The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E 2015-030
PARTIES
Mr Mandeep Bains
AND
Maotham Ltd t/a Mao
(Represented by IBEC)
File reference: EE/2013/064
Date of issue: 15 June 2015
HEADNOTES: Employment Equality Acts Sections 6, and 14A – Race – Discrimination and Harassment.
1 DISPUTE
1.1 This dispute concerns a claim by Mr Mandeep Bains, of Indian Nationality, that on 31st August 2012 he was discriminated against by his employer Maotham Ltd (T/A Mao Café) on the grounds of race contrary to section 6 (2) of the Employment Equality Acts in relation to:
1.1.1 harassment in relation sections 14A(1)(a)(i), 14A(7)(a)(i) and 14A(7)(b) of the Acts; and
1.1.2 discriminatory treatment in terms of section 8 (b) of the Acts regarding his conditions of employment.
1.2 The Complainant referred his claim to the Director of the Equality Tribunal on 8th February 2013 under the Employment Equality Acts. On 19th May 2015, in accordance with his powers under section 75(4A) of the Acts, the Director delegated the case to me, Gerry Rooney, 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 31st May 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The Complainant started work for the Respondent on 7th November 2011. He was employed in the Dundrum café. He left his employment on 31st August 2012 following an incident and did not return to work from that date.
2.2 The Complainant submits that he was subjected to harassment on the race grounds during an incident on 31st August 2012 by his manager (Line Manager) where his Line Manager greeted him with foul language, tried to kick him and this was met with laughter and derision from five other staff members. The Complainant further submitted that during the ensuing conversation with his Line Manager, that when asking him about cleaning a fryer, his Line Manager responded loudly “it was dirty like your f*****g face”. The complaint was shocked and embarrassed and left the workplace. The Complainant contended that he was discriminated against in that he suffered harassment because of his race regarding the derisory comments about his skin colour.
2.3 The Complainant submitted that following the incident there were six meetings held by the Respondent, of which he attended five meetings. He stated that initially no apology was made to him as his Line Manager maintained it was a joke. Following a letter from his solicitor on 2nd October 2012 an apology was offered, but no proposal was made to compensate him. The Complainant contended that he had sought not to work with his Line Manager again, and that either he or his Line Manager be redeployed elsewhere, but that the Respondent refused to redeploy either himself or his Line Manager. As such he has complained that he was also subject to discrimination following the harassment he received. He contends that he was discriminated against in relation to his conditions of employment, and as a consequence he did not return to work. He has subsequently found employment elsewhere.
3 RESPONDENT'S SUBMISSION
3.1 The Respondent states that the Complainant started working for them on 11 November 2011 in the Dundrum Café.
3.2 The Respondent acknowledged that an incident took place on 31st August 2012, and following the Complainant’s departure from work, attempts were made by the Store Manager, to contact him to review the matter. A meeting subsequently took place the following day with the Store Manager, the Complainant, and the Line Manager. The Respondent advised that at this meeting his Line Manager said the comments were made in jest, that any offence was unintentional, and that she attempted to apologise to the Complainant. The Complainant refused the apology and attempts to facilitate the Complainant’s return to work were unsuccessful.
3.3 Further attempts were made by the Store Manager to facilitate a return to work. The Respondent contended these attempts included the Complainant requesting to be transferred to another branch, and then the Complainant further stating that only if his Line Manager was transferred would he consider returning to the Dundrum location. The Store Manager’s attempt over the following days to resolve the matter failed, and the Store manager contacted the Area General Manager and the Director of Operations.
3.4 Whilst no official complaint was raised by the Complainant, the Respondent decided to conduct an investigation. The Complainant was met as part of the investigation and asked that his Line Manager be transferred to another branch. The responded submitted notes from the investigation meetings, and the findings of the investigation procedure.
3.5 The Respondent’s investigation concluded that a serious offence had occurred, and the Respondent issued the Line Manager with a final written warning for the use of bad language, for chastising an employee in front of staff, and for passing a racist remark in relation to the Complainant. The Line Manager also wrote a letter of apology to the Complainant expressing her sorrow at what she had said, and where she acknowledged the offence that her remark had caused. The Respondent contended that this written apology was offered to the Complainant but he refused to accept it.
