Ms. C
(Represented by Joynt & Crawford Solicitors)
vs
TMD
(Represented by Gill Traynor Solicitors)
1. DISPUTE
1.1 The dispute concerns a claim by Ms. C that she has been subjected to discriminatory treatment, discriminatory dismissal, harassment and sexual harassment by TMD on the grounds of gender, marital status, family status and religion within the meaning of Sections 6(1), 6(2) and 14A of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of those Acts. She further alleges that she has been subjected to victimisation in terms of Section 74(2) of the Acts.
2. BACKGROUND
2.1 The complainant alleges that she was subjected to discriminatory treatment, harassment and sexual harassment by the respondent on the grounds of gender, marital status, family status and religion. She further contends that her dismissal was discriminatory under the provisions of the 1998-2004 Act. The complainant also alleges that she was subjected to victimisation in terms of Section 74(2) of the Acts. The respondent denies all the allegations.
2.2 Consequently the complainant referred her complaint of discriminatory treatment, discriminatory dismissal, harassment, sexual harassment and victimisation to the Director of Equality Investigations on 25th July, 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 16th March, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 28th August, 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
Discrimination & Harassment on grounds of Gender:
3.1 It is the complainant's contention that Mr. A of the respondent organisation repeatedly made remarks of a discriminatory nature on the grounds of her gender. For instance in January, 2005 Mr. A told her that "women aren't worth a shite once they have children". The complainant says that Mr. A made repeated remarks about her choice of clothing. On one occasion it is alleged that Mr. A informed her that she looked like a "fisherwoman" and in September, 2004 he remarked that a particular coat she was wearing made her look like "a Romanian". The complainant says that he did not make such remarks to the other male employee. It is the complainant's submission that Mr. A also stated that a skirt she was wearing made her look sexy and that she should not wear a skirt around the office as the workmen he had employed were not able to concentrate. No comments were made to the male employee about his clothing. Furthermore the complainant alleges that Mr. A commented on the colour of her hair saying that it was awful and that she should wash it. She says that when male clients attended the office Mr. A would remark that she "could do worse". It is the complainant's submission that Mr. A felt free to comment on her personal life on the grounds of gender.
3.2 The complainant says that in March, 2005 Mr. A informed her that she should take more exercise as she needed to lose weight and tone up but he did not make such comments to the male employee. According to the complainant she felt constantly harassed by these comments. The complainant says that when she informed Mr. A that she did not appreciate his personal comments and stated that they were inappropriate Mr. A found this to be a great source of amusement which the complainant found to be degrading and humiliating. It is the complainant's submission that she found all of the foregoing comments to be offensive and felt that the comments violated her own personal dignity. Furthermore she felt that the environment created by these comments was intimidating and hostile. The complainant says that it got to the stage that she began to have difficulty sleeping due to the anxiety and upset caused to her in her work environment.
Sexual Harassement:
3.3 The complainant says that when she would wear skirts to work Mr. A would inform her that they made her look sexy. She also refers to the comment about workmen being distracted and that she should not wear clothes like that around old men. Again as previously stated Mr. A's comment that she could do worse when certain male clients attended the respondent organisation. The complainant says that she found this humiliating and degrading. According to the complainant Mr. A was well aware that she did not appreciate the comments he made and these comments made her feel uncomfortable and upset. It is the complainant's submission that on 25th February, 2005 she informed Mr. A that she did not appreciate his personal comments but all he did was to jeer her and found her reaction to his comments amusing. The complainant says that this further humiliated and upset her.
3.4 The complainant says that, on one particular occasion, Mr. A relayed to her a conversation he had had with a friend. Mr. A informed her that this friend recently had sex with his ex-wife and Mr. A proceeded to give very intimate and graphic details about the event. The complainant says that this made her feel uncomfortable. It is the complainant's submission that, by making these remarks, Mr. A created an atmosphere in which she felt uncomfortable. The remarks about her clothing made her feel incredibly self-conscious and degraded. According to the complainant she takes great pride in her appearance and felt very strongly that no one had the right to unilaterally comment on her dress. The complainant says that Mr. A felt that it was acceptable to comment on her appearance and she felt especially degraded when Mr. A said that she looked "sexy".
