The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-057
PARTIES
A Worker
(Represented by Howard Synnott Solicitors)
AND
An Employer
(Represented by IBEC.)
File reference: EE/2014/248
Date of issue: 30 July 2015
HEADNOTES: Employment Equality Acts Sections 6, 8 Sexual Orientation – Religion – Gender - Promotion, Training, Conditions of Employment, Discriminatory Dismissal, Harassment, Sexual Harassment, Victimisation and Victimisatory Dismissal.
1. DISPUTE
1.1. This dispute concerns a claim by Ms. A, the Complainant that she was discriminated against by Employer X on the grounds of Sexual Orientation, Religion and Gender and suffered discrimination in relation to Promotion, Training, Conditions of Employment, Discriminatory Dismissal, Harassment, Sexual Harassment, and was subject to Victimisation and Victimisatory Dismissal.
1.2. The Complainant referred her claim to the Director of the Equality Tribunal on the 8th May 2014. On the 30th 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. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on the 9th July 2105.
2. COMPLAINANT'S SUBMISSION
2.1. The Complainant stated that she was caused to suffer unwanted conduct, which had the effect of violating her dignity as a person and of creating an intimidating, hostile and degrading, humiliating and offensive environment. She alleged that she experienced unjustified and unequal treatment in that she was stigmatised because of her actual or perceived sexual orientation and was therefore unable to fully enjoy her basic human rights.
2.2. She complained informally to her Manger in relation to her treatment and believed that the Respondent subsequently victimised her.
2.3 During a Sales Conference a colleague made unwanted sexual advances and physical contact. Other colleagues made unfavourable remarks about her and previous meetings she had with HR. She felt she was being ridiculed behind her back.
It was well known to colleagues that she did not drink alcohol and this was a cause of some unfavourable comment from colleagues. She was perceived as being very religious which again was used to ridicule her.
In addition she felt that she was discriminated against in the allocation of Mobile Phones and was the only new staff member not allocated a mobile phone handset.
The treatment she was receiving from her Manager was very upsetting and had negative consequences on her health resulting in numerous days off in an attempt to recover.
She felt that the Respondent should have made more effort to manage the situation and stop what she felt was bullying and harassment. The Respondent should be held vicariously liable for the actions of its employees.
3. RESPONDENT'S SUBMISSION
3.1. The Respondent stated that the Complainant’s submission contained a number of unsubstantiated allegations. She had failed to provide details to support her claims. This basic factual detail is a minimum requirement in order for the Complainant to substantiate her allegations.
The Respondent felt that they had been placed in the invidious position of not being in a position to adequately investigate or respond to the allegations being made.
In summary a prima facie case, as required by all legal precedent and authorities had not been made.
3.2 The Respondent in their written submission pointed out that they had a comprehensive Dignity at Work Policy and Business Compliance Policy both of which would have been known to the Complainant.
Details were provide of a number of meetings that took place between the HR department and the Complainant. There was no evidence of any formal complaints of discrimination ever having been made by the Complainant. If they had been made they would have been investigated fully.
Evidence was provided in relation to the Company mobile phone policy and it was pointed out that receipt of a mobile phone was not part of the Complainant’s contract of employment.
Details were also provided of Medical reviews of the Complainant undertaken by the Respondent. None of these reviews indicated that the Complainant’s absence was due to any underlying employment conditions or that her work environment was a contributory medical factor.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision, having reviewed all the written and oral evidence presented, is whether or not the Complainant was subjected to discriminatory treatment under the headings cited and discriminatory dismissal on the grounds of sexual orientation, religion and gender in terms of section 6 of the Employment Equality Acts and contrary to section 77 of those Acts and whether finally the Respondent failed to provide “appropriate measures” under Section 16 of the Acts and if she was victimised in accordance with section 74 (2) of the Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
4.3 In the case at hand no substantial evidence of dates, times, places or named persons on which an investigation could proceed has been provided by the Complainant.
4.4 At the Oral hearing the issue of an adjournment to allow for the, in effect, resubmission of the Complainant’s case was proposed by Legal representatives for the Complainant. The Complainant’s written submission was submitted by her legal advisors on the 19th January 2015 and was responded to, in good faith, by the Respondent on the 29th June 2015.
In considering the request for such an adjournment I am conscious that the Complainant was advised of the hearing on 6 June 2015 and had plenty of time to be fully prepared to present her case at the hearing. I also note that she was legally represented throughout the process. I therefore found no reason to grant such an adjournment.
4.5 I have considered all the evidence presented in both written submissions in advance of the hearing and orally at the hearing and I conclude that, in accordance with section 85A, the complainant has been unable to establish a prima facie case in relation to any part of her claims..
5. DECISION
5.1 I find that the Complainant has not established a prima facie claim of discrimination in relation to Promotion, Training, Conditions of Employment and Discriminatory Dismissal, Harassment and Sexual Harassment, and Victimisation and Victimisatory Dismissal and accordingly the claim fails.
________________________
Michael McEntee
Equality Officer
30 July 2015