3.6 The Respondent maintained that on 14th September 2012 the Complainant was met by the Area General Manager. Also present at this meeting was the Store Manager and, a Witness for the Complainant (who also attended the Equality Tribunal Hearing). The Respondent contended that it explained to the Complainant that it was not possible to move the Line Manager, but other options were discussed with the Complainant which included an arrangement where the Complainant would not have to work directly with the Line Manager, or where a transfer to another restaurant could be considered. However the Complainant refused these options.
3.7 The Respondent stated it continued to pay the Complainant during his absence over this period of time and during the course of the investigation, up until 16th September 2012. The Respondent advised the Complainant it had dealt with the matter and sought the Complainant’s return to work on 16th September 2012. The Complainant did not return to work.
3.8 The Respondent contended that further proposals were made to facilitate the Complainants return, including a transfer for the Complainant, but he did not engage with the Respondent from that point onwards.
3.9 A letter was received from the Complainant’s solicitor on 2nd October 2012 stating that the Complainant has not received an apology or restitution for what had happened, and requested proposals to address the situation. On 10th October 2012 the Respondent replied to the solicitor’s letter advising that a verbal apology had been offered and a written apology had been refused. No further correspondence was noted between the parties.
3.10 The Respondent subsequently wrote to the Complainant on 30th January 2013 confirming the job position remained open and enquiring when the Complainant intended to return, but no response was received. On 8th February 2013 the Respondent was advised by solicitor’s letter that the Complainant was progressing his complaint with the Equality Tribunal.
3.11 The Respondent submits that having recognised that an incident occurred on 31st August 2012 that it took the matter seriously, attempted to immediately resolve the matter with the Complainant and as that was not feasible it conducted an internal investigation which upheld that the Complainant had been subject to abusive language and a racist remark from his Line Manager. The Line Manager was subject to a final written warning which recognised the seriousness of the incident. The Respondent stated that during induction all staff are appraised of their obligation not to engage in verbal abuse, intimidation, or any form of harassment, and that threatening or abusive behaviour will not be tolerated; and its actions against the Line Manager demonstrated that it applied reasonable measures to address the situation.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the Complainant was harassed due to his race, and if he was also treated in a discriminatory manner on the grounds of race by his employer. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 With regard to harassment Section 14A of the Act states:
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,
(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.
14A (7) (a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds,…
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.
4.3 The Respondent received a verbal comment (spoken words) from his Line Manager that was directly attributable to the colour of his skin. The remark was made publically, was derisory in nature, and this was not disputed by the Respondent. I therefore accept that the Complainant was subject to a comment from his Line Manager on 31st August 2012 that referred to his skin colour, and it was reasonable that he was upset and offended by the remark, particularly as the comment was made publically.
4.4 I am therefore satisfied that the comments made to the Complainant constitute harassment on the grounds of race within the meaning of the Acts.
4.5 In cross examination the Respondent acknowledged they did not have a written Code of Practice or policy in place to address harassment; however they contended training was provided to all staff on induction. The claimant contended that he did not receive this training. The Respondent stated they have employed a multiracial workforce over the past 20 years in Ireland, where only 20% of the workforce are Irish nationals, and this is the first time they have ever encountered a complaint of harassment on the race grounds, demonstrating that their approach and training is effective.
4.6 Sections 14A(2) and 15(3) of the Employment Equality Acts allow a defenceto aclaimofharassment,wheretheRespondent canshowthatittook suchstepsaswerereasonably practicabletopreventan employeefrombehaving in a harassing manner. The Respondent did not have a harassment policy and procedure as recommended in SI 208 of 2102 Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.
4.7 Notwithstanding the employer proactively dealt with the issue, instigated an investigation against the Line Manager, and upheld the incident as serious misconduct amounting to a final written warning.
4.8 The Complainant gave evidence that after the Respondent’s investigation hearing he was not treated fairly and his employer did not address the matter reasonably. As such he contended the response to his harassment amounts to discrimination, in that he was required to return to work with his manager who had harassed him.
4.9 Section 14A (2) of the Acts provide a defence for an employer who can prove they took reasonable steps 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.
