The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2008-045
PARTIES
Ms Linda Marie Joseph
(Represented by Brendan Archbold)
AND
IBM Ireland Product Distribution Ltd
(Represented by Tom Mallon BL,
instructed by Arthur Cox Solicitors)
File references: EE/2006/100
Date of issue: 1 September 2008
1. DISPUTE
1.1 This dispute concerns a claim by Ms Linda Marie Joseph that she was discriminated against in relation to conditions of employment and assessment of work performance contrary to section 8 of the Employment Equality Acts, 1998 – 2008 by IBM Ireland Product Distribution Ltd, on the grounds of gender and race, being from Martinique, in terms of section 6(2) of the Acts and that she suffered harassment in accordance with section 14A of the Acts.
1.2The complainant referred her claim of discriminatory treatment to the Director of the Equality Tribunal on 3 April 2006 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, 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. Submissions were sought and received from the complainant and a hearing was held on 22 April 2008 and final correspondence received on 25 April 2008.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The Complaint submits that she started work with the respondent on 24 June 2002 and worked as a sales representative with sole responsibility for a number of customers. She worked with one customer that was not properly part of her job and had problems with this customer which led to the incidents surrounding this claim.
2.2 The complainant submits that in June 2005 she went to her supervisor, the Sales Manager, Mr B, after she had been abused by the problem customer. Mr B spoke to the customer and then told the complainant that the customer was a reasonable man who sometimes got out of bed on the wrong side. The complainant was unhappy with this response and repeated the complaint. Mr B became aggressive and animated so the complainant refused to go to his office when asked. At a subsequent meeting with Mr B and the Team Leader (Ms B) the complainant was accused of having an attitude problem but was not given a chance to respond. When she went to her second line manager, Ms T, she was told that people just behave like that and that she would have to make it work or she knew what she could do.
2.3 In July 2005 the complainant had two weeks stress related sick leave, during which Mr B rang her three times telling her not to leave the country.
2.4 A few days after her return from sick leave the complainant says that she was again abused by the customer and submits that a colleague went to Mr B on her behalf. She was then taken off this account but was not told this by management but found out through a colleague.
2.5 The complainant submits that in August 2005 she requested five weeks leave during November and December but only four weeks were approved by the respondent. When she returned after taking five weeks she had to sign a document and Mr B shouted at her. The complainant submits that she told Mr B that he was racist. She went on sick leave and from home initiated a complaint about him but heard nothing.
2.6 The complainant submits that in January 2006 the disciplinary procedure was activated against her. A disciplinary meeting was held in her absence on sick leave and 1 February 2006 she was issued with a first written warning. She resigned on 10 February 2006 without returning to work.
2.7 The complainant submits that on 1 March 2006 she was advised that Mr B had made a bullying allegation against her.
2.8 On 17 May 2006 the complainant received the results of the investigation into her claim of bullying but chose not to reply as she had initiated this claim on 3 April 2006.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denies the allegations of discrimination and submits that the complainant makes no reference to any of the discriminatory grounds in her submission. Furthermore, they submit that no discrimination took place and the incidents referred to by the complainant are everyday interactions between a manager and a colleague.
3.2 The respondent submits that the customer referred to by the complainant was not particularly difficult and there were no discernible issues with him before the complainant took over the account. In May 2005 the customer told the respondent that he was very dissatisfied with the service he was getting from the complainant. When she was asked about this the complainant did not accept responsibility for this dissatisfaction but blamed the customer.
3.3 The respondent submits that when the complainant made her complaint about the customer in June 2005 Mr B spoke to the customer and was told that the complainant was unfriendly, unresponsive and unhelpful and asked to deal with someone else. The respondent submits that as there was no evidence to support the complainant’s accusations of abuse and it was decided to keep the complainant working with the customer. A proposal to give her a coach was angrily rejected by the complainant and there was a heated exchange on the office floor and the complainant refused to go to Mr B’s office. The respondent submits that the complainant’s behaviour was disrespectful and unacceptable.
3.4 When the complainant went on sick leave the customer was delegated to Ms B and was returned to the complainant when she returned. When she went on sick leave again the customer was permanently transferred to a colleague. Both moves were communicated to the complainant on her return to work.
3.5 Mr B did contact the complainant during her sick leave but this was done in accordance with respondent’s HR policy and at no time during her sick leave was she told that she shouldn’t leave the country.
