretary General. He also wrote to his Union; in all of these correspondences he mentioned Ms. X by name. However, he strongly contended at all times that he did not wish to upset Ms. X in any way and that his only concern was in protecting her welfare. The Court finds it difficult to reconcile this contention with the actions taken by the complainant. He did not make it clear to Official B that the behaviour complained of was offensive and that it should not be repeated; he did not give an adequate opportunity for the matter to be resolved locally and he did not attempt to seek mediation.
Does the incident constitute sexual harassment ?
Since the Determination of this Court inA Garage Proprietor v A WorkerEEO2/85, it is well established that freedom from sexual harassment is a condition of employment which an employee of either sex is entitled to expect. It follows that every employer has a duty to take all reasonable steps to ensure that employees are protected from sexual harassment in the course of their employment. In the present case, the respondent argued that it acted in a reasonable and proper manner, although it was not aware of the complaint as being one of sexual harassment until the claim was referred to the ODEI on 5th July, 2000.
In considering whether the putative act of discrimination occurred, the Court notes the evidence given by the witnesses. Official B admitted that he made a remark to Official A, along the lines“you are like a teenage kid chasing after a girl”and that Official A had responded with a comment in good humour along the lines“I am a Jesuit boy. I am pure”.Whereas the complainant says that the words used were “are you having sex with her”and “not f***ing likely”. When interviewed as part of the Department’s investigation, Official B said that he did not use the words alleged by the complainant. He said that he would never make such a remark. When asked to elaborate further on the comment he made, he had said that it was something along the lines“If you were younger, I’d suspect you were going after the girl, getting off with the girl”. A colleague who shared the office with the complainant gave evidence to the investigators that in his view whatever comment was made it was made in a jocular manner, and that the complainant appeared to be bemused and not upset.
Before considering whether the words used could be considered as constituting sexual harassment, the Court will have regard to the effect the complainant says the incident had on him. In his evidence, the complainant said that the comment was highly insulting to him to suggest that there was some form of sexual liaison between himself and Ms. X due to their different ages, (Official A was 56 and Ms. X was in her early 20’s). He also stated that Official B would not have made such a comment to a woman or to a married man. His perception was that the attitude being displayed to him by the alleged comment was “You are a free man, a single man. You don’t have any companion….. so when you get a chance and an opportunity you will chase after young girls”He explained that as a single man, he was vulnerable, and the perception Official B had of him was that because he was friendly with Ms. X he was free to have sexual relations with her.
When questioned about his claim of ‘sexual harassment’ the complainant stated that Official B harassed him in “order to put me down” “to offend him”.He explained that Official B invited him to come to his office where he informed him that he did not want Ms. X to go on the trip. Official A explained that he was “livid” but as Official B “was two ranks above me and I was afraid if I opened my mouth what I would say I would be in trouble”.
The Court put it to Official A that his response to the alleged comment – “I am a Jesuit boy, I am pure”was not a particularly strong denial/remonstration of the alleged accusation. In reply he explained that he is a restrained and mild person and that it would not be in his nature to react in a forceful way. With this point in mind, the Court found it extraordinary that he used such words as “I felt like he had poured semen over me”, in his letter of 15th November 2000, to Ms. Coyle, Equality Officer.
In his evidence to the Court, Official B stated that he first heard from friends within the Department that a formal complaint had been made to the Secretary General. He said that he was a bit taken aback and that he set out to find out about it. When questioned by the complainant about the approach he would have taken if Official A had told him at the time that he found the comment offensive, Official B said that he would have apologised to Official A.
Taking the complainant’s case at its high point and putting to one side for the moment the very specific denials offered by the respondents, the Court must decide whether the remark allegedly made by Official B could in itself constitute discriminatory behaviour under Section 2(a) and (b) of the Act.
The Court is of the view that a single comment made in the course of a conversation between two persons of the same sex and made following enquires by the complainant as to the availability of the female work colleague for a business trip cannot constitute sexual harassment. The Court makes no finding as to the exact words used however it accepts the investigator's conclusion that the words used could have caused offence and ought not to have been used. However, the Court does not accept that the comment can be regarded as discriminatory conduct within the meaning of the Act 1977, even taking into account the provisions relating to sexual harassment in the 1998 Act. Similarly, the Court does not accept that the comment made comes within the definition contained in the Department’s guidelines in place at the time, “Dealing With Sexual Harassment,” which defined sexual harassment as :
- “unsolicited, unreciprocated behaviour of a sexual nature, to which the recipient objects or could not reasonably be expected to consent to…”and includes “lewd or suggestive behaviour, whether verbal or physical,sexually derogatory statements or sexually discriminatory remarks”.
In the circumstances of this case, a single comment made regarding the interest of one person in another of the opposite sex could not reasonably be regarded as sexual harassment within the meaning attributed to that term by the Court inA Garage v A WorkerEE2/85. This is particularly so as both parties were single. Neither were there particular or out of the ordinary circumstances which could come within the definition of same-sex harassment.
The Court is assisted in this conclusion having regard to the definition of sexual harassment as contained in section 14 (a) of 1998 Act. This defines sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.The Code of Practice on Sexual Harassment and Harassment At WorkS.I. No. 78 of 2002 gives as examples of forms of behaviour which can constitute sexual harassment, these include: unwelcome sexual advances, propositions or pressure for sexual activity. It includes sex-based conduct that denigrates or ridicules or is intimidatory, such as derogatory or degrading abuse, or insults which are gender-related.
