DEC-E2015-048

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2015-048

PARTIES

Jakub Konieczny

-V-

Business Mobile Security Services Ltd t/a Seneca Limited

(represented by Arthur Cox Solicitors)

File Reference: EE/2012/643

Date of Issue: 21st July 2015

Keywords

Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(b)and (c), civil status and family status – section 8, conditions of employment, Section 14 - harassment and sexual harassment, Section 74 – Victimisation, establish a prima facie case, statutory time limits,

1. Dispute

This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the family status and civil status grounds, in terms of Sections 6(1) and 6(2)(b) an (c) of the Employment Equality Acts 1998-2011, and pursuant to Sections 8, 14 and 74 in relation to his conditions of employment, harassment, sexual harassment and victimisation.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 14th December 2012 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 18th March, 2014 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written statements were received from the complainant on the 24th October 2013 and from the respondent on the 23rd December 2013. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 16th April, 2014, 13th and 14th October 2014 and 3rd and 4th of February 2015. The final documentation was received on the 3rd of March 2015.

3. Complainant’s Case

3.1 The complainant is a Polish national and he was employed by the respondent as a security operator in 2009. Initially he lived in shared company accommodation and the company provided bus transport to work. In July 2012 his wife was recruited by the respondent as a security officer and they moved into a house with their children and the rent was paid by the company and they were responsible for the utility bills. He said that he never had any problem at work until his wife was employed. Shortly thereafter she made a complaint to the management alleging that one of the company bus drivers who collected her for work was in her opinion drunk. She also made a complaint about the Polish Team Leaders saying that they did not follow up on her complaint about the bus driver.

3.2 Following the lodging of this complaint the complainant states that he was subjected to bullying and harassment by other Polish employees of the company. He said that the Polish employees stopped talking to him and ignored him while they were waiting for and travelling on the bus and nobody would sit beside him. Up to the complaint he had a good relationship with all his work colleagues. On entering the bus, he said that nasty comments in Polish were directed at him by other Polish workers a comment was made “tell tale”. Another played a ring tone on his telephone which the complainant said he found offensive. He said that his Team Leaders were on the bus but did not intervene to stop the harassment. He said that he was also ignored in the work place and when he entered the canteen the Polish worker got up and left some saying “I’d rather stay outside” or “let’s get out of here since it stinks”.

3.3 On 9th of August 2012, the complainant said that he was in the canteen and he observed a Team Leader harassing his wife. He asked the TL to leave his wife alone and he was threatened by him. Up to the time of the complaint he said that he worked alongside these Polish workers under a Polish Team Leader but after the complaint he was directed by the Team Leader to work alongside workers from African countries and Pakistan in locations which were further away. In or around the 24th of August 2012 when he arrived at work he was confronted by two Polish workers one a Team Leader (TL) and called a “spy” and accused of “ratting” on their friends.

3.4 The complainant and his wife made a report about a number of the incidents under the grievance procedures and an investigation was carried out by the Security Manager Mr. P. He said that there were only two of his complaints investigated. The complainant said that he understood that all his complaints would be investigated but he was not allowed raise other issues that were not in the written report, for example, he could not raise issues about the way the Polish employees treated him following the report made by his wife. He said that he made it clear at the investigation that the treatment was connected to his wife reports about the bus driver and the failure of a Team Leader to report her concerns to management. He said that Mr P upheld the two complaints but failed to investigate any new complaints raised at the investigation. He was not happy with the outcome as the threats made to him by some members of the Polish community were not investigated and he was not informed of the sanctions imposed on the Team Leaders and he appealed against the outcome. The appeal was heard by a Director of the company Mr. F and he upheld the decision of Mr. P.

