Ms. M
(Represented by P.C. Moore & Co., Solicitors)
vs
R - A Named Organisation
(Represented by William Fry Solicitors)
1. DISPUTE
1.1 The dispute concerns a claim by Ms. M that she has been subjected to sexual harassment by R - A Named Organisation on the grounds of gender and sexual orientation within the meaning of Sections 6 and 14A of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.
1.2 The complainant referred her complaint of sexual harassment to the Director of Equality Tribunal on 27th October, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 20th June, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of these Acts. Following receipt of submissions a joint hearing took place on 7th November, 2007.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant states that she attended a work-related Conference in Sligo on 28th September, 2005. She alleges that Ms. B (the Education Co-ordinator for the respondent organisation) said to her at the end of the conference dinner that she (Ms. B) hated her (the complainant). The complainant says that when she asked Ms. B why she had said this Ms. B replied that it was because she (the complainant) was a lesbian. According to the complainant Ms. B stated that she had lost all respect for her (the complainant) the day that she found this out and that she thought this was unnatural. The complainant says that she issued a grievance to the respondent through the Head of Operations/Human Resources for the respondent organisation. In her grievance the complainant stated that found she this intimidating, hostile, degrading, humiliating and offensive. She also noted that Ms. B was intoxicated at the time. It is the complainant's submission that the fact that Ms. B was intoxicated at the time does not excuse the conduct and she believes that it was inappropriate behaviour, it created an offensive and intimidating environment to work in and was contrary to the Dignity in the Workplace Charter.
2.2 The complainant notes that she received no response from the respondent to her request for information using the Equality Tribunal forms with regard to same. She further notes that her legal representatives were not allowed to be in attendance at internal grievance proceedings or to represent her at such proceedings. The complainant says that on 2nd December, 2005 she was furnished with the outcome of the investigation in relation to the formal grievance. It was held that if there was any impoliteness interpreted as harassment then it had taken place unintentionally. No account was taken of the fact that Ms. B was tipsy or that Ms. B had stated that she could not recall anything. The complainant disagrees that there was insufficient evidence to support her claim. In this regard she says:
- there was an acknowledgement by Ms. B that she had consumed a number of drinks before and during the meal;
- Mr. A (a person who was at the same table during dinner) in his evidence stated that Ms. B appeared to be quite tipsy and that the complainant appeared to be sober;
- the evidence of a Mr. B (who was also at the same table during dinner) is that at approximately 12.30a.m. to 1.30a.m. there appeared to be a personal conversation between the complainant and Ms. B;
- Ms. B had no recollection of saying anything to the complainant. However she did say that if there were a misunderstanding between them she would apologise for this.
2.3 The complainant says that if Ms. B is saying that she did use these words and should not have then this would be the end of the matter. Rather she is saying that she has no recollection of them. It is the complainant's contention that the use of the words 'gay' or 'lesbian' or 'hating' someone are relatively specific words and she should be able to recall having used them but she concedes that if she was drunk she may not be able to recall the use of these words. The complainant notes that the Head of Operations/Human Resources concluded that if there was any impoliteness interpreted as harassment then it had taken place unintentionally. It is her contention, however, that whether it was intentional or not, harassment is harassment. The complainant says that by letter dated 19th December she sought an apology from Ms. B, she asked that the Dignity in the Workplace Policy be published and the Ms. B receive training. She notes that none of these things have occurred.
2.4 The complainant states that the Head of Operations/Human Resources wanted to undertake internal mediation to be carried out in accordance with company policy. It is the complainant's submission that she has not been provided with a copy of the company's policy on internal mediation and it is her belief that no such policy exists. The complainant states that the Head of Operations/ Human Resources carried out an investigation of the alleged incident and in her view it was inappropriate that he would carry out the internal mediation. According to the complainant she requested that an independent person carry out the internal mediation and that she be allowed to bring representation. The complainant says that on 6th March, 2006 she agreed to internal mediation but subject to it being an independent mediation. In a responding letter the Head of Operations/Human Resources again reiterated that he felt that he was the most appropriate person to undertake the internal mediation. The complainant says that a proposal was put to her, which she believes was intended to remove the matter from the Equality Tribunal and to compromise her position. Further correspondence ensued between the parties about an external mediation with an independent mediator.
