EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012 - 190
PARTIES
An Employee
(represented by Paul Twomey, B.L.,
instructed by Kate McMahon & Associates, solicitors)
and
A Credit Union
(represented by Peninsula Services (Ireland) Ltd.)
File Reference: EE/2010/183
Date of Issue: 20th December, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(d), sexual orientation ground -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 conditions of employment, contrary to Sections 14A and 8(1)(b) 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 13th September, 2012, 11th October, 2012 and 2nd November, 2012.
3. Summary of the Complainant's case
Jurisdictional Issues
3.1. With respect to time limits, the complainant submitted that the date of the last incident was 18th January 2010, the meeting referred to at par. 3.16 below. He stated that his complaints were a series of linked events culminating in that meeting. Alternatively, he was submitting that if the Tribunal were to consider the last date of discrimination to be prior to this, then exceptional circumstances prevail which prevented him from referring the complainant within six months of that act. He gave an account of same.
3.2. The complainant also accepted that recent Labour Court decisions1 meant that he can only rely on alleged acts of discrimination which occurred before the presentation of his claim to the Equality Tribunal. However, he submitted that any other matters could still be considered as being of evidentiary value.
Substantive Matters
3.3. The complainant stated that he started working for the respondent on 13th April, 2008. Mr. A, who was, for a time, both a member of the respondent's Board of Management (BOM) and its Treasurer, and who gave evidence to the Tribunal, stated that the complainant was initially only hired by him on a temporary basis. He gave an account of the circumstances surrounding the hiring of the complainant in that context. He also stated that the BOM made the complainant permanent without his knowledge or consent. The complainant gave a detailed account of the work he did for the respondent as an Office Administrator, referring to a job description which Mr. A completed with respect to his employment and which, he stated, was provided to the BOM.
3.4. The complainant submitted that the respondent discriminated against him on the sexual orientation ground with respect to conditions of employment and harassment and that it victimised him. He set out the circumstances of this discrimination/victimisation in a series of submissions to the Tribunal in advance of the hearing. He elaborated on these submissions at the hearing. I will now proceed to summarise his evidence, and the evidence of Mr. A and his other witnesses, including the complainant's father, in the context of each of these submissions in turn.
3.5. The following complaints were first made in his complaint form, received in the Tribunal on 15th March, 2010:
3.6. The complainant submitted that, in July/August 2008, a named colleague told him that the only reason why he had been employed by the respondent was because his family had a long associate with the respondent and that his father was then a member of the Board. He stated that other colleagues later said the same thing to him. In a later submission, he referred to his association with Mr. A, who he stated was resented by the rest of the BOM and certain members of staff, and submitted that this association was also part of the reason for his general treatment by the respondent. He gave a detailed and extensive account of this at the hearing, and referred to a number of incidents which, he stated, showed this to be the case.
3.7. The complainant stated that these comments made the atmosphere unwelcoming for him. He stated that they were reflective of a general attitude among his colleagues that the only reason he obtained the job was because of his family connections and/or because of his association with Mr. A. Nonetheless, he stated that the principal reason for his treatment was his sexual orientation. In particular in that respect, he referred to certain other members of staff who were also associated with Mr. A but whose treatment was radically different to his own. He submitted that this difference in treatment was because he was gay and they were not. He elaborated upon this submission in detail at the hearing. He also stated, with respect to many of the other allegations that follow, that his association with Mr. A was a factor in this treatment.
3.8. The complainant submitted that another colleague, Ms. B, who became the Assistant Manager of the respondent, made it "abundantly clear" that she resented his presence in the office. He gave a detailed account of how she did so. In particular, he submitted that she told staff that they were not to ask him for help with IT issues even though he was the designated IT contact for such queries. He submitted that this treatment of him by Ms. B was designed to undermine and humiliate him because of his sexual orientation. He gave a detailed account of this submission at the hearing, stating, in particular that she made comments about his "camp" accent.
3.9. The complainant submitted that, on 16th September, 2009, his manager, Ms. C, who became the Manager of the respondent, told him that he was to be trained on the cash desk. He submitted that, after some time, and on direct questioning from him, she conceded that the Human Resources Committee (HRC) of the Board of Management (BOM) of the respondent felt there was not enough work for him as Office Administrator and that he was to be trained on the cash desk with a view to working in the cash office on a permanent basis. He gave a detailed account of this submission at the hearing. He denied "barricading" himself into his office and gave his own account of what actually occurred on the day in question.
3.10. The complainant submitted that asking him to work on the cash desk was an effective demotion for him by the respondent at a time when he was extremely busy in his role as Office Administrator. He stated that he had worked his lunch hours and had worked at home several evenings per week. He accepted that other Managers were trained on the cash desk for emergencies and when things were very busy. He accepted the necessity for this but did not accept that this was the intention of the respondent in asking him to be trained on cash desk duties. He was adamant in stating that the respondent intended on placing him there on a permanent basis. Mr. A also gave evidence in this respect and stated that he had given specific instructions that the complainant not be placed on cash.