3.5 The complainant submitted that a further incident occurred when a poster on the bus was vandalised and his name was written on it and he made a written complaint under the grievance procedures to management. He said that on the 24th of October 2012, when he boarded the bus one of the Polish workers played a portion of a song in Polish which he found offensive. He said that he was a policeman in Poland and the other Polish workers knew this. He wrote a report on the 29th of October 2012 complaining about his treatment by Polish workers and was called to a meeting with Mr. G a Director of the company. The complainant said that he told Mr. G about his treatment by some Polish workers following his wife making a complaint about the bus driver. He said that Mr. G said that he would only investigate the case if he measured their genitalia to determine whose was the longest. The complainant said that he was upset at this suggestion and he believed that the remark demonstrated that his complaints were not taken seriously. He said that he tried to raise other issues about the behaviour of some of the Polish workers such as being ignored, people leaving the canteen when he entered, laughing and staring at him but he said Mr. G refused to hear his complaints because he had no witnesses. His complaints were not upheld and he appealed the outcome. The appeal hearing was arranged 60 kilometres away from his home and he could not attend as he got too short of notice. It was rearranged on two other occasions, once during his prearranged holiday and on the third occasion the company refused to provide a Polish interpreter. His father also died during this period and he had to return to Poland. The complainant said that his English was not good enough to attend without an interpreter.

3.6 On another occasion the complainant said that he was patrolling in an area and on the “way leave” section of the site where he had to cross a road from one part of the site to another, two Polish workers at the way leave gate on the other side refused to open the gate to allow him to enter the site. The complainant said that after he took out his telephone to report them they opened the gate. . He telephoned the manager and he together with another manager Mr. G arrived at the site. The complainant said that he was asked to make a written report of the incident. An investigation was carried out by Mr. G but he was never informed of the outcome.

3.7 The complainant said that the Polish workers continued to ignore him and not speak to him and despite making complaints to management his situation did not improve. When he got on the bus in the morning Polish employees directed derogatory remarks at him and called him smelly. He said that he had stopped bringing the treatment to the attention of the company because he had been told by the company during previous investigations not to report the treatment unless he had a witness. He referred his complaint of discrimination on 14th December 2012.

3.8 The complainant said that on the 23rd February 2013 a Polish work colleague deliberately walked into him and hit him with force causing him an injury. He was referred to the company doctor and was on sick leave as a result. He made an official complaint on his return to work. The incident was investigated by the Security Manager, but his complaint was not upheld because there were no witnesses. He appealed the outcome and it was unsuccessful and the matter was delayed and not investigated in a timely manner.

3.9 The complainant also submitted that that he was discriminated against in relation his accommodation. He said that when his wife joined the company and they moved into a house on which the company paid the rent they discontinued paying his utility bills. He believes he was treated differently than other employees. He also submitted that his shifts were reduced because he made a complaint resulting in him being paid less than another employee.

3.10 On the 14th of February 2013 the complainant said that he received a letter from the company calling him to an investigation under the disciplinary procedures for allegedly spreading rumours about Mr. P. The complainant denied that he spread any rumours but he complained during the course of an investigation about his treatment that Mr. P had not investigated his complaints properly. The complainant said that he believed that he was going to be dismissed. The disciplinary hearing commenced but it did not proceed.

4. Respondents case

4.1 The respondent submitted that the complainant has provided no evidence to support his contention that he was discriminated against on the family status ground and that the application to have the case heard under the civil status ground was out of time. It was submitted that any complaints that the complainant made to the company about his treatment were investigated under the grievance procedures.

4.2 The respondent said that the company provides around the clock security to a client in Co. Mayo. The complainant was employed as a security officer on 2nd March 2009 and that contract ended on the 2nd of October 2009 and he was re-employed again on a contract in April 2010 and this ended in October 2010. He commenced his current contract on 9th March 2011 and has been in continuous employment since then.

