The Employment Equality Acts 1998 and 2004
Decision No:
DEC-E2006-063
Walsh
(unrepresented)
-v-
Waterford Institute of Technology
(represented by Arthur Cox Solicitors)
File No: EE/2004/262 Date of issue: 19 December 2006
1. CLAIM
1.1 The case concerns a claim by Ms. Kathleen Moore Walsh that Waterford Institute of Technology directly discriminated against her on the gender and race grounds in terms of section 6(2)(a) and (h) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts in her conditions of employment. The complainant also alleges that she was victimised within the meaning of section 74(2) of the Acts.
2. BACKGROUND
The complainant alleges that she was discriminated against on the gender and/or race grounds when she was treated considerably less favourably than an Irish male lecturer who made a comparable bullying complaint. The complainant also alleges, inter alia, that she suffered victimisation for having brought previous equality cases to the Tribunal in that her confidential communications made pursuant to an informal oral bullying complaint were communicated to various members of the respondent's management, issues surrounding her interactions with the external examiner were discussed at a meeting at which she was not present, her lecturing duties were altered and she became the subject of a proposed academic inquiry. The respondent denies the complainant's claims of discrimination and victimisation.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Equality Tribunal on 11 November 2004. On 10 February 2006, 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 27 March 2006. A submission was received from the respondent on 9 June 2006. A joint hearing of the claim was held on 25 October 2006.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that she has been discriminated against and/or victimised in relation to a number of different issues.
Revision of the complainant's timetable
3.2 The complainant considers her transfer from pure law classes to be a demotion, punishment and retaliation for having previously sought equality under the equality legislation. The complainant is a citizen of the United States and has been employed since 1997 in the respondent's School of Humanities in the Department of Applied Arts. On 28 July 2004 during the summer holidays, Dr. E, Head of the School of Humanities sent a letter dated 22 July 2004 to the complainant informing her that her classes for the coming academic year were to be altered "in view of the very real difficulties, encountered, for instance, towards the end of this academic year and with a primary view to eliminating stress to yourself...." The letter was posted on the same day that an equality case the complainant had taken was made public and it was received by the complainant on 29 July 2004. The complainant believes that the ambiguous wording of Dr. E's letter of 28 July 2004 allowed the respondent to point to the stress that the complainant referred to in an informal bullying complaint made on 4 June 2004 as a valid justification for the decision to transfer her to another campus and to demote her to teaching entry level servicing hours.
3.3 The complainant did not at any time request that she be moved from her pure law classes and she did not seek servicing hours. Since the complainant commenced employment with the respondent, she did not have a personal discussion with Dr. E. More particularly, Dr. E did not discuss with the complainant her stress levels or hypertension in July 2004, whether she wanted her lecturing duties altered or the events giving rise to the bullying that resulted in the complaint of 4 June 2005. The assignment of teaching duties is generally handled by the Head of Department, Dr. H rather than the Head of School and is done generally at the beginning of the academic year rather than during the summer holidays. The classes that Dr. E removed from the complainant were pure or core law classes of crime and tort on the National Certificate Legal Studies. The classes that were assigned to the complainant were entry level servicing hours on four different courses in Hotel and Catering, Recreation and Leisure, Tourism and Hospitality Management. Furthermore, the complainant had duties such as course development for the core law courses effectively removed or denied to her, course leadership was denied to her and she continues to suffer professionally and personally from the decision to alter her duties to predominantly entry level servicing hours.
3.4 All law lecturers with more seniority that the complainant are Irish. Not one of the law lecturers with more seniority than the complainant has ever been transferred from 100% law hours to 27% or less law hours. In fact, all law lecturers with more seniority than the complainant enjoy 100% law hours except Ms. O' K. Ms. O' K is a servicing lecturer and has always maintained an office at the Cork Road campus and when she began to be assigned to law hours at College Street, she was assigned another office at College Street. The complainant asked to be returned to her pure law classes for the 2005/06 academic year. The HR Manager replied on 25 July 2005 that he had raised the issue of the complainant's time table with Dr. E and he had been informed that it had been decided to maintain her timetable on the same basis as pertained in 2004/05. The respondent continued to punish the complainant by its refusal to rescind her demotion to teaching entry level servicing classes at another campus.
Request for an office on the Cork Road campus
3.5 All of the entry level servicing hours assigned to the complainant were located at the Cork Road campus while the complainant's office, computer, phone, books and core law courses were located at the College Street campus. The decision to alter the complainant's hours thereby transferred the complainant to another campus for most of her hours which caused stress, isolation and humiliation to the complainant. The complainant's request for an office at the Cork Road campus were ignored.
Bullying complaint in 2004
3.6 On 2 June 2004, the complainant sent an e-mail to Mr. O' S, the Human Resources Manager asking for a copy of any policy that the respondent had on bullying in the workplace. The complainant stated therein that she had been subjected to the most aggressive, degrading and humiliating behaviour by the External Examiner. On 4 June 2004, the complainant met with Mr. O' S in his office for approximately ten minutes. The complainant made an informal oral complainant of bullying against the External Examiner pursuant to the policy supplied to her. Mr. O' S asked the complainant if she would provide him with a list of witnesses so he could speak with them and a "wish list" of what she wanted to settle the matter. It was the understanding of the complainant that Mr. O' S would speak to the witnesses regarding the alleged incidents of bullying to confirm what the complainant had outlined to him in her oral informal complaint. The complainant incorporated a list of witnesses into the settlement proposal and sent it to Mr. O' S on the same day.
