THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-174
PARTIES
Christine Barrett
and
County Cork VEC
(represented by Ronan Daly Jermyn
Solicitors)
File Reference: EE/2008/560
Date of Issue: 19 September, 2011
1. Claim
1.1 This case concerns a claim by Ms. Christine Barrett against County Cork VEC that she is entitled to the same rate of pay as that paid to a named comparator in accordance with section 29 of the Employment Equality Acts, 1998 to 2008 and that the respondent discriminated against her on the race ground. The respondent accepts that the complainant and the named comparator were engaged in like work but submitted that there were grounds other than race for the difference in pay. The complainant also claims that she was subjected to harassment by the respondent contrary to section 14A of the Acts.
2. Background
2.1 The complainant alleges that she was paid less than the named comparator even though they performed 'like work' within the meaning of Section 7 of the Employment Equality Acts, 1998 to 2008. It is the complainant's contention that the difference in pay was related to her race. The respondent accepted like work but submitted that there were grounds other than race for the difference in pay. The complainant also claims that she was subjected to harassment by the respondent on the grounds of her race contrary to section 14A of the Acts. The respondent denies that the complainant was subjected to harassment and it contends that this element of the claim was not referred to the Tribunal in accordance with the prescribed time limits as provided or in section 77(5) of the Acts. Accordingly, the respondent submitted that the Equality Tribunal does not have any jurisdiction to investigate the claims of harassment.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of the Equality Tribunal on 20 August, 2008. On 25 May, 2010, in accordance with his powers under section 75 of that Act, the Director delegated the case to Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission on the issue of grounds other than race was received from the respondent on 13 January, 2011 and from the complainant on 21 January, 2011. A joint hearing of the claim was held on 3 March, 2011 and 10 August, 2011.
3. Summary of the Complainant's case
3.1 The complainant submitted that she was born in England (of West Indian and Polish parents) and that she came to live in Ireland approx. thirteen years ago. She submitted that she obtained a BA Honours Degree in English/Psychology in 1979 from a University in the United Kingdom and that she had accumulated in excess of twenty five years teaching experience when she applied to the respondent for the position of literacy teacher. The complainant submitted that she was successful in her application for this position and was appointed in November, 2005. The complainant submitted that she was paid the unqualified rate of pay from the start of her employment with the respondent despite the fact that she provided the relevant details of her teaching qualifications to the respondent upon the commencement of her employment at YouthReach Macroom.
3.2 The complainant submitted that the named comparator, Mr. A, was interviewed on the same date by the respondent for the position as a teacher of numeracy and she claims that he has been paid the qualified rate of pay for a teacher from the commencement of his employment. The complainant submitted that Mr. A would have comparable qualifications as related to his field i.e. a Degree in Mathematics; however, she claims that he would not have a comparable level of experience as a teacher. The complainant submitted that the reason why she was not paid the qualified rate of pay from the commencement of her employment was directly attributable to her nationality and she claims that an Irish teacher would not have been subjected to such treatment in similar circumstances. The complainant also submitted that the respondent purposely and deliberately delayed the procedure to have her qualifications assessed and certified by the Teaching Council and she claims that the respondent subjected her to this treatment purely on the grounds of her race. The complainant claims that the respondent's treatment of her in this regard has had an adverse affect on her career progression as a teacher and she gave examples of the adverse affects which she claims that she has had to endure as a result of this treatment, which included not being eligible to achieve incremental points on the pay scale on a par with an Irish teacher; she was obliged to sign on for Social Welfare payments in each year of the school holidays; she was denied a Contract of Indefinite Duration (CID) until the year 2010 (which is far more favourable that the Fixed Term Contracts which she was afforded while the issue of her qualifications was being assessed).
3.3 The complainant also claimed that the she has been subjected to indirect discrimination contrary to section 29(4) of the Employment Equality Acts in terms of the respondent's decision to pay her at the unqualified rate of pay. The complainant submitted that the requirement to have her educational qualifications (which were obtained from an English educational institution) validated before she could be paid the qualified rate of pay put her at a disadvantage compared to an Irish person who obtained his/her teaching qualifications from an Irish educational institution and therefore did not have to comply with the validation process. The complainant submitted that, as a person of English origin, she was more likely to hold an English educational qualification whereas a person of Irish origin was more likely to hold an Irish educational qualification.
