The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2012-101
Parties
An Employee
(Represented by SIPTU)
V
A Public Sector Employer
(Represented by Arthur Cox Solicitors)
File No. EE/2009/757
Date of Issue: 3 August 2012
Keywords:
Employment Equality Acts - Harassment - Gender - Sexual Harassment - Victimisation - Equal Pay - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a complaint by an employee (hereafter "the complainant") that she was subjected to sexual harassment and harassment on the ground of her gender by a Public Sector Employer (hereafter "the respondent"). A claim for equal pay and victimisation was also lodged.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal under the Employment Equality Acts on 12 October 2009. On 10 February 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 8 May 2012 and 28 May 2012. The parties' names have been redacted in circumstances where a claim of sexual harassment has been investigated.
2. Case for the complainant
2.1. The complainant, a female, commenced employment with the respondent on 7 January 2002 as a service attendant. In 2005, the complainant had lodged an equal pay claim with this Tribunal that had subsequently settled in a confidential mediation process between the parties. The complainant claims that following this agreement, she has been subjected to adverse treatment by the respondent. Furthermore, she claims that she has been sexually harassed and harassed by the respondent's employers, their agents and/or servants. This adverse treatment, harassment and sexual harassment have been on-going since February 2007.
2.2. Equal Pay claim
2.2.1. The complainant submitted that she was not in receipt of equal remuneration regardless of an agreement that she had entered into with the respondent in 2006. It was submitted that in such circumstances where an on-going dispute concerning equal pay is on-going, she was entitled to lodge a fresh claim for equal pay. It was submitted that a mediated agreement reached between the parties contained an illegality and therefore the agreement was void. It is the complainant's case that she had assumed that she would progress on the scale in the same manner and at the same time as her named comparator. This has not been the case. In January 2008, when the complainant discovered that her increment would progress as per the agreement of 2006 rather than in line with her comparator, she assumed it was a mistake on behalf of the respondent. However, despite having raised the issue with her management, her incremental scale still lags behind her comparator.
2.2.2. The complainant disputed the respondent's position that the complainant is bound by the terms of a mediated agreement. It is the complainant's case that she performs like work with her named male comparator and that she is entitled to the same pay and conditions, including the same date for increments, as her comparator. As an equal pay case can be lodged at any time it was submitted that there is nothing preventing this Tribunal from determining the matter once and for all.
2.3. Sexual Harassment/Harassment
2.3.1. The complainant submitted that the respondent forcibly removed a lock from the external door of the women's dressing room in the autumn of 2009. This removal took place despite the fact that the complainant had objected to it and had complained that she believed that this act constituted sexual harassment. The complainant had attended a meeting with management in October 2009 to discuss the issue. She felt from the onset that this meeting - and her union representative who accompanied the complainant to the meeting agreed - was treated like a disciplinary meeting rather than an opportunity to alleviate the complainant's concerns. The Operations Manager made the complainant feel like a 'criminal' and was very aggressive with the complainant. After approximately 8 minutes the complainant became so upset she had to leave the meeting. The complainant was in such a distressed state afterwards that the Head of Administration - who happened upon the complainant and her union representative after they had left the meeting - suggested that she take the remainder of the day off. The complainant had to go on sick leave as a result. This incident led the complainant to lodge her current complaint with the Tribunal.
2.3.2. Despite the fact that the complainant had lodged her complaint with the Tribunal, the respondent decided to press ahead with its other plans for the dressing rooms. The complainant received a letter dated 10 February 2010 informing her of a staff meeting where this matter was to be discussed. This meant that the complainant and other female staff would be moved to another female staff locker room. The complainant wrote to the Head of Personnel to inform her that such a move to an other dressing room would add to her stress and anxiety that she was already experiencing because of the bullying and harassment that she believed she was receiving from certain [unnamed in the letter] members of management. The complainant and a number of staff objected to these proposed changes for a number of reasons. The complainant, while on certified sick leave, received a letter requesting that she meet with the Operations Manager about her concerns. In light of the previous meeting having resulted in the complainant having to seek her rights from the Equality Tribunal, such a request was perceived as entirely inappropriate and absurd by the complainant. She wrote to the Head of Personnel to this effect in February 2010.
