DEC-E2009-066 - Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision DEC – E2009-066

PARTIES

A Complainant

(represented by Hayes Solicitors)

and

A Food Manufacturer

(represented by IBEC)

File Reference: EE/2006/301 and 2007/127

Date of Issue:  11th August 2009

1          Claim

1.1        The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004 on the gender and marital status grounds alleging discriminatory treatment, harassment, sexual harassment, and victimisation.  This first claim was dated 25^th August 2006.  On 21^st March 2007, the complainant lodged a second complaint against the respondent on the same grounds and making the same allegations but with the addition of discriminatory dismissal.

2          Background

2.1        In accordance with her powers under section 75 of the Act, the Director delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act.  The date of delegation was 26^th September 2008 and my investigation began on that date.  The matter was heard on 25^th February, 29^th April and 1^st May 2009. 

2.2        At the first hearing both parties were requested to address further matters arising from evidence presented and this was done by written submissions. 

3          Summary of the Complainant’s Case

3.1        The complainant states that she had worked well with her colleague Mr A and socialised with him until circa May 2005 when a marked and unwelcome change in his behaviour became noticeable.  She alleges that his inappropriate behaviour continued to such an extent that she eventually went on sick leave on 24/5/2006.  She then reported the matter for the first time.  She presented a list of 30 allegations to her manager which he initially refused to accept.  Her list of alleged incidents did not have any dates or times associated with the incidents.

3.2        Her preference was for a formal investigation and she alleges that the manner in which this was undertaken constitutes further harassment of her by her manager and the HR manager. 

3.3        The complainant was obliged to attend the investigation meetings and HR meetings unaccompanied as she was not allowed to bring the person of her choice, her brother.

3.4        On 14^th July 2006 a draft report of the investigation and its findings were sent to the complainant in which her allegations were not upheld.  On 2^nd August the complainant was sent the final version of the report.

3.5        The complainant was advised by letter dated 11th August 2006 and received by the complainant on 17th August of a meeting to take place on 17th August with the HR manager.  On 17^th August 2006 the complainant’s representative replied to the respondent that the manner of their investigation constituted harassment and victimisation of the complainant and that the requirement for her to attend a meeting on how to progress the matter and arrange for her to return to work, at such short notice, constituted a ‘dramatic escalation’ of the dispute. 

3.6        On 29^th August the complainant’s representative indicated to the respondent that while she would attend the meetings she would not answer any questions. On 5th September a meeting took place between the complainant and the HR manager.  The complainant answered some questions but any relating to her relocation were not answered.  On 22^nd September 2006 the complainant resigned. 

3.7        It is alleged that the respondent took no account of SI 78 of 2002 [1] relating to harassment and sexual harassment during its deliberations.

3.8        The complainant, in her response to information submitted following the first hearing, mentioned a new incident which allegedly occurred at the Christmas party 2005 without mentioning any specific dates.  She stated in writing: “He sat and watched me all night, who I talked to and who I danced with.  He then made comments the following Monday morning about all this.”  She also indicated that around 2:30am she had to sneak out and call a taxi to get away from him. 

3.9        The complainant’s representative also made allegations that Mr. A had in some way intimidated the witnesses who failed to support the complainant’s evidence during the internal investigation.

3.10    During the hearing, allegations were made that the questioning of the complainant by the respondent’s representative was inappropriate.  The Tribunal was told that any questions requiring the complainant to again go through the traumatic events of which she complained constituted further harassment of the complainant.  In that regard the requirement to address the matter at the hearing amounted to harassment by the Tribunal.  Questions as to the veracity of the complainant’s allegations surrounding the Christmas party 2005 were likewise unacceptable.

4          Summary of the Respondent’s case

4.1        The manager who undertook the investigation on behalf of the respondent was not available to present evidence.  All of the transcripts of the investigation meetings were presented in evidence as was the report, and the amended report following appeal by Mr. A.[2]  The respondent stated the complainant was clear that her complaint was one of bullying at the outset of its investigation.  At the first investigation meeting with the complainant, 13^th June 2006, she was asked explicitly if the complaint was one of bullying and she confirmed that it was.  On 30^th June 2006 the complainant’s second representative, indicated by letter that the complaint related to bullying, harassment and sexual harassment. 

