The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-051
PARTIES
An Employee
(Represented by Murphy and Company Solicitors)
and
An Employer
(Represented by ADVOCAT Compliance Ltd)
File reference: EE/2013/426
Date of issue: 27 July 2015
HEADNOTES: Employment Equality Acts Section 74 – Victimisation
1 DISPUTE
1.1 This dispute concerns a claim by Mr X that he suffered Victimisation by his employer XY Housing Association contrary to Section 74(2) of the Employment Equality Acts
1.2 The Complainant referred his claim to the Director of the Equality Tribunal on the 22nd of August 2013 under the Employment Equality Acts. On the 4th June 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Michael McEntee, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on the 8th June 2015.
Opening issue
The Respondent queried the time limits on the claim and pointed out that by using the date of the 2 August 2013 as the last date of Victimisation it was a strategy by the Complainant to allow him to link previous incidents, as far back as 2008, to the Complaint. It was the Respondent’s contention that the majority of the claim was based on out of time incidents.
This will be considered later.
2 COMPLAINANTS' SUBMISSION
2.1 The Complainant started work for the Respondent in or about September 2007 as a Keyholder/Caretaker at one of the Respondent’s building complexes at a Midlands location. It is a mixed use complex/building and has a large residential element where the Complainant also resides. He continues in employment.
2.2 The Complainant is homosexual and this has at all times been known to the Human Resources Department of the Respondent. In addition in 1997 he pleaded guilty to a charge of indecent assault against a young man. He served his sentence and has never re-offended – again this was always know to the Respondent’s senior Management.
2.3 Since 2009 the Complainant submitted that he has been the subject of discrimination and victimisation. He made a formal Complaint under the Respondents Grievance procedures in 2010 and since then has been subject to various incidences of adverse treatment which taken together amount to victimisation, discrimination and harassment.
2.4 The incidents cited by the Complainant were
1) Breaches of his confidentiality in 2008 by another colleague informing new tenants of his sexuality and of his previous criminal conviction.
2) Sexual harassment by the Community Development Officer, Mr. AB in 2010
3) In relation to the latter incident, involving Mr AB, the Respondent failed to apply in full the Grievance Policy. No independent investigation took place and no action was taken as a result of the Complaint. A mediation process took place in April 2011 and a written apology was made by Mr. AB.
4) Mr BC was appointed as Building Manager in or about this time. Shortly after his appointment Mr BC started to treat the Complainant differently from how he was treated before the Complaint and in a manner different to how other staff members were treated.
5) Specifically the Complainant’s access to other parts of the building was significantly reduced. Physical keys were removed and the Complainant was not provided with codes for doors now operated by key codes. Later the system was upgraded to a key fob system and the Complainant’s key fob has only limited access to parts of the building.
6) The Complainant has been excluded from team meetings that he had attended before the Complaint.
7) He has been admonished for failing to sign in/out of work while other employees have not been so admonished.
8) He was subject to allegations regarding theft and waste of fuel and materials.
9) He was not invited to Jubilee Celebrations or an Active Retirement lunch.
10) There has been a pattern of low level harassment such as querying his annual leave , contact by his Manager while he was on holidays , exclusion from pooled Christmas presents and pointed references to Garda vetting and child protection issues
2.5 In or about March 2012 another employee Mr AD, a Maintenance Officer, placed on his Maintenance office door a cartoon that was deeply offensive to the Complainant. This was coincident with Mr.AD changing his office lock, it was alleged, to prevent the Complainant having access.
2.6 In relation to recent victimisation on the basis of Sexual Orientation the Respondent circulated a letter in August 2013 restricting the visual scope and use of private closed circuit television cameras in the Building. The phraseology in the letter, which included a reference to Child Protection was designed to harass and intimidate the Complainant.
2.7 All told the above incidents have created an intimidating, offensive and hostile work environment for the Complainant. It was further pointed out that the Compliant was also a Resident of the Building which exacerbates the situation for the Complainant.
