The Equality Tribunal
3 Clonmel Street
Dublin 2
Phone: 353-1-4774100
Fax: 353-1-4774141
E-mail: info@equalitytribunal.ie
Website:www.equalitytribunal.ie
Employment Equality Acts, 1998 to 2008
Equality Officer Decision
DEC-E2011-005
Shirin Eldris
[Represented by Richard Grogan and Associates, Solicitors]
-v-
Tullamore Wider Options Group Limited
File Ref: EE/2007/529
Date of Issue: 10 January, 2011
Headnotes: Discriminatory treatment in employment - disability and race - conditions of employment - training - bullying, harassment - provision of reference - failure to establish a prima facie case - Employment Equality Acts 1998 to 2008 s. 6(2), s.8 and s. 14A.
1. Dispute
This case concerns complaints by Ms Shirin Eldris, of Ukrainian nationality, that she was discriminated against on the grounds of gender, disability and race, within the meaning of sections 6 (2) (a), 6 (2) (g) and 6 (2) (h) and section 8 of the Employment Equality Acts 1998 to 2008 ("the Acts") and harassed contrary to section 14A of the Acts by Tullamore Wider Options Group Limited, a community development group funded by the Irish Government.
2. Background
Ms Shirin Eldris (hereinafter "the complainant") referred complaints under the Acts to the Director of the Equality Tribunal on 8 October 2007. On 14 November 2007, Tullamore Wider Options Group Limited (hereinafter "the respondent") replied to the complainant and copied their reply to the Equality Tribunal. The complainant sent in a written submission to the Equality Tribunal on 16 October 2008. An answering submission was made by the respondent on 3 December 2008. On 21 October 2010 I, Niall McCutcheon, Director of the Equality Tribunal, took responsibility for the investigation, hearing and the issue of a decision, and the exercise of all my other powers under the Acts in relation to these complaints. As required by section 79 (1) of the Acts and as part of my investigation I proceeded to hearing on 12 November 2010. Further written material was received from the complainant on 17 November 2010.
3. Summary of complainant's case.
The complainant stated that she was employed by the respondent as an Administrative Assistant from 21 August 2006 to 13 April 2007 in the Job Club, a service for unemployed persons run by the respondent. She claimed that:
She did not receive a proper contractual document that she was entitled to.
She did not receive sufficient training.
She was subject to bullying by her immediate supervisor (Ms A) and harassment by fellow employees on account of her nationality and her disability (she suffered from chronic kidney disease stage 4).
She was given a poor reference by Ms A when she resigned which cost her the offer of another job.
The complainant did not pursue the claim of gender discrimination at the hearing.
4. Summary of Respondent's case.
The respondent deny that the complainant was discriminated against in any form. They also deny that any bullying or harassment took place. They also state that the complainant was given a full employee information pack prior to taking up employment. They deny that the complainant suffered gender discrimination since the staff was entirely female. They were not aware of her having any disability. The respondent have employed members of different race, colour and ethnic origin and at no times have they had any accusations of discrimination.
5. Contractual Documentation.
The testimony of the complainant and the respondent is contradictory on the questions of what documentation was given to the complainant on commencing employment and when it was given. The complainant claims that she was presented with a copy of the contract of employment and the salary scale on the morning of Monday 21st August 2006, her first day at work. She denies that she received any other documentation. She was asked was she happy with the contract and said yes.
The respondent states that a pre-employment meeting was held on Thursday 17th August 2006 between the complainant, the then manager and Ms A., the Job Club leader. At the meeting the complainant was presented with an employment pack which contained draft copies of the following and which were all explained in detail to her:
Contract of employment (including pay, hours of work, holidays)
Grievance procedures
Disciplinary procedures
Travel and subsistence rates
Job description
Copies of timesheets, holiday sheets and travel claim forms.
In this, the complainant was treated the same as all previous and subsequent employees.
The complainant not only denies receiving the documentation itemised at 2 to 6 above. She denies that the meeting in fact took place. It is agreed that the complainant and the respondent signed a contract of employment which is dated 21st August 2006, a copy of which was produced in evidence. The complainant in written evidence has stated that she was asked was she happy with the contract and said yes. The complainant had very good English and has not alleged that she did not understand the contract. The contract states under "Duties": "As per Job Description see Appendix III". Paragraph 18 of the contract is entitled "Grievance and Disciplinary Procedure" and says "See Appendices I and II". Appendix I is the Grievance Procedure and Appendix II is the Disciplinary Procedure.