Harassment
3.4 The complainant also claims that she has been subjected to harassment on an ongoing basis by Ms. B, Secretary/Administrator at YouthReach Macroom, during the course of her employment with the respondent. The complainant gave evidence in relation to a number of incidents that occurred between March, 2007 and September, 2008 which she claims amounted to harassment and bullying against her by Ms. B on the grounds of her race. These incidents included claims that Ms. B passed the complainant's mobile telephone number to a student's mother without her knowledge; Ms. B placed files and books in a position that blocked the complainant's access between certain rooms in the school; Ms. B locked the complainant in a room during lunchtime; Ms. B's negative attitude towards the complainant resulted in her not being able to attend tea and lunch breaks in the school canteen; on one occasion Ms. B ignored the complainant's greeting and told her that she was not to disturb her by walking through her office. The complainant submitted that Ms. B would not have spoken in such a manner to a teacher of Irish nationality; on another occasion the complainant was teaching a student in a room on a one to one basis when Ms. B instructed both herself and the student to close the door of the classroom. The complainant submitted that it was normal practice for a teacher who was working with a student on a one to one basis to leave the classroom door slightly ajar for their own security and to guard against any possible allegations of inappropriate behaviour.
3.5 The complainant submitted that the reason Ms. B treated her in such a manner was because of her English nationality and the fact that she was seen as an unqualified teacher. The complainant claimed that the bullying and harassment by Ms. B continued until her departure from YouthReach Macroom in December, 2009. The complainant also claimed that she was subjected to harassment by Mr. C, APO Human Resources, with the respondent on the basis of a letter that he sent to her on 20 November, 2008 in which he requested to meet her in advance of the mediation session which had been arranged by the Equality Tribunal in order to discuss this matter. The complainant claims that she felt threatened by this contact from Mr. C and she submitted that it constituted harassment contrary to the Employment Equality Acts.
4. Summary of the Respondent's Case
4.1 The respondent submitted that the complainant commenced employment at YouthReach Macroom on 11th November, 2005 and that she was employed to teach literacy and numeracy. The respondent submitted that the complainant's teaching qualifications had been obtained from an educational institution in the United Kingdom. The respondent stated that the complainant was placed on the unqualified rate of pay upon the commencement of her employment on the basis that it was necessary to validate her qualifications for the position. The respondent stated that the Teaching Council is the statutory body designated with the authority for the recognition and registration of qualifications for controlling access to the teaching profession in this state. The respondent submitted that the Teaching Council has a list of accepted qualifications and once qualifications appear on that list, teachers are deemed qualified and are immediately paid the qualified rate of pay, which involves teachers being placed on an incremental scale. The respondent submitted that if a teacher's qualifications do not appear on the list of accepted qualifications, the respondent is obliged to determine whether or not a teacher is qualified for the post for which they have been employed. It is established in practice that this is then achieved by the respondent (and other VEC's) making an application to the Teaching Council, which is, since its establishment in 2006, the competent authority for controlling access to the teaching profession.
4.2 The respondent submitted that VEC's are not in a position to access whether or not a teacher's qualifications, which do not appear on the list, are suitable for a particular post and hence should attract the qualified rate of pay. Therefore, it is standard practice that the VEC's apply to the Teaching Council for confirmation that the Teaching Council recognises and approves the teacher's qualifications. Where approval must be sought from the Teaching Council, then a teacher is paid the unqualified rate of pay pending approval being received by the respondent. The respondent submitted that in the present case the complainant's qualifications did not appear on the Teaching Council's approved list, as outlined above, and therefore she could not be paid the qualified rate of pay, pending application by it to the Teaching Council. The respondent submitted that this process applies irrespective of race and applies equally to Irish nationals where their qualifications are required to be approved by the Teaching Council.
4.3 The respondent submitted that following a request from the YouthReach Centre Coordinator the following year (September, 2006) an application was compiled by its Human Resources to seek recognition/approval of the complainant's qualifications. This required collection of the relevant documentation including copies of the original advertisement, the complainant's completion of application form etc. The documentation was then submitted to the Department of Education and Science (DES) on 11 January, 2007. The respondent submitted that it received confirmation from the Teaching Council on 5 February, 2008 that the complainant was qualified to teach literacy and numeracy in the further education sector. The respondent submitted that there was a lack of clarity as to whether YouthReach centres (i.e. the organisation where the complainant was employed) were considered to be further education centres as they were provided with funding rather than specific "post leaving certificate" allocation. Therefore, because the Teaching Council had specified the subject and the sector in which the complainant was qualified to teach, this put a further onus on the respondent to seek clarification as to the status of YouthReach. The respondent submitted that it was clarified at the end 2008/beginning 2009 that YouthReach was in the further education sector and as a result, the complainant could be paid the qualified rate of pay and consequently, arrears of pay were also due to her (in respect of the period that she had been paid the unqualified rate of pay). The respondent submitted that this situation pertained to many teachers in its employment in relation to whom a similar process to that of the complainant had to be followed to have qualifications recognised/approved, irrespective of nationality race.
