THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 116
PARTIES
Mr Martin Mannering
(represented by SIPTU)
and
Limerick City Council
(represented by LGMSB)
File Reference: EE/2007/018
Date of Issue: 2nd July 2010
Claim
1.1. The case concerns a claim by Mr Martin Mannering that Limerick City Council discriminated against him on the ground of race contrary to Section(s) 6(2)(h) of the Employment Equality Acts 1998 to 2008, in his terms and conditions of employment.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 10 January 2007. A submission was received from the complainant on 8 August 2008. A submission was received from the respondent on 24 September 2008. On 15 July 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 19 May 2010. Additional evidence was requested from the respondent at the hearing and received on 4 June 2010. The complainant was then given an opportunity to make observations on the evidence, which were to be submitted by 25 June 2010, but did not avail of this.
2. Summary of the Complainant's Written Submission
2.1. The complainant is English and works for the respondent in the role of fire fighter. He submits that between 2002 and 2004, a number of incidents occurred at work, and during a training course he was attending, that show he was less favourably treated than colleagues because of him being English. He further submits that in September 2006, he received an anonymous racist note in his locker, which could only have come from within the fire station. It is the complainant's contention that in this instance, the respondent failed to protect him from this type of harassment.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainant, and maintains that throughout his training and employment, he was subjected to the same disciplinary and supervisory processes as his colleagues. The respondent further points out that two other English fire fighters are in its employment and that this weakens the complainant's case that the manner in which issues which arose during his employment with the respondent were dealt with were linked in any way to his race or national origin.
3.2. With regard to the anonymous racist note that the complainant found in his locker, the respondent accepts that the incident occurred, and that the complainant complained to it about it. The respondent also states that it has a Dignity at Work policy. However, the respondent maintains that the complainant and his representative, through their actions, frustrated an internal investigation about the matter.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are:
- whether, given the dates at which various incidents occurred, they are sufficiently connected to form a chain of events, and are therefore within time pursuant to the provisions of S. 77(5) of the Acts and whether I have jurisdiction to investigate them and
- whether the complainant was discriminated against and harassed on the ground of race within the meaning of the Acts.
4.2. With regard to the time limits issue, I put it to the complainant to demonstrate a connection between the incident in the summer of 2004, where he alleges he was treated differently from other fire-fighters after sustaining an injury, and the receipt of the racist note in autumn 2006, with the 2004 incident being the closest in time to the 2006 incident, which was brought within time according to S. 77(5) of the Acts. The complainant was not in a position to adduce evidence that the two incidents form a chain of events as defined by the Labour Court in Dept of Health v. Gillen [ADE/03/15]. Accordingly, I find that all incidents prior to the receipt of the racist note are outside the time limits as specified in S. 77(5) of the Acts, and that I have no jurisdiction to investigate them.
4.3. In evaluating the substantive evidence before me with regard to the complainant's claim of harassment, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.4. In the case on hand, the complainant has discharged this probative burden. There is no dispute between the parties that in autumn 2006, an anonymous note was left in his locker saying: "THIS IS LIMERICK, IRELAND NOT MIDDLESBORO, ENGLAND. TAKE [named employee's] ADVICE". It was clarified in evidence that Middlesboro is the complainant's home town in England. The named employee was a firefighter with Limerick fire brigade who left the brigade to transfer to the Dublin fire service. So essentially, the anonymous writer or writers of the note suggest that the complainant should leave his employment; with a clear connection to the complainant's nationality. The complainant had been serving with the respondent's fire service since 2001 at this date.
4.5. Furthermore, there is no dispute between the parties that the incident was brought to the respondent's attention. The first step the complainant took was to consult with his union representative. The complainant and his representative then met with a staff member of the respondent's HR department within two or three days of the incident. According to the complainant, the staff member was "shocked and disgusted" when he learned what had happened. That was in September 2006. On 11 October 2006, the complainant and his representative met with the Chief Fire Officer to relate the incident to him.
4.6. With all of these facts being common case, I will therefore move on to examine whether the defence under S. 14(2) avails the respondent, that it took "such steps as are reasonably practicable ... to prevent the person from harassing ... the victim or any class of persons which includes the victim."
4.7. In terms of the policies the respondent had in place at the material time, I am satisfied that the complainant was sent the respondent's "Policy Statement on Workplace Bullying" on 27 May 2002. This policy statement also makes reference to harassment, and while it does not list the nine grounds under the Acts, it does list the respondent's equality officer as one of the persons to approach for help and advice, including advice on whether a particular action constitutes bullying or harassment. It also maps both informal and formal resolution processes clearly and in detail.