3.11. The complainant submitted that, in August, 2008, he overheard conversations between board members of the respondent in which one of those board members, Mr. D, made the following comment: "and what's with (the complainant), is he gay?" He submitted that laughter followed this comment and Mr. D then said: "I had better not be left alone in a room with him; I hope it's not contagious." He gave a detailed account of this submission at the hearing, stating, in particular, that he was so upset upon hearing this that he went to the toilet to compose himself. He stated that he considered making a complaint about this at the time but chose not to do so as he was afraid of losing his job if he did.
3.12. The complainant submitted that Mr. A told him that on more than one occasion Mr. E referred to him in the presence of female staff members as "queer". Mr. A gave a detailed account of this submission at the hearing and outlined the circumstances surrounding him overhearing this comment. He said that what Mr. E said was a follow-up to an earlier remark, which he did not hear. He said that the remark he did hear was "he's one of them, a queer, like." He added that there was a "non-pc" attitude in general in the workplace.
3.13. The complainant submitted that he was absent from sick leave from the 16th October, 2009 to 23rd October, 2009, and from 27th October, 2009 to 2nd November, 2009. He submitted that this leave was certified and copies of these certificates were supplied to the respondent. He submitted that, notwithstanding this, Ms. C sent him a letter dated 30th October, 2009. He submitted that this was couriered out to his home. He submitted that the letter alleged that he had been on unauthorised absence from work and that the respondent had no contact from him when, in fact, his sister had telephoned the office to that effect on 27th October. He said that she told the respondent that he was unwell and would not be able to return to work until the 2nd November and that a doctor's certificate would follow.
3.14. The complainant gave a detailed account with respect to this submission at the hearing, stating, in particular, that this left him feeling constantly on edge at work and feeling physically sick in that context. He stated that Ms C's approach to this matter was completely inappropriate and highly threatening. He said that a phone call to him would have "sorted it out". He submitted that the excessive nature of this letter was a further attempt to undermine and harass him and was motivated by his sexual orientation in that respect.
3.15. The complainant submitted that he attended a meeting on the 18th January, 2010 with Mr. F and Mr. G which he understood was to consider the complaint made by him of the bullying and harassment which he was suffering. He stated that he had first made this complaint verbally to Ms. C whereupon she asked him to put the complaint in writing, which he ultimately did on 8th January, 2010. A copy of the letter he wrote in this respect was provided to the Tribunal.
3.16. The complainant gave an account of the meeting of 18th January. He stated that Mr. F and Mr. G did not deal with his complaint at that meeting. Instead, he said that they alleged that he had misappropriated a laptop from the respondent. He described the behaviour of Mr. F at this meeting, which included thumping the table and threatening legal action against him. He stated that Mr. G was quite uncomfortable with this behaviour. He submitted that this behaviour was a further example of harassment and he made a complaint about it in writing afterwards.
3.17. The complainant further submitted that the laptop was not the property of the respondent and was given to him by Mr. A in lieu of a salary increase/bonus. At the hearing, he elaborated upon the circumstances surrounding the provision of the laptop to him and gave an account of his communication with the respondent about the matter, both in terms of explaining to it that the laptop was his and in terms of leaving the laptop into the office when requested. He stated, in particular, that he contacted the Irish League of Credit Unions who told him that there was no reason to return the laptop given that it was provided to him in lieu of a pay increase. Mr. A also gave evidence as to the background to the provision of the laptop to the complainant.
3.18. The following additional allegations were first made in a submission to the Tribunal on 19th August, 2010:
3.19. The complainant submitted that, despite making formal complaints on 8th January, 2010, 14th January, 2010 and 18th January, 2010, to date no investigation has taken place into his complaints. He further submitted that the respondent wrote to him on 19th January, 2010 informing him that the Human Resources Committee (HRC) of the BOM could not find sufficient grounds to substantiate his grievance despite the fact that no meeting had been held and the detailed letter he sent on 8th January, 2010 was four pages long. He outlined correspondence between the respondent and the complainant (through his solicitor) after this.
3.20. The complainant submitted that he found this attitude distressing and that it has compounded the manner in which he has been treated. He clarified at the hearing that a meeting took place in April 2012 but only after he had made a claim of constructive dismissal to the Employment Appeals Tribunal. The complainant also refuted the respondent's suggestion that the only reason why an investigation had not been carried out was because he did not make himself available for one. He elaborated upon his submissions in this respect at the hearing, stating, in particular, that he had never been contacted by the respondent after he made his complaint to the Tribunal.
