THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2015-049
PARTIES
Eliza Konieczna
-V-
Business Mobile Security Services Ltd t/a Seneca EU
(represented by Arthur Cox Solicitors)
File Reference: EE/2012/644
Date of Issue: 22nd July 2015
Keywords
Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment - Section 6(2)(a)(b) and (c), gender, civil status and family status – section 8, conditions of employment and dismissal, Section 14A - harassment, establish a prima facie case, statutory time limits,
1. Dispute
This dispute concerns a claim by a complainant that she was discriminated against, dismissed and harassed by the above named respondent on the gender, family status and civil status grounds, in terms of Sections 6(1) and 6(2)(a) (b) an (c) of the Employment Equality Acts 1998-2011, and pursuant to Sections 8 and 14A of the Acts.
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 her 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 October2013 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.
3. Complainant’s Case
3.1 The complainant is a Polish national and she was employed by the respondent as a security operator in July 2012, her husband was already working there. They were living in Ballina and the company provided transport for all of its employees to the construction site. She said that they were the only husband and wife working in the company. She said that there were very few women employed as security officers and she was asked intrusive questions about her family life and husband and was treated differently because she had children by the male employees. She was constantly being asked by her team leader why she was working and about her childcare arrangements and why she was working in the company. She said that when her male colleagues found out that she had previously worked as a project manager in a construction company they subjected her to discriminatory comments and questions about working in a male dominated company.
3.2 One morning, shortly after the complainant was employed, she boarded the bus in Ballina and she got a smell of alcohol from the driver. She said that she spoke to another employee about it and her suspicions were confirmed. She made a complaint to her team leader when she started work. Later she met the team leader in the canteen and asked him if he had reported the driver and he said that he forgot. She said that she asked the following eight days if he had reported the matter and he said that he had not. She then told him she was going to report the matter to management and he said that she was not allowed to break the rules. She then made a written report to 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 Leader not following up on her complaint about the bus driver.
3.3 The complainant said that she was on duty with two employees on the site (Bravo 3) and one of them Mr A left and went to another area which they were not supposed to on to. The complainant said that she was afraid that she would get into trouble so she reported the matter to her team leader and he started shouting at her telling her that it was none of her business. There was another team leader present and they both started laughing at her. The complainant made a written report about the incident and also complained about her TL and dropped it into the manager’s office.
3.4 The complainant said that the following night in or around the 25th of July she was on duty and she became aware that the CCTV cameras were following her. She said that this was confirmed to her the following morning by the camera operator who told her that she was on 70% of the recordings for the night shift. She said that she learned that one of the TL’s gave an order that she should be watched by the CCTV while carrying out her duties as a punishment for reporting him to management. She believed he wanted to catch her out using her telephone which was a breach of the rules.
3.5 On the 9th of August 2012 the complainant said that she was on duty and she was approached by a TL who was smoking outside the smoking area and he enquired if she would report him for breaking the rules. An exchange of words took place between them and she told him if he obeyed the rules he would not be afraid of being reported. The complainant said that she left the area and went into the canteen to talk to her husband and the TL followed her where there was a further exchange of words. The TL then approached her and put his face into hers at which point her husband intervened and asked the TL to leave her alone. The complainant said that an altercation took place between her husband and the TL. She believed that he was trying to provoke her husband into hitting him and she had to intervene to stop the argument. The complainant said that she made a written report to Mr P who was already carrying out an investigation into the complaints she had already made.
3.6 All the complaints were investigated by Mr P. The complainant attended two meeting and presented her evidence. The complaint about the bus driver was not upheld and Mr. P determined that the complainant made a false complaint against the bus driver and that the disciplinary procedures should be invoked. The complaint about the security officer at Bravo 3 site and the inaction of the TL were upheld. Her complaint about the CCTV camera being directed towards her was not upheld and it was recommended that the damaging rumours and false complaint made by the complainant should be investigated under the disciplinary procedures. Her complaint about the behaviour of the TL who was smoking in an unauthorised area was upheld. The complainant said that she was not happy about the outcome and the fact that a recommendation was made that she should be disciplined. She said that she was treated in a discriminatory manner during the course of the investigation and that Mr. P warned her not to call the Gardai in relation to the way she and her husband were treated by some employees of the respondent.
