Equal Status Acts, 2000 to 2011
Decision DEC-S2012-017
Mr Derek Hanlon
-v-
Dept of Social Protection
(represented by Ms Cathy Maguire BL, instructed by the Chief States Solicitor's Office)
File Ref: ES/2011/042
Date of Issue: 14/05/2012
Keywords: Equal Status Acts 2000-2011 - Sections 3(2)(a), 3(2)(d), 3(2)(f) sexual orientation, gender and age grounds -prima facie case - discrimination, harassment, sexual harassment.
Delegation under the Equal Status Acts, 2000 to 2011
This complaint was referred to the Director of the Equality Tribunal on 18 March 2011 under the Equal Status Acts, 2000-2008. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2011, the Director delegated the complaint 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 III of the Equal Status Acts, 2000-2008. On 2 February 2012 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 27 March 2012 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Mr Hanlon that he was discriminated against, harassed and sexually harassed by the respondent on the grounds of age, gender and sexual orientation in terms of Sections 3(2)(a), 3(2)(d), 3(2)(f) of the Equal Status Acts, 2000-2011 when he was claiming social welfare entitlements.
2. Summary of the Complainant's Case
2.1 The complainant submitted that he visited an office of the Dept of Social Protection on 2nd February 2011 to enquire about arrangements in relation to his FAS Work placement programme. He attempted to explain his situation to the person at the counter, but she kept interrupting him and did not answer his questions fully. She called the next person in the queue and the complainant was left without answers. He went instead to the information desk and asked an employee Mr A if it would be possible to get his social welfare paid on a different day, because the payment day clashed with his work placement programme. Mr A said he did not know anything about it, and when pressed further by the complainant, he said "I don't have to explain anything to the likes of you". The complainant left the office.
2.2 Shortly afterwards the complainant returned to the office and went again to the information desk. He spoke to Mr A and told him that he had been dealt with in an unacceptable way. He asked Mr A to give his name, which Mr A did. Mr A then said "you're a fool, do you hear me?". When the complainant responded, Mr A said "you're a muppet, you're a muppet". The complainant asked if he was calling him a muppet. Mr A responded "yeah, go on you muppet, ye faggot". The complainant submitted that Mr A had called him these names, because he recognised that the complainant was gay.
2.3 The complainant asked to see a manager, but there was no-one available at the time, so he was given a complaint form instead. He submitted his complaint and a named manager called him the next day. This manager told him that Mr A was not himself at the time of the incident and was a bit stressed. The complainant said that it was not good enough and he wanted to take it further. A few weeks later, he received a written apology from Mr A. However the complainant found the apology offensive.
2.4 The complainant submitted that the incident was extremely embarrassing as there were about 100 people present at the time. It also caused him great distress and anxiety and he had to see a doctor about the stress and depression which were caused to him.
3. Summary of the Respondent's Case
3.1 Witness for the Respondent - Mr A
Mr A stated that he was working on the information desk to cover a colleague's break when the complainant approached him. He submitted that the complainant was not happy from the start of the conversation and kept reiterating his point about the clash between his sign-on day and his work placement. Mr A tried to answer his questions, but did not think the complainant was listening, so he told him he could not help him. Mr A told him he would need to go the appropriate counter, but the complainant walked away very annoyed.
A short time later the complainant returned and asked for a ticket for the counter he had previously attended. Mr A gave him the ticket and the complainant said he would go to talk to the "idiots". As he walked away, he also called Mr A an idiot. Mr A called him a muppet and told him to go away. Mr A submitted that he used the word "muppet" at least once, maybe twice, but he never used the word "faggot". He submitted that it was not a word which he would ever use, even if he had known the complainant was gay, which he did not. He submitted that he had only defended himself against being called an idiot.
3.2 Witness for the Respondent - Office Manager of the Social Welfare Office
The office manager was notified of the complainant's complaint the day after the incident. He called the complainant immediately to find out more information, as is his normal practice. He noted that the complainant was very upset and he apologised for the complainant's experience. He offered to deal with the complainant's case by post, to save him having to re-attend the office. He advised the complainant that Mr A was out of the office and that he would investigate the matter upon his return.
