Mr. X (represented by Elaine Morgan B.L. instructed by David Burke & Co., Solicitors) -v- A Supermarket (represented by Aine Swift B.L. instructed by Hegarty & Co., Solicitors)
- CLAIM
- The case concerns a claim by Mr. X that his employer directly discriminated against him on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 and in contravention of sections 8 and 32 of the Act in relation to his conditions of employment.
- The case concerns a claim by Mr. X that his employer directly discriminated against him on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 and in contravention of sections 8 and 32 of the Act in relation to his conditions of employment.
- BACKGROUND
- The complainant who worked in a supermarket in a rural town claims that he was harassed during his employment on the sexual orientation ground in relation to his conditions of employment. He claims that he has been subjected to unacceptable and disgusting remarks pertaining to his sexual orientation and that he was physically and sexually harassed by his employer. The respondent denies the allegations of discrimination.
- The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 19 May 2003. On 26 January 2004, 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. Submissions were received from the complainant on 23 April 2004 and on 20 May 2004. A submission was received from the respondent on 28 September 2004. A joint hearing of the claim was held on 25 January 2005. A copy of the respondent’s Bullying and Harassment Policy which was requested at the hearing was provided on 1 February 2005.
- SUMMARY OF THE COMPLAINANT’S SUBMISSION
- The complainant commenced employment as a General Sales Assistant with the respondent in or around 1997. The respondent company was taken over by Mr. D in or around 2001 and the complainant was subsequently promoted to the position of Assistant Manager.
- When the complainant was promoted to the post of Assistant Manager, he worked very long hours frequently from 7.30am to 7.30pm and usually worked six days per week. He has been subjected to unacceptable and disgusting remarks by Mr. D pertaining to his sexual orientation. The complainant was also physically and sexually harassed by Mr. D.
- The complainant has been subjected to unfair and untrue allegations by Mr. D relating to his performance at work, however, he has not been subjected to any disciplinary procedure whatever. The complainant has suffered severe stress as a result of the treatment to which he was subjected by Mr. D and was certified as unfit to work in or around January 2003. He was forced by Mr. D to return to work.
- The complainant was also harassed by Mr. D outside of the workplace including frequent telephone calls to the complainant’s phone and to the phone of his partner. On or about the 24 January 2003, he was subjected to a severe verbal assault by Mr. D. As a result of the manner in which he was treated, the complainant became extremely ill and was hospitalised.
- The complainant submitted that Mr. D made disgusting and unacceptable comments to him on a regular basis. [The complainant detailed a number of obscene remarks including various crude and explicit queries about the complainant’s supposed sexual practices and also explicit invitations to engage in various acts of sexual intercourse with the speaker.]
The complainant also submitted that when reps would arrive, the complainant would be quite embarrassed by the behaviour of Mr. D who would say things like “Oh [X] is looking for a fella.” This would be said to embarrass X and would also embarrass the representative. - In relation to the allegations of discrimination concerning the complainant’s work performance, the complainant submits the following:
The complainant was told by the employer that customers were complaining about him on a continuous basis. He was told that:- the shop was not open on time in the morning and was closed early in the evenings;
- the fruit and vegetables stand was not properly stocked;
- the products on the fruit and vegetables stand were out of date;
- the floors were not properly cleaned when they would have been cleaned.
- If the tills were ever short of money, the complainant was brought into the office and verbally abused and Mr. D was extremely aggressive towards the complainant. The complainant’s wages were reduced on a number of occasions which the complainant objected to. A number of names were displayed on a cardboard poster at one stage saying that certain monies were short and with a minus alongside the complainant’s name as well as other staff members’ names.
- On numerous occasions, the respondent verbally assaulted the complainant in the shop saying things like “It’s about time that you f…ing copped on to yourself”, “It’s about time that you better f… off and get another job for yourself.” On numerous occasions, the respondent would verbally abuse the complainant in the middle of the shop for no reason using foul and aggressive language and he would be very much in the face of the applicant.
- The complainant seeks compensation for discriminatory treatment in the course of his employment and harassment on the grounds of his sexual orientation pursuant to the Employment Equality Act, 1998.
- SUMMARY OF THE RESPONDENT ’S SUBMISSION
- In June 2000, Mr. D took over the respondent company. At that stage, the complainant was still working part time and was in school. When Mr. D took over the premises, no members of staff were replaced. The complainant, Mr. X’s work was satisfactory and he was promoted to Assistant Manager. From the very beginning, Mr. D and all members of staff were aware of Mr. X’s homosexuality.