3.7 On 28 June 2004, the complainant sent an e-mail to Mr. O' S regarding the status of her informal bullying complaint. Mr. O' S replied on 28 June 2004 stating that many of the issues that the complainant had raised were relevant to the Registrar and the Head of School/Department and that he would discuss the matter with them and let her have a response. On 30 June 2004, the complainant sent another e-mail to Mr. O' S regarding the matter. On 1 July 2004, Mr. O' S sent an e-mail to Dr. E, Dr. H and Mr. D asking for their comments on the issues of the external examiner and the adjustment of marks and he attached copies of five e-mails sent by the complainant to him. The complainant did not at any time waive her right to confidentiality under the Respect and Dignity Policy. Thereafter on 22 July 2004, Dr. E sent a memo to Mr. O' S, Dr. H, Mr. Mc F, the Secretary/Financial Controller making reference to discussions taking place the previous day and asking for comments/suggestions regarding the letter dated 22 July 2004 altering the complainant's lecturing duties. On 9 September 2004, the complainant e-mailed Mr. O' S stating that she had not received any communication concerning her informal bullying complaint of 4 June 2004. The following day, Mr. O' S sent an e-mail to the complainant stating that he had sent her complaint to the Registrar, Mr. D as it "is primarily an academic matter".
Different treatment of the complainant's bullying complaint on the gender and race grounds
3.8 The complainant's bullying complaint was treated differently to Mr. F's complaint (an Irish male lecturer). She submits that Mr. F's complaint received immediate attention and confidentiality was maintained.
Public disparagement of the complainant
3.9 The complainant submits that she was publicly humiliated by the respondent in the statement it issued on 28 July 2004. After a finding of having victimised the complainant and without regard for the complainant or her family, the respondent issued a statement through the HR Manager, Mr. O' S to WLR radio that it is a very large employer, that it was the first occasion that it had lost any aspect of an equality case and it was appealing the decision. The respondent's public statement had led to speculation and rumours that the complainant had been awarded or received something to which she was not fairly or honestly entitled.
Sexual harassment
3.10 During the academic year 2004/2005, the complainant suffered extreme stress, bullying and sexual harassment at the hands of the Recreation and Leisure students she was assigned to teach. While the Recman students generally have a reputation for being loud and active, this particular group of students engaged in wholesale abuse of their lecturers. Because of the complainant's nationality and gender, her accent was mocked on a regular basis. One male student enjoyed making inappropriate personal remarks to the complainant regarding her appearance and one female student enjoyed making inappropriate remarks and asked inappropriate questions of a sexual nature in class and students were physically and verbally abusive to each other in class. The complainant felt unable to make any complaints concerning these students as she had been led to believe that if she made another complaint she would be disciplined.
Course Leader/Law Course Development
3.11 During the 2004/2005 academic year, law staff worked together on the development of a new course, the BA (Hons) Legal Studies. The complainant was not invited to the initial meetings and missed a substantial number of meetings due to the fact that she was lecturing at the Cork Road campus. When the new course was offered, the complainant expressed her interest in teaching torts on the course and was told by Dr. H that her timetable had already been decided. When the complainant specifically asked if she had been considered for the hours, her e-mail went unanswered. The complainant was later asked to write modules for tort and prison law. In late 2005 and early 2006, a new course in Criminal Justice was developed. Dr. H, head of Department was in charge of assigning staff members to work on the development of the course. The complainant never heard about the course until she was given a copy of it to review for the Academic Council. The complainant's almost total exclusion from law courses has diminished her ability to become a course leader and left her in the vulnerable position of lecturing where law will no longer exist or be an elective after full semesterisation takes place in the 2006/2007 academic year.
Meeting on 17 June 2004
3.12 The complainant submits that all law lecturers were invited to a meeting on 17 June 2004 many of whom were not on the Course Board at issue. Thus, non-Course Board lecturers were present to hear and or discuss the course at issue while none of the servicing lecturers on the Course Board were invited to the meeting. Law staff were present, even those who were not part of the disputed Course Board and thus were made aware of events leading up to the complainant making her informal bullying complaint. After the complainant spoke with a few of the law lecturers, she learned that she and the events surrounding the Examination Course Board of 2 June 2004 (in respect of which she subsequently made a bullying complaint) had been discussed at length during the meeting. It appears to the complainant that Dr. H influenced the staff present to convene a sort of trial of the complainant in September instead of looking at the underlying problems with the course.
Second bullying complaint in 2005
3.13 The complainant made a second informal bullying complaint against Ms. B, the External Examiner on 3 June 2005. Mr. O' S responded on 8 June 2005 stating that the only way the complaint could be progressed was through the agreement of the process to investigate her earlier complaint against the same person. He further stated that Mr. D was going to write to the complainant shortly with a view to initiating the process. On 9 June 2005, the complainant responded and objected to the two complaints being linked. On 14 June, Mr. O' S wrote to the complainant and stated that the person against whom the complainant had made the complaint "had agreed to partake in the process and is awaiting its commencement." Indeed, Ms. B had agreed to the process before the complainant herself had. On 31 August 2005, the complainant asked if she could meet with the Director and is still awaiting a meeting.
Reduction in teaching hours
3.14 The complainant submits that after she was elected Branch Secretary of the TUI in November 2005, it took until 3 February 2006 to agree a reduction in her teaching hours in accordance with an agreement with the respondent. She submits that two previous male Branch Officers had no difficulty in having their lecturing hours reduced pursuant to the agreement.
3.15 The complainant believes than the respondent discriminated against her and victimised her contrary to the provisions of the Equality Acts. More specifically, the complainant alleges that:
- she suffered victimisation for having brought previous equality cases to the Tribunal in that Mr. O' S published the complainant's confidential communications made pursuant to an informal oral bullying complaint to various members of the respondent's management who conspired, agreed and/or supported the decision to retaliate or punish the complainant by altering her lecturing duties to entry level servicing classes at another campus.