3: RESPONDENT'S SUBMISSION
3.1 The respondent submitted in response to the incidents number 1-10 above as follows
Incident No 1 – Confidentiality
This was subject to an investigation at the time by a senior Manager of the Respondent. It was agreed with the Complainant that it would be “Informal”. Following the investigation a letter was issued to all staff reiterating the importance of confidentiality. The Complainant confirmed at the time that he was satisfied with the outcome.
Incidents No 2 and 3 sexual harassment and non-use of procedures.
A full formal investigation was carried out by a Senior Officer of the Respondent. The matter was referred to Mediation and was once again resolved to the satisfaction of the parties. Both parties involved signed a Mediation Agreement.
A written letter of apology was written by the Community Development Officer to the Complainant.
Incidents 4 and 5 / Key Fobs and Building Access / New Building Manager.
The key fob system was introduced in February 2013 to improve health and safety, security of access and improvement in compliance with fire safety regulations in the facility.
In later oral evidence it was confirmed that the setting of access controls was not done by the Building Manager but on the recommendations of the Area Manager to Waterford Head Office IT Department. Difficulties the Complainant experienced may well have been due to inherent flaws in the system itself which it was agreed by the Respondent had a few initial teething problems. It was pointed out that in the Complainant’s initial contract of employment – Clause 8 – he had agreed to access limitations in regard to parts of the building.
The new Building Manger did not in any way seek to treat the Complainant differently to other staff.
Incidents 6 -10 Low Level harassment / exclusion from meetings etc.
The Respondent submitted that there had been no “low level harassment” as suggested. Many of the incidents referred to are far-fetched and vague. In relation to meetings the Complainant himself has written (15th November 2013) to the Respondent stating that he is refusing to attend meetings to which he has been invited.
Issues raised such as queries in regard to working hours, child protection or Garda vetting were perfectly normal Management issues in a facility of the nature involved. They were not aimed specifically at the Complainant.
CCTV Issue
In relation to the CCTV incidents the Building Manger, following representations from some residents, took the advice of the Gardaí and issued a letter to all residents in relation to private CCTV arrangements. To suggest that this general letter was directed specifically at the Complainant is absurd.
Simpsons Cartoon Issue
The Cartoon incident was not directed at the Complainant. As soon as the matter was brought to the attention of the Respondent the cartoon was removed and a written apology was issued to the Complainant for any offence caused.
General Response /Policy of Respondent towards the Complainant
The Respondent at all times took all steps that were reasonably practicable pursuant to Section 14(2) of the Act to prevent the Complainant from being treated differently and so far as any such treatment occurred to reverse its effects. This included the engaging of an external investigator with a view to resolving any outstanding issues between the Complainant and the Community Development Officer, Mr AB in 2008/2009.
The Complainant’s legal representatives wrote to the Respondent in November 2012 raising allegations of discrimination.
The Respondent wrote to the Complainant on the 14th November 2012 stating that
“They have the best intentions towards him and would never engage in or condone any inappropriate behaviour towards him or impinge on his quality of wellbeing”.
A lengthy meeting intended to cover all issues of concern to both parties took place between the Complainant and senior executives of the Organisation on the 19th November 2012. It was the Respondent’s clear understanding that all matters had been resolved to the satisfaction of the Complainant.
4 The Oral Hearing.
4.1 At the Oral Hearing substantial direct witness evidence was given both for the Complainant and the Respondent.
To allow ease of reference I will use the Complaint listing above.
