EDA071

Position of the parties

Summary of the Complainant’s evidence.

The Complainant told the Court in evidence that she commenced employment with the Respondent in July 2002. She said that initially she did not experience any particular difficulties with her work or her colleagues. In or about September 2002 she was asked to join some colleagues for a night out. She declined this invitation explaining that she was a Muslim and did not drink or smoke. The Complainant said that following this disclosure the attitude of named colleagues changed towards her. The Complainant said that named managers gave her less work and less training than was given to others,in consequence of which she was less experienced. She further contended that she received less training that others in the team in which she worked.



The Complainant gave detailed evidence of remarks made to her, or about her, by named colleagues, at different times, which were derogatory of her religion or her status as a refugee and which she found offensive. The Complainant made a formal complaint to Mr O’Leary, an associate director of data processing with the Respondent, by letter dated 23rd October 2002, about a named colleague. In this letter the Complainant also contended that she had not been given appropriate training. The Complainant contended that, rather than deal with her complaints, Mr O’Leary decided to move her to another team.

The Complainant went on in her evidence to tell the Court that on joining the new team she experienced some hostility from fellow team members. She said that in November 2002 she had placed a Muslim planner on her desk after which named colleagues stopped talking to her. She also recalled that a named colleague had made a derogatory remark in relation to this planner. The Complainant further recalled that when she was fasting during the feast of Ramadan,a named manager told her, in an aggressive manner that she should not fast. She recalled further incidents of having been subjected to verbal abuse or inappropriate language by named colleagues around this time.

The Complainant told the Court that on 6th December 2002,the religious festival of Eid occurred. This is a major festival in Islam which marks the end of Ramadan. The exact date on which the festival falls is unknown until close to its occurrence. The Complainant said that in November 2002, in anticipation of the festival, she had enquired of her project leader if it would be possible to obtain a half-day off so as to prepare for the traditional celebration. She offered to work up the time involved on the following Saturday or to have the time deducted from her leave for the following year. It was then indicated to her that this would not cause a difficulty. However, when the festival occurred, her project manager refused to allow her to take a half-day. In consequence of this refusal, the Complainant said, she became ill and had to leave early on the day.

The Complainant went on to give evidence of other occurrences which she regarded as discriminatory or indicative of a discriminatory disposition on the part of the Respondent. They included having her probationary period extended after it had expired and being furnished with incomplete or inaccurate measurements of her performance targets.

At a meeting with her line managers in February 2003, in connection with her performance appraisal, the Complainant made complaints of discrimination in respect of her treatment by colleagues. Subsequently, by letter dated 24th February 2003 the Complainant wrote to Mr O’Leary setting out in detail allegations of harassment and discrimination on grounds of race and religion.
The Complainant also told the Court that following her complaints of 24th February 2003, Ms Pam Howard (a Vice President of biometrics with the Respondent) had taken issue with her work performance and had refused to acknowledge that her probationary period had been completed. The Complainant took the view that Ms Howard’s conduct in that regard was motivated by her earlier complaints to Mr O’Leary. The Complainant pointed out that this was the first occasion on which issues relating to the quality of her work had been raised.

The Complainant told the Court that she was subsequently advised that the Respondent had appointed Mr O’Leary and Ms Jacinta Tuite (Human Resources Manager) to investigate her complaints. She said that she had one meeting with the proposed investigators, at which a friend from the Islamic Foundation of Ireland (Mr Ahmed) accompanied her. The Complainant formed the view that the appointed investigators were not independent and, by letters dated 18th March 2003, advised Mr O’Leary and Ms Tuite accordingly.

By letter dated 19th March 2003 the Complainant wrote to Mr Peter Gray, a Director of the Respondent, informing him of her objections to Mr O’Leary and Ms Tuite conducting an investigation into her complaints. She also asserted that Ms Howard had also victimised her in raising issues relating to the quality of her work. In response to this letter the Complainant met with Ms Eimear Kenny (Vice- President of Human Resources) to discuss the content of this letter. The Complainant told the Court that she was not satisfied with the approach adopted by Ms Kenny at this meeting. She said that Ms Kenny was not independent and that she sought to pressurise her into withdrawing her complaints. The Complainant said that the Respondent decided to proceed with the investigation despite her objections. She decided to refer her complaints of discrimination to the Equality Tribunal and not to participate with the internal investigation. She advised Ms Kenny accordingly by letter dated 17th April 2003.

