Equality Officer Decision No: DEC-E/2015/065
Parties
A Sales Assistant
-v-
A Department Store
(Represented by Byrne Wallace Solicitors)
File No: EE/2012/648
Date of issue: 11 August. 2015
Employment Equality Acts, 1998-2011 – Sections 14A – sexual harassment-
Background
The Complainant was employed as a Sales Assistant from 21st August 2007 to 6th August 2013. She was paid €14.35 per hour and earned approx. €300 per week. She has claimed that she has been discriminated on grounds of gender.
The complaint was referred under the Acts to the Director of the Equality Tribunal on 20th December 2012. In accordance with his powers under Sec 75 of the Act, the Director delegated the case on 20th March 2015 to me Eugene Hanly, an Equality Officer, for investigation and decision. Submissions were received from both parties. As required by Sec 79(1) of the Acts a hearing was held on 20th April 2015.
In reaching a decision I have taken into account the written and oral submissions of both parties.
Brief Summary of Claimant’s position
This is a claim under Sec 77 of the Employment Equality Acts for discrimination on the grounds of gender by reason of sexual harassment.
On 28th November 2012 the Claimant lodged a formal complaint with HR against a named employee (the accused) for sexual harassment during the course of the past two and one half years. The harassment began in February 2010. The sexual harassment took the form of sexual comments, insults, gossip of a sexual nature and innuendoes. (full details provided at the hearing).The insults and comments escalated and the accused began having conversations of a sexual nature with co-workers in close proximity. She asked the Night Pack Managers to intervene but they reacted that they were just “young lads”. This continued to November 2012 when she reported it to HR. They advised her to make a formal complaint. She was called to a meeting with the Store Manager, HR Manager and the accused. She was offered to bring a colleague. She told her employer that she was now represented by SIPTU and requested that they would be consulted about this matter. A formal meeting was set for 11th December 2012 and she sought to be represented by SIPTU and this was denied. The employer again pointed out that she could be represented by a work colleague. She had also sought a transfer to another store. The employer continued to deny her the right of representation by SIPTU. On 14th December she called to collect her Christmas Bonus but she was not given it.
On 17th December 2012 SIPTU wrote to the employer advising that the matter had been referred to the Equality Tribunal. On 16th January she was offered a transfer to another city store but she declined it due to the additional cost of travel. She had sought a store adjacent to her home Kildare or in Southside.
On 21st January she was advised that the investigation was concluded and that the accused had been sanctioned with a 10 day suspension from work. She then wrote to the employer pointing out the flaws in the investigations and seeking a new investigation. The Equality Tribunal sought to hold a mediation meeting but the employer withdrew from it. She continued to seek a new investigation. She also continued to seek a suitable transfer while this matter was on-going.
On 6th August 2013 she had no option but to resign her position.
It is her position that she was sexually harassed at work by her colleagues. Her employer failed to take reasonable steps to prevent her from being harassed. She had received a copy of the policy on sexual harassment when she joined the company in 2007 but she received no training on this matter since. The employer failed to conduct a proper and thorough investigation and to take reasonable practical steps to prevent sexual harassment. She was further victimised by her employer over her treatment regarding the Christmas Bonus. The employer continuously refused to give her a suitable transfer despite repeated requests. This was also a form of harassment. She is seeking a vindication of her claim and compensation.
Brief Summary of Employer’s position
The employer has stated that she was properly treated at all times. At no time did her gender or race form the basis of any treatment and the employer is not vicariously liable for any adverse treatment that may have occurred.
She initially complained about the accused in February and mid July 2010. Her Supervisors addressed the matter informally at the time. She was advised if she was unhappy she should refer the matter to HR. She did not do so for two years. She had ample opportunity to make a complaint but did not do so. Nor did she make any comment at her annual reviews. Her employer concluded that the matter had been addressed and concluded. Members of management gave evidence that the matter had been raised and dealt with informally.
She did make a formal complaint on 28th November 2012. HR met with her that day to go through her complaint and she gave a medical certificate certifying her unfit for work until 4th December 2012. The employer met with the accused on four occasions as part of the investigation and then called her to a meeting. She requested that the accused attend and that she would be represented by a colleague. On 4th December she ‘phoned HR advising that she was unfit to attend and that she had taken legal advice and she should not attend on her own. On 10th December 2012 SIPTU wrote to the employer advising that they would be representing her. The employer ‘phoned her to advise that she could not be represented by a union official. She had requested a transfer to a store that was close to her home. She was offered ‘day hours’ or the city store but she declined. On 17th December 2012 notwithstanding her refusal to attend the investigation meetings she submitted a complaint to the Equality Tribunal. This was clearly premature in the circumstances where she had only raised a complaint on 28th November and an investigation was in progress. A matter arose concerning the Christmas Bonus which was an operation matter solely. On 22nd January the employer wrote to her and advised her of the findings of the investigation that she had declined to partake in. They advised that the accused had been found to have used vulgar language and had been dealt with under the company’s disciplinary procedure. They stated that it was not found that his behaviour was directed with intent towards her. They could not establish as a fact of gender, race discrimination or harassment. The employer went on to state that there was no evidence of making any further complaints other than those originally raised verbally over two years previous regarding alleged behaviour on the night pack. They concluded that the investigation was further complicated by the fact that she would not meet with the store manager or HR and that she was absent from work. She replied that the investigation was flawed and that it was not conducted by an independent third party. This had never been raised beforehand. The employer stated that employees are not allowed to be accompanied by a trade union representative at internal meetings accordingly there was no obligation to provide them with copies of company policies. She appealed the outcome to the Regional Manager in May 2013. He considered this and then advised her that disciplinary sanctions had been taken against the perpetrator of the inappropriate treatment and he pointed out the steps that had been taken to address this matter including the retraining of the night pack.