4.4 The respondent submitted that the named comparator in the present case, Mr. A, possesses qualifications which are on the Teaching Council's list of accepted qualifications and therefore, he could be paid the qualified rate of pay upon the commencement of his employment. The respondent submitted that the difference in the rate of pay between the complainant and the named comparator had nothing to do with the complainant's race but rather was entirely a matter related to seeking approval of her qualifications from the Teaching Council. The respondent submitted that an Irish national who holds a UK qualification which does not appear on the Teaching Council's list of accepted qualifications would be subjected to the same requirement to have their qualifications approved and recognised by the Teaching Council. The respondent adduced evidence in relation to an Irish national in its employment who held a UK qualification and who was also paid the unqualified rate of pay until confirmation was obtained from the Teaching Council that her qualifications were recognised. The respondent also submitted that teachers possessing Irish qualifications which are not on the Teaching Council's list of accepted qualifications are also subjected to the same requirement and process to have their qualifications approved and recognised for teaching posts. In summary, the respondent submitted that the reason the complainant was paid a lower rate of pay than the named comparator was directly attributable to the qualifications which she held and was in no way attributable to her race.
4.5 The respondent also denies that the complainant was subjected to indirect discrimination contrary to section 29(4) of the Employment Equality Acts. The respondent submitted that the complainant has failed to adduce any evidence that the assessment of qualifications by the Teaching Council in the manner in which her qualifications were assessed is a criterion which in practice can be complied with a substantially smaller proportion of employees of her race than of employees of a different race. It further submitted that this is a case which would require the complainant to provide meaningful statistics to substantiate her claim of indirect discrimination and in the absence of such statistics it is not clear that the Teaching Council's requirements particularly disadvantage the complainant and people of her race.
Exemptions provided for in sections 36(4) and 36(5) of the Acts
4.6 The respondent submitted that, notwithstanding the argument that the complainant has failed to establish a prima facie case of direct and/or indirect discrimination in terms of her remuneration, that it is also entitled to rely upon the exemptions provided at sections 36(4) and 36(5) of the Employment Equality Acts. The respondent submitted that section 36(4) of the Acts provides that it shall not be unlawful for it to require the holding of a specified qualification which is a generally accepted qualification in the State for posts of that description. The respondent stated that when the complainant commenced employment it was not clear that her qualifications were acceptable for the position and therefore she could not be paid the qualified rate of pay until her qualifications were validated and approved by the Teaching Council. The respondent submitted that it was obliged to pay the complainant the unqualified rate of pay until such validation of her qualifications was obtained from the Teaching Council. It submitted that this course of action in terms of her remuneration could not be discriminatory in accordance with the exemptions provided at sections 36(4) and 36(5) of the Acts.
Harassment
4.7 The respondent denies that the complainant was submitted to harassment within the meaning of the Acts by either Ms. B or Mr. C during the course of her employment. The respondent submitted that it has had a Bullying and Harassment Policy in place since 2006, which was at that time distributed to all schools and education centres under its remit and it was open to the complainant to invoke this policy in respect of the allegations of harassment (which have been detailed at para. 3.4 above); however, she failed to make any formal complaint or to invoke these procedures in respect of having this matter investigated. In relation to the allegation of harassment by Mr. C arising out of the letter dated 20th November, 2008, the respondent submitted that he understood that the Equality Tribunal mediation procedure was similar to that of the Labour Relations Commission and that it was his responsibility to mediate directly with the complainant in an effort to resolve the matter. It was for that reason he wrote directly to the complainant and it was submitted that there was nothing discriminatory or racially motivated in that letter but rather was simply an invitation to the complainant to meet to discuss the matter.
