The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-088
PARTIES
Teresa Santana Lowry
AND
Irish Life and Permanent plc
(Represented by Brian Conroy, BL)
File reference: EE/2008/687
Date of issue: 3 May 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 - Race - Conditions of employment and other.
1. DISPUTE
1.1. This dispute concerns a claim by Ms Teresa Santana Lowry that she was discriminated against by Irish Life and Permanent plc on the grounds of race contrary to section 6 of the Employment Equality Acts in relation to conditions of employment and other contrary to section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 15 October 2008 under the Employment Equality Acts. On 15 December 2010, 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. Submissions were received from both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 26 January 2011 and final information was received on 22 February 2011.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant is Spanish and started working for the respondent in 2006. She submits that in June 2006, about 2 months after she started working for the respondent, she was approached by a manager (Ms A) about work. The complainant was unable to recall what she was referring to and Ms A turned to colleagues in the area and said in a Spanish accent "I know nothing" and the colleagues laughed. Shortly after this incident she was approached by another manager (Ms B) about some work procedures. The complainant submits that Ms B laughed loudly saying she didn't understand me. Her work colleagues laughed and she returned to her desk feeling foolish.
2.2. In December 2006 the complainant submits that two colleagues (Ms C and Ms D) were complaining about foreign workers in the company and joking about their language skills. Ms C said "I don't know how they get jobs here", whilst looking at the complainant. At the start of 2007 she was working near Ms D who received a phone call from a foreign worker in another dept. She couldn't understand the person and began to laugh and asked the complainant to take the call.
2.3. The complainant submits that in April 2007 she was approached at her desk by Mr E who was angry and shouted that work had to be done again and walked out. He then returned and whispered to the complainant "have you taken your tablets? You're loco as they say in your country" The complainant was humiliated by the incident and was out sick the next day because of stress.
2.4. In January 2008 the complainant submits she had a meeting with an assistant manager (Ms F) because of problems with letters she had sent out. The complainant found her manner insulting. The following day she was told by a manager (Ms G) that she would have to swap desks and duties with Ms D, in a manner that was dismissive and rude. Whilst moving Ms C said "she doesn't know what she's doing" imitating a Spanish accent. Afterwards she was called to a meeting with Ms G to tell her what work she was to do. The complainant told her about her treatment from Ms F. Ms G said she would look into it but she never got back to her.
2.5. In early February 2008 the complainant submits that she was summoned to a meeting with Ms B regarding flexi-hour entitlements and was told that these entitlements were dependent on the quality of her work. When the complainant questioned this the meeting was abruptly terminated. The complainant felt humiliated and embarrassed after the meeting. In mid February 2008 the complainant was called to a further meeting with Ms B who told her she had misrepresented what was said. Ms B was angry and told the complainant that in the future she would have to work to 5.30pm every day. The complainant went directly to tell Ms G that she found Ms B threatening and she was deeply stressed by the meeting. Consequently she was off sick for a week.
2.6. On her return from sick leave the complainant submits that she was summoned to a further meeting with Ms B who told her that if she was sick again she would be referred to the company doctor and inferred the possibility of dismissal. The complainant found this threatening. She had had a bad bout of flu and considered she received no consideration or understanding. Because of this bout of flu she was sick again in March 2008 and reported sick for three days. On her return she was summoned to a meeting with Ms B who told her she would have to be examined by the company doctor. She did this under advisement form her union representative, whom she had advised of all the threats. When she met the doctor she submits that the doctor told her if she was sick again the complainant would have to go to work.
2.7. In April 2008 the complainant submits that she was approached by Ms B to do some work for her. She told her about the findings of the doctor and Ms B said "I cant understand you, can you speak English" in front of colleagues. The complainant felt very insulted and humiliated.
2.8. In April 2008 she was called to a meeting with Ms G who had received the report from the doctor. She stated that the complainant's sick record was unacceptable by the respondent's standards and was informed that if she reported sick again that year the company would initiate disciplinary proceedings.
2.9. In mid May 2008 there was an event as the Department had received an award. Ms B picked out slips of paper from a bucket for people to receive prizes. The names of the complainant and an employee with Downs Syndrome were drawn out and Ms B said "for our two special workers".
2.10. In the last week before she went off sick the complainant was approached by Ms B to talk about her attendance in front of everyone, as she had forgotten to sign out one day. She submits that Ms B said "you better not do that again in the future, know what I mean".
2.11. In the same week the complainant submits that she was approached by Ms H who made a comment about her working abilities and she shouted at her "you will pay for this" The last day she worked she worked for the respondent Ms I referred to her upon her arrival for work joking "is this little bitch still here".