3.7 She appealed the report. The appeal was heard by Mr. F a director of the company on the 20th of September 2012 and he upheld the findings of Mr. P. She said that Mr. F said that she was a bad mother for getting her daughter to translate all the documents from Polish to English and she felt hurt and humiliated by this.
3.8 The complainant said that disciplinary action was initiated against her and her probationary period was extended for two months as a result of making the complaints. An investigation was carried out and a first written warning was issued to her for initiating rumours. The complainant appealed the decision to Mr. F who upheld the disciplinary sanction. The complainant then dismissed because she unsuccessfully completed her probation due to the warning. The complainant said that male employees who had far more warnings than her were treated differently.
3.9 The complainant also submitted that that she was discriminated against in relation the accommodation. Her husband who worked was living in shared accommodation but Mr. F agreed when she commenced employment that she and her husband could rent a house. She said that Mr. F agreed that the company would pay the utility bills as well as contributing to the rent. However, once they moved into a house the company discontinued paying his utility bills. She believes that they were treated differently than non married employees who lived in shared accommodation and had their utility bills paid by the company. She also submits that as a result of making the complaints her hours were reduced from 5 shifts to 3 shifts resulting in being paid less than other employees.
4. Respondents Case
4.1 The respondent submitted that the complainant is estopped from pursuing a discriminatory dismissal claim pursuant to Section 101 0f the Employment Equality Acts, as the matter has already been heard by a Rights Commissioner and a recommendation issued. It was further submitted that the complainant’s claim under the civil status ground was referred outside the 6 month time limit. It was further submitted that the complainant has provided no evidence to support her contention that she was discriminated against on the gender, family status and civil status ground.
4.2 Counsel submitted that the respondent is an equal opportunities employer and it does not discriminate on any of the nine grounds under the Act. It was submitted that while the majority of employees of the respondent are male (93%) the proportion of female to male employees of the respondent (18:237) is higher than the norm in the security industry. The respondent does not have data on the family or civil status of its employees but estimates that approximately 50% are married/not married and approximately 50% have family status.
4.3 The respondent said that the company provides around the clock security to a client company in Co. Mayo. Counsel further submitted that the respondent fully complies with its statutory employment obligations and those specific obligations imposed on companies operating within the security industry. The respondent has a very diverse workforce and is deeply committed to ensuring equality of treatment for all. Its policies and procedures and code of conduct to ensure compliance with said policies and procedures form part of each employee’s training and are rigorously enforced. All staff gets a copy of the staff handbook and a written contract of employment when they commence employment and the policies and procedures contained therein form part of the induction training for all staff. The respondent does not condone or support any form of discrimination and takes active steps to ensure that its ethos in this regard is fully committed to across all levels of the organisation.
The Complainant commenced employment with the Respondent on 12th July 2012 and her employment ended on 9th November 2012. At the time of her recruitment, the complainant was licensed by the PSA and had completed her FETAC level 5 training. She underwent training during June 2012 and having been deemed to have passed the training was offered employment as a security officer and worked on a security contract for the respondent in County Mayo. The complainant’s husband also worked for the company.
As part of the complainant’s contract of employment she was entitled to reside in company shared accommodation. Shared accommodation is where a number of employees stay in one house together for which the rent and utility bills are paid by the company and to which each employee contributes €35 per week. Where employees do not wish to reside in shared accommodation they can ask the company to take on the lease of a house where they wish to reside with their family or close friends who may or may not be fellow employees. Such houses are known as adopted houses. While the rent on adopted houses is paid by the respondent the utility bills are the responsibility of the residents/tenants.
The complainant’s husband was in shared accommodation up until she was employed. For the duration of her employment she resided in adopted accommodation with her husband and children for which the respondent paid the rent of €750 per month with the complainant and her husband being responsible for the utility bills. Following the termination of her employment with the respondent she was allowed to stay on in company accommodation free of charge until 31st January 2013.
