THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-054
PARTIES
Mr. George Dunbar
and
ASTI
(represented by Cliodhna Kimber on instruction from
BCM Hanby Wallace Solicitors
File Reference: EE/2005/242
Date of Issue: 30th June 2009
Claim
1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004 on 13th July 2005 alleging discrimination on the age ground, including discriminatory treatment, and harassment. He also made a claim in relation to a collective agreement and a claim of victimisation. The named respondent is the complainant’s staff representation body which denies the claims.
Background
2.1 On 23rd November 2007 the claim was delegated to Ms. Mary Rogerson, another Equality Officer, who left the Tribunal in 2008. On 14th April 2008, 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. I began my investigation of the claim on this date. The Hearing took place over a number of days during 2008 ending on 10th December 2008. Correspondence following the Hearing was completed on 30th January 2009.
Summary of the Complainant’s Case
3.1 The complainant alleged that since he applied for the same promotion as another individual in his employment who was active at various times in their local branch of the respondent he was discriminated against, harassed and victimised by local union job-holders, by union officers and by union leaders. He had objected to the appointment of his colleague based on their ages by appealing the decision to an arbitrator which was not upheld.
3.2 He lodged a complaint under the Employment Equality Act 1998 in relation to the selection process which was successful. He lodged complaints with his union and his employer, at different times, stating that the action of two members of staff amounted to bullying. The individuals accused of bullying were granted the support of the trade union and some objections to the process adopted by the school were made by both the respondent and those employed by the respondent to represent those accused.
3.3 The complainant lodged a complaint against Mr. X and Mr. Y with his representative body, the respondent, on 10th December 2001 in accordance with the respondent rule relating to ‘conduct injurious to the association’. When the decision relating to his equality claim was published the situation did not improve and the worst alleged incident took place at a respondent meeting held in a public house on 29th January 2004.
3.4 The incident which prompted the complainant to submit this complaint was a refusal by the respondent on 20th January 2005 to grant him the same legal representation as granted to those he had complained against, Mr. X and Mr. Y. His complaint was received by the Tribunal on 13th July 2005. The complainant submitted copious papers in support of his claim. These included copies of all correspondence between himself and his trade union and some relating to his employer covering the entire period of the claim. He also submitted his own notes of telephone calls and meetings.
Summary of the Respondent’s case
4.1 The respondent has argued that it can not be liable for the actions of parties other than itself, its servants or its agents. In addition, it can only be liable for such things as are justiciable under the Acts and not for bullying per se. It submits that the Act as it was in force on the date of the complaint is the Act which is applicable. It draws the attention of the Equality Officer to the fact that it is not the complainant’s employer and states that the only relevance the Acts can have to it in relation to the complainant are in respect of section 13. In that regard it states: “that the actions alleged by the Complainant makes do not fall under section 13 as they do not relate to the membership of the Respondent body, nor to any benefits provided by the respondent in relation to the entry to or the carrying on of a profession, vocation or occupation.”
4.2 The respondent also asserts that as section 13 does not refer to victimization, other parts of the Acts cannot be taken and applied into section13 and its scope cannot be extended beyond what is expressly there. Notwithstanding that, it is argued that the complainant must establish a prima facie case of discrimination or victimisation on the age ground. The respondent maintains that the documents and evidence presented do not indicate any treatment in respect of age. Section 74 (as amended) is referred to indicating that victimisation under the Act relates only to treatment of an employee by an employer. The respondent relies on the definition of employer in section 2 of the Acts. Finally it was submitted that should the decision not be in favour of the respondent, the maximum award that may be made is €12,697.38.
4.3 In relation to the evidence presented, the respondent did not dispute that the various events mentioned by the complainant took place. What is disputed is the complainant’s perception and/or his interpretation of these. The respondent stated in evidence that this case was the first where they were required to address a situation where one member was complaining about another. They offered legal representation to Mr. X and Mr. Y as they were facing allegations that might result in their dismissal if upheld.
Time Line
5.1 It was the practice to make appointments on seniority until the 1990’s when others were permitted to apply in addition to the senior person. Seniority lists previously drawn up used age where seniority was equal. The complainant and Mr. Y started working on the same day and progressed totally in tandem. The Employment Equality Act outlawed discrimination on the age ground from 1998. When a competition was announced in 2000 Mr. Y was the senior candidate. The complainant, who had exactly the same seniority was placed after Mr. Y on the seniority list as he was a month younger. Mr. Y was the successful candidate.
5.2 It appears that even though the process for appointments had been amended by Department of Education & Science Circular respondent members locally had expectations of appointments that might come their way based on lists created before the amendment. The union could not unilaterally change the policy as this had been agreed between the Department of Education and Science, the JMBs and the various teachers unions. It appears that although the practice had been changed it was agreed, though not included in the Agreement, to leave some old lists in place as the number of these situations arising would be very small.
5.3 When the complainant initially considered referring the selection to an arbitrator in accordance with agreed practice he called his school steward Mr. X for information about this and alleges that he was told that if he did appeal the appointment
he would be going offside,
going against union policy,
he would turn the members of the union against him
he would suffer serious consequences.
