DEC-E2005-027 Full Case Report.

Tsourova -v- Icon Clinical Research (represented by
Marguerite Bolger, B.L., instructed by BCM Hanby Wallace, Solicitors)

1. CLAIM
   1. The case concerns a claim by Ms. Djemma Tsourova that Icon Clinical Research, Dublin, directly discriminated against her on the grounds of religion and race in terms of section 6(2)(e) and (h) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in relation to her conditions of employment. She also claims that she was victimised within the meaning of section 74(2) of the Act.
      
2. BACKGROUND
   1. The complainant commenced employment with the respondent on 22 July 2002 as a Clinical Data Co-ordinator (CDC II). She submits that during her employment, she was subjected to harassment and discrimination in the workplace because of her religion and nationality contrary to the terms of the Employment Equality Act, 1998. The respondent submits that it was aware prior to the complainant’s employment of her race and status as a refugee and it did not discriminate against the complainant on this basis during recruitment or the complainant’s employment.
   2. The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 22 April 2003. On 16 December 2003, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 22 April 2003 and on 30 January 2004. A submission was received from the respondent on 13 January 2005. A joint hearing of the claim was held on 16 March 2005.
      
3. SUMMARY OF THE COMPLAINANT’S WRITTEN SUBMISSION
   1. The complainant commenced employment with the respondent as Clinical Data Coordinator on 22 July 2002. During the first two weeks Ms. AK Project Leader of the team gave her all the documentation in relation to the study and at the beginning of August stated to her that they were sorry that they were not giving her appropriate attention and that they had been very busy.
   2. In September when she was asked to come out with her colleagues sometime, she answered that she could n’t as she was a Muslim and it was prohibited to drink or smoke. After that, she felt that Ms. AK, Ms. S, Ms. B and Mr. L changed their attitude to her. She submits that they were polite with her before they knew she is a Muslim and from Chechnya.
   3. She submits that management (Ms. B) gave her less work than that given to other members of staff which meant she was less experienced. She also submits that she was the last person in the team to receive training and that she did not receive help with the practical aspect of the training despite requests to the Project Leader, Ms. AK.
   4. Around the beginning of October 2002, she submits that her Project Manager, Ms. AK in conversation with herself and two others (Mr. LS & another) stated that refugees were coming to Ireland only to make money and not because of their political problems. She submits that it was known to her Project Manager that she was a political refugee who had sought asylum in Ireland. She submits that these comments were extremely painful for her. She submits that in October when she asked Ms. AK something in relation to training, Mr. L answered and said there would be special checking of her knowledge and commented that her name was written by “bloody pen” in relation to the training. She submits that in the middle of October, her mistakes were made public by Ms. B at a team meeting when other peoples were not and that a mistake had not actually been made by her on that occasion. She submits that around 22 October, Ms. AK stated to her that “It would be better if you were to leave Dublin and live in other part of Ireland where it would be better.”
   5. She submits that on 23 October 2002, she made a complaint to Mr. O’ L about Ms. B and submits that he did not investigate her complaint but just moved her to another team. She submits that the Project Manager (Mr. CS) and Project Leader (Ms. A) of the new team were not happy with her as the new person on the team. She submits that when she put a Muslim planner at her workplace in the middle of November many people (Ms. HH, Ms. PH, Ms. AP, Ms. BR, Ms. LA, Ms. K-F C, Ms. JD) stopped saying hello to her. She submits that one person (Mr. K-F C) stopped near her desk, looked at the calendar and said “Jesus Christ”.
   6. She submits that during Ramadan when she was fasting, Ms. H asked her why she did not have lunch and when she explained, she was told in an aggressive manner that she “should not fast”. She submits that the Project Manager (Mr. CS) came to her desk on 12 November 2002 at lunch time when she was listening to her personal stereo player and asked in an aggressive manner what she was doing. She submits that in the middle of November, Ms. H referred to her cactus as a “F******* cactus” and that Ms. H, her mentor, often spoke in an aggressive and impatient manner. She submits that on 18 November 2002, Mr. L referring to her when she was passing by his table in the canteen said “F****** Muslim” and that she felt humiliated, threatened and terrified and was so shocked and upset she could not tell it to anyone.
   7. She submits that she asked for a half day off on 6 December 2002 for the Eid festival and as she had already used her holiday entitlements for 2002, she suggested she could work the half day on the following Saturday or at any other time or take the time from the 2003 entitlement. She submits that when she initially approached her Project Leader, Ms. LA at the end of November, she was told that it would not be a problem and when she went back to Ms. LA and her Project Manager (Mr. CS) at the beginning of December, Mr. CS refused to give her the half day off. She submits that as a result of the refusal, she had a severe headache and had to leave work early. Two weeks later, she submits that she was forced to take one day from her 2003 holiday entitlements as the company was closed on 27 December 2002.
   8. She submits that she was given higher targets than other members of the team by Ms. LA at Christmas 2002. She submits that when she asked questions in Validation Study Lead, Ms. M answered her in a raised voice. At the end of January 2003, she brought with her photographs of victims of Russian brutality in Chechnya and showed them to some members of ICON staff. She submits that after that, the attitude of her managers (Mr. CS and Ms. LA) got even worse and they became more indifferent and antagonistic towards her.
   9. She submits that on 6 February when she was given the targets achieved by her, the targets recorded as achieved by her were less than they were in reality. She submits that in early November, she asked to be moved from her desk due to draughts and she was not moved and she subsequently wrote a letter requesting a move on 17 January 2003. The response she received indicated that “this is not as simple as just sitting at a different desk.” and at a subsequent meeting, her Project Manager (Mr. CS) told her that if she had problems with her health, she should leave and stay at home.
   10. She submits that at a meeting on 6 February 2003, she was informed that her probationary period was extended. She was surprised as she understood her probationary period had expired on 22 January 2003. She subsequently asked for the targets achieved by her for November, December and January 2003 and was told that they could not be provided on a daily basis but would be provided on 28 February 2003 at her next meeting with her Project Manager (Mr. CS). She submits that when she received the figures of her targets, they were inaccurate and incomplete and were reduced.
   11. On 7 February 2003, Mr. O’ L asked her for an e-mail detailing harassment by Ms. H. The complainant gave a letter of complaint on 24 February 2003 alleging harassment and discrimination by a number of people. She submits that when she asked Ms. T (the HR Manager) for her benefits as a permanent employee, she was told that she could not arrange the benefits as her probationary period was extended.
   12. The complainant submits that she was informed that the HR Manager, Ms. T and Mr. O’ L were appointed as independent investigators to investigate her complaint. The meeting took five hours and she was asked over 300 questions. The complainant felt that the investigators were just trying to gather more information to use against her. She subsequently received the minutes on 8 March 2003 which were inaccurate and incomplete.
   13. On 13 March 2003, she received a letter from Ms. PH stating that she refused to meet with her and that the quality of her work was of “grave concern”. She also wrote that the complainant was not a permanent employee which the complainant disputes. She submits that her contract was unambiguous on this point and did not allow for a unilateral extension of the probationary period (on 6 February 2003) after the probationary period had expired.
   14. The complainant subsequently wrote to the Board of Directors on 19 March 2003 and stated that Mr. O’ L and Ms. T could not be independent and stated that she believed that Ms. PH discriminated against her. They subsequently appointed Ms. EK as investigator. The complainant met with Ms. EK on 11 April 2003 and she agreed that the complainant’s probationary period was completed and that she was a permanent employee with effect from 22 January 2003. At the same time, she submits that Ms. EK insisted that she withdraw the complaints against Ms. PH and Ms. T. She was not satisfied with the procedures of the investigation carried out by Ms. EK and she considered her position not independent and that the questions she was asked were judgemental. She believes that she has been subjected to harassment and discrimination in the workplace because of her religion and nationality contrary to the Employment Equality Act, 1998.
   15. The complainant submits that the respondent did not investigate her complaints against Ms. PH, Vice President, Mr. O’ L and Ms. T properly and she felt victimised by the investigation. On the afternoon of 20 June 2003, the complainant saw Mr. CS standing in Ms. LA’s office showing her the middle finger of his hand. Ms. LA started laughing. She did not make a complaint of the incident to management because of her previous experience with her complaints. On 11 July 2003, Ms. SC insisted on speaking to her. The complainant did not wish to speak to her and walked out. At the entrance to the canteen, she submits that Ms. SC pushed her. The complainant walked around the canteen and Ms. SC followed her, eventually she left her alone.
   16. Some minutes later, Ms. SC tried to talk to her in the corridor again but the complainant refused. Ms. SC then tried to give her a folder which she refused to take and Ms. SC said she would put it on her table. A few minutes later, Ms. SC came to her again and told her she was dismissed and that she should leave the company. When she went back to her desk, she found that she did not have access to her computer. She told Ms. SC that she was going to call the guards to make a report of assault by Ms. SC against her and that she was going to wait until 5.30pm. Around 3.00pm, she noticed that there was no one else around her. Two policemen appeared and one told her that she should leave her workplace.
   17. In a letter of 11 July, the complainant was informed that “her complaints were of a vexatious/malicious nature, as outlined in the conclusion to the investigation” and that her employment was terminated. She submits that she was not surprised by the outcome of the investigation as it was carried out by Mr. O’ L and Ms. T.
       
