DEC-E2013-103

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2013-103

PARTIES

Louise Cassidy

AND

Capita
(Represented by A&L Goodbody Solicitors)

File reference: EE/2010/897
Date of issue: 5 September 2013

HEADNOTES: Employment Equality Acts - Sections 6 & 8 - Gender & Family Status - Conditions of Employment - Harassment - Victimisation

1 DISPUTE

1.1 This dispute concerns a claim by Ms Louise Cassidy that she was discriminated against by Capita on the grounds of gender and family status contrary to section 6 of the Employment Equality Acts in terms of conditions of employment in accordance with section 8 of the Acts, that she was harassed in accordance with section 14A of the Acts and that she was victimised contrary to section 74 (2) of the Acts.

1.2 The complainant referred her claim to the Director of the Equality Tribunal on 9 December 2010 under the Acts. On 21 January 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, 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 21 May 2013.

2 COMPLAINANT'S SUBMISSION

2.1 The complainant worked for the respondent as a Teamleader. She submits that in October 2009, whilst she was on leave, a complaint of racism was made against her by a team member. When she returned her line manager (Mr A) informed her that everything was ok but it was brought up at a team briefing. She asked her line manager afterwards and he said he had forgotten to mention it. The complainant had to go to her manager's manager (Ms B). They sat down with the person who made the complaint and resolved the situation but Mr A left them to work on the same team. The complainant again went to Ms B in January 2010 and consequently the person who made the complaint was moved to another team.

2.2 On 7 July 2010 the complainant had a one-to-one meeting with her acting line manager (Mr C) when she was informed she would be put on an improvement plan for under performance. He said this was being done on the basis of a statement made by a senior official in their major client. The complainant and another Teamleader discussed this with her union representative and they had a meeting with Ms B and Mr A and it was clarified that no such directive regarding performance had come from the client company. The complainant considered that she felt very intimidated and threatened by the actions of Mr C, who she considered misinformed her as a way of intimidating her to reflect on her management performance.

2.3 On 8 July 2010 the complainant had a one-to-one meeting with her acting line manager (Mr C) to discuss her bonus. The complainant submits that Mr C did not follow the correct procedure and he said she would not be paid for the calls she done manually throughout the quarter. The complainant informed Mr C this was not right and she should be paid for the work done. She felt very stressed and left the office telling Mr C she would be getting an opinion on the matter from her union.

2.4 On the same day (Thursday, 8 July 2010) Mr C informed her that she was being moved to a new team from the following Monday. She was told that a part-time Teamleader was being moved to a full-time position. She submits that she was discriminated against as a part-time Teamleader not to be given the opportunity to move to the position being taken by the teamleader who was changing to work full-time. She was told that she was being moved because she was considered the best person for the job. However she does not understand why she was moved twice within a year and believes that she was singled out. She submits she was victimized because of her complainant about the bonus.

2.5 On 9 July the complainant the complainant submits she was excluded from a Teamleader meeting. Later on that day Mr C asked to talk to her but she said she was uncomfortable speaking to him as he had upset her the previous day and it would be best to sit down with the union to discuss things openly. Later that day Mr A came charging over to her desk and asked to talk to her. He asked, in an abrupt and aggressive tone, why she was refusing to talk to Mr C. The complainant felt intimidated and harassed and explained that she felt uncomfortable talking and said the best way was to sit down with the union to discuss things openly.

2.6 When she was due to start in the new section on 12 July 2010 her new work station was not ready and the new team members began to feel she was neglecting them. She explained to them that as soon as the technical support team got her up and running she would be over. Later that day she was called into a meeting with the Marketing Manager (Mr D) and Mr A who told her they had received complaints about her and an investigation would be taking place. When she asked what the complaints were she was told they would be put in a letter. The complainant states she was harassed and victimized by this action.

2.7 The following day, as she was due to leave work, she was called into Mr D's office and was told a letter setting out the complaints would be sent the next day. On 13 July she received an invitation for a meeting the next day. The invitation included statements from the complainants which appeared fabricated and were not signed as the interviews appeared to have been conducted over the phone.

2.8 An investigation meeting took place on 15 July. The complainant submits she did not get the proper support from the respondent and felt isolated. The complainant was not given an outcome to this investigation. At the end of July 2010 the complainant submits she was deeply effected by the investigation and sought medical advice. She was advised to take time off. On 10 September Mr A told the complainant to visit the respondent's doctor. After an appointment mix-up she saw the doctor on 14 October 2010. The doctor felt the problem was an industrial dispute and the complainant needed to sit down with an HR representative.

2.9 The complainant had a meeting arranged with Ms E on 4 November 2010 but Ms E did not come to the meeting and in her place were Mr A and Mr D. The complainant returned to work on 4 January 2011 and the next day had a return to work interview with Mr A. The complainant felt uncomfortable with this as she had been guaranteed by the respondent that she would not be threatened in anyway on her return. The complainant was told that an investigation was still outstanding against her. The complainant found this intimidating

3 RESPONDENT'S SUBMISSION

3.1 The respondent states that the complainant has shown no link between the ground and the alleged discrimination and in these circumstances they cannot provide a detailed response. The respondent submits that the complainant had adduced no evidence of discrimination within the meaning of the Acts. Furthermore, the respondent submits that the complainant has suffered no detriment to her conditions of employment and has failed to show that she was harassed or victimised. Also, the complainant made no complaint either formally or informally through company procedures.