4.3 On the 22nd of August 2012, the complainant made a complaint about his treatment and that of his wife during an incident in the canteen with a Polish Team Leader regarding whether or not his wife intended reporting the Team Leader for smoking in an unauthorised area. A further complaint was received from the complainant on the 25th of August 2015 concerning two Polish workers who allegedly said “You fucking rat on us and we have proof of that. Every TL knows about it” These two complaints were investigated and they were upheld. Mr P Security Manager stated that he carried out the investigation into the complaints raised in July and August 2012 by the complainant and his wife. He issued a written report of his findings on the 10th of September 2012 and upheld the two written complaints and he recommended further investigations take place as regards these employees behaviour towards the complainant. The complainant appealed the findings. The appeal was heard by Mr. F and he upheld the findings. Mr. F said that the two complaints were upheld and that disciplinary action was taken against the employees involved. He said that the company does not tolerate any form of bullying or harassment and the have policies on health and safety and bullying and harassment and any complaints received under the procedures are thoroughly investigated. The message is reinforced in tool box talks by the Team Leaders and Managers.

4.4 Mr. F said that the company initially provided single room accommodation in rented houses for all the employees and the company paid and utility bills. This system was changed when employees started renting their own accommodation and now all the employees are charged €35 per week rent in adopted accommodation and the company pay the utility bills. In cases where employees wish to rent their own houses to accommodate their family the company pays the rent and charges the employee the €35 for rent. The utility bills are not paid by the company because people other than company employees are living in this accommodation. This rule applies to everyone regardless of their civil or family status. He said that the complainant was not treated differently in this respect.

4.5 Mr F said that the client company decreased the amount of security work required of them in October 2012. The company decided that all the staff shifts would be reduced to three so as to avoid making workers redundant. He said that the complainant was treated the same as everybody else and he was reduced to three shifts which resulted in lower pay. He said that during this period some employees may have opted for extra shifts which arose at short notice and hence the difference in pay.

4.6 Mr. G, a member of management and a Director of the company, said that he had an informal meeting with the complainant and he was complaining about a ring tone played on the bus which he said was offensive to him. He said that he knew that the complainant’s wife had referred complaints about the bus driver and team leaders but he did not believe that the complainant was being harassed. During the informal meeting the complainant spoke about being a former police man in Poland and the significance of the ring tone in that context. He also complained about being picked on by other Polish workers. Mr G accepts that he did mention measuring their respective genitalia but he said it in the context of advising the complainant about dealing with the people who were allegedly harassing him. He was suggesting to the complainant that he was the “bigger man” and he did not have to stoop to the level of the people who harassed him. Mr. G believed the complainant had a good level of English and would not have misunderstood the comment which he now regrets making.

4.7 The complainant made a formal written complain to Mr. G on the 29th of October 2012 listing out a number of grievances about his treatment including the ring tone incident. Mr G. said that he was appointed to investigate the matter. He met with the complainant on the 1st of November 2012. The outcome of his investigation was made known on the 21st of November 2012. He did not find that the ring tone incident constituted bullying or harassment as there was no evidence presented to support the complaint other than the complainant’s evidence. The complainant withdrew complaints about another employee and a request not to work with a list of Polish employees who the complainant alleged harassed him was not recommended by Mr. G. The complainant also complained about the investigation carried out by Mr. P into his original complaints. Mr G. recommended that that the disciplinary procedure should be invoked against the complainant because there was no evidence to support the complaints and the complainant was making damaging rumours about Mr. P.

5. Conclusions of the Equality Officer

Statutory Time Limits

5.1 The first matter I have to consider is whether the complaint in relation to discriminatory treatment on the civil status ground is validly before me and if the complaint was referred within the statutory time limits. The complainant referred a complaint of discrimination on the 14th of December 2012. On the complaint form he ticked the family status box and stated that he was discriminated against in relation to his conditions of employment and harassed and victimised. On the initial day of the hearing it was submitted that that the complaint referred also included the civil status ground. The respondent submitted that any complaint on the civil status ground was referred outside the statutory time-limit for making a complaint. The application to extend the time-limit was only made on the date of the first hearing on the 16th of April 2014 and therefore was outside the time-limit provisions of Section 77(5)(b) of the Employment Equality Acts. It was further submitted that the complainant was legally advised at the time the complaint was referred and it was difficult to envisage how the complainant could demonstrate any reasonable ground for extending the time limit to twelve months under section 77(5)(b) of the Acts. It was submitted that the application to include civil status was the introduction of a new discriminatory ground and In the instant case what is being sought is to introduce a new ground of discriminatory which cannot be permitted other than in accordance with statute.