3.21. The complainant submitted that, despite making a Freedom of Information request to the respondent, it has failed to provide him with copies of BOM minutes which refer to him. He submitted that the only minutes he had received, prior to the first Tribunal hearing, were given to him by Mr. A. He went into considerable detail with respect to these minutes at the hearing. In that respect, he submitted that suspending the complainant without pay and redundancy of his position were discussed in at least two of these board meetings despite the fact that there were no specific allegations made against him.
3.22. In particular, the complainant submitted that at a BOM meeting on 20th October, 2009, the Board, and in particular Mr. E, wanted to make him "redundant" upon his return from sick leave. He pointed to the following statement in the minutes: "After an open discussion on the matter whereby various board members expressed their concerns and disgust with the behaviour of (the complainant) towards the management and board the following proposal (to make (the complainant) redundant) was put to the Board that a commercial decision is taken to make the position of administrator redundant". He essentially submitted that the minutes available provided clear evidence that the manner in which he was treated by the respondent was discriminatory. He further submitted that they were also examples of victimisation.
3.23. The following additional allegations were first made in a submission to the Tribunal on 29th November, 2010:
3.24. The complainant submitted that he was never provided with terms and conditions of employment by the respondent. He stated that he was eventually furnished with a contract of employment after he made his claim to the Tribunal but stated that this contract related to someone else. He denied being aware of the contents of the respondent's contracts of employment, in general. He stated that he was going to be involved in an exercise to review the contracts of employment of the respondent's staff, but that this exercise never took place and he actually never got to look through those contracts.
3.25. Mr. A also gave evidence with respect to this issue, stating, in particular, that he had intended on reorganising the HR function and had asked the complainant to be involved in this, but the project was not completed before he was removed as Treasurer. He added that this was also being done because the complainant was doing a HR course. He added that he understood the complainant had seen some contracts of employment.
3.26. The complainant also submitted that he received a letter from Mr. E asking him to attend a meeting on 19th October, 2009 and asking him to "set out in writing (his) understanding of the following with regard to (his) position: Reporting Authority, Main purpose of job and Specific Duties - In Bullet Point". He submitted that this was humiliating in the context that the board were well aware of what he did, in particular as they had seen the job description provided to him by Mr. A (referred to at par. 3.3 above). He submitted that this was a further example of his discriminatory treatment by the respondent and elaborated upon these submissions in detail at the hearing.
3.27. The complainant submitted that he was asked to attend for a medical appointment on 5th January, 2010. He gave an account of this appointment stating, in particular, that he was not told in advance that this appointment was with a Forensic Psychiatrist. He stated that he understood that the doctor concerned was a G.P. He submitted that sending him to a psychiatrist was excessive and was a further example of intimidating treatment of him by the respondent. He also took issue with the report of the Psychiatrist concerned, stating that no request was made for his medical notes and yet on the basis of one consultation he was stated "not to be able to deal with increased levels of stress at times of change due to his history of obsessive compulsive disorder."
3.28. The following additional allegations were first made in a submission to the Tribunal on 3rd August, 2012:
3.29. The complainant submitted that Ms. C referred to him constantly as "one of the girls". He stated that another member of staff told him that she overheard board members talking about him in a very demeaning and discriminatory manner. He submitted that certain other named colleagues made derogatory comments about his attire and his manner. He submitted that another named colleague often referred to his sexuality and expressed a keen interest towards his sex life. He stated, in particular, that she often made comments like "do you like taking it up the back passage". He elaborated upon these submissions in detail at the hearing.
3.30. The complainant stated that he did not report these matters to the respondent and explained why this was the case. He stated that the e-mails between himself and one of these colleagues in which he called himself a lady was taken out of context. Mr. A also gave evidence with respect to an occasion when he heard the complainant being referred to as "one of the girls".
3.31. The following additional allegation was first made in a submission to the Tribunal on 10th September, 2012:
3.32. The complainant submitted that he was aware from early on in his employment that there were unfounded and hurtful rumours being circulated in relation to a homosexual relationship between him and the treasurer, Mr. A. He stated that he did not make a complaint about these rumours at the time in order to protect his employment and not to "fan the flames". He stated that he only became fully aware of these rumours when he went on long-term sick leave.
3.33. Mr. A also gave evidence in this respect. He stated, inter alia, that the remarks in question were 'odd' and "little half-jokes". He said that he was not concerned about them as they were "water off a duck's back". He said that there was an unprofessional and flippant attitude in the workplace and that he had nowhere to report these matters to. He stated that the complainant's father asked him specifically whether he was in a homosexual relationship with the complainant. The complainant's father also gave an account of this meeting to the Tribunal, and gave an account of the circumstances surrounding him having this meeting with Mr. A. He gave an account of the effect of these rumours on the complainant.
3.34. Mr. A also stated that he attended numerous Board Meetings at which the dislike and resentment for the complainant was made abundantly clear and gave an account of what he meant by this.