Mr. X confirmed in evidence that such comments may have been said but submits that they were said as part of a warning to a friend as to what others might think of such an appeal.
| 22nd March 2001 | Arbitrator’s decision issued, complainant’s appeal was not upheld. |
| 16th May 2001 | School meeting chaired by Mr. X had the complainant’s taking of the appeal on the agenda, at the request of Mr. Y. Mr. Y was invited to speak. The complainant alleges that Mr. Y launched a bitter, humiliating and defamatory attack on him. Mr. X acting as school steward and meeting chair did not intervene. Another member present at the meeting gave evidence at the Hearing that he did not approve of the manner in which Mr. Y expressed himself but he did agree with the principle behind what was said. He said that all members would have preferred if only Mr. Y had applied and he indicated that the complainant was seen as an ordinary member not following policy, and any differences of opinion were as a result of that. |
| Some time after this the complainant approached the school steward about changes that had been made to the complainant’s slot on a strike picket rota. The response received was that the complainant could go ahead and change it since he always did his own thing anyway. When asked for clarification, Mr. X replied “You went ahead with the appeal against my advice and without informing me. You can stew in it now.” | |
| 22nd May 2001 | Complainant received a response to his complaints, made shortly before, to the respondent’s head office. The response contained the following: “According to the fifth agreed memorandum, governing the union policy on posts of responsibility, balloted on and accepted by all ASTI members you have not done anything incorrect or contrary to ASTI policy. That memorandum allows for a member to appeal a Boards decision and process that appeal through the appeal’s procedure agreed between the ASTI and the JMB. This is a legitimate right of each member of ASTI involved in any way in a dispute about the implementation of any aspect of the memorandum.” The response went on to say that since the Arbitrator’s decision is final any further debate in a formal capacity would be inappropriate. |
| June 2001 | Letter sent to the Branch following a reminder from the complainant: “Once the Arbitrator has announced his decision there is no provision for any further debate in a formal capacity and ASTI would deem it inappropriate that any such debate/decision take place. Therefore, it was not appropriate for the School Steward to place an item on the agenda that was going to address the appeals procedure.” |
| 5th September 2001 | Complainant lodged a complaint of discrimination to the Equality Tribunal. |
| November – December 2001 | There followed two informal mediation-type processes sponsored by the respondent that failed. |
| 10th January 2002 | Second mediator stated in his report: Having reached, what appeared to be a satisfactory result by 6th December 2001, the complainant issued a lengthy email response to me on 10th December 2001 which I considered to take us back to square one. I consequently formed the opinion that the matter could not be advanced any further by me intervention. There is no reference to the very substantial changes made to the documents agreed on 6th December and presented to the complainant on 10th December. |
| 11th January 2002 | The respondent wrote to the complainant. The letter included “I would like to point out to you that while I appreciate that the incident has caused you great distress, it is a dispute between colleagues and not between employer and employees. There is, therefore, no grievance procedure to which you can have recourse as such procedures normally only exist in the context of an employer/management and employee relationship. The ASTI does not have such a procedure to regulate between members.” In contradiction, the letter goes on to state that the matter would be raised with the Standing Committee at the next meeting. |
| 13th February 2002 | The complainant continued to pursue the matter at length, requesting the respondent’s protection and essentially asking how it could stand over such behaviour by its local officials. An Industrial Relations Officer (IRO) wrote to the complainant indicating that in the circumstances it would be inappropriate for him to become involved with the case at that stage. |
| 12th March 2002 | The respondent’s General Secretary wrote to say that the Standing Committee had not had the opportunity to discuss the issue. He added “I wish to make it clear that the two persons to whom you refer were neither acting as ASTI officers nor representing the ASTI when they made the statements to which your refer.” |
| 14th March 2002 | The President of the ASTI responded to the complainant noting inter alia that both efforts at facilitation had failed. |
| 19th March 2002 | General Secretary wrote to the complainant indicating that the Standing Committee had considered the issue and that they had agreed to provide him an opportunity to present his views to the Committee. He went on: “Standing Committee also noted that the individuals concerned were acting in a personal capacity in relation a matter affecting themselves. While Standing Committee regrets the hurt and ill-feeling which these matters have caused you, it noted that efforts to obtain an agreed solution failed. Standing Committee was of the view that it was not a suitable matter on which to instigate a formal investigation under the Rules.” |
| 30th April 2002 | At a school meeting Mr. X informed those assembled that one of their number had lodged several complaints about him to Head Office. |
13th May 2002, 30th May 2002 | The complainant met with the Standing Committee. Another meeting was scheduled for 30th May 2002. It later became clear that the Standing Committee met with Mr. X and Mr. Y in the interim. |
| 30th May 2002 | School Headmaster issued a memo indicating that discussion of a new policy document would take place during staff days in August as part of the overhaul of the existing Bullying policy previously. |
| 25th March 2003 | The complainant lodged a claim of bullying, harassment etc with the school in relation to Mr. X and Mr. Y. |
| 21st May 2003 | Mr. Y applied to the respondent for legal advice in connection with the allegations made against him by the complainant. |
| 26th May 2003 | The respondent replied indicating that a consultation with their solicitors had been approved and an appointment was made on 10th July 2003. |
| 25th September 2003 | A school meeting was held. Mr. Y was school steward and on the agenda was the policy relating to the Anti-bullying and Dignity in the Workplace. On the school notice relating to the respondent branch AGM Mr. Y reminded all members that the Headmaster would welcome proposals on re-drafting. |
| 7th October 2003 | The complainant wrote to the President of the ASTI indicating that the treatment he was receiving from Mr. X and Mr. Y was increasing in intensity. |
| 18th November 2003 | The Decision relating to the complainant’s initial equality case issued. Mr. Y resigned as school steward as soon as he became aware of the Decision. |
| 13th December 2003 | The complainant again wrote to the President as follows: “I was very disappointed that when I rang you at the ASTI on Friday that I was cut off and then when I rang your mobile it was diverted to your message box and the message I left requesting a phonecall from you hasn’t been responded to. I want you to send me information on dismissal procedures and will you or Ms. [B] contact [the Headmaster] and let me know whether the abusive meeting I was subject to last Friday was the first step in my dismissal.” He went on to ask for an independent person to sit in with him should there be any more such meetings with his principal as the principal was denying lots of things he had previously said. He received no response. |
| 13th January 2004 | Mr. Y sent a letter to Ms. B, IRO, stating that he had been told that a respondent school meeting was planned for 22nd January 2004 and the proposed agenda was 1. Election of School Steward, 2. Statement of equality tribunal findings, and 3. AOB. He also indicated that a comment made by the complainant at the previous meeting was raised as an issue by the Headmaster when Mr. Y spoke to him. Mr. Y made the point that clarity was required in relation to who should report respondent issues to the Headmaster. In addition, he pointed out that without freedom of speech any future meetings were a waste of time. This comment related to the complainant’s tendency to take copious notes at meetings. The complainant maintained that he had been told to do so by some respondent officials and this was confirmed by the then-President during the course of my investigation. However, the taking of notes appears to have become an issue in its own right as many members found it disturbing allegedly leading to lower attendances at meetings and concern about contributing to meetings. Since Mr. Y’s resignation as school steward the school did not have a school steward and there were concerns that the respondent had ceased to function in the school as a result of the complainant’s behavior at meetings, i.e. taking notes. |
