The Equality Tribunal
Employment Equality Acts 1998 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-254
Parties
An Employee
V
A Grocery Store
File No. EE/2009/449 and
EE/2010/728
Date of Issue: 23 December 2011
Keywords:
Employment Equality Acts - Discriminatory treatment - Conditions of Employment - Sexual Harassment - Harassment - Gender - Race - Prima facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by an employee (hereafter "the complainant") that she was subjected to discriminatory treatment, harassment and sexual harassment by a grocery store (hereafter "the respondent") on the grounds of her gender and race. She claims that she was treated less favourably and harassed by a named manager from January 2009 onwards. Furthermore, the complainant submitted that she was sexually harassed, harassed and treated less favourably on the grounds of her gender, by the respondent owner. The sexual harassment, she submitted, lasted over 18 months.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 7 July 2009 under the Employment Equality Acts. An additional claim of discrimination, sexual harassment and harassment was lodged on 24 September 2010 concerning the owner of the store. On 30 September 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 2 November 2011.
2. Case for the complainant
2.1. The complainant is Russian. She had worked in the respondent store for a period of about 5 years until her resignation on 13 September 2010. She submitted that her working conditions were intolerable and that she was suffering with stress as a result of this.
2.2. Discrimination in relation to the conditions of employment (Gender and Race)
1. She was forbidden to use the rest room when on duty;
2. She alone was forced to wash shop equipment while other employees were left to do nothing;
3. She was not allowed to take holidays whenever she wanted and that her holidays and roster where changed without notice;
4. The respondent would not comply with her working hours, she was ordered to remain late until another employee came in;
5. She was not paid for overtime despite being ordered to remain longer than her contractual hours;
6. She was compelled to pay for a handbook when others were not;
7. She is owed unpaid wages;
8. A named manager diverted her attention by ringing the phone while she was serving customers; and
9. She was penalised for being late while supervisors and managers would not lose their break entitlements regardless of how late they were.
The complainant submitted that the store management were incompetent and illiterate in successful people management. The complainant, who is neat, diligent and helpful, is subjected to various obligations with the management relying on her abilities. Despite this, the complainant's wishes and opinions were not given any weight.
2.3. Furthermore, the complainant submitted that when she resigned she informed the respondent that she would not be returning after her holidays. She requested her P45 and claims that the respondent sent her a text message informing her that she had been overpaid in relation to her holiday entitlements.
2.4. Harassment
2.3.1. The complainant submitted that a named manager shouted at her and 'carped at her' whenever he could;
1. The named manager initiated other employees against her;
2. The named manager humiliated the complainant by mocking her fluency in English;
3. The named manager used unacceptable expressions such as 'Get out', 'Shut up' and 'Fuck off';
4. The complainant submitted that her views in relation to how the store ought to have been run were not taken into consideration and that management was always right.
This treatment, she maintained, was on-going and therefore she could not give specific dates as to when these incidents occurred.
2.3.2 The complainant submitted that the above treatment was degrading to her. She stated that she would often come home from work crying. This had a challenging effect on her home life as she was unable to fully contribute to it due to the stress that she was suffering as a result of the harassment and discriminatory workplace.
2.4. Sexual harassment
2.4.1. In a separate complaint, lodged after the complainant had resigned, the complainant submitted that she had been sexually harassed by the owner of the store. The sexual harassment mainly took place in the form of text messages that the complainant said she had been receiving from the owner for a period of 18 months. A sample of these messages were provided for the investigation:
- "Nite. Angel.X."
- "Short dress and high shoes?"
- "Kiss Kiss. X X"
- "You look very nice today. Give me a wave."
- "Will see you in my dream. X."
- "I'd like to kiss your ankles and your knees and your gruten (Sic?) ... X"
- "Would u like a new dress (red or yellow) and new shoes (blue or white) when you come back? My present? X"
- "White dress and red shoes? Very exciting. You think?"
- "I am glad i need you? Do you understand?"
- "I am fine. Think of you all day. Makes me feel good."
- "Thinking of you again. Very sexy."
