THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012 - 187
PARTIES
A Complainant
(represented by Eilis Barry, B.L., instructed by A Named Legal Service)
and
A Community Development Organisation
(represented by a named solicitors firm)
File Reference: EE/2010/183
Date of Issue: 20th December, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(d), sexual orientation ground - Section 8(6)(c),dismissal - Section 14A, Harassment - Section 14A(2) - Section 74(2), victimisation
1. Dispute
1.1. This case concerns a complaint by the complainant that he was discriminated against by the respondent on the ground of sexual orientation, contrary to section 6(2)(d) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to harassment and dismissal, contrary to Sections 14A and 8(6)(c) of the Acts, and that he was victimised by the respondent contrary to Section 74(2) of the Acts.
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 15th March, 2010, alleging that the respondent had discriminated against him and victimised him on the sexual orientation ground.
2.2. Written submissions were received from both parties. On 15th May, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Hearings of the complaint were held on 4th October, 2012, 22nd October, 2012, 23rd October, 2012 and 8th November, 2012.
2.3. I have anonymised the parties in this case in light of the facts of the case. Both parties consented to this anonymisation. While it is normally the practice of the Tribunal to name the representatives, I have also anonymised the instructing solicitors in order to protect the privacy of the parties as naming the solicitors would disclose the location of the respondent's service.
3. Summary of the Complainant's case
3.1. The complainant stated that he is a gay man. He stated that he started working for the respondent on 2nd February, 2009. He stated that he was hired as the respondent's centre manager and gave a detailed account of his duties and responsibilities in that respect. He also gave a detailed account of his achievements while working for the respondent. In particular, he stated that: he increased the number of classes run by the respondent and the funding for those classes; he promoted the centre on local radio; he had responsibility for the production and distribution of a newsletter. He also gave an account of difficulties he encountered with the respondent's Board of Management (BOM) in getting approval to carry out certain actions. He stated that he worked hours beyond those required under his contract and never sought the time-in-lieu to which he was entitled.
3.2. The complainant denied that there were ever any issues with his performance and denied that he performed poorly. In that context, he gave detailed evidence to account for the issues which the respondent raised in that respect. He also pointed to the performance review form completed by the respondent in September, 2009, and to what he said were the many positive aspects of that form. He acknowledged that he was given a verbal warning on 16th June, 2009, because of issues with sick leave and attendance but stated that he objected to receiving this warning at the time and gave an account at the hearing of the circumstances surrounding the receipt of this warning. He said that he had no appeals mechanism available to him and ultimately had to accept the warning in that context.
3.3. The complainant stated that he was subjected to harassment on the ground of sexual orientation by the respondent. In that respect, he gave a detailed description of what he described as the negative and unprofessional atmosphere which he experienced almost as soon as he began working there. He stated that he had been made aware in advance by a reliable person that there was a difficult atmosphere in that particular workplace, but chose to accept the job in any event because of his interest in the work. In particular, he submitted that there was a degree of gossip between a member of staff (Ms A) and a BOM Member (Ms B), who was also the Manager of another organisation, Z Ltd., which shared a premises with the respondent.
3.4. The complainant stated that Ms A worked for FAS but on a placement within the respondent's centre. He stated that he was her manager in that context. He said that she made it clear to him that she had an issue with his homosexuality. He described how she did so, stating, in particular, that Ms B told him that Ms A had said to her that his hair colour reminded her of a former boyfriend of hers. He stated that he reported this matter to the Chairperson of the BOM, a Ms C, shortly after he became aware of it.
3.5. The complainant also gave an account of a number of issues he had with Ms A and her behaviour and approach to work. In particular, he stated that he had a concern about his personnel file being readily available for inspection by anyone in the centre and he had a particular concern about Ms A reading it in the context. He said that he sought to protect his privacy by having the file placed in a safe. He stated that the board agreed to this. He stated that Ms A was "an incredibly difficult individual to work with" and that her behaviour to users was questionable. He stated that she was under the impression that she was not answerable to anyone because she worked for FAS. He stated that, eventually, her behaviour became too much and he "got rid of her". He described how he did so. He said the atmosphere improved after she left.