The Complainant gave evidence of further inappropriate conduct towards her by named colleagues of which she did not complain because she had no faith in the Respondent’s willingness to adequately address her complaints of discrimination. She told the Court that she had not taken any part in the internal investigation conducted by the Respondent and had not been informed on what was happening in relation to the investigation. Finally, on 11th July 2003 the Complainant was informed that the internal investigators had found that her complaints were of a vexatious and malicious nature and that it had been decided to dismiss her.

Summary of the Respondent’s Case

Evidence on behalf of the Respondent was given by Ms Linda Allen (project leader with the Respondent), Ms Eimear Kenny, Mr Thomas O’Leary, Mr Colm Stanley (data project manager) Mr Anthony Lyons (project leader) Ms Kerrie Ann Sharpe (project leader) and Ms Pam Howard.

The Court was told that at the time the Complainant was employed by the Respondent it was aware of her race and status as a refugee. The Court was also told that throughout the Complainant’s employment many of her colleagues were unaware of her religion. Those witnesses who were accused by the Complainant of having made discriminatory comments to or about her denied having made such comments. They said that they were unaware of the Complainant’s religion until after they were informed of her complaints.

In relation to the Complainant’s complaint concerning the refusal of the Respondent to allow her time off to celebrate the festival of Eid, the Court was told that the request was made on one days notice and at a particularly busy time.

It was said that the Complainant had merely indicated that she needed time off to prepare for a party.

The Court was told in evidence by Mr O’Leary that when he received the Complainant’s letter of 23rd October 2002 he wrote to her seeking copies of e-mails which she (the Complainant) had indicated would show inappropriate communications to her by colleagues. This information was not furnished. Mr O’Leary also spoke to Ms Alex Kelly who was the project leader to whom the Complainant reported in relation to her complaints that she had received inadequate training. As a result of this discussion Mr O’Leary was satisfied that the Complainant received the same level of training as other employees engaged in similar duties. Mr O’ Leary subsequently met with the Complainant and discussed with her a proposal that she transfer to another team in which she could receive further training. Mr O’Leary told the Court that the Complainant appeared satisfied with this proposal and he subsequently arranged for the Complainant’s transfer. He said that the transfer was to assist the Complainant. Mr O’Leary told the Court that many of the incidents of harassment of which the Complainant subsequently complained had allegedly occurred prior to the date of her initial letter to him but were not mentioned in that letter.

Evidence was given on behalf of the Respondent that the Complainant’s productivity levels were below target and that there were concerns in relation to the quality of her work. As was common practice the Complainant was advised of these concerns. The Complainant received an annual appraisal in November 2002. The previous practice of conducting an appraisal on the anniversary of an employee’s employment was changed so as to provide that all such appraisals would be conducted at the same time of the year. The result of this appraisal showed that the Complainant’s performance was significantly below what was expected of her. She was informed that her performance would have to improve and that the Respondent would provide her with the necessary support and assistance to meet her objectives.

Because of these concerns the Complainant’s performance was monitored by her managers and was discussed with her on several occasions. In light of these ongoing concerns it was decided to arrange a further appraisal of the Complainant’s performance in January 2003. A meeting for this purpose was subsequently scheduled for February 2003. In her appraisal notification form the Complainant had raised issues in relation to her treatment by colleagues. She was advised that these complaints should be processed formally through the Respondent’s internal procedures. The Complainant’s appraisal indicated that while her productivity levels had improved they were still below the required standard. In consequence it was decided to extend the Complainant’s probationary period for two months with a review after one month.

Mr O’Leary was subsequently advised of the complaints of inappropriate behaviour which the Complainant had made against named colleagues. He then wrote to the Complainant asking her to meet with him with a view to resolving these difficulties. He furnished the Complainant with a copy of the Respondent’s harassment policy. The Complainant met with Mr O’Leary on 10th February 2003 following which a further meeting was arranged for 17th February 2003. The Complainant was requested to put her complaints in writing. She was offered time off work to do so.

A further meeting was held on 24th February at which the Complainant was accompanied (with the Respondent’s consent) by a Mr Ahmed from the Islamic Foundation of Ireland. At this meeting the Complainant furnished Mr O’Leary with a letter of complaint setting out alleged acts of discrimination against her dating back to September 2002.

Following this meeting Ms Howard sought to meet with the Complainant to discuss her probation review which was to take place at the end of March 2003. When the Complainant failed to attend these meeting Ms Howard wrote to her setting out the Respondent’s concerns in relation to her performance and confirming that her probation had been extended. Ms Howard told the Court that she would not normally deal with staff matters of this nature but that because Mr O’Leary was dealing with the complaints made by the Complainant she considered it inappropriate for him to deal with this matter.