5.2 Counsel for the respondent referred me to the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan[2009] IEHC 370 and submitted that it did not permit an extension of the time-limits. In that case McGovern J. held that while it was permissible to amend a claim set out in form EE.1 this was only permissible where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’

Counsel for the respondent referred to a number of cases where additional matters were considered these included Byrne v Association of Irish Racecourses Ltd. DEC-E2008-008; Batt v Palmec Ltd. t/a Comfort InnDEC-E2010; and O’Brien v Eircom Ltd. DEC-E2010-007. She stated that in each of those cases cited, the amendment to proceedings only involved the addition of a particular treatment e.g. victimisation and did not in any of the cases involve the introduction of different grounds of discriminatory treatment. In the instant case what is being sought is to introduce a new ground of discriminatory treatment which it is submitted cannot be permitted other than in accordance with statute. She submitted that there are no circumstances where the flexibility afforded to Equality Officers, to include matters at hearing which have not previously been raised by the complainant, can be so stretched under the provisions of section 77 (5).

5.3 Section 77(5)(a) of the Acts provides as follows:

“Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

In considering whether I can consider the complaint under the civil status ground, I have applied the jurisprudence of High Court in the case of County Louth VEC v The Equality Tribunal[2009] IEHC 370 to the facts of the case herein. Mc Govern J. stated at para. 6.2:

"I accept the submission on behalf of the respondent 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 ..... remains the same. What is at issue 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 very 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.

I further note that in his Judgment in Clare County Council v Director of Equality Investigations[2011] IEHC 303 Hedigan J. stated:-

"It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise or alternatively given adequate time to answer there can be no injustice therein.”

5.4 In applying the above mentioned jurisprudence it cannot be said that the respondent was taken by surprise to learn that the complainant was complaining about harassment and discriminatory treatment in relation to his conditions of employment initiated against him by his fellow Polish workers following a complaint made by his wife. I note that the Labour Court in the case of Department of Foreign Affairs v CullenEDA 6/2011 accepted that the Equality Officer was entitled to investigate a complaint of victimisation in circumstances where a letter which was sent to the Tribunal by the complainant outlining an issue she had with the respondent concerning the conduct of her PMDS, but in that letter did not allege victimisation by the respondent nor did it say that she was amending her original complaint form to include victimisation. The Labour Court stated:

“Nevertheless, although not formally referred in those terms, the Court is satisfied that the facts alleged in this letter are capable of being understood as an allegation of victimisation within the meaning of s.74(2) of the Acts. The Equality Tribunal copied the letter of 26th September 2008 to the Respondent on 30th September 2008. Consequently the Respondent was on notice of the allegations contained therein and could have sought clarification from the Complainant as to the import of her letter and the purpose for which it had been sent to the Equality Tribunal. In County Louth Vocational Education Committee v The Equality Tribunal McGovern J accepted that the Equality Tribunal was entitled to adopt relatively informal procedures in the conduct of its investigations provided that they are consistent with the requirements of natural justice. It is clear that the Equality Officer accepted that the letter of 26th September 2008 contained a complaint of victimisation which he was entitled to investigate. Moreover, it is clear that the Respondent now fully understands the gravamen of the complaint of victimisation and in the context of a de novo hearing of the matter any prejudice which the Respondent may have suffered at first instance is now cured.

Having regard to all the circumstances of this case the Court is prepared to accept that the claim of victimisation is properly before it and can be investigated de novo.”