3.6. The complainant also stated that he has harassed by Ms C. He stated that she appeared physically uncomfortable around him and he gave a detailed description of the body language she would display when he was near her. He stated that he believed she had an issue with him because he was homosexual. He said that it was nothing she said or did but it was always 'a body language thing'. He stated that he was not aware until the hearing that Ms C had a homosexual son.
3.7. The complainant also referred to a conversation he had with Ms B after he returned from a holiday to New Zealand in September, 2009. He stated that she told him that there had been a conversation among members of staff, and members of the respondent's BOM, about him. He stated that this conversation related to his intention in the course of that holiday to stop over in South East Asia in order to adopt a child and that there was laughter at the idea that he would do so. He stated that if he had been a heterosexual man seeking to adopt a child in the same circumstances, there would not have been any such conversation.
3.8. The complainant stated that he raised his concerns about these matters in the course of a performance review meeting with the respondent which took place on 16th September, 2009. He stated that his complaint was dismissed out of hand at this meeting. In particular, he stated that Mr D, a BOM member who was present at this meeting, responded to the complainant's concerns by saying that he himself was short "and got slagged for it the whole time" and then said "Get over it". The complainant said that he realised from this conversation that he would not receive any support from the respondent.
3.9. The complainant stated that he was told at this meeting that the Board proposed to extend his probation period. He said that this was confirmed to him in writing on 22nd September, 2009. He said that it was highly significant that the letter he received from Ms C in that respect did not refer to the claim of harassment which he made at that meeting. He submitted that, as soon as he made that claim, his position became untenable and there was a noticeable change in the respondent's approach to him thereafter. He described what he meant by this. He also stated that he raised the issue of harassment in various board meetings, but gave a detailed account of the reasons why he did not include these discussions in the minutes for those meetings, which he wrote. In particular in this respect, he said that such HR issues would normally be dealt with at the end of meetings after the agenda business had concluded, and would not normally be included in the minutes.
3.10. The complainant stated that, in October 2009, an issue was raised with respect to the attendance he was recording on his timesheets. He gave a detailed account of his interaction with the respondent in that respect. In particular, he said that Ms C told him that if he was in at 8.30 he should put 9 on his timesheets and that he should not be building up time-in-lieu. He said that Ms C was saying that he wasn't in at 8.30 which he denied. He stated that she was accusing him of falsifying his timesheets in that context. He also stated that, also around this time, he had become involved in the purchase of a neighbouring building to allow for the extension of the centre, but after his probation review meeting, Mr D took over that piece of work and he was excluded from it. He acknowledged Mr D's expertise in dealing with the matters arising from this development, but said that that are ways and means of increasing his involvement other than 'freezing him out'.
3.11. The complainant submitted that, in the letter to him of 22nd September, 2009 already referred to, Ms C stated, that in light of the fact that an underlying infection had led to him taking sick leave, it would require a written report in relation to his illness, an update of same and its impact of his ability to carry out his duties. He submitted that this was a wholly disproportionate response to him having a minor flu-like virus and the respondent would not have responded in a similar manner to a heterosexual employee with a virus.
3.12. The complainant stated that, on 11th December, 2009, he had been told by a colleague, Ms E, that Ms B had asked her whether she would be interested in taking over his position and that Ms B had made a gesture of slitting her throat with respect to the complainant, indicating that he was "gone". He said that he was almost certain he said this to Ms C perhaps a week afterwards. He said that, also in December, a centre user told him that he was sorry he was leaving. Ms E, who was present at the hearing, also gave an account of this conversation and the circumstances surrounding it. She added that she had informed Ms C about this conversation sometime in January. She stated that Ms C's response was that Ms B was out of order in speaking to her like that but that no decision had been made and that it was a matter for the BOM.
3.13. Ms E also described the working atmosphere as being oppressive and gave particular examples of same. In particular, she referred to the language that was used in conversations between people who worked for Z Ltd. which, while not related to anyone's sexual orientation, she found objectionable.
3.14. The complainant also gave a detailed account of a number of other actions by the respondent which undermined him and which, he stated, were undertaken because of his harassment claim and/or because he was gay. In particular, he stated that he was excluded from board meetings he would normally have attended. He accepted that once the respondent obtained charitable status in October/November, 2008, he was required to step down from membership of the board because he was the manager of the centre, but he could still have been able to continue attending meetings.