3.35. The complainant stated that he waited a year to complain about all the matters raised in this complaint because he was afraid of losing his job. He submitted that he first began to feel anxiety and stress in relation to his employment in or around 17th September, 2009 and was subsequently absent from work with work-related stress from 17th September, 2009 to 9th October, 2009. He submitted that, over time, he began to feel isolated, humiliated and self-conscious. He stated that he lodged the complaint only when the bullying became intolerable. He said that he did not previously raise the matters referred to in his later submissions to the Tribunal because he did not think that there was a need to divulge everything he experienced. He stated that, even if he was aware of the Contract of Employment, the procedures included in it were not followed.
3.36. In general, the complainant stated that even Mr. D accepted that he (the complainant) was treated unfavourably and accepted there were rumours about the complainant and Mr. A. He said that Mr. A had given evidence of a homophobic working atmosphere. He said that the respondent's evidence was "laughably" inconsistent but it was patently clear that it wanted to make him redundant and he was singled out for demotion in the context of being sent back to working on the cash desk. He also summarised the other allegations outlined above in that context.
3.37. The complainant submitted that it did not matter whether remarks about his sexual orientation were made every day or every minute or every day. He submitted that once they were made at all, that is sufficient to establish a prima facie case of harassment and/or discrimination in all the circumstances of the present complaint. In short, he submitted that he was harassed by the respondent, discriminated against with respect to conditions of employment and victimised.
4. Summary of the Respondent's case
Jurisdictional Issues
4.1. The respondent submitted that the complainant's case was out of time as his entire case depended on remarks which were alleged to have been made by Mr. D and Mr. E in 2008, which was more than 12 months before his claim was made to the Tribunal.
4.2. The respondent also submitted that recent Labour Court decisions2 meant that the respondent could not rely on any claims made after his original claim to the Tribunal.
Substantive Issues
4.3. The respondent submitted that all its vacant positions are required to be advertised both internally and externally. However, it submitted that the complainant's role was never advertised and he was hired directly by Mr. A in an informal manner. Furthermore, Ms. C, who gave evidence to the hearing, stated that when the BOM asked her what the complainant did, she told them that she did not know. She described the job description provided to the complainant as being a job description that included some work she did as Manager of the Credit Union and some work that was done at BOM level. She stated that she never saw this job description while the complainant worked for the respondent and denied that he did most of the work that was detailed in that description, although she accepted that he did some of the work detailed in it, to a greater or lesser extent.
4.4. The respondent refuted that the complainant was "extremely busy in his role as office administrator, worked his lunch hours and worked at home several evenings per week". It submitted that, in fact, after Mr. A's departure on 21st July, 2009, the complainant was left in limbo as he did not have any clear job function and he was idle for large parts of the working day. The respondent essentially submitted that the complainant was made permanent only because he had been working there for a year by the time Mr. A was removed from office and denied that the complainant was made permanent by the BOM in that context.
4.5. The respondent denied all the allegations being made against it by the complainant. In particular, it denied that it treated him in an adverse manner in general in that respect or that it treated him in adverse manner, in particular, because of his association with Mr. A or because of his sexual orientation. It accepted that there was a dispute within the organisation but stated that Mr. A was central to the dispute. It brought a number of witnesses to the hearing, who, inter alia, gave detailed evidence as to the nature of the aforementioned dispute and how it impacted on the respondent as a whole.
4.6. In particular, a number of the respondent's witnesses gave detailed evidence with respect to Mr. A's approach and submitted that he was removed as Treasurer because of this approach which it described as being akin to a dictator. However, the respondent stated that neither the complainant nor any other employee who worked for it was treated in an adverse manner as a consequence of Mr. A's removal from his post. Furthermore, it denied that any member of staff, including the complainant, was "associated" with Mr. A. In any event, it denied that any of the members of staff to whom the complainant referred in that respect (see par. 3.7 above) were treated any differently to the complainant, either because of his sexual orientation or otherwise.
4.7. All of the respondent's witnesses denied that there was a homophobic atmosphere in the office. They all denied either making any comments about the complainant's sexual orientation, or hearing any comments made about same. They also denied that they ever heard any of the particular allegations being made against the respondent until they were told about them in the context of the complaint being made to the Tribunal. They all also denied ever saying to the complainant that the only reason why he had been employed by the respondent was because his family had a long associate with the respondent and that his father was then a member of the Board and/or that he only got the job because of his association with Mr. A.
4.8. The respondent's witnesses also gave evidence denying that they made derogatory comments about the complainant's attire or that they made any comments about his sexual orientation, whether overt or not. Ms. C denied that she referred to the complainant as "one of the girls". She gave an account of their working relationship in general in that context and denied that she was ever influenced by his sexual orientation in her treatment of him. Most of the respondent's witnesses also denied hearing any rumours about a sexual relationship between the complainant and Mr. A. However, Mr. E stated that he heard that people thought that the complainant was in a relationship with Mr. A.