Having heard oral evidence from both complainant and respondent, I believe that the respondent's account of events is more likely to be true and that the complainant received all the documentation described. If the complainant's version of events was true and she received only the main part of the contract of employment, the text of the main part points to the existence of a Job Description, A Grievance Procedure and a Disciplinary Procedure as appendices to the contract. There is no evidence that the complainant asked for and was refused these appendices.
I conclude that there is insufficient evidence to establish that unfavourable treatment in the provision of contractual documentation occurred. I am not satisfied that the complainant, in the present case, has adduced any evidence from which I could reasonably conclude that she was treated less favourably than other workers of a different nationality (including those of Irish origin) or without a disability or having a different disability, in terms of the respondent's obligation to provide her with written employment documentation. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of her complaint.
6. Training.
The complainant claims that during her 6 months probation she wasn't given sufficient training in any aspect of the job. She had to constantly ask her immediate supervisor (Ms A) to explain to or show her how to do certain tasks which the supervisor expected her to remember from being shown once how to do. The complainant states that the supervisor expressed dissatisfaction when she was asked by the complainant to show her second or third time.
The complainant in particular refers to a lack of training in Excel and PowerPoint applications, which were necessary in her job. She said that the previous manager had designed data storage methods using these applications. Because of a lack of training she had to ask her supervisor how to do certain calculations a few times.
The respondent replied by pointing out that the complainant's contract made provision for ongoing training. The Job Club was closed to the public for the first days of the complainant's employment to allow for her induction and training. There was also continuous "on-the-job" training given to the complainant as is the case with all new employees. The complainant had stated to the respondent in her job application and at interview that she was proficient in Computer Applications and the need for external training was not seen as necessary. She attended staff training and planning days with the rest of the staff.
It is clear to me that the complainant feels that the on the job training she received was inadequate. However she has not produced evidence that she was treated less favourably than other employees as regards training. Section 8(7) of the Acts provides-
Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.
The complainant has not adduced any evidence from which I can reasonably conclude that the respondent failed to offer or afford her the same opportunities or facilities for training as the respondent offers or affords to other comparable employees. Accordingly I find that the complainant has failed to establish a prima facie case of discrimination in relation to training.
7. Allegation of bullying by supervisor.
The complainant alleges that her immediate supervisor, Ms A, bullied her. She alleges that Ms A made excessive demands on her, never complimented her on her work but constantly found fault with her work. These conversations took place in one-to-one meetings when other staff were not present. The respondent denies the allegation, saying that the complainant worked in an open area shared with another staff member and constantly being accessed by other staff members and the general public. No other staff member witnessed any bullying.
I listened to the oral evidence from both the complainant and Ms A. It is clear to me that Ms A was from time to time dissatisfied with aspects of the complainant's work and expressed her dissatisfaction to the complainant at one-to-one meetings with the complainant. Bullying as such does not come within the scope of the Employment Equality Acts unless the conduct complained of amounts to less favourable treatment on any of the discriminatory grounds contrary to section 8 of the Acts or harassment under section 14A of the Acts.
From the evidence presented, I do not consider that the supervisor's treatment of the complainant was unreasonable. I am not satisfied that the complainant, in the present case, has adduced any evidence from which I could reasonably conclude that she was treated less favourably than other workers of a different nationality (including those of Irish origin) or without a disability or having a different disability, would have been treated by the supervisor in a comparable situation.
The Acts define harassment as
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. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
While Ms A's criticism of the complainant's work was certainly unwanted by the complainant, I am not satisfied that it was in any way related to the complainant's nationality or disability and therefore does not amount to harassment under the Acts. It is not necessary, therefore, for me to consider whether or not the conduct complained of met the other elements of the definition of harassment. In any event, I would not consider that the supervision and correction described, carried out in one-to-one meetings is "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." Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination in relation to this element of her complaint.