4.2        The complainant was sent a draft of the report on 14th July and asked to submit any comments she had by 19th July 2006.  She elected not to do so and the final report was sent to her on 2nd August.  Two days after it was issued the HR manager wrote to the complainant asking her to contact him to facilitate a discussion of the report including an appeal process and return to work. 

4.3        The respondent at all stages operated in accordance with SI 17 of 2002[3] which details procedures for addressing bullying in the workplace.  SI 78 of 2002 was not considered relevant to the complaint before them as it addressed harassment and sexual harassment under the Employment Equality Act 1998. 

4.4        The complainant was at all times informed that she was entitled to have either a work colleague, Union shop steward or a member of the respondent’s contact panel.  She was never required to attend alone.  When not permitted to bring her brother she elected to attend alone.

4.5        The respondent made attempts to discuss a return to other areas of work with the complainant and made a number of suggestions to her but her position was that Mr. A should be moved and not her.  Her failure to engage with the respondent in this regard, and her decision not to answer any questions, made the finding of a position acceptable to her very difficult to progress.  The complainant was offered counselling and mediation.  She was also offered assistance from the Employee Assistance Programme and jobs in other areas.

4.6        The HR manager, who had begun working with the respondent shortly before the bullying complaint was lodged, indicated that his attempts to bring closure to the matter to each party’s satisfaction were made more difficult by the aggressive tone of correspondence received from the complainant’s representative.  In addition, Mr. A was also deeply dissatisfied with the investigation process.

4.7        In relation to the new incident mentioned by the complainant after the first hearing, Mr. A stated that it did not happen and presented his version of events including the statement that he left the function before midnight with another person.  The respondent then indicated that the work for that year actually finished on the day of the party, specifying the date, and that neither the complainant nor Mr. A were back at work until February/March 2006.  Therefore a discussion of the matter at work could never have happened on the following Monday morning as asserted by the complainant.

4.8        The respondent’s representative denied that any of his questioning had been in any way inappropriate.

5          Conclusions of the Equality Officer

5.1        What has to be decided is whether the complainant was sexually harassed, harassed on the gender or marital status grounds, discriminated against on the gender or marital status grounds, victimised or constructively dismissed.  I have taken account of all the evidence presented, both written and oral.

5.2        In the first place I wish to state that I am satisfied that the questioning of the complainant by the respondent’s representative was entirely appropriate at all times during the Hearing before this Tribunal and I reject the complaints of inappropriate questioning outright.  In addition, the allegations of intimidation of witnesses by Mr. A were entirely unsupported by evidence of any kind.  At the final hearing, the complainant’s representative stated that the witnesses had not supported the complainant’s story because they felt threatened and by way of analogy referred to witness intimidation in a criminal case. I find such unsupported allegations, and such analogies, entirely inappropriate.

5.3        The burden of proof required of the complainant is detailed in section 85A of the Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary.  Therefore, it is necessary for the complainant to establish as facts matters on which she will rely to establish a prima facie case before the burden of proof can shift.  Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.

Discriminatory Treatment, Harassment, Sexual Harassment, and Victimisation

5.4        It should be noted that the Tribunal does not address complaints of bullying.

5.5        In relation to the allegations against Mr. A of harassment on the gender and marital status grounds, and to sexual harassment I note that the complainant was unable to identify any dates when the incidents were said to occur and her representative stated that no reasonable person would require her to do so.  The failure to provide dates means that the respondent cannot verify even such simple matters as whether or not Mr. A, or indeed the complainant, was at work on the relevant dates.  Where an incident was associable with a date, the Christmas party 2005, the respondent was in a position to indicate that part of what the complainant alleged could not have happened. I find that the respondent's version of events to be more compelling and the Christmas party 2005 could not have been discussed on the following Monday.  The respondent’s representative pointed out that eight people have to be lying in order to ensure the complainant’s version of events in total is credible.  In Determination EDA0911 , And Employer and a Worker, The Labour Court stated:

“The Court further notes that the witnesses to these incidents cited by the complainant all either denied that they took place or did not recall them in terms related by the complainant.  The Court is satisfied that these five incidents both on the face of them and intrinsically are at least as capable of an innocent explanation as against that claimed by the complainant to the extent that they took place or may have taken place as related by the Complainant.”