2.3.3. The complainant also submitted at the hearing that a named supervisor had at times 'stormed' into the women's dressing room. It is her case that she almost tripped over in her haste to cover herself up on one such occasion. The same supervisor also banged on the door and shouted instructions through it. The complainant's witness verified that this had occurred on at least one occasion. Furthermore, it was submitted on behalf of the complainant that health and safety reasons are often cited as a refuge from the principle of non-discrimination.
2.4. Victimisation
2.4.1. The complainant's case is that subsequent to her lodging her equal pay claim in 2005, she has been subjected to adverse treatment contrary to the Acts. It is her position that the respondent has subjected her to adverse treatment because she lodged and pursued her claim in 2005. This adverse treatment began in 2007.
2.4.2. The complainant submitted that she was subjected to less favourable placements in relation to her work. It was her position that on occasion she would have to repeat working in an area despite the fact that it is the practise to move staff from a specific colour coded area to a different area the following day. The complainant submitted that since 2007 she been adversely treated in the following ways:
1. Subsequent to a meeting with her supervisor in February 2007, the complainant formed the view that her career with the respondent was in jeopardy. This was due to the outrageous claims of a senior attendant that included a statement that the complainant did nothing in the workplace and threats that if she was seen in the canteen or toilets, regardless of reasons, she would receive disciplinary letters. Also, certain elements of management and others were acting in a vindictive way towards the complainant. It is the complainant's case that management wished to pursue a vendetta against her for asserting her rights under the Employment Equality Acts. She supported this claim by asserting that a person closely placed with management had cautioned her that she may be in receipt of warning letters in the future. Such a statement greatly violated the complainant's sacrosanct right to dignity and respect in the workplace. The complainant wrote to the Head of Personnel informing her of her concerns arising from this conversation with an unnamed person and the unnamed supervisor but due to the complainant being out on sick leave and other personal matters the complainant did not pursue her complaint;
2. The complainant received a letter from personnel informing her that the medical certificates that the complainant had been submitting while on sick leave did not cover the total period of the complainant's absence in accordance with circular 25/78. This letter caused the complainant additional stress and she submitted that she was accosted on her return about this matter by a colleague who was acting on behalf of management;
3. The complainant met with the Head of Personnel in July 20007 to discuss the possibility of transferring elsewhere and also made enquiries about a career break. The Head of Personnel had undertaken to find the complainant a transfer. The complainant also stated that decentralisation was also mentioned to her. At this meeting the complainant received another letter from personnel reiterating the provisions of circular 25/78, stating that no action would be taken in relation to the dates that were not covered by the complainant's medical certificates and apologising for any stress caused;
4. In August 2007 the complainant had to wait four days and involve her union before she was given clearance to attend 4 union related training days. The complainant submitted that her co-workers have always been given immediate approval;
5. In January 2008 the complainant sought time off for 'privilege days' that had accrued. Her supervisor informed her that she had no leave remaining. The complainant disputed this. The complainant was very upset with her supervisor's attitude and sought clarification from management. The complainant took issue about her right to view a staff leave book. The complainant was informed by her management the next day that she indeed had two days left. The complainant received confirmation about her holidays in writing. She did not, however, receive an apology from her supervisor;
6. On 28 May 2008, having returned from sick leave, the complainant sought to work an overtime shift. She stated that she had formed the opinion that her supervisor did not wish for her to work the shift due to his initial reluctance to assign the shift to her. The complainant was then later informed by her supervisor and another manager that the terms of overtime had changed recently and that she was now expected to carry out additional duties when working an overtime shift. The complainant had objected to these duties. She then received her instructions in writing and instructions were given to her male co-worker in writing also. However, was submitted that the 'tone' of the complainant's letter was different than that given to her co-worker. Subsequently, the complainant became so upset with what she viewed as intimidating manner that she had to leave work in the middle of her shift;