8. Allegations of harassment by other staff members.
The complainant has stated that she got the impression that no one liked her in the office because she was not Irish. There were no conversations amongst the staff regarding any topics the complainant, as a non-Irish person, might be interested in. All the gossip was about people and friends they knew in Tullamore. As the complainant wasn't living in Tullamore she could not participate in those conversations and felt excluded. The respondent cast doubt on the complainant's claim on the basis that very few staff did in fact live in Tullamore.
In my view, the conduct alleged, if true, did not amount to
"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"
and therefore did not constitute harassment under the Acts.
The complainant also felt she was constantly scrutinised for being underweight. Having kidney disease she was on a strict renal diet and weighed less than eight stone. She claims that she was subject to comments and jokes from a particular female CE scheme worker employed by the respondent. This worker constantly mentioned the complainant's "slim figure" and how nice it must be to be able to wear anything she liked. The complainant didn't want to mention her health problem to anyone as she didn't want them to treat her or look at her differently but after many weeks of comments she informed the CE worker the reason she was so "slim". The respondent in reply claim that when the complainant made them aware of the unwelcome remarks, the manager, Ms B, spoke to the CE worker concerned and told her to desist. The CE worker was extremely apologetic and had not intended to cause offence. In oral evidence the complainant did not dispute that the respondent had intervened and that there had been no reoccurrence of the conduct complained of. The complainant pointed out that this may have been because she no longer joined other staff for tea breaks.
Section 14A (2) of the Acts provides that
If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable --
... to prevent the person from harassing or sexually harassing the
victim or any class of persons which includes the victim.
I am not satisfied that the conduct complained of was related to the complainant's disability as it is clear from the complainant's evidence that the CE worker was not aware of her medical condition when she made the comments. The complainant certainly found the comments made were unwanted, silly and annoying. I am not convinced that they amounted to a violation of the complainant's dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for the complainant. In any event the respondent by their action to prevent a reoccurrence have a defence under section 14A (2) of the Acts.
9. Unfavourable reference.
The complainant tendered her resignation on 15th March 2007 to take effect from 13th April 2007. She states that she applied for a job with the Offaly Outreach Project run by Co. Offaly VEC. She was interviewed on Wednesday 21st March 2007. At the interview she was asked to supply a reference from her current employer. The respondent asked Ms A if she was willing to provide a reference and she agreed.
The complainant states that she had twice asked Ms A had she given her a good reference and she replied yes. The complainant followed up with her prospective employer when she heard nothing back by 30th March 2007. She says she was informed that she was turned down for the job because "her reference had let her down". The complainant obtained a copy of the reference from her prospective employer and got very upset as, in her view, it gave a very unfavourable impression of her.
The respondent state that Ms A informed them that she had been approached by a company requesting a reference for the complainant. Ms A informed the company seeking the reference that Ms B was the manager, and suggested it would be more appropriate for her to give the reference. The company replied that the complainant was of the view that Ms A, as her direct supervisor was appropriate and she would prefer her to give the reference. Ms A, in direct evidence, said that what she had written was truthful; she stood over it and would give such a reference to anyone else in the same circumstances.
I have examined the reference. It is not my task to decide whether or not the reference provided gave a fair view of the complainant's performance. Under the Acts, an employer must ensure that, in deciding to provide a reference or in preparing a reference, he or she must treat all employees equally, having regard to the discriminatory grounds under the Acts.
I am not satisfied that the complainant, in the present case, has adduced any evidence from which I could reasonably conclude that she was treated less favourably than other workers of a different nationality (including those of Irish origin) or without a disability or having a different disability, are, have been or would be treated in similar circumstances in terms of the content of the respondent's reference. Accordingly I find that the complainant has failed to establish a prima facie case of discrimination in relation to the provision of references.
10. Decision
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:
the respondent did not discriminate against the complainant on the gender ground, the disability ground or the ground of race pursuant to section 6(2) of the Acts in terms of her conditions of employment and training contrary to section 8 of the Acts.
the respondent did not discriminate against the complainant on the disability ground or the ground of race pursuant to section 6(2) of the Acts in terms of her conditions of employment by harassing her contrary to section 14A of the Acts.
Accordingly, I find in favour of the respondent in this matter.
____________________
Niall McCutcheon
Director
10 January 2011.