4.1.1 Complainant I – Breach of Confidentiality (2008/2009) allegation.
The staff member identified by the Complainant as the alleged breaker of confidentiality -Ms X gave direct evidence and was cross examined. She resolutely denied telling any persons about the Complainant’s sexuality or his previous legal history. She pointed out that she was unaware at the time of these matters until she was informed by the Area Manager some time later. Even if she had known she would not have acted unprofessionally. In examination it was established that the incidents involved and the Complainant’s history were widely known in Mountmellick (a town approximately 8/9 miles away) and that it was not at all improbable that news of his history and sexuality had made its way to X Town without any involvement by the staff of the Respondent Company. It most certainly could not be ruled out. The witness appeared professional and truthful.
The Respondent thoroughly investigated the matter – minutes of meetings of the 17/09/08 and 09/02/09 together with a general staff notice from the Chief Operations Officer headed “Confidentiality Obligations” dated March 26th 2009 were presented. The Respondent strongly maintained that the Complainant had been happy to let matters rest at that stage.
4.1.2 Complainants 2 Sexual Harassment and 3 Failure to Investigate Properly
The Community Development Officer concerned gave evidence in relation to the Complaint and the Chief Operations Manager gave evidence in relation to the investigation. A fellow resident gave witness evidence for the Complainant in relation to the incident involved. It was clear from the evidence that some form of incident had taken place. The Respondent Organisation carried out a thorough professional investigation. Copies of letters, meeting minutes and procedures were all provided. The Complainant was legally represented. The process culminating in a Mediation Hearing between the Complainant, the accused staff member and an Independent Mediator. Following the Mediation a letter of apology had been given to the Complainant by the Community Development Officer on 31st March 2011. It was agreed by all present at the Oral Hearing, including the Complainant, that a Mediation Agreement had been signed and all parties had been satisfied with the outcome.
4.1.3 Complainants 4/5 Changes to Building Access /Key Fobs and CCTV issue
Witness evidence was given by the then (at the time in question) new Building Manager. He stated that he had no control over the coding of access levels on key fobs, this was the responsibility of his Managers. He reported Fob functionality issues to Head Office in Waterford. He resolutely denied treating the Complainant in any way differently, particularly in any manner as alleged, to other staff members. The Respondent’s representative pointed out to the Complainant that in his initial contract of employment, Clause 8 of Contract dated18/08/07, he had agreed to have restrictions on his access to certain parts of the building.
In relation to the CCTV issue the witness gave evidence that residents had raised with him the issue of private CCTV systems operated by some residents having the ability to cover potentially public areas of the building. He took the advice of the Gardaí and as a result issued his public letter to all residents. The language was standard and mentioned Respondent’s legal responsibility, privacy and child protection among other issues. It was in no way directed at the Complainant. The Respondents Chief Executive who was present and questioned at the hearing, gave further details on the private CCTV systems issue across the Organisation’s sites and confirmed that it was now Organisation wide policy to restrict their use
4.1.4. Simpson Cartoon issue and alleged General Climate of Harassment
The staff member who placed the offending Simpson cartoon on his office door gave evidence. He is of North American origin and a self-declared Simpsons fan. He found the cartoon in a house he had been working on and placed it on his office door in a spirit of harmless humour. He did not seek to cause offence to any person and once he was made aware of the Complainant’s offence he immediately took it down. He quickly wrote to the Complainant apologising for any distress. He had changed the lock on his door as he had begun to keep valuable electrical tools in his office and was afraid of theft. It was not his intention to specifically exclude the Complainant.
In relation to the General Climate of alleged Harassment reference was made to various functions – Jubilee commemorations and active age events. The witnesses confirmed that that no deliberate efforts were made to exclude the Complainant. The Jubilee event took place in Athy (a town some distance away) and there had never been a general invitation to all staff to attend the event. In relation to Meetings it was clear to the Tribunal that the Complainant’s position was slightly ambiguous in relation to attending /non attending meetings as he was able to refer on occasions directly to issues raised at these meetings.
5: Conclusions of the Equality Officer
5:1 Time Limits / Opening issue.
In relation to the Respondent’s assertion that, with the exception of the Simpsons cartoon incident in March 2012, the remainder of the claim was out of time under the Acts, I had to consider the principle of a “chain of discriminatory incidents”.
