The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
EQUALITY OFFICER'S DECISION DEC-E2012-028
PARTIES
A Worker
(Represented by Claire Bruton BL, instructed by the Equality Authority)
AND
A Public Body
(Represented by Byrne Wallace)
File reference: EE/2009/297
Date of issue: 13 March 2012
HEADNOTE
Employment Equality Acts - Victimisation
1. DISPUTE
1.1 This dispute concerns a claim by A Worker that she was harassed in accordance with section 14A of the Employment Equality Acts and victimised by A Public Body contrary to section 74 (2) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 7 May 2009 under the Employment Equality Acts. On 29 September 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, 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. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 8 December 2011 and final information was received on 8 February 2012.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant made two previous complainants to the Equality Tribunal, the first in 2002 and the other in 2003. Arising from these complaints a settlement agreement was reached in September 2005. The agreement included the provision: "The (respondent) acknowledge the claimant is 1st on the transfer list for the ....... Section and will use bona-fide best endeavours to accommodate her with a transfer to a part-time position at that location should such a part-time position become available." The complainant submits that she made several efforts to have that clause implemented and believes that she was deliberately passed over for transfer to the Section identified in the agreement and that this amounts to victimisation within the meaning of the Acts.
2.2 The complainant submits that her earlier complainants were against senior management members working in her area and she still had direct and indirect contact with them until she moved to the section specified in the agreement in September 2009.
2.3 The complainant submits she made her first request for a move in January 2002 in a discussion with her area manager about a claim of sexual harassment. She did transfer out of the section she was working in but remained in the area. In August 2002 she requested a transfer to a specific location but was told but was told that only permanent staff could transfer. In May 2004 the complainant requested a transfer to the section referred to in the agreement that was out of her area. This formed the basis of the provision in the agreement reached in September 2005. Following this agreement the complainant was moved within her own area but still encountered difficulties. Consequently the complainant submits she was placed on stress related sick leave prior to going on maternity leave. On her return she was still required to work in the same area although she was moved to a different section. In November 2007 she enquired about a move to the section designated in the Agreement and was told she was number 39 on a transfer list.
2.4 The complainant submits that because she was still encountering difficulties the Equality Authority wrote to the respondent on her behalf in December 2007 asking what steps they have taken to seek a transfer for the complainant. They also asked for a response regarding recent difficulties the complainant had encountered. The respondent replied they would have difficulty facilitating the complainant's transfer due to a staffing embargo.
2.5 The complainant submits that in April 2008 the Equality Authority spoke to someone in HR who said that the complainant was third on the transfer list and confirmed there was no correspondence on her file requesting that priority be given to the complainant's case. Following further correspondence from the Equality Authority, in November 2008 the respondent offered the complainant a position in the section she requested that was based in Kells, County Meath. The complainant submits the Equality Authority wrote to the respondent on her behalf and turned down the offer because of the geographical location. They also advised the respondent that, because of the three year delay in arranging the transfer, if no immediate attempt was made to transfer her to a part-time position in Dublin outside of her area within the next three weeks then the complainant would have no option but to lodge a complaint of victimisation with the Equality Tribunal. In December 2008 the respondent offered the complainant a position in a local office within the area. The complainant went for a chat to discuss the position with local management but she was interviewed rigorously by one of them and consequently declined the transfer.
2.6 The complainant submitted her claim of victimisation to the Equality Tribunal on 5 May 2009 and was transferred temporarily to another office. In August 2009 the Equality Authority wrote to the respondent asking for an update on the complainant's position and in September 2009 she was transferred to the section that was agreed in the settlement of September 2005.
2.7 The complainant submits that the manner in which her co-workers and local management treated her following the lodgement of her claims in 2002 and 2003 amounts to victimisation in accordance with section 74 (2) of the Acts. It is also submitted that the failure to transfer the complainant in accordance with the agreement of September 2005 amounts to harassment under section 14A (1) of the Acts.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submits that the two claims made in 2002 and 2003 were withdrawn when the settlement agreement was reached with no admission of liability on their behalf. The respondent denies that it failed to implement the transfer clause. The transfer took place in September 2009 following the respondent utilising its best endeavours, as stipulated in the agreement. The respondent submits that the complainant has presented no evidence of a deliberate attempt to victimise her.