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
   1. The respondent denies all allegations of discrimination on grounds of religion and/or race against the complainant or any discriminatory treatment in relation to promotion, training or conditions of employment or any harassment or victimisation as alleged or at all. A number of complaints made by the complainant in relation to her colleagues were found by the investigators appointed by the respondent to be vexatious and/or malicious. The respondent concluded that this constituted gross misconduct as a result of which the respondent decided to terminate her employment.
   2. The respondent was aware prior to the complainant’s appointment of her race and status as a refugee. It was evident from her CV that she was Russian and it was stated on the covering letter with her CV that she had permanent residency which indicated that she was a non national. Throughout the complainant’s employment, very many of her colleagues were unaware of her religion and for many of them, the first time that they were informed that she is a Muslim was when they were informed that she had alleged that they had treated her in an unacceptable manner. A small number of her colleagues were aware of her religion because in or around December 2002, she invited them to join a party to celebrate the end of Ramadan and Ms. H and Ms. M attended the party.
   3. On or about 23 October 2002, the complainant wrote to Mr. O’ L, the Director of Data Management regarding her contention that she did not receive appropriate attention from more experienced personnel and that Ms. B, Senior Clinical Data Coordinator and Study Lead told her that she should not be doing the job she was doing. At that point in time, a great many of the alleged incidents of harassment of which the complainant now complains had allegedly occurred but were not mentioned in the letter to Mr. O’ L.
   4. When Mr. O’ L received the complainant’s letter, he wrote to her on 24 October seeking copies of e-mails which she had indicated to him would show inappropriate communication. The complainant did not reply to the letter and did not copy any e-mails to Mr. O’ L. On 25 October, Mr. O’ L met with Ms. AK who was the Project Leader concerning the two issues raised by the complainant. As a result of these discussions, Mr. O’ L was satisfied that the training being given to the complainant was the same as that being given to all other employees. Mr. O’ L subsequently met with the complainant and discussed with her the prospect of moving her to a different team in order that she could get full re-training. The suggestion appeared to satisfy the complainant and she did not raise any other issues at that time.
   5. When the complainant moved team in November 2002, productivity reports indicated that her productivity levels were well below target and below the level expected of someone in her role as CDC II. There were also concerns about her quality of work. Ms. LA sent the complainant e-mails informing her of her productivity levels as is common practice for team members. It was outlined in the e-mails that her productivity levels were below what was expected and also showed the average number of discrepancies closed for the complainant versus other team members. (The respondent submitted the e-mails). A conversation took place with the complainant and Ms. LA and Mr. CS on 18 November 2002 to discuss her performance and she was informed that Mr. CS would continue to monitor her progress and discuss it in more detail during her appraisal.
   6. The annual appraisal system within Data Management had been changed to take place for all staff at the same time in the year, November, rather than on the anniversary of the start date of each employee. When the complainant was only four months in employment, the process applied to her in a similar fashion as to all other staff. New staff are usually appraised after three months. The appraisal took place on 26 November 2002 with Ms. LA and Mr. CS. It was recorded on her appraisal form that she was well below where she should be with regard to targets and it was crucial for her to increase her productivity levels. She was advised that if she had issues of concern, she should bring these to the attention of the respondent at the earliest opportunity. The complainant wrote on her appraisal form signed by her on 26 November 2002 that she “had special issues in my previous team where I have been treated unfairly and I hope I won’t have the same issues in my new team”. This appears to indicate that at that time, the complainant did not have any issues with her new team.
   7. On 17 January 2003, Ms. LA sent the complainant a meeting request for her performance appraisal on 29 January 2003 and asked her to submit her appraisal notification form by 22 January in advance of the meeting. It was considered important to have this formal review meeting as performance issues raised with her in her appraisal in November had not improved. On the day of the scheduled appraisal, the complainant requested that it be delayed as she wanted to change the details on her notification form and it was agreed to reschedule the meeting to 6 February. After the appraisal meeting, the complainant was sent a copy of her appraisal record for comments but failed to revert with comments or to sign her form.
   8. On her appraisal form, the complainant stated that Ms. H had been “incorrect” with her, raising her voice and being aggressive. This led to a discussion where the complainant said that others on the team including Ms. LA and Mr. CS were aggressive towards her and referred to racism. The complainant was advised that she should lodge a formal complaint against anyone who she alleged to be racist so that it could be dealt with by the respondent. The complainant was advised that since January, her figures had increased but were still not consistent and for this reason, the respondent would be extending her probationary period for two months until 28 March with a review after one month on 28 February. It was also outlined to her that if her performance did not improve that disciplinary action would have to be taken. The complainant was issued with a letter dated 6 February 2003 to confirm the extension.
   9. Following the meeting, the issues were brought to the attention of Mr. O’ L (Director Data Management) to whom Mr. CS reports. Mr. O’ L subsequently wrote to the complainant on 7 February to advise that he was aware that she had made a complaint against Ms. H. He advised her that he wanted to resolve the situation in a timely manner and asked her to meet with him at 3.30pm. She responded that she was not ready and asked to meet the following Monday. The complainant met with Mr. O’ L on 10 February following which a further meeting was arranged for 17 February. The complainant was asked to furnish names, dates and details of the specific issues for the basis of any claims of harassment that she had against Ms. H or any other member of the department.
   10. The complainant wrote to Mr. O’ L on 17 February 2003 to advise that she had not written down the details of harassment or discrimination and would do so as soon as possible. The complainant was offered time off to put the details of her complaint together and took 20 February 2003 off. On 24 February, the complainant furnished Mr. O’ L with a letter of complaint setting out allegations of harassment and discrimination dating back to September 2002 and raising matters which had never previously been brought to the respondent’s attention despite the complainant’s conversation with Mr. O’ L in October 2002.
   11. The respondent appointed Ms. T, HR Manager and Mr. O’ L to investigate the allegations and they met with the complainant, her representative and her husband on 6 March 2003. She was furnished with the minutes of the meeting on 10 March 2003 which she later claimed were inaccurate. On 18 March 2003, the complainant wrote to Mr. O’ L and Ms. T stating that in her view, she did not consider them independent investigators. On 19 March, the complainant wrote to Mr. G, Chief Executive Officer of the respondent claiming that the investigators appointed could not be independent and claiming that she had been discriminated against by Ms. PH. Mr. G appointed Ms. EK, Vice President of Human Resources (EU and rest of world) to investigate the allegations against Mr. O’ L, Ms. T and Ms. PH.
   12. On 11 April 2003, the complainant met with Ms. EK. At the meeting, Ms. EK provided the complainant with a list of questions to which she required answers to enable her to pursue her investigations into the complaints against Mr. O’ L, Ms. T and Ms. PH but received only an incomplete response in respect of Mr. O’L only. On 14 April, Ms. EK wrote to the complainant following up on their meeting on 11 April 2003 confirming the permanent nature of the complainant’s employment and seeking further information about a further complaint made by the complainant. On 17 April, the complainant wrote to Ms. EK making further allegations. She stated she was not satisfied with Ms. EK’s procedures and considered her questions to have been judgmental. Ms. EK responded by letter dated 25 April 2003 expressing surprise and stating that the complainant had not raised any difficulties in the course of their meeting on 14 April. She wrote again to the complainant on 7 May 2003 raising certain questions arising from the allegations made on 17 April. The complainant did not respond.
   13. On 19 May 2003, Ms. EK furnished her report to Mr. G following her investigation of the complaints made by the complainant about Mr. O’ L, Ms. T and Ms. PH. The report was also furnished to the complainant. She found no evidence to support the complainant’s allegations that Mr. O’ L and Ms. T could not be independent investigators. She also found no evidence to support the complainant’s allegation that Ms. PH discriminated against her. As a result of Ms. EK’s recommendations, Mr. G instructed Ms. T and Mr. O’ L to recommence their investigations. The investigations went on over a number of weeks and each and every one of the complainant’s allegations were fully investigated. The complainant was given every opportunity to participate in the internal investigation but withdrew her co-operation having initially participated in the investigation. The complainant was asked to co-operate but did not do so. The investigators concluded that each and every one of the complainant’s complaints of harassment and discrimination could not be proven. They also concluded in relation to a number of complaints that her allegations were vexatious and in some cases were vexatious and malicious.
   14. In relation to an alleged change in attitude (by Ms. AK, Ms. KS, Ms. PB and Ms. AL) towards the complainant from September 2002, the complainant never made the allegation to the respondent in the course of the complainant’s employment and it was not mentioned in any of her letters of complaint, in particular, those of 23 October 2002, 24 February 2003 and 17 April 2003. Without prejudice to the foregoing, the respondent denies the complainant’s allegation. Many of the individuals referred to were not aware of the complainant’s religion prior to their involvement in the investigation process in March 2003. Most, if not all, of the individuals were aware of the complainant’s nationality from when they first met her and this was not something they later discovered leading to a change in attitude. In relation to the allegation that Ms. B gave the complainant less work than was given to other members of the team, the allegation was investigated and it was found that it could not be proven.
   15. The complainant alleges that she was the last person who received training in the team, that Ms. S refused to continue her training including a practical part and that Ms. B was too busy to provide her with training. The investigators found that the allegation could not be proven. The allegation that Ms. AK made a statement about refugees coming to Ireland only to make money was found by the investigators not to have been proven. A similar finding was made in respect of the comment by Mr. L in relation to the “bloody pen” comment. The investigators also found that the complainant’s allegation regarding mistaken queries being highlighted and a comment made by Ms. AK addressed to the complainant referring to being “very stupid” could not be proven.
   16. In relation to the allegation that Ms. AK stated that “it will be better if you were to leave Dublin and live in other parts of Ireland where it would be better”, this allegation was never made to the respondent in her three letters of complaint which were made since the date on which the complainant alleges this statement was made by Ms. AK. The respondent further denies the statement was made by Ms. AK. Ms. AK does recall a conversation with the complainant about racism in which the complainant said she was experiencing problems with her neighbours. Ms. AK then went on to discuss how a number of refugees had settled down well in her home town which is a tolerant environment.
   17. In relation to the complainant’s claim that Mr. O’ L failed to investigate her complaint of 22 October 2002, Ms. EK who investigated the claim found that the complaint was not well founded. The complainant alleged that she made a complaint to Mr. O’ L against Ms. B and that she told him that she hoped the problems were not anything to do with her nationality. The complainant made no reference to her religion or to the fact that she is a Chechen Muslim. The complaint alleged that Mr. O’ L decided not to investigate her complaint and just transferred her to another team. In relation to her allegation that a number of named colleagues ignored her after she put a Muslim wall planner at her work station, the investigators concluded that her allegation was vexatious. In relation to her allegation that Mr. C looked at the calendar and said “Jesus Christ”, the investigation team concluded that her allegation could not be proven.
   18. The complainant’s allegations in relation to targets set for her by Ms. LA are unclear and she does not appear to have made the complaint in any of her letters of complaint to the respondent. In any case, the respondent denies that the complainant was ever furnished with unreasonable targets or was ever expected to achieve targets with insufficient training or experience. In relation to the complainant’s allegation that Ms. H suggested that she should not fast during Ramadan, the investigators found that the allegation could not be proven and that it was malicious/vexatious. In relation to her allegation that Mr. CS asked her aggressively during her lunch time what she was doing, the investigation team concluded that it was not proven. The investigation team found that the allegations regarding Ms. H saying “F****** cactus” and that she spoke to the complainant in an aggressive and impatient manner were not proven. The team concluded in relation to her allegation that Mr. L referred to her as “F****** Muslim”, that the remark was not made and her allegation was malicious/vexatious. The investigation team found that the complainant’s allegation that she requested a blank CRF form but never received it was not proven.
   19. The allegations that Mr. CS refused the complainant’s request to give her more training in other areas and subsequently denied saying this and stated in a mocking tone that the complainant could not prove it were found by the investigation team not to have been proven. The allegation that the complainant’s request for time off to celebrate Eid was refused notwithstanding that she explained the reason for the request was found not to have been proven. Similar findings were made in relation to unreasonable targets set by Ms. LA at Christmas 2002. The complainant’s allegation that Ms. M addressed her with a raised voice when she asked questions in validation was found not have been proven and was found to be malicious/vexatious. Her complaint that Ms. H was rude and aggressive towards her was found not to have been proven. Her complaint that Mr. CS and Ms. LA became more indifferent and antagonistic towards her after she showed them some photos of Russian brutality in Chechnya were found to be malicious/vexatious.
   20. The allegations that Ms. LA furnished incorrectly achieved targets at the meeting of 6 February and that Mr. CS informed her that she should not ask questions were found not to have been proven. In relation to the allegation that the complainant’s request to move desk was not facilitated unlike requests by other employees, the respondent submits that it took steps to accommodate the complainant by putting a screen behind her and by moving her as requested. When she was moved, she contended that a fan was causing her problems and the respondent put a back on the fan. Despite all these steps, the complainant sat at her second workstation with an open umbrella on her desk. The allegation that she was not facilitated was found not to have been proven. The respondent obtained partial copies of reports prepared by the Health and Safety Authority which inspected the respondent’s premises and two workstations used by the complainant on foot of complaints made by her. The HSA found no basis for the complaints.
   21. The complainant’s allegation that Mr. CS stated that if she had problems with her health, she should leave her job and stay at home were found by the investigation team to be malicious. In relation to the complainant’s allegations that the difficulties in relation to her probationary period were discriminatory on the grounds of race and/or nationality, the respondent submits that she was treated in the same way as all other employees and her treatment was not discriminatory. The difficulties in relation to her probationary period were rectified by the respondent and the permanent nature of her employment was confirmed to her by Ms. EK in a memo dated 14 April 2003. It is denied by the respondent that the complainant was requested to withdraw the complaints made against Ms. PH and Ms. T. In the course of that meeting, the complainant’s representative stated that, in the light of the clarifications regarding the permanent nature of the complainant’s employment, she may not be progressing the matter. In that light, Ms. EK clarified with the complainant that she was not withdrawing those complaints.
   22. In relation to the further allegations made by the complainant in her supplementary submission dated 29 January 2004, the allegations made therein were not previously made to the respondent and the respondent was not given any opportunity to investigate them. The respondent denies that the complainant was victimised by Mr. G’s decision to reappoint Mr. O’ L and Ms. T to investigate her complaints following Ms. EK’s investigation into her allegations that they were not independent. In relation to her allegation that Mr. CS showed the complainant his middle finger as a result of which Ms. LA started to laugh, the respondent denies the allegation. The allegations in relation to Ms. SC’s “persecution” of the complainant are denied. The respondent decided to terminate the complainant’s employment as a result of the findings of the investigation team that a number of the complaints made by the complainant were vexatious and/or malicious. The decision was communicated to the complainant by Ms. SC on 11 July 2003.
   23. The respondent submits that the complainant’s allegations of discrimination, harassment and victimisation on grounds of race and/or religion in relation to her conditions of employment and the manner in which she was treated by the respondent in the course of her employment should be dismissed in their entirety. The respondent submits that there is absolutely no evidence or no satisfactory evidence that would establish a prima facie case of discrimination on the grounds of race and/or religion.
       