4.9. Ms. B stated that she became Assistant Manager in November 2008. She denied treating the complainant in an adverse manner, either before or after becoming Assistant Manager, and denied the particular allegations being made against her. She stated, however, that the complainant was never an IT contact point, although she stated that she never instructed anyone to refuse to speak to him about IT issues, or anything else for that matter.
4.10. Ms. C refuted the complainant's account of what took place on 16th September, 2009. She gave her own detailed account of what took place that day. In particular, she stated that she asked the complainant if he would train up on the cash desk in order to be able to do so in an emergency or for cover purposes. She stated that all managers, including herself, were trained in the cash desk for those reasons. She stated that he initially agreed to this, but when he did not go to the cash desk, she had to ask him again to do so. She said that he subsequently "barricaded" himself into his office and refused to speak to her. She stated that she eventually got a member of the board of Directors to approach him and persuade him to come out. Mr. E also gave evidence with respect to what occurred in that respect.
4.11. The respondent denied that it sought to demote the complainant in the context that it asked him to train in working behind the cash desk in order to provide cover and/or in case of emergencies. It pointed to the fact that the complainant himself accepted that other Managers were trained on the cash desk for emergencies and when things were very busy. It denied that it sought to move him to cash on a permanent basis.
4.12. Both Mr. D and Mr. E denied making any comment about the complainant's sexual orientation and stated that they had no difficulty with someone being gay. Mr. D stated that he had a number of gay friends and gave a detailed description of his interactions with gay people as evidence that he would never make such a comment. Mr. E also outlined the reasons why he would never make a comment about anyone's sexual orientation.
4.13. Ms. C stated that she had received medical certificates from the complainant with respect to his absence from 16th October, 2009 to 23rd October, 2009, but not thereafter. Ms. B stated that the complainant's sister probably spoke to her at the time but could not recall. Ms. C gave a detailed account of the reasons why she sent the letter to the complainant on 30th October, 2009. In particular in that respect, she stated that she had not received medical certificates and was not aware of the reasons for his absence. She said that the letter was a standard letter in the context that it was provided to her by the respondent's representatives, who also advise on HR matters. She denied that the tone of the letter was excessive or that it was harassment.
4.14. The respondent denied that either Mr. F or Mr. G harassed the complainant at the meeting on the 18th January, 2010. Mr. G gave an account of that meeting in that context. He stated that Mr. F was strong in his wording but stated that this was his manner with everyone and he just "laid it on the line". He stated that the meeting broke down because the complainant felt he was being victimised. Mr. E also said that Mr. F had an aggressive voice but was a gentle man with a great understanding of HR. Mr. F is now deceased.
4.15. The respondent denied that the complainant was given a laptop in lieu of a salary bonus or, indeed, that it would ever give anyone a laptop in lieu of a pay increase. Ms. C confirmed that the complainant did have a laptop and that the BOM had considered replacing it as well as her own laptop in the context that they were older laptops. However, she stated that it was a work laptop and was not a personal one.
4.16. The respondent gave an account of the reasons why it sought return of the laptop. In particular, it submitted that it had been advised by the Financial Regulator to seek return of the laptop from the complainant and provided documentary evidence to the Tribunal to support its submission in this respect. Its witnesses gave detailed evidence with respect to the efforts it said it made to recover the laptop. In particular, they stated that a meeting took place between the complainant, Ms. C and Mr. G about this matter on 5th November, 2009. The respondent stated that it was unheard of for a laptop to be given in lieu of a bonus. The respondent said the complainant did bring the laptop back to the office, but only for one day.
4.17. The respondent submitted that it attempted to carry out an investigation into the complainant's complaints, both the claim of harassment and the other claims raised in his letter to it of 8th January, 2010, and his particular complaint about the behaviour of Mr. F at the meeting of 18th January, 2010. It referred to documentary evidence of meetings on 5th November and 20th November wherein the complainant was requested to put the complaints in writing, which he did on 8th January, 2010. Its witnesses gave detailed evidence as to why it was unable to carry out that investigation, stating, in particular, that he did not cooperate with that investigation. It stated that an internal investigation meeting was held on 21st January. These witnesses also gave accounts of the reasons for the correspondence between them and the complainant (through his solicitor) after January, 2010. They confirmed a meeting took place in April 2012 and gave detailed accounts of the circumstances surrounding the arranging of that meeting and the meeting itself.
4.18. Mr. D accepted that there should have been a hearing before dismissing the complainant's complaints. Ms. C also accepted that the procedures for dealing with the complaints in place at the time were not adequate. However, she said that every time she received a letter she had to go back looking for more information. Mr. E accepted that it was not acceptable that the complainant was not invited to be interviewed about this grievance. He accepted that it was incorrect that no dates, times and places had been given.
