Equality  Tribunal Decision No:  DEC-E/2009/013

 Parties

Boyle

(Represented by  Mary Honan BL – Instructed by the

Equality Authority)

And

Ely Property Group Ltd

File No: EE/2006/115

Date of issue 11 March, 2009

TABLE OF CONTENTS

           SECTION                                                                              PAGE

            Dispute                                                                                     2

            Background                                                                             2

            Summary of Complainant’s Case                                          3

            Summary of Respondent’s Case                                            6

            Conclusions of the Equality Officer                                      7

           Decision 11

Headnotes

Employment Equality Acts, 1998- 2007 sections 6, 8, 14A and 77 – discriminatory treatment – harassment – discriminatory dismissal – gender – burden of proof .

1.         DISPUTE

           This dispute involves a claim by Ms Zena Boyle that that she was (i) discriminated against by Ely Property Group (the respondent) in respect of her conditions of employment contrary to section 8 of the Employment Equality Acts, 1998 - 2007, (ii) harassed by the respondent contrary to section 14A of the Acts and (iii) dismissed in circumstances amounting to discrimination in terms of section 77 of the Acts. The complaint was referred on grounds of gender in terms of section 6(2) of the Acts. The complainant also referred a complaint of sexual harassment but this was withdrawn at the Hearing.

2.         BACKGROUND

2.1      The complainant commenced employment with the respondent as a Housing Manager in August, 2005. She contends that soon after she commenced employment she was harassed by the respondent when she did not follow instructions to act in what she considered to be a reckless, aggressive and in some situations unlawful manner in discharging her duties. She contends that in early November, 2005 she was dismissed in a manner that constitutes discrimination of her contrary to the Acts. The respondent rejects the complainant’s allegations and states that there were issues around her performance and conduct which resulted in the termination of her employment.

2.2      The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 13 April, 2006. In accordance with her powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 15 September, 2008, the date the complaint was delegated to me. The complainant filed a submission but despite a number of requests the respondent failed to file a detailed response. Nonetheless a Hearing of the complaint took place on 16 December, 2008.

3.         SUMMARY OF COMPLAINANT’S CASE

3.1      The complainant commenced employment with the respondent as a Housing Manager on 20 August, 2005. She states that she was never given a written contract of employment or a letter of appointment but it was her clear understanding that the position was a permanent full-time post with a three month probationary period.  Her job was to manage newly built student accommodation in Donegal on behalf of the respondent. The complainant states that she had been informed by Mr. Reid (the person who interviewed her and her immediate Line Manager) that she would have an apartment and office on site but when she reported for duty she found that the office was not ready and she had no telephone. In addition, her accommodation was not ready either and the complainant states that she spent the first six weeks of her employment at her home and travelled to work each day. She adds that she only took up residence in the on-site apartment about four weeks before her employment was terminated. The complainant states that on her appointment she immediately raised the issue of the phone and office with Mr. Reid and he informed her to buy desk furniture locally and bill the company direct – which she did - and she worked from the show apartment in the complex for a while. She adds that she used her own mobile for a number of weeks and recouped the cost from the respondent. However, this became problematic for her and she raised the matter with another Director (Mr. Marley). She states that he instructed her to purchase a mobile phone locally and recoup the cost in the usual fashion – which she did and that the cost of the phone (€70) was refunded to her within a few days. The complainant accepts that she signed an Agreement and Direct Debit Mandate with the relevant phone network service provider to cover the cost of the calls and rental. She states that this was done with the full knowledge of the respondent as she was given the appropriate account details by Ms. A – an employee in the Dublin Office – since she did not know those details herself.

3.2       The complainant contends that the harassment of her commenced from the first week of her employment. The complainant states that the student accommodation was brand new and there were a significant numbers of snags with them, which were brought to her attention by the students. In addition, the area was effectively a building site which presented significant hazards to residents and visitors – she adds that one of the tenant’s parents fell into a hole on the site early in her employment. The complainant states that the students took up residence in the apartments from the beginning of September, 2005 and that these issues presented themselves from that time. She adds that she informed Mr. Reid of these problems from the outset but he was not interested in them and his initial reaction of annoyance with the complainant increased into the use of foul and abusive language to her and screaming down the phone at her. The complainant alleges that she spoke with him on average about 3-4 times per week and his attitude was the same. She states that on one occasion he instructed her to put the students’ belongings into plastic bags, throw them outside the apartment and change the locks. She adds that he also instructed her to get the students “by the scruff of the neck” and throw them out on the road and on another occasion he told her “she was f****** useless, she couldn’t control that students, what they needed was a man to sort them out and he would come down from Dublin and punch them in the face”. The complainant adds that she was continuously subjected to this type of comment from Mr. Reid and she found it offensive and upsetting and it created an environment where she felt humiliated and intimidated. She further states that in her opinion what Mr. Reid was looking for was a tough male who was prepared to use some sort of physical behaviour to deal with the students.