2.12. The complainant submits that she so stressed by these incidents that on 15 May 2008 she went on sick leave and did not return to work. On 29 July 2008 her union representative sent a letter to HR setting out her complaints. Subsequently on 24 October 2008 the respondent launched a formal investigation. The complainant submits that she never received the results of that investigation. She resigned on 23 September 2010. The complainant submits that the incidents she has described amount to discrimination on the grounds of her race.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that no discrimination took place. Most of the incidents described have no relevance to the complainant's race. They deny that the events described by the complainant which do make reference to the complainant's race took place. Notwithstanding this, they submit that the last of the alleged incidents described by the complainant that refer to her race took place on an unspecified date in April 2008, whereas the claim was made on 15 October 2008, therefore this claim is out of time in accordance with section 77(5) of the Acts.
3.2. The respondent provided witnesses for most of the incidents alleged by the complainant which make reference to her race. They all denied that the comments attributed to them were made and in most cases they denied that the incidents took place at all.
3.3. Ms A left the company in 2006 and was unable to give evidence at the hearing but the respondent submitted a letter from her in which she stated that she had no recollection of the incident.
3.4. Ms B gave evidence that at the time of the first incident alleged by the complainant she was not a manager and was working at the same grade as the complainant and would not have spoken to her about work procedures. There would have been no need to talk to the complainant about flexi-hours as these are standard arrangements and entitlements for all staff. Also she had no memory of talking to her about forgetting to clock out but she would have had no need to do this as it happens from time-to-time and the complainant would have just needed to tell her and her flexi-clock would have been adjusted. Ms B gave evidence that she was instructed to talk to the complainant about her sick leave as she took more than the respondent's guidelines. She submitted that she did not do this in a threatening manner. Ms B denied that the incident in April 2008 took place. She also denied that the prize draw took place as alleged by the complainant in May 2008 The Department did win an award but this was in 2006 and prizes were given but not in the way described by the complainant. Ms B stated that she had a working relationship with the complainant and they went to lunch together with others from the Department on a number of occasions.
3.5. Ms C gave evidence in which she denied that either incident in which she was alleged to have been involved took place.
3.6. Ms D also gave evidence in which she denied that either incident took place. She also denies that she was ever asked to swap desks with the complainant. Whilst working in the Department she remained in the same desk.
3.7. Mr E gave evidence that at the time of the alleged incident he was Head of Customer Service and had responsibility for the complainant but through a Manager and then an Assistant Manager, who would have had day-to-day responsibility for the complainant. He would have had no need to speak to the complainant about her work as this would have been done through the Assistant Manager. He stated that he would have had very little interaction with the complainant and has no recollection of the incident.
3.8. The respondent submits that the first record they have of the complainant having problems at work was on 16 May 2008 when her husband rang HR and spoke to an HR Specialist (Ms J). The respondent submitted a copy of an email that Ms J sent to the HR Manager (Ms K) setting out the points raised in that phone call. Ms J gave evidence at the hearing that the complainant's husband did not say there was a racial element to the problems. Subsequently the respondent had two meetings with the complainant, in the first she was accompanied by her husband and in the second by a union representative. The first meeting was on 11 June 2008 and the complainant presented a letter setting out her concerns about incidents between April 2007 and May 2008, none of these refer to any of the comments the complainant allege which have a racial element. The second meeting took place on 3 July 2008 following which the union representative wrote to the respondent setting out the complainant's allegations, which were contained in the letter she handed in at the first meeting. The union official subsequently confirmed that these "are the sole issues to be resolved".
3.9. On 11 August 2008 the respondent confirmed to the union official that they would be proceeding to investigate the complainant's allegations in accordance with their 'Policy on Dignity & Respect'. On 27 August the respondent asked the complainant if she willing to participate in mediation with the other parties. The respondent did not get a response from the complainant until they were advised that she had made a complaint to the Equality Tribunal. The respondent submits that this was the first time they were aware that anything in relation to the complainant's race was an issue.
3.10. The complainant would not participate in mediation without the appointment of an outside investigator and this was outside the remit of their procedures. The respondent therefore commenced a formal investigation into the allegations and informed the complainant accordingly. The respondent interviewed those against whom the complainant made allegations who were available. Two people were on maternity leave and were not interviewed. On 27 November 2008 they sent their responses to the complainant and asked for her written comments. The complainant replied that she stood by her allegations and had nothing to add. On 8 December 2008 the complainant was asked to attend the company doctor to assess if she was fit to attend meetings as part of the investigation. The complainant did not attend the company doctor so the meetings she was requested to attend did not take place and the respondent was unable to complete their investigation.
