DEC-E2011-263- Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision DEC - E2011- 263

PARTIES

A Cleaner

-v-

A Cleaning Company

File Reference: EE/2008/585
Date of Issue: 23rd December 2011

Decision DEC-E2011-263
A Cleaner

-v-

A Cleaning Company

Keywords
Employment Equality Acts 1998-2008, direct discrimination - Section 6(1) less favourable treatment, Section 6(2)(d) - sexual orientation ground, Section 8(1)(b) -conditions of employment, Section 74(2) - victimisation, failure to establish a prima facie case.

1. Dispute

This dispute involves a claim by a complainant that he was discriminated against by the above named respondent on the sexual orientation ground in terms of Section 6(1) and 6(2)(d) of the Employment Equality Acts 1998-2008 and contrary to section 8 that Act in relation to his conditions of employment. He also submits that he was victimised in terms of Section 74(2) of that Act.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2008 to the Equality Tribunal on the 5th September 2008 alleging that the respondent discriminated against him in relation to his conditions of employment in the course of his employment. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 30th June, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant 6th July 2009 and from the respondent on the 13th August 2009. A hearing on the complaint was held on the 23rd November 2011.

3. SUMMARY OF THE COMPLAINANT'S CASE

3.1 The complainant is from Slovakia and he moved to Ireland in 2007. He commenced work with the respondent in August 2007 and he resigned in December 2008. He worked as a cleaner for the respondent in a large manufacturing company. The complainant is homosexual but he had not told anybody in the company about his sexual orientation because he was on probation at the time and he was afraid he would lose his job. In the beginning he said everything went well. In or around December 2007 a Polish man started work there and he interfered with the complainant's locker and took some of his possessions. He said that he was also threatened by him and that he was afraid to work with this person. He said that he complained to the manager on three occasions about the Polish worker but nothing was done about him. He understands that he was sacked in January 2008 and he was replaced by a woman.

3.2 The complainant said that he heard a rumour from one of his friends in or about January 2008 that his manager was commenting on his sexual orientation to other work colleagues and they were making jokes about it. He said that he heard that the manager said to a female who had just been recruited "do you know you are going to work with a gay man, so you will be like three girls on the same shift" He noticed that the attitude towards him changed after that and other workers avoided him and kept their distance. He said that even though he was hurt when he heard about the rumours he did not report his manager. He believes that because his manager had knowledge about his sexual orientation he decided to bully him by giving him more work to do which he did his best to do. He said that on other shifts two people were doing the same amount of work he was asked to do on his shift. He said that the manager called his supervisor during the night to tell him to deep clean all the toilets in the factory. He said that this was not on his work schedule and it was not possible for one person to carry out such a task. He said that he went to Siptu about a problem with overtime pay and after that his manager put more pressure on him and started to check his work more frequently and to give him more work to do

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3.3 The complainant said that he was changed from the area where he worked to do cleaning in the production area. He said that he was then accused of sexual harassment by one of his male work colleagues who cleaned in the production area. This man was from Portugal and he believes he was a friend of the manager who was also from Portugal. The complainant was told by his supervisor that this male work colleague complained that he "did not feel good in his company". He was called to a meeting with his manager. He said that he was humiliated at the meeting and he was convinced that the complaint was a set up by his manager in order to get him to leave. He said that he was shocked and very upset when he was accused of harassing this employee. He heard from his work colleagues that his manager said that he was not afraid to dismiss him after he complained to SIPTU and the Equality Tribunal. He said that as a result of this treatment he went on sick leave and had to visit his psychiatrist. He wrote to the Director of the company on the 28th July 2008 complaining that he had been wrongly accused of sexual harassment and he believed that his manager was discriminating against him because of his sexual orientation. The complainant said that the Director responded and asked him to contact him as soon as he returned from sick leave. He said that he did not go to see the Director because he believed the director wanted to meet him with the manager to sort out his complaint. He said that he went to SIPTU for assistance and the SIPTU advised him to go back to work. He said that he could not go back to work as the manager was still there and he did not want to talk to him. The complainant submitted a complaint of discrimination to the Equality Tribunal in September 2008 and resigned from the employment in December 2008. He accepted that the Director asked him to come to the company for a meeting after he complained about the treatment.

4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent denies that the complainant was discriminated against on the sexual orientation ground. From the time the complainant made his complaint up until his resignation from the company he was on sick leave, and despite repeated requests by the company the complainant did not afford the respondent an opportunity to meet with him to discuss his complaint. The supervisor said in evidence that he worked with the complainant on the weekend night shifts for about 9 months. He said that there were 4 people on the shift and they worked in pairs. He said that during this time there were no discriminatory remarks made about the complainant's sexuality. He said that the work was difficult for everybody and the manager often telephoned to ask the night shift to do extra work, for example, to deep clean the toilets. The supervisor said that they all had to do the work and the complainant was not given any extra work to do over and above any of the other cleaners. He said that a man from Portugal (Mr. M) started work in or about April 2008 and shortly after he and the complainant started working together he received a complaint from Mr. M. about a remark the complainant made about Mr. M's hair. He spoke to the complainant and he asked him to desist from making any remarks. In June 2008 the supervisor said that he received another complaint from Mr. M who worked alongside the complainant and he again asked the complaint to refrain from making any remarks to this man. The supervisor said that he received a further complaint in July and at that stage decided to refer the matter to his manager. He made a written report and sent it to his manager.