7. The complainant met with the Head of Personnel on 5 March 2008 to discuss the possibility of a career break. The complainant was told that on her return from a career break she would not be guaranteed her existing job and that she may have to wait for up to 12 months before a new role could be found for her. The complainant was told that she ought to discuss the matter with her direct managers as the matter rested with them and some local arrangements may be possible. The complainant chose not to do so given the history that she had with these men;
8. On 8 April 2008 the complainant was told that her supervisor - who was absent that day - had left email instructions for her to work in a given area. The complainant was not on the roster to work in this area that day so she approached her line managers who told her that the matter was with the Operations Manager as the supervisor had left clear written instructions. The complainant approached her Shop Steward and together they approached the Operations Manager and expressed the view that the complainant's roster was being manipulated. The Operations Manager suggested in reply that maybe the area had been assigned to the complainant due to her reputation as a good worker. The complainant replied to the Operations Manager that she had previously been told by the same person that she did nothing in the workplace and therefore that could not be the reason for the roster. The Shop Steward - on behalf of the complainant - then suggested to the Operations Manager that as the matter was causing so much stress to the complainant that perhaps it would be the easiest solution to assign other people to the disputed area. The Operations Manager refused this solution and the complainant became so upset she broke down and had to leave the premises. She stated that her agitation was so great she was almost involved in a traffic accident;
9. The complainant was asked to share a dressing room with a female supervisor who constantly micromanaged the complainant by way of completing Staff Activity Sheets;
10. The complainant submitted that since cleaning staff had been let go in September 2011 she has been denied relief but for one or two occasions. The complainant stated that she had been told that this is because of operational reasons and she submitted that she found the management negativity to her concerns to be deflating and humiliating. The complainant's case is that she now works longer hours than her colleagues. It is her case that every time she raises an informal query with personnel about her management's conduct she is subsequently given confusing or difficult instructions by her line management.
11. On 10 February 2012 the complainant was assigned to work in an area. However, later that day the complainant was approached by her line manager and asked to move to another area. The complainant questioned this order as she was aware that two contract personnel were in said area. The complainant was informed that it was the Operations Manager who had made this order and the complainant stated that she would move to the other area under protest. On route to the other building, the complainant met with a colleague who realised that the complainant was very upset. She brought the complainant to the dressing room to calm down and sought a colleague of the complainant to come in to see the complainant. This colleague enquired whether the complainant was able to continue working and the complainant told her that she was not able to continue. The complainant was subsequently certified unfit to work due to stress and anxiety that the complainant submitted was due to her workplace.
2.4.4. The complainant also submitted that there had been a number of incidents subsequent to her lodging the current claim with the Tribunal. She believes that she been a victim of a sustained pattern of victimisation. The complainant believes that as no male union member has ever been treated in this manner it is clear that the treatment she has experienced is linked with her gender and the fact that she had pursued her claim in 2005.
3. Case for the respondent
3.1. It was pointed out from the outset that the complainant's claim which extends over a period of three years has placed the respondent at a significant disadvantage in having to try and recollect what occurred at the relevant times.
3.2. It was submitted that the complainant's case of victimisation is misconceived. It was submitted that the various examples of alleged victimisation cannot be construed as acts of victimisation. On the face of it, these alleged acts are not a reaction to any complaint of discrimination brought by the complainant or an assertion of rights by the complainant under the Acts.
3.3. It was submitted that discrimination includes victimisation and therefore it follows that section 85A burden of proof falls on the complainant to establish facts from which an inference of victimisation can be drawn. It was submitted that the complainant has not established facts from which the Tribunal can properly draw an inference that victimisation has occurred. The complainant has lodged a number of instances of alleged ill treatment in general but that there is no nexus with her gender.
3.4. It was submitted that in relation to the complainant's complaints of bullying and harassment the respondent had received one letter with a broad complaint and no details. It was submitted that the Head of Personnel wrote to the complainant requesting that she contact her to discuss the matter further. The complainant declined to do so. The complainant has refused any reasonable offer by her management to address issues.