Discrimination & Harassment on the grounds of Marital and Family Status:
3.5 The complainant alleges that Mr. A continually asked her when she was going to have children and informed her that it was expected of her to have a large family straight away. According to the complainant she had just got recently married when she came into the employment of the respondent organisation. She says that she found Mr. A's insinuations that her marriage would end in separation or divorce to be very offensive and upsetting. The complainant says that each time there was a mention of someone separating or divorcing Mr. A would tell her that it was all ahead of her, implying that her marriage would end in separation or divorce.
3.6 The complainant says that Mr. A's comment that "women aren't worth a shite once they have children" was most definitely directed at the complainant. It appears that Mr. A was implying that the quality of the complainant's work would decrease as soon as she had children. The complainant says that this was grossly offensive and discriminatory. It is the complainant's submission that it seemed to be Mr. A's belief that as the complainant was recently married she would automatically be having children as this was the only role for a woman. According to the complainant Mr. A felt that he had a right to make comments on and about her personal life but he did not do the same to the male employee. The complainant says that she found this to be humiliating, degrading and stressful and she never knew what Mr. A was about to say next which was a cause of great anxiety to her.
Discrimination & Harassment on the grounds of Religion:
3.7 The complainant alleges that Mr. A consistently made remarks about her religion using the term "Black Protestant" and telling her that Roman Catholicism was the only true faith. According to the complainant Mr. A informed her that she should convert to Roman Catholicism and referred to her religion as a "schism". It is the complainant's submission that Mr. A felt that it was acceptable to make these comments about her religion without any regard to her sensitivities or feelings. The complainant says that no such comment was made to the other employee in the organisation. It is the complainant's submission that Mr. A's conduct in this regard suggests that he was of the belief that because she was a member of the Church of Ireland that it was acceptable to make derogatory remarks about her religion. It is her further belief that if she had been a Roman Catholic Mr. A would not have made these comments to her.
Loss caused by Mr. A's behaviour:
3.8 The complainant says that in April, 2005 Mr. A started to make comments about her performance at work saying that she did not have the proper attitude towards her work. At one point Mr. A stated that her work was "a heap of shite". It is the complainant's submission that prior to this the respondent had never made any comments about her work performance. The complainant says that Mr. A also stated that she did not give a damn about the business. As a result of a litany of comments from Mr. A the complainant says that the atmosphere in the organisation became unbearable for her. According to herself she was having trouble sleeping because of the anxiety of having to work the following day. It is the complainant's contention that Mr. A created an atmosphere of tension and humiliation for her at work and she was constantly degraded and humiliated by him. She says that in the end she was forced to resign from her post as she felt that she could no longer continue to work in an environment where she was subjected to constant discriminatory and humiliating comments from Mr. A. The complainant says that at no time did Mr. A take her complaints about his behaviour seriously but rather found them to be amusing. Although the complainant had not secured another source of employment she felt that she could no longer continue to remain in Mr. A's employment and she handed in her notice. The complainant says that Mr. A's behaviour affected her health and her self-esteem and it was for this reason that she felt that she had no option but to hand in her notice. It is the complainant's submission that Mr. A refused to provide her with full pay in lieu of notice or the full amounts of the holiday pay due to her.
Other Issues:
3.9 The complainant made a Request for Information from Mr. A under the Employment Equality Acts, 1998-2004 and he responded. Further to his response the complainant makes the following comments:
- It is the complainant's submission that the context in which Mr. A is alleged to have said that "women aren't worth a shite once they have children" was that Mr. A had engaged a female graphic designer to set up a website. After the birth of one of her children she was on two weeks leave before returning to her office and when Mr. A was unable to talk to her directly during this time he made the comment and the complainant says that he indicated to her that she would be expected to have loads of children.
- The complainant says that the comments about the colour in her hair went on for 3 days after she had slightly changed the colour.
- The complainant denies the alleged comment she made about Mr. A's hat and says that she has never seen Mr. A wear a hat.
