The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-235
PARTIES
A Worker
AND
A Company
File reference: EE/2009/152
Date of issue: 12 December 2011
HEADNOTES: Employment Equality Acts - Race - Gender - Harassment & sexual harassment
1. DISPUTE
1.1. This dispute concerns a claim by A Worker that she was discriminated against by A Company on the grounds of race and gender contrary to section 6 of the Employment Equality Acts that she was harassed and sexually harassed contrary to section 14A of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 3 March 2009 under the Employment Equality Acts. On 19 July 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. A submission was received from the complainant. The respondent did not make a submission. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 18 October 2011 which the respondent did not attend.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant submits that she started working for the respondent on 1 December 2008. Shortly after this, on 4 December 2008, the respondent had a social night out for staff. During the course of this evening the complainant submits that the Managing Director (Mr A) invited her back to his apartment. She said no. Later on in the evening he asked her for a kiss and again she said no. The complainant was so upset by these advances that she did not go to work the following day. Mr A rang her on a number of times that day but she did not talk to him. She telephoned him on the following day and he apologised and said it would not happen again and he would keep their working relationship professional. The complainant returned to work two days later on the following Monday.
2.2. The complainant submits that on 6 February 2009 she was in the office having a discussion with Mr A and two other colleagues about a football match. One colleague left the room and Mr A said "sure we still own your country". The complainant asked Mr A to clarify who he meant by "we" and Mr A replied "sure you're part of the Commonwealth so you will always be owned by us". At this point the other colleague left. The complainant submits that she continued a heated argument with Mr A, in which she felt very intimidated, until another colleague came in. The complainant asked Mr A to repeat his comments to the colleague but he didn't and left the office. The complainant was so upset that she could not come to work the following day.
2.3. The complainant submits that she returned to work the day after because she did not want to lose any more pay. Mr A ignored her over the next few days. He asked a colleague to do work for him that the complainant had previously carried out. He also asked the colleague, on a number of occasions, to show him the petty cash book which the complainant looked after. The complainant felt Mr A had acted in an intimidatory manner. The following Friday Mr A let the company receptionist go. The complainant was concerned that she would be next. Also, she was very upset that Mr A never apologised to her and was treating her unfairly. This caused the complainant to decide to leave. She had a meeting with Mr B (Assistant Manager) and told him that she could not work for Mr A anymore, as she was disgusted by his comments in the canteen and offended by his subsequent actions. Mr A then came into Mr B's office and asked what was going on. The complainant told him what she had told Mr B. Mr A denied everything and stood in the doorway to stop her leaving. The complainant submits that she asked him to step aside and she left the workplace.
3. RESPONDENT'S SUBMISSION
3.1. The respondent made no submission to the Equality Tribunal and did not attend the hearing. The letter inviting the respondent to attend the hearing was sent to their registered address and was returned "gone away".
4. FINDINGS & CONCLUSIONS
4.1. I have to decide if the complainant suffered harassment and sexual harassment on the grounds of race. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. The first incident occurred during a social night out and not in the workplace as defined by section 14A of the Acts. However, the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order, 2002, S.I. No. 78 of 2002 states as follows "The scope of sexual harassment provisions extend beyond the workplace for example to conferences and training that occur outside the workplace. It may also extend to work related events.". Section 56(4) of the Employment Equality Acts permits me to take this Code into account in reaching my decision on this claim. I am satisfied that the social night out was work related insofar as it was organised by the respondent for their employees and the complainant would not have been present if she had not been employed by the respondent. Therefore what took place that night falls within the scope of my investigation.
4.3. If the events of the social event took place as described by the complainant they would clearly fall into the definition of sexual harassment in section 14A(7) of the Employment Equality Acts: "any form of unwanted verbal, non-verbal or physical conduct of a sexual nature". However the section goes on to say such conduct "has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person."
4.4. Mr A tried to speak the following day when she did not come to work but she did not take his calls. The complainant rang him the day after and Mr A apologised, said it would not re-occur and that he would keep their working environment on a purely professional basis. The complainant stated at the hearing that she needed to stay in the respondent's employment and asked Mr A that they keep it among themselves. They dealt with the matter privately. She decided that she would not take it any further provided there were no more incidents and said this to Mr A. Again, from her own evidence, she felt ill at ease at work but there no further incidents. The complainant adduced no evidence that any subsequent behaviour of Mr A was linked back to the social evening. I therefore conclude that the second part of the definition of sexual harassment has not been satisfied and I find the complainant has failed to establish a prima facie case of sexual harassment.
4.5. After she returned to work the complainant contends that she worked in close proximity to Mr A and, whilst she did not feel comfortable, there were no specific problems until 2 February 2009. At the hearing the complainant gave credible evidence and repeated the allegations of Mr A's behaviour when they were discussing the football match. She said he made the comments very angrily; he shouted at her and came close up to her face. She found this very intimidating and upsetting. When the male colleague came into the room she asked Mr A to repeat his comments but he did not and left the room.
4.6. When the complainant came back to work she contends that Mr A ignored her, to the extent that he had nothing to do with her in relation to work. He called on a colleague in the same office as the complainant to carry out the work previously carried out by the complainant. The colleague had to take files from her, of work she had been doing since she started. Also he regularly got the colleague to bring him the petty cash book to check. The petty cash was looked after by the complainant.
4.7. The complainant also confirmed at the hearing that because she found Mr A's behaviour so difficult to tolerate she went to his assistant (Mr B) and told him this and that she was leaving. Mr A interrupted this meeting and asked what was going on. Mr A worked in a different part of the building and would not have been aware of the meeting in Mr B's office. However, the complainant gave evidence that Mr A had a number of CCTV cameras in the building through which he could keep an eye on everyone. She conjectured that he saw herself and Mr B talking and came to find out what was going on. The complainant left the meeting and never returned to work for the respondent.
4.8. For the remarks in the second incident to amount to harassment within the meaning of section 14.A of the Acts I must be satisfied that the remarks were: "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". Mr A made comments which highlighted historical differences between Northern Ireland, where he came from, and the Republic of Ireland, where the complainant came from. Given that Section 6 (2) of the Acts sets out the race ground as being where two people "are of different, race, colour nationality or ethnic or national origin" I find it difficult to conclude that the complainant and the respondent fall within that definition. Furthermore, whilst the remarks were unfortunate and not conducive to good relations within a working environment, they were not personal to the complainant and initially made when at least one other colleague was part of the discussion. I find it difficult to conclude that they violated the complainant's dignity on the grounds of her race. Although the legislation is different in the circumstances of this claim I find it appropriate to be guided by the UK Employment Appeals Tribunal Judgement in Appeal No. UKEAT/0458/08/CEA, Richmond Pharmacology v Miss A Dhaliwal when they concluded "We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred) it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase."
4.9. The remarks in this complainant were made during a conversation about a Gaelic Football match between a number of colleagues and the subsequent problems in the environment at work arose from the disagreement. In the context and particular circumstances of this claim I conclude that what happened cannot be taken to have violated the dignity of the complainant within the definition of section 14A of the Acts on the grounds of race. I therefore find that the complainant has failed to establish a prima facie case of harassment.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did not harass and sexually harass the complainant on the grounds of race contrary to section 14A of the Employment Equality Acts.
____________________
Hugh Lonsdale
Equality Officer
12 December 2011