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. In this case, the complainant alleges that the respondent directly discriminated against her on the religion and race grounds and that she was victimised. I will therefore consider whether the respondent directly discriminated against the complainant on the religion and race grounds in terms of section 6(2)(e) and (h) of the Employment Equality Act, 1998 and in contravention of sections 8 and 32 of the Act in relation to her conditions of employment. If I find that the complainant was discriminated against and/or harassed, I must then consider (ii) whether the complainant’s employer is vicariously liable for the discrimination and/or harassment and in the event that it is liable, consider as a defence (iii) whether the respondent took reasonable action to prevent the discrimination and harassment occurring in the workplace. In this case, I will also consider the manner in which the respondent dealt with the complainant’s complaint of harassment. I must also consider whether the complainant was victimised within the meaning of section 74(2) of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
   2. The complainant’s complaint to Mr. O’ L of 23 October 2002 refers to her not understanding “why this is happening but wish to believe that the cause is not my nationality.” The complainant’s next letter of complaint dated 24 February 2003 refers to the complainant feeling “harassed and discriminated against for the following reasons:” and the complainant proceeds to detail her allegations but she does not refer to her nationality or religion as being the reasons for any alleged discrimination. She concludes her letter with the following: “In my opinion the major problem in employee’s policy of ICON is that the company does not have real and working mission statement. ….. The mission actually reflects only the interest of the company’s shareholders and company’s customers, but there is no place for the interest of employees. And I sincerely believe you will share my opinion that the company’s mission does not support to having a respectful environment for employees which will allow them to develop their skills and talents.” Her next letter of complaint dated 17 April 2003 states “I would like to notify you of the circumstances surround [sic] my earlier complaint of harassment and discrimination against me by some members of the ICON staff.” In that letter, the complainant subsequently refers to telling Mr. O’ L that she “perceived and suspected that these problems were emanating in the team because of my religion and nationality, as a Chechen Muslim.” The complainant’s first submission to the Equality Tribunal refers to her belief that she has been subjected to harassment and discrimination in the workplace because of her religion and nationality. I must point out that the claim prior to the day of the hearing referred to a claim in relation to the complainant’s nationality but was changed on the day of the hearing to a claim in relation to the complainant’s ethnic origin.
      