In relation to the 30 alleged incidents, and based on the evidence presented to me, I am satisfied that where any of the incidents did actually happen they are equally capable of an innocent explanation.  While the witnesses to the alleged incidents were not presented at the hearing by either party I note that their positions in relation to the allegations are included in the investigation report.  I also note that the complainant accepts that they did not support her version of events.  Taking account of the witnesses failure to support the complainant, the evidence presented by Mr. A and the finding that the complainant’s evidence in relation to the Christmas party incident is incorrect, I find Mr. A’s evidence is more compelling. Accordingly, I find that the complainant has failed to establish a prima facie case of sexual harassment and harassment on the gender and/or marital status ground against Mr. A.

5.6        The complainant’s representative, who had the period between the first and second days of hearing to consider the transcripts of the investigation interviews, did not point to any particular comment or incident to indicate harassment or less favourable treatment by the investigator.  It was indicated that requiring the complainant to address the matter and answer the investigator’s questions relating to the 30 alleged incidents constituted harassment.  I am satisfied that the investigator was required to address these matters in some detail in order to comply with the requirement to conduct the investigation of the complainant's allegations in a thorough manner.  I do not accept that a person can make such allegations and then suggest that the employer is harassing them by virtue of addressing the allegations, except in situations where this is done in an inappropriate manner. 

5.7        Similarly, I do not accept that an employer’s reasonable attempts to conclude an investigation process and discuss an employee’s return to work constitute harassment.  In this case some terminology used by the respondent was unusually technical.  However, given the extent of the correspondence, the respondent was in no doubt that the complainant had legal representation. 

5.8        Having carefully considered the evidence submitted by the parties I find that neither the investigator nor the HR manager behaved in a manner that could be construed as harassment or sexual harassment.  I am also satisfied, based on the evidence presented, that the complainant was not less favourably treated because of her gender or marital status than another person was or would have been in the same or similar circumstances by either the investigator or HR manager.  Consequently, I find that the complainant has failed to establish a prima facie case that either the investigator or the HR manager discriminated against her or harassed her on the gender or marital status grounds. 

5.9        Similarly the complainant has also failed to establish any less favourable treatment of her arising from her complaint either to the respondent or to the Tribunal and therefore she has failed to establish a prima facie case of victimisation.

Failure to address Harassment and Sexual Harassment

5.10    The complainant’s list of 30 alleged incidents was dealt with thoroughly and reasonably expeditiously by the respondent in accordance with their Diversity Policy and Codes of Practice.  The respondent applied SI 17 of 2002 on foot of her confirmation that the complaint related to bullying.  I note that this confirmation was given at a time when the complainant was apparently not represented.  However, based on the transcripts of the interviews and on subsequent correspondence from the HR manager, I am satisfied that the complainant was clear at that time that her complaint related to bullying.

5.11    The letter from the complainant’s first representative dated 7^th June 2006 merely mentioned inappropriate behaviour.  On 30^th June 2006 the complainant’s second representative indicated by letter that the complaint related to bullying, harassment and sexual harassment.  At this point, however, the information gathering process of the investigation appears to have been complete and the result was awaited.

5.12    Neither the complainant nor her representative indicated at that time that the change in definition constituted a new complaint.  The respondent, on the other hand, did not extend their investigation to address these new aspects of the complaint.  I am satisfied that the investigator was entitled at that point to complete his investigation of the matter as initially advised to the respondent. 