When Mr A returned, the manager discussed the matter with him in accordance with their complaint procedure. He decided to remove Mr A from counter duties until the matter had been investigated. Mr A was interviewed by a more senior manager and a report was submitted to management. On the basis of this report, the area manager sent a letter to the complainant. This letter was submitted to the Tribunal. The letter described the investigation. It was noted that the allegation that the word "faggot" was used, was not upheld. It apologised for the upset caused to the complainant for being called a muppet. It assured him that this was unacceptable service, that the matter had been taken seriously and that the staff had been and would continue to be trained in customer service skills.
3.3 Witness for the respondent - Mr Walsh, independent training consultant
Mr Walsh gave detailed evidence of the substantive Equality and Diversity training which he provided to the respondent employees. It covered both soft skills and the legal obligations imposed by the Equality Acts. An Attendance sheet was given to the Tribunal to show that Mr A had completed the training.
3.4 Respondent Legal submission
Legal counsel for the respondent submitted, without prejudice to the evidence given by the witness Mr A, that this was a once-off act and not an ongoing issue. Therefore, by providing training for all employees on the Equal Status Acts, before it happened ,and by investigating the claim fully afterwards, the respondent had fulfilled its duty in taking reasonable steps to prevent such a situation.
Additionally the respondent submitted photographic evidence to show that there was a significant distance between the complainant and Mr A at the time of the alleged altercation. On this basis, it was submitted that the complainant may have misheard the precise words used by Mr A.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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.
4.2 This is a case which firstly turns upon the credibility of parties. The complainant gave evidence that he was very distressed about the altercation which occurred at the office of the Dept of Social Welfare. The respondent does not dispute that there was an altercation between the parties. I accept that the complainant felt very hurt, shocked and offended by what happened and that he pursued the matter in good faith, on the basis of his belief that he had been discriminated against, primarily as a result of his sexual orientation.
4.3 However the key dispute here is whether the word faggot was used by Mr A to the complainant. I note the following with respect to the evidence given on the precise words used during the altercation:
- The events took place in a loud, busy office and there was some distance, as well as a thick glass pane, separating the two parties. Therefore it seems likely that a miscommunication could easily occur.
- The complainant was already very upset when he returned the second time to speak to Mr A.
- Mr A denied having any knowledge that the complainant was gay, and I accept that it would be highly unlikely that he could have guessed it, particularly in the brief encounter which took place. This makes it less likely as a matter of probability that his insult was related to sexual orientation.
- After the event, Mr A immediately admitted to calling the complainant an inappropriate name, but has consistently denied ever calling him a faggot. The internal investigation upheld Mr A's account, and I found his oral evidence on that point to be credible.
4.4 On the basis of the above, I accept the respondent's version of events; ie: that Mr A did act inappropriately and that he did call the complainant a muppet. However I find that the word "faggot" was not used. Therefore there is no evidence that this altercation was in any way linked to the complainant's sexual orientation. At worst, it was bad customer service and the respondent dealt with the issue through an investigation and a letter of apology.
4.5 A claim was also made on the grounds of gender and age; however no evidence was given in relation to these grounds and nothing arose at the oral hearing to substantiate these claims.
4.6 I also note that the respondent provides detailed and comprehensive training to its staff on Equality issues and that they have in place a complaints and investigation procedure. On this occasion, prompt action was taken to reassign the employee at the centre of the complaint, an investigation was held, an alternative method was offered to the complainant and a letter of apology was sent.
5. Decision
5.1.1 On the basis of the foregoing, I find that the complainant did raise a prima facie case on the grounds of sexual orientation, but the respondent rebutted it. I find that the complainant did not establish a prima facie case on the grounds of age or gender. Therefore I find in favour of the respondent.
Elaine Cassidy,
Equality Officer
14/05/2012