THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2011 - 224
PARTIES
Ms Emma Fisher (represented by Mr Brendan Archbold)
-V-
Staunton Sports Ltd t/a Elverys
(represented by RDJ Glynn Solicitors)
File References: EE/2009/023
Date of Issue: 2nd December 2011
Table of Contents
Claim 3
Summary of the Complainant's Written Submission 3
Summary of the Respondent's Written Submission 5
Conclusions of the Equality Officer 6
Discrimination complaint 6
Victimisation complaint 9
The Law on Bad Faith 11
Decision 14
1.1. Claim
1.1. The case concerns a claim by Ms Emma Fisher that Staunton Sports Ltd t/a Elverys discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of access to promotion, harassment and other discriminatory conduct. The complainant further claims she was victimisatorily dismissed within the meaning of S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 20 January 2009. Her complaint of victimisatory dismissal was received on 3 February 2009. A submission was received from the complainant on 15 October 2009. A submission was received from the respondent on 7 January 2010. On 17 June 2011, in accordance with his 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 20 July 2011. Additional evidence was requested from the respondent at the hearing and received on 10 August 2011. Additional submissions in relation to the complainant's complaint of victimisatory dismissal were requested from both parties at the hearing and received on 9 August and 16 September 2011 from the complainant and on 12 August 2011 from the respondent. The last piece of correspondence relating to the complaint was received on 16 September 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant alleges that she was harassed on the ground of her gender by a named male colleague. He made derogatory comments in her presence such as "How did you ever get an interview here? You are like an elf" or "You are like a little ferret". The complainant's height is 5ft 3. According to the complainant, the named male colleague, a few weeks later, proceeded to say: "I am going to hit you with this umbrella", which he brandished. The complainant first approached the colleague directly and asked him to stop. The complainant went out on sick leave when the behaviour continued, but did not report the situation to her doctor for fear of not being taken seriously. Instead, she reported a genuine but unrelated ailment and was duly certified.
2.2. While out on sick leave, the complainant phoned her manager, Mr M., about the problem, and met with him outside work to discuss it further. However, the complainant was unhappy with what the saw as Mr M.'s very informal approach to the problem, and that, as far as she was able to tell, no investigation or disciplinary action took place. Furthermore, when the complainant returned to work, she had reason to believe that he had discussed her complaint with other staff. According to the complainant, Mr M. did not attempt to deny this, but simply uttered an embarrassed "ok".
2.3. The complainant further submits that her role was part-time, but that her rosters were very unpredictable. She approached Mr. M on 12 January 2009 about the need to take time off on 18 and 19 January. According to the complainant, she did not apply for annual leave for these days. She was then rostered to work these days. The complainant also submitted the copy of a meeting note from 12 December 2008, discussing her sick leave absences, which she claims was in response to her request. The day after the complainant's request, i.e. the 13 January 2009, she was asked to attend a disciplinary meeting. She was advised that she was entitled to bring a witness from inside or outside the company. The complainant nominated her representative in the case on hand, Mr Archbold, but as a representative rather than a witness. This was refused, although Mr Archbold was allowed to be present at the meeting as a witness.
2.4. When the respondent clarified this position, Mr Archbold informed the respondent that complaints under a number of headings would be made to the Equality Tribunal, under the Employment Equality Acts 1998 - 2008, and that his client would not be attending work on 18 and 19 January. They then withdrew from the meeting.
2.5. The complainant then goes on to state in her submission that once the respondent was officially on notice that an equality claim was pending, her "days were numbered", and that she was dismissed after being absent on the 18 and 19 January 2009. The complainant alleges that this dismissal was in breach of the respondent's own procedures and constitutes victimisation within the meaning of the Acts.
2.6. The complainant also alleges that she was given no opportunity to apply for a full-time position when it became available. She bases this complaint on the fact that when a colleague who worked more hours than she did, left, that his hours were re-allocated to another male colleague without giving the complainant an opportunity to apply for them. However, the complainant in her submission states that she is not certain whether her colleague did work a full-time position, or simply a part-time position with more hours. She also states that she had male colleagues who worked similar hours to herself. These male colleagues were students, and the complainant submits that they worked less hours in agreement with management because it suited their personal situation.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all, or permitting her harassment on the ground of her gender.
3.2. With regard to the complaint of harassment, it submits that it does not accept that the remarks and actions of the complainant's colleague constitute harassment on the ground of gender, and in the alternative, that it did take all reasonable steps within the meaning of S. 14(2) of the Acts to prevent these from recurring. According to the respondent, the complainant's manager spoke to the alleged perpetrator in private about the complainant's specific allegations, and also to all staff on the floor about the need to be mindful that what some people rate as banter might constitute harassment for others. When the complainant returned to work after the episode, her manager checked in with her to see whether she was doing ok. The complainant did not take her complaint further. The respondent submits that it has been resolved.