5.13    Having said that there is some confusion evident in the investigator’s report as to what complaint he is addressing.  While he opens his report stating that the complaint relates to bullying and/or harassment his reference to the law has a greater emphasis on bullying and explicitly mentions SI 17 of 2002 related to workplace bullying.  He goes on to provide the definitions of bullying, harassment and sexual harassment as included in the respondent’s Codes of Practice.  However, despite this apparent confusion, he went on to find that Mr. A did not bully the complainant.  He makes no finding as to harassment or sexual harassment.  The complainant has failed to indicate a difference in treatment on any of the grounds in comparison with another employee in the same or similar circumstances.  I am satisfied that it was reasonable for the investigator to make a finding on the matters initially raised.  The complainant has failed to establish any less favourable treatment of herself in comparison to another person in the same or similar circumstances in that she has not shown that the investigation into another person's allegations was extended after the information gathering was complete.  On that basis I find the investigator's failure or refusal to address harassment and sexual harassment is not discriminatory. 

5.14    The new allegations relating to harassment and sexual harassment were based on the same 30 incidents as those used in the bullying complaint and perhaps the respondent was of the opinion that those 30 incidents had already been investigated.  However, the new allegations would better have been treated as a new complaint.  Under normal circumstances such a failure could be relevant when considering section 14A(2).  However, as I have not found that harassment or sexual harassment took place in this case the failure to consider the new allegations appropriately is not fatal. 

Constructive Dismissal

5.15    In section 2 of the Acts the definition of dismissal is extended as follows:

“ “dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly”.  I am satisfied that the Acts require, in addition to the normal tests to establish constructive dismissal, that the impugned conduct of an employer which gave rise to a resignation must be tested as to whether or not it could be regarded as discriminatory.

5.16    The complainant submitted a letter of resignation on 22^nd September 2006.  By this time the written and oral evidence indicates that she had been offered counselling, mediation, new posts in another area of the respondent’s premises and the right of appeal of the investigation results.  She had ceased to engage in a meaningful way with the respondent.  At the hearing the complainant indicated that the conduct that made her situation intolerable was

·        Mr. A’s presence being so intimidating to her,

·        The HR manager’s requirement to go to meetings, and

·        That no hand had been extended to her to aid her return to work. 

5.17    In relation to the first point the complainant stated that she was unwilling or unable to work with Mr. A again.  She also expressed dismay that it was her that had to move and that the respondent refused to move Mr. A.  I am satisfied that it was not possible for the respondent to unilaterally move Mr. A when the investigation had not upheld the allegations against him.  No evidence was presented as to how this might be discriminatory in relation to the complainant, that is, that another person was or would have been treated differently in similar circumstances and that any such treatment was based on the gender or marital status grounds.

5.18    On the second point, I have found above that the respondent’s continued contact with the complainant, in an attempt to bring conclusion to the matter and discuss the complainant’s return to work, does not constitute harassment in this case.  The complainant has failed to indicate less favourable treatment in comparison to another employee in similar circumstances.  In other words no evidence was presented to show that another person was treated differently following the results of an investigation that did not uphold their complaint and that any such treatment was based on the gender or marital status grounds.

5.19    In relation to the third point the complainant’s evidence is that the respondent did not offer her other roles.  She also stated that no hand was extended to her and no relocation offered.  However, she did not dispute the transcript of the meeting between herself and the HR manager which contains a reference to alternatives offered to her in addition to the other offers of mediation, counselling etc.  Her response was that she would have to talk to her solicitor.  Having examined the evidence presented I am satisfied that the complainant was offered work at other locations and that she was also offered counselling, mediation and assistance from the Employee Assistance programme.  

5.20    I find that the complainant has failed to establish that the conduct of the respondent was such that would justify her unilateral termination of her employment.  Therefore she has failed to establish a prima facie case of constructive discriminatory dismissal. 

6          Decision  DEC-E2009-066

6.1        Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.  I find that the complainant has failed to establish a prima facie case of discrimination, harassment, sexual harassment, victimisation and constructive discriminatory dismissal.  Therefore her claim fails.

7          Recommendation

As the complaint has not been upheld I am not in a position to make an order for the respondent to undertake a particular action.  However, I would recommend the following to the respondent:

• That the definitions relating to the various forms of inappropriate behaviour, contained in its Codes of Practice, are updated to take account of the 2004 amendment of the Acts and the HSA Code of Practice[4].
• Ensure investigators are clear as to what complaint is being addressed.
• Implement best practice in accordance with both SI 17 and 78 of 2002 and the HSA Code of Practice.

Bernadette Treanor

Equality Officer

11th August 2009