- she suffered discrimination because of her nationality and/or gender when the complainant was treated considerably less favourably than an Irish male lecturer who made a comparable bullying complaint in September 2004 concerning being bullied by Dr. E over his marks at an Examination Course Board meeting;
- she suffered discrimination and victimisation for attempting to pursue an injunction to stop the alteration of her lecturing duties and effective demotion to teaching entry level servicing hours when the respondent invited her to a separation meeting on or about 23 September 2004;
- she suffered discrimination and victimisation for pursuing this particular complaint before the Tribunal. After the complainant notified the respondent that she was abandoning the pursuit of injunctive relief and bringing a complaint to the Tribunal for the alteration of her lecturing duties to entry level servicing classes, Mr. D, the Registrar retaliated by resurrecting her five month old informal complaint of bullying and proposed procedures for dealing with the complaint that were not consistent with the respondent's Respect and Dignity policy. The respondent then sought to initiate an academic inquiry of the complainant premised on her informal bullying complaint. The complainant believes that the no Irish lecturer who has made a bullying complaint has become the subject of an academic enquiry on foot of it or would be so treated.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
Altering the complainant's timetable
4.1 A decision was taken by Dr. E to alter the complainant's lecturing timetable and this was communicated to her by way of letter dated 22 July 2004 and sent to the complainant on 28 July 2004. The delay in sending the letter was because once it was written, it was circulated by Dr. E to the Registrar, Mr. D and Mr. O' S, Head of Human Resources for their views on its contents. The letter was not informed by nor was it a reaction to the Equality Tribunal finding in an earlier claim brought by the complainant. The changes to the timetable cannot be deemed to be a demotion, punishment and/or retaliation. It is normal practice for timetables to change, not only annually but often several times throughout the year. The complainant's pay grade and standing were not adversely affected.
4.2 Dr. E's communication to the complainant indicated to her that her timetable was being changed to make it less stressful and repetitive for her as well as making it more diverse and rewarding. The complainant is correct in stating that the Head of School does not normally change timetables and that such changes also do not happen during the Summer recess. However, in this particular case, there were a number of significant factors to consider. Firstly, the complainant had on a number of occasions referenced that she was suffering from stress and hypertension. The second key factor was the difficulties that had surfaced in the School of Humanities with regard to the marking of courses taught by the complainant and the interactions between the complainant and Ms. B, the External Examiner with regard to the same matter. In the opinion of Dr. E as Head of School, these factors required immediate action and Dr. E exercised his right to vary the timetable being taught by the complainant. The timing of the change allowed the complainant an opportunity to prepare for the coming academic year in September.
Course Leadership
4.3 The respondent rejects that the complainant has been denied an opportunity to hold the position of a Course Leader in WIT and that this amounts to victimisation by the respondent. Course Leadership is a position which is assigned to a member of staff teaching the particular course by the Head of Department following approval by the Course Board. The complainant was given the opportunity to apply for course leadership on the BA in Legal Studies in the Autumn 2005. At a meeting of the Course Board, one of the complainant's colleagues was nominated and approved for the role of Course Leader by the Course Board and the complainant was assigned the role of Year Tutor following the recommendation of her colleagues.
Meeting of 17 June 2004
4.4 In relation to the Course Board meeting scheduled for 17 June 2004, the meeting held that day was not in fact a Course Board meeting but a meeting for academic law lecturers on the Legal Studies courses in the Department of Applied Arts. The title of the Memo inviting attendance should have read "Academic Law Staff of the Course Board" and not "Course Board". The fact that this was a meeting for all law staff is the reason why the memo from Ms. CB which was prepared following the meeting was circulated to all law staff who were eligible to attend as opposed to just the Course Board members. The complainant had been invited to attend the meeting on 17 June 2004 but could not attend due to a family bereavement.
Course Development
4.5 In relation to the development of the Criminal Justice Degree, only two of the sixteen law staff was involved on the course development team along with other individuals from the social care department.
Bullying complaint in 2004
4.6 In relation to the complainant's bullying complaint against the External Examiner, the complaint was assessed to be particularly sensitive and important because it arose from the exams process and in particular, the marking of exams. None of the complainant's initial communications to the HR Manager, Mr. O' S were marked 'confidential'. Mr. O' S indicated to the complainant on 29 June 2004 that he would discuss the matters raised with the Registrar and the Heads of School and Department as the complaint derived from predominantly academic matters. The complainant acknowledged her understanding in relation to this by e-mail dated 30 June 2004. The respondent did not communicate with the Course Board in relation to the matter. The respondent decided that it had an obligation to inform the External Examiner of the proposed academic inquiry and to the terms of reference given that it directly related to the exams and markings with which she was directly involved. It is accepted that the second complaint of bullying made by the complainant against the External Examiner was specifically deemed by the complainant to be confidential and the particulars of that complaint were not forwarded to any third party by Mr. O' S.
4.7 Notwithstanding that the complainant wanted the matter to be treated informally; it was felt by the respondent that this was not possible in the circumstances especially as there were now two bullying complainants in being. From the respondent's perspective, the integrity of the exam process, in particular, the way in which marks are awarded and agreed between internal and external examiners is absolutely crucial to the further development of the respondent as an academic institution of note. It was decided by the
Registrar that the matters raised by the complainant and the matters referred to in the External Examiner's report of Ms. B were inextricably linked and to consider one without the other would be incomplete. Detailed terms of reference were prepared encompassing both complaints received from the complainant and also the other ancillary issues arising from the interactions between the complainant and Ms. B in the context of marking law exams. The complainant refused to participate in the process.
Complaint dealt with less favourably on the gender and race grounds
4.8 In relation to the complainant's allegation that her complaint of bullying was dealt with less favourably than a complaint by an Irish male colleague, the respondent submits that no two complaints are ever the same and the involvement of personnel in each particular case may vary depending on the circumstances. Mr. F's complaint was lodged with a number of senior managers before being passed to the Director. Also the substance of his allegations was substantially different from the complainant's which involved an External Examiner.
Separation meeting
4.9 In relation to the complainant's claim that she was invited to a separation meeting, the only statement that the respondent wishes to make in relation to the 'without prejudice' meeting is that the meeting derived from the complainant's legal proceedings and was arranged by the relevant legal representatives and the complainant agreed to attend the meeting with her legal representatives on a voluntary basis.