- The complainant notes that previously she had worked in a bank and had worn clothing appropriate to an office environment at all times.
- The complainant denies that she referred to the town in which she worked as a "Protestant town" and notes that the Church of Ireland community makes up about 5% of the population.
- The complainant refutes the suggestion that she made fun of or sneered at her mother-in-law and she says that she finds this allegation offensive.
- In relation to payments due the complainant notes that Mr. A has failed to take account of the half day worked by her on 15th April, 2005 when she was forced to leave the organisation because of Mr. A's behaviour. She further states that he has not taken into account weekends worked including Easter Sunday (27th March, 2005).
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
Discrimination & Harassment on the grounds of Gender:
4.1 Mr. A denies that he made remarks of a discriminatory nature on the grounds of the complainant's gender as alleged. He further denies that he made repeated remarks about her choice of clothing. Mr. A states that the remark in relation to a "fisherwoman" and a "Romanian" were made jokingly in response to a comment from the complainant whereby on his arrival to work she immediately called him a "knacker" because of his clothes and a hat he was wearing. (Mr. A notes that he does wear hats on occasion and he has several of them). Jokingly and by way of a retort Mr. A says that he said that she looked like a "fisherwoman and a Romanian" and her response was to laugh. Mr. A denies that he said that the complainant looked sexy and that workmen would not be able to concentrate because of her skirt. It is Mr. A's contention that, on one occasion, he informed the complainant that her dress code was inappropriate and informed her of the dress code in an office situation. Mr. A notes that this was in her contract of employment which he discovered was missing from his files in early April, 2005.
4.2 Mr. A notes that in February, 2005 a meeting was held in the office with one of Mr. A's most prominent clients at which all staff attended. After the meeting when the client had left Mr. A states that the complainant alleged to him and to the other employee present that she had been groped by the client. Mr. A states that there was no substance to this as it did not occur and that was clearly stated to her by Mr. A and by the other employee. According to Mr. A this claim caused disbelief and left him in huge doubt as to her integrity purely on the grounds that both he and the fellow employee were present throughout the entire meeting. Mr. A states that on a separate date the complainant had made a statement to him and the fellow employee that her father-in-law had made inappropriate remarks and had attempted to grope her.
4.3 Mr. A denies the comment as outlined by the complainant regarding the changing the colour of her hair and says that, on one occasion, he noted that her hair colour had changed and the remark was made as a compliment. It is Mr. A's submission that he did not make comments that the complainant "could do worse" when male clients attended the organisation. In relation to the alleged comment about losing weight and toning up Mr. A denies this and says that the issue of health and fitness did arise and as he is a member of a Health Club his input was one of encouragement to all staff to keep fit and he denies that gender was an issue. Mr. A says that, at no stage, did he ever make inappropriate personal comments to the complainant and he notes that she never stated to him or to her fellow employee that he had such difficulties. It is Mr. A's submission that there was no hostility or intimidation by him to any of his employees. According to Mr. A the complainant did state that she was having 'sleeping difficulties'. She stated that it had been an on-going problem, which was present before her employment with Mr. A. Mr. A states that the complainant's contract of one year commenced on 1st November, 2004 and after six weeks into her contract she took two days sick leave and afterwards said that she suffered from insomnia and that she would be 'up all night reading'. Mr. A says that the complainant had stated that it was a hereditary problem and she also stated that she had continuing health problems and was attending a specialist. According to Mr. A the complainant had explained that this was the reason she had taken a year sick leave of absence from her previous employer (the bank). Mr. A notes that these health problems were continually referred to by the complainant throughout her employment. It is Mr. A's submission that the complainant had, on many occasions, made statements that she had financial difficulties and family disputes, which caused her anxiety. As a result a sympathetic view was taken and the complainant was paid for these two days sick leave.