4.19. The respondent also stated, however, that the complainant's complaints could not be dealt with while he was on long-term sick leave. Mr. E stated that he was involved in the investigation throughout. He accepted that his comment that "if it is found that the allegations (are) unfounded we may have to consider what next course of action to take" was prejudging the outcome and, in hindsight, was probably not appropriate. This comment was made in a letter to the complainant on 1st February, 2010,
4.20. The respondent outlined the reasons why BOM minutes were not provided to the complainant prior to the Tribunal hearing. Its witnesses gave detailed evidence with respect to the contents of those minutes. They denied that any of the references in those minutes to the complainant were discriminatory. They also gave detailed accounts of the references to making him and/or his position redundant as referred to at par. 3.22 above. They denied that their consideration of this matter was discriminatory in that context. They stated that the references to his behaviour in that context related to his behaviour, described by Ms. C, when he was asked to work at the cash desk.
4.21. The respondent accepted that the complainant was not provided with a contract of employment until after he had made his claim to the Tribunal and accepted that the contract ultimately provided to him related to someone else. However, it submitted that the complainant was aware of his terms and conditions as he had access to other people's contracts of employment. Particularly in that respect, it submitted that he carried out a project for Mr. A, while working for him, wherein he went through all staff contracts with a view to establishing exactly what everybody's duties and roles were. It further submitted that the complainant was well aware of the respondent's grievance procedure and knew how to go about making a complaint in that context. It said it did not have a harassment policy at the time, and harassment complaints were dealt with through its grievance procedure. It added that other employees had not been given contracts of employment.
4.22. The respondent outlined the background to the request from Mr. E to the complainant requesting him to attend a meeting on 19th October, 2009 to "set out in writing (his) understanding of the following with regard to (his) position: Reporting Authority, Main purpose of job and Specific Duties - In Bullet Point". Mr. E stated that, when he took over from Mr. A, he found out that four people did not have contracts of employment. He stated that similar meetings were arranged for the other employees concerned and were steps in the process of regularising their employment situations. He stated that he could not understand why the complainant would be insulted by his request in this context. The respondent denied that the complainant was discriminated against and/or victimised in that context.
4.23. Ms. C stated that she told the complainant that the medical appointment arranged for 5th January, 2010 was with a Forensic Psychiatrist. She also denied that sending him to a psychiatrist was excessive. She stated that it would be standard practice with respect to similar situations and gave an account of advice she sought in that respect and examples of other situations where she requested staff members to attend medical appointments to clarify the situation with respect to their health.
4.24. The respondent denied Mr A's statement that the dislike and resentment of the complainant was made abundantly clear at BOM meetings. Mr. D denied saying he wished to fire everyone who was hired by Mr. A.
4.25. In general, the respondent denied that the complainant was discriminated against on the grounds of his sexual orientation or that he was harassed on the grounds of his sexual orientation or at all in the terms as outlined by him in his complaint. It denied that any of its employees made any derogatory remarks about the complainant's sexual orientation. It said that not one of its witnesses experienced a culture of homophobia. It said that the complainant was aware he could make complaints and yet he did not make any complaints, either verbally or in writing, prior to September, 2009. It stated that many of the complaints were only made a month before the Tribunal hearing. It submitted that it was unable to carry out any preventative measures in that context because it was not aware of any complaints.
4.26. The respondent submitted that the complainant's grievances were entirely unrelated to his sexual orientation and the evidence presented supported this submission. In particular, it submitted that when his complaint was ultimately made in writing (on 8th January, 2010), it made scant reference to his sexual orientation. In short, it stated that the complainant had failed to establish a causal link between his treatment and his sexual orientation.
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.'3
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".
5.3. 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.." In Tom Barrett v Department of Defence4 the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.4. 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 also or otherwise discriminated against by the respondent with respect to his conditions of employment; (iii) whether he was victimised by the respondent. 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.
Jurisdictional Matters - Time Limits
5.5. With respect to time limits, I am satisfied that the complainant's claim is that the respondent as a whole harassed him because of his sexual orientation and each incident was a manifestation of its propensity to discriminate against him. Therefore, his claim relates to a series of linked events and is within time in that context.
Substantive Matters
Conditions of Employment
5.6. The claim with respect to conditions of employment, other than harassment, relates to the failure to provide the complainant with terms and conditions of employment. It is clear that, at least prior to him going on sick leave in January, 2010, there were other people of a different sexual orientation who were equally not provided with terms and conditions of employment. He could not have been discriminated against on the sexual orientation ground in that context.
Harassment Claim
5.7. There are two aspects to the claim of harassment: Firstly, the complainant has listed a number of incidents where reference was made to his sexual orientation by staff of the respondent. Secondly, the complainant makes a claim that he was harassed by the respondent in so far as its general treatment of him, even where particular people did not make specific reference to his sexual orientation, was nonetheless motivated by his sexual orientation. In that context, I have carefully evaluated all of the testimony proffered in the case by all the witnesses and I have taken account of the demeanour of the witnesses in giving this evidence.