- "Very short skirt and very high heels for me. O.K.?"
- "Hello, pussycat. Thinking of you...again. X."
- "Hello, pussycat. How u 2day. Thinking of u all the time. X"
- "That's ok. I missed you today. Maybe I visit you tomorro. Would you like?"
- "You will be in my dream. Only you. My favourite, pussycat."
- "Hello, pussycat. Thinking of u last night. A couple (2) from russia were dancing for us in the hotel. I have some pictures and video."
- "As you do not intend to work the months of Sep/Oct/Nov/Dec you are not entitled to holiday pay for those months. You must pay back 6 day's holiday pay issued to you."
- "I will expect to receive back the 6 days pay you were given. Your contract states that you must give one week notice and that holiday pay is due between January and December (12 months). When all this is settled we can issue a P45."
2.4.2. The complainant submitted that the sexual harassment - in relation to unwanted text messages - came to an end in or about 02 July 2010 after the complainant expressed her disapproval to the sender, the owner of the company. She submitted that she had replied to these texts because she did not want a negative attitude in the workplace. However, after she expressly indicated her disapproval to the respondent, the complainant submitted that the respondent then began to overburden her with work, changed the roster and 'showed his true face'. The complainant submitted that in such situations the complainant had previously always appealed to the respondent for help and that by doing so she had unwittingly flattered him.
2.4.3. Furthermore the complainant submitted that on:
1. 26 March 2010 the respondent touched her left leg with his right palm;
2. 26 April 2010 the respondent molested her and tried to kiss her;
3. 04 May 2010 the respondent touched her waist with his two hands while standing behind her;
4. 02 July 2010 the respondent pressed on the complainant because 'he had feelings for her'. These incidents took place during the complainant's break times in the canteen and at times when the complainant was alone with the owner.
2.4.4. The complainant submitted in her first claim that the discriminatory treatment and harassment made her nervous, stressed and affected her health in that she suffered from lack of appetite and insomnia. The complainant stated that she only wanted to work in a peaceful environment. The complainant claims that the respondent owner and his named manager have caused her irreparable moral harm and damage to her health. The complainant's husband told the Tribunal that the complainant would often come from the store crying and that she was deeply upset about the named manager and his treatment of the complainant. In relation to the unwanted messages that the complainant was receiving from the respondent, the husband submitted that he had advised the complainant to reply by strictly referring to work matters only.
2.4.5. The complainant submitted that she did not report the sexual harassment to anyone as the harasser was the owner of the store whom she had relied upon when coping with the discrimination and harassment she was suffering in the hands of the manager. The complainant submitted that she had also understood that these claims - relating to the manager and the owner - would have to be submitted separately.
3. Case for the respondent
3.1. The respondent has been trading for 20 years. He submitted that at the material time he employed up to 15 people, two thirds of whom were female and from Eastern Europe. His staff consisted mainly of Polish people, although he submitted that he currently also employs Irish and Latvian employees. The respondent submitted that this is the first complaint of this nature that he has ever had to deal with.
3.2. The respondent denied that the complainant was treated any less favourably because of her gender and/or race. The complainant, for example, was never asked to work weekends or bank holidays.
3.3. The named manager is not currently residing in Ireland. He was therefore unable to give evidence in relation to this claim. The respondent submitted that while the manager did not have the best manner when dealing with staff he did not accept that the manager shouted at the complainant or treated her differently from any of the other staff. He has no memory of being told that the manager mocked the complainant's level of English. In relation to the complainant's claim that she was being refused the right to use a toilet, the respondent rejected such a claim stating that the complainant, like any other staff member, would merely have had to notify the manager if she was leaving the shop floor at times when other staff may not have been able to provide cover. The respondent did not accept that the complainant had been asked to pay for a handbook. A deposit may have been taken from staff to ensure that the book would be returned when the employee left the respondent company.
