The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-006
PARTIES
Cullen
(Represented by Actons Solicitors)
- V -
Department of Foreign Affairs
(Represented by the Office of the Chief State Solicitor)
File reference: EE/2007/175
Date of issue: 22 January 2010
Keywords - Employment Equality Acts – Discriminatory Treatment - Sexual Orientation - Prima Facie case - Victimisation
1. DISPUTE
1.1 This dispute concerns a claim by Ms Patricia Cullen that she was subjected to discriminatory treatment by the Department of Foreign Affairs on the grounds of her sexual orientation in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts. In addition, a claim of victimisation under Section 74 of the Acts has been raised.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 5 April 2007 under the Employment Equality Acts. On 19 January 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts 1998 to 2008 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 12 January 2010. The respondent did not attend the hearing of this matter. The hearing notification was sent to the respondent's representatives by registered post and was received and signed for. No formal application was made for an adjournment. I am satisfied that the respondent received adequate notification of the hearing and the hearing proceeded in the absence of the respondent.
2. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
2.1 The complainant submitted that she was employed by the respondent in a diplomatic role. The complainant provided details of various incidents where she alleged that she was treated in a less favourable manner by the respondent. The detail of these incidents related to the period from May 2000 up to the present.
2.2 The complainant submitted that the reason for the less favourable treatment was due to her sexual orientation. She further submitted that as she was open about her sexual orientation, and that as her partner was a member of the spouses' organisation (now family organisation), the respondent would have been well aware of this.
3. SUMMARY OF THE RESPONDENT’S WRITTEN SUBMISSION
3.1 The respondent rejects the complainant's allegations stating that its concerns are solely based on her performance. The detail of the respondent's submissions relates to Ms Cullen's complaint of discriminatory treatment on the ground of sexual orientation.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The first issue for decision by me is whether or not the respondent discriminated against Ms Cullen on grounds of sexual orientation, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 The second issue for decision by me is whether, as outlined at the hearing of this matter, the respondent has victimised the complainant contrary to the provisions of Section 74 of the Acts.
4.3 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.4 Notwithstanding the absence of the respondent from the hearing, it remains the case that the complainant must establish facts from which discrimination may be inferred.
DISCRIMINATION:
4.5 In oral testimony, the complainant outlined her case in some detail, alleging various instances of less favourable treatment on the sexual orientation ground throughout her career. This included detail of alleged discrimination relating to the period during the six months prior to her application to the Tribunal. I am therefore satisfied that instances raised fall within the timeframe envisaged within the Acts.
4.6 The complainant submitted copies of documents from her personnel file (which is in the possession of the respondent) in support of her allegations. However, I noted this documentation makes numerous references to issues of performance as the basis for her treatment.
4.7 The complainant provided details relating to comments made and written by the respondent during her career. Amongst the comments attributed to the respondent two comments in particular were raised by the complainant. The first comment put forward by the complainant was that the respondent had written that she was "unfit to serve the Department either at home or abroad because of her lifestyle" while the other comment attributed to her line manager advised her to seek opportunities outside the Department because of a "lack of appreciation of the family". At the hearing, the complainant referred to the particular documents containing the foregoing comments.
4.8 The complainant submitted copies of these documents in support of her contentions. However, a number of crucial elements are not borne out by the supporting documentation. The documentation shows that the first comment referred to in the preceding paragraph reads as follows: "On the basis or her performance here to date, I have serious reservations about (the complainant's) suitability for any post in the Department or its Missions abroad". This clearly puts the comment into a different context to the complainant's version of events and relates it specifically to her performance. The second comment was not contained in the documentation submitted to support her contention.
4.9 Another incident related by the complainant concerned a positive review she received from her line manager which she stated was endorsed by the reviewer. The documentation submitted shows that her line manager gave her an "Average/Above Average" rating, but the reviewer merely agreed with the average rating, taking exception to the above-average element of the rating. I do not consider the evidence sufficient to ground an inference of discrimination.