3.15. In short, the complainant stated that the issues with his performance which arose after the meeting of 16th September were only raised because he had complained about being harassed and/or because he was gay. He said that this ultimately led to his dismissal. He stated that this took place at a further performance review meeting on 8th January, 2010. He stated that he was told at this meeting that his contract was not being renewed because his performance had not improved. He stated that timesheets were not raised at this meeting. He stated that, in an exit meeting following this, the Board members praised the high quality of his work but stated that his management of staff was lacking and wished him well in the future.
3.16. The complainant acknowledged that, at the 16th September review meeting, the respondent asked him to carry out certain actions. However, he stated that the majority of these were minor issues which related more to how the Board wanted the work done and changes in policy and procedures than any problems with his performance. He stated that he dealt with all these issues and gave a detailed account of the further improvements he made to the centre. He also gave an account of how Ms A was removed from the centre in that context (note: as she was employed by FAS she was not technically dismissed by the respondent and/or the complainant). He said that this was inevitable given her behaviour over the course of the time she was working in the centre. He stated that this was signed off by the BOM.
3.17. The complainant also referred to a report he wrote to the respondent in October, 2009, a copy of which was provided to the Tribunal, in which he referred to her treatment of him as already outlined. This report related to a conversation he had with Ms. F, who worked for Z Ltd. It included references to Ms A's treatment of him and, in particular, that Ms. A referred to the complainant's sexuality in a derogatory fashion. The complainant stated that this was a further example of the respondent being informed of his harassment claim.
3.18. The complainant stated that the descriptions by the respondent's own witnesses of his performance were not consistent with the description of a manager who deserved to be dismissed because of performance related issues. He agreed that he probably erred in requesting three weeks leave in August when he had only been there a few months, which was why he later reduced that request to two weeks. He gave a detailed account of his performance in that respect and stated that the performance review forms provided to the Tribunal were also not consistent with a poor performer.
3.19. The complainant also described difficulties he had working with Ms B. He gave a detailed account of his relationship with her, which was initially very active. He said that he distanced himself from her after time when he "copped on" to the fact that she did a lot of "talking about people" and gave an account of what he meant by this. In the context that Ms C stated that it was Ms B who informed her about the issues with the complainant's attendance (see par. 4.10 below), the complainant acknowledged that it was possible that Ms B was causing friction between himself and the BOM in that respect.
3.20. However, with respect to the allegation concerning the conversation about him adopting a baby (referred to at par. 3.7 above), the complainant stated that he did not consider at the time that Ms B might have been deliberately miscommunicating the conversation to him. He accepted, in hindsight, there was a possibility that she generally did miscommunicate conversations to him but did not think so with respect to this particular communication as the respondent could have explained this when he reported it to them in at the 16th September review meeting. Therefore, he believed that the conversation took place as described by Ms B and was related to his sexual orientation. He added that, either way, Ms B retold the story with the purpose of harassing him because of his sexual orientation. He stated that the retelling by Ms B was in itself an act of harassment on the sexual orientation ground in that context.
Evidence of Ms F
3.21. Ms. F gave detailed evidence to the Tribunal with respect to a number of conversations which she overheard while working for Z Ltd. She referred, in particular, to conversations she had with Ms B, who showed her certain photographs on her phone and made certain lewd comments about them. She also stated that she overheard Ms B and others talk about the complainant and refer to the fact that one "shouldn't bend down" in his presence. She stated that Ms B "slagged off" the complainant's sexuality. She stated that she reported these conversations to the complainant a couple of weeks before he was let go, though she did not know he was being let go at the time. She stated that the complainant was well liked and gave an account of his qualities as a Manager.
General Summary
3.22. The complainant submitted that he was harassed by the respondent on the ground of sexual orientation with respect to his treatment by Ms A and Ms C and the way that Ms C and other Board Members joked about the idea of him adopting a child. He stated that his dignity was violated in that context and described how he found this treatment to be humiliating, intimidating and degrading and how it "absolutely" created an offensive environment for him. He stated that no-one made any comment to him directly about his sexual orientation but also referred to a document provided to the Tribunal, which appears to have been written by Ms B. This document refers to the "bullying situation" with the complainant, that "Ms A was not alone in her very bad treatment of the complainant" and also referred to Ms A's "irrational and destructive behaviour" in that context.
