The Equality Tribunal
Employment Equality Acts
1998-2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2012-022
PARTIES
Ms A
(Represented by Employment Advice and Representation Unit)
- V -
A Public House
And Mr B, owner of A Public House
Represented by Seamus Maguire Solicitors
File references: EE/2008/667
Date of issue: 28 February 2012
Keywords
Employment Equality Acts 1998-2011 -Discriminatory Dismissal- Harassment - Sexual Harassment - Gender
1. Dispute
1.1. This dispute concerns a claim by Ms A (hereafter "the complainant") that she was harassed, sexually harassed and discriminatorily dismissed on the grounds of gender by A Public House (hereafter "the respondent") contrary to the Employment Equality Acts.
2. Background
2.1. The complainant referred her claim to the Director of the Equality Tribunal on 8 October 2008 under the Employment Equality Acts. This was two months outside the 6 month time limit for referral of the complaint. The complainant applied for an extension of time to the Director, who directed that, in relation to this complaint, paragraph (a) of Section 77(5) shall have effect as if for the reference of a period of 6 months there substituted a reference to 12 months.
This claim was made on the gender ground. On 2 August 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, an oral hearing was held 7 December 2011 and both parties were in attendance.
3. Case for the complainant
3.1 The complainant's legal representative withdrew the claim of discriminatory dismissal during the hearing on the basis that the matter had previously been settled at the EAT.
3.2 The complainant submitted that she worked for the respondent as a part-time kitchen assistant for about 16 years. Prior to the incidents referred to in this complaint, there were no problems in her working relationship.
3.3 On 6th February 2008, the complainant attended a Christmas party organised by the manager of the respondent pub. The party was held after Christmas due to the nature of the respondent business and the complainant submitted that there had been a few of these parties in previous years. Most of the respondent staff were in attendance and she believed it was paid for by the respondent. The party began at the respondent's own licensed premises and then all the staff were collected by bus to take them to another pub for a meal and drinks. The meal was paid for, and the respondent manager gave all the staff a number of drink tokens for the rest of the evening. The complainant brought one of her friends, a non-employee of the respondent, as her guest.
3.4 The complainant submitted that it was a good party, but later in the night, she was harassed by D who was the brother-in-law of the respondent manager. D had joined them later in the night for a few drinks and he had sat with the complainant and her friend. The complainant submitted that D had been engaged in "dirty talk" with her friend and that he had called them "two rides". The complainant was offended and told her manager that she expected to get more respect. Her manager was annoyed with her and told her to "fxx off out of here" if she did not like what she heard. The complainant understood this to mean that she should leave the party.
3.5 The following day, February 7th, the complainant attended for work as normal, but did not speak to the manager as he was off that day. She told the chef that she expected an apology from her manager. The chef said he would pass on the message. On the 8th February the complainant had a day off. She received a call from the chef who told her that the manager said she was sacked. She asked him to put this in writing and she said that she would go to speak to the owner of the pub about it. About a week later, the chef rang and told her not to come to see the owner. She had no contact with her employer, other than these two calls with the chef. She received her P45 upon her request and it was dated 22 February 2008. She did not know why this particular date was chosen.
3.6 The complainant submitted that the impact of losing her job after all these years was very severe on her. She suffered palpitations, panic attacks and ultimately had to be admitted to a psychiatric ward for 6 months.
3.7 The legal representative for the complainant stated that the complainant's health had been severely impacted by losing her job, to the extent that she was unlikely to be able to work in the future. He submitted that she had been subjected to harassing comments of a sexual nature, which were gender-specific. He submitted that some people might have been able to laugh off these comments, but in the complainant's case, they caused her "to crack".
4. Case for the respondent
Witness for the respondent - Owner of business
4.1 The owner refuted that the complainant had been employed by him for 16 years. He stated that he had bought the business 3 years previously and all the staff were paid redundancy by the previous owner. He re-employed the staff. The pub employed about 20 people at the time and the business was run by a named manager. The owner stated that he runs a number of businesses and has no day-to-day involvement with the running of the pub - this is entirely the responsibility of the manager.
4.2 Prior to the incidents referred to in this case, there were never any problems with the complainant. Both she and her sister had worked there for years. The owner stated that he had already settled this matter with the complainant and was shocked to have to deal with it again.
4.3 The owner stated that the "Christmas party" in question had nothing to do with him. He did not know about it, approve it or provide funds for it. He stated that he has a policy of not allowing Christmas parties in his businesses and pays Christmas bonuses instead. He believed that the money was raised by the pub manager through a raffle of some sort.
Witness for the respondent -Manager of the pub
4.4 The manager submitted that he had been the complainant's manager for over 5 years in total and they always got on very well.
4.5 The manager submitted that this Christmas party was organised by him every year and attended by most staff. It was paid for by tips and his own money. He submitted that the owner of the business did not know anything about it. On the night in question, he had arranged a bus to the party from the workplace. He submitted that the complainant was behaving badly on the bus and continued to do so when she arrived at the party. She got into a dispute with the barman at the party regarding drinks vouchers and the barman complained to him. He advised the barman to let it go on this occasion. His brother in law lived beside the pub where the party was being held, and he came over to see them. The manager bought him a drink and left him seated with his (the manager's) wife, the complainant and her companion. Later he was informed by the barman that there was a dispute going on and he came back to the complainant's table to investigate. The complainant told him that D had insulted her and called her names. His wife told him that it was just some harmless joking. The manager was already annoyed with the complainant as a result of her dispute with the barman and he told her to "fxxx off". He stated that they had both a lot of drink on the night.