Issue of Jurisdiction in relation to the claims of Harassment
5.1 The complainant's initial complaint was received by the Equality Tribunal on 20 August, 2008 and the ground of complaint was race. In the Complaint Referral Form (EE.1) the complainant indicated that the complaint was a claim for equal pay and she identified the name of the comparator upon which the claim was based. The complainant subsequently forwarded a written submission to the Tribunal (which was received on 5 March, 2009) in support of this claim. In this written submission the complainant made a number of further claims of discriminatory treatment (i.e. harassment) against the respondent which had not been outlined in the initial complaint.
5.2 The respondent has submitted that I cannot consider these new claims of harassment because they were not included in the initial claim and are therefore essentially a new claim which would not comply with the time limits for the referral of a complaint as set out in section 77(5) of the Employment Equality Acts. The complainant submits that the further acts of discriminatory treatment were ongoing at the time she referred the claim for equal pay; however, it was not until after the initial claim had been referred that it became clear to her that the alleged acts of bullying/harassment were connected to her race.
5.3 In considering this issue, I note that the circumstances in which a complainant can subsequently amend an original claim were considered by the High Court in the case of County Louth Vocational Educational Committee -v- The Equality Tribunal. In this judgement McGovern J stated:
"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.
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 a complainant is not precluded from amending his or her original claim so long as the general nature of the complaint remains the same. In the circumstances, the question that I must decide is whether the additional claims of harassment contained in the complainant's written submission which was received by the Tribunal on 5th March, 2009 was properly made by way of an amendment to the initial complaint or whether it was properly admissible as a new complaint.
5.4 In the present case, the initial complaint which was referred to the Tribunal on 20 August, 2008 related specifically to a claim for equal pay on the grounds of race. The additional claims made in the written submission related to a number of incidents of harassment on the grounds of race which the complainant alleged occurred on dates between December, 2007 and 29 September, 2008. I am satisfied that these additional claims of harassment which were outlined in the complainant's written submission constitute an entirely different complaint than that, which had been made in the original complaint (on 20 August, 2008). In the circumstances, I find that these additional claims of harassment go beyond the "the furnishing of further and better particulars" in relation to the complainant's initial claim.
5.5 The question then turns to the issue as to whether the claims of harassment outlined in the complainant's written submission can be accepted as a valid claim in its own right which is admissible under the Acts. In considering this issue, it should be noted that the EE.1 Form is not a statutory form and therefore, a complainant is not legally obliged to use this form when referring a complaint to the Tribunal. I am satisfied that the nature of the claims of harassment is clearly set out by the complainant in this document and in the circumstances, I accept that these claims constitute a new complaint within the meaning of the Employment Equality Acts. However, in order for these new claims to be deemed admissible they must comply with the time limits provisions contained within section 77(5) of the Acts which provides:
"(5) Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
The effect of this provision is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the discrimination is issue is part of a continuum of events.
5.6 The additional claims of harassment were received by the Tribunal on 5 March, 2009 and the occurrences of the alleged claims of harassment took place on a number of dates from December, 2007 to 29 September, 2008. I am satisfied that the alleged harassment constitutes a chain of events of which the most recent occurrence (i.e. on 29 September, 2008) was less than six months before the claim was referred to the Tribunal on 5 March, 2009. In the circumstances, I am satisfied that the additional claims of harassment which were outlined in the complainant's written submission comply with the provisions of section 77(5) of the Employment Equality Acts. Accordingly, I find that I do have jurisdiction to investigate these claims of harassment.
5.7 It should also be noted that the Tribunal copied the written submission in which the additional claims of harassment which were outlined to the respondent on 9th March, 2009. I am satisfied that the respondent was put on notice of the allegations contained therein at that juncture. In the case of County Louth Vocational Educational Committee -v- The Equality Tribunal, McGovern J. accepted that the Tribunal was entitled to adopt relatively informal procedures regarding the manner in which investigations are conducted provided that the principles of natural and constitutional justice are adhered to. In the present case, I afforded the respondent the opportunity to forward a written submission in reply to the claims of harassment and I also reconvened a further oral hearing in the matter in order to allow both parties to adduce evidence in relation to the matter. In the circumstances, I am satisfied that the respondent was not prejudiced in terms of the manner in which the investigation in relation to this matter was conducted.
6. Conclusions of the Equality Officer in relation to the substantive issues
Equal Pay Claim
6.1 The complainant who is of English origin claims equal pay with a named Irish comparator (Mr. A) in accordance with section 29 of the Employment Equality Acts 1998 and 2008. She claims that she was discriminated against on the race ground in relation to her pay. I must therefore consider whether or not the complainant was discriminated against on the race ground in relation to her pay and is therefore entitled to equal pay with the named comparator (Mr. A). In making the decision in this claim, I have taken into account all of the submissions, both written and oral, made to me by the parties.