3.23. The complainant stated that he first considered he was being harassed when Ms B informed him that Ms A said she hated him because he was gay. He said that he first considered he was being harassed by the BOM itself following its reaction to the complainant of harassment with respect to the comment about him adopting a child. He said that he was aware of the respondent's harassment policy as he had drafted it and that he followed the procedures laid out in that policy by reporting the matter to at the review meeting on 16th September, 2009.
3.24. With respect to the respondent's claim that, even if there was harassment, it was entitled to avail of the defence provided in Section 14A(2) of the Acts (see par. 4.20 below), the complainant pointed to Article 2 of the directive1 which says that there should be "no discrimination whatsoever". He said that the defence under s.14A(2) should be seen in that context. He said that a comprehensive harassment policy is only part of that defence and that what was in place did not appear to comply with the code of practice [i.e. the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 ( S.I. No. 78 of 2002)]. He said that the respondent had a particular responsibility to be vigilant against harassment as well and that the report provided to it by the complainant on 1st October (see par. 3.17 above) should have set off alarm bells. He added that the discrimination and/or harassment do not have to be conscious.
3.25. In short, the complainant submitted that he was harassed by the respondent. He denied that his performance was poor and/or that it was a factor in his dismissal. Indeed, he stated that the evidence of the respondent's own witnesses supported this and one witness in particular stated that he was well thought of and well respected and she did not have any issues with his performance in that context. He also submitted that he was dismissed because he was gay and because he had made a complaint of harassment. He submitted that he was discriminated against and victimised with respect to his dismissal in that context.
4. Summary of the Respondent's case
4.1. The respondent acknowledged a number of the achievements claimed by the complainant. However, it questioned a number of others and brought a number of witnesses to the hearings to give detailed evidence in this respect. In particular, it questioned the complainant's involvement with the newsletter. However, with respect to some of those, at least, it submitted that they were examples of the work that would be expected of him rather than being examples of him going above and beyond the call of duty. Indeed, it further submitted that the complainant refused to carry out tasks that were requested of him by the Board of the respondent and gave particular examples of these.
4.2. The respondent denied that there was a negative, petty or unprofessional atmosphere in the complainant's workplace. It stated that it was the complainant's job to manage that in any event. It stated, in particular, that it was not aware of any treatment of the complainant by Ms A prior to receipt by it of his report of her removal from the centre, which was presented to it in October, 2009 along with the report of Ms. F's conversations with Ms. A as described at par. 3.17 above. Ms C, who was present at the hearing, stated that Ms A had been removed from the centre at that stage and so there was no further action that could be taken with respect to the issues arising in that context. She gave an account of the discussions at the Board about this.
4.3. As regards the particular allegation that Ms C harassed the complainant by way of her demeanour towards him, the respondent stated that Ms C was a quiet natured, inoffensive and shy person. It stated that her demeanour reflected this and, if the complainant took offensive at it, this was unrelated to his sexual orientation. In that context, it stated that she had a gay son, and she herself gave evidence to the Tribunal in that context. She stated that she always thought she had a good working relationship with the complainant.
4.4. Prior to the hearing, the respondent submitted that it understood that a discussion took place in connection with the complainant adopting a child from New Zealand where he was on holiday. It submitted that this suggestion was laughed at as being utterly ridiculous and had no foundation in fact. However, the evidence at the hearing given by board members who were present when that conversation took place was that there was no hilarity involved.
4.5. Indeed, Ms C, who was one of those present, stated that she took the matter very seriously and sought advice as to what the complainant's adoptive leave entitlements would be in that case. The witnesses who were present at the hearings also stated that they would be surprised if the complainant had discussed these matters openly as he was a private person. One also said that Ms A, who was involved in this conversation, often said "fantastical things". They also stated that no-one mentioned South East Asia in the course of this conversation. They each gave detailed accounts of this conversation and their involvement in it.
4.6. The respondent stated that, both prior to the review meeting of 16th September, 2009, and after that meeting, it raised a number of issues with the complainant's performance. A number of the respondent's Board Members, including Ms C, gave their various and differing views as to the complainant's performance in that context. They acknowledged the positive aspects of those performances, but also gave evidence as to where they considered his performance did not meet the requirements of the job. One witness did state that she had no issues with his performance, but also outlined a number of issues which arose in the course of his employment and which were brought to her attention as a Board member.
