The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-120
PARTIES
A Sales Representative
(Represented by Paul McNulty B.L. instructed by O'Hara Solicitors)
AND
A Sales Company
(Represented by IBEC)
File reference: EE/2011/005 & EE/2011/142
Date of issue: 27 September 2013
HEADNOTES: Employment Equality Acts - Sections 6 & 8 - Gender - Conditions of Employment - Sexual Harassment - Victimisation - Victimisatory Dismissal
1 DISPUTE
1.1 This dispute concerns two claims by a sales representative that she was discriminated against by a sales company on the grounds of gender contrary to section 6 (2) (a) of the Employment Equality Acts in terms of conditions of employment in accordance with section 8 of the Acts, that she was sexually harassed in accordance with section 14A of the Acts and that she was victimised and dismissed in a victimisatory manner contrary to section 74 (2) of the Acts.
1.2 The complainant referred both her claims to the Director of the Equality Tribunal on 6 January 2011 under the Acts. On 7 February 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the cases 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 29 May 2013.
2 COMPLAINANT'S SUBMISSION
2.1 The complainant started working for the respondent on 9 November 2009 as a Sales Representative (Residential) and her hours of work were from 12 midday to 8pm, Monday to Friday. In the second week of May 2010 she came under supervision of Mr A.
2.2 They had a telephone conversation on Monday, 17 May during which Mr A said that he remembered the complainant from the respondent's Christmas dinner as a "fun kinda girl". He also said the complainant would be given the help and support in tackling problems in her work area. He told the complainant to write down 5 positive things in her diary each day and that he would be asking her if she had done them. The complainant assumed at the time that all members of the team were asked to do the same but now believes that she was singled out.
2.3 The complainant submits that on 17 or 18 May Mr A asked her why Mr B had been sent out to coach her when Mr C was the official coach. She said she worked with whoever was sent out to her. The complainant considers it unfair that she was questioned about another manager's reasoning.
2.4 On 19 May 2010 the complainant had still not met Mr A in person and telephoned to tell him that she would be off for the next two days. She submits he again referred to having met her at Christmas and knew what she was like. He then asked where she was going and if she was going for a dirty weekend with her husband. She explained that she was going to Dublin on personal business. The complainant was outraged by his remarks which she considered derogatory and smutty.
2.5 On 24 May the complainant received a text message from Mr A before 11am asking if she had collected her leads. The complainant again asked for help in tackling her area. During this exchange Mr A made another reference to the complainant being a "fun girl". The complainant submits that this phrase is akin to being called a prostitute or a slut and should never be used in a business context.
2.6 Mr A rang the complainant on 26 May 2010 and offered her leads in a different area. The complainant submits she was surprised and asked for time to think about taking leads in a new area.
2.7 The complainant submits that on 27 May she phoned Mr A and asked to meet him to discuss leads and her progress. He again referred to the Christmas dinner and knowing her as a "fun girl". The complainant told Mr A that was a social setting and completely different than at work. They met for lunch that day. The complainant explained that the leads in another area would not be financially viable for her because of the amount of travel involved. Mr A suggested the complainant might prefer to move to another team member's area who he was planning on moving. The complainant said she wanted to stay in her own area. Mr A got angry because of her refusal to accept his ideas. The conversation made her feel uncomfortable. This stopped her from addressing issues with him that she wanted to: these were his references to the Christmas dinner and his "fun girl" comments, and why he kept following this up with how other people had told him she was great and he wanted her to show him some of her greatness. Because she was stressed, uncomfortable and intimidated by his behaviour she phoned Ms C in HR to discuss the matter and how her training needs were being ignored yet again. Ms C suggested that she rang Mr A to discuss the matter directly. The complainant rang Mr A and he just laughed at her concerns and said "you're a bit of crack but I suppose I can't say crack to you now either". The complainant found this response humiliating as it had taken a lot of courage for her to confront him on the issue. When the complainant also spoke about training and what had happened previously she felt he dismissed it. He asked how many times she had been given a bonus and she said 5 or 6 times in a 14 week period and he said that they must have given it to her as blackmail if she had not achieved the targets.
2.8 The complainant submits that on Friday, 28 May she got a text message from Mr A after 6pm saying she could not go home that night unless she got a sale. She rang Mr A at 6.30pm and he reiterated the instruction. She rang again at 9.20 pm as she still did not have a sale and had a 4 hour car journey to go to Waterford on a personal matter. Mr A was irritated by her call and that she had no sale.