5.5 In applying this reasoning to the complaint herein, I am satisfied that the nature of the complaint of discrimination also included the civil status ground and was expanded on in the submission of the 24th October 2013. I am satisfied that any prejudice the respondent may have suffered as a result of believing that they were not meeting a complaint on the civil status ground has been cured as the respondent was given an opportunity to put in further submissions and to call witnesses to two further hearings of the matter. I am satisfied therefore, that the complaint of discrimination on the civil status ground is validly before me.

5.5 Notwithstanding my finding above and for the avoidance of any doubt in relation to whether the discrimination complaint on the civil status ground has been referred within the six month statutory time limit in accordance with Section 77, I have considered whether it is appropriate to grant an extension of the time limit under section 77(5)(b). The submission of the submission of the 24th of October, which included the details of the alleged discrimination and harassment, was received more than 6 months after the complaint was referred to the Tribunal. However I note that the complainant raised other instances of harassment following this referral and these incidents and further investigations took place under the grievance procedures of an incident which took place on the 23rd of February and the final outcome of this grievance was made known to the complainant in June 2013. I have stated above the respondent could not have been prejudiced in relation to the complaint or taken by surprise by a complaint of discrimination on the civil status ground as he submitted all his problems in relation to harassment stemmed from the complaints his wife made to management. Therefore an extension of time is warranted in the circumstances. I therefore grant an extension of time for referring the civil status complaint under Section 77 of the Acts.

Discrimination on Prohibited Grounds

5.6 In this case, I must consider the complainant's claim that he was directly discriminated against and discriminated against by association on the civil and family ground in terms of section 8 of the Employment Equality Acts in relation to his conditions of employment.

6.—(1) For the purposes of this Act and without prejudice to its

provisions relating to discrimination occurring in particular circumstances,

discrimination shall be taken to occur where—

(a) 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) (in this

Act referred to as the ‘‘discriminatory grounds’’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably

than a person who is not so associated is, has been

or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the

discriminatory grounds would, by virtue of paragraph

(a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and

the descriptions of those grounds for the purposes of this Act) are—

………..

(b) that they are of different marital status (in this Act referred

to as ‘‘the marital status ground’’),

(c) that one has family status and the other does not (in this

Act referred to as ‘‘the family status ground’’),

Section 8 provides:

In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective

employee and a provider of agency work shall not discriminate

against an agency worker.

(4) A person who is an employer shall not, in relation to

employees or employment—

……….

(a) have rules or instructions which would result in discrimination

against an employee or class of employees in

relation to any of the matters specified in paragraphs (b)

to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would

be likely to result in any such discrimination.

…………

(6) Without prejudice to the generality of subsection (1), an

employer shall be taken to discriminate against an employee or prospective

employee in relation to conditions of employment if, on any

of the discriminatory grounds, the employer does not offer or afford

to that employee or prospective employee or to a class of persons of

whom he or she is one—

(a) the same terms of employment (other than remuneration

and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short

time, transfers, lay-offs, redundancies, dismissals and disciplinary

measures,

as the employer offers or affords to another person or class of persons,

where the circumstances in which both such persons or classes

are or would be employed are not materially different.”

In relation to harassment:

“14A.—(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as ‘‘the victim’’) is

harassed or sexually harassed either at a place where the

employee is employed (in this section referred to as ‘‘the

workplace’’) or otherwise in the course of his or her

employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer, or other business contact of the

victim’s employer and the circumstances of the harassment

are such that the employer ought reasonably

to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) 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,

or

(II) it could reasonably be anticipated that he or she

would be so treated,

the harassment or sexual harassment constitutes discrimination by

the victim’s employer in relation to the victim’s conditions of

employment.