2.5 In conclusion the complainant says that the respondent has taken no action to deal with the issue even by way of publishing its Dignity of the Workplace Charter. Rather the respondent endeavoured to put the complainant though internal mediation dealt with by the Head of Operations/Human Resources rather than by an independent mediator. The complainant notes that the respondent has no policy on internal mediation. She further notes that the respondent never furnished a response to her request for information and that she asks that the Equality Officer draw an inference from same. It is the complainant's contention that the respondent has sought to push matters under the carpet and not deal with a serious allegation of harassment based on her sexuality. The complainant contends that the respondent has sought to frustrate her being represented and refused any meaningful investigation. It is the complainant's submission that the respondent attempted at one stage to try and get her to withdraw her claim by stating that if she went ahead with the claim she would be going up against the company. The complainant says that words were used which amounted to harassment and that the respondent acting through the Head of Operations/Human Resources could not have come to the conclusion it did in relation to the grievance raised. Even if it could be argued that the respondent could have come to that conclusion the complainant says that the respondent did nothing to protect her from the harassment going forward. It is the complainant's submission that the finding that matters were unintentional does not mean that harassment did not take place and that the Head of Operations/Human Resources failed to comprehend what harassment involves.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent notes that the complainant has alleged sexual harassment on the grounds of gender and sexual orientation based on an alleged incident that is claimed to have occurred at a post-Conference dinner on 28th September, 2005. The complainant specifically accuses Ms. B of stating that 'she hated' her (the complainant) because she (the complainant) was lesbian and she (Ms. B) had lost all respect for her (the complainant) the day she found out and she (Ms. B) thought it was unnatural.
3.2 According to the respondent the first time it was made aware of the alleged incident was when it was received notice of it from the complainant's legal representative on 1st November, 2005. The respondent says that it immediately initiated an investigation to deal with the content of the complaint under the Bullying and Harassment Procedure. It is the respondent's submission that it carried out a full and thorough investigation and communicated the outcome of that investigation to the complainant on 2nd December, 2005. The complaint by the complainant was not upheld as there was a clear conflict of evidence and there was no independent evidence to support the allegations. The respondent notes that the complainant never appealed the outcome of the investigation even though she was afforded the opportunity to do so. According to the respondent in its letter dated 2nd December, 2005 it offered internal mediation to improve the relationship between the complainant and Ms. B. After much correspondence between the complainant and the respondent, an agreed form of mediation between the complainant and Ms. B was successfully conducted by an external mediator on 24th October, 2006.
3.3 The respondent submits that the alleged comments complained of do not amount to 'sexual harassment' as defined under Section 14A of the 1998-2004 Acts as 'any form of unwanted verbal, non-verbal or physical conduct of a sexual nature'. It is the respondent's submission that the alleged comments would amount to 'any form of unwanted conduct related to any of the discriminatory grounds' with the discriminatory ground being 'sexual orientation'. The respondent says that the claim should have been brought for 'harassment' as opposed to 'sexual harassment'. It is the respondent's submission that the alleged comments, which are the subject of this complaint, do not come within the definition of 'sexual harassment'. The respondent says that the complainant has made no claim of harassment and is now out of time in which to do so.
3.4 Section 85A of the Acts provides that a complainant must first establish the facts from which a prima facie case of discrimination can be made out. The respondent submits that the complainant has failed to prove a prima facie case that sexual harassment occurred as alleged. It is also noted that the complainant's submission deals with events that occurred after the lodging of this claim and, therefore, cannot of itself form the basis for her claim. In deciding whether the complainant has established a prima facie case the respondent would ask the Equality Officer to consider that Ms. B stated, during the course of the internal investigation, that she is of the same sexual orientation as the complainant and that the complainant was aware of this fact. The respondent notes that Ms. B also stated that the alleged comments attributed to her were particularly upsetting and incomprehensible given her own sexual orientation. It is the respondent's contention that this fact has an evidential value relevant to Ms. B's denial of the complainant's allegations to which the Equality Officer should have regard in deciding whether a prima facie case has been established. The respondent notes that the complainant, in her submission, has alleged that derogatory comments have been made against her. However, no details have been provided and the respondent denies any victimisation.