2.9 The complainant submits that she made a written complaint to HR on 1 June 2010. The respondent instituted an investigation. The complainant went on sick leave from 5 August 2010. On 6 September 2010 the investigator's report was issued. The complainant's allegations of bullying and sexual harassment were rejected.
2.10 The complainant appealed the outcome of the investigation. On 21 October 2010 the appeal report was issued. It directed that there was coaching and management training with Mr A and also mediation between them was recommended to resolve any outstanding differences. It also recommended that the complainant be allowed to move to another region. Also, that she was to be offered a further three more counselling sessions. The complainant rejected these offers, other than the counselling, by email on 8 November 2010. The move to another region would have meant considerably more travel, resulting in a minimum of a 12 hour day. The complainant submits that the move which was offered would have given her less favourable conditions. She resigned in circumstances which she contends amount to constructive dismissal and this amounts to a victimsatory dismissal as it came about because of the complaint she made against Mr A.
3 RESPONDENT'S SUBMISSION
3.1 The respondent confirmed that the complainant was employed by them from 9 November 2009 until 19 November 2010. She was employed as a Sales Representative (Residential) and was based in the West Region.
3.2 The respondent states that their investigation established that on 17 May 2010 Mr A did say 'fun girl' to the complainant but there was no sexual connotation to the comment and it was meant as a friendly comment. It was the only time he said it. He also confirms that he did ask the complainant to write 5 positive things, as part of a training exercise that he used sometimes. Other employees had previously been asked to undertake the same exercise.
3.3 Mr A confirmed that he did ask the complainant about the coaching she was receiving. This was not deemed to be harassment by the investigation.
3.4 Mr A vehemently denied making any comment that could be deemed to be derogatory or smutty when the complainant said she was taking the next two days off on 19 May 2010. The investigation considered the evidence of both the complainant and Mr A but could find no grounds to prefer the evidence of one over the other.
3.5 The investigation established that on 24 May Mr A had sent the same text to all of his new team asking them to confirm that they had picked up their leads. All other employees confirmed they would collect their leads before 11 am. When the complainant did not respond Mr A sent a reminder and the complainant replied. The respondent submits the complainant was treated no differently than anyone else on the team. Mr A denies making any comment about the complainant being a "fun girl" at this time.
3.6 At the meeting on 27 May 2010 Mr A did comment that it was the first time they had met since the Christmas party but denies making the 'fun girl' comment. There was a discussion about leads and the complainant confirmed she did not want to work in another area because the travel made it uneconomic for her to do so. Mr A made the same offer to two other members of his team; one of whom did subsequently make the move. There was also a discussion about bonuses and Mr A stated that he asked the complainant for an explanation as to why she had been receiving bonus payments when she had not met her targets. He advised the complainant that a performance management plan may have to be considered. Mr A denies that he was angry or intimidatory towards the complainant and the complainant gave him no indication that she wished to discuss any further matters with him. The complainant did call Mr A later that day and ask why he had called her a 'fun kinda girl'. Mr A stated that he apologized immediately for any misunderstanding and siad he meant the expression to be taken in the literal sense and had no understanding of the connotation she had attributed to the phrase. Mr A denies the allegation entirely about any comment regarding 'just a bit of craic'.
3.7 On 28 May 2010 Mr A sent a text message to every member of the team stating that they needed to achieve three sales before finishing for the evening. This could not be construed as sexual harassment.
3.8 On 1 June 2010 the complainant made a formal complaint about what she considered to be Mr A's "unjustified behaviour". On 17 June 2010 Ms C and the National Sales Manager (Mr D) met the complainant. She confirmed that she did not want to have an informal mediation session but wanted a formal investigation to be carried out. The process was explained to the complainant. As part of the investigation the respondent interviewed the complainant, Mr A and eight employees. A report was issued on 6 September 2010. It made recommendations regarding Mr A's management style and that a mediation session was to be scheduled on the complainant's return to work to discuss the contents of the report and to try and put their working relationship on a positive footing.