3.3             The complainant states that despite Mr. Reid’s treatment of her she attempted to deal with the students’ concerns and liaise with the builder to rectify the problems raised. In addition, she took steps to deal with those tenants who were engaging in anti-social behaviour. The complainant states that she was never told of the existence of any grievance procedure – despite asking Mr. Reid – and she did not take her concerns to someone else in the respondent organisation because she did not have any faith in a positive outcome. The complainant states that 4-5 weeks before her employment ceased with the respondent graffiti appeared on a wall within the student complex which was focussed on her and which contained foul language. She further states that she reported this to Mr. Reid and he subsequently attended a meeting with some of the students and their parents. The complainant states that the meeting was of little value as Mr. Reid did not indicate to those in attendance that this type of behaviour was unacceptable and he merely told the complainant that if she could identify the culprits she should evict them.

3.4             The complainant states that in late September, 2005 she was instructed by Mr. Reid to organise the recruitment of a live-in caretaker for the complex and in accordance with this instruction she contacted a local employment agency and interviews were arranged for 19 October. The complainant states that she collected Mr. Reid from Derry Airport on that day and brought him to the location of the interviews. She states that she had expected to participate in the interviews as Housing Manager but she was not asked to do so. She alleges that contrary to what the respondent had indicated the interviews were in fact for candidates as her replacement. The complainant states that on the morning of 4 November, 2005  Mr. X arrived at her office and informed her he was the new caretaker. She adds that a few moments after his arrival she received a phone call from Mr. Reid informing her that she was dismissed and to be off the premises by noon that day. The complainant adds Mr. X subsequently informed her that he had been recruited to replace her, that Mr. Reid had instructed him to fire her on his arrival and that he was to ensure she was off the premises immediately. The complainant also states Mr. X told her that Mr. Reid has used foul and derogatory language to describe her to him. The complainant states Mr. X told her that during the course of his interview he informed Mr. Reid he had been in trouble with the police and when he indicated that he had a previous conviction from grievous bodily harm, Mr. Reid advised him that was not a problem as the respondent was looking for someone who could handle himself. The complainant rejects the respondent’s assertion that there were issues with her performance which might warrant her dismissal. She submits therefore that the respondent dismissed her because it wanted a male to perform the role of Housing Manager and contends that her dismissal constitutes discrimination of her on grounds of gender contrary to the Acts. No grievance or disciplinary procedure existed and she was never formally informed that there was any issue with her performance during her employment with the respondent.

3.5      In summary, the complainant submits that the alleged behaviour of Mr. Reid created an offensive, intimidating and hostile working environment for her. His alleged use of foul and abusive language, both to and about the complaint, some of which could only be described as derogatory to women, clearly demonstrates a predisposition which is discriminatory to females. She further submits that his comments about the need for physical aggression in discharging the duties of Housing Manager and his alleged comments to Mr. X  about requiring someone who can handle himself further supports her assertion on this point. She contends that the alleged verbal abuse of her by Mr. Reid constitutes harassment of her contrary to the Acts and she relies on the Equality Officer Decisions in A Complainant v a Company[1], A Complainant v a Financial Institute[2] and 2 Customers v A Retail Outlet[3] in support of this assertion. The complainant further submits that the graffiti incident constitutes another incident of harassment which, on the face of it,  appears to have been perpetrated by the students but that section 14A(1) of the Acts make the respondent vicariously liable for their actions. She further submits that the absence of any policy on harassment and the total abdication of responsibility for pursuing her complaint when she made it to Mr. Reid, do not enable the respondent  avail of the defence at section 14A(2) of the Acts. Finally, the complainant contends that the respondent’s letter of 27 July, 2005 (to the Equality Authority) contains blatant untruths, as was demonstrated by Mr. X in the course of his evidence at the Hearing and submits that this, plus the respondents’ failure to respond her EE2 Right to Information Form must call the credibility of the respondent into question.