Evidence was also given on behalf of the Respondent concerning the establishment of an investigation into the complaints made by the Complainant and into assertions by the Complainant that those appointed to conduct the investigation lacked independence. The Court was told that Mr O’Leary and Ms Tuite (Human Resources Manager) had been appointed to conduct an investigation into these complaints. The Complainant subsequently wrote to Mr O’Leary and Ms Tuite stating her view that they could not be independent investigators. The Complainant subsequently wrote to Mr Peter Gray, Chief Executive Officer with the Respondent in similar terms. She also complained that Ms Howard had extended her probation without justification.

Ms Kenny met with the Complainant to discuss her assertions that the appointed investigators were not independent. Ms Kenny also discussed the Complainant’s complaint regarding the extension of her probation period. Having been made aware that the decision to extend the Complainant’s probation was communicated to her after her initial probation period had expired, Ms Kenny agreed that the Complainant had become a permanent employee. On consideration of the Complainant’s objections to the appointed investigators Ms Kenny concluded that there was no basis upon which Mr O’Leary and Ms Tuite should be relieved of this role. The Complainant refused to cooperate with the enquiry and indicated her intention to refer the matter to the Equality Tribunal.

The investigation continued without the cooperation of the Complainant. It concluded that the complaints made were without foundation and that some were vexatious and malicious. The Court was told that the investigation was thorough and professionally conducted.

As a result of the findings of the investigation the Complainant was dismissed for serious misconduct.

The Law Applicable

These claims relate to events which allegedly occurred prior to the passing of the Equality Act 2004. Consequently the relevant statutory provisions are those which were contained in the Employment Equality Act 1998 prior to its amendment by the Act of 2004.

Section 6 of the Act provides that discrimination shall be taken to have occurred where, on any of the discriminatory grounds, one person is treated less favourable than another is, has been or would be treated.

Section 8(1) prohibits discrimination against an employee in relation to;inter alia, conditions of employment.

Section 32 of the Act prohibits harassment of an employee on any of the discriminatory grounds. Harassment is defined by subsection (5) of that Section as follows: -

• (5) For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C.

• (2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
  

Burden of Proof

The allocation of the burden of proof in discrimination cases is now governed by s 85A (1) of the Act as amended. This provides: -


(1) Where in any proceedings facts are established by or on behalf of a complainant
from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

This Section was enacted to give effect to Article 10 of Directive 2000/78 (the Framework Directive) and Article 8 of Directive 2000/43 (the Race Directive). In Determination EED054Tsourova v ICON Clinical Research[2005] 16 E.L.R. 250 the Court took the view that the rule of evidence provided by s 85A of the Act as amended is applicable in current proceedings including proceedings relating to events which occurred prior to its enactment. In line with that conclusion the Court is satisfied that if the Complainant can establish facts from which discrimination can be inferred the onus of proving the absence of discrimination shifts to the Respondent. The test normally applied by the Court to determine if the probative burden shifts to the Respondent is that formulated inSouthern Health Board v Mitchell[2001] E.L.R. 201. This requires the Complainant to prove the primary facts upon which he or she relies and to satisfy the Court that those facts are of sufficient significance to raise a presumption of discrimination. A similar approach was subsequently adopted by the Employment Appeals Tribunal for England inBarton v Investic Henderson Crosthwaite SecuritiesIRLR 494, and by the Court of Appeal inIGEN v Wong[2005] IRLR 956.

Application of the Mitchell Test.

The gist of the Complainant’s case is that she was subjected to a regime of discrimination on grounds of her religion and her race while in the employment of the Respondent. In advancing that claim she relies upon a number of alleged occurrences including offensive utterances being directed at her by colleagues and being ostracised at work. The Complainant also claims to have been subjected to unfair treatment by the Respondent, principally in respect to the standard of performance expected of her; in having her probation extended and in being refused time off to celebrate a major religious festival.

These alleged occurrences are the primary facts upon which the Complainant relies in advancing her claim of discrimination. She bears the responsibility of proving those facts on the balance of probabilities. However,proof of unacceptable or unfair treatment is not in itself sufficient for the Complainant to succeed in her claim. It is not unlawfulper sefor an employer to behave badly or unfairly. Such conduct is only actionable if it is discriminatory within the meaning of the Act. Thus before the Complainant could succeed the Court must be satisfied that the impugned conduct was motivated by reference to one of the discriminatory grounds. That is the fact at issue in the case which must be established if the complaint of discrimination is to be upheld. However, where the primary facts are proved and are of sufficient significance to raise a presumption of discrimination, by application of the shifting burden of proof, the Court will presume that the fact at issue has been established unless the Respondent rebuts that presumption on the balance of probabilities. If, however, the primary facts are not proved the Complainant cannot succeed.