Public disparagement
4.10 The respondent denied the complainant's claim that she was publicly disparaged and humiliated following its statement in response to the Tribunal finding in the complainant's earlier case. The respondent issued a statement to the effect that it intended to appeal the decision as it was the first time that they has lost any aspect of an equality case. No reference was made to the complainant or the merits of her case.
Sexual harassment
4.11 In relation to the complainant's allegation that she suffered extreme stress, bullying and sexual harassment perpetrated by the Recreational Leisure Management students in the 2004/05 academic year. The reference in the complainant's submission was the first time that a complaint of sexual harassment has ever been made by the complainant in relation to this matter. Regrettably, the class referred to in the complainant's submission have now graduated and are no longer students and it is not possible to take disciplinary action. The Head of the Department in the relevant area was contacted to ensure that such forms of behaviour are tackled and prevented going forward. The respondent does not condone such inappropriate behaviour and wholly regrets same.
Request for an office on the Cork Road campus
4.12 In relation to the complainant's request for an office on the Cork Road Campus, it is the respondent's policy that no lecturer can hold two offices simultaneously as there is a distance of one mile between the two buildings. The complainant was informed that if she wished to have an office on the Cork Road, she would have to forego her facilities at the College Road Campus and the complainant withdrew her request on that basis.
Reduction in teaching hours
4.13 It is accepted by the respondent that there was some delay in reaching agreement with the complainant regarding a reduction in teaching hours in accordance with a local agreement when she became Branch Secretary of the TUI. This was partially due to the fact that Dr. H left on sabbatical during the period that the matter was being considered and so it fell to the acting Head of Department to pick up the issue and to finalise the matter with the complainant.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender and race grounds in relation to her conditions of work. I must consider whether the respondent directly discriminated against the complainant on the gender and race grounds in terms of section 6(2)(a) and (h) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts. I must also consider whether the complainant was victimised within the meaning of section 74(2) of the Acts. 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.
Discrimination on the various grounds
5.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
"..... discrimination shall be taken to occur where-
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as "the discriminatory grounds"), ......."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as the "gender 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),
Victimisation
5.3 Section 74(2) of the Employment Equality Acts 1998 and 2004 provides, inter alia, that "victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer.
(b) any proceedings by a complainant.
(c) an employee having represented or otherwise supported a complainant.
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act.
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act of 2000 or which was unlawful under any such repealed enactment.or
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment. or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs."
Burden of proof
5.4 The Labour Court has stated in relation to the Burden of Proof in a case concerning gender and age discrimination:
" The allocation of the probative burden in discrimination cases is now determined by Section 85A of the Employment Equality Acts 1998 and 2004. This section gives legislative effect in domestic law to Directive 97/80 on the burden of proof in cases of gender discrimination and to Article 10 of Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education.
This Section provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be presumed, it is for the Respondent to prove the contrary." (1)
5.5 I must consider whether the complainant has adduced sufficient evidence to establish a prima facie case of discrimination on the gender and/or race grounds. In relation to the victimisation claim, I must consider whether the complainant has adduced sufficient evidence to show that she was treated in an adverse manner by the respondent as a reaction to doing any of the actions listed in (a) to (g) of section 74(2) of the Acts and has therefore established a prima facie case of victimisation. In relation to any incident prior to 19 July 2004, I must consider whether the complainant was penalised for having in good faith sought redress under the Employment Equality Act, 1998.
The revision of the complainant's lecturing duties
5.6 The complainant's first complaint of victimisation relates to the changing of her lecturing duties from pure law to servicing hours. The complainant submitted that all lecturers with more seniority than the complainant are Irish and not one of them has ever been transferred from 100% law hours to 27% or less. She also submits that all lecturers except one with more seniority than the complainant enjoy 100% law hours. The complainant's contract states that she commenced employment as an assistant lecturer on 01/09/00 and the date of her commencement (01/09/1999) on the data provided by the respondent is therefore incorrect.
5.7 I requested the ratio of pure law: servicing hours for all other law lecturers during the academic years 2003/04, 2004/05 and 2005/06 and the dates of the commencement of their employments. During the 2003/04 academic year, the complainant had 100% pure law hours which was changed to 28% pure law hours in the 2004/05 academic year. In the 2005/06, the ratio according to the respondent was 57%: 43%. The ratio is disputed by the complainant who submits that the ratio in Semester 1 was 19%:81% and in Semester 2 was 50%:50%. In the 2003/04 academic year, six lecturers including the complainant had 100% pure law hours (there appears to be an error in relation to the ratio for the last lecturer on the table provided). Of those six lecturers, the complainant had reduced pure law hours in the 2004/05 academic year and the other five retained 100% pure law hours. Four of the five retained 100% pure law hours in the 2005/06 academic year (one was on sick leave and did not carry out any hours). According to the respondent's records, in 2003/04, five of the six people who had 100% pure law hours commenced employment before the complainant and in 2004/05; five of the six people who had 100% pure law hours commenced employment before the complainant. In the 2005/06 academic year, seven people had 100% pure law hours and one person had 90% pure law hours and six of the eight people commenced employment before the complainant.
5.8 The complainant was advised by letter dated 22 July 2004 that her timetable was being revised "in view of the very real difficulties encountered.... toward the end of this academic year, and with a primary view to eliminating stress to yourself." The complainant submits that she did not at any time speak to Dr. E in relation to her stress levels and she also did not request servicing hours. The respondent in its written submission stated that two key factors were considered and these were (i) the complainant had referenced on a number of occasions that she was suffering from stress and hypertension and (ii) the difficulties that had surfaced with regard to the markings of the examinations and the interactions between the complainant and Ms. B. At the hearing, the respondent submitted that the complainant would have made reference to stress and hypertension in her e-mails to Mr. O' S and that there was also an incident earlier in the year where the complainant would have made reference to hypertension in her communications with Mr. O' S. It does not appear to be the case that the complainant spoke directly with Dr. E in relation to her health. Additionally, if the complainant had discussions with the HR Manager with regard to her health, one should be able to expect in the ordinary course of events that the details of such a conversation would not be disclosed to the complainant's line manager without at least seeking approval from the complainant first.