3.2 The respondent submits that following the September 2005 agreement the complainant was reassigned to a local office at her request. When the complainant asked to be moved again this was facilitated and in May 2007 she stared work in another office. The complainant then complained she had to work under a relation of a named party in her harassment complaint. In October 2007 she met the acting Area Manager who suggested a temporary assignment pending a suitable transfer. The following day she moved to the temporary assignment.
3.3 The respondent submits that in November 2008 they advised the Equality Authority that a full time position was available in the section requested by the complainant in the agreement of September 2005. This was rejected by the complainant because of it was located in Kells, Co. Meath.
3.4 Two weeks later the complainant asked if a position was available in another location she had said she would like to be transferred to in November 2007 and if a part-time position was not available there or in the section specified in the agreement within three weeks she would make a claim of victimisation to the Equality Tribunal. In December 2008 the complainant was advised of a part-time position in a local office which she initially accepted but then rejected after she met local management. In June 2009 the complainant was temporarily transferred to another assignment and on 20 October 2009 was transferred to the section specified in the September 2005 agreement.
3.5 The respondent submits that this was the first suitable vacancy in the section that arose after the September 2005 agreement. At the beginning of 2006 there were four members of staff at the complainant's grade in that section. In 2007 a maternity leave position became available but it was not offered to the complainant because of a recruitment embargo. In April 2008 the person returned from maternity leave and was promoted to the next grade. However, a decision had been made to separate the work of the section to two locations, the existing in Dublin and a new location in Kells, County Meath. Consequently the vacancy fell to be filled in Kells. This was offered to the complainant in November 2008. In October 2009 another maternity leave vacancy arose but it was decided at a senior management level that the vacancy would not be filled.
3.6 The respondent submits that the complainant has not specified a ground on which she claims to be discriminated and she has failed to establish a prima facie case of discriminatory treatment or victimisation.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 At the start of the hearing the complainant withdrew her claim of harassment. Therefore, I have to decide if the complainant was victimised in accordance with section 74(2) of the Acts. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 Section 74 (2) of the Acts states: ".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings [under this Act] by a complainant, .......", and
Section 6 (1) of the Acts states "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".
4.3 The complainant made claims of discrimination to the Equality Tribunal in 2002 and 2003 and she withdrew these claims when the parties came to the settlement agreement in September 2005, which included the clause that "The (respondent) acknowledge the claimant is 1st on the transfer list for the ....... Section and will use bona-fide best endeavours to accommodate her with a transfer to a part-time position at that location should such a part-time position become available." The complainant requested a move to the section specified in the agreement because she wanted to move out of the area she was working in; in order to be away from those she made allegations against and away from the managers who she considered did not deal satisfactorily with her complaints. This complaint centres on the complainant's allegations that she was victimised when the respondent failed to implement the transfer part of the settlement agreement for four years. She also claims that she was victimised when the respondent moved her within the original area. She claims these moves kept her in contact with friends and/or family of those she made allegations against and with those managers she considered did not deal satisfactorily with her allegations.
4.4 The respondent contends that the complainant was offered all available vacancies in the section stated in the agreement and the moves within her original area were made at her request.
4.5 The first move within her existing area took place shortly after the agreement was reached. The complainant contends the security man in this office was friends with the brother of one of the people against whom she made a complaint, and he, the brother, worked in the local office closest to where she was working. In July 2006 the security man gave her a crude fax which he said had come in for her. She spoke about her concerns to an Area Manager and she was moved to another office in May 2007. The complainant contends this office was managed by the sister-in-law of one of the people she made complaints against and she was given a filing job in a basement which she found demeaning. She also alleges she was ignored by one of the local managers because of the complaint she had made. She complained to the acting Area Manager and in October 2007 she was moved to another office. Again, in this office she claims she was given demeaning work. She again spoke to the acting Area Manager but did not put her grievances in writing.
4.6 In November 2008 she was offered a job in the specified section but because of a split in responsibilities this job was located in Kells, County Meath and she turned it down because of the location, as she wanted to stay in Dublin. In January 2009 she was offered another position but turned this down because she felt the local manager interviewed her and questioned her integrity and experience and on the way out told the complainant that "we don't put up with nonsense here". She had a temporary assignment from May 2009 and was then transferred her to the specified section in September 2009.
4.7 The complainant feels the victimisation came about because she was moved to offices where she had to work with people linked to her complaints and because it took four years to get the transfer specified in the agreement.