Sexual Harassment:
4.4 Mr. A denies that he ever made any comments to the complainant about a friend having sex with an ex-wife. It is Mr. A's submission that there was only one occasion when the complainant was inappropriately dressed and on that occasion he informed her of the dress code expected in an office situation. According to Mr. A he did not 'jeer' at her. It is Mr. A's submission that he never told the complainant that she looked sexy as alleged. Mr. A denies that the complainant ever stated to him that she felt uncomfortable and upset by any of his actions or by the office environment at any time or on any date prior to 18th February, 2005 when she disputed continuation of sick leave payments being made to her.
4.5 Mr. A notes that the complainant took sick leave on 18th January and again on 16th and 17th February, 2005. During this period a number of informal interviews were held with the complainant and Mr. A says that she explained that during this period, as well as her health problems, she was under huge and significant financial pressures. According to Mr. A this was a great source of stress to the complainant and it significantly affected her ability to work. It is Mr. A's submission that she was continually on her mobile trying to resolve this issue. Mr. A says that a sympathetic view was taken and she was assisted and accommodated in whatever way possible to resolve the issues. According to Mr. A the complainant presented him with her own completed salary cheque to be signed on 18th February, 2005 (after taking two days sick leave). Having reviewed her situation and mindful of the question mark over her integrity Mr. A says that he told her that in future she would no longer be paid for sick leave. Mr. A says that the complainant took exception to this and claimed that she had her 'rights'. However Mr. A states that he informed the complainant that it was a small business and he could not afford to pay sick leave on a continuous basis and under her contract the payment of salary during certified and uncertified sick leave is at the discretion of the organisation.
Discrimination & Harassment on the grounds of Marital and Family Status:
4.6 Mr. A denies that he ever asked the complainant when she was going to have children. According to Mr. A it was the complainant who raised the issue of family and who, on many occasions, purposely discussed her family and in-laws with both Mr. A and her fellow employee. Mr. A says that it was the complainant who raised the issue of having a family and this was in relation to the appearance of her mother-in-law. It is Mr. A's submission that the complainant's mother-in-law worked in the local hotel as part of the kitchen staff and she regularly passed the respondent organisation delivering lunches. Mr. A says that it was on one such occasion that the complainant stated that if she had children she hoped they would not in anyway resemble her mother-in-law.
4.7 Mr. A denies ever making any statements attributed to him or having ever implied that the complainant's marriage would end in divorce. In the respondent's business Mr. A states that they come across occasional separation cases. Mr. A accepts that he did comment to the complainant and her fellow employee at the number of marriages that fail and that it is becoming more frequent and that it seemed that it could happen to anyone. It is Mr. A's submission that he never commented on her personal life and he further notes that the complainant never told him that she had difficulties with him until 18th February, 2005 when she was not pleased that he had told her that he would not be in a position to continue to pay her when she was absent on sick leave.
Discrimination & Harassment on the grounds of Religion:
4.8 Mr. A says that he completely refutes the allegation that he discriminated against and harassed the complainant on the grounds of religion. He notes that he was well aware of the complainant's religion prior to her commencing work for him on 1st November, 2004. According to Mr. A the complainant got married in October, 2004 and invited him to her wedding which he was happy to attend. Mr. A says that his decision to employ the complainant had nothing to do with her religion. It is Mr. A's submission that he did not make remarks about the complainant's religion and he did not use the term 'Black Protestant' in relation to her. Mr. A further denies saying to the complainant that Roman Catholicism was the only true faith and he says that he did not suggest that she should convert to Roman Catholicism. According to Mr. A the term 'schism' refers to a discussion he had with the complainant at the time of the Pope's death. Mr. A says that the complainant held that the level of coverage of the Pope's death was discriminatory against Protestants and that the town in which they reside was a Protestant town. It is Mr. A's submission that he stated that he believed that the coverage of the Pope's death was justified as he was an International leader and that the Protestant religion was a breakaway group from the Catholic religion.
4.9 Mr. A says that he does not believe that it is the right of anyone to make derogatory remarks about anyone else's religion and he denies making remarks about the complainant's religion. According to Mr. A he made a comment to the complainant in reply to her protest about the coverage that the Pope's death received. He says that at the time he stated that the difference between Protestantism and Catholicism was an age old 'schism'. Mr. A says that there was no offence intended and the complainant did not display any sign of offence taken. It is Mr. A's submission that this was a discussion and the complainant's fellow employee was present. Mr. A denies that he made constant references to her religion.
