Ms Doreen Ritchie
(Represented by Mr Paddy Hannigan, Donegal Citizens Information Centre)
v.
Harvey’s Point Hotel
(Represented by Mr Padraig O’Grady, IBEC)
Claim
The case concerns a claim by Ms Doreen Ritchie that Harvey’s Point Hotel, discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Act 1998, in permitting harassment of her by two male colleagues to occur, contrary to S. 23(3) of the Act. Ms Ritchie further complained that the respondent had breached her right to equal remuneration pursuant to S. 19 of the Employment Equality Acts 1998 to 2008, by paying her less than a named male comparator for work of equal value within the meaning of S. 7(1)(c) of the Acts.
Background
The complainant submits that she was threatened on two occasions by male colleagues in the respondent’s kitchen. She submits that one colleague threatened her on Christmas Day 2003, in that he pointed a finger in her face and told her to “be careful and not give orders”. She further submits that in May 2004, the same colleague and another one threatened her in an unspecified manner, and left her all the work to do. She submits that when she complained to management, she was told the men would be sacked, but that this did not happen.
The respondent refutes the complainant’s submission that it ignored her complaints. It submits that it thoroughly investigated both complaints, took appropriate action to try and prevent re-occurrence and ensure a harmonious working environment in every sector of its business.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 25 June 2004. On 10 March 2005, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Anne-Marie Lynch, 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. On 9 August 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Raymund Walsh, 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. On 17 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 respondent on 26 August 2006. A submission on the matter of the complainant’s alleged harassment, which contained an additional complaint with regard to equal pay was received from the complainant’s representative on 27 February 2008. A joint hearing of the complainant’s claim of harassment, and concurrently, a joint preliminary hearing on the complainant’s claim of equal pay, was held on 4 March 2008. A subsequent submission from the respondent on this matter was received 17 April 2008. A further joint hearing on the complainant’s claim of equal pay was held on 14 January 2009. The last piece of correspondence relating to the complaint was received on 22 January 2009.
Summary of the Complainant’s Written Submission
The complainant submits that she was threatened on two occasions by male colleagues in the respondent’s kitchen. She submits that one colleague threatened her on Christmas Day 2003, in that he pointed a finger in her face and told her to “be careful and not give orders”. She further submits that in May 2004, the same colleague and another one threatened her in an unspecified manner, and left her all the work to do. She submits that when she complained to management, she was told the men would be sacked, but that this did not happen.
The complainant did not make a written submission regarding her claim for equal pay.
Summary of the Respondent’s Written Submission
The respondent refutes the complainant’s submission that it ignored her complaints and submits that it has a policy to investigate all grievances made by employees thoroughly.
The respondent submits that the first complaint made by the complainant was fully investigated by her immediate supervisor and reviewed by a member of senior management. It submits that subsequently, a member of staff was disciplined by the company.
The respondent submits that the second complaint made by the complainant was likewise fully investigated, and that the investigation revealed a difficult relationship between the parties involved, where both sides claimed victimisation by the other side.
The respondent submits that subsequently, a staff meeting was convened in which the complainant took part, in which both sides expressed their complaints and grievances, and in which management re-iterated the requirement for all staff to behave appropriately towards each other and treat each other with dignity and respect. The respondent submits that this meeting ended with both sides agreeing they could work together and exchanging handshakes. The respondent further submits that the complainant received a written apology from the two colleagues involved in the incident.
At the preliminary hearing of the complainant’s claim on equal pay, the respondent conceded that the complainant and her named male comparator were performing like work within the meaning of S. 7(1)(c) of the Employment Equality Acts 1998 to 2008. In their subsequent written submission on this matter, the respondent argued that the complainant was on a higher rate of remuneration than the named male comparator, and that therefore her complaint should fail.
Conclusions of the Equality Officer
The issues for decision in this case is whether the complainant was harassed on the ground of her gender within the meaning of the Acts; and whether the complainant received unequal remuneration for like work on the ground of her gender.