3.4. The respondent accepted that he had sent the text messages to the complainant. He submitted that he had had a crush on the complainant and had enjoyed a 'flirtatious' relationship with her. He stated that he had understood it to be a little bit of 'banter' with no harm intended. He submitted that both he and the complainant are married people and that, in such circumstances, it was accepted that nothing could have come of the flirtation. He maintained that he had understood that this was a fact understood by the complainant and that the relationship was based on mutual caring and appreciation. The respondent does not accept that the complainant made it clear to him that she no longer wanted the text messages to continue in July 2010 and submitted that it was he who stopped texting the complainant as he realised that the complainant was making unfounded complaints about members of management. The respondent submitted that the complainant had also texted him and pointed out that the texts provided to the Tribunal were a snap shot and therefore did not contain the entire dialogue. He also stated that he had understood that the complainant was deleting the messages.
3.5. In relation to the alleged inappropriate touching. The respondent denied ever molesting the complainant and submitted that he did not understand what she meant by such a statement. He recalled the incident of him touching her leg. He submitted that this had occurred in the canteen where the complainant was studying English. The two of them had been chatting and, in this context, the respondent stated that he leaned over and touched her leg in order to get her attention. He submitted that the complainant had similarly made contact with him.
3.6. In relation to the attempted kissing. The respondent accepted that he may have kissed the complainant on the head when she was sitting down and/or on the cheek when she returned from her holidays. Such gestures were merely affectionate and the complainant had never indicated that she did not want such contact. In relation to the allegations of touching when working behind the counter, the respondent submitted that it is a narrow space and that it is possible that he might have brushed against her when reaching for something or when trying to get by. The respondent denied any other form of contact.
3.7. The respondent accepted that it would have been difficult for the complainant to raise a complaint of sexual harassment in circumstances where he was the alleged sexual harasser and the manager was an alleged harasser. However, he did point out that the complainant was perfectly capable of complaining about most things and had done so numerous times in the course of her employment.
3.8. The respondent submitted that the complainant had become increasingly difficult to work with. For example, the store acquired an ice cream machine in 2010. This was to remain in the store for the summer months. As the complainant always worked the morning shift and was placed behind the counter that held the machine, it would have been her duty to wash the machine. The complainant refused to carry out this task and the roster had to be adjusted to accommodate the complainant's wishes. The respondent rejected any claims that the complainant was expected to work overtime without pay and stated that there was no way that the complainant would have remained in the store in such circumstances. The respondent submitted that he had received a text from the complainant claiming similar facts and accusing his wife of making her stay late. He submitted that it was one of these texts that made the respondent realise that the complainant was unreasonable and that their friendship could no longer continue.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. In relation to the complaints of less favourable treatment in her working conditions. I have found no evidence that any of the alleged treatment was linked with the complainant's nationality or gender. The complainant has not provided any evidence to support an argument that she, as a woman and/or as a Russian, was treated any differently from other staff members. I am satisfied that the matters referred to in her complaint are not a matter for this Tribunal and relate to a number of general grievances that the complainant had about the workplace. While I note that the complainant's annual leave dates had been rejected by the manager in 2009 - and I note that the respondent owner did not approve of this approach - I was provided with no evidence to support an argument that her holiday dates were rejected for reasons related to the complainant's gender or race.
4.3. In relation to the complaint of harassment by the named manager. In order for a complaint of harassment to succeed in this Tribunal I must be satisfied that the alleged conduct took any form of unwanted conduct related to any of the discriminatory grounds, in this case, gender or race. I find that a majority of the matters that the complainant was referring to have no clear nexus with the protected grounds. While the complainant's evidence in relation to the manager mocking of her ability to speak English was not the most compelling, I am satisfied that she did complain about the manager's conduct to the respondent. She submitted that no action was taken in relation to same. I do not accept this interpretation as the manager was subsequently dismissed by the respondent. I am therefore satisfied that the respondent took appropriate steps - in the context of the complaints made in the circumstances of this case - to protect the complainant from such conduct. While I note that the complainant maintains that the taking of such action took an inordinately long time, I find such an interpretation unacceptable. It is clear that the manager was dismissed within weeks of the complaint having been lodged with this Tribunal and that the process to dismiss him had at this stage begun. A respondent must be afforded time to deal with disciplinary matters in a manner that ensures fair procedures to all concerned. It ought to also be pointed out that most of the matters that the complainant raised at the hearing cannot in my view be construed as harassment on the race or gender ground within the meaning of the Acts.