5.9 In relation to the difficulties which had surfaced between the complainant and the external examiner, the External Examiner sent an e-mail to Mr. D on 19 July 2004 attaching her report and an accompanying letter. The respondent submits that this material was taken into account when deciding to change the complainant's timetable. Dr. E sent a memo dated 22 July 2004 to Mr. P, Mr. Mc F, Dr. H and Mr. O' S which states "Arising out of our discussions yesterday, I have prepared a letter which is enclosed. Your comments/suggestions would be appreciated by return." There is no reference in that memo to Ms. B's letter of 19 July. A letter dated 19 July 2004 from Mr. D to Dr. E refers to Dr. E's letter of 12 July 2004 and asks Dr. E to "Please proceed with whatever timetabling adjustments you deem necessary to address the issue of the exceptionally low pass rates for the past number of years in the subject noted above." There is also no reference in that letter to Ms. B's report. Indeed Ms. B's recommendations for dealing with the matter of low pass rates was "I would suggest that staff monitor student achievement across the different subjects and consider why students appear to perform less well in certain subjects and examine the content of the curriculum to ensure content not over ambitious."
5.10 The first reason submitted by the respondent for the change in lecturing duties does not stand up to scrutiny as Dr. E could not and should not have been aware of the complainant's health issues as she had not raised them with him. Whilst the External Examiner made a recommendation in relation to the issue of low pass rates on the Legal Studies Course, there is no reference to removing the lecturer in question from the course in issue. The interactions between the complainant and Ms. B were also referred to, however, there was no mention of trying to prevent a recurrence of the difficulties that arose in the interactions between the two people in question in the future. Indeed it appears that the difficulties resurfaced again in the interactions between the complainant and the External Examiner the following year, in respect of which the complainant made a further bullying complaint. At the time that the complainant's lecturing duties were altered, the Tribunal had on 23 June 2004 issued a Decision in respect of proceedings the complainant had brought against the respondent. The Decision was in favour of the complainant and was appealed to the Labour Court by the respondent on 20 July 2004. A few days after the appeal was filed, Dr. E drafted a letter altering the complainant's lecturing duties for the coming year. The respondent has accepted as correct the complainant's statement that the Head of School does not normally change timetables and that such changes also do not happen during the Summer recess. It is also the case that issues had arisen the previous year in relation to the marking of exams as referenced by the External Examiner's report and cover letter dated 26 September 2003 and no changes to the complainant's timetable were effected at that time. Taking into account the respondent's reasons for the change in timetabling duties and the timing of the change to coincide with the complainant's equality proceedings, on the balance of probabilities, I find that the complainant has established a prima facie case of victimisation in relation to the alteration of her lecturing duties.
Publication of the complainant's informal bullying complaint
5.11 The complainant's next complaint of victimisation relates to the publication of her informal bullying complaint to various members of the respondent's management team. The complainant submits that at no time did she waive her right to confidentiality and that at all times, she believed that Mr. O' S would speak to Dr. E, Dr. H and Mr. D because they were all witnesses to the events that were the subject of her complaint. She submits that it is beyond belief that Mr. O' S, after receiving the complainant's bullying complaint, a list of witnesses and a settlement proposal as requested by him that he would send the requested information and communications made pursuant to the oral informal bullying complaint to witnesses for their comments on the adjustment of marks. The complainant queried the status of her complaint in an e-mail to Mr. O' S dated 30 June 2004 and stated that she was under the impression that he was going to speak with the Registrar, Head of School and members of the NCLS Year 1 Course Board. Mr. O' S responded on 30 June 2004 stating that he brought the matter to the attention of the relevant Academic Managers/Registrar as these are primarily academic issues.
5.12 On 1 July 2004, Mr. O' S sent an e-mail to Dr. E, Dr. H and Mr. D which states "Gents, can I ask you to comment on the contents of this e-mail. In particular can I ask you to address the issues of the external examiner and the adjustment of marks?" It appears from the documentation provided that the e-mail he was referring to was the e-mail from the complainant dated 30 June 2006 querying the status of her complaint. The respondent's Respect and Dignity Policy provides for methods of dealing with complaints of bullying or harassment. The policy provides under the informal procedure that the person may seek confidential help or advice of a support person and a meeting may be arranged to "discuss the bullying, harassment or discrimination and to try to find a solution. Following this meeting, further action will not normally be taken without your express permission: in particular the person about whom you are complaining will not be given your name without your express permission." The policy also provides that the formal procedure may be followed where all attempts to resolve the matter informally have failed or where the conduct is deemed too serious for the informal route. On 4 July 2004, the complainant provided a resolution proposal containing five requests in respect of her complaint to Mr. O' S. The resolution proposal was requested by him. However, he does not appear to have taken the resolution proposal into account in any way and no evidence has been presented to indicate that he tried to resolve the complaint informally. The respondent submits that upon initial review of the complainant's bullying complaint and a discussion with the Registrar and Head of School and Head of Department, Mr. O' S decided to refer the matter to the Registrar as it was a matter that required further investigation.
5.13 On 9 September 2004, the complainant e-mailed Mr. O' S stating that she had not received any information from him concerning her bullying complaint of 4 June 2004. She was informed on 10 September 2004 by Mr. O' S that it had been passed to the Registrar as it was essentially an academic matter The respondent submits that the Registrar decided that rather than appoint an internal person to investigate matters that an external third party would be preferable. It further submits that the matters raised by the complainant and the matters referred to in the External Examiner's report dated 19 July 2004 were inextricably linked and one could not be considered without the other. The respondent also submits that it was decided that it had an obligation to inform the External Examiner of the proposed academic inquiry and to the terms of reference given that it directly related to the exams and markings with which she was directly involved. The complainant was advised by letter from the Registrar dated 26 October 2004 that it was his intention to appoint an external examiner to investigate the issues of her bullying complaint and the difficulties which arose from the examination and the marking of the crime and tort papers. It is unclear why it took so long to inform the complainant of the manner in which her bullying complaint would be dealt with. At the hearing, the respondent could not account for the progress of the complaint during the intervening months, however, it is the case that the summer holidays intervened.
