Decision No: DEC-E/2014/036
Parties
Rothwell
-v-
Health Service Executive
(Represented by Byrne Wallace - Solicitors)
File No: EE/2011/746
Date of issue: 29 May, 2014
Headnotes: Employment Equality Acts 1998- 2011 – sections 74 – victimisation – protected act- prima facie case
1. DISPUTE
This dispute involves a claim by Ms. Sandra Rothwell (“the complainant”) that she was (i) discriminated against by the Health Service Executive (“the respondent” hereafter called the “HSE”) on grounds of civil status and/or family status in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts in relation to her conditions of employment, (ii) harassed by the respondent on grounds of civil status and/or family status in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 14A of those Acts and (iii) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2011.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a Clerical Officer in 1998 and progressed through the grades until she was appointed as a Grade VI Officer in 2002. In November, 2009 the complainant was successful in a selection process for assignment at Grade VI to the newly created Office of Regional Director of Operations in the respondent organisation and commenced her new role on 19 November, 2009. She states that from the outset she was exposed to significant pressure by her Line Manager (Ms. X) in terms of the volume of work assigned to her (which she contends was excessive) and the deadlines set for completion of same (which she asserts were unrealistic). The complainant further states that Ms. X made a number of remarks to her and about her, in terms of her (the complainants’) family responsibilities (the complainant was married with three children at the time) which she (the complainant ) found offensive, intimidating and humiliating and which she submits, violated her dignity at work. The complainant adds that she filed a complaint under the respondent’s Dignity at Work Policy in November, 2010 in respect of the alleged treatment of her by Ms. X. She further states that her complaint was investigated by the respondent and a decision subsequently issued detailing the findings of the investigation process. The complainant states that she does not accept the conclusions reached and submits that the alleged treatment of her amounts to (i) discrimination of her on grounds of civil status and/or family status contrary to the Acts, (ii) harassment of her on grounds of civil status and/or family status contrary to the Acts and (iii) victimisation of her in terms of section 74(2) of the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on, or around, 28 October, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 15 January, 2014 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint was scheduled for 25 April, 2014. On 8 April, 2014 Byrne Wallace, solicitors for the respondent, advised the Tribunal that it considered the complaint had not been referred to the Tribunal within the timelimits prescribed at section 77(5)(a) of the Acts and requested that this matter be addressed as a preliminary issue pursuant to section 79(3A) of the Acts. This application was refused and the respondent’s representative was advised that the matter could be addressed at the outset of the Hearing. The respondent’s representative filed a short supplemental submission on the issue on 24 April, 2014. This was copied to the complainant by e-mail immediately and she was afforded time on the morning of the Hearing for further examination of the documentation. The essence of this supplemental submission was that the Tribunal was required to adopt the practice outlined in the Labour Court Determination in Hurley v Cork VEC[1] and should, in the first instance, examine only those alleged incidents of unlawful treatment occurring within the six months immediately preceding the date of referral of the complaint to the Tribunal. On the assumption that the referral form (Form EE1) was received by the Tribunal on the next working day following the date on the letter from the complainant’s solicitor (at that time) which accompanied the Form EE1 this would mean that the period involved was 2 April, 2011- 1 November, 2011. Given the complainant is a lay-litigant I explained the import of the respondent’s submission and adjourned the Hearing for twenty minutes to allow her consider her response.
2.3 On resumption of the Hearing the complainant made no substantive response to the respondent’s submission to apply Hurley v Cork VEC[2] to the instant case. She stated that there were two alleged incidents of unlawful treatment of her contrary to the Acts during the six month period referred to – (i) the issuing of the report to the Regional Director of Operations (Mr. A) following the investigation of her complaint pursuant to the respondent’s Dignity at Work Policy (which occurred late May/early June, 2011) and (ii) the circulation to staff of an Internal Newsletter by Mr. A, which occurred on 10 June, 2011, the date of the last occurrence of alleged occurrence of unlawful treatment of her contrary to the Acts, as per her referral form (Form EE1). The complainant subsequently withdrew the latter alleged incident, leaving the issuing of the Investigation Report as the only alleged incident falling within the six month period prescribed at section 77(5)(a) of the Acts. Having considered the submissions made by the parties, I decided to adopt the approach previously taken by the Labour Court in the Hurley case. I informed the parties that my investigation would focus, in the first instance, on the single alleged act of unlawful treatment which occurred between 2 April, 2011 and 1 November, 2011. If I considered this alleged incident to amount to unlawful treatment of the complainant contrary to the Acts, I would reconvene the Hearing to hear evidence on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incident within the six months preceding the referral of the complaint not to be well founded, the earlier alleged incidents would be statute barred. The general practice of the Tribunal is to anonymise the identities of witnesses involved in a complaint and the parties agreed to the identities of the witnesses being withheld in this Decision.