Free travel is also provided to transfer employees from their accommodation to their work and home again after their shift. Employees are paid an additional hour per day to contribute towards time spent travelling to and from work. The complainant availed of this transport as did the majority of all employees.
In or around October 2012 all employees engaged on the pipeline project (including the complainant) received notification that due to a reduction in the requirements for security work, working hours would be reduced from four days per week to 3 days per week. All employees, with the exception of team leaders, were affected to the same extent with additional hours being available in circumstances where absence cover was required.
The complainant alleged that on the 16th July 2012, a bus driver was drunk when driving a bus transporting her to the site. It was submitted that the report was not made by the complainant for some hours after the event and the team leader (TL1) to whom the complainant made the report, neglected to report the complaint to management. It was not formally brought to the respondent’s attention until the complainant submitted a written complaint some eight days after the alleged incident. The complaint was investigated by Mr. P, Security Manager, and it was not upheld due to lack of evidence. The complainant later claimed that the issue in her complaint was not that the driver was drunk, but that TL 1 had not acted properly once the complaint was made and failed to report it to management.
The complainant further alleged that on the 24th July 2012 a fellow security officer who was on duty with her at Bravo 3 had breached the security protocol and accessed an area of the site where he was not entitled to be. The complainant further complained that the team leader (TL 2) had not taken the appropriate action when she reported the matter. These complaints were investigated by Mr. P and upheld and the company took appropriate action in relation to the employees involved.
4.11 The Complainant made another complaint to management alleging that on the 24th to the 26 of July 2012 she was being subjected to surveillance by a CCTV operator on the instructions of TL 2. The CCTV was viewed by Mr. G and the respondent was satisfied that no such surveillance occurred. This complaint was also investigated by Mr. P and Mr. G’s report was part of that investigation. On being presented with evidence that such surveillance had not occurred the complainant alleged that the Director of the respondent was engaged in a cover up. The complaint was not upheld
4.12 On the 9th August 2012 the Complainant reported an altercation between herself and a team leader (TL 3), at the smoking area at SC4 and later in the staff canteen, which arose when he questioned her if she was going to report him for smoking. The complainant alleged that TL 3 was aggressive both physically and verbally towards her. An investigation was carried out by Mr. P who upheld the complaint. The investigation concluded that TL 3 should be the subject of a formal disciplinary investigation for potential disruptive behaviour and an apparent failure (as team leader) to diffuse and de-escalate the situation. A disciplinary sanction was subsequently issued and was not appealed.
4.13 On 10th September 2012 Mr. P, security manager, who investigated all of the aforementioned complaints, issued his report. Mr. P recommended that a formal investigation under the disciplinary procedures should be held to investigate the complainant for making false allegations and damaging rumours about the bus driver, the CCTV and other allegations made during the course of the investigation. The complainant’s probationary period was extended on the 11th of September 2012 following Mr. P’s report and recommendation that a formal disciplinary investigation should take place into her conduct and a written warning was issued to her.
4.14 On 16th September 2012 the complainant appealed against the findings of Mr. P and the recommendation that she should be investigated under the disciplinary procedures. Mr. F, Director of the company, heard the appeal on the 20th of September and upheld the findings of Mr. P. Mr. F said in his report that an investigation should be conducted, under the respondent’s disciplinary procedure, into the complainant’s alleged breach of the respondent’s code of conduct set out in the Employee Handbook which provides: “If you are found to have initiated a detrimental rumour or knowingly continue a rumour, disciplinary action may occur, up to and including dismissal.”
4.15 On 25th October 2012, following an investigation and disciplinary hearing, held in accordance with the Respondent’s disciplinary procedures, the complainant was issued a written warning for initiating a detrimental rumour regarding a company bus driver being under the influence of alcohol while on duty. Following an appeal in writing by the complainant on 28th October 2012 an appeal hearing was conducted by Mr. F, on 7th November 2012. The appeal was unsuccessful and by letter dated 9th November 2012 the complainant was notified that her employment would not be confirmed beyond her probationary period and she was dismissed.
5. Conclusions of the Equality Officer
5.1 Discriminatory Dismissal
I note that the complainant has already pursued a complaint of dismissal to the Rights Commissioner and decision has been issued in her favour.
