EMPLOYMENT EQUALITY ACTS 1998-2011
DECISION NO. DEC-E2015-128
PARTIES
A Health Care Assistant
(Represented by Hamilton Turner Solicitors.)
-v-
A Hospital
(Represented by Wendy Doyle Solicitors.)
File reference: EE/2012/558
Date of issue: 25th November 2015
1. DISPUTE
1.1. The case concerns a claim by A Health Care Assistant (hereinafter referred to as ‘the complainant’) that he was subject of discrimination by A Nursing Home (hereinafter referred to as ‘the respondent’) on the grounds of race contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) when he was subject to harassment. The complainant also claims that he was the subject of victimisation by the respondent in terms of Section 74(2) of the Acts.
1.2. The complainant referred a claim to the Director of the Equality Tribunal on 30 October 2012 under the Acts. On 22 May 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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 17 September 2015.
1.3. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
2. SUMMARY OF COMPLAINANT'S CASE
2.1. The complainant was employed as a health care assistant by the respondent since 2006. The complainant resigned from his position in November 2013.
Harassment allegations leading to sick leave.
2.2. The complainant submits that, in June 2012, the respondent made him aware of a sexual harassment allegation against him for which he was instructed to apologise. As a direct result, the complainant submits, that he was forced to go on sick leave due to stress.
2.3. The complainant submits that he provided the relevant sick certificates to the respondent but that he was forced to attend a disciplinary meeting regarding his sick leave.
2.4. The complainant submits that the respondent suspended his sick pay despite the fact that he had valid sick certs for the period in question. The complainant is of the view that other members of staff were paid while on sick leave.
2.5. The complainant returned to work in September 2012 but left his employment in November 2013. The compliant has at no time raised the issue of discriminatory dismissal as part of this complaint.
Other specific allegations of racial harassment
2.6. The complainant submits that in March 2012 the respondent humiliated him by making a phone conversation open to the attention of a number of people over a speakerphone.
2.7. The complainant submits that the respondent sent the police to his house to investigate threatening anonymous letters that had been sent to his manager (Ms X) in the hospital. The complainant submits that the respondent singled him out as responsible for the anonymous letters because he is a black man. Specifically he says that other staff members were asked only once about the letters but he was asked many times.
2.8. The complainant submits that, in August 2012, he wrote a letter to the Chairperson of the hospital raising his concerns about being treated differently, but that he was informed by the respondent that such correspondence was forbidden.
2.9. The complainant submits that the respondent delayed returning social welfare forms to him for three weeks.
2.10. The complainant submits his work roster was changed on the basis of his race.
2.11. The complainant submits he was subjected to victimisation following his raising the issue of discrimination and that following his resignation in November 2013 that the respondent gave him bad references.
2.12. The complainant submits that all of the above alleged acts of discrimination were on the ground of race, but specifically the complainant contends that he was treated badly because he is black man.
3. SUMMARY OF RESPONDENT’S CASE
3.1 The respondent wholly rejects all aspects of the complaint.
Harassment allegations leading to sick leave.
3.2 The respondent received a complaint from a cleaner working in the hospital (employed by a contract cleaning company) against an employee of the hospital in June 2012. As part of the investigation into that complaint the hospital enquired from the contract cleaning company if any of their other employees had issues with hospital staff. As a result of this query the respondent received a complaint against the complainant which was of a minor nature. The respondent submits that, to ensure transparency and fairness, the complainant was given full details. A manager in the Hospital suggested to the complainant that if the incident had occurred that an apology may suffice. The respondent submits that while the cleaner who had reported the incident involving the complainant did not wish for any action to be taken, that it was the complainant who insisted on an investigation. The respondent investigated the matter and the outcome was given to the complainant in the presence of his union representative.
3.3 The respondent submits that when the complainant was on sick leave that he provided an illness certificate from a psychologist prompting them to respond to the complainant that a certificate was required from a qualified medical practitioner.
3.4 The respondent submits that the complainant was invited to a meeting with his manager (Ms X) and a HR representative, that he was not forced to attend and that it was not a disciplinary meeting but rather an opportunity to discuss when the complainant could return to work.
Other specific allegations of racial harassment
3.5 The respondent submits that in March 2012 the complainant phoned the hospital and spoke to a member of the night staff regarding leave. She was unable to ascertain if he was going to be out sick the following day. The relevant staff member reported the phone conversation to Ms X. Ms X and the night nurse called the complainant. As they both wanted to participate in the conversation with the complainant and they were unable to understand him clearly, the call was put on speakerphone.
3.6 The respondent submits that it does not have the power to send the Gardai to visit the complainant. The Gardai were informed of a number of anonymous letters received by the Hospital in 2012 and an investigation was deemed necessary by the respondent as one of the letters contained a threat to member of staff.