In relation to the complainant’s 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 she was harassed in any of the incidents she described in her 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 the relevant ground under the Acts.
(b) Whether the respondent is vicariously liable for the harassment.
(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.
The complainant brought her claim of harassment under the Employment Equality Act, 1998. That Act specifies “sexual harassment” in S. 23(3) as follows:
(a) any act of physical intimacy by B towards A
(b) any request by B for sexual favours from A, or
(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material)
shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A. [Emphasis added]
With regard to the incident that forms the basis of the complainant’s complaint of harassment on the ground of her gender, the complainant described the chain of events in oral evidence as follows:
On Christmas Day 2003, she had started work at 9am and the named male colleague had started work at 12 noon. Both the complainant and the named male colleague were employed as kitchen porters by the respondent. A waitress came into the kitchen looking for cutlery. The complainant needed help with the task and the head chef instructed her to ask the named male colleague to assist her. The complainant stated that the named male colleague stood behind her, and when she turned around, that he put a finger into her face and said: “Be careful, be very careful”. The complainant stated that they were standing very close, and that the named male colleague’s finger was only a couple of inches from her face.
The complainant further stated that she told her family as well as the head chef, and that a meeting of all kitchen staff was called the next day in which the incident was discussed and it was emphasised that the kitchen staff needed to work together as a team.
The complainant further stated that on 15 May 2004, the kitchen staff was busy catering for a wedding with 300 guests in attendance. Her shift started at 5pm. At 2:45am the following morning the named male colleague and another male colleague approached the complainant and laughed in her face from approximately one foot distance. The complainant stated that both men were approximately 6ft tall and in their thirties. The complainant is a middle aged woman of medium height and slight build. She stated that she felt threatened by this behaviour. She complained to management and received a written apology from both men. In her view, the apology was not meaningful as it was only proffered after a complaint had been made.
The complainant’s evidence in this matter was not challenged by the respondent.
I accept that the behaviour of the named male colleague on the one occasion, and of the two named male colleagues on the other occasion, did feel threatening to the complainant, and that she felt intimidated. However, the complainant has failed to establish any apparent links to her gender within the meaning of S. 23(3). I therefore find that the complainant has failed to establish a prima facie case of harassment within the meaning of the Employment Equality Act 1998.
With regard to the complainant’s complaint of equal remuneration, the respondent submitted, and was able to demonstrate from payslips and shift rotas, that the complainant was in fact in receipt of higher remuneration than the named male comparator. The respondent explained that this was the case because the complainant was a senior member of the kitchen portering staff and her reliability was of particular value to the respondent. This explanation was accepted by the complainant’s representative. I therefore find that the complainant’s case for equal remuneration pursuant to S. 19 of the Acts must fail.
With regard to their pay policies in general, the respondent further submitted that the confusion arose because the complainant was paid by the hour, whereas the named male comparator, along with a colleague, was paid by the day. All other male kitchen portering staff was paid by the hour, as the complainant was, albeit on a lower rate than the complainant.
The respondent submitted that putting the named male comparator and his colleague on a daily pay rate was part of a pilot project, to give kitchen staff a more regular remuneration throughout the year, than is the case with hourly pay during the high season in the summer and low season in the winter. However, the respondent submitted that this system proved impractical, and that the test was abandoned by the end of 2004. Since then, all staff is paid by the hour, and clock in and out by way of a biometrical recognition system. The respondent further stated that pay bands of hourly paid staff are set in relation to seniority and experience, and are not linked to gender or any other ground under the legislation.
Decision
Based on all of the foregoing, I find, in accordance with S. 79(6) of the Acts, that the respondent
(i) did not discriminate against the complainant by permitting her harassment on grounds of gender contrary to S. 23(3) of the Employment Equality Act 1998 and
(ii) the respondent did not subject the complainant to unequal remuneration on the ground of her gender contrary to S. 19 of the Employment Equality Acts 1998 to 2008, for work of equal value within the meaning of S. 7(1)(c) of the Acts.
________________________
Stephen Bonnlander
Equality Officer
27 January 2009