EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013 - 024
PARTIES
Ms Catherine McKeever (represented by Mr Patrick O'Riordan, B.L., instructed by Healy O'Connor, Solicitors)
and
Securitas Security Services (Irl) Ltd (represented by IBEC)
File References: EE/2010/912
Date of Issue: 21st March 2013
Keywords: Gender - harassment - S. 14A(2) defense - taking appropriate steps to prevent harassment from clients - discriminatory dismissal - no prima facie case
1. Claim
1.1. The case concerns a claim by Ms Catherine McKeever that Securitas Security Services (Irl) Ltd discriminated against her on the grounds of gender, marital status and family status contrary to Sections 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 to 2008, in terms of training, conditions of employment, and discriminatory dismissal. Ms McKeever further complains of victimisation pursuant to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 22 December 2010. A submission was received from the complainant on 25 October 2011. A submission was received from the respondent on 12 December 2011. On 16 January 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 20 February 2013. Additional evidence was requested from the respondent at the hearing and received on 22 February 2013. The last piece of correspondence related to the complaint was received on 14 March 2013.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that she received no training from the respondent, and that when she asked her supervisor for guidance, he would simply reply: "Are you having another blonde moment"? Further to this, she states that she was on occasion embarrassed in front of colleagues, when her supervisor asked her about work matters she had no knowledge of because of her lack of training, and then used foul language.
2.2. The complainant states that her supervisor asked her on a number of occasions about her plans for a family. When the complainant remarked to him that she was hungry while on her lunch break, he would make comments like: "I hope you are not eating for two", or commenting with disgust on the number of pregnant workers in the canteen.
2.3. The complainant had commenced her employment with the respondent in mid-June and states that the above comments pre-dated her own pregnancy. She found out in early August that she was pregnant. She states that she dreaded having to tell her supervisor this, having regard to her previous experiences with him.
2.4. The complainant does not elaborate on her complaints of discriminatory dismissal or victimisation in her submission.
3. Summary of the Respondent's Written Submission
3.1. The respondent submits that the complainant received an employee handbook which outlined the respondent's harassment policy when she took up her position and should have raised any complaints of harassment through that policy.
3.2. The respondent further states that the person identified by the complainant as her supervisor is in fact not her line manager within the respondent company, but rather her main contact at the client site where she worked.
3.3. The respondent points out that the complainant herself acknowledges in her initial submission to the Tribunal that a male co-worker did not receive any more training than she had.
3.4. In terms of the complainant's dismissal, it is the respondent's position that in her role, she committed repeated errors which led to a situation in which the respondent's client had lost trust in her. As the respondent did not have any other roles with a similar salary for the complainant, and because she declined a security officer role, the respondent states that it had no choice but to terminate her employment.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated, and discriminatorily dismissed within the meaning of the Acts and whether she was victimised.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. The Labour Court further addressed the evidendiaty requirements laid down in S. 85A in Melbury Developments v. Valpeters [EDA0917], in which the Court stated:
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. [Emphasis added]
4.4. At the beginning of the hearing, the complainant withdrew her complaints with regard to family status and marital status and victimisation. Counsel applied to have his client bring a complaint of harassment instead. I accepted this, as the conduct complained of had been clearly set out in her submission, and the respondent had responded to it in its written submission, treating the complaint correctly as one of harassment, and was therefore not prejudiced in this matter.
4.5. With regard to her complaint about discrimination in training, the complainant stated that the male colleague who had come second in the competition for the job, and who filled in for her during absences, was in a more favourable position to meet the demands of the job, as he had more IT experience from previous roles he had filled for the respondent. The complainant did not say that any male colleague did receive training for that role while she did not, during her time in the respondent's employment. Accordingly, her complaint about discrimination in relation to training, on the ground of her gender, must fail.
4.6. The complainant's complaint about her conditions of employment comprehends her claim of harassment. She did not put forward any other evidence, that a man had more favourable conditions of employment than she had. I accept from her evidence that the behaviour of the man who directed her day-to-day work for the client company does constitute harassment on the ground of gender within the meaning of the Acts. However, the complainant herself stated that she never complained about this conduct to anyone within the respondent company. She did complain about the lack of training to her line manager within the respondent company, but not about Mr A.'s harassment.