The Complainant clearly believes that his relationship with the Respondent began to deteriorate following the “Confidentiality” issue in 2008/2009 and was on effectively a downhill slope thereafter. The Community Development Officer incident in 2010 was a “link in the chain” which taken with the Access/Fobs issue, the invitations /non invitations to various social gatherings, the Cartoon issue in 2012, the CCTV issue in 2013 all established a link.
I took the view that the burden of proof to demonstrate that these matters were not linked was too heavy and accordingly I allowed a linkage.
Accordingly all the Claim was deemed to be “in time” in accordance with Section 77(5) of the Employment Equality Acts.
5:2 Victimisation
The matter for consideration at this stage is alleged Victimisation of the Complainant by the Respondent Company.
Section 74(2) provides that:
(2) 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.
In order to establish victimisation for the purpose of the Act the treatment complained about must be causally connected to one or more of the matters referred to at paragraphs (a) to (g) of Section 74(2) above.
Accordingly I have to decide if the Complainant was victimised by the Respondent Company on the grounds of his sexual orientation. In reaching my decision I have taken into account all of the submissions made to me in the course of my investigation and in particular the considerable direct witness evidence presented at the Oral hearing.
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 victimisation is grounded and then the burden of proof passes to the Respondent.
5:2:1 The evidence presented. / Cross over between Harassment & Victimisation
As the matters at hand covered a period of some 5 to 6 years there was a significant and almost inevitable cross over between what was alleged as Harassment and alleged as subsequent Victimisation following the making of Complaints
As well as significant written submissions prior to the hearing, at the Oral hearing substantial and comprehensive direct witness evidence was provided. All witnesses were vigorously cross examined by senior legal representatives for both parties. All the witnesses for both parties were in my view truthful.
5.2.2 In relation to the Breach of Confidentiality issue in 2008 the plain reality, on common knowledge, is that in a rural Irish Midlands setting, the fact that the Complainant’s background and legal history was known in a small town 8/9 miles away from the town where the alleged incident of breach of confidentiality took place would make the preservation of confidentiality an impossible task. A wide range of public officials, Gardaí and private citizens circulating in the general area would have had knowledge of the Complainant’s history. It makes the allegation against the staff member, as the primary source of the information concerning the Complainants Sexuality and Legal History to other building residents of the complex impossible to substantiate.
Notwithstanding this the Respondent investigated and dealt with the issue most professionally between 2008 and 2010.
The issue of the verbal exchanges with the Development Manager in 2010 were comprehensively and again, in my view, most professionally, dealt with by the Respondent organisation in 2010/2011. A defence under Section 14(2) of the Act is absolute here as regards Harassment at this time.
The internal steps culminated in an outside independent Mediation process, the outcome of which was agreed to have been to the satisfaction of all a parties
5:3:1 In relation to subsequent alleged Victimisation of the Complainant following the making of either or both of the above Complaints it is necessary, as often referenced by the Labour Court, for the Complainant to establish a substantial casual connection.
The Respondent had clear documented and well communicated, to staff and managers, Equal Opportunities and Grievance Policies in place since 2003. The evidence given by the Chief Executive and former Head of HR was indicative of a well-Managed Organisation with a professional HR Department and Procedures.
5:3:2 The issue of the Key Access and Electronic Fob restrictions were upsetting to the Complainant. However it was pointed out by the Respondent to the Complainant that his initial contract of employment at Clause 8 did contain detailed restrictions on his access to parts of the building. A copy was provided to the Tribunal. The matter was discussed at length with the Complainant in November 2012 to the apparent satisfaction of the Complainant.
The limited access restrictions imposed as part of the introduction of the “Fob” new electronic systems could not have come as any surprise to the Complainant. The local Building Manager, while not responsible for the electronic coding of individual fobs , clearly indicated that he would refer any issues raised by any staff Manager in relation to Fobs to the Area Manager and if needs be the relevant headquarters Department. There was no difference in his approach to any staff member in this regard. His evidence to the Oral hearing was credible.