3.5. In relation to the complainant's complaint that her claim of sexual harassment was not properly investigated in 2009 the respondent submitted that the complainant had not provided proper details about her complaint and when she had been approached about this issue by the respondent she had accused the person enquiring about it of bullying, harassment and intimidation. It was accepted that the complainant had left a meeting after approximately 15 minutes accompanied by her union representative but it was denied that the meeting was conducted in an aggressive manner. It was not accepted that the fact that the complainant was upset was evidence of any harassment on the gender ground or victimisation.
3.6. It was submitted that the respondent organisation is going through a transition period. It has been affected by the public service moratorium on recruitment. This has resulted in some changes in all employees' working patterns that have been dictated by the organisation's need and the fact that the respondent has less staff. In this regard, management had informed a partnership committee that staff working an overtime shift henceforth would be expected to carry out additional duties during downtime. This decision was communicated to staff at a partnership meeting and a union member had undertaken to inform her colleagues of the decision. It was accepted that the complainant had been out sick at the time of this meeting and that she may not have known about these changes before she volunteered to work the shift that day. However, when the complainant was informed of these changes on the day of her shift she challenged them on the grounds that her union had not informed her of such. The complainant was informed of the changes made by management twice orally by her line managers and when she still objected to the duties a written letter clarifying the respondent's position was given to her and her colleague. The complainant was told that she could refuse to carry out these duties under protest. However, the complainant did not complete the shift. It was denied that there is any 'tone' in relation to letter that could be construed as harassment on the gender ground and/or victimisation.
3.7. In relation to complainant's complaint concerning her entitlement to relief breaks. This relates to a practise whereby a member of staff is allocated the last break period. As such break occurs at the end of the day the practice has been that - provided that adequate cover existed - such staff could finish their shift earlier. This practise cannot be guaranteed in circumstances where the respondent does not always have adequate staff to provide required cover to ensure the service that it provides to the public is available to it.
3.8. Equal Pay
3.8.1. The complainant's first equal pay claim - referred to the Tribunal on 11 July 2005 - was settled in a confidential mediation process in 2006. It is the respondent's position that the agreement was entered into in full and final settlement. It was submitted that the complainant is entitled to seek redress for any perceived contractual breach from the civil courts. However, the respondent argued that it is not open for the complainant to bring a fresh claim or to assert a breach of the mediated agreement by way of a fresh claim under these Acts.
3.8.2. It was submitted that when the complainant approached the personnel department about the increment issue, the respondent informed the complainant that from its perspective the agreement had been correctly implemented but that if the complainant had any further issues she ought to put them in writing so that these could be properly addressed by the respondent. The complainant declined to do so. It was submitted that it is entirely unacceptable to attempt the challenge the agreed terms of said agreement 6 years later and 4 years after it had been clarified to the complainant by the human resources department. The respondent has never conceded to like work.
3.9. It was also pointed out that at no time did the complainant invoke the respondent's grievance procedure (agreed with SIPTU).
3.10. Victimisation
3.10.1. All claims of adverse treatment are denied. The respondent's records show that the complainant did attend a 4 day Shop Steward course in September 2007. It was submitted that it is not unreasonable for management to take a couple of days to make such decisions in order to ensure that it could let staff go without any operational problems arising. Such considerations cannot be construed as adverse treatment.
3.10.2. It was accepted that the complainant had approached the Head of Personnel to enquire about a career break and/or a possibility of a transfer. It was not accepted that the Head of Personnel would have undertaken to find a transfer for the complainant as she would not have done so for any person. It was accepted that the respondent had informed the complainant about the policy and that as part of this policy persons would be informed that they are not guaranteed an immediate return to work after the 12 month period nor to the same place. This is a reality that any person seeking a career break ought to be alerted to. The Head of Personnel had informed the complainant that she could try to negotiate a local arrangement with her managers. It appears that the complainant declined to do so. The complainant herself has provided facts that indicate that she did not pursue a career break from the respondent.