- Assistant Manager hours are 48 hours per week which are flexible. Overtime is in addition to these hours and is optional. Mr. X did at his own request do overtime on Sunday which is double time and was paid for the overtime. In fact, Mr. X himself did up the rosters and allocated the time to himself without any complaints at that time.
- Mr. D has at no stage subjected the complainant to unacceptable and disgusting remarks pertaining to his sexual orientation. Mr. D also denies that he physically or sexually harassed the complainant. There was a lot of friendly banter between staff which in a lot of cases was instigated by the complainant. It is noted that Mr. X never made a complaint about any member of staff except for an incident with Mr. SM when Mr. X teased Mr. SM about being overweight and Mr. SM responded by making a derogatory remark about the complainant’s sexuality. Mr. D spoke to both parties and asked them to refrain from that type of behaviour. Mr. D submits that he had to speak to the complainant more than once as he openly spoke to other employees in the shop about sex.
- It is denied by Mr. D that he subjected the complainant to unfair and untrue allegations relating to his performance at work. Mr. D was however, obliged to warn the complainant verbally on a number of occasions regarding excessive use of the company telephone line.
- Mr. D denies that he treated the complainant in such a way as to cause him to suffer severe stress. During 2002, Mr. X was out sick for a fortnight due to stress because apparently he wanted to tell his mother that he was gay and did not know how to handle it. He spoke to Mr. D about the matter and Mr. D spoke to Mr. X’s mother and advised her that her son had something to tell her. The complainant subsequently told his mother about his sexuality and returned to work. It is noted that the complainant was out sick in January 2003 but he was not forced to return to work. In fact, his doctor certified him as being well but then the complainant subsequently handed in his notice.
- Mr. D denies that he harassed the complainant outside of the work place and never rang the complainant’s mobile number at all. When at the end of October/early November, Mr. D received an unusually large telephone bill in the amount of €457.91, he noted that there were a lot of calls to a particular mobile number. Mr. D phoned the mobile number to ascertain details of the number i.e. whether it was work related or not. It transpired that the number was the number of the complainant’s partner but Mr. D was unaware of that and in fact never spoke to the complainant’s partner.
- Mr. D did not subject the complainant to a severe verbal assault on 24 January 2003. Two weeks prior to 24 January 2003, the complainant handed in his notice to Mr. D. Subsequently on 24 January which was the day he was due to leave, he approached Mr. D and told him that he had changed his mind and was not leaving. Mr. D advised him that he had already taken on somebody else and that he could not retract his notice at that late stage. In fact, Mr. D was aware that there were personal difficulties in the complainant’s life as his partner who lived in a city some distance away had finished the relationship with the complainant at the New Year and the complainant was extremely upset by this. It appears that the complainant became ill as a result of these personal difficulties and not as a result of any treatment in work.
- In relation to the allegation that Mr. D made comments to the sales representatives, the respondent denies making any such comments to them and submits that the complainant himself would flirt with the sales reps in an obvious manner. There were complaints from customers in relation to Mr. X, in particular, that on a Sunday when he was in charge, he would not be bothered going out the back to get a cylinder of gas for a customer but would tell them that there was no gas available. Mr. D never made the complaints to Mr. X or anyone else.
- One of the main parts of the complainant’s jobs was that he was fully responsible for the fruit and vegetables stand. This would include checking the sell by date on the fruit and vegetables and if necessary, putting certain items on special offer. If fruit and vegetables were thrown out, Mr. D may have asked the complainant why the items were thrown out. In this regard, the complainant was not treated any differently from any other member of staff.
- Mr. D may have asked once or twice about staff taking time off but he would not have harassed the complainant about it. Mr. D spoke to the complainant about personal calls being made on the premises as the complainant was spending a disproportionate amount of time on the phone or on some occasions could not be found when on duty. Mr. D gave the complainant a number of verbal warnings.
- On two occasions, Mr. X left the safe open and Mr. D pointed this out to him and asked him to ensure it did not happen again. As is normal with supermarkets, all till operators are responsible for their own till. The poster referred to was put up in the kitchen with the till numbers and the amount that the tills were short. The till operators are expected to make up the till shortfall if the till is short. All staff is treated in the same way to ensure that staff take care not to make mistakes. The respondent denies that the complainant was verbally abused or that he was aggressive to the complainant in relation to this matter.