| 29th January 2004 | Ms B wrote to Mr. Y, the same date as the meeting below, enclosing correspondence “concerning complaints made by a member to Head Office”. She gave advice as to how he might take part in any process relating to the bullying complaints in the School. She went on to say: [Mr. Y], I have spoken to the President about giving a ‘final verdict’/closing statement on complaints made about you to the standing Committee and your subsequent meeting with them. I hope this answers your query, and we will return to you on the last point. Can I say, how thankful the ASTI are for the work undertaken by you at school and at branch level.” |
| 29th January 2004 | Late afternoon, the respondent meeting took place. It was held away from school premises. The President of the respondent attended as well as Ms. B. The complainant alleges that the meeting became a three hour marathon attack on him. Following the meeting the complainant, who had not taken an active role in the meeting but had taken notes, became very agitated. During his evidence, the President stated that the purpose of the meeting, from his perspective, was to allow for the airing of views and a letting off of steam in relation to the entire situation involving the three gentlemen. The item was described on the agenda as poor school relationships. His presence there was to lend weight to the proceedings. Another branch member gave evidence at the Hearing. He accepted that at the meeting he said that the complainant was going against policy and would he just drop it. He also asked him to drop the bullying claims. He told the complainant at the hearing that he, the complainant, was just a member not following policy. He stated that the union works best as a unit and that he would not shirk from expressing ASTI policy. When asked if there were any influences, other than the complainant, that led to poor relationships in the school, the witness replied that the complainant’s case was the only blatant breaking of respondent policy. He stated that normally people are expelled for that under rule 104 but this was not considered in this case because the complainant had democratic rights in the respondent. He stated that people continued to believe that the policy was correct after that meeting even though the decision had issued. The policy was amended as part of the social partnership process and such appointments are now by competition. |
| 6th February 2004 | Ms. B wrote to the complainant stating: You heard the indignation of the members expressed at the meeting in New Ross on 29th January 2004 that the [respondent] had not finalized its position on the complaints submitted by yourself about a colleague. You also heard their demand that the ASTI should deal with the complaints submitted to the Office by you and close the matter. She went on to suggest a form of words that perhaps all three gentlemen could sign up to in order to bring the matter to a close. Another letter of the same date sent to the complainant also addresses these issues. However, some differences exist between the two versions of the letter and it is not clear which was sent to the complainant. This second version also referred to the dissatisfaction of members that the complaints remained outstanding. This second letter attempted to resolve the complaints before both bodies, i.e. the school and the respondent. |
| 12th February 2004 | Ms. B submitted a memo to the Standing Committee, presenting a brief history of events and indicating that in the absence of an agreed statement resolving the matter “perhaps the [respondent] should advise the complainant that they regret an unpleasantness that may have occurred at an [respondent] meeting or in any communications by the [respondent], but that they do not believe they can do much more than this.” |
| 23rd April 2004 | The respondent President wrote to Mr. Y: The Officers of the ASTI, having considered all of the information available to them, including developments at school level, have concluded that you have no case to answer to the ASTI in respect of the complaints submitted by one of your colleagues to the Officers of the ASTI, in letters dated 27th May 2001 and 6th September 2001. Furthermore, I wish to advise you that documents containing complaints have been shredded. I want to thank you for bearing with us and to express the hope that relationships between colleagues and fellow ASTI members can be based on professional collaboration and respect.” |
| 28th April 2004 | The President wrote a further letter to Mr. Y: “The letter which we sent to you on 23rd April 2004 specified that you had no case to answer to the ASTI in respect of the complaints identified in that letter. All subsequent correspondence was a development/clarification of those original complaints. I am not aware that there were any further new complaints in the correspondence. However, I would again like to reassure you that in relation to any of the complaints submitted by [the complainant], at any date, either in e-mails or letters etc. the officers of the ASTI take the position that you have no case to answer. The date was inserted in the first instance to give focus and clarity to what actually occurred.” No similar letter, or any letter on this topic, was sent to the complainant in spite of Ms. B’s suggestion on 12th February 2004. The then-President stated in evidence that he did not feel it was necessary as he, the complainant, was the person who had taken the complaints. He stated that he took account of the trauma being created by the delays for the two gentlemen and he was particularly influenced by a phone call from Mr. Y’s wife who was very distressed and crying. |
| Following the meeting the President had a lengthy telephone conversation with the headmaster of the school while the complaints before the school were still open. | |
| 20th September 2004 | Ms. B wrote to the General Secretary asking whether the complainant’s school was exceeding its brief in continuing its investigation into the complainant’s complaints and suggesting that the provision of legal advice to Mr. X could be assessed when that question was answered. |
| 27th October 2004 | Ms. B advised Mr. X on how to respond to the complainant’s statement in relation to the claim of bullying lodged with the school. She closes the letter as follows, referring to the complainant’s behavior at the meeting of 29th January 2004: “Given the context, he had no right to expect confidentiality. Any information given was done so in a neutral, non-judgmental manner and in a manner which was sensitive to his feelings.” |
| 29th October 2004 | The respondent General Secretary wrote to the complainant informing him that if he required industrial relations advice the official assigned was Ms. A, Executive Officer: Industrial Relations. The respondent was unable at the hearing to indicate why this letter should issue to the complainant at that time, given that the last contact with him had been in January of that year. |
| 29th December 2004 | A letter from the headmaster to the respondent solicitor representing Mr. X and Mr. Y stated “I do not accept your contention that the school’s dignity at work charter and anti-bullying policy is not more than a proposal. The policy was presented to the staff and it had been formally adopted by the Board of Management.” (See 14th June 2005, below) |
| 7th January 2005 | The complainant wrote to the General Secretary formally requesting “the same type of legal advice and representation for myself that the [respondent] has made available to its fellow [respondent] officers. Please bring this request to the Standing Committee at your next meeting. I will be expecting a positive response. Please note that the ASTI has failed to represent me over the last few years while fully representing its two ASTI officers and not unnaturally, I feel very aggrieved.” |
| 20th January 2005 | The General Secretary responded indicating that the Standing Committee had “decided not to grant a consultation in the circumstances obtaining, i.e. an investigation is in Train. You should liaise with [Ms. A]: Executive Officer, Industrial Relations, on this matter.” |
| 14th June 2005 | In a letter to the complainant’s solicitor the Headmaster stated “The Dignity at Work Charter to which you refer had been formally adopted by the Board of Management but only as a draft document. It remains a proposal which although discussed by staff and management has not been formally adopted in full.” (See 29th December 2004 above) |
Conclusions of the Equality Officer
6.1 What is to be decided is as follows:
· Whether the claim is validly before me,
· The claim in relation to a collective agreement,
· Whether the respondent has any liability under the Acts in terms of s13
· Whether the respondent is vicariously liable for the actions of its local officials,
· Whether the complainant was discriminated against on the age ground in terms of s6 and s13,
· Whether the complainant was harassed on the age ground in terms of s15,
· Whether the complainant was victimised in terms of s74(2)?