      Establishing a prima facie case
   3. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
      
      “.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
      
      The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
   4. Subsequently, the Labour Court stated in relation to the burden of proof:
      
      “It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.”
      
      It must be noted that the respondent’s Counsel whilst accepting that the Tribunal is bound by the Determinations of the Labour Court submitted that the shifting burden of proof should not apply in non gender cases.
      
      The provisions of the Employment Equality Act, 1998
      
   5. Section 6(1) of the Employment Equality Act, 1998 provides that:
      
      “Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”
      
      Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
      
      (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as the “religion ground”),
      
      (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
   6. Part IV of the Employment Equality Act, 1998, deals with discrimination on grounds other than gender. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. In relation to the race ground, a comparison may be made between a person who is of a particular race, colour, nationality, ethnic or national origins with a person who is of a different race, colour, nationality, ethnic or national origins. Section 28 of the Act provides that C and D represent two people who differ in relation to any of the eight grounds, e.g. two people who differ in relation to their race or religion. Section 32(1) provides, inter alia, that where an employee (E) harasses another employee (C) by reference to the relevant characteristic of C, at the place of employment or otherwise in the course of the employment of the person harassed, the harassment constitutes discrimination by the victim’s employer in relation to the employee’s conditions of employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C.
   7. Section 32(5) provides that
      
      “For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C.” It must be noted that section 32(1) refers to harassment “by reference to the relevant characteristic of C” which constitutes discrimination by C’s employer in relation to C’s conditions of employment “on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C.” Accordingly, any harassment under section 32 of the Act must be considered by reference to the “relevant characteristic” of the person harassed, i.e. their religion or nationality.
      
      Issue of whether the complainant has established a prima facie case of discrimination
   8. The complainant in this case submits that a number of employees of the respondent discriminated against her and/or harassed her on the grounds of religion and race. The first issue that must be addressed is whether the various comments were made or actions taken in respect of the complainant and the second issue is whether they constitute discrimination or harassment on the religion or race grounds within the meaning of sections 8 and 32 of the Act in relation to the complainant’s conditions of employment. I will proceed to consider the issue of whether the complainant has established a prima facie case of direct discrimination on the race and/or religion grounds. In accordance with the principles established in the Mitchell case and reiterated in the Flexo case, I must consider whether the complainant has established the primary facts on which she relies and secondly, if she has established the primary facts, I must consider whether those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied, the onus shifts to the respondent to prove that the principle of equal treatment was not infringed. The complainant’s allegations as submitted in her written submission to the Tribunal, oral evidence (where given) in relation to each allegation and my findings are as follows:
   9. (a) In September when she was asked to come out with her colleagues sometime, she answered that she couldn’t as she was a Muslim and it was prohibited to drink or smoke. After that, she felt that Ms. AK, Ms. KS, Ms. B and Mr. L changed their attitude to her. She submits that they were polite with her before they knew she is a Muslim and from Chechnya.
      
