A Worker
-v-
A State Agency
Claim
1.1. The case concerns a claim by Mr B. that a State Agency discriminated against him on the grounds of gender, marital status, sexual orientation, religion, age, and race contrary to Sections 6(2)(a), 6(2)(b), 6(2)(d), 6(2)(e), 6(2)(f) and 6(2)(h) of the Employment Equality Acts 1998 to 2008, in permitting his harassment by a number of named work colleagues under the listed grounds. The complainant also claims that the respondent victimised him pursuant to S. 74(2) of the Acts, for making a legitimate complaint in these matters.
Background
2.1. The complainant submits that he was verbally and physically harassed by his co-workers under the grounds listed in paragraph 1.1. above, and that his lunch was tampered with on one occasion, making it inedible. He complained to the respondent about this incident, and submits that an internal investigation followed which did not identify the person who had committed this act. He further submits that the respondent notified the Gardaí of the incident and that he has since given a statement to Gardaí about the matter.
2.2. The respondent contends that the complainant has not established a prima facie case of less favourable treatment on the listed grounds. In addition, it specifically rejects all allegations of harassment made by the complainant, and submits that none of the alleged incidents, except for the tampered lunch, were brought to its attention prior to the filing of the case with the Tribunal.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 10 August 2006. On 5 October 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A submission was received from the complainant on 27 April 2007. A submission was received from the respondent on 18 October 2007. A joint hearing of the claim was held on 3 July 2008. The last piece of correspondence relating to the complaint was received on 30 July 2008.
Summary of the Complainant’s Written Submission
3.1. The complainant submits that on the day he started to work for the respondent, a named female co-worker showed him around and behaved in a flirtatious manner and that she commented he had a “bouncy walk”. He submits that during his lunch break, she got into his car uninvitedly. He submits that he kept the conversation on cars.
3.2. He submits that on the next day, the named female colleague said “The English are a different breed”. He submits it was said in a venomous tone.
3.4. He further submits that the named female colleague started calling him by a female version of his first name.
3.5. He submits that the named female colleague displayed “bizarrely uninviting behaviour” in front of the team, which disturbed the complainant and made his male colleagues hostile towards him.
3.6. He submits that by mid-November, he was frightened and isolated by the behaviour of his named female colleague, who was a peer rather than a superior, and afraid she would put him out of his job.
3.7. He submits that his personal property was interfered with and that he was viewed with contempt by most male staff.
3.8. He submits that as of 10 February 2006, he was able to stop her unwanted daily visits.
3.11. He further submits that the named male colleague told him that his temporary fixed term contract would not be extended because he, i.e. the complainant, had “not proven himself sexually” to the named female colleague.
3.12. The complainant also submits that the named male colleague made remarks about the complainant’s religion, but describes those as “too insignificant to bother with.”
3.14. The complainant further submits that on 13 February 2006, a flask containing his lunch was tampered with and that his lunch was rendered inedible. He submits that he notified his manager of the incident. He submits that his manager threatened him that any named suspect could possibly sue him for defamation of character. He further submits that he felt his manager did not want the hassle, but that he did want to make a written complaint. He submits that his manager’s response, and the respondent’s organisational response, to his complaint amount to victimisation.
3.15. The complainant submits that on 23 February 2006, he put in a formal complaint regarding the incident.
3.16. He submits that he went to the Gardaí, but that they would not register a complaint without a statement on the toxic effect of the substance in the complainant’s lunch. He further submits that he sent the report from the laboratory to the respondent’s Human Resource department, who re-imbursed him for the expense incurred. He submits that an internal investigation was then set up. This investigation then proved inconclusive as to who had tampered with the complainant’s lunch.
3.17. The complainant submits that the Tribunal should assist him in furthering that investigation.
Summary of the Respondent’s Written Submission
4.1. The respondent denies harassment and sexual harassment of the complainant on grounds of gender, marital status, sexual orientation, religion, age and race. Specifically, the respondent submitted as follows:
4.2. The respondent denies that three named Irish colleagues of the complainant harassed him because he was a “younger English male”. The respondent and all named worker deny harassing the complainant on ground of age or race. The respondent further notes that the complainant did not bring the matter to their attention.
4.3. The respondent and the complainant’s named female co-worker deny the shoelace incident (see para 3.3 above).
4.4. The respondent and the complainant’s named male co-worker deny that the male co-worker said to the complainant: “I thought you were a girl” (see para 3.10 above). The respondent and the named male co-worker deny harassment on the grounds of either gender or sexual orientation. The respondent further notes that the complainant did not bring the matter to their attention at any time.