6.2 The complaint was lodged with the Tribunal on 13th July 2005. Many of the alleged incidents took place earlier than this. The date of the most recent alleged incident referred to by the complainant in his claim is 20th January 2005 when the respondent refused to provide him with support in the form of legal advice and representation. This incident is clearly within the six months prescribed by the Acts. In my conclusions below I will find that the incidents complained of are connected to the same issue. The respondent did not raise any arguments in relation to whether or not some or all of the incidents were out of time. However for clarity I shall address the issue now.
The Labour Court addressed this issue in Department of Health and Children v Gillen[1] as follows:
In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground.
The Court, therefore, takes the view that both complaints are validly before the Court.
It is worthy of note that the Court indicates that it is sufficient for the last alleged act to be within time, once a connection between the acts is established. There is no requirement for that alleged act to be found to be discriminatory. I am satisfied that, as the incidents complained of are found below to be connected and as the last alleged incident is within time, all incidents complained of are validly before me. I am also satisfied that the Act as amended in 2004 applies to any and all incidents arising after the date of amendment and that the Act before amendment applies to all incidents that occurred before the amendment.
Collective Agreement
6.3 Since the complainant did not present any arguments relating to his allegation in respect of a collective agreement I shall not address that matter further.
Section 13 Liability
6.4 Section 13 of the Act states:
13.—A body which—
(a) is an organisation of workers or of employers,
(b) is a professional or trade organisation, or
(c) controls entry to, or the carrying on of, a profession, vocation or occupation,
shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.
I am satisfied that the respondent is a regulatory body as defined in Sections 2 and 13 of the Acts.
In this regard the respondent’s representative made the following point:
“The Respondent submits that the actions alleged by the Complainant makes do not fall under Section 13 as they do not relate to the membership of the Respondent body, nor to any benefits provided by the ASTI in relation to the entry to or the carrying on of a profession, vocation or occupation.”
I do not entirely accept this interpretation. I am satisfied that the section relates to discrimination in relation to membership of the regulatory body, and to any benefits provided by it. The benefits need not relate to the entry to the profession or to the carrying on of a profession. I find that the respondent is required not to discriminate in relation to membership and also in relation to any benefits provided by it arising from a person’s membership.
I am satisfied that the union has no liability relating to alleged incidents that occurred at staff meetings or at events other than those under the aegis of the respondent or involving local or national respondent officials or respondent officers in relation to union business
Vicarious Liability
6.5 Another issue which arises is that of vicarious liability and whether or not the respondent is liable for the actions of its local or national officials while engaged in union activities such as union meetings and correspondence. The section relating to vicarious liability is section 16 and it states:
15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.
It would clearly be unreasonable to expect a trade union to have such numbers of staff that would facilitate the attendance of a member of staff at every branch meeting and as in this case, every school meeting within a branch. Local officials are elected or selected with a view to allocating the authority to call local meetings and deal with local business to that local official to facilitate ongoing and day to day effectiveness of the respondent in that branch/school. In the respondent organisation local branch officials, such as chair and secretary, are appointed but in addition, each school has a school steward who is also a local union official. The school steward is responsible for respondent matters arising within their particular school including the arrangement of school meetings, these are respondent meetings relevant to that particular school. These should not be confused with staff meetings that are called, and chaired, by school management. The infrastructure comprising these various local officials creates a conduit for the transfer of information between the respondent and its grass-roots members. At the Hearing the then-President was at pains to make clear that he attended a school meeting as an outsider, a visitor, with a view to supporting the proceedings; he had no intention of stepping over those who had local responsibility.
6.6 On 12th March 2002 the respondent General Secretary wrote “I wish to make it clear that the two persons to whom you refer were neither acting as ASTI officers nor representing the ASTI when they made the statements to which your refer.” This is a reference to the meeting of May 2001 and I do not agree with this interpretation. The two gentlemen may not have been union officers but Mr. X was acting as school steward when this particular incident happened during a meeting he chaired. Mr. Y was a representative on the standing committee at various times and he was also school steward, for example during 2004.
6.7 I am satisfied that these local officials operate with at least the implied authority of the respondent. In accordance with section 15(2) above I find that the respondent is vicariously liable for the actions of its local officials in addition to its full time officials and officers, including those appointed on a temporary basis such as President
Discrimination on the Age Ground
6.8 The evidence presented does not support any allegation that the treatment the complainant received was as a result of his age. None of the evidence suggests that any other person was treated differently because they were younger or older than the complainant. I am satisfied that the link with the age ground arises from the previous equality complaint which was successful on the age ground. I am satisfied, based on the evidence presented, and I find as a fact that none of the incidents complained of were as a result of the complainant’s age.