6.2 As the respondent does not dispute 'like work' (within the meaning of section 7(1) of the Acts) and submits that there are grounds other than race for the difference in pay, I will proceed to consider this issue. Section 29(5) of the Acts provides that ".....nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees." In considering this issue, I note that both the complainant and the named comparator (Mr. A) commenced employment with the respondent in November, 2005. When the complainant commenced employment she was paid the unqualified rate of pay whereas the named comparator was paid the qualified rate of pay. It was not in dispute that the named comparator (Mr. A) was being paid a higher rate of pay than the complainant upon the commencement of their respective employments and during the period thereafter. The respondent has submitted that the reason the complainant was paid in accordance with the unqualified rate of pay was directly attributable to her educational qualifications and the fact that they were not on the approved list of qualifications which were recognised by the Teaching Council.
6.3 In considering this issue, I note that in order for a person to be eligible for appointment to an incremental salaried teaching position (i.e. to be paid the qualified rate of pay), that person must be in possession of a teaching qualification that has been approved by the Teaching Council. The Teaching Council is the statutory designated authority for the recognition and registration of qualifications and it has published a list of accepted qualifications for this purpose. Once qualifications appear on that list, teachers are deemed qualified and are immediately paid the qualified rate of pay, which involves the teachers being placed on an incremental scale. If a teacher's qualifications do not appear on that list, the respondent is obliged to determine whether or not a teacher is qualified for the post which they have been employed. Where approval must be sought from the Teaching Council, then a teacher is paid the unqualified rate of pay pending approval being received by the respondent from the Teaching Council. Having carefully examined the documentation submitted in evidence by the respondent, I accept that the complainant's qualifications did not appear on the Teaching Council's approved list upon the commencement of her employment and that it was necessary for the respondent to have her qualifications recognised and approved before she could be paid the qualified rate of pay. This is in contrast to the situation that pertained in relation to the named comparator (Mr. A) as it is clear from the evidence adduced that his qualifications were recognised and approved by the Teaching Council upon the commencement of his employment and therefore, he was eligible to be paid the qualified rate of pay (i.e. the higher rate of pay) from the outset.
6.4 Having regard to the evidence adduced, I am satisfied that the reason why the complainant was paid a lower rate of pay than the named comparator (Mr. A) was not in any way connected to her race but rather was directly attributable to the nature of her educational qualifications, and the requirement to have these qualifications approved and recognised by the Teaching Council before she could be paid the qualified rate of pay. In coming to this conclusion, I have also taken into consideration the evidence adduced by the respondent in relation to another teacher in its employment (Ms. B), who is an Irish national, and also held a UK qualification upon the commencement of her employment as a teacher. It is clear from the evidence adduced that Ms. B commenced employment with the respondent in March, 2007 and that she was also paid the unqualified rate of pay upon the commencement of her employment because her qualification did not appear on the Teaching Council's approved list of qualifications. Having regard to the foregoing, I am satisfied that payment of the unqualified rate of pay to the complainant was based on factors unconnected to her race and accordingly, I find that the respondent is entitled to avail of the defence provided at section 29(5) of the Acts.
Indirect Discrimination
6.5 The complainant has also claimed that the she has been subjected to indirect discrimination contrary to section 29(4) of Employment Equality Acts in terms of the respondent's decision to pay her the unqualified rate of pay upon the commencement of her employment and during the period until her educational qualifications were assessed and approved. The complainant submitted that the she was put at a disadvantage in terms of her eligibility to be paid the qualified rate of pay by virtue of the fact that she held an educational qualification from an English institution. The complainant submitted that, as a person of English origin, she was more likely to hold an English educational qualification whereas a person of Irish origin was more likely to hold an Irish educational qualification.
Section 19(4) of the Acts defines indirect discrimination in respect of remuneration as occurring "where an apparently neutral provision puts persons of a particular gender ... at a particular disadvantage in respect of remuneration compared to other employees of their employer": Section 29(4) of the Acts, inter alia, extends this definition of indirect discrimination to the other eight grounds proscribed in the Acts (including that of race which is the relevant ground in the present case).
