Employment Equality Act, 1998 Sections 6, 8, 23, 32 and 74(2) - Employment - Discriminatory Treatment - Harassment - Gender - Age - Victimisation
Background:
The complainant was employed in the respondent organisation for a considerable length of time. She witnessed the take over of the business by Mr. Ward in May, 2003. It is her contention that, following the take over of the business by Mr. Ward, she was subjected to discriminatory treatment and harassment on the grounds of her gender and her age in accordance with the relevant Sections of the Employment Equality Act, 1998. She also alleges that she was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act. The respondent denies these allegations.
Conclusions and Decision:
The Equality Officer held that the complainant was not discriminated against on the grounds of gender or age in accordance with Sections 6(1), 6(2)(a) and 6(2)(f) of the Employment Equality Act, 1998. The Equality Officer found that there was no evidence that the complainant was treated less favourably because of her gender in terms of Section 23 of the 1998 Act. The Equality Officer further held that the complainant was not subjected to harassment on the grounds of age within the meaning of Section 32 of the 1998 Act. It was the Equality Officer's finding that the complainant was not subjected to victimisation in terms of Section 74(2) of the Employment Equality Act, 1998.
1. DISPUTE
1.1 The dispute concerns a claim by Ms. Reynolds against Hunters Pharmacy that she has been subjected to discrimination and harassment on the grounds of gender and age within the meaning of Sections 6(1), 6(2)(a) and 6(2)(f) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act. The complainant further alleges that she was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act.
2. BACKGROUND
2.1 The complainant was employed in the respondent organisation for a considerable length of time. She witnessed the take over of the business by Mr. Ward in May, 2003. It is her contention that, following the take over of the business by Mr. Ward, she was subjected to discriminatory treatment and harassment on the grounds of her gender and her age in accordance with the relevant Sections of the Employment Equality Act, 1998. She also alleges that she was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act. The respondent denies these allegations.
2.2 Consequently the complainant referred her complaint of discriminatory treatment, harassment and victimisation to the Director of Equality Investigations on 24th June, 2004 under the provisions of the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 3rd March, 2005 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 3rd November, 2005. Additional information was received from the parties and the final information was received on 16th December, 2005.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant was employed as a pharmacy assistant on a permanent part-time basis at Hunters Pharmacy in Sligo. She held this position for twelve years and is no longer working with the respondent. According to the complainant in June, 2003 the proprietor of the aforementioned pharmacy (Mr. Hunter) sold the business to Mr. Ward who took possession of the premises soon thereafter.
3.2 The complainant says that during his first address to the staff members in June, 2003 Mr. Ward (hereinafter referred to as the respondent) spoke directly to the complainant. He asked her what she could contribute to the business and in response to this she outlined all her relevant experience and training which she had received throughout the duration of her employment in the pharmacy trade. It is the complainant's submission that the respondent was surprisingly dismissive of her expertise and he subsequently informed her that he had employed a young girl 'off the streets' in another store and had trained her fully in one week. The complainant states that she was quite upset by this reference to age and considered that it was intended to undermine her and fuel the suggestion that a younger employee with little or no experience would be more competent and better suited to the job.
3.3 Prior to the transfer of undertakings the complainant undertook the following tasks namely:
- Purchase of stock
- Organisation of in-store displays
- Window dressing
- Dealing with company representatives
- Assisting in the dispensary area
It is the complainant's contention that, after the transfer of undertakings, her job description was drastically altered. In or around December, 2003 the complainant decorated the front window of the shop and the shop floor in preparation for the Christmas festivities. The following day a young member of staff from another of the respondent's pharmacies arrived to decorate the shop window and the shop floor. According to the complainant she approached the respondent to know why this work was being re-done. It is the complainant's submission that the respondent challenged her about her behaviour and claimed that she had no respect for management. The complainant says that she was taken aback by this attitude as she had only asked a question and had intended no disrespect.
3.4 After Christmas, 2003 the complainant states that the respondent sacked a female colleague. As a consequence of this the complainant says that she was invited by the respondent to give an honest opinion on the dismissal and she stated that she considered that the person had been unfairly sacked. According to the complainant the respondent reacted quite aggressively to her comment and told her that it was not her job to stand up for or support this person who had been dismissed. As a result the complainant says that she was put on a probationary period which meant that all her previous duties were suspended. It is the complainant's submission that she was told not to touch or rearrange anything in the shop. According to the complainant she became very emotional and asked the respondent what she had done to deserve this but was told that she did not have to be given a response to that question.