Harassment
6.9 The complainant alleges that some of the incidents complained of constitute harassment in terms of section 32 before the 2004 amendment and section 14A post-amendment. Both versions of the provision require that any such treatment be related to one of the discriminatory grounds. I am satisfied, based on the evidence presented, that the complainant was not harassed because of his age. I find, therefore, that the complainant was not harassed on the age ground by the respondent.
6.10 In any event, both versions of the provision place liability with the employer and it is a moot point whether this implements the provisions of 2(1), 2(3) and particularly 3(1)(d) of the Framework Directive[2]. The potential conflict arising from the definitions of employee and employer contained in section 2 following the 2004 amendment which is discussed in relation to victimisation below is also relevant here. The complainant comes within the definition of ‘employee’ in relation to the respondent. As an employee he is entitled to complain of harassment but an absurdity is created since the respondent is not included in the definition of employer.
Victimisation
6.11 Finally, I shall address the claim of victimisation. Section 74(2) of the 1998 Act provides as follows:
(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
6.12 In DEC-E2003-044, Hazra v Waterford Regional Hospital, the issue of whether a number alleged incidents should be addressed individually or collectively was addressed in paragraph 6.5 as follows:
The complainant submits that the Equality Officer must not look at each alleged incident of harassment by Dr. Moloney in isolation, rather he must assess the impact of the totality of the incidents on the complainant and a subjective approach taken. It cites two UK Employment Appeals Tribunal cases in support of such an approach. In one of those cases Driskell -v- Peninsula Business Services Ltd. and Others[3]the Tribunal was assisted in its decision by a blatant discriminatory comment from a male interviewer to a female interviewee the day before the interview, which was the latest in a line of inappropriate incidents between the parties. There is no such clarity in the instant case. The second case Qureshi -v- Victoria University of Manchester[4]is more akin to the instant case. The principles in both cases are similar in that they state that the correct approach to take in cases where that is an alleged chain of discriminatory incidents, that the Tribunal should establish the facts of the various incidents and decide whether it can legitimately infer from all of those facts, in addition to all the other circumstances of the case, whether they acts complained of were based on racial factors. This approach has been upheld by the Court of Appeal in the United Kingdom. I would concur with this approach and I have adopted such an approach in this case. In my view it is the role of the Equality Tribunal to establish all of the facts surrounding the allegations and to decide, on balance, whether, individually or collectively, they constitute harassment or discriminatory treatment contrary to the Employment Equality Act, 1998 or that such inferences can be drawn from those findings.
6.13 As the evidence presented by the complainant is very large it is not possible to examine each and every incident. I am of the view that it is unnecessary and that an examination of seven of the alleged incidents will suffice. Six of these took place prior to the date of the 2004 amendment of the Employment Equality Act 1998 and one after the amendment. In line with the Qureshi and Hazra decisions I shall address the allegations individually in the first instance and then collectively.
Pre-amendment
Incident 1
6.14 I shall begin by looking at the respondent meeting that took place on 16th May 2001. During this meeting the school steward Mr. X allowed Mr. Y to make a presentation in relation to the disputed appointment. One witness at the Hearing stated that he did not approve of the manner in which Mr. Y approached the issue but he agreed with the principle behind it. I am satisfied, based on the evidence presented, that the complainant’s appeal of the appointment was discussed at this school Association meeting. I am satisfied that Mr. X as the respondent’s school steward, facilitated this and that he did not intervene even when at least one other person present, other than the complainant, thought the behaviour was inappropriate. In lodging his appeal for arbitration I am satisfied that the complainant was attempting to oppose by lawful means an act, that is the appointment of Mr. Y based on age, which is unlawful under the Employment Equality Act. Therefore I am satisfied that the treatment of the complainant at the meeting on 16th May 2001 was penalisation amounting to victimisation of the complainant in terms of section 74(2) (f).
Incident 2
6.15 The complainant lodged formal complaints about the behavior of Mr. X and Mr. Y at the respondent meeting on 16th May 2001 with the respondent’s head office. He was informed in a letter dated 22nd May 2001 from the Respondent that he had done nothing wrong in lodging the appeal for arbitration. On 7th June 2001, after a reminder from the complainant, the respondent’s head office wrote to the branch indicating that it was not appropriate to place such an item on the agenda. The letter also initiated the first mediation process. As the branch covers more than one school it is unclear whether this letter was drawn to the attention of Mr. X and Mr. Y. There is no evidence of any point being made to them that their behavior was in any way unacceptable to the respondent and based on the evidence presented I am satisfied that the respondent took no action against Mr. X and Mr. Y other than the letter to the branch in relation to this matter. There is also no evidence that this letter was drawn to the attention of the complainant in a way that might have indicated to him that some action had been taken by the respondent. Throughout the period the respondent asserts that the problem was one between members and failed to recognize that at times Mr. X and Mr. Y were acting as local officials with the authority to do so. The effect of this was that Mr. X and Mr. Y were unaware of any difficulty with their approach and the complainant continued to work with them in that environment. Given the general belief held by respondent members in the school that the complainant went against ASTI policy I find that the respondent’s inaction in relation to what it itself described as inappropriate behaviour constitutes penalisation amounting to victimisation of the complainant in terms of section (74)(b) and (f).
Incident 3
6.16 On 25th September 2003 a respondent meeting was held. By this time the complainant had lodged his initial equality claim. Mr. Y was now school steward. On the agenda was the policy relating to the Anti-bullying and Dignity in the Workplace. On the school notice relating to the respondent branch AGM Mr. Y reminded all members that the Headmaster would welcome proposals on re-drafting. It appears Mr. Y was acting as school steward, overseeing respondent discussions of the policy while a complaint of bullying against him, lodged on 25th March 2003, existed. While I have no reason to doubt that Mr. Y carried out this function properly, his position was certainly capable of creating a perception of bias. The fact remains that Mr. Y, as a local union official, was chairing discussions of a policy which might ultimately be used to make decisions on claims of bullying against him. Whether or not Mr. Y’s involvement in this process as school steward was appropriate, no evidence was presented that would indicate that his involvement led to any penalisation of the complainant. I find that this is not penalisation amounting to victimisation of the complainant in terms of section 74(2)(b) and (f).