4.7. Counsel for the complainant sought to put a lot of emphasis on the fact that, as he alleged, the respondent's harassment procedure was not easily accessible. However, the harassment procedure is contained in the Employee Handbook, an A5 sized booklet of 60 pages in total, and while the handbook does not have a table of contents, the procedure an employee can follow if they feel they are subjected to harassment is not difficult to find. All separate policies described in the booklet are clearly highlighted with white letters on a rectangular black ground, so it is easy to find whatever one is looking for even just by flipping the pages. The handbook states expressly, in accordance with the provisions of the Employment Equality Acts, that it extends to the respondent's clients. It provides the affected employee with a number of informal and formal options to address their situation, including talking to their manager within the respondent company, or to a person in the respondent's human resources department. The initial complaint does not need to be in writing.
4.8. On a review of the policy, I am satisfied that it is not exceedingly difficult for an employee to raise concerns about a client's inappropriate conduct with the respondent. The complainant confirmed that she did receive the employee handbook. In addition, the respondent was able to produce a document in evidence, in which the complainant confirms with her signature that she read and understood all sections of the handbook. Last, the complainant impressed me at the hearing as a poised, articulate professional woman who was hired by the respondent as a criminal compliance specialist for one of the world's leading IT companies. I can not accept the argument of her counsel that it was unreasonable to put an onus on her to raise a complaint about Mr A.'s behaviour with the respondent, given that she was in possession of the employee handbook and thus had the policy at her disposal to guide her through the process and give her an outline of her options. Accordingly, I find that the defence in S. 14A(2) of the Acts avails the respondent, and the complainant's complaint of gender-based harassment must also fail.
4.9. Turning to the complainant's dismissal, there was no dispute that the respondent was not aware of the complainant's pregnancy at the time of her dismissal. Accordingly, the special protection of the law for pregnancy and maternity can not avail the complainant in this case.
4.10. Counsel for the complainant sought to make a case that because of Mr A.'s previous harassment of the complainant, that when the complainant made a serious error in her work which was reported by a client employee to Mr A., who reported it to his superiors, the complainant's dismissal for this error was linked to her gender.
4.11. In terms of the seriousness of the error, it was noted already that the complainant was hired to be a criminal compliance specialist for a leading multinational IT services provider. The respondent provides a number of security services for this company, with the entire contract being worth to the respondent, in the estimate of their local manager, Mr B., "tens of millions of Euro." The complainant did not dispute this. In terms of the role of criminal compliance specialist, there are only two such roles for this client company worldwide, one at their US headquarters, and the other one in Dublin. The role entails collecting requests from law enforcement agencies worldwide for data of users that were under investigation, and forwarding these to the client. The complainant's error consisted in putting the identifying data for one such individual into the subject line of an email. This meant that, in case the email were intercepted, the investigated individual would have become aware of the investigation, which could have scuppered an entire costly investigation in the area of cybercrime.
4.12. The complainant states, and I accept, that when she became aware of her error, she immediately notified Mr A., who contacted his supervisor, who was based in the US. He then sent her home for the day. She later received a phone call from her own line manager, who was based at the client's US headquarter, who said the matter was investigated and that she was suspended from duty.
4.13. On 23 August 2010, the respondent's HR manager sent the complainant a letter to invite her for a meeting under the company's "guidance and counselling" policy. The complainant was advised of her right to representation, but states that she had no idea that her job would be at risk. She stated in evidence that she anticipated that her error would be further discussed and that she would need to give explanations. When the complainant met the respondent's HR manager, and their local manager Mr B., on 25 August 2010, she was told that the client had lost trust in her, and had requested her removal from the contract the respondent had with the client. Her employment was then terminated.
4.14. Counsel for the complainant stated, and I accept, that this procedure was lacking in fairness, especially because the complainant had received no prior warning that termination of her employment due to gross misconduct could occur. On the other hand, defective procedures of this kind only amount to discrimination if the complainant succeeds in adducing any kind of evidence, beyond mere assertions, that a man who committed the same grievous error would not also have been summarily dismissed in this situation. The complainant did not adduce any such evidence, and neither did she adduce any evidence to show that Mr A. would have had a hand in her dismissal beyond reporting her error to his supervisor in the client company, as he was arguably duty-bound to do. Accordingly, her claim of discriminatory dismissal must also fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Securitas Security Services (Irl) Ltd did not discriminate against Ms Catherine McKeever on the ground of gender contrary to S. 8(1) of the Acts, and did not discriminatorily dismiss her contrary to S. 8(6) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
21 March 2013