(2) If harassment or sexual harassment of the victim by a person

other than his or her employer would, but for this subsection, be

regarded as discrimination by the employer under subsection (1), it

is a defence for the employer to prove that the employer took such

steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether or not

subsection (1)(b) also applies), to prevent the person

from harassing or sexually harassing the victim or any

class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim

from being treated differently in the workplace or

otherwise in the course of the victim’s employment and,

if and so far as any such treatment has occurred, to

reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual

harassment may not be used by an employer as a basis for a decision

affecting that person.

(7) (a) In this section—

(i) references to harassment are to any form of unwanted

conduct related to any of the discriminatory grounds,

and

(ii) references to ‘‘sexual harassment’’ are to any form of

unwanted verbal, non-verbal or physical conduct of

a sexual nature,

being conduct which in either case has the purpose or

effect of violating a person’s dignity and creating an intimidating,

hostile, degrading, humiliating or offensive

environment for the person.

(b) Without prejudice to the generality of paragraph (a), such

unwanted conduct may consist of acts, requests, spoken

words, gestures or the production, display or circulation

of written words, pictures or other material.

5.7 It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that he was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

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 the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

In the case of Melbury Developments and Valpeters(Det. No. EA AO917) the Labour 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."

Civil Status Ground

5.8 The first matter Ihave to decide is whether the complainant is covered by the civil status ground. He is complaining about discrimination in relation to his conditions of employment and harassment which he says he was subjected as a result of his wife’s complaints to management. The first matter the complainant has to establish is that he is covered by one of the protected grounds in this case the civil status ground. He has to establish that he was treated less favourably discriminated against and harassed because of his own civil status than another person of a different civil status was treated or would have been treated in a comparable situation. The complainant is married, but he was not harassed because of this fact, he was harassed because his wife, who also worked in the company, made a complaint to management about employees of the company. In other words the alleged treatment occurred because of who he is married to and not because of his own marital status. . This is not a protected ground under the Act. For example if the company had a rule in place that only single people could apply for a job, promotion or work on a particular part of the site any such rule would be discriminatory treatment of the complainant in relation to his conditions of employment. He is married and therefore he can establish that because of his civil status the rule is discriminatory against him and that he is being treated less favourably than a person of a different civil status in a comparable situation. Therefore the complaint on the civil status ground is misconceived.

5.9 It would appear also that the complainant is claiming discrimination by association on the civil status ground pursuant to Section 6(1) of the Act cited above. Counsel for the respondent submitted that the complainant and his wife are of the same protected ground (civil status) and therefore discrimination by association cannot be established. I was referred to a number of Equality Officers’ decisions in the matter and the Council Directive 2000/78/EC and the jurisprudence of the European Court of Justice held in Case C-303/06 Coleman v Attridge Law [2008] ECR I-5603. In O’Rourke v JJ Red Holdings trading as Dublin City Hotel DEC-E2010-045 and Two Complainants v A Restaurant DEC-E2013-045 Two Complainants v A Restaurant DEC-E2013-045 it was held that in order to establish discrimination the complainant has to establish that he or she was treated less favourably than another person who was not associated to a person covered by the protected ground. In this case the complainant is claiming he was harassed on the civil status ground because of his association with his wife. In the Restaurant case cited above the Director held: “The discrimination occurs where a person is treated less favourably not because they are covered by a specific ground themselves but because they are associated with someone covered by that ground. For example, if a person who is not gay is treated less favourably because they are friendly with a gay person, they are being discriminated against on the sexual orientation ground by association.”

Applying the jurisprudence in the above case-law I am satisfied that the complainant cannot establish discrimination by association and that he was treated less favourably on the civil status ground than another person of a different civil status in comparable circumstances. Therefore a complaint of discriminatory treatment by association is misconceived.

Family Status

5.10 The matter I have to consider is whether the complainant was discriminated against on the family status ground.

Section 6 (2) of the Act provides that the complainant has to establish that he was treated less favourably than a person who does not have a family status.