Incident 4
6.17 The respondent argued that this case was the first of its kind to come to their attention where one member was complaining about another. They had no procedures or rules in place to address such issues. It indicated that legal representation was granted to Mr. X and Mr. Y because the allegations they were facing could have led to their dismissal. However, the respondent and the legal representative acting on behalf of the two gentlemen made it clear at all times that they did not accept that the school’s dignity at work policy was accepted or agreed by staff. It was this policy that would have contained whatever disciplinary procedures were to be followed. In addition, on 13th December 2003 the complainant also indicated to the respondent that dismissal appeared to have arisen in relation to him. The fact that the calls were not responded to was not disputed and it is clear from his letter of that date that his calls were being deliberately ignored. In addition, no response to the letter was presented in evidence and the next contact from the respondent was one or both of the letters dated 6th February 2004 indicating the atmosphere which had pervaded the meeting of the 29th January 2004. In contrast there were contacts with Mr. Y. On 13th January 2004 Mr. Y wrote to Ms. B indicating that he understood that the Equality Tribunal Decision was on the agenda. No response was presented other than one dated 29th January 2004, the same date as the meeting, enclosing copies of correspondence relating to the complaints made by the complainant and in which she advised Mr. Y in relation to participation in the process in the school dealing with the complaints of bullying, to what might be appropriate for him to discuss at the meeting and indicating that she had spoken with the President about a final verdict on the complaints about him to the Standing Committee. There was no response to the complainant’s concerns relating to dismissal. Given the approach taken in relation to Mr. X and Mr. Y, and given the express belief that the complainant went against ASTI policy I am satisfied that the lack of response constitutes a penalisation amounting to victimisation of the complainant in terms of section 74(2)(b) and (f).
Incident 5
6.18 On 23rd and 28th April 2004 the President wrote to Mr. Y, copied to Mr. X, indicating that they had no case to answer in relation to complaints lodged against them based on the rules. However, he did not give any such indication to the complainant who was the person who lodged the complaints. Therefore he created a situation in the school where the two gentlemen knew that they had been effectively cleared while the complainant did not know. These letters were issued by the same gentleman who had ignored the complainants calls in the previous December in addition to a letter clearly stating that he, the complainant was now concerned about dismissal. (This lack of response is dealt with in 6.17 above.) He also attended, as President, the meeting in January 2004 and as he himself stated in evidence his presence there would have lent some weight to the proceedings. He also stated in evidence that in his opinion the complainant had gone against respondent policy. In addition he also had a lengthy telephone call with the headmaster while complaints before the school were apparently still live. Finally, at the hearing the President indicated that he took account of the distress felt by Mr. X and Mr. Y and their families. No such concern was apparent for the complainant and his family. Based on the fact that the President felt that the complainant’s actions amounted to going against ASTI policy I make the following findings. I find that the failure to inform the complainant of the results of the union’s deliberations when the other parties were so informed constitutes penalisation amounting to victimisation in terms of section 74(2)(b) and (f). I find that making the telephone call to the complainant’s headmaster, having decided that Mr. X and Mr. Y had no case to answer, had the potential to under mine the complainant’s position in the eyes of the headmaster and constitutes penalisation amounting to victimisation in terms of section 74(2)(b) and (f). I find that the taking account of the distress of felt by parties on one side of the complaints and not that felt by the other party amounts to penalisation amounting to victimisation of the complainant in terms of section 74(2)(b) and (f).
Incident 6
6.19 In relation to the meeting itself on 29th January 2004, I am satisfied that the then-President attended the meeting with the intention, as he stated in evidence, of providing for an airing of the issues involved. He also stated that the attendance of the president at a local meeting was worthy of note. Clearly this lent weight to the proceedings. Based on the evidence presented the respondent’s officers who were present at the meeting seemed to be of the view that it was a robust discussion of the matters. The complainant on the other hand viewed it as a mob meeting and a marathon attack on him. The evidence clearly shows that there was open discussion of the complainant’s continued refusal to follow the respondent’s policy and there were calls for him to withdraw his complaints against Mr. X and Mr. Y. I am at a loss to understand how the officials found it acceptable to openly discuss complaints lodged by one member against two others without any concern arising about confidentiality. It is not sufficient to say that everyone in the branch knew about the complaints since at an Respondent meeting on 30th April 2002 it was Mr. X who allegedly informed those assembled that one of their number had lodged several complaints about him to Head Office. Regardless of what was already known good practice, and the LRC Code of Practice on Workplace Bullying, would require the respondent to maintain confidentiality where possible rather than facilitate an open and vigourous discussion. Given the content of the correspondence after the meeting it is obvious that the members were indeed allowed to ‘air’ their views and were permitted to tell the respondent to reach a conclusion on the matter. It should be noted that no minutes exist in relation to this meeting other than notes of attendees.
During the Hearing it was made clear that the respondent was of the view that the complainant was entitled to lodge his complaint of discrimination in relation to the appointment of Mr. Y. However, in evidence, no witness could indicate if this position was made clear to the members at the January 2004 meeting. Given that the Decision had issued the previous November vindicating the complainant’s position, I asked at the hearing why the meeting to air views and vent steam was still considered necessary and, in particular, why local members were still so against the complainant and his position. The then-President indicated that this was because the complainant was still seen as going against respondent policy in spite of the decision. I am satisfied that the holding of that meeting to, inter alia, air views in relation to the complainant’s appeal, equality case and complaints and the manner in which it was run was a penalisation amounting to victimisation of the complainant in terms of section 74(2)(b) and (f). Indeed, it was a double penalisation as it vindicated the behavior of Mr. X and Mr. Y at the May 2001 meeting by permitting as it did the discussion in negative terms of an entirely permissible, (and on this occasion vindicated) claim made by a member.