4.10 The complainant referred in oral testimony to being instructed to do her work in on her own and to being isolated. The submitted documentation includes a detailed three page memo from the complainant's line manager. This memo outlines the managers concerns in relation to the complainant's performance, provides a detailed work-plan, a timescale for the completion of the assigned tasks and concludes with the statement that "It is an independent body of work, which should not require consultation with other Desks." In the circumstances outlined, I do not consider that this memo supports the allegation that the complainant was isolated for reasons of her sexual orientation.
4.11 In September 2006, the complainant sought an upgrade to the level of Assistant Principal Higher Scale. She stated that although her manager rated her highly, she was blocked from receiving the upgrade for spurious reasons. The complainant stated in response to the Equality Officer's questions that the award of an upgrade was considered on two criteria: seniority and acceptable performance. The complainant stated that she did not receive the upgrade due to her sexual orientation. Having regard to the complainant's written submissions and supporting documentation, I do not find that to be the case as the documentation does not support the complainant's contention.
4.12 In the Labour Court case of Melbury Developments Limited and Valpeters (ADE/09/16). the Court stated, inter alia, that:
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.
4.13 Having regard to the detail of the oral testimony, I find that the content of the supporting documentation, which consistently refers to performance issues as the basis for a difference in treatment, is at odds with the complainants version of events. I consider that this proves fatal to the complainants case of discriminatory treatment and, accordingly, find that no prima facie case has been established.
VICTIMISATION:
4.14 In July 2008 the complainant was asked by the Tribunal for further submissions in support of her case. The complainant supplied the requested submissions and these were furnished to the respondent on 13 August 2008 as per the Tribunal's normal procedures.
4.15 In a submission made to the Tribunal on 26 September 2008, the complainant made a claim that her performance rating was being downgraded and that the respondent was using an extension of time, granted to it for making its submissions, to undermine and underscore her. In the hearing, the complainant stated that this amounted to victimisation.
4.16 The complainant had completed a performance assessment in June 2008 which was signed off by both herself and her line manager. The complainant stated that on 19 September 2008, she was informed that there had been a mistake with the June performance assessment report (which rated her as 'meets the requirements of the job/role' - which may be seen as an average rating) and the 'wrong' version had been completed. Her line manager presented her with a corrected version for signature, stating that it was an exact copy of the earlier form. The complainant stated that upon examination, her rating had been downgraded to a numerical 2 out of 5 score (equating to a rating of needs improvement - role holder has met some role requirements to required standard but performance has fallen short in some respects' - which may be seen as a below-average rating).
4.17 In oral testimony, the complainant stated that the foregoing amounted to victimisation as outlined in Section 74 of the Acts. The complainant stated that the net effect of this was that although the complainant was on a foreign assignment, a numerical 2 would mean that she would be posted back to Ireland which would be seen as a retrograde step by her peers.
4.18 The complainant submitted a copy of this 'revised' performance assessment which indicates a performance rating of 2. The copy is not signed. Having regard to the documentation submitted, it is apparent that the complainant was in fact given a rating corresponding to "meets the requirements of the job/role" for the June document and that this was signed off by her manager. The 'revised' document presented to her for signature in September 2008 outlines a rating corresponding to "needs improvement - role holder has met some role requirements to required standard but performance has fallen short in some respects". On the balance of probabilities and having regard to the stated timeline whereby this downgrading followed receipt of the complainant's submissions to the Tribunal, I am satisfied that the complainant has established facts from which victimisation may be inferred.
5. DECISION
5.1 I find that a prima facie case of discriminatory treatment on the basis of the sexual orientation ground has not been established and this element of the complaint fails.
5.2 I find that a prima facie case of victimisation has been established and this element of the complaint is upheld.
5.3 In accordance with section 82 of the Acts I award the complainant €20,000 in compensation for the victimisation suffered. As this does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
22 January 2010