3.5 Without prejudice to the above the respondent relies on the defence provided in Section 15(3) of the Acts in that it took such steps as were reasonably practicable to prevent an employee from doing the alleged act, or from doing such alleged act during the course of their employment. According to the respondent its Harassment and Bullying Policy states 'It is the policy of R [A Named Organisation] to maintain an atmosphere of mutual respect. R does not condone and does not tolerate any form of bullying or harassment towards any of the employees by any of our fellow employees, by managers or by third parties in our workplace such as vendor, clients or visitors ...R does not tolerate harassment on the basis of gender, marital status, race, religious beliefs, sexual orientation, age or membership of the travelling community. All R employees are responsible for helping to ensure that our work environment, either at work or at work-related events, is free from prohibited harassment. All employees are expected to avoid any behaviour or conduct that could reasonably be interpreted as a violation of this policy'. The respondent says that this policy forms part of the Employee Handbook and is given to all its employees when they start employment and when updated and it is accessible at all times on the respondent's intranet.
3.6 The respondent strenuously denies that it has 'sought to push matters under the carpet' as alleged. Rather it has at all times treated the complainant's allegations as serious and it did everything it could to address her concerns. The respondent denies that it asked the complainant to withdraw her letter rather it endeavoured to ensure that the complainant understood that its offer of internal mediation was separate to her claim under the Employment Equality Acts, 1998-2007. According to the respondent it is its policy in factual investigations that a complainant should be accompanied by a colleague or staff representative rather than a legal representative and it was for this reason that the complainant was requested not to bring her legal representative to meetings as part of the internal investigation of her complaint. In relation to the request for further information (Form EE2) the respondent says that it was not in a position to respond to this until the internal investigation had been completed. On completion of the investigation the respondent believed that it had answered the questions in correspondence and that it was not, therefore, necessary to complete Form EE2.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision in this claim is whether or not the complainant was subjected to sexual harassment by the respondent within the meaning of Sections 6 and 14A of the Employment Equality Acts, 1998-2007 on the grounds of her gender and sexual orientation and in contravention of Section 8 of those Acts. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
4.2 The complainant has referred a claim of sexual harassment on the grounds of gender and sexual orientation to the Equality Tribunal for investigation and decision. At the hearing of this claim she withdrew her claim of sexual harassment on the grounds of gender. In relation to her claim of sexual harassment on the grounds of sexual orientation she stated that the words spoken to her by Ms. B related to her sexuality and were such as to create intimidation and affect her dignity. I find that this is properly a claim of harassment on the sexual orientation ground. I note that the respondent has argued that if I deem this to be a claim of harassment on the sexual orientation ground then it is out of time having regard to the time limits set out in the Acts and I have no jurisdiction to investigate it. I do not accept this argument having regard to the High Court Ruling in the case of Long v The Labour Court .
4.3 Both the complainant and Ms. B attended a post-conference dinner in Sligo in September, 2005. They sat opposite each other at a long table with work colleagues sitting on both sides of them. The complainant and Ms. B both agree that they engaged in conversation for a considerable period of time throughout the course of the dinner and the conversation continued after they had moved away from the dinner table into a corridor. While both the complainant and Ms. B agree that the issue of sexuality was discussed there is a conflict between them as to comments Ms. B is alleged to have made. It was alleged by the complainant at the hearing of this claim that Ms. B made the remark "you know I hate you" during the meal on a number of occasions. It was then after the meal that Ms. B is alleged to have said that she (Ms. B) hated the complainant because she was lesbian and then she said that she hated her because she was gay. According to the complainant Ms. B used the word 'lesbian' only on one occasion and afterwards at all times used the word 'gay'. The complainant alleged that Ms. B stated that she hated the complainant because she lost all respect for her the day she found out she was gay. She (Ms. B) is also alleged to have said 'the idea of two women together was unnatural'. According to the complainant there followed a discussion about it thereafter where she (the complainant) pointed out to Ms. B that her sexuality was none of Ms. B's business in the same way as Ms. B's sexuality was none of her business. The complainant stated, at the hearing of this claim, that the remainder of the conversation related to the issue of sexuality including telling Ms. B about coming out, informing her parents and personal things about herself (i.e. the complainant).
