THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-047
PARTIES
Mr. Colin McGarrigle
and
Tallaght Echo Newspaper Ltd. Represented by
Lavelle Coleman Solicitors
File Reference: EE/2006/443
Date of Issue: 16th June 2009
1 Claim
The case concerns a claim by Mr. McGarrigle, a Canadian with dual citizenship in the UK, that the respondent discriminated against him on the marital status, family status and disability grounds in relation to his conditions of employment and his dismissal. In his subsequent submission the complainant also alluded to other forms of treatment including victimisation and to a new ground, the race ground.
2 Background
2.1 The complainant was employed as a full-time, permanent features editor with the respondent from 21st November 2005 to 4th September 2006 when he was summarily dismissed for gross misconduct. He had previously made complaints of harassment to his line manager in relation to the treatment he was receiving from a colleague in the course of his work.
2.2 Mr. McGarrigle referred this claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004 on 11th December 2006. In accordance with her powers under section 75 of the Acts, 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 Acts. The date of delegation was 2nd March 2009 and I began my investigation on that date. A hearing of the claim took place on 24th April 2009. At the close of the hearing the respondent requested an adjournment to facilitate Mr. D’s appearance before the Tribunal as he was considered an important witness. This was refused based on:
· The fact that the complainant had travelled from Canada and an adjournment would have required another trip
· The fact that I had been requested to expedite the investigation of the claim
· The fact that Mr. D had cancelled very late on the evening before the hearing stating that he was required at work and that no guarantee could be given that this would not happen again.
3 Summary of the Complainant’s Case
3.1 The complainant began working with the respondent on 21st November 2005 on a permanent full time contract as features editor attracting a salary of €40,000 per annum for the first six months and €50,000 thereafter. The editor-in-chief, Mr. D, was his line manager and the complainant was on an equal footing with the news editor Ms. A whose line manager was also Mr. D.
3.2 The Complainant was responsible for the features section of the paper but increasingly he assisted in production and with ensuring that the various sections were prepared on time for print deadlines. Shortly after he began working he became frustrated with what he perceived to be delays in finishing the news section. He had to wait for the completion of this section before completing his production duties. He asserted that Ms. A was at times very slow, unnecessarily slow, creating a situation where he had to stay late and help her complete her section before completing his production duties. This, he alleges, interfered with his free time and was against generally accepted family-friendly policies. There were some minor altercations in the office but many of these the complainant accepted as part of the normal rough and tumble of newspaper office life. However his interactions with Ms. A continued to deteriorate. It should be noted that the complainant was given time off in lieu on Thursday mornings for the extra hours worked.
3.3 Ms. A invited the complainant to lunch in a restaurant where she berated him and screamed at him. When asked at the hearing why they were not asked to leave the restaurant the complainant said that she had screamed at him in a higher than normal speaking tone.
3.4 The complainant related his concerns about Ms. A to his manager in January 2006 indicating that her work pattern was adversely effecting his family life. The conflicts with Ms. A subsequently increased and the complainant was sure that Mr. D had told Ms. A of his concerns. One evening in March 2006, while Mr. D was away, Ms. A told the complainant to edit one of her news pages. He agreed he would but was unable to do it immediately. The complainant stated that she responded angrily to the extent that the other staff present stopped working to watch. She then spoke to him privately and told him that he could be fired for not doing what she told him. If she told him to do something he should do it there and then. She also told him she was his line manager.
3.5 On Mr. D’s return the complainant sent him an email about the incident to which he received no response. He then went to speak to him personally and indicated to Mr. D that he felt the behaviour constituted harassment. Mr. D said he would ask Ms. A to apologise but the complainant never heard of the incident again.
3.6 When the complainant’s first six months were completed Mr. D approached him in the office saying his “probationary period was up, lets have a review”. The review meeting took about 15 minutes. One to two minutes were on the review and the rest was a discussion about his contract which he had still not received, whether or not his salary increase would be dated from the date of the review and about his complaints about Ms. A. Mr. D said he was happy with the new look features section of the paper and did not express any dissatisfaction with the complainant’s performance. He explained to the complainant that as the paper had recently been acquired by a new owner in the UK processes were being addressed in general and it may take some time to finalise them including his contract. He also said that the complainant’s complaints stopped with him and that he would not be involving anyone from head-office.
3.7 The complainant stated that there was a substantial change in the relationships between himself, Mr. D and Ms. A following the review. The number of pages in the features section was cut from 30 to 16 to 8. Increasingly the complainant was spending more time on production. He was not aware of any decrease in advertising that would explain the decrease in pages. He was no longer invited to management meetings. The complainant was unable to indicate when the meetings he was not invited to took place.