3.10.3. The Head of Personnel did recall discussing a transfer with the complainant and recalls informing her of the policy in the wider public and civil service. She did not specifically recall discussing decentralisation but accepted that it is likely that as the matter was live issue at the time it is perfectly possible she would have mentioned it as an option for exploring transfers. It was denied that such a suggestion, relating to a fact, can be construed as adverse treatment.
3.11. It was denied that the complainant has been subjected to excessive supervision or adverse treatment of any kind. The respondent has attempted to address all matters with the complainant and has always done so in good faith.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA0917 where it stated that 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". In addition, I must be satisfied that the complainant is a person with a disability within the meaning of the Acts.
4.2. In making my decision I have taken cognisance of written and oral submission. Due to the somewhat challenging nature of this investigation I believe that I must make the following observations about the oral hearings. The hearing into this matter lasted two full days and on a number of occasions I was accused of bias and partiality by the complainant's representatives. These allegations were repeated over a number of occasions and related to situations such as me overruling objections to what I deemed to be perfectly legitimate questions for cross-examination and when I issued instructions about procedures and legal concepts. Equally, such allegations were made when I requested that the complainant's representatives stop interrupting witnesses (including their own) or the respondent's legal representative and when I agreed with the respondent's representative that the complainant's representatives' request to recall the complainant to introduce new evidence in relation to new incidents at a stage where the respondent had concluded its reply into a number of the complainant's complaints would be highly irregular. I was also accused of allowing the respondent's representative to interrupt while restricting the complainant's representatives from so doing. Furthermore, two objections were submitted in relation to the fact that the respondent had legal representation and it was suggested that unfairness would result as a consequence.
4.3. Nevertheless, regardless of the disruptive manner in which the hearing progressed, I am satisfied that I have offered both parties every opportunity to address this Tribunal. I absolutely reject any allegation of bias or partiality. Equally, any party has the right to legal representation and I reject any suggestion that such a right leads to unfairness or breach of natural justice. For completeness sake I wish to point out that due to the remarkable nature of the hearings I felt compelled to offer the complainant's representatives the opportunity to submit reasons why I should consider my recusal from the investigation. This offer was declined.
4.4. Time limits
4.4.1. I note that the respondent has raised issues concerning time limits. It was the respondent case that the Tribunal's jurisdiction only extends to the six month period preceding the complainant lodging her claim and that an investigation into any of the other alleged acts that occurred outside that time limit are therefore barred.
4.4.2. The respondent is correct in asserting that in order for the complaint to be within the time limits set out by the legislature I must be satisfied that an unlawful act occurred within 6 months of the complaint having been lodged with the Tribunal. It is only when I am satisfied of such an act occurred that I can find whether a claim of a chain of discrimination and /or victimisation is within time. However, as a Tribunal of first instance I am satisfied that in order to fully appreciate the facts of a complaint I must provide the complainant with an opportunity to state her full case in order for me to be able determine whether this is a case of on-going victimisation within the meaning of section 77(A).
4.4.3. The complainant's representatives indicated at the hearing that they wished to elaborate on the original claim 'a little bit'. This was in addition to an additional submission lodged in May 2012. The respondent objected to this on the grounds that they would not be in position to respond to any additional claim. Any inclusion of additional evidence is always subject to fair procedures that must apply to both parties. Having heard the full facts I am satisfied that maters contained in the additional written submission refer to additional incidents surrounding the original conflict set out in the complainant's original submission. I also note that the respondent had been notified in a letter dated 10 February 2012 of the complainant's intention to include the relief issue and the sudden request to ask her to move to another location as part of her sustained pattern of harassment claim. Therefore I have allowed these claims to be included in accordance with County Louth Vocational Educational Committee v Equality Tribunal [2009] IEHC 370 as I am satisfied that the respondent was on full notice of the general nature of this complaint and was given every opportunity to respond to the complainant's case.