- It is a normal part of a Trainee Manager’s duty that he supervises the cleaning of floors and makes sure that they are properly cleaned by instructing the floor staff to attend to it. If the work was not done, it would be normal procedure for the respondent to point this out to the complainant.
- The respondent never abused the complainant. Like any other employer, Mr. D would occasionally have to speak to the complainant about matters which were his responsibility. In fact, the complainant, on a few occasions, told Mr. D to his face that he was looking for another job and was considering applying to another supermarket or to be an Air Steward.
- CONCLUSIONS OF THE EQUALITY OFFICER
- In this case, the complainant alleges that the respondent directly discriminated against him and harassed him on the sexual orientation ground. Harassment within the meaning of section 32 of the Act amounts to discrimination in relation to an employees conditions of employment. I will consider whether the respondent directly discriminated against the complainant on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 and in contravention of sections 8 and 32 of the Act in relation to his conditions of employment. I must consider whether the complainant was treated less favourably than other employees on the sexual orientation ground and I must consider whether the complainant was harassed on the sexual orientation ground. If I find that the complainant was discriminated against and/or harassed, I must then consider whether the complainant’s employer is vicariously liable for the discrimination/harassment and in the event that it is liable, consider as a defence whether the respondent took reasonable action to prevent the discrimination/harassment occurring in the workplace. 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.
- Establishing a prima facie case
The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 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. - More recently, 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 infringed2.” - I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the sexual orientation ground. 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:
(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”), - Part IV of the Employment Equality Act, 1998 deals, inter alia, with harassment on eight different grounds. 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. Section 32(1) provides, inter alia, that where an individual (E) harasses another employee (C) by reference to the relevant characteristic of C, i.e. on one of the grounds, 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. 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 is clearly the effect and intention of the Employment Equality Act, 1998 that employees are entitled to expect freedom from being harassed at work on the sexual orientation ground by gestures, words and written material. - The complainant submitted that he was employed by the respondent company since in or around 1997. The respondent company was taken over by Mr. D subsequently. Mr. D in his written submission stated that he took over the company in or around June 2000 (August 2000 submitted in evidence by Mr. D at the hearing) and that at that time, the complainant was still in school and was working part-time on the floor doing duties such as packing potatoes and sweeping the floor. Mr. D subsequently clarified in writing that he took over the running of the foodstore in August 2000. He also subsequently clarified in writing that the complainant commenced full time employment on a permanent basis when he left school at “the end of May/early July 2001” and that he was promoted to the position of Assistant Manager almost immediately on commencing permanent full time employment in 2001. On the referral form submitted by the complainant to the Tribunal, the date of the first occurrence of the discriminatory act is stated to be August 2001 approximately. At the hearing, the complainant submitted that the first occurrence of the alleged discriminatory acts were after he took over the management role which according to the evidence given by both sides was in the period May - August 2001 approximately. The complainant left the employment of the respondent in January 2003.
- In oral evidence at the hearing, the complainant submitted that physical harassment such as touching started first, then verbal harassment in relation to his sexual orientation and then comments about his work performance. Later in evidence, he submitted that the verbal harassment in relation to his sexual orientation commenced first, then physical harassment (such as Mr. D rubbing his crotch against his, touching his crotch with his hands and grabbing his buttocks with his hands) and then comments in relation to his work performance. The details of the physical harassment were not submitted to the Tribunal in the complainant’s written submission of 22 April 2004 or 20 May 2004. The complainant submitted that everything was okay at the beginning of his employment and that the discrimination including harassment commenced shortly after he took over the management role. In the complainant’s written submission, the complainant stated that “On numerous occasions the respondent would verbally abuse the Applicant in the middle of the shop for no reason using foul and aggressive language and he would be very much in the fact of the Applicant.” At the hearing, the complainant submitted that the verbal harassment took place in the shop and that the physical and sexual harassment took place on the shop floor, in the office and in the back stores. Mr. D denies the complainant’s allegations of discrimination and harassment on the sexual orientation ground. At the relevant time, approximately 34 people were employed by the respondent company. In relation to the places where the discrimination and harassment was alleged to have occurred, such as the shop floor, the office and the store room, I note that one of the places (the shop floor) where the verbal and physical harassment were alleged to have occurred is quite a public place and in relation to the office, a person worked there on a full time basis. Whilst verbal harassment in relation to the complainant’s sexual orientation and work performance might be less easily discernible in a public place, physical harassment as submitted by the complainant such as touching the complainant’s buttocks and rubbing his crotch against the complainant by the effective owner of the store would have been more difficult to conceal and it was not submitted that the physical harassment only occurred in the store room. Additionally, a person was employed as a store man with responsibility for orders and deliveries though he submitted in evidence that he moved around the store as required.
