Workplace Relations Commission
EMPLOYMENT EQUALITY ACTS 1998 TO 2011
DECISION NO. DEC-2015-102
PARTIES
An Employee
AND
A DIY retailer
(Represented by Tom Mallon BL,
instructed by Arthur Cox Solicitors)
File reference: EE/2013/329 Date of issue: October 2015
1. Introduction:
1.1 On the 2nd July 2013, the complainant referred a complaint to the Director of the Equality Tribunal in relation to discrimination on the grounds of disability. On the 20th July 2015 and in accordance with the powers under section 75 of the Employment Equality Act, the Director delegated the case to me for investigation, hearing and decision. The parties made submissions in advance of the hearing and attended the hearing on 30th July 2015.
1.2 At the hearing, the complainant was accompanied by her parents. The Area Manager, the HR Manager and the HR consultant appointed to investigate the complainant’s grievance attended for the respondent. The respondent was represented by Tom Mallon, BL, instructed by Arthur Cox Solicitors.
1.3 In line with the practice of the Equality Tribunal, the identities of the parties or witnesses have been removed from this report.
2. Summary of the complainant’s case:
2.1 In submissions made in advance of the hearing, the complainant outlines that she commenced her employment with the predecessor of the respondent at its store in Wexford on the 26th September 2007. She says that in 2011 she lodged a complaint against the General Manager of the store for bullying and intimidation and this was referred to internal mediation in August of that year. The complainant outlines that the problems she faced in the workplace reemerged and led to her being suspended from work on the 8th May 2013. The suspension was for one week without pay and related to alleged performance issues on the tills. The complainant then referred a second complaint against her General Manager to the respondent. This was initially dealt with by the respondent Area Manager. He had previously dealt with the 2011 complaint and when the complainant said that this issue remained unresolved, the Area Manager outlined that he felt that he could not proceed with the 2013 complaint. It was during the course of this correspondence that the complainant’s father raised the issue of the complainant’s disability, referred to in a letter of the 13th May 2013 and subsequently in other correspondence. The matter was referred to an investigator, a HR consultant appointed by the respondent. The complainant outlines her dissatisfaction with the manner in which the investigation was carried out as well as the independence of the investigator. The complainant challenged the contents of the investigator’s report and its six recommendations, which were implemented by the respondent. The recommendations included overturning the decision to suspend the complainant from work, changes to work practices generally and in the roles allocated to the complainant. After being certified as unfit for work due to work-related stress, the complainant tendered her resignation from the respondent’s employment in a letter of the 11th October 2013.
2.2 In submissions at the hearing, the complainant outlined that she had been subjected to discriminatory and unfair treatment in the workplace and this had been instigated by the General Manager of the Wexford store. This treatment includes being allocated excessive time working on tills and being deprived of other types of work on the shop floor or elsewhere. She outlined that she was subjected to excessive scrutiny where the General Manager and others would stand over her shoulder while she worked on the till. She complained about this to the General Manager, but this did not lead to an amelioration of this situation. The complainant gave examples of named colleagues who were given more diverse work by the General Manager. She outlined that these problems were worse in 2013 than in previous years.
2.3 Addressing her role in the respondent store, the complainant outlined that she would often be the only person assigned to work on the till, causing her to have to work under pressure. She would have to work quickly to deal with customer queues and this made mistakes inevitable. Problems also arose because coins were not reconciled by the till operator themselves, but would be done by other staff after the operator had completed their shift. This led to situations where discrepancies were only raised with the till operator when they were next in work. The complainant outlined that the General Manager was excessively critical of the complainant, saying that she was the worst in the store. The complainant outlined that on one occasion, when the General Manager raised the €19.99 charge, the General Manager would not allow the complainant to explain the circumstances around this incident. While the General Manager was often critical of her performance on the till, she would not diversify the work tasks she was allocated. During the hearing, the complainant referred to spreadsheets provided by the respondent that show till discrepancies for all staff in the Wexford store.
2.4 In respect of her suspension from work, the complainant said she had been summonsed to a meeting by her General Manager on the 8th May 2013. She did not know the purpose of the meeting and would have agreed to have been accompanied by a colleague had she known that it related to her being investigated. At the meeting, the General Manager told the complainant that she wished to raise issues relating to the till and the complainant replied that she had already sought to explain the discrepancies. While the complainant had been scheduled to work later that day, she left the workplace immediately following the meeting. This was because she was distraught and upset after the meeting. It was after this meeting that she wrote to the Area Manager to ask for her contract of employment and the employee handbook. The complainant outlined that while she made mistakes, so did her colleagues when they worked on the tills. She said that the General Manager singled her out and that she was overly aggressive in how she treated her. The complainant gave an account of further incidents where she was subjected to the same aggressive treatment by the General Manager. The complainant details 15 occasions where she raises the General Manager’s behaviour to her and also raises other times in which she felt uncomfortable in the workplace.