The definition of family status under Section 2 is:

‘‘family status’’ means responsibility—

(a) as a parent or as a person in loco parentis in relation to a

person who has not attained the age of 18 years,”

The complainant submitted that he suffered discriminatory treatment because of his family. The complainant has to establish that he was treated less favourably than a person of a different family status. I note that the complainant has the same family status as some other employees of the respondentas they also have children under 18 years old. Therefore the complainant cannot establish a prima facie case on this ground.

Victimisation

5.11 The next matter I have to consider is victimisation. Section 74(2) provides:

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 the employee to the

employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a

complainant,

(d) the work of an employee having been compared with that

of another employee for any of the purposes of this Act

or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under

this Act or the Equal Status Act 2000 or any such repealed

enactment,

(f) an employee having opposed by lawful means an act which

is unlawful under this Act or the said Act of 2000 or

which was unlawful under such repealed enactment, or

(g) an employee having given notice of an intention to take any

of the actions mentioned in the preceding paragraphs.

The complainant claimed that he was victimised after he complained about the harassment to management. The complainant submitted that following making of complaints about harassment to management his hours were cut, the company did not grant him a translator during the investigation of his grievances, the company delayed in investigating a complaint that he was hit by another employee and that the company did not take into account all the documentation during the investigation. He further submitted that the company set up a disciplinary hearing against him because he criticised the report of Mr. P into his grievances. He said he repeated this criticism at a meeting with Mr. G who was conducting an investigation into bullying and harassment and in particular the ring tone incident.

5.12 The respondent submitted that the complainant was not victimised and any incidents referred to took place after the referral of the complaint. Counsel submitted that the employer must be aware that the complainant has taken a complaint under a protected act or indicated an intention to do so, before any detrimental steps are taken by the employer, in order for a claim of victimisation to succeed. I was referred to the decision of the Equality Officer in the case of Ms. B v A Leisure CompanyDEC-E2010-095 where the employee had raised no complaints of discrimination or commenced any proceedings during her employment with the employer and the complaint of victimisation was rejected by the Equality Officer. Counsel further submitted that the complainant in this case, until the institution of the proceedings in being, had not taken any action of the type referred to at section 74(2) nor indicated his intention to do so and the first knowledge that the Respondent had that a claim for discriminatory treatment was being alleged was when it was provided with a copy of the Complainant’s EE.1 form in January 2013. It was further submitted that in order to succeed in a claim for victimisation the Complainant has to show not only that he suffered adverse treatment at the hands of the Respondent but that this treatment was caused by him having undertaken a protected act of a type referred to in section 74 and where he has not undertaken a protected act he cannot establish victimisation even if adverse treatment is shown, which it is submitted cannot be shown in this case. It was submitted that the complainant only referred to one incident in his submission which he considered victimisation that is the allegation of assault which arose from an incident on 23rd February 2013, some two months after the Complainant referred to the Tribunal. It was submitted that in order for the complainant to demonstrate that he was victimised at the time of making his complaint to the Tribunal he would have to show that the adverse treatment had already been suffered by him. As the incident had not happened and therefore the delayed investigation (which constituted the alleged victimisation) could not have happened therefore the victimisation complaint does not meet the test set out in the Labour Court case of Department of Defence v Barrett EDA1017.

5.13 The complainant made a complaint of victimisation in his referral form received by the Tribunal on the 14th of December 2012. He expanded on his complaint in a statement received on the 24th of October 2013 in which he also expands on his victimisation complaint. I am satisfied that the victimisation complaint is properly before me.

5.14 I note the Labour Court set out the test for victimisation in the above cited case as follows:-
1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant”.

In examining the complaint of victimisation there were two incident complained about following the referral of the complaint on the 14th December 2012: the respondent called the complainant to a disciplinary hearing and there was a delay in investigating a complaint about another employee deliberately hitting him. All of the other issues complained about occurred before the referral of the discrimination case therefore they do not constitute adverse treatment pursuant to the Act as the complainant had not made any complaint of discrimination nor had he made his intention to take a case under the Act known to the respondent prior to referring the case to the Tribunal.