4.5. Equal pay
4.5.1. It was argued is that date for the complainant's increment is not the same date as that of the comparator. It was submitted by the complainant that there is nothing precluding this Tribunal from opening a new equal pay claim into the complainant's case. I disagree with such an argument. It is a common fact that a legally binding agreement had been entered into by the parties in 2006. I find that it is not a matter for this Tribunal to interfere or enforce mediated agreements. Such agreements are entered into by parties in good faith and confidentiality is a paramount consideration. It is a fact that all mediated agreements that originate from this Tribunal, in accordance with the Acts, are enforceable in the Circuit Court. Therefore, I am satisfied that I have no jurisdiction to deal with this issue.
4.5.2. It is incorrect in law to state that the existence of the agreement itself has established the complainant's case for equal pay.
4.6. Harassment/Sexual Harassment
4.6.1. Harassment/sexual harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds 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. Many forms of behaviour, including spoken words, gestures or the display/circulation of words, pictures or other material, may constitute harassment. It is clear that a single incident may constitute harassment. However, a nexus must be shown between the protected ground and the behaviour. The following list of examples of harassment, that is by no means exhaustive, is provided in S.I. No. 208/2012 -- Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012:
a) Verbal harassment - jokes, comments, ridicule or songs;
b) Written harassment - including faxes, text messages, emails or notices;
c) Physical harassment - jostling, shoving or any form of assault;
d) Intimidatory harassment - gestures, posturing or threatening poses;
e) Visual displays such as posters, emblems or badges;
f) Excessive monitoring of work;
g) Isolation or exclusion from social activities;
h) Unreasonably changing a person's job content or targets; and
i) Pressure to behave in a manner that the employee thinks is inappropriate, for example being required to dress in a manner unsuited to a person's ethnic or religious background.
4.6.2. Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. The complainant's case is that she was sexually harassed by her employer who removed a lock from the external door of the women's dressing room door despite the fact that she had objected to the removal and had, with her co-workers, offered alternatives to this removal. The respondent submitted that this removal had been done on the recommendation of a health and safety audit. I note that the complainant took much issue with the manner in which the audit was carried out. I am entirely satisfied that the manner in which such audit was conducted is not a matter for this Tribunal. I am however satisfied on the facts that such an audit took place. It is the complainant's case that the removal of the lock was a form of aggressive action instigated by what she described as a male dominated organisation and that the sexual harassment is a result of a general failure by the respondent to appreciate women's sensibilities.
4.6.3. I do not find that a removal of a lock from a door in the circumstances of this case can be construed as a form of sexual harassment. The removal of the lock - whether by a man or a woman - cannot be construed as conduct of a sexual nature. It is clear from the facts that the removal of this lock does not only affect the complainant. I appreciate that the complainant argues that the removal is an invasion of her privacy and a breach of her personal safety and security. The fact that dressing room doors do not have locks does not mean that female only spaces cannot be maintained. It is a duty of the respondent to ensure the sanctity of such spaces is respected by all employees and any breaches dealt with under the respondent's disciplinary code.
4.6.4. I am satisfied that the alleged matter of the supervisor walking in on the complainant while she was changing was not properly raised with the respondent. I find that the complainant had a duty to report such behaviour and I cannot accept in the circumstances of this case that she was unable to do so. It is clear that complainant wrote a letter to her employer on 1 September 2009 where she refers to: "some person/s have been kicking in my changing room door while I was in there getting changed. I felt menaced and bullied by this incident." Nowhere in the written correspondence have I found any evidence that the complainant had mentioned that a person had entered the space while the complainant was changing. I find that the allegation of a person entering the locker room is not credible. I find that in most cases an employee making allegations concerning their co-workers ought to be able to name such persons. By doing so, the person complaining is giving the respondent appropriate information in order for the respondent to take proper steps under their policies and the person accused is also given a right to reply. It was submitted by the complainant that the respondent has failed its duty to investigate her complaints of sexual harassment. I have found no evidence of a failure of the respondent to respond and to meet with the complainant and her representation. The complainant has, on her own evidence, walked out of such meetings and refused to engage with further investigation. I note that the complainant stated that she had done so because she had felt bullied, harassed and upset even in circumstances where she has been accompanied by colleagues or her union representatives. It ought to be clear that the respondent - as an employer - has a duty of care towards all of its employees. By refusing to name her alleged harassor(s) and instead making allegations about unnamed persons described as 'elements of management', 'management on the floor' 'a senior attendant' the complainant has made it impossible for the respondent to do anything further than to request more information. Fair procedures must be adhered to in all such circumstances and a person being accused of sexual harassment must be provided with an opportunity to respond to such a claim. The manner in which the complainant has chosen to deal with this matter has meant that the respondent has been denied the right to take reasonable steps in its defence.