Post amendment
6.20 The Employment Equality Act was amended in July 2004 to implement the provisions contained in a number of Directives including the Framework Directive mentioned above. The definition of employee was amended to read:
‘employee’, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;
6.21 The definition of employer was unchanged and is as follows:
‘‘employer’’, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
6.22 Section 74(2) was also amended and it now provides:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
This amendment appears to preclude the taking of any victimisation claims except those relating to the treatment of an employer by his employer. The interpretation of the subsection is complicated by the amendment of the definition of employee to include a member of a regulatory body. Therefore the situation arises where the complainant is entitled to take the claim as an ‘employee’ of the respondent but the respondent is not included in the definition of employer.
Regression
6.23 In the Framework Directive victimisation is addressed in Article 11 where it requires Member States to introduce such measures as are necessary to protect employees against dismissal or other adverse treatment from their employers. Article 8 2. Provides :
“The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.”
This is of little use as a clarification since the definition of discrimination does not include victimisation. However, preamble 28 states:
“This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.”
There was no restriction to the taking of claims against employers only before the 2004 amendment. However regression, in relation to rights held before and after the amendment, was not argued before me and as such the respondent has not had an opportunity to address the matter. Therefore I shall not refer to it further.
Statutory Interpretation
6.24 The complainant is entitled to take a claim of victimisation as an employee of the respondent in accordance with the definition in section 2. The respondent is not an employer of the complainant. This, in effect, produces an absurd situation. The combination of the amendment of the definition of employee in section 2, without a complimentary amendment of the definition of employer, and section 74(2) must now be interpreted. The Interpretation Act 2005 sets out provisions relating to statutory interpretation regardless of date of enactment. Section 4 of that Act states that the provisions of the Act apply except where the opposite is intended. Section 5 provides:
| 5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)— | |
| (a) that is obscure or ambiguous, or | |
| (b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of— | |
| (i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or | |
| (ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned, | |
| the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole. | |
I am satisfied that a literal interpretation of section 74(2) of the Employment Equality Act 1998-2004 produces an absurdity in the circumstances of this case and that therefore section 5 of the Interpretation Act applies.
6.25 Section 5 of the Interpretation Act 2005 requires me to conclude what the intention of the Oireachtas was where this can be ascertained by the Act as a whole. The amended section 74(2) of the 1998 Act stems from the Equality Act 2004. The long title of that Act is as follows:
AN ACT TO AMEND THE EMPLOYMENT EQUALITY ACT 1998, PENSIONS ACT 1990 AND EQUAL STATUS ACT 2000 FOR THE PURPOSE OF MAKING FURTHER AND BETTER PROVISION IN RELATION TO EQUALITY OF TREATMENT IN THE WORKPLACE AND ELSEWHERE; TO GIVE EFFECT TO COUNCIL DIRECTIVE 2000/43/EC OF 29 JUNE 2000 IMPLEMENTING THE PRINCIPLE OF EQUAL TREATMENT BETWEEN PERSONS IRRESPECTIVE OF RACIAL OR ETHNIC ORIGIN, COUNCIL DIRECTIVE 2000/78/EC OF 27 NOVEMBER 2000 ESTABLISHING A GENERAL FRAMEWORK FOR EQUAL TREATMENT IN EMPLOYMENT AND OCCUPATION AND DIRECTIVE 2002/73/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 23 SEPTEMBER 2002 AMENDING COUNCIL DIRECTIVE 76/207/EEC ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT, VOCATIONAL TRAINING AND PROMOTION, AND WORKING CONDITIONS; AND TO REVOKE IN PART AND ENACT IN RESPECT OF PROCEEDINGS UNDER THIS ACT THE EUROPEAN COMMUNITIES (BURDEN OF PROOF IN GENDER DISCRIMINATION CASES) REGULATIONS 2001, WHICH GAVE EFFECT TO COUNCIL DIRECTIVE 97/80/EC OF 15 DECEMBER 19971 ON THE BURDEN OF PROOF IN CASES OF DISCRIMINATION BASED ON SEX. [18th July 2004]
This title clearly indicates that the intention behind the amendments was to make further and better provision in relation to equality of treatment in the workplace and elsewhere and to implement, inter alia, the framework directive. I am satisfied that the intention of the Oireachtas in passing this Act was to make further and better provision in relation to equality of treatment and that the implementation of the framework directive requires the provision of protection in relation to Article 3 (1)(d) relating to, inter alia, membership of an organisation of workers. There is nothing to suggest that the intention was to create restrictions in relation to victimisation.
6.26 In order to give the provision effect in the instant case in a manner which does not create such restrictions it must be interpreted by taking the term ‘employer’ to include the respondent. I find that allegations by the complainant of a victimisatory incident by the respondent occurring after July 2004 is validly before me.
Incident 7
6.27 The final incident that I will address relates to the refusal by the respondent to provide the complainant with legal support. This refusal was communicated to him by letter dated 20th January 2005. This is the incident that brings the entire claim in time. The reason given to the complainant for the refusal was that an investigation was in train. The only investigation that this may refer to is the investigation undertaken by the complainant’s employer and it is entirely unclear how this warrants a refusal of legal representation. At the hearing of this matter, the respondent referred a number of times to the unusual nature of the situation its officials found themselves in. Such a situation where one member was making a complaint against other members had never arisen before and it was not directly addressed by the rules of the organisation. They stated that the view was taken that as the implications for Mr. X and Mr. Y were greater they deserved the support of the organisation. This position fails to take account of the reference by the complainant to his potential dismissal (see incident 4 above).
6.28 As part of this investigation the respondent was requested to submit information relating to all such requests for legal representation from members during the period covering the complainant’s request. Among those received was a request from a member who had complained about other members and this request was granted. While the circumstances of the request may not have been entirely the same as that of the complainant’s, no evidence was presented that would reasonably explain the difference in treatment between the complainant and the other applicant. In the absence of any credible objective reason for the refusal an inference of adverse treatment arises. I am satisfied that the refusal constitutes adverse treatment amounting to victimisation in terms of section 74(2)(b) and (f) which the respondent has failed to rebut.