5.15 I am going to examine the above matters to determine if they constitute victimisation pursuant to the Act. In relation to the delay in investigating the complaint about another employee hitting the complainant, there is no evidence that the delay was caused by the complainant lodging a complaint of discrimination. The next matter I have to consider is the investigation under the disciplinary procedures. I note that Mr. G recommended in his report of the 21st of November 2012, following his investigation of the complainant’s complaints about bullying and harassment by some Polish employees, that the complainant should be investigated under the disciplinary procedures for making unsupported complaints and damaging rumours about Mr. P who had investigated earlier complaints. The complainant appealed the outcome of Mr. G’s report. The appeal did not proceed as arranged on two occasions, the first on his day off and at a location not convenient to him and the second occasion on the 19th of December 2012; he was on a prearranged day off to collect his passport so that he could return to Poland for Christmas. It was rearranged for the 18th of December 2012 and the complainant informed the company he was not attending because the company did not provide an interpreter for him and his wife was not allowed to attend as she was no longer employed by the company.

5.16 The disciplinary investigation was initiated in February 2013 and after the complainant referred his complaint on the 14th of December 2012. I note that the respondent did not provide an interpreter for the complainant during the investigations of his complaints and his teenage daughter translated his complaints from Polish to English. It is clear to me from the hearing of this case and from the documentation handed in that the complainant’s command of English was not sufficient to take part in the investigations or appeal without a professional interpreter to translate the process including the documents. I am surprised that the company did not rearrange the appeal and provide an interpreter for the complainant. I note that the investigation report recommended that the remarks of the complainant about Mr. P should be investigated but I also note that the investigation by Mr. G was conducted in a most unprofessional manner given the inappropriate remarks made by him and the complainant should have been given an opportunity to air this grievance about the conduct of the investigation in an appeal. The decision taken by the respondent that the appeal failed because the he did not attend any of the appeal hearings is disingenuous and failed to take account of the genuine reasons given for not attending. It is clear to me that the decision taken by the respondent to initiate a formal investigation under the disciplinary procedures after receiving the discrimination complaint and without rearranging the appeal was taken as a consequence of the complaint referred to the Equality Tribunal. I am satisfied this constituted adverse treatment in relation to this aspect of his complaint.

5.17 In considering victimisation, I have applied the reasoning in the case of Monaghan County Council and Roy Mackarel Det. No. EDA1213 where the Labour Court stated:

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 establish, 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.

Applying the above jurisprudence to the complaint herein, I am satisfied that the complaint of discrimination was more than a trivial influence on the respondent as regards the decision not to rearrange the appeal and to initiate the disciplinary process, which I have found to be adverse treatment of the complainant. In accordance with the Labour Court in the above cited case the burden of proving the absence of victimisation rests with the respondent and I am not satisfied this has happened. I find therefore that he has established a prima facie case of victimisation which the respondent has failed to rebut.

6. Decision

6.1 I have concluded my investigation of the complaint and I hereby make the following decision in accordance with Section 79(6) of the Act. I find that

(i) The complainants of discriminatory treatment and harassment on the civil status and family status grounds fails;

(ii) that the complainant was victimised pursuant to section 74 of the Acts.

6.2 Section 82-(i)(c) of the Act provides that I can make an order for redress for the effects of the discrimination and victimisation. The maximum award I can make under Section 82(4) is two years pay in respect of victimisation. In calculating the redress and taking into account all the circumstance of the case, I consider that an award in the amount of €12,000 is appropriate in respect of victimisation. In accordance with my powers under section 82 of the Employment Equality Acts, I order the respondent to pay the complainant €12,000 in compensation for the effects of the victimisation. This figure represents compensation for the infringement of his rights under equality legislation in relation to victimisation and does not include any element relating to remuneration, and therefore it is not taxable.

____________________

Marian Duffy

Equality Officer

22nd July 2015