      ORAL EVIDENCE
      At the hearing, the complainant submitted that the members of the team who asked her to go out were Ms. AK and Ms. CC and that she did not remember all of the names. She submitted that after that, people were more ignorant to her, they had a bad attitude to her and that they mocked her by their tone.
      
      FINDING
      I note that Ms. CC was not named in the complainant’s written submission and there is therefore an inconsistency between the complainant’s written and oral evidence. I find that there is insufficient evidence to support the complainant’s allegation in relation to a change in attitude by her colleagues and her allegation in this regard is not proven.
   10. (b) She submits that management (Ms. B) gave her less work than that given to other members of staff which meant she was less experienced. She also submits that she was the last person on the team to receive training and that she did not receive help with the practical aspect of the training from Ms. KS despite requests to the Project Leader (Ms. AK).ORAL
       
       EVIDENCE
       In relation to the allegation regarding less work, the complainant submitted at the hearing that she was sitting with nothing to do once, twice or three times and that she filled in her time reading procedures on the computer. Ms. KS submitted at the hearing that when she is doing training, she completes the theoretical and practical parts together in that when she is doing the theoretical part, she follows with active practical examples.
       
       FINDING
       I note that Ms. KS acknowledged in the course of the investigation and that it is recorded in the respondent’s report of 10 July 2003 that the complainant was “the last person to receive training on the team at that time because Djemma Tsourova was the newest member of the team and all the others were trained on the activities which Djemma Tsourova was being trained on.”
       
       I find that there is insufficient evidence to support the complainant’s allegation that she was given less work than other members of the team and her allegation in this regard is not proven.
   11. (c) The complainant submits that around the beginning of October 2002, her Project Manager, Ms. AK in conversation with “[LS}, myself and another person whose name escapes me,” stated that refugees were coming to Ireland only to make money and not because of their political problems.
       
       ORAL EVIDENCE
       Ms. AK has since left the employment of the respondent and did not give evidence at the hearing. At the hearing, the complainant submitted that the conversation took place in the canteen and that she was not sitting with Ms. AK and the others but was “near them”. She submitted that she remembered when the conversation took place as she remembered events around dates and the flow of events.
       
       FINDING
       I note that there is an inconsistency in the complainant’s oral and written evidence in relation to participating in the conversation and overhearing it. I find that there is insufficient evidence to support the complainant’s allegation that Ms. AK said that refugees were only coming to Ireland to make money and her allegation in this regard is not proven.
   12. (d) She submits that in October when she approached Ms. AK in relation to training, Mr. L answered for Ms. AK and said that there would be special checking of her knowledge and that her name would be written by “bloody pen”.
       
       ORAL EVIDENCE
       Mr. L gave evidence at the hearing and denied making the statement.
       
       FINDING
       I find that there is insufficient evidence to support the complainant’s allegation that Mr. L said that there would be special checking of her knowledge and that her name would be written by bloody pen. I find that her allegation in this regard is not proven.
   13. (e) She submits that in the middle of October 2002, at a team meeting, there were two different queries but for some reason, there was only one copy of the query with the name of [Ms. CC] and other copies for everyone with her name. She submits that a mistake had not actually been made by her on that occasion.
       
       ORAL EVIDENCE
       At the hearing, the complainant was adamant that she had not made a mistake on that occasion but acknowledged that Ms. CC’s mistakes were discussed at team meetings.
       
       FINDING
       I find that it is not the case that the complainant was singled out in relation to highlighting mistakes.
   14. (f) She submits that around 22 October 2002, Ms. AK stated to her that “It would be better if you were to leave Dublin and live in other part of Ireland where it would be better.”
       
       FINDING
       As stated at (c) above, Ms. AK has since left the employment of the respondent and did not give evidence at the hearing. I note that the complainant’s first letter of complaint to the respondent was dated 23 October 2002 and that this allegation was never made in her three letters of complaint which were made to the respondent since the date on which the complainant alleges this statement was made by Ms. AK. I find that there is insufficient evidence to support the complainant’s allegation that Ms. AK stated “It would be better if you were to leave Dublin and live in other part of Ireland where it would be better.” and her allegation in this regard is not proven.
   15. (g) She submits that she made a complaint to Mr. O’ L about Ms. B on 23 October 2002 and that he did not investigate her complaint but just moved her to another team.
       
       The complainant complained in writing to Mr. O’ L on 23 October 2002 in relation to (i) not receiving appropriate training and (ii) that Ms. B approached her desk on 15 October 2002 when she was doing work for another team and asked her what she was doing and that Ms. B did not approach another person who was doing the same job.
       
       In her letter of complaint, the complainant stated “…, it appears that Ms. B wanted to discriminate against my wish to get the work done in the time and show me her superiority dictating what me to do. I do not understand why this is happening but wish to believe that the cause is not my nationality.”
       
       On the following day, Mr. O’ L communicated with the complainant by e-mail in relation to “an e-mail of examples where you felt that you weren’t communicated with appropriately and you were going to forward to me, is this still the case?”
       
       The respondent submitted that on 25 October 2002, Mr. O’ L met with Ms. AK, the complainant’s Project Leader regarding the two issues raised by the complainant, as a result of which, he was satisfied that the complainant was receiving the same training as others. He subsequently met with the complainant on 29 October 2002 and updated her on the two issues raised in her letter and discussed the prospect of moving her to another team to enable her to get full re-training. The respondent submitted that the suggestion appeared to satisfy the complainant and she did not raise any further issues about her treatment at that time.
       
       FINDING
       I note that the complainant only referred to her nationality in the letter of 23 October 2002 and did not refer to her religion. In relation to the complainant’s allegation that Mr. O’ L decided not to investigate her complaint and just transferred her to another team, I note that he e-mailed the complainant the next day in relation to an e-mail she was to provide and it appears that the complainant did not respond to his e-mail. The complainant was subsequently moved to another team. Whilst the complainant may not have welcomed the move to another team, I find that it not the case that Mr. O’ L decided not to investigate her complaint.
   16. (h) She submits that when she put a Muslim planner at her workplace in the middle of November, many people stopped saying hello to her (Ms. HH, Ms. PH, Ms. AP, Ms. BR, Ms. LA, Mr. K-FC and Ms. JD). She submits that one person (Mr. K-FC) stopped near her desk, looked at the calendar and said “Jesus Christ”.
       
       ORAL EVIDENCE
       The complainant, at the hearing, stated that the calendar related to Ramadan and she put the calendar in her workplace in the middle of November to help her to remember when she should fast. It was approximately an A3 size calendar. In relation to whether the people she alleged stopped saying hello to her worked near her, she submitted that only Ms. LA worked near her. She submitted, however, that it was impossible not to see the calendar on crossing the main doors.
       
       Ms. PH who is a Head of a Department stated at the hearing that she did not know the calendar was a Muslim calendar at the time. Ms. LA stated that she knew there were items at the complainant’s workstation but she did not know what the calendar was and did not therefore stop saying hello to the complainant as a result of the calendar.
       