4.6.5. The complainant submitted that the harassment then continued by way of proposed infrastructural changes to the respondent premises. These changes would have resulted in the complainant and other women having to move from their current facilities. While it is clear that the complainant does not want to share locker facilities with her manager and such a proposal causes the complainant stress and anxiety, I cannot construe such a matter to be harassment on the gender ground. The complainant submitted that these acts have been carried out in order to get at her because she is a woman who has referred a complaint to this Tribunal. It ought to be noted that sexual harassment/harassment by the legal definition is carried out by a 'person' or person(s) and using ordinary language it is clear that such a 'person' cannot be construed as a 'legal person' as it refers to employees, clients, customers and other business contacts. No specific person has been named in relation to these alleged acts.
4.6.6. I find that the alleged 'acts' carried out by the respondent have no nexus with the complainant's gender. The fact that the complainant objects to these changes is an industrial relations matter and clearly outside this Tribunal's jurisdiction. While I note that the complainant submitted that no male union member has been treated in the manner as she has been treated she has provided no facts from which an inference of any different treatment could be drawn.
4.6.7. There is no evidence to suggest that the complainant has been subjected to excessive supervision by her female supervisor.
4.6.8. It was suggested that the manner in which the operations manager conducted a meeting with the complainant and her representative was disgraceful. I note that the parties have rather conflicting views of what transpired at this meeting. Both parties have accused one another of bad behaviour and while I heard from witnesses for both sides I do not find either of the witnesses to be impartial. Therefore, I find that the meeting took place and the facts support that the meeting was not concluded due to the complainant leaving it. I am therefore satisfied that the matter clearly relates to an on-going IR issue and is not a matter for this Tribunal.
4.6.9. I note that the complainant took issue with the changes in her rosters. I note that a female colleague of the complainant gave evidence that such incidents did occur with other staff members also. I note that this witness also suggested that in other cases the matter would most likely be sorted by the supervisor in a manner that would mean that the person would not have to work the 'wrong' roster. The complainant has asserted that twice in a three year period (once in 2009 and the second time in 2012) she has been asked to clean an area that was not in her roster and her manager had refused to fix the issue to the complainant's satisfaction. I am satisfied that in both cases the work that the complainant was asked to do was clearly within her job description. I do not find in the circumstances of this case that an employer requesting some flexibility from an employee can be construed as harassment on the gender ground.
4.7. Victimisation
4.7.1. Victimisation is clearly defined in the Acts. It is incorrect to suggest that victimisation can only occur in circumstances where adverse treatment is linked with a protected ground. Victimisation is a "ground" in itself and its aim is to ensure that people who assert their rights or who assist others in so doing are not punished for such action. Victimisation arises in circumstances where a complainant can show that they have experienced adverse treatment that occurred as a reaction to any protected act as set out in section 74(2). Thus, the Tribunal must be satisfied that a protected person has experienced adverse treatment because that person in question has been a party to equality complaint. The comparator is this case is the treatment of a hypothetical employee in similar circumstances as the complainant but who is not protected by the victimisation 'ground'.
4.7.2. It is the complainant's case that in February 2007 she became aware of the fact that the management wanted to punish her for having taken action in 2005. She submitted that a named supervisor - who was not party in the confidential mediation process - engaged in a conversation with a third party. During this conversation this supervisor apparently indicated to this third party that management did not like the complainant and were intent on sending warning letters to her. It is the complainant's case that this third party then told her about it and the complainant wrote to management to express her concerns. It is clear that the letter referred to the respondent in February 2007 refers to no person in particular and is based entirely on hearsay. The complainant's reasoning as to why management wanted to 'get her' was because she had taken a previous equal pay claim.