4.2 On the 11th of July 2008 the manager had a meeting with the complainant and made him aware of the concerns that his alleged remarks caused to his fellow employee but the complainant was not disciplined in any way. The complainant than went on holidays and returned on the 27th July 2008. He worked his shift that day and he did not come to work the following day. The Director in evidence said that he received a long email from the complaint complaining about sexual discrimination and bullying. He also sent in a medical certificate stating that he would be out sick until the 26th of August 2008. In response the Director invited the complainant to a meeting to discuss the complaint. On the 13th of August 2008 the respondent received an email from the complainant. He did not return to work and sent in a further medical certificate covering him up until the 16th December 2008. On the 5th December he informed the company that he had referred a complaint to the Equality Tribunal and he resigned from the employment.

The Director said that once he became aware of the complainant's complaints he tried to investigate the matters but the complainant did not give him any opportunity to do so before he resigned.

5. CONCLUSIONS OF THE EQUALITY OFFICER

5.1 The issues for decision by me is whether or not the respondent (i) discriminated against in relation to his conditions of employment because of his sexual orientation contrary to Section 8 and (ii) and victimised contrary to Section 74(2) of the Acts. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.

5.2 Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."

It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was discriminated against on the sexual orientation ground in relation to his conditions of employment. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.

5.3 The complainant submits that he was treated in a discriminatory manner by his manager when he (the manager) learned of his sexual orientation. He submits that there were remarks and jokes made to other employees that referred to his sexual orientation, he was given extra work to do and he was supervised more closely and he was accused of sexually harassing another employee. The respondent does not accept that the complainant was discriminated against in any way in relation to his conditions of employment because of his sexual orientation and further submitted that the complainant did not engage with them or give them a chance to investigate the complaints he submitted after he went out sick. I note that the complainant has produced no direct evidence supporting his allegations. I found the evidence of the complainant's supervisor very credible. He said that he did the same work as the complainant and the manager often telephoned to ask them to do extra work especially at the weekends. He said that the work was hard and it was not the case that the complainant was given extra work. He said that the complainant was a very good worker and he never had any complaints about the way he carried out the work. He also said that he did not hear any comments about the complainant's sexuality. He also said that no accusations of sexual harassment had been made by the other employee Mr. M and the complainant was not accused by him or the manager of sexually harassing Mr. M. The employee concerned said he did not like some of the remarks the complainant made to him in particular about his hair. The supervisor said that he spoke to the complainant twice and asked him to refrain from making any remarks. He said that he then got another complaint and he reported it to the manager.

5.4 In order to raise an inference of discriminatory treatment in relation to his conditions of employment, the complainants must produce some evidence of less favourable treatment. I find that the complainant has not produced such evidence. In relation to this point, I have followed the reasoning in the case Melbury Developments -v- Valpeters (Det. No. EDA 0917) where the Labour Court stated:
"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."

5.5 The above reasoning of the Labour Court is applicable in this case in that the complainant has made assertions about discriminatory treatment but I am not satisfied that his conditions of employment changed in any way because his manager learned of his sexual orientation. It is not discriminatory treatment for a supervisor or manager to speak to an employee and ask them to refrain from making remarks to a fellow employee. Once the respondent had received a complaint he would have been in breach of duty of care to that employee if he did not take any action. Having regard to the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that he was treated less favourably than a person of a different sexual orientation was treated or would have been, in similar circumstances, in relation to his conditions of employment. Even if I accepted the complainant evidence, I am satisfied that the complainant did not give the respondent any opportunity to deal with his complaints. I note that the respondent requested to meet him to discuss his complaint but he declined. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to his conditions of employment on the sexual orientation ground.

5.6 The next matter for consideration is victimisation. Section 74(2) provides that:
(2) For the purposes of this Part victimisation occurs where dismissal
or other adverse treatment of an employee by his or her
employer occurs as a reaction to --

(a) a complaint of discrimination made by the employee to the
employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a
complainant,

(d) the work of an employee having been compared with that
of another employee for any of the purposes of this Act
or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under
this Act or the Equal Status Act 2000 or any such repealed
enactment,

(f) an employee having opposed by lawful means an act which
is unlawful under this Act or the said Act of 2000 or
which was unlawful under such repealed enactment, or

(g) an employee having given notice of an intention to take any
of the actions mentioned in the preceding paragraphs.

5.7 In order to establish victimisation for the purpose of the Act the treatment complained about must be causally connected to one or more of the matters referred to at paragraphs (a) to (g) above. The complainant did not adduce any evidence to support his claim of victimisation. He stated that he was victimised because he took a complaint to the union about overtime and the company were obliged to pay him back money. He also states that the manager victimised him when he spoke to him about the complaint he had received about the remarks he made to another employee. In considering the victimisation complaint in the light of paragraph (a) to (e) above I am satisfied that the complainant had made no complaint of discriminatory treatment at the time that these matters occurred. He was on sick leave at the time he made a complaint of discriminatory treatment and he did not return to work and he voluntarily resigned. I am satisfied therefore that the complainant has not established that that he was victimised or subjected to any adverse treatment as a reaction to any of the matters set out in (a) to (e) above. I find therefore that his complaint of victimisation cannot succeed.

6. DECISION OF THE EQUALITY OFFICER

6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:

(i) the respondent did not discriminate against the complainant on the sexual orientation ground pursuant to section 6(2)(d) of the Acts and in terms of section 8(1) of the Acts in relation to his conditions of employment contrary
(ii) the respondent did not victimise the complainant on the sexual orientation ground pursuant to section 74(2) of the Acts;

______________________________
Marian Duffy
Equality Officer
23rd December 2011