Having examined these definitions and guidelines, the Court is of the view that the comment made (whether in terms asserted by Official A or those asserted by Official B) does not come within their scope. It is not conduct of asexualnature. In the circumstances of this case, Official B could not have known that the comment would be “unwelcome”. The Court does not accept that even if it was made as the complainant describes, that it could reasonably be regarded assexuallyoffensive to the complainant, or humiliating to him on thegendergrounds. Neither can it be regarded as a sexual advance, proposition or as pressure for sexual activity. The Court does accept that it may have been offensive, humiliating and even intimidating but it does not accept the complainant’s contention that it constitutes discrimination/sexual harassment within the meaning of the 1977 Act.
In the context of his claim regarding discrimination on the grounds of the complainant’s marital status, the complainant stated that he was single and that such a remark would not have been made to a married man. The Court takes the view that in the circumstances, the remark could have been addressed to a married man just as easily and can see no grounds to substantiate this allegation of discrimination.
It is not necessary to consider who should bear the burden of proof since in this particular case, for the purposes of arriving at its decision, the Court decided that even if it accepted the complaint at face value, it does not constitute discriminatory treatment within the meaning of the Act.
The Court, having found that there was no sexual harassment, does not feel it is necessary to consider whether the investigation was properly conducted or not except in so far as the conduct of the investigation may relate to the complainant’s claim for victimisation. However, the Court notes the testimony of the complainant in which he accepted that the investigators interviewed all those whom he requested to be interviewed during the course of the investigation.
Victimisation
The complainant submitted a claim under section 77 (1) of the Employment Equality Act, 1998 stating that he was penalised for having in good faith referred a complaint of discrimination under the Acts to the ODEI. Section 74 (2) provides that victimisation occurs where dismissal or other penalisation of an employee by his employer for having in good faith sought redress for discrimination under the legislation.
It is the complainant’s position that after he submitted his complaint to the Secretary General on 13th October, 1999, he had been assessed as unsuitable for promotion. He submits that this was directly related to the making of his complaint and this constitutes victimisation. In a competition held in November, 1999, he contended that neither of the two officers assessing him was in a position to make a fully dispassionate assessment of his suitability for the competition, due to their direct involvement in his complaint.
He stated that in previous competitions, e.g. in 1993, despite a negative assessment he was allowed go before the Interview Board. This did not happen in the competition in November, 1999.
His employers, on the other hand, state that since 1993 Official A was consistently assessed as being unsuitable for promotion; the factors which contributed to these assessments were still in being after the incident complained of, and the fact that he had made a complaint had no bearing. In any event, the respondent states that it conducted a review of all his assessment for promotions which showed that long before these issues were ever raised, there was consistency in the assessment findings and, consequently, the claim of victimisation does not stand up.
The Court accepts that unless there are adequate safeguards in place it is obviously unwise for a person against whom complaints have been made to assess complainants’ suitability for promotion, given the opportunity for bias to occur. However, in this particular case, the Court has carefully examined the various assessments since the early 1990s and can see no grounds for the allegation that an element of bias crept in to his assessment in October 1999.
- In November, 1993, Official A was rated ‘E’ in an interdepartmental competition for appointment as Principal, which was operated by means of departmental nomination. He was not among the officers who were nominated to go forward to the next stage of the competition. The two senior officers involved in that assessment were different to the officers involved in this case.
- In October, 1995, Official A was rated ‘E’ in an interdepartmental competition for appointment as Principal, which was operated by means of departmental nomination. He was not among the officers who were nominated to go forward to the next stage of the competition. The two senior officers involved in that assessment were different to the officers involved in this case and different to those involved in the 1993 competition.
- In November, 1999, Official A was rated ‘E’ in an interdepartmental competition for appointment as Principal, which was operated by means of departmental nomination and for an internal competition for Principal. Both competitions were held at the same time. It was a requirement of both competitions that an officer be certified as satisfactory in their current grade. On that basis he was excluded for the competitions. The two senior officers involved in the assessments were not involved in any of the previous assessments.
Based on this evidence it appears that Official A’s superior’s opinion of his suitability for promotion was first established in 1993 and subsequent events did little or nothing to change that.
The Court is satisfied from the information supplied that changes have taken place in the competition process which now prohibit an applicant who has been deemed unsuitable for promotion to go forward to the Interview Board.
In any event, the Court is satisfied that the Department cannot be held to have victimised the complainant in these circumstances, as a formal complaint of discrimination had not been made when the assessment was carried out by the two senior officers. The complaint made referred to “an entirely inappropriate comment” and it would not have been possible to anticipate at that time that it would later be changed to a complaint of discrimination on the gender and marital grounds under the 1977 Act.
With regard to the complainant’s alleged victimisation by reason of the badly conducted investigation, the Court is of the view that as the investigation took place at a time when no allegation of discriminatory treatment had been made, and indeed the complaint was made prior to its conclusion, the Court cannot see how the Department’s conduct of the investigation could constitute victimisation under the 1998 Act.
Irish Constitution and human rights legislation
Finally, the complainant submitted that the Court should have regard to his rights under the Irish Constitution and under human rights legislation. The Court considers these matters in accordance with the duties delegated to it under any relevant Acts and has done so in this case; the Court has no jurisdiction under which to investigate such claims per se.
Determination
Having regard to its findings and conclusions, the Court is satisfied that the complainant was not treated less favourably than a person of the other sex or a person with a different marital status when a comment was made to him by a superior officer on 7th October, 1999. For these reasons the Court does not accept that the complainant suffered discrimination within the meaning of Section 2(a) and (b) of the Employment Equality Act 1977 and his claim must fail.
The Court is also satisfied that the complainant was not victimised for having in good faith referred a complaint of discrimination under the 1977 Act. Therefore, his claim under section 74 (2) of the Employment Equality Act, 1998 must fail.
The decision of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th August, 2005______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.