4.7. As regards particular issues which arose prior to the meeting of 16th September, 2009, the respondent's witnesses also gave detailed accounts of the circumstances surrounding the issuing of the verbal warning to the complainant, which related primarily to issues surrounding sick leave and his attendance in that context. They said that they did not know if there was an appeals mechanism to the verbal warning. They also gave evidence to support the respondent's general submission that he was constantly late for work.
4.8. The respondent stated that it was in the context of these performance related issues that the complainant's performance review was arranged for 16th September, 2009. Ms C gave evidence with respect to this meeting, at which she was present. She stated that the BOM was a voluntary board that did not have sufficient expertise to act without advice in certain respects. In that context, she said that it had access to a support organisation whose advice she sought with respect to this meeting. She said that it advised her that the BOM had three choices: i) to confirm the complainant's position; ii) to terminate his contract or iii) extend his probation. She stated that the BOM had concerns about the complainant's ability to meet the requirements of the post, but wished to provide him with further time to satisfy those concerns. She stated that it was in that context that they opted for option iii).
4.9. Ms C stated that the meeting was positive in that context and the complainant undertook to improve his performance and, in particular, to address the issues raised by the respondent. She stated that she did not recall the complainant reporting any harassment to her at that meeting. In that context, she denied that Mr D said that he "was short, and got slagged for it". The respondent's witnesses in general also acknowledged that there was much that was positive in the performance review form it completed in September 2009 with respect to the complainant.
4.10. Indeed, Ms C stated that her only difficulty with the complainant was his timesheets and gave an account of the issues which arose in that respect. In particular, she stated that she had received texts from Ms B to state that the complainant was coming in later than he was stating on his attendance sheet. She acknowledged at the hearing that, in hindsight, it was possible that she was being misled by Ms B in that context, but accepted the information provided by Ms B as being accurate at the time. The respondents other witnesses also gave detailed accounts of their involvement with this issue.
4.11. The respondent stated that Mr D did get quite involved with the purchase and renovation of the adjoining premises because of his expertise in that particular area and because of his network of useful contacts. It stated that this had nothing to do with the complainant's sexual orientation or any claim of harassment, which it denied had been made at that stage in any event. It denied that it sought to exclude the complainant from any meetings about this. It stated that he attended all relevant board meetings to which the centre manager would normally be invited to attend.
4.12. The respondent also denied that its request for a report about the complainant's illness was related to his sexual orientation. It stated that it was entitled to know the health of any employee in order to plan for the future, particularly when there are issues with attendance for illness. With respect to the complainant, it submitted that he had stated to the Board that he had an underlying viral infection that might flare up from time to time and, in light of this assertion, it was reasonable to decide to have him objectively medically assessed to fulfill its obligations under Health and Safety both for the complainant's benefit and the benefit of his co-workers.
4.13. The respondent's witnesses, including Ms C, also gave an account of their communication with the complainant with respect to the removal of Ms A from the centre. They said that the report from the complainant about this was the only time in which any issues between Ms A and the complainant were raised, until the letter from Ms B referred to at par. 3.22 which was received after the complainant had been dismissed.
4.14. While, in its submissions to the Tribunal in advance of the hearing, the respondent denied that any conversation between Ms E and Ms B took place, Ms C stated at the hearing that this conversation did take place as referred to at par. 3.12 above. She stated that she was highly disgusted by this and apologised to Ms E that Ms B had said this to her. She explained that no decision had been made with respect to the complainant's position at that time (the conversation between Ms E and Ms B had taken place before Christmas). She confirmed that her conversation with Ms F took place in January and that she brought it to the attention of the Board in February, 2010.
4.15. Ms C stated that she thought the complainant was generally doing a good job both before and after the review meeting in September, 2009, but he did not do what the respondent asked him to do. In that respect, she stated that she had cause to write to him and request him to carry out certain tasks which the Board wished him to carry out, including some which it had already raised with him in the September review meeting.