       FINDING
       I find that there is insufficient evidence to support the complainant’s allegation that people stopped saying hello to her as a result of placing the Muslim calendar at her work station and her allegation in that regard is not proven.
   17. (i) She submits that during Ramadan when she was fasting, Ms. H asked her why she did not have lunch and when she explained, she was told in an aggressive manner that she “should not fast”.
       
       ORAL EVIDENCE
       At the hearing, the complainant submitted that she considered that Ms. H spoke to her in relation to not fasting in an aggressive manner as she looked at her like she was an animal and like she did stupid things. Ms. H stated at the hearing that she had a discussion with the complainant regarding fasting as the complainant had mentioned to her that she suffered from angina.
       
       FINDING
       I note that in the complainant’s letter to the respondent dated 24 February 2003, there is no reference to Ms. H speaking in an aggressive manner in relation to fasting and there is only a reference to Ms. H saying to her that she “should not fast”. I note also that it was not in dispute that Ms. H was invited and attended a party at the complainant’s home to celebrate the end of Ramadan and spent 3.5-4.0 hours there. I find that the behaviour of the complainant in subsequently inviting the complainant to the party to celebrate the end of Ramadan is inconsistent with her allegations in respect of Ms. H and I find that the allegation of aggressiveness is not proven.
       
   18. (j) She submits that on 12 November 2002, the Project Manager (Mr. CS) came to her desk at lunch time when she was listening to her personal stereo player and asked in an aggressive manner what she was doing.
       
       ORAL EVIDENCE
       At the hearing, the complainant submitted that this was the most distressing thing that happened to her at work and Mr. CS spoke to her like she was doing some crime and his voice expressed the aggression.
       
       FINDING
       It was not disputed that Mr. CS approached the complainant in relation to what she was doing as he considered that the time was outside the time permitted for lunch (12-2pm) and was during core hours. I find that there is insufficient evidence to support the complainant’s claim of aggression by Mr. CS and I find that the allegation of aggressiveness is not proven by the complainant.
   19. (k) She submits that in the middle of November, Ms. H , when explaining something to her swung her hands and accidentally touched the cactus and said “F****** cactus”. She also submitted that she often spoke to her in an aggressive and impatient manner.
       
       ORAL EVIDENCE
       At the hearing, the complainant submitted that Ms. H’s aggression happened many times. She considered that sometimes, Ms. H was normal and at other times was nervous and rude. Ms. H denies being aggressive with the complainant and submitted that she was very patient with her. She accepted that she said “feckin cactus” and her comment were directed at the cactus and not the complainant.
       
       FINDING
       Again, I find that the complainant’s allegations regarding Ms. H being aggressive and impatient are inconsistent with inviting Ms. H to a party in her house a few weeks later on 6 December 2002 and spending 3.5-4 hours talking with her. I find the allegation in respect of Ms. H is not proven.
   20. (l) She submits that on 18 November 2002, Mr. L referring to her when she was passing by his table in the canteen said “F****** Muslim” and that she felt humiliated, threatened and terrified and was so shocked and upset she could not tell it to anyone, not even to her husband.
       
       ORAL EVIDENCE
       At the hearing, the complainant submitted that there was one witness to the comment but that she did not know his name and did not even see his face. She submitted that she remembered the specific date as on that evening, they were invited to their friends and she mentioned it to the friend’s wife.
       
       FINDING
       I note that in her written submission, the complainant stated that she could not mention it to anyone. Mr. L submitted at the hearing that he became aware that the complainant was a Muslim and from Chechnya when she made her second complaint in relation to him on 17 April 2003. He denied referring to her as “F****** Muslim”. I find that there is insufficient evidence to support the complainant’s claim that Mr. L referred to her as a “F****** Muslim” and I find that the complainant’s claim in relation to Mr. L has not been proven.
   21. (m) The complainant submitted that she asked Ms. LA (her Project Leader) for a day off at the end of November for the Eid festival and was told to come back to her nearer the time. She submitted that at the beginning of December, she approached Ms. LA and Mr. CS in relation to a half day off and explained the reason for the request. She submits and as she had already used her holiday entitlements for 2002, she suggested she could work the half day on the following Saturday or at any other time or take the time from the 2003 entitlement. She submits that her Project Manager (Mr. CS) refused to give her a half day off.
       
       ORAL EVIDENCE
       At the hearing, the complainant submitted that when she was normally looking for leave, she approached her Project Leader, Ms. LA. As Ms. LA refused her the leave, she approached Mr. CS about it. At the hearing, Mr. CS took full responsibility for refusing the half day off. He submitted that he first heard about the request on the Friday morning and due to the short nature of the request and the busy schedules, he refused the request. He submitted that he did not deal with the complainant directly in relation to the matter but dealt with the matter through Ms. LA.
       
       FINDING
       The statement that Ms. LA refused her the leave is inconsistent with the complainant’s written submission to the Tribunal which makes no reference to a refusal by Ms. LA. The complainant submits in relation to her initial request for a day off that “[Ms. LA] replied that it would not be a problem and said to come back nearer to the day it is only one day. In the beginning of December I came back to [Ms. LA] and to Mr. CS to ask for a half day off 6 December 2002.” I note that the respondent’s findings of the investigation into the allegations of the complainant (Appendix 16) refer to the complainant stating that as she did not hear back from Ms. LA, she went directly to Mr. CS.
       
       The respondent provided a number of e-mails in relation to time off (Appendix 5). I note that there is one dated 10/09/02 in relation to Ms. CH wanting to take time off as her mother was going into hospital and to working up the time on Saturday as she only had a few days holidays left. The response from Mr. O’ L to Ms. LA states “She will have to take holiday for this, many others in the tracking and entry group regularly ask this and if we allow for [Ms. CH], it will open up a can of worms…..” Another e-mail provided which was sent from Ms. LA to Mr. CS on 31/10/02 refers to the holidays requested at that time including Christmas holidays and to a Ms. MN agreeing not to take Friday, 6 December 2002 as it was not necessary. The e-mail also refers to the complainant having booked 2.5 days the following week. Another e-mail refers to a request by Mr. RG on Wednesday, 26 February 2003 for time off on the Friday wherein he acknowledged it was short notice. Ms. LA responded that “Regarding Friday, it is short notice but if it doesn’t affect the ECGs I’ll sign off. When do we have to send a response to the load and will taking Friday off delay that?”
       
       I find that the complainant was refused time off on 6 December 2002 in accordance with normal procedures governing the taking of leave.
   22. (n) She submits that she was given higher targets than other members of the team by Ms. LA in December 2002.
       
       The respondent made available a copy of an e-mail from Ms. LA to Ms. F which states:
       
       “Also do you know how many pages are roughly entered per day on VALUE? One of our CDCs is in over Christmas and I thought I’d put her on entry for those few days and I want to give her a target.”
       
       The response Ms. LA received stated: “Thanks for that – new start – 300 per day…. Pending on pages types etc..”
       
       The complainant was given a target of 250 pages per day in an e-mail from Ms. LA to her dated 20 December 2002.
       
       FINDING
       I find that the complainant was not given unreasonable targets in relation to data entry.
   23. (o) She submits that when she asked questions in Validation Study Lead, Ms. M answered her in a raised voice.
       