5.8. With respect to the listed claims of specific comments that were alleged to have been made about the complainant's sexual orientation, this is primarily a straightforward question of fact. My decision depends upon whose evidence I prefer and there are a number of claims to be considered in that context. However, with respect to all but three of those claims, the complainant has not established to my satisfaction that the incidents in question actually occurred. That is not to say that I prefer the evidence of the respondent in every respect as will be seen from the following paragraphs.
5.9. The first comment that I am satisfied was made is the comment that the complainant was having a sexual relationship with Mr. A. That is clear from the evidence of both parties and I do not accept the denials of most of the respondent's witnesses in that context. I am satisfied that this rumour was well known and discussed frequently. I am also satisfied that Ms. C did refer to the complainant as "one of the girls" on several occasions but I am also satisfied that he referred to himself as a lady or one of the girls on a regular basis, including in e-mail correspondence with another colleague. I am also satisfied that Mr. E made derogatory comments about the complainant's sexual orientation to Mr. A as outlined in par. 3.11 above.
5.10. Harassment is a matter the Tribunal takes very seriously indeed. Submission to the harassment does not negate an act of harassment, or its effects, nor does a failure on the part of the victim to indicate that the harassment is unwelcome. Furthermore, the complainant is entirely correct in stating that he is entitled to retain ownership of how he is referred to in the workplace, no matter what he refers to himself as. Nonetheless, I do not accept that he considered himself to be harassed by work colleagues making reference to him as 'one of the girls' or 'a lady' as I am satisfied that he was quite happy to have colleagues refer to him in those terms. Indeed, I am satisfied that he positively encouraged them to do so. I do not accept that the treatment of him had either the purpose or effect of harassing him in that context.
5.11. It is clear that there was a rumour that the complainant was in a relationship with Mr. A. This is a matter that clearly should have been dealt with by the BOM in general, and Mr. E in particular given that he, for one, was aware of it. Such rumours, indeed any workplace rumours, should have been dealt with by the respondent's management in an appropriate manner. However, I am not satisfied that the complainant found these rumours to be upsetting in any way, shape or form. While it was unacceptable that they were allowed to circulate to the extent that they were, I am not satisfied that they meet the criteria for harassment in that context.
5.12. However, the comments by Mr. E are another matter and are entirely unacceptable. Even though they were not made directly to the complainant, that they were made and that the complainant became aware of them while he was still employed by the respondent is sufficient for him to establish a prima facie case of harassment. While he might not have been upset by the matters referred to in the previous paragraphs, it is clear that he was upset by being referred to in a derogatory manner as a "queer".
5.13. The defence available under s.14A(2), in so far as it provides a defence when an employer has a policy to prevent harassment, is a defence that can only be availed of, at a minimum, when a respondent has a clear harassment policy that is robust and effective. The respondent did not have a harassment policy of any kind at the time in question and the defence is not available to it in that context.
5.14. As regards the treatment of the complainant in general, and whether that is harassment, my decision in this respect has been informed by the preceding paragraphs. This part of my decision encompasses most of the remaining parts of his claim: for example, Ms. C's treatment of him both with respect to asking him to work on cash and the letter she sent him on 30th November; the treatment of him by the Board in the context of the minutes of meetings and the manner in which he was talked about at those meetings; the treatment of him by Ms. B in so far as she did not make any overt references to his sexual orientation etc.
5.15. I am conscious that the complainant has made a claim of unfair dismissals in another forum. In that context, I have no jurisdiction to consider any matters that are relevant solely to that claim. Furthermore, I am particularly conscious in this case that the only issues which can inform my decision are those which have been influenced in some way, shape or form by the complainant's sexual orientation. Therefore, it would be ultra vires for me to comment on any treatment of the complainant which may, or may not, have been related to his 'association' with Mr. A, or which may or may not have been related to any other factors, unless they were also related to his sexual orientation.
5.16. In that context, I am not satisfied that any of the treatment of the complainant by the respondent was motivated by his sexual orientation, except in so far as Mr. E was directly involved in that treatment. The only matters in which he was directly involved in that context were i) the various attempts by the BOM to sanction the complainant for allegedly unacceptable behaviour as outlined at pars. 3.21 and 3.22 above and ii) the request to have him explain the work that he did, outlined at par. 3.26 above. Mr. E was clearly centrally involved in these matters.
5.17. With respect to i) above, I am satisfied that both the reference to suspending the complainant's pay and the reference to making him redundant were examples of adverse treatment of him and I do not accept the respondent's explanations for those references. I am satisfied that, as Mr. E was involved in these discussions, and as he spoke about the complainant in derogatory terms because of his sexual orientation, the discussions undertaken by the BOM were tainted by discrimination in that context, and constitute harassment of the complainant as a result.