3.6 The respondent submits that in August 2005 the complainant requested five weeks leave, from 4 November – 12 December 2005, and the first four weeks were approved but the fifth week was rejected. The complainant appealed this decision at the start of September but the decision was re-affirmed and again at a meeting in October the decision was confirmed to the complainant. The complainant took the five weeks leave anyway. Mr B met the complainant when she returned from leave and asked the complainant to sign a letter confirming that she had taken the fifth week as leave without consent. At a meeting the next day, 13 December 2005 the respondent submits that the complainant accused Mr B of being racist, made an offensive remark to Mr B and made derogatory comments about his wife, which he considered to be racist.
3.7 The respondent submits that on 11 January 2006 the complainant was advised that a disciplinary meeting was to be held on 18 January 2006 concerning the taking of the fifth week of leave without authorisation. The meeting was arranged the same day she was coming in to visit the Occupational Health Service. The complainant did not attend the disciplinary meeting, so it was moved to 25 January 2006 and the complainant was advised that it would proceed if she did not attend. The meeting was held in the complainant’s absence and a first written warning was issued.
3.8 The respondent submits that the complainant’s complaint against Mr B was made verbally on 15 December 2005, whilst she was on sick leave, and was never put in writing but it was fully investigated and the outcome published in May 2006 and the complainant was offered the right of appeal.
3.9 Subsequent to the meeting of 13 December 2005 Mr B brought a complaint against the complainant. The respondent wrote to her on 1 March 2006 to advise her of this complaint. The complainant did not take the opportunity to respond.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant has made a claim to the Employment Appeals Tribunal under the Unfair Dismissals Acts, 1977 to 2001, which I understand was adjourned pending the outcome of this claim. I confirm that this claim before the Equality Tribunal does not refer to incidents surrounding her leaving the respondent’s employment but only relates to whether the complainant was discriminated against and/or harassed during the period of her employment.
4.2 The issues for decision are whether the complainant was discriminated against in relation to her conditions of employment, assessment of work performance and whether she was harassed by IBM Ireland Product Distribution Ltd on the grounds of gender and race. In making my decisions I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.3 This claim arises from problems that the complainant had with a particular customer but that customer is not the respondent. The claim of discriminatory treatment stems from the way the respondent dealt with her complainant about the customer. The respondent did not consider the customer had been abusive but the complainant was not satisfied with this finding and repeated her complaint. This led to a difficult situation between her and her manager, Mr B, during which Mr B considered the complainant’s behaviour to be unacceptable at times and led to him being, what he described, as ‘firm’ in dealing with her. Ultimately the complainant accused Mr B of being racist and made an internal complaint against him and he made an internal complaint against her because he considered that she made offensive remarks to him and racist comments about his wife.
4.4 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states:
“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.5 This complaint is made on two grounds, race and gender and the complainant states that no man or white person would have been treated the same way. But as held by the Labour Court in Anthony v Margetts, EDA038: (1)“ The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” The complainant considered that she was unfairly treated but I can find no evidence that she was treated in a way that was different from any other member of staff would have been dealt with in similar circumstances. No evidence was adduced that might lead to an inference of discrimination on the gender ground. The only evidence adduced in relation to race was at the meeting of 13 December 2005 which resulted in the complainant and Mr B both making claims of racism against the other. On the balance of evidence presented I do not find that the complainant has made a compelling case that Mr B discriminated against her on the ground of race.
4.6 The dispute about the complainant’s leave arose because she did not accept her employer’s instruction to only take four weeks holiday. She took five weeks leave and the disciplinary process was invoked on her return. This cannot be construed as being as being discriminatory. It was a disciplinary matter and was dealt with accordingly.
4.7 No evidence was adduced that the complainant suffered harassment.
4.8 I have considered all of the evidence submitted and I find that the complainant has failed to establish a prima facie case of discriminatory treatment or harassment on the gender or race ground.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts 1998 and 2008 Acts that the complainant has failed to establish a prima facie case of discriminatory treatment contrary to section 8 of the Acts on the gender or race ground in terms of section 6(2) of the Acts or that she suffered harassment in accordance with section 14A of the Acts.
___________________
Hugh Lonsdale
Equality Officer
1 September 2008
(1) Graham Anthony & Co v Mary Margetts, Labour Court ADE/03/1 – Det No. EDA038