3.9 The complainant appealed the outcome of the investigation on 10 September 2010 and an appeal hearing took place on 15 September 2010. The overall findings of the appeal panel were to uphold the original investigation findings. It was specifically stated that there was no evidence to suggest that sexual harassment or bullying took place in the workplace. It also recommended that training take place with Mr A with the aim of ensuring that his personal management style is not open to misinterpretation in any way. In order to provide both parties with a platform for restoring a positive working relationship and to resolve any outstanding issues the appeal panel endorsed the investigation recommendation in relation to mediation. It was recognised this may not be suitable to both parties and they were open to the complainant transferring to another team.
3.10 On 25 November 2010 the complainant's legal representative wrote to the respondent and advised them that the complainant had instructed them that she had been constructively dismissed.
3.11 The respondent submits that the complainant has not shown a prima facie case of discrimination. She has not cited a comparator and has provided no proof in relation to the gender ground for discrimination. They submit they followed procedures in relation to the complainant's complaint to them and found no sexual harassment. In relation to the victimization claim they submit that the complainant had provided no evidence of any penalty arising from making her claim or the appeal. They submit that the complainant chose not to discuss the options available to her and chose to resign.
4 FINDINGS & CONCLUSION
4.1 I have to decide if the complainant was discriminated against in relation to conditions of employment on the grounds of gender, if she was sexually harassed, if she was victimised and if she was dismissed in a victimisatory manner. 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.
Sexual Harassment
4.2 The complainant contends that Mr A's behaviour amounts to sexual harassment. She contends this behaviour occurred when he referred to her being a "fun kinda girl" on at least three occasions, making a crude comment about a planned weekend away and him making another comment about the complainant being a bit of crack (or craic)". Also, she considers that he singled her out for special treatment in the way he questioned her about training and targets, texts about collecting leads and keeping on working until she had achieved sales and wanting her to work in another area. Mr A agreed that he made the first comment referred to by the complainant on one occasion but it was not meant to have the connotation put on it by the complainant and that he made none of the other comments. Other than that he contends that the complainant was treated the same as all other members of his team.
4.3 Section 14A (7) (ii) of the Acts defines sexual harassment as "any form of unwanted verbal, non-verbal or physical conduct of a sexual nature ..... being conduct which ... has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person ...... such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material." I have considered the written submissions made by both parties and the oral evidence of both the complainant and Mr A. The evidence is contradictory but I accept Mr A's evidence that, from his point of view, there was no sexual connotation to the comment "fun kinda girl", it was made on 17 May 2010 during his first conversation with the complainant after he became her manager and was made with reference to the only time they had previously met, at the Christmas party. Comments can have different meanings to different people and ten days later the complainant told Mr A that she was upset by the comment and she claims he laughed it off whilst Mr A claims he apologised for any misunderstanding. Given the nature of the contradictory evidence it is difficult to definitively establish what was said but I do accept that Mr A did not consider the matter was presented to him as a claim of sexual harassment which needed any further action. The complainant states that she was upset by the comment and she had other issues with Mr A's approach to her and on 1 June 2010 she made a complaint to the respondent about what she termed his "unjustified behaviour".
4.4 Section 14A(2) gives an employer a defence against sexual harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment. The complainant's contract refers to Grievance and Disciplinary Procedures being supplied with the contract and also being part of the Company Handbook. The contract also refers to the respondent's Harassment Policy but it does not state where this policy is set down. The respondent gave evidence that it was also in the Company Handbook. The complainant spoke to Ms C in HR on 31 May 2010 and there is an email which shows that after this conversation she was sent a copy of the respondent's Grievance Policy and the Dealing with Bullying and Harassment Policy. The respondent also gave evidence that they went through their Harassment Policy with the complainant at the meeting on 17 June 2010 and this was not disputed by the complainant. After that meeting the respondent carried out an investigation which published it's outcome on 6 September 2010. The complainant appealed the results on 10 September 2010, an appeal took place and the outcome was sent to the complainant on 21 October 2010.
4.5 I conclude that the respondent did have the appropriate policies and procedures in place at the time of the complainant's employment with the respondent and that these had been made available to her at the time she started her employment and were readily available to all members of staff. When the complainant contacted HR on 1 June 2010 she was asked to put her complaints in writing and she was then asked to a meeting on 17 June 2010 to be told what the procedure was. This was immediately followed up by the respondent instigating an investigation and this was followed by an appeal hearing. The sequence of events and the timelines shows that the respondent was serious about implementing their procedures and investigating the complainant's allegations. The complainant was not happy with the outcome but I can find nothing in the evidence provided which leads me to question the integrity of the procedure followed. I am therefore satisfied that the respondent can rely on the defence in section 14A (2) of the Acts and find that the complainant has failed to establish a prima facie case of sexual harassment.