4.10 The parties disputed how the matter was addressed. The Respondent said they made reasonable attempts to reverse the effects by making proposals to remove the possibility of the parties working together into the future, however as they could not move the Line Manager they offered arrangements to limit the contact, or for the Complainant to be moved to another store, but the Complainant refused to move. They also offered the Complainant an apology in writing from the Line Manager but he would not accept that. The Complainant denied this version of events saying he was never offered a move to another location, or offered a written apology, and instead he was required to return to work and report to the Line Manager who had made the remarks. As this was unacceptable he sought redress through a solicitor, and then through the Equality Tribunal.
4.11 The Respondent presented supporting documentation that represented contemporaneous notes of the meetings held as part of its investigation, and the subsequent meeting with the Complainant on 14th September 2014. The meeting of 14th September was attended by a witness, who also attended as a witness for the Complainant at the Equality Tribunal hearing. In cross examination the Witness stated that he could not remember very well, and he could not recall the Complainant being offered to work at another site as contended by the Respondent.
4.12 Correspondence sent by the Respondent to the complaint’s solicitor on 10th October 2012 indicates an apology was offered to the Complainant but was refused. The Complainant did not respond to this, and the Respondent sought further clarification in correspondence to the Complainant on 30th January 2013. The Complainant responded through his solicitor advising that the matter would be progressed to the Workplace Relations Commission.
4.13 Having considered this evidence I do not conclude that the Complainant was treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting the harassment. He was subject to a fair and reasonable investigation procedure, and attempts were made by the Respondent to secure his return to work. While the Complainant was absent during the course of the investigation procedure he was also paid (a total of 16 days). His wages ceased when he remained absent and after he was provided with time to consider the situation.
5. DECISION
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
a. the Respondent did harass the Complainant contrary to Section 14A of the act, and in a discriminatory manner on the grounds of race, and
b. the Respondent did not discriminate against the Respondent in how it dealt with the matter.
5.2 With regard the finding of harassment, I am conscious of what was a once off incident that was managed reasonably by the employer. Notwithstanding the behaviour complained of, as it happened from a manager and in front of other colleagues, did create an intimidating, hostile, degrading, humiliating and offensive environment for the Complainant.
5.3 Sections 14A(2) and 15(3) of the Employment Equality Acts allow a defenceto aclaimofharassment,wheretheRespondent canshowthatittook suchstepsaswerereasonably practicabletopreventan employeefrombehaving in a harassing manner. In this regard a Respondent is expected to have a complaints procedure in place for the harassed employee to invokeinorderthattheircomplaints canbeinvestigatedanddealtwithappropriately.
5.4 Once proscribed treatment occurs the employer is fixed with liability unless the defence provided for at 14A(2) and 15(3) of the Acts is successfully made out. Hence, in accordance with the Act the Respondent must show that it took such steps as are reasonably practical to prevent harassment in the workplace. As pointed out by the Chairman of the Labour Court [EDA0915] the obligation is preventative in nature and it is not sufficient for an employer to show that measures were taken to prevent a reoccurrence of harassment after it had taken place.
5.5 This suggests that an employer must be conscious of the possibility of harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred, and that the policy was effectively communicated to all employees. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations.
5.6 In this case the Respondent accepted that at the material time it had no such policies in place and, other than being advised of their responsibility during induction training the responsible management staff had no training on how to deal with incidents of harassment.
5.7 In all the circumstances I do not accept that the defence provided for by at s 14A (2) and s 15(3) of the Acts can avail the Respondent. Accordingly, the Complainant is entitled to succeed in this aspect of his claim.
5.8 Whilst such a policy did not exist, on balance the Respondent did behave in a manner as if such a policy did exist, and as such I find the Respondent behaved reasonably in attempting to address and reverse the effects of the harassment. The employee was not satisfied with outcome of that process, but that in itself does not amount to discrimination. In effect the Respondent made findings on the matter, attempted to address the matter, and during this time whilst remaining out of work the Complainant did not suffer monetarily. Neither did the Complainant raise a formal complaint, or progress a grievance with the Respondent. He may have done so had there been a harassment policy in place.
5.9 I find while the conduct of which the Complainant complained of is serious and unacceptable, it is at the lower scale in terms of its gravity. The Respondent also attempted to redress the matter following the incident.
5.10 Taking all this into account, and in accordance with Section 82 of the Act, I order the Respondent pay the Complainant €500. This is redress for the infringement of Mr Bains’ statutory rights, and therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
____________________
Gerry Rooney
Equality Officer
12 June 2015