3.5 Since this incident the complainant has felt that she is under constant surveillance at work. It was her impression that the respondent was constantly checking on her for reasons to dismiss her. Her duties in the shop diminished and she was afraid to touch anything in case she was reprimanded. As there were no proper grievance procedures in place the complainant could speak to no-one about the increasing levels of stress and discomfort she was experiencing at work. The complainant says that on one occasion she asked the pharmacy manager to help her to cope with her predicament and she was accused of insubordination.
3.6 The complainant says that on 13th May, 2003 the respondent brought her to the tearoom where the pharmacy manager was present. She was informed that gifts included with purchases from manufacturers had gone missing and she was asked if she had taken them. According to the complainant she was told that all staff were been queried in this regard but she knows that this was not the case and she was specifically singled out for this line of questioning. It is the complainant's submission that the respondent proceeded to shout loudly at her, then gave her a verbal warning and asked her if she understood. The complainant says that the respondent claimed that she was disrespectful to management, disruptive and that she was damaging morale amongst the younger members of staff. According to the complainant the respondent then started to roar loudly at her and became so aggressive that she feared for her safety. The complainant says that she became so upset that she began to cry and lost her composure entirely. It is the complainant's submission that she felt humiliated and devalued. The complainant says that the respondent then shared a joke with the pharmacy manager and they both laughed.
3.7 The complainant states that following the incident outlined in paragraph 3.6 above she returned to work and continued to be in a gravely distressed condition. She states that she proceeded to carry boxes from the upstairs section of the shop down to the shop floor. However due to a fault with the carpet on the stairs she tripped and fell back against the protruding doorway. The complainant says that she picked herself up and went back upstairs but collapsed as a result of the stress and anxiety that she had experienced that day. The complainant was taken home by her husband who was called.
3.8 The complainant says that since this time she has been unable to return to work as she is simply too afraid to do so. It is her contention that since the transfer of Hunters Pharmacy the respondent has implemented an un-stated policy of getting rid of older staff and her working life was made impossible with the constant bullying, harassment and victimisation making her life a nightmare.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent notes that the complainant worked at Hunter's Pharmacy for a number of years prior to its takeover by the present owner (Mr. Ward). She worked approximately 24 hours a week (three days) and continued post take-over in the same vein. The take-over took place in or around the end of May, 2003 and the respondent denies that the complainant was spoken to on an individual basis. The respondent did speak to all staff and to staff individually and did not single out any employee on account of their age or for any reason whatsoever nor was their any reason to do so. All employees were informed that their status would remain the same and if any of them had any problems they could approach the respondent directly. According to the respondent the staff were told that they were to continue the business as before and to run it in the same manner. The respondent says that there was no reason to single out the complainant and she was not so singled out. It is the respondent's submission that the complainant had no supervisory roll at the time of the take-over whatsoever and the respondent praised the complainant on a number of occasions concerning her experience.
4.2 The respondent states that approximately one month before Christmas the complainant was told that an employee from the Longford pharmacy would be coming to do the Christmas window display at the Sligo pharmacy (i.e. formerly Hunters) and she did not express any problem with this. The complainant was told to contact the person in the Longford pharmacy to arrange a day when she could come. According to the respondent a day was fixed and then the complainant rang the person to cancel the agreed day and re-arrange it for the following week. The person from the Longford pharmacy arrived as arranged the following week and the complainant told her to leave as she had already done the Christmas display in the window. According to the respondent the complainant was extremely rude to the person from the Longford pharmacy and this person then contacted the respondent from Sligo in a very upset state. This person felt that the complainant had bullied her, treated her in a rude and boorish manner and without civility. The respondent then contacted the complainant to enquire as to the situation and the complainant was told to let the person from the Longford pharmacy complete the window display without any further hindrance or interruption. Some days later the respondent enquired of the complainant about the incident and she indicated that she had not intended to upset the person from the Longford pharmacy. The respondent says that the matter was left at that.
4.3 The respondent denies that it ever discussed the issue of another staff member (referred to at paragraph 3.4 above) with the complainant. It is the respondent's further submission that the complainant was not asked for her opinion on the matter. She was not put on probation nor was her duties suspended as alleged. According to the respondent the issue with this staff member had nothing to so with the complainant and the respondent contends that the complainant is endeavouring to make a spurious connection for her own ends.
4.4 The respondent notes the complainant allegation that she was told not to touch or re-arrange anything in the pharmacy. According to the respondent employees from the pharmacies in Longford and Carrickmacross were brought to the Sligo pharmacy on a number of occasions to re-arrange the stock between the Autumn of 2003 and early 2004. It is the respondent's submission that this was a legitimate exercise but the complainant would re-arrange the displays back to the old system after the others had left. It was because of the complainant's actions that the respondent instructed her not to interfere with the displays. The respondent denies that it put the complainant on probation or suspended her from duties as a result of this.