Loss caused by Mr. A's behaviour:
4.10 Mr. A accepts that he was critical of the complainant's work record when it was poor. According to Mr. A her work performance was poor at times and specifically so after 18th February, 2005. However he denies that he referred to her work in the manner that she has stated i.e. 'a heap of shite'. It is Mr. A's submission that he regularly analysed the complainant's work through informal discussion. He says that competition is great and if he did not analyse employees' work performance he would be out of business. It is his submission that he consistently tried to facilitate the complainant's poor work record because of the personal pressures and anxieties she consistently said that she was under namely health, personal and financial. Mr. A says that, during her work period with him, the complainant had explained that she did not like the pressures associated with the business and she would not wish to continue in this type of business. According to Mr. A the complainant had said that she easily suffered from stress and she often stated that she was going to make a career change. Mr. A notes that she took up a long distance learning course in interior design with a college in the UK.
4.11 Mr. A states that during her work period in the respondent organisation her work performance was exceptionally variable. According to Mr. A he informed the complainant when he was unhappy with her work and told her that she would have to improve her effort. Mr. A says that this poor work performance was exemplified by poorly prepared documents, reading newspapers and magazines, leaving a public office unattended, searching the internet while on her own in the office, bringing in her own computer to do work in relation to her long distance learning course and unsatisfactory work when she was out of the office on official business. It is Mr. A's submission that if there were certain pressures with clients after a telephone conversation the complainant would call them 'fucking nobodies'. Mr. A says that he found this behaviour offensive, both by remark and attitude, and he told the complainant that this behaviour and language was not acceptable to him. According to Mr. A when he criticised the complainant's poor work rate around 4th/5th April, 2005 her response was that she did not 'have to listen to this shit'. At this time Mr. A says that he gave the complainant a caution and told her that her work would be reviewed at the six month period which was in several weeks time. Mr. A says that on Monday, 11th April, 2005 the complainant left the office in the morning after receiving a call on her mobile phone. She told her fellow employee that her granny was very ill and that she would be gone for the day. Then on Friday, 15th April, 2004 the complainant went into her fellow employee's office at about 10.00a.m. and stated that she was resigning. According to Mr. A she said that someone would be calling in for her 'cheque' before lunch. Her father later called to collect the cheque but Mr. A told him that the Accountant would have to calculate how much was due to her given that she had walked out without giving any notice. Mr. A notes that the complainant's resignation took place two weeks before her formal review and approximately two weeks after she had received a caution.
4.12 Mr. A says that he consistently tried to facilitate the complainant in her work environment. He says that he is unaware of what arrangements the complainant had in relation to another source of employment prior to her resignation on 15th April, 2005 but he is aware that she was in employment following her resignation from his organisation. It is Mr. A's submission that he is not aware of the date the complainant commenced employment but she did use his name as a reference for previous employment and this was made public. Mr. A says that he is unaware of pay due to the complainant but he has consistently stated that if pay is due he would remunerate her immediately.
Other Issues:
4.13 Mr. A totally refutes the allegation by the complainant that he ever made the statement about women once they have had a child. He further refutes that he ever made the alleged statement about the female graphic designer. Mr. A says that he had nothing but respect for the graphic designer and her work, having completed several projects with her in the past and he would hope to do so again in the future. It is Mr. A's submission that her gender was of no significance to him as he employed her to do a job. When she was not in her office Mr. A says that he dealt with her assistant. Mr. A says that there was no comment made about the fact that she had children and he says that he did not indicate to the complainant at any stage that she would have to have loads of children.
