EMPLOYMENT EQUALITY ACTS, 1998 AND 2004
Equality Officer's Decision No. : DEC-E-2007-027
Parties
Kelly
(Represented by Doyles Solicitors)
vs
Health Services Executive, Western Region
(Represented by Ercus Steward, Barrister at Law
Instructed by William B Glynn, Solicitors)
1. DISPUTE
The dispute concerns a complaint that the Health Service Executive, Western Region (HSE) discriminated against the complainant on the grounds of her age and gender contrary to the provisions of the Employment Equality Acts, 1998 and 2004 (referred to here as the Act).
2. BACKGROUND
2.1 The complainant alleges that she was subjected to bullying and harassment at work by a number of female colleagues for reasons related to her age and gender and alleges that the respondent's response to her complaints in this regard amounted to discriminatory treatment on the grounds of her age and gender. The complainant further alleges that she was victimised by the respondent for having referred a complaint to the Equality Tribunal.
2.2 The complainant referred a complaint to the Director of the Equality Tribunal on the 31st March, 2005. The parties attempted unsuccessfully to resolve the matter at mediation and in accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act on 17th November, 2006. Submissions were received from both parties by 26th January, 2007 and a hearing of the complaint was held on 24th April, 2007.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant, who was 28 years of age at the time and working in a supervisory position in the respondent's Public Health Department, alleges that a female member of the reporting staff who was in her mid-fifties and who joined the section in 2002 on return from a career break, resented having to report to a supervisor many years her younger and embarked on a course of bullying and harassment over a period of three years and that two other female members of the reporting staff joined her in this behaviour. The complainant made a verbal complaint to management in November, 2002 and a written complaint in January, 2003 and alleges that due to management's inadequate response, the harassment continued and that she developed ill health directly as a result of the harassment. A third complaint resulted in a meeting with an Employee Relations officer however the harassment continued.
3.2 While on study leave and having decided that she would resign, the complainant was notified that she had been successful in a promotional competition to Acting Grade V and that she was being assigned to the HR Department. The complainant returned from study leave and while serving her last day in the Public Health Department in June, 2004 she noticed the three subordinate staff referred to above laughing at a computer screen and later found, torn up and thrown in a wastepaper bin, a degrading and threatening text headed by a graphic of a donkey which was clearly referring to her. The text referred to 'a slut' and 'devil out of hell' and stated that 'the bitch should be dead'. The complainant met with management and was advised to report the matter to the Gardai which she did. Management carried out what it described as an independent investigation of the matter however the complainant's legal representative in his submission, described the investigation as a 'whitewash' and argued that it failed to deal with management's inadequate response over the previous two years but instead suggested the complainant was as much to blame for what had happened.
3.3 In response to the respondent's contention that the complaint was referred outside the six month period from the date of the most recent alleged act of discrimination, the complainant's legal representative stated that it was right and proper that the complainant should have awaited the outcome of the respondent's internal investigation before deciding whether or not to take the matter further and that the resulting delay, which was not caused by the complainant, satisfied the 'reasonable cause' test of Section 77(5)(b) of the Act and that the complaint should be admitted having been made with 12 months of the most recent alleged act of discrimination. In this regard the complainant's legal representative referred to the Labour Court determination in Cementation Skanska (Formerly Kvaerner Cementation Limited) and A Worker (WTC/03/42 Determination No.0425 dated 19th July, 2004) under the Organisation of Working Time Act, 1997.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent argued in the first instance that the complaint was out of time as the most recent incidence of alleged harassment occurred in June, 2004 and the complaint was not referred to the Director until March, 2005. The respondent also argued that there was nothing in the complainant's submission to connect the treatment complained of with discrimination by the respondent on either the age or gender grounds. The respondent argued that the incidents complained of had been appropriately dealt with by the respondent in line with its bullying and harassment policy with the result that the person who claimed responsibility for the production of the offensive text was suspended for 10 months during the investigation and subsequently re-assigned. The respondent argued that the referral of the complaint to the Equality Tribunal on the age and gender grounds after the internal investigation into bullying and harassment had been completed amounted to an abuse of the Tribunal process. In response to the complainant's legal representative's argument that she had been victimised for having referred a complaint, the respondent pointed out that the complainant had been promoted to its HR department and was making a much valued contribution to the work of that department.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. I am satisfied in the first instance that the complainant has demonstrated reasonable cause for not having referred the complaint to the Tribunal within six months of the most recent alleged discriminatory act when she awaited the outcome of the respondent's internal investigation before deciding to refer her complaint to the Tribunal. As the complaint was received within 12 months of the most recent alleged act of discriminatory treatment I will allow that the complaint was referred in time in accordance with Section 77(5)(b) of the Act