4.8. An updated version of this policy, entitled "Limerick City Council Dignity at Work - Staff Policies and Procedures", was circulated among Section Heads and Supervisors of the respondent on 11 February 2004. It was intended for all staff, and a letter was attached to that effect. The policy gives a detailed overview over the grounds of harassment, and what types of behaviour can constitute harassment. It also lists the Equality Authority as a resource for independent advice on such matters. This was the policy which was in effect at the time the complainant's harassment occurred.
4.9. In terms of processes available to a victim of harassment, the policy specifies that he or she should approach one of the designated contact persons, the supervisor or section head, a union representative, the respondents employee assistance officer or the respondent's equality officer. These people should then outline the three approaches detailed in the policy to the victim - informal resolution, mediation or a formal investigation - and help the victim agree the correct approach.
4.10. The policy further states: It is important to note that if a person comes to any of the contact persons above, feeling that he/she is being harassed, sexually harassed or bullied by a staff member, client, customer or other business contact, stating that he/she does not want to proceed with resolving the problem, the contact person is required to report the issue to ensure that it can be resolved. Confidentiality will ensure that the matter is treated with respect but cannot relieve Limerick City Council of its obligation to the principle of natural justice to all parties - the complainant and the person complained against. [Emphasis in the original]
4.11. Last, I note that the policy states under "Implementing and Monitoring the Code", that "[s]pecific responsibility attaches to Supervisors and Section Heads to implement the provisions of this code".
4.12. Considering the meeting the Chief Fire Officer had with the complainant and his union representative in the light of the respondent's policy on harassment, I note that the complainant was facilitated in his transfer request, which he made on grounds of health and safety, five days after the meeting. The complainant confirmed at the hearing of the complaint that he had not experienced a problem since.
4.13. However, there was no further follow-up from the Chief Fire Officer on the actual act of harassment. The Chief Fire Officer said in evidence that he did outline the three ways of proceeding to the complainant in the meeting, which, according to the Chief Fire Officer, were mediation, an investigation, or a transfer. According to the respondent's own policy, it is incorrect to say that a transfer constitutes a solution to a complaint of harassment - the policy speaks of informal solutions, which are specified as making an offender aware of his or her behaviour with a view of getting them to stop, without severing the working relationship between the parties. Accordingly, the complainant's transfer, regardless of the fact that it occurred at his own request, cannot be considered to be an adequate response to his complaint.
4.14. In terms of a possible investigation of the complainant's complaint, the Chief Fire Officer stated in evidence that starting an investigation would have required a second meeting with the complainant, where the complainant would have needed to make a request for an investigation, since the meeting on 11 October 2006 was only about health and safety matters. The complainant disputed this, saying that he had relayed all material facts to the Chief Fire Officer at that meeting. The complainant's evidence in this matter is further supported by a contemporaneous email, dated 9 October 2006, in which the staff member in the respondent's HR department to whom the complainant originally spoke about the matter emailed the Chief Fire Officer about that meeting. It states clearly: "I informed Mr K. [union representative] and Mr Mannering that they should present their case as outlined above to the Chief Fire Officer and that I had no doubt but that the Chief Fire Officer would consider their submission and facilitate the transfer. I also told them that the Chief Fire Officer would investigate further the circumstances alleged by Mr Mannering which caused him to submit his complaint." [Emphasis added]
4.15. Therefore, I am satisfied that the complainant, along with his union representative, met with the Chief Fire Officer with a confirmed expectation that an investigation into the matter would follow. Under the circumstances, I find that the Chief Fire Officer's failure to insist on an investigation, in contravention of the very clear obligations which the respondent's anti-harassment policy places on staff members of his level of seniority, amounts to a failure to take steps as are reasonably practicable to prevent the complainant's harassment, and that therefore, the defence under S. 14(2) of the Acts cannot avail the respondent. Accordingly, the complainant is entitled to succeed.
5. Decision
5.1. Based on all of the foregoing, I find that pursuant to S. 79(6) of the Acts that
(i) The respondent discriminated against the complainant in relation to his conditions of employment contrary to S. 8(1) of the Acts by not taking reasonable and practicable steps to prevent his harassment on ground of race contrary to S. 14A(7) of the Acts;
(ii) I have no jurisdiction to investigate the other matters complained of by the complainant, due to them being filed outside the time limits specified in S. 77(5) of the Acts.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay the complainant €5000 in compensation for the harassment endured. This award is in compensation for the distress experienced by the complainant in relation to the above matter, and is not in the nature of pay, and therefore not subject to tax.
_________________________
Stephen Bonnlander
Equality Officer
2 July 2010