In the present case, the "apparently neutral provision" which the complainant claims puts her at a particular disadvantage in respect of remuneration was the requirement to hold an educational qualification from an Irish educational institution in order to be eligible for the qualified rate of pay. Therefore, in order for the complainant to establish a prima facie case of indirect discrimination it would be necessary for her to establish that the impugned educational requirement can be complied with by a substantially smaller number of persons who are non-Irish nationals as compared to persons who are Irish nationals. In considering this issue, it should be noted that there is no specific requirement for a person to hold a qualification from an Irish educational institution in order to be eligible to be paid the qualified rate of pay upon commencement of employment as a teacher. The actual specific requirement for eligibility to be paid the qualified rate is that the person's qualifications must appear on the Teaching Council's list of approved qualifications.
I have carefully examined this list of approved qualifications and it is clear that it includes qualifications which are obtained from both Irish and non-Irish institutions. Indeed, this list includes approved qualifications from a significant number of non-Irish educational institutions (i.e. English, Welsh and North American institutions). It is also the case that a person who has obtained an educational qualification from an Irish institution which does not appear on Teaching Council's approved list of qualifications would be obliged to obtain approval of his/her qualification before being eligible for the qualified rate of pay. In the circumstances, I find that the complainant the complainant has failed to establish a prima facie case of indirect discrimination on the race ground. Since I have found that the complainant has not has not established a prima facie case it is unnecessary to address whether or not evidence has been presented that would amount to objective justification in terms of section 29(4)(b) of the Acts.
Exemptions provided for in sections 36(4) and 36(5) of the Acts
6.9 The respondent has also submitted that it is entitled to rely upon the exemptions provided at sections 36(4) and 36(5) of the Employment Equality Acts, 1998 and 2004 in terms of the difference in remuneration with the named comparator, Mr. A. Given that I have already found that the complainant was not subjected to direct or indirect discrimination contrary to the provisions of sections 29(1) and 29(4) of the Acts in terms of her remuneration, I am not obliged to consider the arguments put forward by the respondent in this regard.
Harassment
The final element of the claim that I must decide relates to the complainant's claims that she was subjected to harassment contrary to the Employment Equality Acts during the course of her employment with the respondent. The complainant claims that she has been subjected to harassment on an ongoing basis by Ms. B, Secretary/Administrator at YouthReach Macroom, during the course of her employment with the respondent. She gave evidence in relation to a number of incidents that occurred between March, 2007 and September, 2008 which she claims amounted to harassment and bullying against her by Ms. B on the grounds of her race (which have been outlined in paragraph 3.4 above). The respondent denies that the complainant was subjected to harassment on the grounds of her nationality and it submitted that she neither made any such complaints to management at the time of the alleged incidents nor did she invoke the respondent's anti-bullying and harassment procedures (which have been in place since 2006) in relation to this alleged treatment or subsequently. Having carefully considered the evidence in relation to the alleged harassment, I accept the complainant's evidence that there was a difficult working relationship between both herself and Ms. C. However, notwithstanding the foregoing, I have not been presented with any evidence from which I could reasonably conclude that any of the instances of alleged harassment were in any way connected to the complainant's nationality.
The complainant has also claimed that she was subjected to harassment by Mr. C, APO Human Resources with the respondent, on the basis of a letter that he sent to her on 20th November, 2008 in which he requested to meet her in advance of the mediation session which had been arranged by the Equality Tribunal in order to discuss this matter. The respondent denies that this letter amounted to harassment and it submitted that Mr. C made contact with the complainant at that juncture purely for the purpose of trying to resolve the complaint. Having carefully examined the content of the letter concerned and I am satisfied that it could not be construed as an act of harassment on the grounds of her nationality within the meaning of section 14A of the Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment contrary to section 14A of the Employment Equality Acts.
7. DECISION
7.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
I find that there are grounds other than race for the difference in pay between the complainant and the named comparator in accordance with section 29(5) of the Acts. Accordingly, I find that the respondent did not discriminate against the complainant on the race ground contrary to section 29(1) of the Employment Equality Acts 1998 and 2004 in relation to her pay.
I find that the complainant has failed to establish a prima facie case of indirect discrimination on the grounds of race contrary to section 29(4) of the Acts in terms of her remuneration.
I find that the complainant has failed to establish a prima facie case of harassment on the grounds of race contrary to section 14A of the Acts.
Accordingly, I find in favour of the respondent in this case.
__________________
Enda Murphy
Equality Officer
19 September, 2011