5.14 It appears that the informal bullying complaint made by the complainant was not progressed and instead became part of another issue in relation to the marking of exam papers. I have examined the reports dated 19 July 2004 from the external examiner and faxed to the Registrar, Mr. D on that date. The external examiner states under the heading of "General comments on the Course assessment and examinations:" that "Documentation and dates of Boards of Examiners meetings were sent well in advance. The meeting was well organised and the business conducted with fairness and efficiency and, although justice was achieved for the students, it would be more satisfactory if issues surrounding standards and [sic] could be resolved for the future" This appears to refer to the Course Board meeting on 1 June 2004. From an examination of the documentation submitted to the respondent by the External Examiner, the respondent's statement that it was not possible to progress the complainant's bullying complaint informally as "there were now two bullying complaints in being." is unclear to me as I can see no reference to bullying by the complainant in the External Examiner's report and indeed the complainant's name is not specifically mentioned. I do not accept the respondent's contention that the issue in relation to the marking of exams and the bullying complaint were inextricably linked and had to be dealt with together. As the complainant had made a bullying complaint, she was entitled to have that matter investigated in accordance with the respondent's Respect and Dignity Policy. I also note that it was the first time that an academic inquiry had been proposed. The failure to progress the complainant's bullying complaint arose whilst the complainant's equality complaint was before the Tribunal and a hearing in relation to the claim had taken place on 29 April 2004. In view of the proceedings instituted by the complainant and that I do not accept the respondent's contention that there were two bullying complaints and that the complainant's complaint and the issue of markings had to be dealt with together, I find, on the balance of probabilities, that the complainant was treated adversely by the manner in which her bullying complaint was progressed and I find that she has established a prima facie case of victimisation which the respondent has failed to rebut.
The meeting on 17 June 2004
5.15 The complainant also claims that she was victimised by the events which took place at a meeting on 17 June 2004 at which matters surrounding the Course Board meeting on 1 June 2004 (in respect of which the complainant subsequently made a bullying complaint) were discussed at length. She also alleges that Dr. H influenced the staff present at the meeting to convene a sort of trial of her in September instead of looking at the underlying problems with the course. The complainant had on 8 June 2004 sought clarification from the HR Manager as to whether she would have to attend the meeting of law staff on 17 June before the issues she raised in relation to her bullying complaint were addressed. The complainant does not appear to have received a response and in any case, she was unable to attend due to a family bereavement. An e-mail sent to the Registrar from Dr. H on 21 June 2004 refers to the meeting on 17 June and states that "certain matters were tabled and agreed as issues of extreme concern to the Course Board on NCLS 1". It further states that proposals are contained in the attached memo. The memo states that it is from Ms. CB "Tutor Year 1 on behalf of Course Board" and makes two further references to "Course Board". The memo requests guidance and assurance on two matters. One of the issues relates to the entry points and numbers of students admitted to the National Certificate in Legal Studies and the other relates to the Registrar's Office providing guidelines to assist Examination Course Boards "in cases of significant and recurring deviations from the normal distribution of examination results." It further states that the Course Board have agreed to meet in formal session chaired by an independent facilitator on 3 September 2004.
5.16 The complainant requested the minutes of the meeting and was informed that none exist. The complainant submits that whilst all law lecturers were invited to attend, many of whom were not on the Course Board, whilst none of the servicing lecturers on the Course Board were invited to attend the meeting. The complainant submits that this is of particular importance as many of the servicing law lecturers had expressed their dissatisfaction with how the complainant was treated by the External Examiner at the meeting on 1 June 2004. The complainant submits that there is no provision for a formal session of a Course Board to be chaired by an independent facilitator. She also submits that the subsequent e-mail of 21 June 2004 was circulated to every member of the law staff regardless of whether the lecturers were on the Course Board or not. The meeting to be chaired by the independent facilitator never took place and the Head of Department, Dr. H sent a memo dated 27 August 2004 to all Applied Arts Law Lecturers advising that the meeting of law lecturers chaired by an independent facilitator planned for 3 September 2004 had been postponed to a later date.
5.17 It appears that the meeting took place on 17 June 2004 under the umbrella of the Course Board. The respondent submits that the meeting which took place was a meeting for the academic law lecturers on the Legal Studies Courses. When one of the complainant's colleagues, Ms. W raised the issue that she was not invited to attend as a Course Board member, Dr. H responded that the meeting was for academic law lecturers on Legal Studies Courses in the Applied Arts Department only and that no other lecturers were invited to attend. He submitted that the memo issued by Ms. BR should have read "Academic Law staff of the Course Board" and that the memo would be amended. I consider that there is a lack of clarity in relation to the nature of the meeting that took place, as to who was and should have been invited, no minutes were taken, all documentation refers to the Course Board, no effort was made to correct and clarify the matter when the issue was pointed out by a colleague of the complainant on 27 July 2004, one of the issues raised in the memo following the meeting concerning examinations and results clearly had implications for the complainant and in an unusual step, a formal session chaired by an independent facilitator was proposed for September. In the light of these factors, I consider that the respondent has not rebutted the complainant's claim that matters surrounding the Course Board meeting on 1 June 2004 were discussed at length and in the circumstances and in the light of the complainant's proceedings before the Tribunal at that time, on the balance of probabilities, in accordance with the Employment Equality Act 1998, I find that the complainant was penalised by the events which took place at the meeting on 17 June 2004 and that she has established a prima facie case of victimisation which the respondent has failed to rebut.
Public disparagement of the victimisation finding in earlier case
5.18 The complainant stated that she was publicly humiliated by the respondent in the statement it issued on 28 July 2004 after the Equality Tribunal published its finding in an earlier case. The respondent in the statement to the radio station stated that it was the first occasion on which it had lost any aspect of an equality case and that it intended to appeal. Whilst the complainant may not have welcomed the respondent's statement on the matter, I find that she has failed to establish a prima facie case of victimisation in relation to this issue.