- At the hearing, the complainant submitted that there were witnesses to the harassment and he named a number of witnesses, yet, he did not call any witnesses in support of his claim. The complainant submitted in evidence at the hearing that everything was okay at the beginning of his employment and the discrimination including harassment started shortly after he took over the management role. It is therefore, the complainant’s contention that the alleged discrimination by Mr. D in relation to his sexual orientation commenced only after his promotion by Mr. D to Assistant Manager, approximately a year after the respondent took over the running of the store. The respondent submitted that prior to the complainant’s promotion, his work performance was satisfactory and that on his promotion to a managerial position, problems arose which he did on occasion raise with the complainant. The complainant submitted that Mr. D made a lot of remarks about him not doing his work properly. The respondent acknowledged that he did on occasion speak to the complainant about particular aspects of his performance after his promotion to Assistant Manager. In his written submission to the Tribunal, the complainant submitted that if the tills were ever short of money, the complainant was “brought into the office and verbally abused and the Respondent was extremely aggressive towards the Applicant. In fact the Applicant’s wages were reduced by the shortfalls on a number of occasions which the Applicant objected to. A number of names were displayed on a cardboard poster at one stage saying that certain monies were short and with a minus alongside the applicants as well as other staff members names.”
The complainant has shown that he was treated in the same manner as other employees regarding till shortages. It is not my function to consider the manner in which work performance issues may have been raised by Mr. D with the complainant and other employees, my function being to determine whether the complainant was discriminated against and/or harassed on the sexual orientation ground. I have considered the evidence as a whole in relation to the allegations concerning the complainant’s work performance and I am not satisfied that the complainant has shown that he was less favourably treated on the sexual orientation ground in relation to his work performance. - I note that a number of the comments/questions that the complainant alleges were put to him relate to sexual intercourse generally. As referred to at paragraph 5.5 above, section 32(5) refers to harassment by reference to the relevant characteristic of C, i.e. on one of the grounds, in this case, the sexual orientation ground. Even if I were satisfied that the complainant has proved his case that the comments were made to him, which I am not, I consider that a further issue would arise in relation to whether the comments could reasonably be regarded, in relation to the relevant characteristic of the complainant (i.e., his sexual orientation rather than on the gender ground) as offensive, humiliating or intimidating to him. Similarly, I am not satisfied that the complainant has proved his claim of physical harassment. I have considered the totality of the evidence submitted by the complainant and on the balance of probabilities, I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation ground.
- Employer’s Defence
As I have not found that the complainant has established aprima facie case of discrimination on the sexual orientation ground, it is not necessary for me to consider the issue of vicarious liability or the issue of a defence. The 1998 Act clearly expects that employers will take particular measures to ensure that employees are not harassed at work based on any of the protected grounds, along the lines of the measures clearly set out in existing case law of Equality Officers, the Labour Court and Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002 (S.I No. 78 of 2002). The respondent submitted a copy of its Policy on Bullying and Harassment which it stated was in existence at the relevant time. The complainant submitted that he was not aware of any such policy and that he never had sight of such policy during his employment. The policy in question, whilst it refers to the nine grounds of discrimination does not refer specifically to the Employment Equality Act, 1998 and its definition of harassment is not consistent with the definition contained in the Act. In the present case, if it was necessary for me to consider the issue of a defence, an issue could arise in relation to whether the respondent had taken steps which were reasonably practicable to prevent harassment in the workplace. Of course, the existence of a policy on harassment in itself is not sufficient to prevent harassment in the workplace and effective communication of the policy should also take place.
- DECISION
- On the basis of the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 contrary to sections 8 and 32 of the Act in relation to his conditions of employment.
Mary Rogerson,
Equality Officer,
11 May 2005
1DEE011 15 February 2001,
2Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003