5:3:3 In relation to the CCTV incidents the oral evidence was that three if not four private CCTV systems had been installed by residents – one of which was by the Complainant. A number of still frames, showing the broad focus and range of the camera, from the Complainant’s system, were submitted to the hearing. The Building Manager had been approached by residents in relation to the CCTV systems. Correctly he sought the advice of the Gardaí and following their input issued his letter of August 2013 requesting that residents reposition, to ensure that no public areas were in electronic view, or remove their CCTV devices. References to “Privacy and Child Protection” in the letter are standard phrases in such communications. The Complainant was not in any way referenced in this circular letter.
5:3:4 The Cartoon incident in March 2012 was somewhat unprofessional. However in evidence the Maintenance Supervisor responsible accepted this and confirmed that it was an action entirely taken on his own initiative with no intention of causing offence to any of the many hundred residents of the building. He was clearly of a North American background and the cartoon is of a character from a popular children’s TV series – the Simpsons – which may not be to all tastes this side of the Atlantic.
As soon as the concerns of the Complainant were raised with the Maintenance Manager the cartoon was quickly removed. A written apology was quickly made to the Complainant. All practical steps were taken immediately by the Respondent organisation to alleviate the situation.
It would be stretching ordinary understanding to assume that the cartoon displayed was specifically anti homo sexual and directed personally at the Complainant as opposed to being unsuitable for display on an office door. An average episode of the series which is carried on almost all TV channels is potentially equally or more offensive to an individual who does not personally appreciate, on a wide variety of grounds, the style of humour it contains.
5:4 Accordingly I found that the Complainant had a major challenge to produce any substantial prima facie evidence to support his claim of Victimisation following the earlier Harassment Complaints in 2009/2012 period.
The Key Fob/restricted access issue was an inevitable follow up to the access restrictions in the Complainant’s original contract of employment.
The CCTV issue is not a credible Complaint of Victimisation specifically directed against the Complainant. Other residents had CCTV systems and the advice of the Gardaí was instrumental in the issuing of the CCTV circular letter to all residents.
The Simpsons Cartoon incident was in my view a matter of questionable taste – the cartoon could not be adduced to be directly anti Homo sexual and certainly not personally directed against one resident in a complex of a few hundred residents.
The allegations of an orchestrated Campaign of Low Level harassment against the Complainant are not really supported by any direct substantial oral or written evidence that was presented to the investigation.
The Respondent Organisation has professional Managerial staff, who gave direct evidence, had clear well documented procedures in the area of Grievance, Harassment & Bullying and Equal Opportunities. It has demonstrated on all occasions that it is prepared to fully, including the use of outside professionals, investigate all alleged incidents in a speedy manner. The Complainant had for the critical time periods in question professional legal advice and representation. The headed legal correspondence shows this.
5.5 The Organisation’s now most senior Manager, having been Head of HR during the period in question, was a convincing witness. He displayed a calm professional competence.
5.6 It stretches common sense to believe that a special over sight in relation to matters of sexual orientation was not kept, by this Witness and the Organisation in general, on all matters related to the midland residential building complex where the Complainant was employed. The letter and lengthy meeting between the Senior Management of the Respondent organisation and the Complainant in November 2012, referred to above, and the quick response and apology to the Cartoon being evidence of this heightened level of positive oversight.
5.7 I am satisfied therefore that the Complainant has not established , to any required standard, that that he was victimised or subjected to any adverse treatment as defined in Section 74(2) of the Equality Act.
6: DECISION OF THE EQUALITY OFFICER
Having investigated the above Complainants, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the respondent did not victimise the complainant pursuant to section 74(2) of the Acts.
______________
Michael McEntee
Equality Officer
27 July 2015