On 8th July 2013, the night-pack operation ceased in that store. On 6th August 2013 she resigned her position.
She has claimed victimisation with regard to how the employer handled the Christmas bonus. This bonus calculation was no different to the calculation that applies to all other staff.
She alleges that she was victimised by the employer in not transferring her to another store. She had specifically requested a transfer to a store near her home or a Southside store but those stores could not facilitate her. However the employer offered her a transfer to a city store but she declined it.
This claim is out of time. As per Sec 77(5) (a) she had 6 months from date of occurrence of the discrimination or victimisation to which the case relates. She raised this matter in 2010 and it was addressed by the Night Pack Management in mid-July 2010. At that time she was advised if she was unhappy she should refer the matter to HR. She did not bring this to the attention of HR for over two years. She did not make any reference to this in her annual reviews. Therefore the incidents that she is now basing her claim on occurred in 2010 and she presented a claim to the Tribunal on 20th December 2012. This claim is out of time.
The employer stated that it took all reasonably practicable steps to prevent any harassment. They have a policy for dealing with such matters. It immediately acted upon her complaints in February and July 2010. They dealt with it informally and she did not raise a query for two years. When she made a formal complaint the employer proceeded to conduct an investigation. She refused to participate unless she was represented by a union official. Company policy does not allow for such representation. S.I. 146/2000 is a guidance document. It does not require employees to be accompanied by trade union representation at internal meetings. She cited S.I.78/2000 in support of her position. That code specifically states “this code does not impose any legal obligations in itself, nor is it an authoritative statement of the law”. It is the employer’s position that her rights were not breached by the employer’s requirement that she could be accompanied by a colleague and not a trade union representative.
The employer conducted an investigation despite the fact that she declined to participate. They took disciplinary sanctions against employees and they retrained all the night pack staff.
It is their position that this claim is out of time and that she was not sexually harassed, discriminated against on grounds of gender, race or victimised contrary to section 6 of these Acts.
Findings/Conclusions of the Equality Officer
1) Time Limit
Sec 77 (5) (a) states, “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates, or as the case may be, the date of its most recent occurrence”
The claim was presented to the Tribunal on 20th December 2012. Therefore the period that may be investigated is 21st June 2012 to 20th December 2012 unless it can be established that there was a continuum of the harassment from 2010 into the allowable period of time.
I note that the Claimant made an informal complaint to the Night Pack Management in February and mid-July 2010. She alleged that the victimisation continued for two and a half years after that until November 2012.
I note that the Night Pack Management gave direct evidence that they dealt with this matter informally in 2010, handshakes were exchanged and they believed that the matter had concluded.
I note that they advised her that if she was unhappy she should raise it with HR.
I note that it is their direct evidence that she did not raise any further complaints and she did not raise any issue at the annual reviews.
I note that it is their direct evidence that no issue of harassment came to their attention following the informal intervention either through management observation or reporting by the Complainant until the formal complaint in November 2012.
I note that they concluded that the matter had been dealt with and it was closed.
I note that she did not raise a formal complaint until 28th November 2012.
Therefore for a claim to be in time a complainant needs to show that the last act occurred within 6 months and for the other alleged acts to be within time there must be sufficient linkage between the last act and the other acts.
I note the Complainant’s direct evidence that the harassment continued and that she did not make any complaints informal or otherwise to management until November 2012.
I find that no corroborative evidence was presented to this hearing that convinced me that there was a continuance or linkage of the alleged discrimination.
Therefore I find as a matter of fact that the alleged harassment in 2010 ceased following the informal intervention in mid-2010 by the Night Pack Management.
Therefore I find that there was no linkage from the alleged 2010 incidents to the November 2012 complaint.
Therefore as per Sec 77(5) (a) I find that this claim was presented out of time and I do not have jurisdiction to deal with it.
2) Reason for referral of the complaint to the Tribunal on 20 December 2012
I note that after the Claimant had lodged a formal complaint she sought to be represented by a trade union official. The employer advised that it is against their policy to allow union representation at internal meetings.
I note that a stand-off took place and she would not attend the investigation meeting.
I note that her union wrote to the employer on 17th December 2012 stating “Your repeated refusal to allow RP representation of her choice has forced us into the position that we have referred the matter to the Director of the Equality Tribunal under Sec 77 of the Employment Equality Act 1988”.
Therefore based on that statement from her union official I must conclude that the reason why this claim was referred to the Equality Tribunal was because she was refused the right of union representation at the investigation into her formal complaint.
Therefore I must find that no prima facia case of victimisation has been established.
3) Christmas bonus
I note that she called to the store for her bonus on 14th December 2012. Based on her evidence she experienced difficulties with the manner of the calculation and the actual payment.
I note that these matters emerged after she had presented her claim to the Tribunal on 17th December 2012.
I also note that she has produced no evidence to support her position that she was victimised.
I note the employer’s evidence that the bonus calculation was the same for all employees.
This matter developed after the claim was presented to the Tribunal and so cannot be considered by the Equality Officer.
Decision of the Equality Officer
I hereby make the following decision in accordance with Sec 79 (6) of the Employment Equality Acts
I have decided that the decision of this Tribunal is not in favour of the Complainant and that this claim fails.
______________________________________
Eugene Hanly
Equality Officer
11 August, 2015