4.14 In relation to monies owed to the complainant Mr. A states that the complainant did not work a half day on 15th April, 2005. Rather she arrived at work and announced that she was resigning and left immediately thereafter. In relation to weekend work including Easter Sunday (27th March, 2005) Mr. A states that the complainant was given paid leave on Monday, 31st January; Friday, 4th March and a half day on Monday, 11th April, 2005 in lieu of work. Mr. A re-iterates that he is unaware of any monies that are owed to the complainant but he is happy to remunerate her if monies are outstanding.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was subjected to discriminatory treatment, discriminatory dismissal, harassment and sexual harassment by the respondent within the meaning of Sections 6, 8 and 14A of the Employment Equality Acts, 1998-2004 on the grounds of her gender, marital status, family status and religion. I must also address the allegation of victimisation in terms of Section 74(2) of the Acts. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 There is a serious conflict between the parties in relation to the facts of this case. In such circumstances I must decide on the balance of probabilities whose version of events is more credible.
5.3 Harassment and Sexual Harassment are defined in the Employment Equality Acts, 1998-2004 as follows:
"references to 'harassment' are to any form of unwanted conduct related to any of the discriminatory grounds, and
references to 'sexual harassment' are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature
being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."
5.4 In this case the complainant has alleged that Mr. A:
- told her that "women aren't worth a shite once they have children";
- made repeated remarks about her choice of clothing including comments such as she looked like a 'fisherwoman' and a 'Romanian';
- adversely commented on a colour she had put in her hair;
- that skirts she wore made her look sexy and that it would distract workmen he had employed to do work for him;
- made the comment that 'she could do worse' when male clients attended the office. At the hearing of this claim it was claimed, for the first time, that this comment was made specifically in relation to one client who had indicated to Mr. A that he was attracted to the complainant;
- told the complainant that she should lose weight and tone up;
- described in graphic detail sex a friend had with his ex-wife;
- asked her when she was going to have children and implied that she would be expected to have a large family;
- insinuated that her marriage would end in separation or divorce;
- consistently made remarks about her religion using the term "Black Protestant", referring to her religion as a 'schism' and suggesting that she convert to Roman Catholicism which is the only true faith;
- criticised her work saying that she did not have the right attitude and that her work was a 'heap of shite'.
5.5 In his defence Mr. A stated as follows:
- denied that he said that 'women aren't worth a shite once they have children';
- accepted that he did say to the complainant that she looked like a 'Romanian' and possibly a 'fisherwoman' but this was in response to her comment that he looked like a 'knacker' after arriving into work wearing a hat and this happened on only one occasion;
- did comment on the change in the colour of her hair and the remark was made as a compliment;
- denied that he told the complainant that she looked sexy or that her attire was a cause of distraction to workmen he had employed;
- denied that he said to the complainant that 'she could do worse' in relation to any of his male clients;
- denied that he told the complainant that she should lose weight and tone up but did say that everyone should be a member of a gym;
- emphatically denied that he described in graphic detail sex a friend had with his ex-wife;
- denied that he asked the complainant when she was going to have children or imply that she would be expected to have a large family;
- stated that, on occasion, he did comment on the number of marriage breakdowns which were occurring (this was an issue which was encountered in his business) and would have said that this could happen to anyone but he denied ever insinuating that the complainant's marriage would end in separation or divorce;
- denied that he used the term 'Black Protestant' in relation to her religion, he accepted that he did say that the difference between Protestantism and Catholicism was an age old 'schism' and he said that he made this comment in the context of the complainant's protest at the level of coverage that the Pope's death had received, he denied that he told the complainant that Roman Catholicism was the only true faith or that he suggested that she should convert to it;
- accepted that he had to speak to the complainant about her work performance which he considered was poor especially after 18th February, 2005 when he told her that he would not be giving her sick pay in future, he denied describing her work as a 'heap of shite';
- accepted that, on one occasion, he had to speak to the complainant about her manner of dress as he considered it inappropriate for an office environment and not in accordance with the dress code set out in her contract of employment. According to Mr. A the complainant was wearing a low cut top, which was more appropriate attire for going to a club, not an office work environment.