3.11. The complainant attended for a medical in May 2009 and she was assessed as medically fit for work but the poor workplace relationship was recognised. She was subsequently requested to return to work in a different Department but she declined this offer. The complainant resigned on 23 September 2010.
3.12. The respondent denies any discrimination and submits that the complainant has failed to demonstrate a prima facie case of discrimination.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1. I must first consider the issue raised by the respondent that the claim is out of time. It was lodged on 15 October 2008 and gives the 'date of most recent occurrence of discriminatory act' as 16 May 2008. The respondent contended that the last incident alleged by the complainant which makes any reference to her race occurred in April 2008. The complainant was unable to remember the exact date and therefore it could have been out of time in accordance with section 77 (5) (a) of the Employment Equality Acts, 1998 - 2007 which states: "a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case be, the date of its most recent occurrence." However she alleges further incidents took place after this date and whilst there is no specific reference to the cited ground I accept they could be seen to be a chain of events which led to the complainant going on sick leave on 16 May 2008. I therefore accept this as the last "date of occurrence" of discrimination and this falls within the timelines.
4.2. This claim was made on the grounds of race in relation to conditions of employment and other. However the claim is made in relation to a number of incidents which if found to be true fall within the category of harassment under section 14(7)(a)(i) of the Acts which states "references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds". In the recent decision of the High Court in County Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J). Judge McGovern stated:
"6.2 I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
6.3 Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."
It is clear from this judgement that in advancing a claim under the Acts a complainant is not limited to what is contained in the originating form, "so long as the general nature of the complaint remains the same". Furthermore the complainant had no representation throughout this process and therefore had no assistance, other than from her husband, when she filled in the EE1 claim form or in making her written submissions. I therefore consider it reasonable to investigate this claim in terms of harassment as well as conditions of employment or other. The respondent had a good opportunity to deal with this claim and addressed all issues in their submission and also at the hearing which covered all aspects of the claim made by the complainant. I am therefore satisfied that the respondent has not been prejudiced in dealing with the claim and that fair procedures have been followed.
4.3 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. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.4 At the hearing the complainant repeated the allegations she had made in her written submissions against a number of people who worked for the respondent. She contended that she was treated badly because of her race and the respondent failed to take the necessary action.
4.5 Witnesses for the respondent, against whom the complainant had made accusations, gave evidence at the hearing (see section 3) that none of the comments with a racial element were made. They also gave evidence that a number of the alleged incidents did not event take place. The most obvious example was the prize giving which the complainant alleges took place in May 2008, whereas the respondent contended that the only prize giving took place in 2006. When confronted with the witness testimony the complainant was vague in reaffirming her allegations but stated that she stood by her allegations.
4.6 The respondent contended that the complainant had made no complaint to them until just before she went out on long term sick leave. When she made a formal complaint they used the procedures in their 'dignity and Respect Policy' and initiated an investigation. They further contend that it was not until they were advised that the complainant had submitted a claim to the Equality Tribunal that they became aware of any racial element to the complainant's concerns. The complainant's husband gave evidence that when he rang HR on 16 May 2008 he did mention that his wife's problems were stemming from language difficulties which he contends was a clear indication that there was a racial element to her complainants. The respondent's note of that phone call which was sent to the HR Manager stated Mr Lowry said that "Teresa sometimes finds the language difficult as she is from Spain". This phone call was followed by two meetings between the complainant and the respondent which included accusations of bullying. These meetings culminated in the complainant's union representative writing to the HR Manager summarising the complainant's issues. This contained no reference to any of the comments from which it could be inferred there was a racial element and included no accusation that her complainants arose because of her race. The complainant contended they were encouraged to leave the racial element out by their union representative.
4.7 The respondent proceeded to investigate the complaints on that basis but contends they were unable to complete their investigation.
4.8 There is considerable disparity in some of the evidence given and, having considered this evidence and taken into account the difference in complaints made to the respondent and to the Equality Tribunal I conclude that there was no racial element to the complaints made by the complainant.
4.9 The respondent relied on section 15(3) as a defence for its' actions in dealing the complaints made by the complainant. Section 15(3) states: "In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonable practicable to prevent the employee-
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.
They have a 'dignity and respect policy' and they instigated an investigation under that policy when a complaint was made. I therefore conclude that the respondent "took such steps as were reasonably practicable" to deal with the complaints against employees of the respondent.
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 discriminate against the complainant in relation to conditions of employment or other and that the complainant did not suffer harassment.
____________________
Hugh Lonsdale
Equality Officer
3 May 2011