4.5. The respondent notes that it is unclear from the complainant’s submission how he was harassed by his named female colleague on marital status grounds. The respondent and the named female colleague deny so harassing the complainant.
4.6. The respondent and the named male colleague deny stating that the named male colleague said to the complainant that his contract would not be renewed unless he proved himself sexually to his named female colleague.
4.7. The respondent and the complainant’s named male co-worker deny harassment of the complainant on grounds of religion. The respondent further notes that the complainant did not bring the matter to their attention at any time.
4.8. With regard to the incident of 13 February 2006, where the complainant’s food was tampered with (see paras 3.14 to 3.17 above), the respondent accepts that the incident happened.
4.9. The respondent submits that when the complainant approached his manager, Mr G., on the matter on 14 February 2006, Mr G. requested that the complainant furnish him with a copy of the laboratory analysis so that the matter could be progressed. When the report was received on 22 February, the complainant was advised of his options under the respondent’s Respect and Dignity at Work Policy: raise the matter informally with his co-workers, or file a formal complaint.
4.10. The respondent submits that the complainant wrote to the HR department on 22 March 2006 to seek a formal investigation. The HR Director then informed him that he would need to formalise his complaint and detail it in writing. The HR Director then met with the complainant on 31 March 2006. The complainant advised that he was awaiting a lab report of a second food sample he had sent for analysis.
4.11. When the complainant met the respondent’s board to submit the second lab report on 5 May 2006, he also made allegations to the board that a named female colleague was harassing him sexually. The respondent submits that at the material time, the complainant advised that he was divulging this information confidentially and that he did not want the matter pursued.
4.13. The respondent denies that the complainant was victimised in the conduct of this investigation by his manager, Mr G.
4.14. The respondent submits that it had a Respect and Dignity at Work Policy in place at the material time that was designed to address any issues of bullying, harassment or other grievances among the workforce, and that the onus would have been on the complainant to use the mechanisms in that policy to address his concerns. The respondent submits it can rely on the defence in S. 14A(2) of the Acts, that it took steps that were reasonably practicable to prevent the complainant being harassed or treated differently in his workplace.
Conclusions of the Equality Officer
5.1. In relation to the complainant claim of harassment, I need to consider three different aspects of the evidence:
(a) Whether the complainant has established on the balance of probability that he was harassed in any of the incidents he described in his evidence. This includes an evaluation as to whether the events the complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment, and whether they were linked to any of the nine grounds under the Acts.
(b) Whether the respondent is vicariously liable for the harassment pursuant to S. 15 of the Acts.
(c) Whether the respondent took reasonable action to prevent harassment occurring in the workplace. This includes considering the extent to which the respondent was aware of the complainant’s experiences, to enable it to deal with the complainant’s complaint of harassment, and if it was aware, whether it took appropriate action to enable it to rely on the defence.
5.2. “Harassment” is defined in S. 14A(7)(a) of the Acts as any form of conduct related to any of the discriminatory grounds being conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. S. 14A(7)(b) further states that such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.3. S. 14A(2) of the Acts states that it shall be a defence for an employer to prove that the employer took such steps as are reasonably practicable … to prevent the person from harassing the victim or any class of persons including the victim. In the case law that has developed on harassment, this is understood to entail the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
5.4. In making my decision in this case, I have taken into account all of the evidence, written and oral, submitted to me by the complainant.
5.5. At the hearing, the complainant withdrew his complaint of harassment on grounds of religion.
5.6. As regards the incident of the complainant’s tampered lunch (see also paras 3.14 to 3.17 and 4.8 to 4.12 above), the complainant stated in evidence that there was no evidence of a connection of this incident to any of the prohibited grounds pursuant to S. 14A(7) of the Acts. Accordingly, I find that there is no prima facie case that this incident constitutes harassment within the meaning of the Acts. In so finding, I do not wish to downplay the seriousness of the incident, which is also recognised by the respondent. I understand from both parties that a Garda investigation into the matter is pending.
5.7. As regards harassment on ground of marital status, the complainant specified in oral evidence that he was in a long-term relationship with a woman at the material time. He stated that a named female colleague stated that since he had been with his partner for ten years, he “should get married”. He also stated that she said to him: “Why don’t you marry her and give us all a day out?” The complainant submitted that this amounted to harassment on marital status, as this was none of his colleague’s business. However, I do not see how these fairly neutral remarks should serve to violate a person’s dignity, or create an “intimidating, hostile, degrading, humiliating or offensive environment” for the person, as defined in the Acts. Accordingly, I find that the complainant has not established a prima facie case of harassment on the ground of marital status.
