DEC-E2005-023 Full Case Report

Ms A (Represented by IMPACT) AND A Health Board

1. DISPUTE
   1. This dispute concerns a claim by a complainant that she was victimised by her employer contrary to the provisions of the Employment Equality Act 1998 when she complained that she had been sexually harassed by a work colleague.
   2. IMPACT, on behalf of the complainant, referred a claim of sexual harassment to the Director of the Equality Tribunal on 18 July 2002 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director delegated the case on 9 September 2002 to Anne-Marie Lynch, 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. The victimisation claim was referred on 3 November 2003, while the sexual harassment claim was being investigated. Submissions were sought from both parties and a joint hearing of both claims was held on 23 July 2004. Subsequent correspondence with the parties concluded on 19 August 2004. A decision on the sexual harassment claim issued on 14 March 2005 (DEC-E2005-016), but omitted to make a formal finding on the victimisation claim. An Equality Officer investigating a claim under the 1998 Act is obliged by the provisions of section 79 (6) to issue a decision which, under section 88, shall be in writing. The purpose of this decision is to correct that omission.
      
2. SUMMARY OF THE COMPLAINANT’S CASE
   1. The complainant commenced employment with the respondent as a general operative in May 1998. She said that she was initially subjected to groping and inappropriate physical contact by a work colleague, Mr B. She said that these acts were witnessed on a number of occasions by her supervisor, Mr C, and could be corroborated by colleagues, Mr D and Mr E. From February 2001 onwards, the complainant alleged that she was subjected to ongoing discriminatory treatment and sexual harassment which included continuous verbal abuse involving sexual swear words by Mr B.
   2. The complainant's representative union said that in October 2003 another union representative had approached local manager Mr G regarding negotiations concerning the work location of Mr D and Mr E, co-workers of the complainant who were acting as her witnesses. Mr G had written to that union representative, referring to the complainant's claim, and saying that "We therefore consider it prudent to await the outcome of this case, before conducting the review." The complainant's union representative contended that this represented an attempt to interfere with and potentially prejudice the investigation and the contributions of the complainant's witnesses. She said that, furthermore, it represented an attempt to isolate the complainant from her colleagues and constituted victimisation in terms of section 74 (2) of the Act.
      
3. SUMMARY OF THE RESPONDENT’S CASE
   1. The respondent rejected the allegation of victimisation. It said that the attempt to link negotiations and discussions with a different union to the complaint being investigated was disingenuous and without any substance or foundation. It said it did not engage in recriminations of this kind and it took serious exception to any such implication, suggestion or inference. It said that as an organisation its stated policy was to value, care for and support its staff as its greatest and most important resource.
   2. The respondent said that the review referred to was the implementation of the recommendations of the report into the complainant's earlier bullying complaint (described in detail in DEC-E2005-016). It was felt by local management that to proceed with the review during the investigation of the sexual harassment complaint, which involved the same work location and staff members, may be seen as attempting to influence the outcome of the second complaint. It said further that other ongoing difficulties at the work location, which was described as "unmanageable", led to local management being reluctant to deal with problems that arose. In the circumstances, it was seen as preferable to await the conclusions of the Equality Officer and then implement all relevant proposals.
      
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
   1. In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
   2. The complainant alleged that the respondent victimised her contrary to the provisions of the Employment Equality Act 1998 in that when it declined to carry out a review of her former work location during the investigation of her complaint of sexual harassment. Section 74 of the Act provides
      (2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
      (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
      (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
      (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
      (d) given notice of an intention to do anything within paragraphs
      (a) to (c).
   3. It should be noted that the review to be carried out, on foot of the recommendations of the investigator of the complainant's bullying complaint, was of the work location where the complainant was assigned at the time of both her bullying and sexual harassment complaints. Prior to the postponement of the review, she had been transferred to another location. The postponement, therefore, had no direct impact on her. Insofar as it may have had an impact on her witnesses, who continued to be assigned to the original work location, such consequences are not prohibited by the 1998 Act. Section 74 (2) of the Equality Act 2004, which amended the 1998 Act, extended protection from victimisation to employees who represent, support or act as witnesses for complainants. The 1998 Act only provided such protection to complainants.
   4. The complainant's union asserted that the postponement of the review was an attempt to isolate the complainant from her witnesses, presumably with the consequence of having them decline to give evidence on her behalf. This did not happen, both of them appearing at the hearing. No evidence was adduced that any direct attempt was made to dissuade the witnesses from attendance.
   5. The unsatisfactory working relationships at the work location were detailed in DEC-E2005-016. Having considered all of the evidence it is clear that the reason local management decided to postpone the review was because of its inability or unwillingness to deal with an "unmanageable" situation. All problems were immediately referred to headquarters or otherwise passed on for determination elsewhere. I am satisfied that the postponement was caused by a desire to have outstanding issues dealt with by the Equality Tribunal and was not intended as a method of penalising the complainant.
      
5. DECISION
   1. Based on the foregoing, I find that the respondent did not victimise the complainant, in contravention of section 74 of the 1998 Act.