Course Leadership
5.19 The complainant submits that Course Leaders are chosen from non-servicing lecturers and that her almost total exclusion from law courses has diminished her ability to become a course leader and left her in the vulnerable position of lecturing where law will no longer exist or be an elective after full semesterisation takes place in the 2006/2007 academic year. The respondent submits that the complainant was given the opportunity to apply for course leadership on the BA in Legal Studies in Autumn 2005. When the complainant expressed her interest in becoming Programme Leader of the BA (Ordinary) in Legal Studies, she was advised by Dr. H by e-mail dated 23 September 2005 that a Programme Board meeting would be called shortly and that a recommendation would be sought from Board Members as to who might become the Programme Leader. He further stated that the procedure was followed recently in appointing the Programme Leader of the BA(Hons) in Legal and Business Studies. As the complainant was primarily a servicing lecturer in 2005, I consider that it is fair to say that her opportunity to become a Course Leader was reduced. Prior to September 2005, it appears to have been the case that Course Leadership was assigned to a member of staff teaching the particular course by the Head of Department. Certainly, there appears to have been a change in the method of selection for Course Leaders in 2005 and a question arises as to why the change happened at that time. The complainant's loss of opportunity in relation to Course Leader could have been an automatic result of being a primarily a servicing lecturer and I consider that insufficient evidence has been presented to establish a prima facie case of victimisation in relation to becoming a Course Leader as any change in the method of selection would have had similar consequences for all lecturers.
Course Development
5.20 The complainant submits that she has suffered with her almost total exclusion from law course development, the school review of the certificate course in the spring of 2005 and in September 2005, the complainant was not considered for lecturing on the new BA (Hons) in Legal Studies even though she had written the tort modules. The complainant also submits that she was not invited to the initial meetings and she missed a substantial number of meetings in relation to the development of the course due to the fact that she was lecturing at the Cork Road campus. She also submits that she had not heard about the Criminal Justice course until she was given a copy of it to review for the Academic Council. The respondent submits that not all lecturers can be involved in every process and a course development team is established for each new course by the relevant Head of Department. It submits that course development is only the beginning of the process and additional staff may be engaged at course design and delivery stage as required. The respondent submits that only two of the sixteen law staff was involved on the course development for the Criminal Justice Degree. Based on the evidence presented, I do not find that the complainant has established a prima facie case of victimisation in relation to course development.
Complaint of bullying in 2005
5.21 On 3 June 2005, the complainant made a further informal complaint of bullying arising from her interaction with the External Examiner that day. On 8 June 2005, Mr. O' S advised the complainant by e-mail that the only way her complaint could be progressed was through the agreement of a process to investigate her earlier complaint against the same person. Again, on 13 June 2005, he advised the complainant that his suggestion for progressing the matter was that she agree to an investigation as previously outlined. She was again advised on 14 June 2005 that it was his "preferred position to deal with the first complaint and include the second complaint in this process or alternatively process the second complaint when the first issue is settled." In a subsequent e-mail dated 18 June 2005, the complainant was advised that the External Examiner was contacted to ascertain if she would be willing to take part in an investigation process in relation to the examinations process and that she had not been given copies of the complainant's e-mails.
5.22 Communications continued between the complainant's Union and the respondent in relation to an academic inquiry. On 3 October 2005, the Union rejected the terms of reference in their entirety and the inquiry did not take place. I note that the terms of reference refer to the refusal of the complainant to attend the Course Board meeting in June 2004. The complainant's e-mail of 8 June 2004 in relation to that matter states ".... Am I required to attend this meeting which is due to last into the afternoon before the issues I raised last week are addressed in any manner?" I am unclear as to how the complainant's query which was not responded to can be interpreted as a refusal to attend. Again, the holding of an academic inquiry in relation to a bullying complaint was unprecedented and I do not agree that the complainant's complaint and the issue with marking exams were inextricably linked. At that stage, the Labour Court had on 26 April 2005 issued a Determination upholding the Equality Officer's finding in relation to the complainant's claim of victimisation and I therefore find, on the balance of probabilities that the complainant has established a prima facie case of victimisation in relation to the non progression of her bullying complaint and the attempts to incorporate her complaint into an academic inquiry.
Separation meeting
5.23 The complainant also submits that she suffered discrimination and victimisation for attempting to pursue an injunction to stop the alteration of her lecturing duties when the respondent through her legal representative invited her to a "separation meeting". As the meeting was a "without prejudice" meeting between the parties and their legal advisors, it would not be appropriate for me to enquire into the nature of the communications which took place between the parties in relation to it.
Request for an office on the Cork Road campus
5.24 The complainant submits that the decision to alter her lecturing duties transferred her to another campus for most of her hours which caused stress, isolation and humiliation to her. She submits that her request for an office at the Cork Road campus were ignored. She submits that one person who lectures at both campuses has an office at both. Whilst this was not disputed by the respondent, it indicated that there was a space issue and the policy is that no lecturer can hold two offices simultaneously. An e-mail from the complainant dated 6 October 2005 indicates her surprise at the matter of an office at Cork Street being considered at that time as she had raised the issue a year earlier. She also indicated in a further e-mail later that day that she did not wish to pursue the matter of an office at the Cork Road if it meant that she had to give up her office at College Street. I have considered the data provided by the respondent, in particular, the data in relation to the School of Humanities for the 2003/04, 2004/05 and 2005/06 academic years. Whilst predominantly, there is a correlation between the numbers of hours lecturing at a particular campus and where one's office is located, there are a very small number of exceptions on the list. I find that the complainant has failed to establish a prima facie case of victimisation in relation to being provided with an office at the Cork Road campus.