4.4 On the other hand Ms. B stated that the word 'hate' is very strong and not one to be used lightly. She denied using this word to the complainant. She further denied saying that she hated the complainant and had no respect for her. It is the Ms. B's evidence that the complainant and herself had a detailed conversation about the issue of sexuality and much of it related to the impact of coming out in the context of promotion within the respondent organisation. According to Ms. B the complainant did not seem in any way upset by the conversation.
4.5 I note that there are no witnesses who can corroborate the complainant's allegations. If, as is alleged, Ms. B made the comment "You know I hate you" on several occasions during the dinner in a situation where they were sitting opposite each other, I find it difficult to understand that not one of the persons sitting on either side of the complainant or Ms. B heard this comment being made. I further find it difficult to understand that a person allegedly being harassed on account of her sexuality would proceed to engage in a detailed conversation with the alleged harasser about issues, which are of a very personal nature especially in circumstances where she deemed this person to be drunk. Furthermore it is the case that the complainant and Ms. B have the same sexual orientation and this fact was known to both in advance of their discussions during and after the post-conference dinner. The complainant placed great emphasis on the fact that Ms. B had been drinking alcohol both before and during the dinner. She argued that even if she was drunk there was no excuse for these comments. I understand that both the complainant and Ms. B had consumed alcohol on this occasion and I find that the consumption of alcohol is not an issue in terms of the allegations made in this complaint. In the circumstances I find that the complainant has failed to establish a prima facie claim of harassment on the grounds of sexual orientation.
4.6 The respondent has stated that it relies on the defence provided by Section 15(3) of the Acts on the basis that it took such steps as were practicable to prevent an employee from doing the alleged act, or from doing such act during the course of his/her employment. I note that the respondent did conduct an investigation into the complaint. Interviews with all relevant persons were documented and signed both by the interviewer and the interviewee. There was no undue delay in conducting the investigation and the respondent made a finding on the basis of the evidence. On notifying the complainant on the findings of the investigation the respondent did offer the complainant mediation between herself and Ms. B in order to facilitate an improvement in their relationship. I note that it took time to arrange this mediation due to the complainant's insistence that the mediation be conducted by an independent facilitator rather than by the person who had conducted the investigation as was being suggested by the respondent organisation. Both the complainant and Ms. B agreed that they were happy with the outcome of the mediation process. In the circumstances of this case I find that it was appropriate that the mediation was conducted by an external facilitator. It is not appropriate that a person who carries out an investigation into a claim would then proceed to mediate on the issues of that claim simply because that person has made a finding which invariably finds in favour of one person and against the other. In these circumstances the investigator is compromised especially in the eyes of the person against whom the finding is made. It should be noted that, in the Equality Tribunal, an Equality Mediation Officer who mediates on a case that does not resolve at mediation, will not act as the investigating Equality Officer on that same case.
4.7 In conclusion I find that the complainant has failed to establish a prima facie case of harassment on the grounds of sexual orientation. The respondent, in line with its policy on Bullying and Harassment, which is set out in its Employee Handbook (which the respondent says was issued to all staff and information sessions were held on the provisions of same), undertook a thorough investigation of the claim and issued its findings. At the hearing of this claim the complainant indicated that she was happy with the manner in which the investigation was conducted and the investigator was, at all times, very respectful. However, she was unhappy about the findings of the investigation stating that she felt that she was not believed. What the complainant was seeking from the investigation was:
- an apology from Ms. B;
- the drawing up of a Charter on Dignity in the Workplace so that her rights to dignity in the workplace would be upheld;
- training for staff on Equality Policies and Procedures;
- financial contribution towards her legal fees.
I note that when the complainant was notified of the findings of the investigation she was advised that she could appeal against these and was given a period of some three months in which to do so. In a letter to the respondent, dated the day before the expiration of that appeal period, the complainant stated that she would, very reluctantly be appealing the outcome of the investigation if mediation with an external facilitator did not proceed. As the mediation did proceed and was successful, the outcome of the investigation was not appealed. I am satisfied that the respondent acted appropriately in relation to its handling of this claim.
5. DECISION
5.1 In view of the foregoing I find that Ms. M has failed to establish a prima facie case of harassment on the grounds of sexual orientation in terms of Sections 6 and 14A of the Employment Equality Acts, 1998-2007. I further find that the respondent acted in accordance with its policies, on receipt of the complaint.
______________________
Gerardine Coyle
Equality Officer
14th November, 2007