4.5 The respondent denies that the complainant was being monitored in order to build up reasons to dismiss her or indeed that her duties in the pharmacy became less and less. It is the respondent's submission that staff were encouraged to approach the owner about problems if they arose and to do so in a civilised manner. According to the respondent the complainant never did so nor did she set out any of her complaints in writing and she did not approach the pharmacist in control about any matter. The respondent notes that no other member of staff ever commented that the complainant had a problem and the respondent was unaware of any problem that the complainant might have (real or imagined). It is the respondent's submission that he never accused the complainant of insubordination and to his knowledge the pharmacy manager also did not accuse her of such.
4.6 In relation to the incident alleged to have taken place on 30th May, 2003 the respondent states that free cosmetic bags were supplied by the suppliers of the cosmetics to the pharmacy shop. The purpose of this was in selling a particular brand of perfume the customer would get a free bag. The respondent became aware from computer records that a number of these bags were unaccounted for and were not given out as intended and in accordance with the purpose for which they were supplied. Accordingly the respondent met with all staff members to establish what they knew about the situation. No member of staff was accused of any misdemeanour or misconduct, either singularly or collectively. The respondent only wished to establish what had happened to these bags. It is the respondent's submission that the complainant was not singled out, she was not accused of taking the bags and she was not shouted at, as alleged. According to the respondent the complainant herself became aggressive towards the respondent and threatened to "bring somebody in to sort him out". As a result of her outburst the respondent gave her a verbal warning in relation to her unreasonable and unjustifiable behaviour. The respondent's recollection is that the complainant was not crying. According to the respondent no jokes were made with the pharmacy manager as this was not a laughing matter and was not treated as such.
4.7 In relation to the complainant's alleged fall on the stairs of the pharmacy the respondent notes that the complainant has issued separate proceedings in this matter and as these proceedings are ongoing the respondent contends that they are sub judice and that it is a matter for the Courts to determine whether there was any negligence, breach of duty or breach of statutory duty as alleged in those proceedings. It is the respondent's argument that this incident is a separate and distinct matter, having nothing to do with the alleged discrimination. According to the respondent the complainant went to her legal representative after she fell down the stairs and proceedings were issued before the Courts in the ordinary way. The respondent states that it was because of this that the complainant did not return to work and any loss of earnings will be incorporated in her claim before the Courts and dealt with in that forum. According to the respondent the complainant also took an action for alleged unfair dismissal and this matter is settled subject to an outstanding matter in relation to pensions being clarified by the Accountant.
4.8 The respondent submits that the complainant has failed to make out a claim of alleged age discrimination in her submission. According to the respondent another employee at the pharmacy in Sligo (at the same time the complainant was employed there) was a female in her fifties. This employee approached the respondent stating her intention to resign as she was being persistently bullied by the complainant. While the respondent tried to encourage her to stay she indicated that she had made up her mind and wished to leave straight away. In 2004 when this (now) ex-employee heard that the complainant had left the employment of the respondent organisation she contacted the respondent and asked if she could have her job back. She was immediately re-engaged and is now working in the respondent organisation on a full-time basis. The respondent notes that he has in his employment in other pharmacies persons who are over the age of fifty namely one person in his Longford pharmacy, one person in his pharmacy in Carrickmacross and a person in her seventies in his pharmacy in Ballina. It is the respondent's contention that employees are not discriminated against on the grounds of their age.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against and harassed by the respondent on the grounds of gender and age within the meaning of Sections 6(1), 6(2)(a), 6(2)(f), 23 and 32 of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act. I must also decide if the complainant was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 The complainant alleges that she was discriminated against on the grounds of gender in terms of Sections 6(1) and 6(2)(a) of the Employment Equality Act, 1998. At the hearing of this claim the complainant stated that it was her perception that she was treated less favourably by the respondent because she is female. The respondent organisation in Sligo is a pharmacy which traditionally has a female workforce. The respondent has a number of pharmacies in Longford, Ballina, Sligo and Monaghan. He employs a total of 50 staff, 48 of whom are female and 2 are male who work locum. There is no evidence that the respondent treats the complainant less favourably on the grounds of her gender. In this regard I find that the complainant has failed to establish a prima facie claim of discrimination on the grounds of gender.