3.2 The complainant was asked to go to the respondent's independent occupational health provider, Medmark, for an assessment, in line with their policy when an employee is off for more than four weeks. On 28 October 2010 the Medmark report said the complainant was fit to return to work. However, the complainant and her GP did not agree so the respondent sought a second opinion. On 6 December 2010 they received a report from Corporate Health Ireland, an independent occupational health provider, which supported the Medmark report that the complainant was fit to return to work. It also stated that her absence may be attributed to work related factors and included some serious allegations against two unnamed managers. The report also advised that HR meet with the complainant. HR wrote to complainant and offered to meet and discuss the report and the allegations. The complainant said she was prepared to meet but had decided to follow a different route with her grievance.

3.3 On 14 December 2010 the respondent sent a letter to the complainant and advised her to use internal procedures in relation to the allegations against the two managers. On 21 December the complainant had a meeting with an HR representative who outlined the options available to her to take grievances against the managers. The complainant said she did not want to follow internal procedures and had decided to take the matter externally. The respondent submits it was not possible for them to investigate with no information about the allegations.

3.4 On receipt of the EE1 claim form the respondent states that they interviewed the named individuals and their response is as follows. Mr C contends that he did not advise the complainant that she was being put on a performance improvement plan. He raised general performance issues with all team leaders. The complainant's team was performing well so it did not affect them. Whilst discussing the performance issues he referred to the senior official working for their client but he was not acting under his instruction.

3.5 Also, the respondent submits that the complainant was not treated unfairly in relation to her bonus. It is standard practice that team leaders do not get bonuses for calls marked manually through their call quality section.

3.6 Regarding the team move, the respondent submits that Mr C organised a meeting with the complainant. He expected the move to be seen as good news by the complainant, as moves allow team leaders to expand and develop, and she had been asking to take over a Winback team in the mornings for a couple of years. However, the complainant was very unhappy; she started shouting and said she wanted nothing to do with the team. Because of her behaviour Mr C made a complaint to his manger (Mr A). Three other employees also made complaints against the complainant. The respondent submits they instigated an investigation by an independent investigator, (Mr D), but it was not completed because of the complainant's absence on sick leave.

3.7 The respondent submits that the complainant was not excluded from any team meetings.

3.8 The respondent submits that at a meeting with the complainant about her behaviour she adopted an aggressive attitude to Mr C and refused to talk about any operational work activities without a union representative being present.

3.9 The respondent submits that there was a limited impact to the complainant's systems at her new desk but this was not the reason for her not sitting with them. This formed part of the investigation.

4 FINDINGS & CONCLUSION

4.1 The respondent submitted that a transfer took place under the European Communities, Protection of Employees on Transfer of Undertaking Regulations, 2003 in December 2011 from the respondent to Firstsource BPO Ireland Limited and therefore contended that the correct respondent was Firstsource BPO Ireland Limited. The respondent was advised that the Equality Tribunal cannot substitute one named respondent for another and that they (Capita) remained the respondent in this claim.

4.2 The complainant submitted her initial claim form on 9 December 2010 and made a claim on the grounds of gender and the last event referred to took place on 4 November 2010. She submitted a written statement by email on 21 June 2011 and in the email stated: "Please find attached Ref - EE/2010/897 of relevant details of alleged acts of discrimination and full reasons for believing that the respondent treated me less favourably on the grounds of gender I also believe the family status ground comes into effect". This written submission referred to events up to 5 January 2011.

4.3 In the recent decision of the High Court in County Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J). Judge McGovern stated:
"6.2 I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
6.3 Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

4.4 It is clear from this judgement that in advancing a claim under the Acts a complainant is not limited solely to what is contained in the originating form. However, the complainant has added the ground of family status which I have to treat as a new claim made on the date of the submission; 21 June 2011. The last possible date of discriminatory act was 5 January 2011, which is inside the six months time limits for making a claim under section 77 (5) of the Acts. Furthermore, the respondent was given a copy of the correspondence from the complainant and therefore was "given a reasonable opportunity to deal with these complaints". I will therefore deal with the claim on the grounds of Family Status.

4.5 I have to decide if the complainant was discriminated against in relation to conditions of employment on the grounds of gender and family status and if she was harassed and victimised. 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.

4.6 The respondent contends that the complainant has failed to provide a link between the grounds and the alleged discrimination. Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that in the first instance the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Employment Equality Acts, 1998 and 2004 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).....".

4.7 In this claim the grounds are gender and family and status. The complainant stated that she considered the decisions and actions of the respondent that she contends amount to discrimination were made because she was a woman and because she was the only part-time team leader. Furthermore, the decision to move her was also made as a way of victimizing her because of her views about the bonus payments. The respondent contends that the complainant was treated in the same manner as anyone else would have been in the same situation.

4.8 This complaint is made on the grounds of gender and family status but, as held by the Labour Court in Graham Anthony v Mary Margetts, ADE/03/1 - Determination No. EDA038: "The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred."
Having thoroughly considered all the evidence adduced by the complainant it is clear that the complainant had difficulties with the actions of management, however, I can find no link between these actions and the discriminatory grounds. I conclude that she has failed to demonstrate any evidence that might be give rise to an inference of discrimination on the grounds of gender or family status in relation to conditions of employment, harassment or victimisation. I therefore find that the complainant has failed to establish a prima facie claim in all aspects of her claim.

5 DECISION

5.1 I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment, harassment and victimisation on the basis of the grounds of gender and family status and the complaint fails.

____________________
Hugh Lonsdale
Equality Officer

5 September 2013