Section 101 (4) of the Employment Equality Acts provides that: -
“An employee who has been dismissed shall not be entitled to seek redress under this Part if
(a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun,
(b) in the exercise of powers under the Unfair Dismissals Acts 1977 to 2007, a rights commissioner has issued a recommendation in respect of the dismissal, or
the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.
As the Rights Commissioner has issued a recommendation in respect of the dismissal I have no jurisdiction to hear a case of discriminatory dismissal.
5.2 In relation to the respondent’s submission that there is no valid complaint before me on the civil status ground as it was referred outside the statutory time limit, I am satisfied that a complaint on this ground was referred on the referral received by the Tribunal14th December 2012 as a statement in that form she refers to her married status and states that it was “a factor in her unequal treatment.”
5.3 Therefore the matters I have to consider is whether the complainant was discriminated against in relation to her conditions of employment pursuant to Section 8 and whether she was harassed pursuant to Section 14 of the Acts.
Section 6.—(1) of the Act provides:
“ 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—
(a) that one is a woman and the other is a man (in this Act
referred to as ‘‘the gender ground’’),
(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.
5.4 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 she 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."
5.5 Family Status
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 she was discriminatory treatment because of her family. The complainant has to establish that she 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.
Gender and Civil Status grounds
5.6 The complainant has claimed that she was discriminated against in relation to her conditions of employment in that the company did not pay the utility bills, that her hours were reduced and she was paid less than other employees and following making complaints about the conduct of some employees the respondent invoked the disciplinary procedures against her. I find no evidence to support these contentions. I note that employees who lived in shared accommodation provided by the company, the company paid the utility bills. The complainant was living in a rented house and I am satisfied from the evidence that the company did not pay utility bills for any of its employees in such accommodation as people other than employees of the company could share the house/apartment. In relation to the reduction in hours, I am satisfied that the company had suffered a reduction in the security work required by the client and it was for this reason the shifts were reduced from five to three per week for all of the security officers including the complainant and as a consequence they all suffered a reduction in pay. In relation to the disciplinary investigation, I am satisfied that the complainant has failed to establish a nexus between the treatment and the grounds claimed. Therefore, I find that the complainant has not established a prima facie case on either the gender or civil status ground in relation to this aspect of her complaint.
5.7 The complainant submitted that she was subjected to discriminatory conditions of employment and harassed by male employees very shortly after starting work with the company. She said that the employment was male dominated and she was asked questions about her childcare and personal and intrusive questions about her husband and family. I note that these complaints were not brought to the attention of the respondent and no complaints were made under the grievance procedures. I note that the complainant made written reports to management in relation to a number of issues but there is no evidence that she ever raised the alleged treatment at any of the investigations carried out. I am satisfied these matters raised by the complainant are mere assertions unsupported by any evidence as per the Melbury case cited above. I find the complainant has failed to establish a prima facie case in relation to this aspect of her complaints.
5.8 The next matter I have to consider is whether the complainant was harassed by TL 3 near the smoking area and also in the canteen. I note this matter was reported to management and investigated under the procedures and TL 3 was subjected to a sanction under the disciplinary procedures. It was also the evidence of the respondent that management held tool box talks at which employees were constantly reminded of the bullying and harassment policy contained in the Employee Handbook. I am not satisfied that the matter constituted harassment on either the gender or civil status ground. It seems clear that the argument arose out of the fact that the complainant had made a report to management about the conduct of other employees and TL 3 was smoking outside the designated area and he challenged the complainant to report him. There is no evidence that the treatment was connected to either the complainant’s gender or civil status. I am satisfied that the complainant has failed to establish a prima facie case of harassment in relation to this issue. Even if the complainant could have established harassment, I am satisfied that the defence set out in Section 14A(2) cited above applies as the respondent took action to prevent such harassment.
6. Decision
I find that the complainant has failed to establish a prima facie case of discriminatory treatment contrary to Section 6(1) and 6(2)(a)(b) and (c) and in terms of Section 8 and 14A of the Employment Equality Acts.
____________________
Marian Duffy
Equality Officer
22nd July 2015