4.4. In relation to the complaint of sexual harassment. While I note that such communication may be viewed as inappropriate, in order for it to be unlawful, I must be satisfied that the communication is an unwelcome reference of a sexual nature that has the effect or purpose of violating a person's dignity and that creates an intimidating, hostile, degrading, humiliating or offensive environment for the person. On the whole, having heard the full facts of this case, I do not accept that the relationship was unwelcome to the complainant. It is clear that complainant engaged in text communication with the respondent voluntarily. This is particularly evident from the text messages that the complainant provided to the investigation. I note that the complainant only provided text messages that she had received from the respondent but not the other way around. I find that it is clear from the small sample provided that the complainant replied to these messages. I do not accept the complainant's evidence that she only texted the respondent for work related matters. I find that the complainant clearly relied on the special bond that she had developed with the respondent owner and that this relationship had enabled her to negotiate more favourable treatment in the workplace.
4.5. It is clear that the complainant, on her own evidence, is not a retiring or timid personality. She clearly does not put up with conduct that she does not agree with. I am satisfied that the complainant and the respondent enjoyed a relationship with the owner that exceeded a mere professional relationship. The complainant, by her own evidence, sought support from the respondent in relation to a number of concerns that she had with her manager and other matters relating to her employment. It is clear that most of her requests received a favourable response from the respondent owner. This explains why the complainant preferred to deal with the owner - who was not involved in the day-to-day running of the store - rather than go to her any of her line manager(s). While it is clear to me that the parties had differing motives in relation to this text communication - and I am satisfied this was the extent of the conduct - I find that the complainant did not object to it and certainly played along with such conduct as long as it was in her own interest to do so. I note that as soon as the complainant indicated that this communication was no longer welcome to her, it ceased. I find, on the complainant's own evidence that the timing of her decision to communicate her objection to the messages collides with the complainant's growing dissatisfaction with the workplace and with her belief that any additional request or task given to her in the workplace is entirely unacceptable. I note that the complainant submitted that as soon as she rejected the communication, the respondent showed his 'true face' and began to overburden her with work. I find, on the balance of probabilities, that this 'true face' had become apparent before the texting relationship was terminated. That is, I find that the complainant's demands and unwillingness to carry out her tasks had reached such levels that her demands could no longer be met by the respondent owner.
4.6. I note that the complainant submitted that this Tribunal ought to take inferences from the fact that the respondent had not told his wife about the text messages and that the complainant had told her husband about the respondent's messages. This Tribunal is not the morality police. It is not a matter for this Tribunal to analyse relationships that married or unmarried individuals have in the workplace unless it is satisfied that such relationships are unwelcome to the recipient and that they create an intimidating, hostile, degrading, humiliating or offensive environment for the protected person in contravention of the Acts.
4.7. Finally, I note that the original complaint makes no reference to the respondent owner or to any unwanted text messages. Indeed, the original complainant - lodged some six month after the alleged unwanted conduct (sexual harassment) had begun - does not mention the respondent owner at all and merely refers to the then store manager. The complainant submitted that this was because she had understood the complaints to be two different matters that could only be referred separately. I do not accept this explanation and while I accept that it is particularly difficult for victims of sexual harassment to report such matters, I find such concerns have clearly been overcome as soon as a person is willing to lodge a complaint to a Tribunal.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has failed to establish a prima facie case of discrimination in relation to her conditions of employment on the gender ground.
5.3. I find that the complainant has failed to establish a prima facie case of discrimination in relation to her conditions of employment on the race ground.
5.4. I find that the complainant has established a prima facie case of harassment on the race ground. This has been successfully rebutted by the respondent. Therefore, this case fails.
5.5. I find that the complainant has established a prima facie case of sexual harassment. This has been successfully rebutted by the respondent. Therefore, this case fails.
_______________
Tara Coogan
Equality Officer
23 December 2011