4.6 On the day after the party, the manager rang the chef to see if the complainant showed up for work. He told the chef to tell the complainant to come in to see him on Saturday afternoon. She never showed up. He was expecting an apology from her for being abusive to him and his wife. He submitted that he never gave the impression that she was to be fired - he believed that if she had showed up on the Saturday, they could have sorted it out. He submitted that the complainant did not show up in work again and he did not have a contact number to call her. He believed that she contacted someone in the office to request her P45.
Witness for the respondent - Wife of Manager
4.7 The witness attended the party as the guest of her husband who was manager of the respondent pub. She spent much of the evening sitting with the complainant, the complainant's friend and D. She said that D was telling jokes generally and she did not think anything was specifically aimed at the complainant. She did not hear the word "ride" used. She thought that they had had a pleasant evening, so she was shocked when the row started. Her husband told her later that he had had an earlier dispute with the complainant over the drinks tokens.
Witness for the respondent - Barman
4.8 The witness was working as a barman in the venue where the party was held. He already knew most of the attendees, the staff of the respondent pub, because it was his local pub. He said that the complainant and her friend were looking for extra drinks, which they were not entitled to and he complained to her manager. The first time, the manager told him it was ok, but the second time, the manager spoke to the complainant about it. The barman said that the complainant and her friend were drunk and they were annoying the people around them. He submitted that if they had not been part of the group, he would have asked them to leave. When the complainant became involved in a dispute, he asked her manager to speak to her again. The manager was very annoyed about having to get involved, but the complainant left immediately.
Respondent Legal Submission
4.9 The respondent submitted that the owner of the pub could not be the correct respondent, as he did not sponsor the party.
5. Conclusions of the equality officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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 specified in subsection (2)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
Discriminatory Dismissal
5.3 The complainant agreed with the respondent that the matter of her termination of employment had already been dealt with prior to an Employment Appeals Tribunal hearing. On this basis she withdrew this aspect of the complaint. As a result I may only consider the incidents which took place prior to the termination of her employment.
Harassment and Sexual Harassment
5.4 The complainant has alleged that she was harassed and sexually harassed by the respondent, firstly as a result of D's comments at the party that she and her friend were "two rides", secondly as a result of her manager telling her to "fxxx off" and thirdly as a result of her manager's failure to handle her grievance. I note that the complainant had worked for a very considerable length of time in her employment and that this employment was incident-free. I found the complainant credible in her description of what was said to her by D and her manager. I note that the incidents complained of here, were serious enough to lead to the termination of her employment. Overall I find that there is sufficient evidence that the complainant has established a prima facie case of harassment and/or sexual harassment on the gender ground. It therefore falls to the respondent to rebut the inference.
5.5 The respondent in this case has submitted that it cannot be held responsible for any event which happened at the Christmas party, because it was not sponsored by them. However I note the following:
- Other than his oral statement that he did not approve of Christmas parties, the owner did not submit any evidence that he either actively prevented them or set any guidelines around them.
- This was not the first such party - similar Christmas parties had been held in previous years also.
- The party was organised by the respondent manager, who was solely responsible for running the business on a day-to-day basis according to the owner.
- The employees did not have to pay for their own meal or drinks.
- Almost all of the respondent employees attended the party.
- The party started in the respondent workplace and a bus was organised to take the employees from there to the party venue.
Based on all of the above factors, I find that it was reasonable for the complainant to have understood that she was attending an employee event and that the incident therefore took place in the course of her employment.
5.4 Section 14A (1) of the Acts define who is covered under the Acts with respect to harassment;
(a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is-
(i) employed at that place or by the same employer,
(ii) the victim's employer, or
(iii) a client, customer, or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it"
5.5 The next question therefore is whether the alleged harasser, D, falls within the definition at 14A (1)(a)(iii) above, which would make the complainant's employer responsible, even though D was not an employee of the respondent. I note that it was not disputed between the parties that the event took place in an open pub on a busy night. The respondent employees did not sit in a separate section to the rest of the customers. I also note that the alleged harasser, D, was present both because he happened to live nearby and because his brother-in-law had organised the party. I also note that the comments were made late at night and both parties had consumed a lot of alcohol. Considering all of these facts in relation to D's behaviour, I cannot find that "the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,"
5.6 In relation to the behaviour of the complainant's manager on the night, I found the complainant to be credible and I note that it was very unpleasant and hurtful to her to be sent home in such a manner by her manager. Section 14A of the Acts defines harassment:
(7) (a) In this section-
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to "sexual harassment" are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person.
5.7 The definition of harassment under the Acts requires the complainant to establish a nexus between the behaviours alleged and one of the nine grounds. In the present case, although it was clear that complainant was very upset, I cannot find a nexus between the complainant's gender and the language used by her manager. It was established from the evidence given at the oral hearing that there had been an ongoing dispute between the parties on the night regarding the drinks vouchers and this was the primary reason for the manager's annoyance with the complainant. This was unrelated to the complainant's gender and therefore I find that the respondent has rebutted this element of the complaint.
5.8 Notwithstanding the above, in a case where an employee makes a claim of harassment or sexual harassment to her employer, there is a responsibility on the employer to investigate the matter. The complainant submits that she told the chef what happened and that there was therefore an onus on the respondent to investigate it. However immediately after this, the employment relationship ended in circumstances which are outside the jurisdiction of this Tribunal to investigate. As a result, there was insufficient evidence put forward by the complainant to show if/how her grievance was either raised by her or handled by her employer.
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:
I find that the complainant established a prima facie case of harassment and sexual harassment on the gender ground, but that this was successfully rebutted by the respondent.
I find that the complainant has been unable to establish a prima facie case of discrimination with respect to her conditions of employment.
With respect to the complaint of discriminatory dismissal, this has been withdrawn by the complainant.
__________________
Elaine Cassidy,
Equality Officer
28 February 2012