5.2 I consider that there are two matters to be determined in relation to the treatment complained of, firstly was the treatment connected to the complainant's age or gender and secondly, if it was so connected, did the respondent respond appropriately to the complaints insofar as its responsibilities under the Act are concerned. I am satisfied firstly that the interpersonal difficulties which were the subject of this complaint were unconnected with the complainant's gender and I consider that this conclusion is supported by the fact that the alleged perpetrators were all female. I note that the complainant refers to gender specific terms such as 'bitch' and 'slut' which were used in the offending document (3.2 above) and while these terms are clearly offensive to any woman, I do not consider that their use in these circumstances could constitute prima facie evidence of discrimination on the gender ground. I note that the offending text in which they were used was re-assembled out of a waste paper bin by the complainant herself. It had not, from the available evidence, been circulated beyond the three members of staff referred to in the allegations, had not been shown to the complainant directly or in any surreptitious manner and therefore she would have been unaware of its existence if she had not re-assembled it herself from the waste paper bin.
5.3 In relation to the age complaint, the complainant states that the perpetrator resented having to report to a younger superior and that that was the trigger for difficulties between them. When I asked the complainant's representative at the hearing if on any of the several occasions on which the issue was raised with management prior to the referral of the complaint to the Equality Tribunal was the alleged harassment characterised by the complainant as being in any way age or gender related and he stated that it was not. While this in itself does not mean that the alleged harassment was not gender or age related, it adds credence to the respondent's contention that the complaint concerned treatment generally described as 'bullying' which had nothing to do with the protected grounds under the Act and that when the complainant was unhappy with the report of the respondent's internal investigation, she belatedly sought to open a new avenue of redress through the Equality Tribunal. I am not satisfied that the statement by the complainant that the alleged perpetrator resented having to report to a younger supervisor is sufficient evidence on which to base an allegation of harassment on the age ground. There was no supporting evidence that age was an issue. I have concluded that the treatment complained of did not amount to harassment on the age or gender grounds and will therefore not be making any finding against the respondent in that regard. There is no necessity therefore for me to consider further the respondent's response to those complaints in terms of its responsibilities under the Act.
5.4 The complainant has also alleged that she was victimised by the respondent for having referred a complaint to the Equality Tribunal. The complainant's legal representative in his submission suggested that the complainant was confronted by management in a locked room and pressed to withdraw her complaint. In response to questioning at the hearing the complainant explained that the meeting involved an Employee Relations counsellor and members of management and that the door was locked after someone had inadvertently intruded and to avoid further intrusions it was agreed that the door should be locked. As regards being 'pressed' to withdraw her complaint, the complainant stated that the approach from the counsellor was more in the nature of what would it take to enable to the complainant to put the episode behind her and move on. There was no coercion or threat involved. The complainant paid tribute to the counsellor at the hearing and said that if it had not been for her she might not be here today. The counsellor was available to give evidence at the end of the hearing however I did not consider it necessary to call her to give evidence as her role in the matter had already been outlined and agreed by the parties at the hearing. I concluded that there was no evidence of victimisation of the complainant. I note that the respondent took the opportunity at the hearing to pay tribute to the complainant's contribution to the HR department since she joined that department in 2004 on promotion.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant in terms of Section 6(2) and contrary to the provisions of Section 8 of the Employment Equality Acts, 1998 and 2004 or vicitmise the complainant for having referred a complaint under the Act.
Raymund Walsh
Equality Officer
22 May, 2007