2.5 Following the incident where the General Manager sought to suspend the complainant from work, the complainant said that she made a complaint to the Area Manager. He called to the workplace some days later. There followed a meeting some time later between the General Manager, the Area Manager and the complainant but this did not lead to any real outcome. The matter was then referred to investigation; this was carried out by a former executive of the respondent who acts as a HR consultant. The complainant outlined in written and oral submissions that she was not satisfied with the investigator’s independence. She specifically challenges the extent of his investigation when interviewing her colleagues about her complaints of the General Manager’s behaviour. She also raises the issue of how his report refers to her disability, complaining of the term used by the report’s author.
2.6 In respect of her disability, the complainant explained the nature of her disability. She said that she had referred to her disability in casual conversation with the General Manager when they chatted about having children; the complainant had said that her disability meant that she could not have children. The General Manager acknowledged this comment and that she was sorry to hear this. The complainant also had similar conversations with other named colleagues. The complainant also outlined that her disability was raised with the Area Manager in the course of his second investigation and as an explanation for the complainant’s behaviour in work on one occasion. The Area Manager responded that he was not aware of the complainant’s disability. The complainant said that it was not easy for her to talk about her disability and that these events had made her very unhappy. She outlined that the General Manager should have been made aware of the impact of her behaviour and that this mistreatment should stop. The complainant also said that she had been very upset in the incident of Sunday, 14th August 2011 where the General Manager had mimicked her walk when describing a customer interaction. She said that this incident was highly offensive.
2.7 In cross-examination, the complainant said that the only occasion she had raised her disability with the General Manager was the conversation about not being able to have children. This occurred in 2008 or 2009. She said that she had not made direct reference to her disability since then. There had been other occasions in which she had mentioned her disability to colleagues in the workplace. The complainant outlined that she had raised the issue of her disability with the investigator and General Manager in 2013 as she had been dissatisfied with the outcome of her 2011 complaint. The complainant said that the 2011 complaint was the only complaint in which she had referred to her disability. She answered in the affirmative that her 2013 complaint was not related to her disability. She said that the bullying and the differential treatment she received at the hands of the General Manager were not related to her disability. Asked about the investigator’s report, the complainant said that she had not linked the issues of her suspension with her disability or to the bullying. In response to questions regarding the recommendations in the investigator’s report, she described the report as demeaning and that it could not lead to a resolution to this problem. It was put to the complainant that she had succeeded with her grievance following the respondent’s willingness to implement the investigator’s recommendations. She said that she never received a letter from the respondent to say that the sanction had been expunged from her record. The report did also not adequately deal with the behaviour of the General Manager.
3. Summary of the respondent’s case:
3.1 The respondent made submissions to the Equality Tribunal in advance of the scheduled hearing of the complaint. The submissions outline that the complainant must establish facts from which discrimination may be presumed and that the complainant must establish that a discriminatory act has occurred in the six-month period prior to the date of the complaint. It is further submitted that the respondent did not know of the complainant’s disability and that the complainant never sought any accommodation of her disability. The respondent submits that the allegations made by the complainant are utterly without foundation and calls on the complainant to withdraw them.
3.2 In pre-hearing correspondence to the Equality Tribunal, dated the 3rd July 2015, solicitors for the respondent provide the identities of the witnesses to attend the Tribunal originally scheduled for the 27th July 2015; this list includes the General Manager. The respondent also requests that the scheduled date for the hearing be adjourned in order to facilitate the attendance of the General Manager because she is an essential witness. The respondent further outlines that should this request not be acceded to, a further hearing would need to be convened in order to allow the General Manager’s evidence be taken. The respondent was granted the sought-for adjournment.
3.3 At the outset of the hearing, the respondent made a preliminary submission that the Equality Tribunal may only hear a complaint if a complainant succeeds in establishing primary facts from which discrimination could be inferred. The respondent relied on case law, citing Southern Health Board v. Mitchell [2001] E.L.R. 201, Valpeters v. Melbury Developments Ltd [2010] E.L.R. 64 and Graham Anthony & Company Ltd v. Margetts [2003] EDA 038. In additional written submissions handed in at the hearing, the respondent states that the complainant has not adduced evidence of discrimination in relation to her alleged disability. During the course of the hearing, the respondent said that it would not go into evidence, stating that the complainant had not discharged her onus to establish facts from which an inference of discrimination could be drawn. The Area Manager, the HR Manager and the Investigator were in attendance and the General Manager was not.
4. Findings and reasoning:
4.1 The nature of the complainant’s disability is Turner’s Syndrome, a chromosomal condition. The fact that it is a disability within the scope of the Employment Equality Acts was not in dispute. The respondent states that it only became aware of the complainant’s disability when raised during the May 2013 grievance and states that none of the actions complained of were on the grounds of, or related to, her disability.
4.2 Central to this complaint is whether the complainant was subjected to discriminatory treatment and harassment from the General Manager of the respondent store. The treatment includes the allocation of work tasks to the complainant and the decision in May 2013 to suspend her for one week without pay. The complainant raises the issue of how the General Manager treats her, describing it as bullying, intimidation and harassment.