Less favourable treatment in relation to the bullying complaint on the grounds of gender and nationality
5.25 The complainant submits that she suffered discrimination because of her nationality and/or gender when she was treated less favourably than an Irish male lecturer who made a bullying complaint against his Head of School concerning the revision of his marks at an examination Course Board meeting. Whilst it appears that both bullying complaints were treated differently, I do not accept the respondent's contention that as one related to an external examiner, it required special treatment particularly as the respondent's Respect and Dignity Policy clearly applied to external examiners. In any case, I find that insufficient evidence has been presented to support the complainant's claim of discrimination on the nationality and/or gender grounds in relation to this matter and I find that she has failed to establish a prima facie case of discrimination in relation to this particular issue.
Delay in revising the complainant's timetable when she became Branch Secretary of the TUI
5.26 The complainant submits that when she became Branch Secretary on 14 November 2005, it took a considerable period of time to be granted a reduction in her lecturing hours unlike previous Irish male Branch Officers. The complainant submits that Dr. E cancelled a meeting scheduled for 23 November 2005 in relation to the issue and subsequently advised the complainant that Dr. H was dealing with it. Dr. H advised her of her revised hours by letter dated 5 December 2005 which meant she had one group of law students for three hours and another group for two hours. Further e-mails were sent between the parties and Dr. H went on sabbatical in December 2005. On 11 January 2006, the complainant met with the acting Head of Department, Mr. H and she was informed that Dr. H had left specific instructions on the matter and her timetable did not change. Eventually on 3 February 2006, agreement was reached in relation to her timetable. The respondent accepts that there was some delay in reaching agreement with the complainant as to how a reduction in her timetable was to be implemented in the light of her teaching commitments. It submitted that this was partially due to the fact that Dr. H left on sabbatical during the period and it fell to the Acting Head of Department to finalise the issue. On the balance of probabilities, I find that the complainant has failed to establish a prima facie case of discrimination on the gender and/or race grounds in relation to finalising her timetable when she became Branch Secretary of the TUI.
Sexual harassment claim
5.27 The complainant claims that during the 2004/05 academic year, she suffered stress, bullying and harassment at the hands of the Recreation and Leisure students that she was assigned to teach. The respondent did not dispute that the incidents as alleged by the complainant occurred. The complainant submits that the students engaged in "wholesale abuse of their lecturers" and also refers to a male lecturer suffering severely at the hands of the students. She also states that she felt unable to make any complaints concerning the students as she had been led to believe that if she made another complaint she would be disciplined. The complainant clarified that her belief that she would be disciplined arose from the separation meeting she had with both parties' legal advisors. The complainant did however, speak to the acting Head of the Department of Languages, Tourism and Sport (Mr. RH). She e-mailed Mr. RH on 31 January 2005 stating "I frankly do not know what else I can do to try to control these disruptive students, but would welcome any advice or help you can render." The complainant further e-mailed him on 1 February 2005 stating that she "would love some advice etc. on what to do with the disruptive students." The complainant submitted a number of e-mails in relation to these issues and submitted at the hearing that most of the incidents were detailed in those e-mails. In most incidents referred to, the pupils who engaged in the actions complained off are not identified and a lot of the incidents appear to relate to disruptive behaviour rather than discriminatory treatment on any of the grounds under the Equality Acts. However, in the complainant's e-mail of 9 March 2005 to Mr. H which was the last one presented in evidence on the subject, she refers to a named male student mocking her accent. I consider that the incident in question amounted to harassment on the race ground within the meaning of 14A(7)(a) of the Acts.
5.28 In accordance with section 14A(2) of the Acts, it is a defence for the employer to prove that it took such steps as are reasonably practicable to prevent the harassment. The respondent submitted that it launched and circulated its first Equality Policy in March 1996 and a revised Dignity and Respect policy was approved in December 2002. The respondent submitted that the original policy was made available to all staff and students in 1996 and in subsequent years. The complainant had at the relevant time a copy of the respondent's Respect and Dignity Policy which refers to harassment being unacceptable, however, she chose not to complain about the matter and she sought advice from the Acting Head of Department of Languages, Tourism and Sport which in the light of the complainant's last e-mail of 9 March 2005 on the matter to the Acting Head appears to have been unsuccessful in relation to preventing or controlling the behaviour.
5.28 As the complainant did not make a complaint to the respondent, it was not given the opportunity to prevent the pupil in question from harassing the complainant. The respondent submitted that it is no longer possible to take disciplinary action against any one from that class as that class has now graduated. The respondent further submitted that such behaviour is unacceptable and that it has spoken to the relevant Head of Department about these matters to ensure that such forms of behaviour are prevented going forward and that it has also spoken to the complainant directly in relation to the matter. In terms of taking action going forward, I would like to refer the respondent to the Labour Court case of A Boys' Secondary School v. Two Female Teachers (2) in which the Court found the school authorities liable for the sexual harassment which the teachers were subjected to by pupils at the school. In the circumstances of this particular case whereby the respondent had a Respect and Dignity Policy which the complainant had and whereby she chose not to bring the behaviour to the respondent's attention in line with the policy, it could not have done anything further to prevent the harassment and it may therefore avail of the defence provided in section 14A(2) of the Acts.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant on the gender and race grounds in terms of section 6(2)(a) and (h) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Act in relation to her conditions of employment.
6.2 I find that the complainant was harassed on the race ground and that the respondent may avail of the defence afforded in section 14A(2) of the Acts and that the harassment does not therefore constitute discrimination by the complainant's employer.
6.3 I find that the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Act, 1998 and in terms of section 74(2) of the 1998 and 2004 Acts.
6.4 In accordance with section 82 of the Act, I hereby order that the respondent:
(i) pay to the complainant the sum of €15,000.00 compensation in respect of the acts of victimisation (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(ii) proceed to investigate the complainant's complaint of bullying in accordance with the respondent's Respect and Dignity Policy on receipt of written clarification from the complainant in the light of the passage of time that she wants her complaints investigated.
__________________
Mary Rogerson
Equality Officer
19 December 2006
notes
(1) Concern v. Anthony Martin EDA0518 14 December 2005
(2) AEE/01/9 Determination No: 021 29 January 2002