3.3. The respondent rejects the contention that it discriminated against the complainant when it did not give her a full-time contract. The respondent states that the complainant was a part-time employee, as was the employee who was leaving. According to the respondent, hours in the branch were cut after his departure, and there was no full-time set of hours to be re-distributed among the remaining staff. The respondent further argues that when this occurred, the complainant was still on probation, and that it would have been very unfair to allocate her those hours over and above longer-serving staff. The hours were allocated among a number of staff, not just one male staff member.
3.4. The respondent disputes that it discriminated against the complainant in the issue of representation, and states that it is company policy not to recognise unions and only to allow witnesses in disciplinary meetings. The respondent further states that Mr Archbold is not a union representative.
3.5. The respondent disputes that the complainant's dismissal was victimisatory and instead submits that it occurred for gross misconduct, when the complainant was absent from work despite the fact that her application for annual leave had been refused, following a previous history of concerns over absenteeism.
4. Conclusions of the Equality Officer
Discrimination complaint
4.1. The issues for decision in this case are whether the complainant was discriminated against and harassed within the meaning of the Acts. With regard to the complainant's complaint of victimisatory dismissal, the question arose from the complainant's submission and from her evidence and the evidence of her representative, whether that complaint was made in bad faith within the meaning of S. 77A of the Acts. At the hearing of the complaint, I invited additional submissions from both parties on this issue.
4.2. In evaluating the evidence before me, 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.
4.3. The complainant started her employment with the respondent in July 2008. With regard to her complaint of harassment, the complainant stated that from the beginning of October 2008, a named colleague took to calling her "a little elf" and "a little ferret", and wondered "how did you ever get a job here?", in front of customers. He also swung an umbrella that was part of the respondent's merchandise in front of her and said he would hit her with it. The complainant is 5 feet, 3 inches tall. According to her, the named colleague was considerably taller than herself, she estimated he might have been six feet or taller. The complainant was distressed by these remarks and went on sick leave because of them.
4.4. While on sick leave, she met with the store manager, Mr M. and told him about her experiences. Mr M. said to her that he would talk to the named colleague and get back to her, which she understood to mean he would revert to her while she was on sick leave. According to the complainant, this did not happen.
4.5. When the complainant returned to work, she overheard Mr M and two other employees discussing her case. She overheard Mr M. saying: "She did not want to come back to work". When the complainant confronted Mr M. about this, he did not deny it.
4.6. With regard to the behaviour of the complainant's named colleague, the complainant stated in evidence that it stopped when she returned to work. According to her, the named colleague did not speak to her any longer, which made for awkward and uncomfortable situations when the two of them were near each other. The complainant could not remember whether she raised this issue with Mr Murphy.
4.7. The respondent disputes that the alleged remarks constitute harassment on the ground of gender, and rather relate solely to the complainant's height. In addition, it states that the defence of S. 14(2) of the Act should avail it, since it does have a bullying and harassment policy, and Mr M. did take action, albeit on an informal level, and the impugned behaviour stopped. Neither Mr M., nor the named colleague, were called as witnesses by the respondent.
4.8. In terms of whether the complainant has raised a prima facie case of harassment on the ground of her gender, I accept the respondent's objections when it comes to "elf", a term which generally carries friendly, positive connotations. I do not accept this when it comes to "ferret", a small carnivore animal that is not generally seen in a positive way. I am satisfied that a man would not call another man a ferret, which brings the use of the term, in the context of the situation the complainant found herself in, within the limits of gender-based harassment. With regard to the named colleague's threatening behaviour with the umbrella, I can not see any particular gender dimension to it, although I do accept that the complainant felt intimidated by it.
4.9. In his submissions, the complainant's representative made the point that no investigation took place and that Mr M. never reverted to Ms Fisher as promised, which he stated was insufficient. However, it is clear from the complainant's evidence that after she talked to the store manager about these incidents, action was taken and the behaviour stopped. I am therefore satisfied that S. 14A(2) of the Acts avails the respondent, in that successful steps were taken to bring an end to the complainant's harassment which were in line with the respondent's policy on the issue, once one of their managers was aware of the issue.
4.10. With regard to the allocation of hours, I prefer the explanation of the respondent. From additional evidence submitted by the respondent after the hearing, it is clear that the complainant was allocated very significant part-time hours prior to the departure of the named colleague, more than some other female staff and more than other male staff. After the named colleague's departure, the complainant's hours and everyone else's varied as they had before, but it is not possible to discern any pattern of gender-based discrimination from the hours allocation. The argument advanced by the representative of the complainant, that three of the male staffers were students and had requested lower allocations to give time to their studies, has no merit in this context since female student part-time staffers might have made the very same request, for the same reasons. Accordingly, I find that the complainant was not discriminated against on the ground of her gender in the allocation of her working hours.