Separate Manifestations of the Same Disposition
6.29 At the hearing this case was described as a truly sad case that has blighted the lives of not just the complainant, Mr. X and Mr. Y but also the lives of their families. Having read and listened to the extensive evidence presented I agree that this is the case. It seems that both sides of the divide were informed by their beliefs in what was the correct approach to the original appointment which initiated the difficulties. I am satisfied based on the evidence that the complainant and the respondent, both as a whole and those individuals involved, became entrenched in their approach and their belief in the righteousness of their relative positions. The respondent believed that what had been implemented as respondent policy was correct and as it was part of a collective agreement it could not unilaterally be changed. The complainant believed that the policy was based on some considerations which he believed were illegal and which were subsequently found to be so. I am satisfied that in respect of the respondent this manifested itself in many incidents complained of by the complainant. Each incident brought about responses from the complainant. Each interaction, from both parties, seems to have exacerbated the situation one way or another so that the overall problem or situation became so complex as to almost be imponderable for those involved. The complainant became entrenched in the problem to the extent that he says he was practically unable to function, let alone negotiate a settlement of the issues. However, I am satisfied, that over the extended period relevant to this claim it is clear that the complainant was ultimately viewed as someone who had broken ranks and gone against respondent policy. This is in spite of changes agreed in the late 1990’s. Indeed, given the failure of the two mediation processes I am satisfied that the respondent felt there was nothing further they could do and interactions took on a certain nuisance value. In comparison, since the respondent had never informed the complainant that its enquiries into complaints made to it were closed, the complainant felt, justifiably, that the matter remained open. I am satisfied that many, if not all, of the subsequent contacts between the complainant and the respondent were tainted by the view that he had gone against policy by taking both the appeal and the equality claim.
6.30 The following is just one example of this.
On 27th October 2004 Ms. B wrote to Mr. Y. Included in the letter was the following:
“Mr. Dunbar could, perhaps, examine his own behavior: hyper-vigilance, writing everything down in an intimidating manner, glaring at people – all symptoms of bullying behavior.”
This is clearly indicative of a bias on the part of Ms. B. However, based on her letter issued on 29th January 2004 to the same individual, (detailed above), I am satisfied that such a bias already existed since it was clearly her intention to provide support to Mr. Y and not to the complainant. This is not to suggest that these biases were deliberate. I am satisfied that Ms. B, in taking over the case, found herself faced with a very difficult situation which she tried to resolve. However, I am also satisfied that she unwittingly adopted the general disposition against the complainant that was held by the respondent. His behavior at the meeting apparently confirmed her beliefs. This was further supported by contacts from Mr. X and Mr. Y who detailed the difficulties and trauma arising for them.
6.31 As an aside I note that the following are among those behaviours listed as behavioural changes occurring in those who believe themselves to be bullied[5]:
· Becoming aggressive, irritable, vengeful, withdrawn, hypersensitive to criticism, emotionally drained and obsessive dwelling on the aggressor.
6.32 I am satisfied, having found that the individual instances addressed were victimisatory, that taken collectively the respondent’s treatment of the complainant was victimisatory in nature flowing as it did from the perception that the complainant went against policy by taking both the appeal and the equality claim. I am also satisfied that any difficulties arising between him and respondent members and officials were as a result of that. As the Labour Court put it, each response was a separate manifestation of the same disposition.
6.33 I am satisfied, and find as a fact, that the overall approach taken by the respondent, as a whole as well as by local officials and members, was that by taking his appeal to arbitration and by lodging his equality claim the complainant was breaching respondent policy and this approach informed most if not all subsequent interactions between the complainant and the respondent. This is in spite of the fact that changes to the system had been adopted in the late 1990’s.
6.34 I find that the complainant has established that he was victimised in accordance with section 74(2) and that the respondent has failed to rebut it.
Decision
7.1 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) by the respondent. While the claim before me did not relate to bullying and while I am not empowered to reach any conclusions in relation to bullying allegations in my view the HSA Code of Practice[6] represents the most recent description of best practice in relation to bullying and could have universal application in relation to mistreatment generally. Therefore the Code is referred to below.
7.2 I hereby order the respondent to: Pay the complainant €10,000 compensation for the effects of discrimination. This takes some account of the complainant’s own contribution to the difficulties by behavior that rendered resolution of the issues difficult at various stages. This payment is not remuneration and is therefore not subject to PAYE/PRSI.
Inform all members that
the application for a position while not the senior candidate (in circumstances similar to the instant case where appropriate agreements are in place),
the taking of an appeal to arbitration, and/or
the taking of an equality claim
should not be interpreted as going against ASTI policy.
Implement a policy based on the HSA Code of Practice on the Prevention and Resolution of Bullying At Work (published 2007), ensuring that it covers all forms of mistreatment and that it is brought to the attention of all members. All members should be made aware of the confidentiality required in such cases. This order also requires the respondent to have an infrastructure in place for addressing such allegations between members.
Provide for a facilitation/mediation process involving the complainant, Mr. X and Mr. Y with a view to restoring working relationships. The Facilitator/Mediator should be suitably qualified, unknown to the parties and should be completely independent, that is should not be a member of the respondent organisation. This process is to take place as soon as possible but should begin not later than three months from the date of this decision. The Facilitator/Mediator should be given the authority to include other colleagues in the process where he/she considers it necessary and appropriate.
Bernadette Treanor
Equality Officer
30th June 2009
[1]Labour Court Recommendation EDA0412
[2]COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation
[3]IRLR 151
[4]EAT 484/98
[5]This list is taken from the VHI Corporate Solutions document Bullying in the Workplace available at http://www.vhi.ie/pdf/employers/dep/BullyingWorkplace.pdf It also includes references to psychological and physiological symptoms.
[6]Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work, HSA, 2007