5.3 The complainant alleges that she was subjected to discriminatory treatment on the grounds of age contrary to Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998. In this regard the complainant alleges that, on taking over the business, her role was diminished with many tasks, previously undertaken by her, now being undertaken by others who were younger than her. For example the complainant always did the shop window display at Christmas. However the first Christmas after the respondent (Mr. Ward) took over the shop this task as assigned to a female staff member from the Longford pharmacy and this person was younger than the complainant. The complainant states that staff from other pharmacies belonging to the respondent came on occasion to Sligo and stocked the shelves, a task which she had done previously. It is an accepted and acknowledged fact that staff from other pharmacies were sent by the respondent to re-stock shelves and to do the Christmas shop window display. These staff members were younger than the complainant. However there is no evidence that the reason for this related to age. The complainant was charged with the ordering of stock. According to the complainant the amount of stock ordered diminished after the business was taken over by the respondent with stock coming from other pharmacies run by him. This reduction in the ordering of stock had an impact on the complainant's work level in this regard but I am satisfied that the complainant's age was not a factor in the reduction of her workload.
5.4 The complainant alleges that she was subjected to harassment on the grounds of gender and age. Under the Employment Equality Act, 1998 an allegation of harassment on the grounds of gender is covered by Section 23 of the Act. I am satisfied that there is no evidence that the complainant was treated less favourably by the respondent because of her gender.
5.5 In relation to harassment on the grounds of age in accordance with Section 32 of the Employment Equality Act, 1998 I note that the complainant alleges that she was harassed by the respondent because of her age. In this regard the complainant makes a number of allegations as follows:
(a) The respondent referred to the complainant's age by being dismissive of her experience during the initial talk he had with staff after taking over the business. It is her contention that he singled her out during this meeting with staff.
(b) After the decoration of the shop window for Christmas incident the complainant alleges that the respondent challenged her with regard to her behaviour and claimed that she had no respect for management.
(c) It is the complainant's contention that after Christmas, 2003 the respondent asked her for her opinion on the dismissal of another member of staff. When she stated her opinion that this member of staff had been unfairly dismissed the complainant alleges that the respondent became aggressive and placed her on probation suspending all her previous duties.
(d) The complainant alleges that, since the incident at (c) above she was under constant surveillance, her duties diminished and on one occasion she was accused of insubordination when she queried the pharmacy manager about why her work was being re-checked or re-done.
(e) It is the complainant's contention that on 13th May, 2004 she was singled out by the respondent to be questioned about missing gifts included with purchases from manufacturers. According to the complainant the respondent shouted at her and gave her a verbal warning. She alleges that the respondent claimed that she was disrespectful towards management, disruptive and damaging morale among younger members of staff.
I note that the respondent has denied these allegations. According to the respondent he did not single out the complainant at his initial meeting with staff. Rather he spoke with all staff together and separately in an effort to re-assure them that their jobs would continue as before. It is the respondent's submission that he complimented the complainant on her level of experience. The respondent denies asking for the complainant's opinion on the dismissal of another staff member or indeed that he placed her on probation, suspending all her duties. According to the respondent he denies accusing the complainant of insubordination. In relation to the incident on 13th May, 2004 the respondent says that he spoke with all staff about the missing gifts (not just the complainant). He denies shouting at the complainant. According to the respondent the main purpose of the meeting with the complainant on 13th May, 2004 was to attempt to resolve a conflict of interest/personality clash between the complainant and the pharmacy manager and the issue of the gifts was not the priority.
5.6 I note that the complainant has made a number of allegations of harassment by the respondent on the grounds of age. These allegations have all been denied by the respondent. In cases where there is a serious conflict in the evidence from both parties it must be decided, on the balance of probabilities, which version of events is more credible.
5.7 At the hearing of this claim the complainant was accompanied by two witnesses and in my opinion neither could lend any credibility to her allegations. One of the witnesses had brought an action against the respondent for dismissal. This person was not in the employment of the respondent organisation to witness the alleged incident of 13th May, 2004. She said that it was her impression that the complainant's role in the organisation had changed. In relation to the initial meeting with staff this witness did not confirm that the respondent had specifically singled out the complainant. She did say that there was a discussion about experience. I note that this witness did say that, with the change in ownership of the business, all staff endeavoured to make a good impression but it was more difficult than before as the respondent was not always present hence there was not always direct guidance. The second witness accompanying the complainant commenced employment with the respondent in April/May, 2004 (she was unsure of exactly when she commenced employment). For her first month this witness was employed on a part-time basis working any day of the week as required. Her work in the respondent organisation overlapped with the complainant for about one month. In her evidence this witness said that she had no recollection of any incident regarding gifts and she stated that she got on well with the complainant.