4.8 The respondent contends that local managers facilitated the complainant when she made them aware she had problems with the different locations and arranged the best possible move for her. They also point out that the complainant did not raise a formal complaint about her treatment during this period until she went to the Equality Authority, in December 2007.
4.9 The respondent contends that the transfer list on which the complainant was placed was a generic list. It contained all staff who requested different transfers within the East Coast region, but each person would have nominated their own specified location to which they wanted to transfer. When a transfer possibility arose they would go down the list until they reached someone who wanted to transfer to that location. In the case of the complainant she was not top of the generic list but the respondent contends she was the first person on the list wanting to transfer to the section specified in the agreement.
4.10 At the hearing the respondent had no member of local management present who could comment on the moves within her original area. That is apart from the interview in January 2009. The complainant alleges she was interviewed in a way that questioned her integrity and experience and she was told that she would be clearing a backlog of filing in the basement. Furthermore, on the way out one of the managers said that "we don't put up with nonsense here". The other manager present gave evidence at the hearing that he had never heard of the complainant or met her before this meeting. His recollection was that they discussed the job and it was an amicable discussion. He stated the other manager walked the complainant out of the building at the end of the discussion.
4.11 The complainant also contends she was never facilitated with an opportunity to act-up or get promoted, and she feels that is linked to the complaints she made. The respondent contended that the only way for the complainant to have been promoted was through a competition open to the public.
4.12 The Labour Court in Determination No. EDA1130, Darragh Kane t/a DK Window Systems v Maris Garais said the definition of victimisation in section 74 (2) of the Acts "is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2). If either the cause or the effect is missing there can be no finding of victimisation within the statutory meaning.
Essentially three elements are required: -
- The Complainant must have taken action of a type referred to at Section 74(2) of the Acts (a protected act),
- The Complainant must have been subjected to adverse treatment by the Respondent, and,
- The adverse treatment was in reaction to the protected action having been taken by the Complainant.
It is for the Complainant to prove, as a matter of probability, the primary facts upon which he relies in pursing his claim of victimisation under Section 74(2) of the Acts."
The complainant made claims in 2002 and 2003 and has therefore satisfied the first element. In deciding whether there was adverse treatment or if any adverse treatment was a reaction to the protected act having been taken I must look at two parts of the claim; firstly the moves within her existing area, and secondly the move out of the area to the section specified in the agreement.
4.13 As stated previously no member of local management was available at the hearing to give evidence about the rationale behind the moves within the area the complainant was already working in. It is clear that the complainant asked for the moves because she had difficulties working in each location. She made no formal complaints against any individual but asked for moves away from the offices. In assessing the available evidence I can find nothing to demonstrate that any of these moves were designed to put the complainant in direct contact with someone involved, directly or indirectly, with the claims she had made. I accept the complainant may have found herself in a position she found difficult but I conclude that these moves were not a reaction by the respondent to the claims she had made previously and therefore do not amount to adverse treatment within the meaning of the Acts..
4.14 The complainant had to wait four years before she was moved to the section specified in the September 2005 agreement. The complainant alleges this move should and could have been facilitated much earlier and the respondent did not "use bona fide best endeavours to accommodate" her. The respondent contends the complainant was always first on the list to be transferred to the specified section and she was given the first available part-time position and they complied with their side of the agreement.
4.15 The complainant expected that her transfer would take place soon after the settlement agreement was signed. No evidence was presented that any attempt was made to give the complainant special treatment to ensure the transfer was effected speedily. However, the lack of special treatment does not amount to adverse treatment. Adverse treatment in respect of her transfer could have occurred if her transfer was delayed unduly and that delay was motivated by a reaction to the claims she had taken previously. The respondent submitted evidence that the complainant was offered the first part-time fillable vacancy that arose in the specified section in the location preferred by the complainant. That vacancy arose four years after the agreement.
4.16 The agreement was specific in the section the complainant wanted to be transferred to and that it had to be a part-time vacancy. If the transfer agreement was more general then it is likely it would have been affected sooner. I accept the evidence of the respondent that the complainant was offered the first available vacancy that complied with the agreement. I consider the complainant to have been unfortunate that this took four years but I find no evidence that this amounted to adverse treatment in accordance with the Acts.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did not victimise the complainant.
____________________
Hugh Lonsdale
Equality Officer
13 March 2012