5.6 At my request the male employee i.e. the only other person working for Mr. A attended the hearing of this claim. His evidence did not assist me in deciding on the credibility of the events as outlined by either the complainant or the respondent. The witness stated that it was a small working environment so everyone would be part of conversations and banter within the office. He said that he was not aware of many of the allegations the complainant made about Mr. A for instance he never heard Mr. A describe her as sexy; he never heard Mr. A comment about the colour of her hair and if this issue was a topic of conversation for three days (as was alleged by the complainant at the hearing of this claim) he would have heard it and be able to recall it; he had no recollection of the complainant being told that she should lose weight; he confirmed that the complainant called Mr. A a 'knacker' because of a hideous hat he was wearing but he could not recall Mr. A saying in response that the complainant was either a 'Romanian' or a 'fisherwoman'; and he could not recall Mr. A telling the complainant that her marriage would end in divorce. The witness did recall that there were issues with the complainant's work but stated that there were not a lot; he mentioned that the complainant suffered from insomnia and was always very tired; that she had financial worries regarding a mortgage for her home and family issues with her in-laws. The witness stated that Mr. A did not jeer at the complainant and he further stated that the complainant never complained to him about Mr. A's behaviour. Both Mr. A and the male colleague stated that the complainant alleged that she had been groped by a male client after a meeting on 7th February, 2005 which was attended by all three staff. The witness said that the complainant did not like this particular client. I note that the complainant herself denies this allegation and says that she did like the client.
5.7 Having heard the evidence of both parties it is impossible for me to determine that the complainant's version of events is more credible to that of the respondent or vice versa. In the circumstances I find that the complainant has failed to establish a prima facie case of discriminatory treatment or harassment on the grounds of gender or religion. I also find that she has failed to establish a prima facie case of sexual harassment. The complainant alleged that she was subjected to discriminatory treatment, harassment and sexual harassment on the grounds of her family status. Having regard to the definition of family status under the Acts I find that, at the time of the allegations, the complainant did not have a family status. At the hearing of this claim she stated that it was an imputed family status, which would be discrimination. The legislation makes no provision for imputed family status. It is alleged that the complainant was subjected to victimisation in terms of Section 74(2) of the 1998-2004 Acts. At the hearing of this claim the complainant stated that Mr. A sneered at her when she complained to him about his behaviour on 25th February, 2005 and that his actions thereafter could be deemed to amount to victimisation. There is no evidence that the complainant verbally complained to Mr. A about his behaviour. At the hearing of this claim she submitted a letter of complaint which she says she wrote to Mr. A on 25th February, 2005 but which she did not give him at the time but handed to him along with her letter of resignation on 15th April, 2005 and another letter of complaint dated 10th April, 2005. In the circumstances I do not find that the complainant was subjected to victimisation as alleged. The complainant alleges that she was subjected to discriminatory dismissal consequent on the stress she suffered as a result of the actions of Mr. A. At the hearing of this claim the complainant's male colleague expressed his genuine surprise at the complainant's sudden resignation from the organisation. I find that the complainant was not subjected to discriminatory dismissal.
5.8 I note that Mr. A does not have an Equality Policy or a Sexual Harassment Policy in place in his organisation. While his business is small it does not mean that these policies should not exist and be available to staff who confirm that they have read and understood them. The Sexual Harassment Policy should clearly outline the procedure, which an employee can follow in the event of an allegation of harassment or sexual harassment against Mr. A - the employer.
6. DECISION
6.1 I find that it is impossible to determine which version of events is more credible in this claim. In the circumstances I find that Ms. C has failed to establish a prima facie claim of discriminatory treatment or harassment on the grounds of gender or religion. I further find that she has failed to establish a prima facie case of sexual harassment.
6.2 I find that Ms. C does not have a valid claim of discriminatory treatment, harassment or sexual harassment on the grounds of family status. I also find that Ms. C has failed to establish a prima facie claim of victimisation under Section 74(2) of the Employment Equality Acts, 1998-2004. It is my finding that the evidence does not support Ms. C's allegation of discriminatory dismissal under the 1998-2004 Acts.
6.3 I recommend that Mr. A draws up policies as outlined at paragraph 5.8 above and that he receives training in all aspects of the Employment Equality legislation.
______________________
Gerardine Coyle
Equality Officer
8th October, 2007