5.8 The respondent also had two witnesses at the hearing of this claim. One of the witnesses was the pharmacy manager who was in the respondent's employment from January, 2003 to September, 2005. It was her evidence that the work did not change following the takeover by the respondent. There was a reduction of about 30% in the ordering levels as stock came from other pharmacies and staff from other pharmacies owned by the respondent did come, from time to time, to stock shelves. According to the pharmacy manager the meeting on 13th May, 2004 took place between 10.30a.m. and 11.00a.m. that morning. The respondent asked the complainant why she was not talking to the pharmacy manager and pointed out the need for staff to work together. It is the pharmacy manager's contention that the respondent was talking to the complainant but that she (the complainant) was shouting back at him. The pharmacy manager denies that the respondent and herself shared a joke during this meeting and she says that at the end of the meeting the complainant may have been crying. I note that the respondent, in his evidence, said that he had no recollection of the complainant crying. The other witness for the respondent was a lady who had been employed in the respondent organisation prior to and post the business takeover by the respondent (September, 2002 to September, 2003). According to this witness she had a good working relationship with the complainant. However after the respondent took over the business the complainant stopped talking to her and was not friendly. This witness said that the complainant endeavoured to take over the running of the place and if a staff member did not do what the complainant wanted then there would be an atmosphere. This witness said that she left the respondent organisation because of the atmosphere created by the complainant. When she heard that the complainant had left the respondent organisation she contacted the respondent organisation to see if she could get her job back and she returned to work there in September, 2004. I note that the complainant alleged that the reason for this person leaving was because, with her income, her son would not get a grant to go to College. This witness denies that her decision to leave the respondent organisation had anything to do with her son going to College.
5.9 In relation to the two witnesses with the complainant I note that one witness was unable to provide any clarity to the allegations as she was employed in the respondent organisation for such a short period of time before the complainant left. The other witness could not be considered as credible as she had her own difficulties with the respondent which resulted in her dismissal. The respondent also had two witnesses. I note that there were difficulties between the complainant and one of the witnesses (the pharmacy manager) and for that reason her evidence could not be considered as credible. The other witness, a lady of a similar age to the complainant, claimed that she left the employment of the respondent organisation because of the treatment she received at the hands of the complainant and she returned to full-time employment in the respondent organisation after the complainant left. It is the complainant's submission that this witness left because her income would militate against her son getting a grant from College. I find it difficult to accept that this lady would be forced to leave employment so that her son could get a means-tested grant for College in a situation where this lady is a single mother without any other income support. In these circumstances I find the evidence from this witness to be credible.
5.10 On the basis of the above I am satisfied that the complainant's own behaviour did cause problems within the respondent organisation. With the conflicting evidence it is difficult to determine if the complainant was subjected to harassment as alleged. However even if she was subjected to harassment by the respondent I am not satisfied that the harassment was related to her age. I note that the respondent has a number of older employees in his employment. There is evidence that the respondent has accommodated older employees e.g. one of his older employees transferred to another of his pharmacies because the location suited her better. In the circumstances I find that the complainant was not subjected to harassment on the grounds of her age as alleged.
5.11 The complainant alleged that she was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act. At the hearing of this claim the complainant stated that she was subjected to maltreatment on the grounds of gender and age. She said that after making comments to management she was subjected to special treatment thereafter. The respondent has denied the allegation. Having examined all of the evidence I am not satisfied that the complainant was subjected to victimisation as alleged.
5.12 Where a case has to be determined on the balance of probabilities the accuracy of the information from the parties is important. In that regard I note that the complainant in her original statement in her case to the High Court said that the incident on 13th May, 2004 took place in the afternoon whereas at the hearing in this claim both parties said that it took place in the morning of that day.
6. DECISION
6.1 In view of the foregoing I find that Ms. Reynolds was not discriminated against by Hunters Pharmacy on the grounds of gender and age within the meaning of Sections 6(1), 6(2)(a) and 6(2)(f) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
6.2 I further find that Ms. Reynolds did not refer a claim of sexual harassment within the meaning of Section 23 of the Employment Equality Act, 1998. I also find that Ms. Reynolds was not subjected to harassment by Hunters Pharmacy on the grounds of age in terms of Section 32 of the Employment Equality Act, 1998.
6.3 It is my finding that Ms. Reynolds was not subjected to victimisation by Hunters Pharmacy as alleged within the meaning of Section 74(2) of the Employment Equality Act, 1998.
______________________
Gerardine Coyle
Equality Officer
28th April, 2006