5.8. As regards harassment on the ground of age, the complainant specified at the hearing that he was 33 years of age at the material time. He stated again in general terms that his male colleagues had taken against him because he was a “younger English male”. The complainant did not specify any remark or incident that established a clear connection to his age in his evidence. Accordingly, I find that the complainant has not established a prima facie case of harassment on the ground of age.
5.9. As regards harassment on the ground of sexual orientation, the complainant stated in evidence that his named male colleague was aware of his relationship with a woman, and that all of his remarks were gender-related. The complainant repeated that the named male colleague said to him: “I though you were a girl”. The complainant’s named male colleague, in evidence, denied making the alleged remarks.
5.10. I find the complainant’s evidence in this matter to be more credible than that of the named male colleague, and accept that the remark has been made. However, I would like to note that the remark might only raise a prima facie case on grounds of sexual orientation if the complainant had been homosexual or bisexual. However, in the instant case, the named male colleague was aware of the complainant’s sexuality and relationship. Having considered all of the above, I find that the complainant has not established a prima facie case of harassment on grounds of sexual orientation.
5.12. The respondent submits that it did provide the complainant with a copy of the policy. Furthermore, the respondent submitted evidence about the roll-out of the policy in 2001 which shows that selected staff received specialised training as Designated Contact Persons to assist victims of harassment. The respondent also submitted documents in evidence that show that the policy, when it was introduced, was distributed to all staff. Last, one of the staff in the respondent’s HR division stated in oral evidence that she visited the complainant’s place of work regularly, and that she regularly spoke to the complainant in person, but was not aware of the complaints he later brought before the Tribunal.
5.13. I find the respondent’s evidence credible in this point. I therefore find that in this case, the respondent can rely on the defence provided by the Acts in S. 14A(2) that it took reasonably practicable steps to prevent the harassment of the complainant. The complainant did eventually complain to the respondent about certain events that he felt constituted harassment, and these were investigated, but not about others. The complainant could have complained to the respondent with regard to the behaviour of the named male colleague, but chose not to do so. Accordingly, his complaint to the Tribunal in this matter must fail.
5.14. With regard to the matter that the same named male colleague told him that his temporary fixed term contract would not be extended because he, i.e. the complainant, had “not proven himself sexually” to the named female colleague, the complainant specified at the hearing that a discussion ensued during a break on 10 February 2006, on what one would have to do to be kept on after the expiry of one’s fixed-term contract. He stated that his named male colleague then said: “C. proved himself the night of the Christmas party, which is why he’ll be kept on.” The named male colleague denies making this remark. It is important to note in this context that the colleague in question was the complainant’s superior.
5.15. On balance, I prefer the evidence of the complainant in this matter to that of the named male colleague, and accept that the named male colleague made the alleged remarks. In evaluating whether this episode constitutes a prima facie case of gender harassment within the meaning of the Acts, I first wish to note that the event took place at a time when the Equality Act 2004 was already operative, and therefore sexual harassment between two persons of the same gender had become prohibited conduct under the Acts.
5.16. While the respondent did not seek to aver that the remark was meant to be a joke (since it denied it was made at all), it might be considered to be so outré as to be clearly identifiable as a joke. That said, jokes, and in particular jokes that involve a sexual element, can cause considerable offence to the person they are directed at, and therefore fall under the categories of prohibited conduct that constitute harassment under the Acts. In this case, I am willing to accept that the remarks were offensive to the complainant, and therefore find that he has raised a prima facie case of harassment on the ground of gender in regard to them.
5.17. Still, as in para 5.11 above, the complainant stated that he did not complain to the respondent about the behaviour of the named male colleague, either when the incidents occurred, or when he raised his other complaints with the respondent.
5.18. I therefore find again that in this case, the respondent can rely on the defence provided by the Acts in S. 14A(2) that it took reasonably practicable steps to prevent the harassment of the complainant, and that his complaint to the Tribunal in this matter must fail.
5.19. The complainant also detailed a number of incidents which he perceived to be sexual harassment by a named female colleague. These include stalking, suggestive movements, attending work in unsuitably suggestive dress, invasion of his personal space, and various flirtatious, teasing behaviours that the complainant felt were inappropriate and which he submitted made him uncomfortable. The named female colleague, in evidence, denied behaving inappropriately towards the complainant.
5.20. It is common case that the complainant complained to the respondent about the behaviour of the named female colleague, in a meeting with the respondent Board on 7 May 2006. It is also common case that his complaints were then investigated. The complainant contends that this investigation was not carried out properly. However, the respondent submitted in evidence the internal report on the investigation. Apart from the complainant, the named female colleague and the male operatives on the team were interviewed, and that the named female colleague was interviewed a second time in the respondent’s headquarters, in respect of the complainant’s allegation of sexual harassment.