3.8 When the complainant was hospitalised Mr. D arrived at the hospital, found the complainant, said “Just checking” and left. The complainant asserts that this is harassment or less favourable treatment on the disability ground. In addition the complainant was asked to submit medical certificates for attendance at physiotherapy sessions taking place on Thursday mornings. The complainant was given leave in lieu of his extra hours on Thursday mornings and therefore this was his personal time. He was likewise asked to provide medical certificates to attend anti-natal clinics with his wife on Thursday mornings later in the year. The complainant objected to both of these and the requirements were subsequently withdrawn. He asserts that these requests constitute harassment or less favourable treatment on the marital status ground. The complainant was somewhat vague as to the dates that the various incidents took place.
3.9 The complainant spoke to Mr. D with a view to sending an email to staff indicating the correct procedure for the use of names in articles and Mr. D agreed. The complainant sent the email and about two to three minutes later Ms. A sent an email to the same staff indicating that the complainant’s email was incorrect in relation to the formatting of names for use here and that what he was proposing related to how things were done in Canada. When asked at the hearing for the wording of the email the complainant said he could not remember it word for word but that the essence of it was to ignore his email as he was only familiar with Canadian reporting. The complainant said he was very upset as he had discussed the matter with Mr. D before sending the mail and in addition he felt it made him look incredibly foolish.
3.10 The complainant was absent on leave at the end of August 2006 and the beginning of September because the approaching birth date of his child and the difficulties arising from that. He was called in to the office on 4th September for a meeting at 1:30pm. At the meeting Mr. D told him that his attendance had been noticed by head office and that he was being let go. When the complainant said he would contest the dismissal Mr. D mentioned a job posting on a particular website (details provided) that had been found for a job at the Echo when there was no such vacancy. (The complainant was involved in the development of the site and the developer had made the site live for one day with a sample vacancy for the complainant to see.) Mr. D stated that the official reason for his dismissal would be the job posting.
3.11 The complainant concedes that following his dismissal he may have used some inappropriate language both to Mr. D and to Ms. A when he went to his office to pick up his belongings
3.12 The complainant stated that while working with the respondent other members of staff informed him that Mr. D and Ms. A were in a personal relationship. The complainant referred to Campbell Catering Ltd. V Aderonke Rasaq EED048 and Ntoko v Citibank [2004] 15ELR116. He also referred to Tribunal decision DEC-E2009-012 Daugintiene v Faughan Foods Ltd.
4 Summary of the Respondent’s case
4.1 Mr. Joe Flaherty appeared for the respondent. He is Managing Director, Northern Region with Johnston Press PLC and has responsibility for the respondent newspaper. It was explained that the Echo was initially bought by the Leinster Leader newspapers which in turn were sold to Johnston Press PLC, a UK-based company. Mr. Flaherty described how there had been a consolidation of the human resource arrangements between Ireland and Northern Ireland. Mr. McGarrigle’s file and all documents relating to his dismissal were lost in that process. When this claim came to the respondent’s attention Mr. D was asked for a report on the matter but this report does not reference any complaints of harassment. Mr. Flaherty states that the report did express concerns about the complainant’s attendance record but does not elaborate further. At the hearing I requested a copy of this report but it was not subsequently provided.
4.2 Mr. Flaherty explained at the hearing that the employer normally handles allegations of gross misconduct with an investigation. In this case an application for a non-existent vacancy was received and Mr. Flaherty stated that the minds of management were made up. Such behaviour diminishes the paper’s reputation and standing in the community. In addition it is not fair to young people looking for employment. The respondent has no record of the alleged application. Mr. Flaherty was asked if staff had been made aware that they must operate in a manner mindful of the company’s reputation and standing in the community and that a failure to do so would constitute gross misconduct. His response was that it was in the staff handbook . However, he was unable to say if this had been brought to the attention of everyone in the Echo. The Personnel Policy on bullying and harassment and the House Agreement with the NUJ were submitted in evidence but the staff handbook was not. As the respondent newspaper was taken over during the complainant’s period of employment the staff handbook may not apply to the entire period.
4.3 There are no records of any complaints of harassment from the complainant. If such complaints were made Mr. Flaherty said it was erroneous of Mr. D to do nothing and this would have put his job on the line.
4.4 Mr. Flaherty has no information in relation to any issues Mr. D may have had with the complainant’s attendance record. He was never made aware of any difficulties arising in relation to the complainant and normally, once sick leave arrangements are not being abused, there should be no difficulties. However, summary dismissal would not arise in relation to attendance.
4.5 Mr. Flaherty explained that the complainant was not given his terms of employment because their takeover was underway and it would have taken some time to get to such things. He also indicated that Ms. A was the complainant’s direct supervisor.
4.6 Ms. A agreed that there were minor conflicts which formed part of life in a newspaper office although in the Echo office people spoke to each other rather than shouted. She indicated that she was the complainant’s line manager. She said she invited the complainant to lunch to resolve matters after other members of staff had told her he was complaining about her. The lunch was civil and she felt things improved afterwards at least in so far as she no longer received reports that he was complaining about her.