Conclusion of the Court

Having considered all of the evidence the Court has reached the following findings of primary fact:

Claim of Harassment.

In the instant case the Complainant gave evidence of having being subjected,inter alia, to taunts and derogatory comments by colleagues in relation to her religion and her ethnic background. She also complained at what in effect amounted to being ostracised by her colleagues after they became aware of her religion. Witnesses called by the Respondent gave rebuttal evidence in relation to each of the complaints. .

Claims of unfair treatment by the Respondent.

The Court is not satisfied that the Complainant was treated differently in any material respect than another employee, whose job performance was regarded as unsatisfactory, was or would have been treated. In that regard the Court does not accept that the standards set for the Complainant were different to those set for others. With regard to the Complainant’s complaint at being refused time off to celebrate the festival of Eid, the Court accepts that she made her request at short notice and stated that she needed to organise a party. The Court further accepts that the work schedule was busy at the time and that it was not unusual or exceptional for the Respondent to refuse the request in the circumstances in which it was made. Accordingly the Complainant has not established that she was treated differently by the Respondent in respect of the matters alleged.

Claim of victimisation

The Complainant contends that she was victimised in being transferred to another team after she first complained of discriminatory treatment. She also claims to have been victimised when Ms Howard raised issues concerning her work performance in her letter of 13th March 2003. The Complainant further claims that she was again victimised in the manner in which the Respondent investigated her complaints. In particular she complained that Mr O’Leary and Ms Tuite were appointed to conduct this investigation despite her protestations concerning their lack of independence; that she was not provided with statements made by those against whom she had made allegations and that the inquiry concluded that she had acted with vexation and or malice in making her complaints.

Having considered the evidence as a whole the Court has reached the following conclusions on this aspect of the case: -

The Court is satisfied that the Complainant was transferred to another team in November 2003 in order to assist her in obtaining additional experience and that she did not demur when the possibility of a transfer was suggested to her by Mr O’Leary.

The Court further accepts that the Respondent had genuine concerns in relation to the Complainant’s work performance and that these concerns were raised with the Complainant before they were set out in Ms Howard’s letter of the 13th March. While issues relating to work quality may not have been specifically mentioned previously, taken in context this is not a matter of significance. Furthermore, while it was somewhat unusual for Ms Howard to become involved in a matter such as this, the Court accepts her evidence that it was considered inappropriate for more junior members of management, against whom complaints had made, to raise these issues with the Complainant.

The Court does accept that the Complainant has a valid cause of complaint regarding the manner in which the investigation into her complaints was conducted. In particular the Respondent did not proffer any adequate explanation for not providing the Complainant with copies of statements made to the inquiry by those against whom she had made complaints. Moreover, the Respondent did not provide any explanation as to why some allegations were found to be unproven while others were deemed to be vexatious or malicious.

However the detriment which the Complainant suffered in consequence of this investigation was to be dismissed on foot of its findings. The Complainant successfully brought proceedings alleging victimisation arising from her dismissal and received redress in the form of compensation. It seems to the Court that the victimisation in the nature of dismissal, which was the subject of the earlier proceedings, cannot be separated from the events which led to that dismissal so as to provide the Complainant with a separate cause of action. In these circumstances the Court is of the view that any cause of action which the Complainant may have had in relation to the conduct of the investigation was merged in the determination of the Court in her claim arising from the dismissal.

It follows that the redress ordered in the earlier case was intended to cover the totality of the victimisation to which the Complainant was subjected resulting in the loss of her employment. That included any victimisation inherent in or arising from the conclusions of the investigation which lead to the dismissal.

Determination

The Complainant has failed to prove the primary facts upon which her claim of discrimination is based. The Court is further satisfied that any claim which the Complainant may have had in respect of victimisation arising from the investigation into her complaints of discrimination was merged in her claim of victimisation which was the subject matter of the Courts Determination EED054 -Tsourova v ICON Clinical Research[2005] 16 E.L.R. 250.

For these reasons the Court is satisfied that the decision of the Equality Officer is correct and ought to be affirmed. The appeal is disallowed and the Decision of the Equality Officer is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
18th January 2007______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.