5.21. The respondent further stated that when a company investigation is launched into a complaint received, a panel is established, which has either the company’s Equality Officer, another named official of the respondent’s and an external person on it, or the CEO nominates a panel. Care is taken to avoid conflicts of interest. Everyone under investigation may bring a friend or a union representative along for the interview.
5.23. The complainant also made a number of complaints on harassment on grounds of race. He submitted that a named female colleague said, in what he described as a venomous tone: “The English – they are a different breed”. He gave the Tribunal a demonstration of the speaker’s tone of voice in oral evidence. He further submitted that he heard one named male colleague describe two members of a long-established Anglo-Irish family as c**ts. (See also para 3.13 above) He submitted that the named male colleague then turned to him and said to him: “They are English as well”. He further submitted that he felt there was general contempt and anti-British bias in the work team.
5.24. I find the complainant’s evidence to be credible with regard to these incidents, and find that he does establish a prima facie case of harassment on the ground of race. However, the complainant did not complain to the respondent about these remarks when they were made, or when he complained about the incident with his lunch and the alleged sexual harassment by his named female colleague. In oral evidence, he submitted he did not do so because he felt that as a fixed-term contract worker, he had no rights. In response to a direct question from the Equality Officer, he stated that he had never sought more information about his employment rights as a fixed term worker.
5.25. Still, as I have noted already in para 5.11 above, the complainant did eventually complain to the respondent about certain events that he felt constituted harassment, and these were investigated, but not about others. I therefore find that in this case, the respondent is justified in invoking the defence provided by the Acts in S. 14A(2) that it took reasonably practicable steps to prevent the harassment of the complainant, and that his complaint to the Tribunal of harassment on the ground of race must fail.
5.26. I now turn to the complainant’s allegations of victimisation and victimisatory dismissal.
5.27. The complainant contends that the manager of the fish farm where he was employed, when he brought various incidents of harassment to his attention, tried to dissuade him from taking the complaint further. The complainant stated that in his view, his manager’s response was “threatening”. The complainant stated that the manager said to him, on hearing about the food-tampering incident: “It’s your word against theirs, they will pull their unions out, you are going to need more than that to make a complaint.” The complainant further stated that the manager told him he could be sued for defamation. The manager, in oral evidence, denied making any of these remarks.
5.28. I find the complainant’s evidence in this instance to be more credible than that of the respondent’s witness. I accept that the manager response was as stated in the preceding paragraph, but I do not find the comment to be threatening, or victimising. S. 74(2) of the Acts defines “victimisation” as “dismissal or other adverse treatment” [emphasis added], that occurs when a complainant or witness are exercising their rights under the Acts. I cannot accept that straightforward advice constitutes “adverse treatment”. I further note that the complainant’s complaints, insofar as he chose to bring them to the attention of the respondent, were subsequently fully investigated.
5.29. The complainant further contends that the respondent’s investigation into his complaints was not properly carried out and that this also constitutes victimisation, but as I have already found in para 5.22 above, I am satisfied that the investigation was properly conducted. I therefore find that the complainant fails to make a prima facie case of victimisation with regard to the behaviour of his manager, or the respondent’s investigation into the complaints that the respondent had knowledge of.
5.30. Last, the complainant contends that he was victimisatorily dismissed, in that his contract was not renewed after he had made his complaint about the food-tampering incident. However, as the complainant himself submitted in evidence, he complained about the food-tampering incident on 14 February 2006. On 24 February 2006, his original fixed-term contract was due to expire. On 23 February 2006, the complainant received a letter from the respondent advising him that his contract had been extended to 24 March 2006. The respondent submitted that this extension was granted so that the complainant’s complaints could be investigated.
5.31. I find that the extension, rather than the non-renewal, of a fixed-term work contract on foot of a complaint, does not raise a prima facie case of victimisatory dismissal. Accordingly, I find that the complainant’s complaint of victimisatory dismissal fails.
Decision
6.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent
(i) did not discriminate against the complainant in his terms and conditions of employment contrary to S. 8(1)(b) of the Acts, by permitting his harassment on grounds of gender, race, age, marital status or sexual orientation contrary to S. 14A(7) of the Acts, and
(ii) the respondent did not victimise the complainant, by dismissal or otherwise, contrary to S. 74(2) of the Acts.
_____________________
Stephen Bonnlander
Equality Officer
7 August 2008