4.7 Ms. A recalls the incident when Mr. D was away. She explained that she had to call the complainant aside to explain the implications of his behaviour. She conceded that the complainant pointed out that Mr. D was his supervisor and not her. She said that Mr. D’s absence was a new situation making her his direct supervisor.
4.8 Ms. A stated in evidence that she was unaware of the complainant’s probationary period and of any assessment. She said that the size of the paper was dictated by the amount of advertisements using an ad ratio. In relation to the style guide email Ms. A recalled the incident and stated that she does not believe that the complainant consulted with Mr. D. She sent her email to clear up any confusion. In Ireland the complainant’s style is only used in relation to criminal or defendant matters. The complainant’s email would have changed the style to North American style rather than Irish or UK style.
4.9 While the complainant was off in late August/early September 2006 she was covering for him and had to check his email. She saw the application for an editor post and referred it to Mr. D as she was unaware of any vacancy. Mr. D handled the matter after that and she had no further involvement.
4.10 When the complainant was leaving he was very abusive to her and very angry. It lasted approximately one minute. Once he left she had no further interaction with him.
4.11 Ms. A denied harassing or demeaning the complainant. She also denied that she had had a personal relationship with Mr. D. She acknowledged she was aware of his family and marital status.
4.12 The respondent’s representative contended that the complainant had failed to present evidence from which discrimination could be inferred and therefore he has failed to establish a prima facie case of discrimination as required. He stated that there was no evidence to support an allegation of victimisation and that part of the claim was denied. In addition, while there may be a degree of unfairness in the manner in which the decision to dismiss the complainant was taken, unfairness is not of itself determinative of discrimination and he referred to Labour Court Determination Firm of Solicitors v a Worker EED 046. The representative also indicated that although the complaint was lodged in December 2006 his client was not made aware of a claim on the race ground until the complainant’s submission was received on 28th July 2008. Therefore the claim on the race ground is not validly before the Tribunal for decision.
5 Conclusions of the Equality Officer
5.1 What I must decide is:
· Whether complainant was less favourably treated in relation to his conditions of employment in terms of section 6(2)(b), (c) and (g) and contrary to section 8(1) and (6) of the Employment Equality Acts, 1998 and 2004
· Whether the complainant was victimised in terms of section 74(2), and
· Whether the complaint on the race ground, in terms of section 6(2)(h) has been validly made.
In making my decision I have taken account of all submissions, both written and oral.
5.2 The allegation of discrimination on the race ground, and the associated incident, was raised for the first time in the complainant’s submission received by the Tribunal on 28th July 2008. As the alleged incident relating to the race ground arose in 2006 I am satisfied that this claim was not made within time as required by Section 77 of the Acts and therefore I shall not consider it further. The allegation of victimisation was not explicitly mentioned in the complainant’s complaint form. However, the treatment of his absences, notably his absence for physiotherapy sessions, was mentioned as was his dismissal. I am satisfied that the respondent was on notice in relation to those incidents when the complaint form was lodged. Further detail of these incidents was given in the complainant’s submission in which victimisation was explicitly mentioned. At the hearing the respondent responded to the allegations of victimisation. I am satisfied that the respondent was on notice in relation to the allegation of victimisation and had ample opportunity to address the matter. I am satisfied that that aspect of the complaint is also validly before me.
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. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.
Harassment
5.4 I am satisfied that Ms. A tried to resolve issues arising between herself and the complainant and on the balance of probabilities I find her version of events more compelling in relation to what happened at the lunch they shared. I am also satisfied that she was aware of his complaints about her to Mr. D and others and that the relationship was strained given that awareness. I am not satisfied that she was his line manager since the day to day workings of their relationship as presented in evidence does not support this. While Ms. A acknowledged that she was aware of the complainant’s family and marital status and his illnesses/injuries, I do not accept that any harassment arising was because of his marital status, family status or disability. I find that any such behaviour was in response to the deterioration in their working relationship. I find that he has failed to establish a prima facie case of discrimination in the form of harassment on the marital status, family status and disability grounds.
Discrimination – Conditions of employment
5.5 Without making a finding that the complainant had a disability or disabilities at various times during his employment I am satisfied that the complainant was not treated as he alleges because he had a disability. Likewise I am satisfied that he was not treated as he alleges because of his family or marital status. I find that he has failed to establish a prima facie case of discrimination in relation to his conditions of employment on the martial status, family status and disability grounds.