       ORAL EVIDENCE
       In relation to this allegation, the complainant submitted at the hearing that other people heard the raised voice as it was not possible not to hear.
       
       FINDING
       I find that the there is insufficient evidence to support the complainant’s claim in relation to Ms. M answering her in a raised voice and I find that her allegation is not proven.
   24. (p) At the end of January 2003, the complainant submits that she brought with her photographs of victims of Russian brutality in Chechnya and showed them to some members of the ICON staff. She submitted that after that, the attitude of her managers (Mr. CS and Ms. LA) got even worse and they became more indifferent and antagonistic towards her.
       
       ORAL EVIDENCE
       At the hearing, the complainant clarified that she showed the photos to Mr. L, Mr. F and Ms. MN.
       
       FINDING
       The complainant did not explain why having shown the photos to three members of staff who did not include Mr. CS and Ms. LA, the attitude of Mr. CS and Ms. LA became even worse nor has she clarified in what way their attitude changed. I find that there is insufficient evidence to support the complainant’s claim in this regard and I find that her allegation is not proven.
   25. (q) She submits that the targets recorded as achieved by her were less than they were in reality.
       
       ORAL EVIDENCE
       At the hearing, the complainant submitted that the targets recorded as achieved by her were reduced a few times but did not submit any explanation or evidence as to how she believed that could have happened. Mr. CS explained at the hearing that the previous summer, a check had been done in relation to whether the system recording the targets was working properly and as a result, the respondent was satisfied that the system was working properly.
       
       FINDING
       I find that there is insufficient evidence to support the complainant’s claim in relation to the targets as achieved by her and I find that her allegation is not proven.
   26. (r) The complainant submits that in early November, she asked to be moved from her desk due to draughts and she was not moved and she subsequently wrote a letter requesting a move on 17 January 2003. The response she received indicated that “this is not as simple as just sitting at a different desk” and at a subsequent meeting, her Project Manager (Mr. CS) told her that if she had problems with her health, she should leave and stay at home.
       
       The respondent submitted in its written submission that it took steps to accommodate the complainant, by putting a screen behind her and by moving her as requested. When the complainant was moved, she contended that a fan was causing her problems and the respondent put a back on the fan. The respondent also submitted that the complainant sat at her second workstation with an open umbrella on her desk.
       
       ORAL EVIDENCE
       At the hearing, the complainant accepted she opened an umbrella on her desk a few days before she was dismissed on 11 July 2003. Mr. CS explained at the hearing that the ideal situation is that someone sits with their team and it is not simply a question of moving desks and that there is an IT and support cost involved. The respondent submitted a copy of a summary report from the Health and Safety Authority which states “Complaint concerned sitting in draught. Complainant has now been moved. Found conditions OK in old and new location of workplace.”
       
       FINDING
       I find that the complainant was reasonably accommodated in relation to her request for a desk move and I reject her allegation in this regard.
   27. (s) The complainant submits that she was informed that the HR Manager, Ms. T and Mr. O’ L were appointed as independent investigators to investigate her complaint. The meeting took five hours and she was asked over 300 questions which were not relevant. The complainant felt that the investigators were just trying to gather more information to use against her. She submits that when she received the minutes of the meeting, she was shocked that the minutes were inaccurate and incomplete.
       
       ORAL EVIDENCE
       At the hearing, the complainant did not submit any evidence to substantiate her allegation that the questions asked were not relevant. In relation to the minutes, she stated that many questions asked were not included and her answers were not included or were changed.
       
       FINDING
       I find that there is insufficient evidence to support the complainant’s claim in relation to the irrelevance of the questions asked during the investigation and in relation to the minutes being inaccurate and incomplete. I find that her allegation in this regard is not proven.
   28. (t) On the afternoon of 20 June 2003, the complainant saw Mr. CS standing in Ms. LA’s office showing her the middle finger of his hand. Ms. LA started laughing.
       
       ORAL EVIDENCE
       At the hearing, the complainant submitted that she was sitting at her workstation when Mr. CS showed her the middle finger and that the only witness was Ms. LA.
       
       FINDING
       I find that there is insufficient evidence to support the complainant’s claim in relation to Mr. CS raising the middle finger of his hand and I find that her allegation in this regard is not proven
       
       (u) On 11 July 2003, Ms. SC insisted on speaking to her. The complainant did not wish to speak to her and walked out. At the entrance to the canteen, she submits that Ms. SC pushed her. The complainant walked around the canteen and Ms. SC followed her, eventually she left her alone.
       
       ORAL EVIDENCE
       Ms. SC gave evidence at the hearing and submitted that on the day in question she attempted to speak to the complainant in private in relation to her dismissal but that the complainant walked away. She denied pushing or harassing the complainant.
       
       FINDING
       I find that there is insufficient evidence to support the complainant’s claim in relation to Ms. SC’s behaviour and I find that her allegation in this regard is not proven.
   29. I note that a number of the incidents {(a), (c), (d), (e) and (f)} of which the complainant complains had allegedly occurred by 23 October 2002, being the date of her first complaint to Mr. O’ L but there is no reference to them in that letter. I also note that the complainant wrote on her appraisal form signed by her on 26 November 2002 that she “had special issues in my previous team where I have been treated unfairly and I hope I won’t have the same issues in my new team”. This appears to indicate that at that time, the complainant did not have any issues with her new team. In relation to the complainant’s allegations, I have rejected a number of them as being incorrect, I find in some cases that there are inconsistencies between her written and oral evidence, in relation to others, the actions taken by her are inconsistent with the allegations made and there is insufficient evidence to support a number of her claims and her allegations are not proven. I find that the complainant has not established the primary facts on which she relies in accordance with the first limb of the Flexo case and the onus does not therefore shift to the respondent to prove that the principle of equal treatment was not infringed.
       
       Action taken by the respondent
   30. Whilst it is strictly not necessary for me to proceed to consider the actions taken by the respondent as the complainant has not established any facts at all and has therefore failed to establish a prima facie case of discrimination on the race or religion grounds, I will briefly do so for the sake of completeness. On receipt of the complainant’s complaints, the respondent immediately commenced investigations. The complainant’s first complaint is dated 23 October 2002. Mr. O’ L met with the complainant’s Project Manager on 25 October and subsequently met with the complainant in relation to the matter on 29 October 2002. The complainant made a complaint against Ms. H at her performance appraisal on 6 February 2003. Mr. CS brought the matter to the attention of Mr. O’ L and Mr. O’ L wrote to the complainant on 7 February 2003 advising her that he wanted to resolve the situation in a timely manner and requesting her to meet with him. As the complainant had not provided written details of her complaint by 17 February 2003 as agreed, she was afforded a day off work to detail her complaint in writing. She provided the details of her complaint on 24 February 2003. Ms. T and Mr. O’L were immediately appointed to investigate the allegations and following a complaint by the complainant on 19 March 2003 that the investigators were not independent, a further investigation by Ms. EK, Vice President of Human Resources commenced.
   31. Ms. EK had a meeting with the complainant on 11 April 2003 and on 14 April 2003 wrote to her seeking further information about a subsequent complaint. On 17 April 2003, the complainant wrote to Ms. EK making further allegations. It appears that at that point, the complainant withdrew her co-operation with the investigation and referred a complaint to the Tribunal. On 19 May 2003, Ms. EK furnished her report into the investigation to Mr. G and the complainant. As a result of Ms. EK’s findings, Ms. T and Mr. O’L recommenced their investigation. The investigation was conducted over a number of weeks and all persons named by the complainant in her letters of 24 February 2003 and 17 April 2003 were interviewed by the investigators. The investigators furnished their report to Ms. EK on 10 July 2003. The respondent made available a substantial volume of material in relation to its investigations into the complainant’s allegations. The material provided included e-mails, minutes of meetings and copies of correspondence with the persons involved. It appears that the respondent took action immediately on foot of the complainant’s complaints and it also appears that two thorough investigations were carried out in relation to the complainant’s many allegations. However, at the conclusion of the investigation by Ms. T and Mr. O’ L, the findings were not communicated to the complainant. In accordance with fair procedures, the complainant should have been informed of the outcome of the investigation into her allegations.
       