4.11. The complainant's complaint of being denied representation could only be considered prima facie discriminatory if the complainant could produce credible evidence that a male colleague had been allowed representation by the respondent, or produce such a male colleague as a witness. The complainant did not produce such evidence or such a witness, and therefore this part of her complaint must fail.
Victimisation complaint
4.12. With regard to the complainant's claim of victimisatory dismissal, the issue arose whether this complaint was possibly brought in bad faith, and I invited additional submissions from the parties on this issue. At the heart of the matter is the question whether the complainant's representative, Mr Archbold, possibly encouraged the complainant's gross misconduct, only to claim later that her eventual dismissal for this misconduct was victimisatory due to a complaint of discrimination which had in the meantime been lodged with the Tribunal.
4.13. It is the respondent's submission that the complainant was dismissed for gross misconduct when she failed to report for work on one particular weekend when she had not been granted annual leave. The complainant had received previous warnings about her absence record, including a letter dated 12 January 2008, which called her to a disciplinary meeting on this matter. This meeting took eventually place on 15 January 2008, but broke up before any substantial matters could be discussed when the respondent did not accept Mr Archbold as representative of the complainant. Later on the same day, Mr Archbold wrote to the respondent, advising of a possible equality complaint. The complainant was absent from work without permission on 18 January 2008, and on the same day, Mr Archbold sent a completed EE1 form to the Equality Tribunal. The complainant was called to another disciplinary meeting over her unauthorised absence from work on 26 January 2009, and on 27 January 2009, was dismissed for gross misconduct. On the same day, another letter was sent by Mr Archbold to the respondent, claiming victimisation of the complainant. On 31 January 2011, the Equality Tribunal and the respondent received further EE1 forms complainant about the complainant's victimisatory dismissal.
4.14. The complainant confirmed in oral evidence that she did not apply for annual leave for the days in question, and that she did indeed not report for work. Mr Archbold confirmed in oral evidence that when he and the complainant left the disciplinary meeting with the respondent on 15 January 2009, that the complainant would not report to work on 18 January 2009.
4.15. Mr Archbold, in his additional submission, also claimed that my decision to investigate possible bad faith in terms of the lodging of the complainant's victimisation case showed I was biased against the complainant and that I "provided the respondent company with clear direction in this regard and [the respondent] has not been slow to recognise a golden opportunity when it is presented to them."
4.16. I must reject this allegation in the strongest possible terms. My decision to investigate the complainant's complaint of victimisation as possibly being brought in bad faith was based primarily on Mr Archbold's statement in his own submission to the Tribunal, prior to the hearing of the complaint, that he addressed the HR manager of the respondent company, at the disciplinary meeting of 15 January 2009, as follows:
The meeting was held as scheduled on 15th January and Ms [HR Manager] immediately indicated that Mr Archbold could only attend as a witness and was not entitled to speak. After our initial objection to this unreasonable restriction, Ms S. indicated that if Mr Archbold wished to ask a question, he could do so but only at the conclusion of the meeting.
As the Elverys position effectively deprived Ms Fisher of the right to representation, Mr Archbold informed the management that claims under a number of legislative headings would be initiated, including a claim or claims under the terms of the Employment Equality Act 1998.
He added that the complainant would be absent from work on the 18th and 19th of January 2009. He and the complainant then withdrew from the meeting. [Emphasis added.]
4.17. It was from this statement that I formed the opinion that the complainant's claim of victimisatory dismissal might have been brought in bad faith. Any Equality Officer, to whom the relevant powers of the Director have been delegated, is entitled to investigate such a concern. Both parties were given an opportunity to make further submissions on the issue. I am therefore satisfied that the issue of bias does not arise.
4.18. With regard to the facts of the matter, I am satisfied from the totality of the evidence that the complainant's representative first threatened the respondent with a possible complaint under the Acts, and then advised the respondent that the complainant would be absent from work on two specified dates, regardless of the fact that not only was this absence not authorised by the respondent, but the complainant, by her own evidence, had not even applied for leave of absence.
4.19. On the first day of the complainant's unauthorised absence, her representative sent her discrimination complaint to the Tribunal, where it was received two days later. The complaint of Ms Fisher's victimisatory dismissal, then, was received on 3 February 2009, just after her dismissal for gross misconduct on 27 Januay 2009.