4.3 Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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)...” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons ... one is a person with a disability and the other either is not or is a person with a different disability”. Section 14A(7) of the Act defines harassment as “any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.” For a complaint of discrimination under the Employment Equality Acts to be made out, she must demonstrate a nexus between the alleged discriminatory treatment and her disability. The provisions of the Employment Equality Acts, in particular those relating to harassment, do not create a “general civility code” for the workplace (see the equivalent jurisprudence of the US Supreme Court in, for example, Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75.)
4.4 Section 85A of the Employment Equality Acts sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. 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. Addressing the issue of the burden of proof in Valpeters v. Melbury Developments Ltd [2010] E.L.R. 64, the Labour Court held, at page 68, as follows:
“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.”
4.5 Section 77(5) of the Employment Equality Acts requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown. It can be possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, however, establish that a discriminatory act occurred within the limitation period (see the decisions of the Labour Court in Cork County VEC v. Hurley EDA 24/2011 and County Dublin VEC v. Dodo EDA1327/2013). The complainant raises issues over the years of her employment with the respondent, some of which occurred in the six months prior to the referral of her complaint to the Equality Tribunal. Others pre-date the limitation period and include the August 2011 incident. Applying section 77(5) and the above case law, it is for the complainant to show that a discriminatory act occurred within the limitation period.
4.6 In the instant case, there was a sharp conflict of fact over the nature of the interactions between the complainant and the General Manager. The complainant says that she was subjected to acts of bullying, harassment and intimidation. She provided an extensive written account of these events and also gave oral evidence at the hearing. During the hearing, she was subjected to questions from the Tribunal and to cross-examination by counsel for the respondent. In written evidence submitted to the Equality Tribunal, the General Manager denies the allegations made against her, stating that her interactions were related to her management role in tackling till discrepancies and other issues. In the transcript provided by the investigator of his meeting with the General Manager of the 7th June 2013, the General Manager is quoted as follows “I have treated her [the complainant] the same as everyone else, bar I take her to task. When I read the letter from her it was very distorted… I am not aggressive; I have taken her to task informally by talking to her on her own and not at the tills. Formally – I would have taken her to the office, no more than I would with anyone else or any of my managers would do with any other staff members.” Solicitors for the respondent submitted in writing that the allegations made by the complainant were utterly without foundation and they call on the complainant to withdraw them. The respondent describes the General Manager as an essential witness and obtained an adjournment in order to facilitate her attendance at the hearing. The General Manager, however, did not attend the Tribunal and no request was made for a further adjournment to allow her give evidence at a later date.
4.7 It is necessary for this sharp conflict of fact to be resolved before considering whether the complainant has met the burden imposed in section 85A of the Employment Equality Acts. In resolving the conflict between the accounts of the complainant and the written evidence of the General Manager, I note that the complainant has provided a comprehensive account both in writing and orally of her interactions with the General Manager. She was subject to cross-examination by counsel for the respondent. In what was a precise cross-examination, it was not put to the complainant that the respondent denied her allegations or that she was wrong in saying that she had been subjected to bullying or harassment. It was put to her that she believes that she was subjected to bullying and harassment as preface to asking whether the acts complained of were related to her disability. I further note that the respondent did not present evidence to contradict the allegations made by the complainant and that the respondent had been facilitated with a hearing date to allow the attendance of all their witnesses. It, therefore, follows that the conflict of fact be resolved in favour of the complainant and I find as fact that the complainant was subjected to acts of harassment instigated by the respondent General Manager and that this undermined the complainant’s dignity at work.
4.8 This finding of fact is not, of itself, sufficient to succeed in a claim under the Employment Equality Acts or even to establish a prima facie case of discriminatory treatment. Having considered the evidence presented by the parties, I find as fact that the complainant mentioned in casual conversation with the General Manager that she had a disability that prevented her having children and that the incident in August 2011 amounted to offensive mimicking of the complainant’s gait. I note, however, that in cross-examination, the complainant provided direct answers to direct questions about whether the 2013 complaints raised in this case were related to or on the grounds of her disability. She said that the only complaint that related to her disability was the 2011 incident and that the 2013 incidents were not so related. She agreed that the interactions with her General Manager in 2013, including the decision to suspend her from work, did not relate to her disability. In fairness to the complainant, she did not give vague or self-serving evidence but her direct answers that the complained-of acts in 2013 did not relate to disability curtail the progress of this investigation. Given that there are no discriminatory acts or incidents of harassment that are grounded on or related to one of the nine grounds provided in the Employment Equality Acts and that occurred within the limitation period provided by the Acts, a prima facie case has not been established by the complainant.
Decision:
5.1 In accordance with section 79 of the Employment Equality Act, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that she was subject to discriminatory treatment or harassment on grounds of disability.
____________________________________
Kevin Baneham
Adjudication Officer
October 2015