       
       Section 15 Defence and section 32(6) Defence
   32. Section 15(3) provides:
       
       In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee –
       
       (a) from doing that act, or
       (b) from doing in the course of his or her employment acts of that description.
       
       In accordance with section 32(6), it is a defence for an employer to show that he took such steps as are reasonably practicable to prevent harassment taking place.
       
       Section 32(6) provides that:
       “If, as a result of any act or conduct of E another person (“F”) who is C’s employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against C, it shall be a defence for F to prove that F took such steps as are reasonably practicable-
       (b) in a case where subsection (1) applies ……. to prevent E from harassing C (or any class of persons of whom C is one).”
   33. Although it is not necessary for me to consider the issue of a defence as I have not found that the complainant has established a prima facie case of discrimination and/or harassment, I will briefly refer to the matter. The respondent advised by letter dated 31 March 2005 that the respondent’s general Equal Opportunity Policy was not in place at the relevant time but is now contained in the respondent’s Dignity and Respect at Work Policy. It submitted that at the relevant time, equal opportunities were addressed in the induction presentation given to employees including the complainant. It also submitted that the Bullying and Harassment Policy applicable at the relevant time and used in the investigation and furnished to the complainant is the Bullying and Harassment Policy dated March 2000. I note that the Harassment Policy in question refers to harassment on the nine grounds in accordance with the Employment Equality Act, 1998 and it also sets out the informal and formal procedures for bringing a complaint. The complainant acknowledged that she was provided during her employment with an electronic copy of the Bullying and Harassment Policy.
   34. Victimisation
       Section 74(2) of the Act provides, inter alia, that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith -
       
       “(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,”
       
       The first issue for consideration by me is whether the complainant in the present case has established a prima facie case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that she was penalised and secondly, consider whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. The complainant submits in her second submission to the Tribunal on 30 January 2004 that “It is so obvious that Ms. [PH] victimised Djemma and Mr. [O’ L] and Ms. [T] are not impartial in this investigation and Djemma felt that Mr. [G] deliberately reappointed these two people knowing the outcome of the investigation will be in favour of the company. Therefore, she felt that he victimised her by it ”
   35. In the complainant’s letter of 19 March 2003 to Mr. G, Director of the respondent (Appendix 10), she states “Moreover Ms.[ PH] started the campaign of my victimisation. In her letter of 13 March 2003 she says that the quality of my “work is of grave concern” and accuses in making of hundreds of mistakes. It seems to be very strange and amazing that the Management of ICON was happy with the quality of my work until I made complaint.”
       
       The complainant’s first complaint to Mr. O’ L was on 23 October 2002 raising two issues regarding (i) not getting appropriate attention from more experienced personnel and that (ii) Ms. B came to her desk and asked her what she was doing in order to show her superiority when she did not approach another person. Her second complaint is dated 24 February 2003 and her third is dated 17 April 2003.
       
       The complainant’s performance review on 26 November 2002 states under Manager’s comments:
       
       “It is crucial that Djemma increase her productivity in order to contribute to the team at the leave a CDC2 should. This is not happening currently and is a cause for concern. We need to see an improvement in the very near future.”
   36. The respondent provided a copy of an e-mail from Ms. LA to the complainant on 15 November 2002 (Appendix 5) which shows the number of discrepancies closed for the complainant on 11, 12, 13 and 14 November 2002 which were 8, 17, 27, 31. At the end of the table, it is stated “From this you can see that the number of discrepancies you reviewed have increased slightly in the last week. Please keep this up, you need to be reaching 60 visits (100 discrepancies) very soon.” The respondent made available a table showing the number of discrepancies closed on a daily basis by the complainant between 7 November 2002 and 4 February 2003 and the discrepancies closed by a number of other employees for a similar period (Appendix 5). It also made available a table showing the average number of discrepancies closed by the complainant and five others between 11 November 2003 and 2 December 2003. The tables shows that the average number of discrepancies closed for the complainant during that period was 30.5 compared with 75.4, 78.1, 83.9, 89.5 and 170.1 for the others. The complainant disputed the figures provided by the respondent on the basis that they were underestimated but was not more specific in relation to the matter. The complainant submitted that Ms. PH started the campaign of her victimisation and that her letter of 13 March 2003 indicated that the complainant’s work was of grave concern. However, it is clear that the respondent raised the complainant’s performance with her and provided her with supporting evidence some time prior to 13 March 2003. I find that the complainant has not established that she was penalised by the respondent in relation to its findings regarding her performance and I find that she has not established a prima facie case of victimisation by Ms. PH.
   37. The complainant’s second complaint regarding victimisation is that Mr. [G] deliberately reappointed Mr. O’ L and Ms. T knowing the outcome of the investigation will be in favour of the company. When the complainant wrote to Mr. G on 19 March 2003 alleging that the two persons he appointed to investigate her claim of discrimination were not independent, he appointed Ms. EK, VP of Human Resources to investigate her complaints. Her complaint in relation to Mr. O’ L was that he could not be an independent investigator as when she complained in October 2003, “He did not treat the complaint with appropriate attention and just transferred me to another team with no investigation of the matter.” I note that when Mr. O’ L received the complainant’s complaint, he held a meeting with her Project Leader the next day in relation to the two issues raised in her letter and he subsequently had a meeting with the complainant in relation to the issue and e-mailed her in relation to the matter (see para 5.15 above). The complainant alleged that Ms. T could not be independent as she “refused to accept that I am a permanent employee ….” I note that some issues arose with regard to the extension of the complainant’s probationary period due to her performance and it appears that the respondent attempted to extend her probationary period after the period had elapsed on 22 January 2003. However, it was confirmed to the complainant by memo dated 14 April 2003 from Ms. EK that she was a permanent employee with effect from 22 January 2003. As a result of Ms. EK’s investigation, the two investigators were reappointed. I find no basis for the complainant’s allegation that the respondent appointed the two people in question knowing that the outcome of the investigation would be in favour of the company. Accordingly, I find that the complainant was not penalised by the respondent in relation to its reappointment of the two investigators and I find that she has not established a prima facie case of victimisation in respect of Mr. G’s actions in making the re-appointments.
       
6. DECISION
   1. I find that the complainant has failed to establish a prima facie case of direct discrimination on the religion and race grounds in terms of section 6(2)(e) and (h) of the Employment Equality Act, 1998 in contravention of sections 8 and 32 of the Act.
   2. I find that the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Act, 1998.