4.7.3. It is clear from the facts of this case that the complainant never received any of these threatened warning letters.
4.7.4. Overall, I have found little evidence to support the complainant's claim that she experienced different treatment at all. I do not find that the removal of a lock from a dressing room door constitutes adverse treatment that was inflicted on the complainant because she had pursued an equal pay case some 3 to 4 years previously. There is simply no evidence to suggest that the respondent had decided to punish the complainant for her equal pay complaint by removing this lock and did so by devising an elaborate plan that included the recruitment of an external health and safety auditors. Nor do I accept that the respondent had put proposed changes to its infrastructural layout in order to punish the complainant. The fact that management over a period of a number of years got the complainant's leave entitlement wrong only to fix it a couple of days later is not in my view evidence of adverse treatment.
4.7.4. I note that the complainant received a letter about the disputed overtime duties on 28 May 2008. Her male colleague received a similar letter the same day that indicated that he was expected to carry out additional duties also. It is clear that the complainant's colleague's letter is shorter than the complainant's but I do not find any "tone" in relation to the complainant's letter. The complainant, who on her own evidence, challenged her manager's orders, was provided with a letter initially setting out her additional duties with the following additional lines:
"It is our understanding that this matter was agreed at a Management/SIPTU meeting in April and has been working satisfactorily since then.
Therefore I am requesting that you will carry out the work as proposed. If you feel that you are unable to comply with this request, please do so under protest.
Please let me know what your intention is in this regard by 4.45 pm this evening."
4.7.5. The complainant argued that no such agreement about additional duties existed between her union and the respondent. Such an issue is not a matter for this Tribunal. The question is whether another employee who had not lodged a complaint under these Acts and who refused to carry out instructions in similar circumstances as the complainant would have been treated any differently? I find the answer to such a question to be 'no' and do not find that the manner in which the respondent responded to the complainant was adverse. While I accept that it is unusual to get written instructions from your manager, I do also find it unusual that an employee would refuse to follow management instructions that, on their face, appear reasonable. It is clear that both overtime workers received the same instructions and I do not accept on the evidence provided that the management decided to issue such additional duties to the complainant and her co-worker as a punishment for asserting her rights under the Employment Equality Acts.
4.7.6. It is clear that the complainant did not pursue a career break or a transfer. In note that she submitted that there was no point pursuing such matters as it was in the hands of her tormentors. I cannot make findings on such assertions. Thus her claim of adverse treatment relates to the reply she received from the respondent. There are no facts from which I can infer that the complainant was given information that was different or incorrect. The same can be said about the requirement set out in circular 25/78. I find that the respondent merely informed the complainant of the said requirements and find that no action was taken in relation to past sick certificates. The respondent merely pointed out the correct requirements to the complainant and thus prevented any difficulties arising because of this matter in the future. There is no evidence to suggest that the sick leave requirements do not apply to other employees.
4.7.7. While I accept that the complainant had to wait a couple of days to get permission to attend the union training days and a day to get clarification about her privilege days I find that nothing flowed from it. She did attend with her colleague. The complainant's own witness suggested that to his recollection he and the complainant were told on the same day that they could both participate in the 4 day training. I also find on the facts that the complainant was also able to enjoy her privilege day entitlements.
4.7.8. Having heard the complainant's claim I have not found a scintilla of evidence to support the complainant's case that she was adversely treated at all. There is no evidence to suggest that the complainant was sexually harassed or harassed. I note that it was submitted that by looking at the totality of the facts a pattern of victimisation and harassment will emerge. I have found no evidence of such pattern.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find I have no jurisdiction to open an investigation into the complainant's complaint of equal pay.
5.3. I find that the complainant has not established a prima facie case of harassment and/or sexual harassment.
5.4. I find that the complainant has not established a prima facie case of victimisation.
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Tara Coogan
Equality Officer
August 2012