4.16. The respondent stated that, by January 2010, it had given the complainant several months to improve his performance in that context. It stated that he had not done so to its satisfaction and, in particular, had not carried out a number of tasks requested of him by it. It stated that it had no option but to terminate his contract in that context. It stated that his sexual orientation was not a factor in this decision, nor was any claim of harassment, which it denied had been made up to that point in any event. Ms C stated that the complainant's timesheets were a factor in his dismissal but "there were other things as well", including, in part, his attitude towards service users. She gave an account of their meeting in January wherein he was notified of the termination of his employment which came into effect on 3rd February, 2012. She also gave an account of the circumstances surrounding her subsequent letter to him confirming the termination of his employment.
4.17. The respondent's witnesses gave an account of the updating of the staff handbook, both in terms of the complainant's involvement with same and the involvement of others in it. They also gave an account of the training that was provided to staff members in that respect and in relation to training with respect to harassment, in particular. The person who replaced the complainant when he was dismissed also gave evidence to the Tribunal with respect to the changes she made to the working of the centre, the performance of the staff and the nature of the job.
4.18. The respondent's witnesses also gave accounts of their interaction with Ms B and her involvement with the issues arising in this case. They called into question the reliability of the letter from Ms B which is referred to at par. 3.22 above, stating that this letter was written as part of a "vendetta" by Ms B to have another staff member removed. Nonetheless, they outlined the action they took on foot of the letter, including getting a mediator involved to address the matters arising.
4.19. The respondent stated that at no stage did the complainant report to it that he was being harassed by Ms A, Ms B, Ms C or any other member of its staff. It stated that it first became aware of the harassment only after the complainant had been dismissed. Each of the respondent's witnesses stated that they did not recollect any conversation about harassment at any board meeting, nor did they recollect any claim of harassment being made to them by the complainant in any other context. They reiterated that the behaviour of Ms A was only brought to their attention after she had been removed from the centre, by which time there was nothing that could be done about that behaviour, and was not harassment on the ground of sexual orientation in any event.
General Summary
4.20. The respondent and its witnesses acknowledged it had made errors in its management of the complainant and some of the other actions it took which are at issue in this complaint. It stated that it was a voluntary body inexperienced in some of the areas at issue in this complaint. It stated that it always acted in good faith in that context. It said that if there was a discriminatory ethos, the complainant would not have been given a second chance in his review in September, 2009. It stated that, even if I were to find there was harassment of the complainant, it was entitled to avail of the defence available to it under Section 14A(2) of the Acts as it had taken active preventative steps to prevent harassment in terms of its harassment policy. It stated that its requirement to be vigilant cannot be as high as a full-time commercial body in that respect. Furthermore, it said that it was not liable for any harassment of the complainant that was carried out by the employees of Z Ltd., including Ms B.
4.21. In short, the respondent denied that there was any harassment of the complainant, whether on account of his sexual orientation or otherwise. It stated that his dismissal was unrelated to his sexual orientation and was entirely due to performance-related issues. In particular in that respect, it submitted that he was dismissed on the grounds that the trust between him and board members was entirely undermined by the production by him of two separate time sheets showing two separate accounts of his attendance at work.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant(s) to establish, in the first instance, facts upon which he/she/they can rely in asserting that he/she/they suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.' 2
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds..." Section 6(2)(d) of the Acts defines the discriminatory ground of sexual orientation as follows - "as between any two persons ..... that they are of different sexual orientation.." Section 14A of the Acts defines harassment as being "any form of unwanted conduct on any of the..grounds...which has the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 74(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to..(a) a complaint of discrimination made by an employee to the employer.."
5.3. The issues for me to decide in this case, then, are whether (i) the complainant was harassed by the respondent and/or its employee(s); (ii) whether he was discriminated against by the respondent with respect to his dismissal; (iii) whether he was victimised by the respondent with respect to this dismissal. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation. Indeed, with respect to this case it should be stated that a considerable volume of evidence, both oral and written, was presented to the Tribunal by the parties with respect to this complaint to the extent that four hearings were necessary to allow the parties present this evidence. In issuing this decision, I have considered all this evidence carefully and in great detail.
Claim of Harassment
5.4. The Labour Court in the case of Nail Zone Ltd and A Worker3 defined the law in relation to harassment as follows: "The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts."
5.5. There were a number of serious disputes about the key facts at issue in this complaint. In so far as it is necessary to make a determination as to whose evidence I prefer with respect to those disputes in that respect, let me clearly state that I prefer the evidence of the respondent and its witnesses in every respect.