3.7 The respondent submits that at no time was the complainant told he could not write to the chairman.
3.8 The respondent submits that the complainant submitted an insurance form on at least four occasions and requested that a particular manager at the hospital sign it. That manager had to explain to the complainant that he could not sign the form as he is not a medical practitioner. The respondent submits that it was clear that the complainant was also confused about other social welfare procedures.
3.9 The respondent submits that on day shifts as the complaint is one of six Health Care Assistants, it is not possible for him to work alongside the same colleagues on every shift. The respondent submits that the system of self-rostering was discontinued and that it was explained to the complaint that it was the responsibility of the person in charge to ensure that adequate staffing levels and appropriate skill mix are maintained at all times.
3.10 The respondent submits that Ms X spoke to the complainant about his sick leave certificate for October 25th and 26th and the manner in which she perceived he had addressed her that morning (October the 30th) and in fact every morning since his return to work. The respondent submits in their written statement that the complainant told her in what she perceived to be a very aggressive tone that he was “scared of her”. Ms X repeated that the manner that the complainant was addressing her was not acceptable.
3.11 The respondent submits that the complainant has been subject to disciplinary procedures because of his conduct. They submit that he has been treated in the same manner as any other staff member would have been in the same circumstances and the respondent denies that any of the actions taken have been outside their obligations and rights as an employer and that any rights of the complainant were denied him at any stage during the process.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was harassed on the ground of race and victimised under the Acts. In reaching my decisions 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. 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.
4.3. Section 14 of the Employment equality act sets out the conditions under which harassment in relation to access to employment can take place. It provides as follows: -
(7) (a) In this section—
(i) references to harassment are to any form of unwanted
conduct related to any of the discriminatory grounds,
and
(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.
4.4. The complainant alleges that the respondent has treated him differently because he is a black man. The most serious of these allegations relates to the circumstances of the handling of an allegation sexual harassment against him. I have examined the account put forward by both parties and find that the following,
· The contract cleaning company dealt with their own staff and were enquiring if they had issues with hospital staff. There is no evidence that that respondent had any part in bringing a complaint of sexual harassment against the complainant.
· Once the complaint had been made the respondent complied with the complainants request for a full investigation. The investigation cleared the complainant and removed the allegation from the complainant’s personnel file. The issue was raised again at disciplinary meetings regarding sick leave but only because the complaint was citing the incident as the cause of his stress resulting in sick leave. I find that this was reasonable conduct by the respondent and no evidence of racial bias.
As evidence of further racial harassment the complaint has presented details of other incidents. I must therefore consider that the incidents presented are the most serious ones in the view of the complainant and decide if they individually or as a whole constitute harassment as set out in the Acts. At the hearing each of these incidents were examined in detail.
Issue of Anonymous letters
4.5. I find no evidence that the respondent in any way singled the complaint out for special treatment in regards to the issue of the letters. Due to the serious nature of the letters, each staff member was interviewed including the complainant. The complainant can only speculate about the number of times others were questioned and I find no evidence of that the complainant was treated any differently to other employees. I accept that the respondent cannot in the circumstances of this case be held responsible for the actions of An Garda Síochána
Phone Call
4.6. The respondent submits that it was necessary to place the complainants call on speakerphone to as they were unable to understand him. I accept the account put forward by the respondent, I accept that can be normal practice to put phone calls on speakerphone when there are multiple parties involved and that there was no element of racial harassment relating to this incident.
4.7. I find that the there is no evidence that the respondent,
· Failed to provide the complainant with proper references following his resignation. Rather the respondent was able to produce such references for examination by this Tribunal
· Held up required social welfare documentation. Having heard evidence from the complainant I am satisfied that the confusion lies with the complainant regarding the obligations of the respondent.
· Forced the complaint to attend a disciplinary meeting while he was on sick leave. Rather, I find evidence that the complainant attended on a voluntary basis to discuss genuine concerns by the respondent that he was not following established procedure.
4.8. The respondent has provided this Tribunal with full written records of their conduct from a Human Resources (HR) perspective when dealing with the complainant including all written correspondence and minutes of meetings. Both Ms X and the relevant manager from HR attended to give direct evidence. The respondent has given a full account of proper consideration of the needs of the complainant at all times and I find no evidence of less favourable treatment.
Victimisation.
4.9 The complainant submits that the respondent was on notice of his concerns of discrimination from early on in his dealings with his Manager and has made allegations that they are responsible for the behaviour of an employment agency in not finding him other employment. He has adduced no evidence and I find that the complainant is simply speculating in this regard. I have examined all incidents of alleged victimisation put forward by the complainant and find no evidence of adverse treatment in any of them, including the provision of references or ability to correspond with the chairman.
5. DECISION
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that
(i) the complainant was not subject to discrimination or harassment on the ground of race and his conditions of employment were not affected,
(ii) the complainant was not subject to victimisation in terms of section 74 (2) of the Employment Equality Acts.
____________________
Peter Healy
Equality Officer
25th November 2015