FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : LIMERICK CITY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - MARTIN MANNERING (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 17th August, 2010. A Labour Court hearing took place on the 10th April, 2012. The following is the Court's Determination:
DETERMINATION:
- This is an appeal by Limerick City Council against the decision of the Equality Tribunal in a claim of discrimination, by way of harassments, on the grounds of nationality by Martin Mannering made pursuant to the Employment Equality Acts 1998-2011 (the Acts). In keeping with the normal practice of the Court the parties are referred to herein as they were at first instance. Hence Limerick City Council, which is the appellant in this case, is referred to as the Respondent and Mr Mannering is referred to as the Complainant.
The Facts
The facts giving rise to this dispute are not in dispute and can be summarised as follows: -
The Complainant is English and at all times material to this case he worked for the Respondent as a fire-fighter in the Respondent’s Fire Brigade. He made various complaints to the Equality Tribunal on 10thJanuary 2010 concerning incidents which he contends amounted to discrimination on grounds of his nationality. All of these incidents, save one, occurred more than six months from the date on which the matter was referred to the Equality Tribunal and were, accordingly, outside the time limit prescribed by s. 77(5) of the Acts. In these circumstances the Equality Officer only investigated the incident complained of that occurred within the time limit. There was no appeal against the decision of the Equality Officer in that regard.
The incident that occurred within the time limit involved the leaving of an anonymous note in the Complainant’s locker containing derogatory language of a racist nature directed at the Complainant’s nationality. The author of the note is unknown but it is accepted, as a matter of probability, that it was left by an employee of the Respondent. It is accepted that the leaving of this note constitutes harassment of the Complainant within the statutory meaning of that term and, in accordance with s. 14A(1) of the Act, can constitute discrimination for the purposes of the Act.
In these circumstances the case turns on whether or not the Respondent, as the employer of the perpetrator of the harassment in issue, can be fixed with liability for that act of harassment.
Question to be Decided
The case proceeded before the Equality Tribunal on the basis that the Respondent was liable because it failed to undertake an adequate investigation into the Complainant’s complaint. The Equality Officer found that the Respondent has failed in its duty in that regard and that it was liable to the Complainant under the Act. The Complainant was awarded compensation in the amount of €5,000.
At the hearing of the appeal it was accepted by both parties that the case fell to be considered by application of s. 14A of the Acts and in particular on whether or not the Respondent can avail of the defence provided by s. 14A(2) of the Act.
Statutory Provisions
Section 14A of the Act provides: -- (1) For the purposes of this Act , where—
- (a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—
- (i) employed at that place or by the same employer,
(ii) the victim's employer, or
(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or
- (i) such harassment has occurred, and
(ii) either—- (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated
,
- (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
- (i) employed at that place or by the same employer,
(2) 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—- (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(b) in a case where subsection (1) (b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.
- (a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—
In this case there was a single act of harassment by a person unknown but who was probably employed at the same place as the Complainant and by the same employer. Consequently, unless the defence provided for by s. 14A(2)(a) is made out the Respondent is liable to the Complainant by operation of s. 14A(1)(a) of the Act. That raises a question as to the necessary ingredients of the defence provided for at s. 14A(2)(a) of the Act. On a plain reading of paragraph (a) of subsection (2) what is required is that the Respondent proves that it took steps that are reasonably practical to prevent the perpetrator from harassing the victim. In a situation where there is continuing harassment the defence will normally succeed or fail on the adequacy of the employer’s response to any complaint made by the victim. Hence, where an employer fails to conduct an adequate investigation, or fails to apply adequate sanctions on a harasser, the employer will be fixed with liability for any subsequent acts of harassment.
However, this case involves a single non-recurring act of harassment. The Act requires that the Respondent proves that it took steps that could have prevented that single act of harassment from occurring. In the Court’s view, the adequacy or otherwise of the investigation undertaken after the occurrence of the event complained of is irrelevant to the question of whether or not the Respondent had taken steps which could have prevented that event from occurring. Rather, in cases such as this, the focus should be on whether or not the Respondent had in place adequate policies and procedures intended to make all employees aware that harassment on any of the discriminatory grounds is unacceptable and will not be tolerated by the Respondent. Both parties were agreed on the correctness of that approach in the instant case.
Position of the Parties
On behalf of the Respondent the Court was told that it has a policy on Equality and Fairness in the workplace which is provided to all employees during recruitment training. A copy of the document containing this policy was put in evidence. The policy is again referred to in the induction training for new employees. The Court was also told that in 2002 all employees were written to and provided with a copy of the policy. In 2004 the policy was revised and the document as amended was again furnished to all employees individually.
The Complainant accepts that a policy directed against bullying and harassment is in place within the employment and that this policy was brought to the attention of employees in the manner outlined by the Respondent. It was however, submitted that the Respondent’s policy and practice did not conform to the requirements of the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002, S.I. 78/2002, made by the Equality Authority pursuant to s. 56 of the Acts. Specifically, the Complainant contends that the Policy on Equality was only dealt with in a ten minute presentation at the induction programme and that the disciplinary procedures operated by the Respondent does not provided for any or any adequate sanctions for harassment.
Conclusions of the Court
There is no dispute between the parties as to the fact that the Respondent has a policy in place directed at preventing the harassment of employees in the workplace. Nor is it disputed that the policy was disseminated to employees during their initial training and in their induction training. It is also clear that the policy was furnished to each individual employee in 2002 and again following its revision in 2004.
The Court has examined the content of the Policy document and it is fully satisfied that it fully comports to the requirement of the Code of Practice contained in S.I. 78/2002. It particular the policy clearly provides that harassment can lead to the invocation of the Respondent’s disciplinary procedure and, depending on the seriousness of the incident can leadinter aliato dismissal.
In these circumstances the Court is satisfied that the Respondent had taken such steps as were reasonably practicable to prevent the harassment of the Complainant. Consequently the defence under s. 14A(2) of the Act has been made out.
Determination
For all of the reasons referred to above the Court is satisfied that the Respondent is not liable for the harassments of the Complainant on grounds of his nationality. Accordingly, the appeal is allowed and the decision of the Equality Tribunal is set aside and substituted with this Determination. - (1) For the purposes of this Act , where—
Signed on behalf of the Labour Court
Kevin Duffy
16th April, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.