5.6. In that context, I am not satisfied that the complainant considered that he had been harassed by Ms C at any time during his employment with the respondent. In any event, I am satisfied that the demeanour of Ms C which he took issue with was not reserved for him alone. In that regard, I accept the respondent's submission that it was a manifestation of her personality and that she generally approached people in the same manner. It cannot be considered to be harassment on the ground of sexual orientation in that context. Furthermore, I am satisfied that Ms C was fully accepting of a gay son and would not be someone who would have a difficulty with someone else being gay in that context.
5.7. Nor am I satisfied that the complainant was harassed by Ms A on the ground of sexual orientation in the context of this complaint. In particular in this respect, I am not satisfied that Ms A ever made any specific comment about the complainant's sexual orientation. In short, as I am not satisfied that she ever made reference to his sexual orientation, she cannot have harassed him on that ground.
5.8. I now turn to the question of whether the complainant was harassed with respect to a conversation that took place about the complainant adopting a baby. It is clear that the account of this conversation that Ms. B relayed to the complainant was not entirely accurate. It is clear, in fact, that the conversation in question, as submitted by the respondent, was based on the misunderstanding that the complainant was looking to adopt a baby from New Zealand. The participants in the conversation were naturally sceptical about that possibility, not because of who was seeking to adopt a baby but where they were seeking to adopt a baby from.
5.9. In short, the scepticism displayed in this conversation was focussed on the proposition that a couple - any couple - would go on a holiday to New Zealand and, without having had any contact with the relevant authorities there, come back two weeks later with an adopted baby. It was unrelated to the complainant's sexual orientation in that context. Furthermore, and while the respondent's own evidence contradicted itself on this point, I am satisfied that Ms C took the matter very seriously indeed and that there was no hilarity on her part at least. Indeed, she sought to clarify the complainant's adopted leave entitlements in that context.
5.10. The question remains as to whether the complainant was harassed by Ms B in so far as her account of that conversation left the complainant with the impression, albeit inaccurate, that the conversation related to his sexual orientation, in that the 'joke' was that a gay man could not be expected to adopt a child from New Zealand. When I asked the complainant did he consider himself to be harassed by Ms B's retelling of the story, he said that he did not. Indeed, he stated that it was only when the members of the board who he met with on 16th September refused to engage in conversation with him about the matter that he felt he was being harassed. However, I prefer the evidence of the respondent that the matter was never raised at either that performance review meeting or the one that took place in January, 2009. I am also satisfied that it was never raised by the complainant at any board meeting.
5.11. In particular in this respect, I note that the complainant was not able to provide any reliable documentary evidence that clearly showed he reported any of the incidents of alleged harassment to the respondent. The letter written by Ms B (see par. 3.22 above) which referred to the poor treatment of the complainant is of limited weight given that she was not present at the hearing. In any event, I am not satisfied that it is an accurate record of what took place in the complainant's workplace.
5.12. The complainant did refer to Ms A's treatment of him in a report he wrote to the respondent in October, 2009 and reference was made in that report to comments being made by Ms A about the complainant's sexual orientation. However, it was clear that Ms A was no longer working for the respondent by the time the report was written. Furthermore, the complainant did not indicate in that report that he considered that he had been harassed on the ground of sexual orientation, nor was there anything in that report that would lead a reasonable person to draw any inference that he had been. In that context, I do not consider that it can be said that he notified the respondent he had been harassed on the ground of sexual orientation in that report.
5.13. Therefore, I am not satisfied that the complainant had indicated to the respondent that he considered he had been harassed on the ground of sexual orientation prior to being dismissed by the respondent. This is critical for a number of reasons. In the first instance, it calls into question the veracity of the complainant's evidence as a whole. Furthermore, he wrote the respondent's policies in this respect, or at least he revised them. In that context, he was clearly well aware of those policies and of the principles of harassment in general. That being the case, I find it difficult to believe he would not have availed of the respondent's harassment policies had he felt harassed. Indeed, it was crystal clear that he was well capable of taking any action he considered necessary to alleviate any source of stress in the workplace, in particular with respect to the manner in which he managed the departure from the centre of Ms A.