The Law on Bad Faith
4.20. Bad faith is a concept rarely used in law. To act in bad faith or with mala fides in this context means that a party abuses process by also acting fraudulently, deceitfully or dishonestly. The burden of proof is a heavy one. The leading Irish case is Sean Quinn Group v An Bord Pleanala [2001] 1 I.R. 505. Following Scarman LJ in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at p 498:-
"In the instant proceedings the defendants have to show that the plaintiff has an ulterior motive, seeks a collateral advantage for himself beyond what the law offers, is reaching out 'to effect an object not within the scope of the process'; Grainger v Hill (1838) 4 Bing (NC) 212 at 221 per Tindal CJ. In a phrase, the plaintiff's purpose has to be shown to be not that which the law by granting a remedy offers to fulfil, but one which the law does not recognise as a legitimate use of the remedy sought; see In re Majory [1955] Ch 600 at 623."
Quirke J. went on to state as follows:
"Bearing in mind the warning given by Keane J (as he then was) in McCauley v McDermot [1997] 2 ILRM 486,1 take the view that before I can accede to the sixth defendant's application I must be satisfied by way of evidence that the plaintiff, in commencing these proceedings, (1) has an ulterior motive (2) seeks a collateral advantage for itself beyond what the law offers and (3) has instituted these proceedings for a purpose which the law does not recognise as a legitimate use of the remedy which has been sought.
In the instant case I am satisfied that (1) and (2) above can be taken together and that the evidence adduced has established conclusively that the plaintiff's motive in instituting these proceedings was confined exclusively to the achievement of a commercial objective which was an advantage over a competitor.
The remedies offered by the law by way of declaratory and injunctive relief and by way of judicial review of orders and decisions are remedies which may be legitimately used by litigants for a variety of different purposes including, inter aha (a) to vindicate constitutional or statutory rights (b) to restrain unlawful action (c) to quash or restrain the making of orders or decisions of administrative and other tribunals made or about to be made (i) in excess of jurisdiction, (ii) by the use of unfair procedures or (iii) contrary to the principles of natural justice and (d) to ensure compliance with national and international legislative and other obligations imposed by law.
The fact that the legitimate use by a litigant of a lawful remedy will or may result in a collateral benefit to the applicant does not affect the right of the applicant to seek such a remedy in the courts and to be granted such remedies "
He went on to find
"In the instant case I am satisfied on the evidence that the proceedings herein have been commenced by the plaintiff in a cynical, calculated and unscrupulous fashion for the sole purpose of seeking a commercial advantage over its competitor, the sixth defendant. I am further satisfied that the purpose for which these proceedings have been instituted has not been to redress a wrong or a grievance, to right an injustice, to ensure compliance by the sixth defendant and by other potential developers with provisions of national or international legislation, to ensure the proper and lawful planning and development of any particular area or for any other commendable, environmental or civic spirited reason. I am quite satisfied that the sole purpose of the proceedings is to inflict damage upon its competitor, the sixth defendant and I am satisfied that that is an improper purpose for the commencement of proceedings and an improper use of the process of the courts.
The jurisdiction which I intend to exercise is discretionary in nature and I am particularly conscious of the warning issued by Keane J (as he then was) that it is a jurisdiction which must "... be exercised with great caution at an early stage of the proceedings" and, I am further satisfied that the courts will be particularly reluctant to exercise this discretion where clear evidence of unlawful activity on the part of the party sought to be restrained has been adduced."
4.21. In the case on hand, I take this to mean that I need to be satisfied that the complainant or her representative acted "fraudulently, deceitfully or dishonestly", not that either of them acted, for example, rashly or ill advisedly. I will have to find that the plaintiff's motive (or in this case the representative) was confined exclusively to an improper purpose.
4.22. The evidence adduced on the matter does not support such a conclusion. In particular, I note that the complainant did have a complaint of discrimination which fell to be investigated, and that no evidence was adduced as to the communications between the complainant and her representative with regard to the filing of the complaint of victimisatory dismissal. In the circumstances, the timing of events as set out in paragraphs 4.12 to 4.19 does not suffice to meet the burden of proof for a dismissal of the complaint as being brought in bad faith.
4.23. That said, I am equally satisfied that the complainant was dismissed for gross misconduct for being absent from work without notice and that there is no evidence whatsoever to suggest that her dismissal was in any way victimisatory.
4.24. Finally, I would like to note that the victimisation provisions of the Employment Equality Acts 1998-2011, as set out in S. 74(2) of the Acts are very strong, and very broad, to provide protection to both complainants who seek to invoke their rights under the Acts, and also to witnesses in such matters; and that all parties involved in such a complaint before the Tribunal ought have confidence in the process. It is therefore regrettable that the complainant and her representative brought a complaint like the one on hand. Fortunately, in the work of the Tribunal to date, this has been a rare occurrence.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Staunton Sports Ltd., t/a Elvery's, did not discriminate against Ms Emma Fisher on the ground of gender pursuant to S. 6(2)(a) of the Acts, and did not victimisatorily dismiss her contrary to S. 74(2) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
2 December 2011