3. SUMMARY OF COMPLAINANT’S CASE
The complainant states that she filed a complaint under the respondent’s Dignity at Work Policy in November, 2010 wherein she alleged that Ms. X subjected her to a campaign of bullying and harassment (in terms of that Policy) between 19 November, 2009 and 12 February, 2010 – the period she was assigned to the newly formed Office of the Direction of Operations. She confirms that her complaint was investigated over the period February/March, 2011. In the course of the Hearing she stated that she takes no issue with the bona fides of the two people who carried out the investigation or the manner in which they conducted the process. She states that her complaint centres of the fact that she fundamentally disagrees with the conclusions reached. She contends that the investigators did not attach sufficient weight to the evidence she advanced during the process and consequently, the conclusions are flawed. She submits that this amounts to victimisation of her contrary to section 74(2) of the Acts. She adds that the protected act, in terms of the test set out by the Labour Court in Tom Barrett v Department of Defence[3] in respect of making out a prima facie case of victimisation contrary to the Acts, is a conversation she had with Ms. X on 17 November, 2009 in the course of which they discussed what she termed “basic housekeeping arrangements” within the new Office of the Regional Director of Operations. When asked which paragraph of section 74(2) she was relying on in terms of grounding her complaint that this conversation amounted to a protected act, the complainant replied that none of the paragraphs (a)-(g) of that provision applied to this conversation.
4. SUMMARY OF RESPONDENT’S CASE
The respondent rejects the complainant’s allegations in their entirety. It submits that following the complainant’s evidence at the Hearing, the only alleged unlawful incident occurring within the six months immediately preceding the date of referral of her complaint to the Tribunal is the delivery of the Investigation Report by the Investigation Team in late May/early June, 2011. It is noted by the respondent that the complainant contends that this amounts to victimisation of her contrary to section 74(2) of the Employment Equality Acts. It is further noted by the respondent that the complainant states the “protected act” grounding her complaint, in terms of the test detailed by the Labour Court in Tom Barrett v Department of Defence[4] is a conversation she had with Ms. X on 17 November, 2009. It is submitted by the respondent, in the first instance, that this conversation could not be construed as a protected act in terms of the statute and caselaw. It is further submitted that the complainant accepts this by virtue of the fact that she confirmed at the Hearing that none of the paragraphs (a)-(g) of section 74(2) of the Acts applied to this conversation. The respondent argues that in the foregoing circumstances the complainant has failed to establish a prima facie case of victimisation contrary to the Acts. It further contends that the actions of the respondent, in issuing the conclusions reached at the end of the investigation process on foot of a complaint made by the complainant under the respondent’s Dignity at Work Policy, cannot amount to adverse treatment in terms of section 74(2) of the Acts, even in circumstances where the complainant disagrees with those conclusions.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent victimised the complainant in terms of section 75(2) of the Employment Equality Acts, 1998-2011. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of victimisation (in the instant case). It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of victimisation, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required her case cannot succeed.
5.3 Section 74(2) of the Employment Equality Acts, 1998-2007 defines victimisation as follows:
“For the purposes of this Part 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 an employee to the employer………….
(g) an employee having given notice of an intention to take any action mentioned in the preceding paragraphs.”
In Tom Barrett v Department of Defence[5] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.4 The complainant states that the “protected act” in terms of the first element of the test set out in the preceding paragraph was the conversation between her and Ms. X on 17 November, 2009, two days before her assignment to the new Office of Regional Director of Operations commenced. I am satisfied that the content of this discussion, whilst containing elements which raised concern for the complainant in terms of what was likely to be expected of her in the new role, does not correspond to a protected act in terms of any of the scenarios set out at paragraphs (a)-(g) of section 74(2) of the Acts. It is particularly noteworthy that the complainant, in effect concurred with this conclusion, when in the course of the Hearing she stated that that none of the paragraphs (a)-(g) of section 74(2) of the Acts applied to the conversation. It follows therefore that the complainant has failed at the first hurdle in that she is unable to establish that she performed a “protected act” in terms of section 74(2) of the Acts and her complaint cannot succeed. Whilst I am not required to address the matter further, I feel it necessary to say, in the interests of completeness, that I concur with the respondent’s argument that issuing the conclusions of an investigation process conducted pursuant to its Dignity at Work Policy cannot amount to adverse treatment of the complainant in terms of section 74(2) of the Acts merely because she disagrees with those conclusions, particularly in circumstances where she accepts that the investigation process itself was conducted in an appropriate manner consistent with the Policy and the investigators acted with probity and respect.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that the complainant has failed to establish a prima facie case of victimisation, in terms of section 74(2) of the Acts and her complaint fails
_______________________________
Vivian Jackson
Equality Officer
29 May, 2014
Footnotes:
[1] EDA 1124
[2] Ibid.
[3] EDA1017
[4] EDA1017
[5] EDA1017
Decision Number: DEC-E2014-036