4.         SUMMARY OF RESPONDENT’S CASE

4.1       The respondent rejects the complainant’s assertion that it discriminated against her in any way whatsoever. It states that the main actor in these proceedings, Mr. Reid, no longer works for the respondent and it has therefore been unable to obtain material from him to address many of the issues raised by the complainant. It accepts that Mr. Reid interviewed the complainant for the post but cannot comment on the nature of any agreement which he may have entered into with her. The respondent cannot dispute the complainant’s assertion that she did not receive a written contract of employment or letter of appointment. It did however, accept that it was common practice for an offer of employment to be made to the suitable candidate and for salary details to be finalised later.

4.2       The respondent (through Ms. Ind, Director) states that she worked along side Mr. Reid in an open plan office and she never heard him use the type of language attributed to him by the complainant. The respondent therefore rejects the complainant’s assertions on this issue. It states that it was policy for staff to use their own mobile phones for official use and to recoup the costs in arrears. The respondent (Ms. Ind) states that the complainant purchased a mobile phone locally and entered into a Direct Debit Mandate with the phone network service provider without authorisation. This arrangement came to light when the bank statements were checked by the Financial Director (Mr. Lyons) who raised the matter with the complainant. The respondent is unable to confirm when this occurred because Mr. Lyon’s has also left the company. The respondent accepts however, that the complainant was refunded the €70 which she originally paid for the mobile phone. Ms. Ind states that there was no written policy governing the use of one’s personal phone for official purposes. She also states that, to her knowledge, there was no formal grievance, disciplinary or harassment policies in operation at the relevant time.

4.3       The respondent states that Mr. Reid had problems with the complainant’s performance and conduct which resulted in the decision to terminate her employment with it. Ms. Ind is unable to furnish any documentary evidence to demonstrate that Mr. Reid has these issues with the complainant or that he ever raised them with her. The respondent states that Mr. Reid attended a meeting with students and parents in Donegal following the spraying of graffiti on a wall in the complex. However, Ms. Ind is unable to confirm what action Mr. Reid took on the matter and confirmed that to the best of her knowledge, neither he nor Mr. Marley or Mr. Lyons ever completed any training on grievance procedures or harassment, particularly those covered by any of the nine discriminatory grounds. She states that the decision to dismiss the complainant was, as far as she knew, taken by Mr. Reid and Mr. Marley following the performance problems and her misconduct and was not related to her gender.

5.         CONCLUSIONS OF THE EQUALITY OFFICER

5.1       The issues for decision by me are whether or not the respondent (i) discriminated against the complainant in respect of her conditions of employment on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, (ii) harassed the complainant on grounds of gender, in terms of section 6(2) and contrary to section 14A of the Acts and (iii) dismissed the complainant in circumstances amounting to discrimination on grounds of gender in terms of section 6(2) and contrary to section 77 of the Acts.  

5.2      Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

5.3      I shall look at the discriminatory treatment element of the complainant’s allegations first. She asserts that she was treated less favourably because she was female and that a man would not have been treated the same in similar circumstances. Section 6(1) of the Employment Equality Acts, 1998-2007 defines discrimination as circumstances where “a person is treated less favourably than another person is, has or would be treated in a comparable situation on any of the grounds… (the discriminatory grounds) …”.  The complainant asserts that from early in her employment Mr. Reid held the view that what was required to discharge the duties attached to the post was a man who could deal with the troublesome students and could in short, handle himself if necessary. She adds that he encouraged her to use threatening behaviour towards the students and when she failed to do so he began to use foul and abusive language toward her and told her he would come up himself and punch them in the face. The person who was recruited to replace the complainant (Mr. X) attended the Hearing and gave evidence as regards his interaction with Mr. Reid. He stated that in the course of his interview for the position, which was conducted by Mr. Reid, he was asked if he was ever involved with the police and when he replied he had previous convictions for assault and had been a boxer, that Mr. Reid displayed a keen interest in the issue and the witness felt that what Mr. Reid was looking for was an individual who was not afraid to get physical if necessary. The witness added that Mr. Reid described the complainant using foul and abusive language and such was the effect of this that the witness was of the view that the complainant was “useless at her job”. The witness also stated that Mr. Reid told him his first task was to sack the complainant and see her off the premises. The witness stated that when he arrived on the day he was due to commence work he found the complainant to be an organised and competent person and he did not do as instructed. He added that he felt he had been used by the respondent and decided not to take the position. When he communicated this to Mr. Reid by telephone he (Reid) used foul language at the witness and continued to phone him for a couple of days pestering him. I found Mr. x to be a very credible and forthright witness and having examined all of the evidence on this point, I am satisfied Mr. Reid held the view that the complainant, as a woman, was not capable of using physical force to deal with troublesome students at the complex – an approach I am satisfied he advocated - and that what he felt was required was a man who possessed the necessary physical attributes and was willing to use them for that purpose. It follows that the respondent treated the complainant in a manner which it would not have treated a man in the same circumstances, that she has therefore established a prima facie case of discrimination on grounds of gender contrary to the Acts and that the burden of proof shifts to the respondent to rebut that inference. I find that the respondent has failed to discharge this burden and indeed it is noteworthy that in the course of the Hearing a Director of the respondent made the comment that it required a “strong person to manage students” which in my view clearly supports the disposition held and expressed by Mr. Reid about the complainant.