5.18. With respect to ii) above, the respondent's request to the complainant to meet with it to discuss the work that he did would, certainly in normal circumstances, appear to be benign. However, having considered all the circumstances of the present complaint, and having taken into account the evidence of the parties in that respect, I am satisfied that the behaviour of the respondent in this respect was not benign. Indeed, I am satisfied that the purpose of the respondent in requiring the complainant to explain the work that he did was designed to harass him as alleged by the complainant. I am satisfied that, as Mr. E was directly involved in the respondent's actions in this respect, and for the same reasons as those outlined with respect to i) above, these actions were related to the complainant's sexual orientation. Therefore, they constitute harassment on that ground.
5.19. However, I am not satisfied that any of the other allegations made by the complainant were similarly tainted by discrimination and it would be ultra vires for me to consider them any further in that context, except for those that also relate to victimisation as outlined in the following paragraphs. Nonetheless, the complainant has established a prima facie case of harassment with respect to some of his claims in that respect, as outlined above.
Victimisation
5.20. It is abundantly clear that the respondent, in particular Mr. E, took issue with the complainant making a claim of harassment against it. The 'investigation' it undertook was flawed from the beginning. While Ms. C's request for further information was not unreasonable, the complainant's request to provide this information at an interview, rather than in writing, was equally not unreasonable. Her failure to further investigate his complaint because he failed to provide her with the information she requested to her satisfaction was premature at best. The respondent's claim that the complainant did not make himself available to attend for interview was clearly false, particularly as I am satisfied that he was never asked to attend for an interview on that basis. In general, the swiftness with which the respondent dismissed any and all of the complainant's claims showed that it did not make any real attempt to investigate those claims.
5.21. Furthermore, Mr. E wrote a letter to the complainant on 1st February, 2010, stating, inter alia, that "if these allegations are unfounded we may have to consider what next course of action to take". This was not only a clear indication that he had already prejudged the outcome of the 'investigation' but it was a clear and unambiguous threat against the complainant that was motivated by the fact that he had made a claim to the Tribunal.
5.22. It is clear that the issue of the complainant's laptop was raised prior to his complainant of harassment being made to the respondent on 8th January. However, I am satisfied from the evidence, both that of the complainant and that of the respondent, that Mr. F's treatment of the complainant at the meeting of 18th January, 2010 was intimidating and threatening. Mr. G himself stated that this was normal behaviour for Mr. F. That is no excuse for the fact that I am satisfied that it was intended to intimidate the complainant in the context that he had claimed to the respondent that he was being harassed by it. I am satisfied that it was a further act of victimisation.
5.23. Therefore, I am satisfied that the treatment of the complainant as outlined in pars. 5.20 to 5.22 above, was adverse treatment of him that was related to the taking of a protected act by him (i.e. his letter to the respondent on 8th January, 2010 stating, inter alia, that he had been harassed by it). It was victimisation in that context.
Final Matters
5.24. Finally, it should be said that the respondent submitted that I cannot consider any matters arising after the complainant made a claim to the Tribunal, which was on 15th March, 2010. However, in all the circumstances of the present complaint, any such matters do not relate to the claim of discrimination or victimisation. Therefore, in so far as they are relevant to any legal proceedings the complainant is entitled to take with respect to his employment, they are relevant solely to a claim of dismissal. This submission is irrelevant in that context.
5.25. The Acts require that I make separate awards for discrimination and victimisation. These awards must be based on the complainant's remuneration at the time he was dismissed, which was approximately €32,000 per year. The award I am making with respect to the discrimination is the approximate equivalent of three months salary in that respect and, as it is made to compensate the complainant for the distress caused to him as a result of the discrimination by the respondent, it is not in the nature of pay. The award I am making with respect to the victimisation is the approximate equivalent of six months salary in that respect and, as it is made to compensate the complainant for the distress caused to him as a result of the victimisation by the respondent, it is not in the nature of pay.
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 discriminated against him on the sexual orientation ground pursuant to section 6(2)(g) of the Acts, in terms of his conditions of employment (other than harassment), contrary to s.8(1)(b) of the Acts.
6.3. I find that the respondent discriminated against the complainant on the sexual orientation ground pursuant to section 6(2)(f) of the Acts in terms of harassment, contrary to Section 14A of the Acts.
6.4. I find that the respondent victimised the complainant in terms of section 74(2) of the Acts.
6.5. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €8,000 in respect of the discrimination. This award is not in the nature of pay and is, therefore, not subject to tax.
6.6. Additionally, pursuant to Section 79(1A) and in accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €16,000 in respect of the victimisation. This award is not in the nature of pay and is, therefore, not subject to tax.
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Gary O'Doherty
Equality Officer
20th December, 2012
1County Cork VEC -v- Ann Hurley, EDA1124; A School -v- A Worker EDA122
2County Cork VEC -v- Ann Hurley, EDA1124; A School -v- A Worker EDA122
3EE5/1986 Gibney v Dublin Corporation
4EDA1017