Victimisation – Conditions of employment
5.6 I am satisfied that the complainant held a belief that Ms. A’s behaviour constituted harassment on the family status ground because his complaints about her were about the effects her behaviour (her alleged slowness in completing her work) had on his family life. Based on the evidence presented to me I am satisfied and find as a fact that the complainant again raised these allegations of harassment during his review meeting and that he requested that the matter be referred upwards. This would have effectively removed the matter from Mr. D’s control. I am satisfied that the complainant’s actions in this regard are in accordance with section 74(2)(a) in relation to harassment and section 74(2)(f).
5.7 In this regard it should be noted that it is not necessary that the complainant’s allegations of harassment be upheld either by the employer or by me.
5.8 The complainant indicated that his relationships with Mr. D and Ms. A deteriorated following his review. I am satisfied that much of the treatment following the review in relation to physiotherapy sessions, antenatal classes, and visits while in hospital etc., all of which were presented directly in evidence by the complainant, arose from a concern of Mr. D’s in relation to the amount of time off that the complainant had. What is questionable is why this concern arose. Many of the incidents related to visits occurring when the complainant was already entitled to be off work, that is on Thursday mornings. The visit by Mr. D to the hospital to check that the complainant was there, as presented in direct evidence, in addition to the unnecessary requirements relating to medical certificates, appear to indicate that any level of trust previously existing between the two had broken down. The complainant had a relatively high level of sick leave although all of it appears to have been acceptable in terms of the respondent’s sick leave provisions. The respondent has no record of any abuse of their sick leave provisions nor was such an assertion made by the respondent. Indeed Mr. Flaherty was not aware what Mr. D’s concerns may have been in respect of the complainant’s absences.
5.9 While I accept that each employee’s sick leave record need not come to Mr. Flaherty’s attention any concerns Mr. D had should have been clarified in the report requested in relation to this claim. Mr. Flaherty indicated that it was not. I am satisfied that in the circumstances such attention to the complainant’s leave arrangements was unwarranted and as there is no indication that other members of staff had such requirements placed on them I am satisfied that it constitutes adverse treatment. Given that the attention to the complainant’s arrangements arose following the review meeting at which the complainant raised his concerns about Ms. A’ treatment of him, and in the absence of any objective reason for such attention, I find that an inference of victimisation arises which the respondent has failed to rebut. I find, on the basis of the foregoing, that the complainant was victimised in terms of section 74(2)(a).
Victimisation - Dismissal
5.10 The respondent indicated that where gross misconduct is alleged normal procedures require an investigation and all that that entails. In this case no such investigation was undertaken. Indeed, the complainant was not shown the alleged application and was not allowed to respond to the matter. Mr. Flaherty stated that Mr. D would have liaised with head office at all stages. No record of any such liaison exists. Indeed there is no record of any ‘stages’ in this case other than the alleged application being found in the complainant’s email and the complainant’s dismissal. There is no evidence of any other action being taken.
5.11 In addition, I do not accept that dismissal was a reasonable and proportionate sanction in the circumstances. In line with EAT case number UD643/2007, also dealing with information on the internet, I believe that the complainant may have deserved strong censure and possibly disciplinary action but I do not accept that his actions constituted gross misconduct.
5.12 When one considers Mr. D’s visit to the hospital, which can only have been to check if the complainant was there, one should also consider what might have happened had the complainant not been there when he said he was. Consider also the close attention to all matters relating to the complainant’s attendance found above to be unwarranted. It appears to me that Mr. D was actively watching for some adverse behaviour on the part of the complainant which might facilitate action and I’m satisfied this was in response to the complainant’s complaints of harassment on the family status grounds initially and subsequently on the marital status and disability grounds.. In the event, the complainant presented Mr. D with a situation that did warrant attention when his website was live for one day and came to the attention of the respondent.
5.13 On the basis that
· no procedures were applied to the complainant’s dismissal
· that no records of the dismissal are available
· that the dismissal was a disproportionate sanction in the circumstances
· and most particularly that the complainant’s line manager appeared to be actively seeking an excuse to take action against him,
I find that the complainant has established, on the balance of probabilities, a prima facie case that the dismissal was a victimisatory dismissal in accordance with section 74(2)(a) because he had made allegations of harassment on the various grounds and requested that these be forwarded to a higher authority. The respondent’s argument that the receipt of the job application was so extreme as to warrant no procedures or no further consideration of the circumstances is not accepted and therefore fails to rebut the prima facie case established.
6 Decision DEC-E2009-047
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 was victimised in terms of Section 74(2)(a) in relation to his conditions of employment and his dismissal for making complaints of harassment.
6.2 In accordance with section 82(1)(c) redress in the form of compensation may be awarded for the effects of discrimination or victimisation. In this case the complainant greatly contributed to the effects of the victimisation in that the discovery of his sample job posting is what triggered his dismissal.
6.3 I hereby order the respondent to pay the complainant
· €12,000 compensation. This amount does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
Bernadette Treanor
Equality Officer
16th June 2009