Conditions of Employment
4.6 In relation to the complainant's claim in relation to conditions of employment section 14A(b) of the Acts states that where "such harassment has occurred and ... the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment .... the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment."
4.7 As set out above the complainant made a number of allegations of sexual harassment and other incidents against Mr A from 17 May to 28 May 2010. She spoke to HR on 27 May about these allegations and again on 31 May 2010 after which she was sent a copy of the respondent's Grievance Policy and their Prevention and Dealing with Bullying and Harassment Policy and was asked to put her complaints in writing, which she did on 1 June 2010. She gave no evidence that she was treated differently "by reason of rejecting or accepting the harassment".
4.8 The other allegations in relation to conditions of employment from the complainant are that she was singled out by Mr A. However, from the evidence presented I conclude that Mr A dealt with all members of his team in the same or similar way. I note that the investigation found that Mr A should communicate with his team in a way that was not open to misunderstanding. I conclude that the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment.
Victimisation and Victimisatory Dismissl
4.9 The complainant alleges that she was victimised and dismissed in a victimisatory manner and section 74 (2) 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 by a complainant, ......."
4.10 In this case the complainant considers that following the outcome of the investigation and the appeal into her complaints against Mr A the options presented to her amount to victimisation and she then had no choice but to resign and this amounts to constructive dismissal which is victimisatory as it came about because of the complaints she made. The respondent contends that the complainant did not explore all the options available with them and then chose to resign. Both the investigation and appeal reports suggested mediation between the complainant and Mr A. There were also suggestions that the complainant could move to another region. The move clearly presented the complainant with travel issues. The respondent said that there was no onus on them to consider asking Mr A to move regions as there had been no findings against him.
4.11 The Labour Court in Determination No. EDA1213, Monaghan County Council and Roy Mackarel considered victimisatory dismissal and put the burden on the respondent to establish that the making of complaints did not influence the decision to dismiss: "This section of the Act is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker 'as a reaction to' a complaint or other protected act. The use of the expression 'as a reaction to' connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court's view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).
Moreover, in a case such as the instant case, the Court must be alert to the possibility of subconscious or unrecognised influence by surrounding events operating on the mind of the decision maker (see Nevens, Murphy Flood v Portroe Stevedores [2005] 16 ELR 282). Hence seemingly honest evidence denying any connection between a protected act and the decision to impose a detriment must, in the absence of corroboration, be approached with caution.
In this case the burden of proving the absence of victimisation rests with the Respondent in accordance with s.85A of the Act. That burden can only be discharged if it is established, on credible evidence, that the making of complaints by the Complainant was in no sense, beyond the trivial, an influencing or reactive factor in the decision leading to his dismissal."
4.12 In this claim the respondent did not dismiss the complainant but she considered she had no option but to resign. However, having considered all the evidence I accept that the respondent dealt with the complaints in line with their procedures and I can find no evidence that the outcomes and recommendations of the investigation and appeal were influenced by the making of the complaints. Following the outcome of the appeal the complainant spoke with HR and expressed her disappointment with the outcome and intimated that she was considering resigning. HR wrote to the complainant on 1 November 2010 encouraging her to consider working options; either moving to a different region or staying in the same region but in a different team selling a different product. Both options would have meant that the complainant no longer reported to Mr A. The complainant considered that moving to another region would have given her too much travelling. Also, moving to another team in the same region would have meant her undergoing extensive training and Mr A was going to take over this team. Both of these contentions were refuted by the respondent who consider the complainant did not give the options thorough consideration before resigning. Following an exchange of emails the complainant's legal representative wrote to the respondent on 25 November 2010 confirming her resignation. I can find no evidence that the complainant suffered "adverse treatment" or that the respondent's actions were influenced by the claims she made. I find that the claims of victimisation and victimisatory dismissal fail.
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 sexual harassment
- the complainant was not discriminated against in relation to conditions of employment, and
- that the respondent did not victimise the complainant and did not dismiss her in a victimisatory manner and the complaint fails.
____________________
Hugh Lonsdale
Equality Officer
27 September 2013