5.4             I shall now turn to the second element of Ms. Boyle’s complaint – that she was harassed on grounds of gender. Section 14A(7) of the Acts defines harassment as follows:

            “(a)      In this section

      (i)         references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds….

      being conduct which… has the purpose or effect of violating a person's dignity    and      creating an intimidating, hostile, degrading, humiliating or offensive          environment for the person.

            (b)        Without prejudice to the generality of paragraph (a), such unwanted conduct                               may consist of acts, requests, spoken words, gestures or the production, display                                    or circulation of written words, pictures or other material.”.

            The complainant’s claim of harassment focuses on two separate elements – the continuous alleged treatment of her by Mr. Reid and an incident where graffiti was sprayed on a wall at the student accommodation which referred to her in derogatory terms. On the basis of the evidence presented to me I am satisfied that Mr. Reid used foul and abusive language both directly to the complainant and about her to Mr. X. The nature and content of this foul language was related to me at the Hearing (by both the complainant and Mr. X independently of each other) and I am satisfied that it is offensive, humiliating, intimidating and degrading to the complainant on the basis of her gender. It is common case as to the nature and content of the graffiti which was sprayed on the wall of the student accommodation. I am satisfied, on balance,  that this graffiti was carried out by some of the resident students. Details of this graffiti was furnished to me in the course of my investigation and I am satisfied that it was offensive, humiliating and degrading to the complainant on the basis of her gender. Section 14(1) of the Acts makes the respondent vicariously liable for the actions of a client, customer or other business contact of the respondent. The students clearly fall into this category.  I therefore find that the complainant has established a prima facie case of harassment on grounds of gender contrary to the Acts. 

5.5       Section 14A(2) of the Employment Equality Acts, 1998-2007 provides the respondent with a defence as regards gender harassment as follows:

        “If harassment … of the victim by a person other than his or her   employer would, but   for       this subsection, be regarded as discrimination by the employer under subsection (1),   it is       a defence for the employer to prove that the employer took such steps as are reasonably      practicable—

          (a)              in a case where subsection (1)(a) applies ….to prevent the person from                       harassing or sexually harassing the victim or any class of persons which               includes the victim,                              

            It is well established caselaw of this Tribunal and the Labour Court that in order to avail of this defence the respondent must have a policy on harassment which, in particular, gives a clear message that such behaviour will not be permitted and provides an accessible process for an employee to submit a complaint to an employer where s/he considers they have suffered harassment. The respondent stated at the Hearing that it had no such policy in operation at the relevant time. Consequently, there was no mechanism for the complainant to register her complaint against Mr. Reid, who was her Line Manager and who held a senior position in the respondent company. It was he who travelled to Donegal to deal with the graffiti incident. The respondent was unable to demonstrate with any real clarity what action he took on this matter and I therefore prefer the complainant’s evidence that he was by and large, dismissive of her situation. In light of the foregoing I find that the respondent cannot avail of the defence available at section 14A(2) of the Acts.