5.14. The respondent had an effective harassment policy and the complainant did not avail of that policy in the context of this complaint. This fact leads me to believe that, even if I were to accept that the complainant was harassed by the respondent, the respondent would be entitled to avail of the defence available to it under Section 14A(2) of the Acts. This defence to a claim of harassment may be invoked by a respondent where it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects. I am satisfied that, in all the circumstances of the present case, the existence of the robust and effective harassment policy in question meets the requirements of the Acts in the context of Section 14A(2).
5.15. The complainant submitted that I should interpret Section 14A(2) narrowly in light of the purpose of the Directive, which is to prevent any discrimination whatsoever. He may rest assured that I am conscious of my obligation to do so. In that context, only a robust harassment policy that meets the requirements of the Acts is sufficient to avail of the defence available under Section 14A(2). At the very least, such a policy must meet the criteria set by the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (S.I. No. 78 of 2002). I am satisfied that the complainant was successful in developing a policy that met those criteria. As regards the question of the respondent being vigilant towards any and all harassment, I am satisfied that it did so by delegating the responsibility for monitoring same to the complainant, who clearly had significant expertise in the area.
5.16. I also note the testimony of Ms F with respect to Ms B's allegedly lewd behaviour (see par. 3.21 above). In particular, Ms. F alleged that Ms. B made comments about the complainant's sexual orientation. Those comments would clearly have been a serious case of harassment had they been said directly to the complainant, or even if they had been reported to him before he left the respondent's employment. However, while Ms F stated that she did report those comments back to him before then, I am not satisfied that she did. In all the circumstances of the present case, and even if I were to take the widest interpretation of my jurisdiction with respect to the Acts, I am not satisfied that I have jurisdiction to consider an act of harassment of which the complainant did not even become aware until after he left the respondent's employment.
5.17. In short, then, I am not satisfied that the complainant was harassed by the respondent on the ground of sexual orientation. Even if he was, his failure to avail of the respondent's robust and effective harassment policy, written and/or revised by himself, allows the respondent to avail of the defence to the complainant's claim that is available to it under Section 14A(2) of the Acts.
Discriminatory Dismissal
5.18. Most of the evidence presented to the Tribunal in this case related to the complainant's performance. The complainant listed his achievements and denied that there were any issues with his performance, or that any major performance issues were reported to him prior to his dismissal. In contrast, the respondent submitted that the complainant was dismissed because of performance related issues. In particular, it submitted that it dismissed him because he was falsifying his time sheets. It is clear that this view was based on inaccurate information supplied to it by Ms B in that respect. There can be little doubt, particularly in that context, that there is a question as to whether his performance justified his dismissal by the respondent.
5.19. However, it is not for me to make a determination as to whether the Board was justified in dismissing the complainant unless it can be shown that his sexual orientation was more than a trivial factor in that decision and/or that he was dismissed because he had claimed he was being harassed in the workplace.
5.20. I am satisfied that the respondent's BOM believed Ms B when she informed it that the complainant was falsifying his attendance records. Unfortunately for the complainant, her intervention was critical but not discriminatory. Having said this, it should also be noted that the issues surrounding the complainant's attendance were not the only issues the respondent had with his performance. It is clear that, rightly or wrongly, it considered that he did not meet the requirements of the job. I am satisfied that, rightly or wrongly, this was the one and only reason why he was dismissed and his sexual orientation was not a factor in this decision. He has failed to establish a prima facie case of discrimination in that context.
Victimisatory Dismissal
5.21. As I am satisfied that the complainant did not make a claim of harassment before he was informed of his dismissal, and had not undertaken any other protected act at that point, he cannot succeed with a claim of victimisation with respect to his dismissal.
6. Decision
6.1. 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:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent harassed him on the sexual orientation ground pursuant to section 6(2)(g) of the Acts and contrary to s.14A of the Acts
6.3. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against him on the sexual orientation ground pursuant to section 6(2)(g) of the Acts, in terms of his dismissal, contrary to s.8(6)(c) of the Acts.
6.4. I find that the complainant has failed to establish a prima facie case that the respondent victimised him in terms of Section 74(2) of the Acts.
6.5. Consequently, the complainant's case fails.
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Gary O'Doherty
Equality Officer
20th December, 2012
1 Council Directive 2000/78/EC
2 EE5/1986 Gibney v Dublin Corporation
3 EDA 1023