5.6      I shallnow examine the final element of the complaint – Ms. Boyle’s assertion that she was dismissed in circumstances amounting to discrimination contrary to the Acts. The respondent asserts that it dismissed the complainant as a result of a number of issues relating to performance and misconduct, the latter primarily connected with the purchase and billing arrangements for a mobile phone which the complainant organised. In the course of the Hearing Ms. Ind (Director) was unable to shed any light on the performance related issues surrounding the dismissal other than to say that the decision was taken by Mr. Marley and Mr. Reid, although she did recall them mentioning to her that the complainant had been dismissed. No documentary evidence was submitted by the respondent to indicate that the complainant had been warned as to her performance and indeed I note Ms. Ind confirmed that there was no formal disciplinary process in operation at the time. The respondent submits that complainant was involved in a serious incident of misconduct when she entered into a contract with a mobile phone service provider for a bill pay mobile phone. I do not accept this explanation as credible. Firstly, the complainant obtained prior approval (from Mr. Marley) to purchase the phone – this is evidenced by the fact that she was reimbursed the cost of the phone within days of purchasing it – a fact accepted by the respondent at the Hearing. Secondly, the respondent’s bank account details were required to activate the direct debit mandate. The complainant states that she obtained these details from Ms. A, an employee in the Head Office in Dublin and I accept her evidence on this matter, particularly as Ms. Ind was unable to indicate how and why the complainant would have had prior knowledge of these details in her capacity as Housing Manager. In those circumstances, I am of the view that the complainant was entitled to assume she was acting with the approval of the respondent. Thirdly, there are inconsistencies in the respondent’s version of events. In a letter on its behalf from a firm of solicitors to the Equality Authority  dated 27 July, 2006 it states “shortly after commencing employment” the complainant entered into a formal contract on its behalf with a mobile phone service provider. In the same letter it states that this “transpired around early October” and in a letter to this Tribunal dated 13 March, 2008 it stated “that it was in November, 2006 we discovered her mobile phone payment on our bank statements”. This latter date was confirmed by Ms. Ind at the Hearing. These inconsistencies seriously undermine the respondent’s ability to satisfy me that the complainant’s dismissal was for the reasons stated by it.

5.7      I am further influenced in this regard by the comment in the respondent’s letter of 27 July, 2006 (mentioned above) as follows – “Having appointed Mr. X … to take over from the complainant … he disappeared and is believed to have returned to England. Mr. X indicated in a brief telephone conversation with our client that he had been approached by a number of workmen … and told he should leave the area immediately if he wanted to remain healthy and Mr. X believed these threats were made at the behest of Ms. Boyle.”.  Mr. X stated quite emphatically at the Hearing that this version of events is an absolute fabrication on the respondent’s part. No such approach was made to him – indeed he still resided in Donegal at the time of the Hearing and he had no contact with the respondent after he declined the position, other that what he described as nuisance phone calls from Mr. Reid for a number of days afterwards.  Finally, it is clear that Mr. Reid had decided to terminate the complainant’s contract in late September, 2004 when he asked her to organise interviews for her replacement, although this was unknown to her at the time. I am satisfied that this decision was premised on his belief that as a female the complainant was unable to deal with troublesome students in the same manner a man could. In addition, such a decision predates any alleged performance related issues advanced by the respondent but coincided with Mr. Reid’s discriminatory harassment of the complainant. I find therefore that the termination of the complainant’s employment was connected with her gender and this constitutes unlawful discrimination of her in terms of the Employment Equality Acts, 1998-2007.

6.         DECISION OF THE EQUALITY OFFICER.

6.1      I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008.

I find that the respondent –

                        (i)         discriminated against the complainant in respect of her                                                       conditions of employment on grounds of gender, in terms of section 6(2)                            of the Employment Equality Acts, 1998 and 2004 and contrary to section 8                      of those Acts,

                        (ii)        harassed the complainant on grounds of gender, in terms of section 6(2) of                         the Employment Equality Acts, 1998 and 2004  and contrary to section 14A                of the Acts and

(iii)       dismissed the complainant in circumstances amounting to discrimination                 on grounds of gender in terms of section 6(2) and contrary to section 77 of       the Acts. 

6.2      In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I hereby order the following:

                        (i)         that the respondent pay the complainant the sum of €30,000 by way of                              compensation for the distress suffered by her as a consequence of the                                discrimination. This amount includes an element of €10,000 in respect                                of loss of earnings and this amount is therefore subject to the revenue                                     code;

                        (ii)        that the respondent introduce, within three months of the date of this                                Decision, a Code of Practice on Harassment covering all nine grounds                                provided in the Acts along the lines set out in SI 78 of 2002 -  Employment                   Equality Act, 1998 (Code of Practice) (Harassment) Order, 2002 and to                            bring the Code to the attention of all staff immediately;

                        (iii)       that the respondent arrange training on the operation of the Code of Practice                      for all employees with staff management functions in the organisation as                                  soon as possible and ensure that this training is updated as necessary.

                        (iv)       that the respondent issue the complainant with her P45 in respect of her                             period of employment with it without further delay.

           _______________________________

            Vivian Jackson         

            Equality Officer

            11 March, 2009