EDA164

FULL RECOMMENDATION ADE/15/37 DETERMINATIONNO.EDA164 DEC-E2015-100 INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : DUBLIN BUS (REPRESENTED BY CIE GROUP OF COMPANIES SOLICITOR) - AND - WILLIAM MCCAMLEY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Marie Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Equality Officer (now known as Adjudication Officer Decision No: DEC-E2015-100)


BACKGROUND:

2. This is an appeal of Equality Officer (now known as Adjudication Officer Decision No: DEC-E2015-100). A Labour Court hearing took place on 12th February 2015. The following is the Court's Determination:

DETERMINATION:

This is an appeal by William McCamley against the decision of the Equality Tribunal in his claims of harassment and victimisation on grounds of race and religion against Dublin Bus. In this Determination the parties are referred to as they were at first instance. Hence, Mr McCamley is referred to as the Complainant and Dublin Bus is referred to as the Respondent.

The case was referred to the Equality Tribunal on 12^thJune 2012 under the Employment Equality Acts 1998-2011 (hereafter the Acts). It was heard by an Equality Officer on 30^thJuly 2014. The decision under appeal was issued on 30^thSeptember 2015. The Equality Officer found against the Complainant.

Material Facts
The material facts of the case are not seriously in dispute and can be briefly stated.

The Complainant is an employee of the Respondent. He is also an activist in SIPTU. In that capacity he represented SIPTU in dealing with industrial relations issues arising within the employment. The NBRU also represents Drivers employed by the Respondent. It is common case that there has been a history of inter-union rivalry between these Unions within the Respondent Company which, at times, has manifested itself in a level of antipathy between some of their respective members.

Following a conciliation conference at the then LRC in a dispute involving the Respondent and both trade unions, a member of the NBRU, who was also an employee of the Respondent, posted abusive comments concerning the Complainant on Facebook. These comments referred to the Complainant in particularly disparaging and offensive terms which related to a religion and a nationality imputed to him (which are not his actual religion or his actual nationality). The offending comments were posted on or about 1^stMarch 2012. This incident will be referred to in this Determination as ‘the Facebook incident’

The Complainant referred a complaint concerning this posting to his Manager in reliance on the Respondent’s Dignity at Work policy. She responded that as the matter complained of occurred outside the workplace the company could not take any action under the policy in pursuance of which the complaint was referred.

The Complainant appealed against the refusal of the local Manager to address his grievance. The matter eventually came before the Head of Human Resources of the Respondent. He took a different view to that taken by the local Manager. The dealt with the complaint in reliance on Rule 18 of the Company Rule Book which provides:

• “Employees shall not conduct themselves in any manner prejudicial to the reputation and welfare of fellow employees”

The Head of Human Resources directed that a disciplinary process be initiated against the author of the offending comments. This resulted in a disciplinary sanction being imposed on the employee concerned. There was a significant delay between the reporting of the offending comments and the initiation of the disciplinary process. By letter dated 3^rdSeptember 2012, the Head of Human Resources wrote to the Complainant informing him that the author of the comments had admitted posting them on Facebook and had been ‘charged’ under Rule 18 with conduct prejudicial to another employee. The Head of Human Resources explained the delay by referring to the absence of the employee concerned on sick leave in consequence of which he was unavailable for interview.

The Complainant relies on earlier incidents of harassment which he claims are part of a pattern of discriminatory treatment against him by fellow employees. In particular he relies on an incident that occurred in 2008 in which he was the subject of an assault. That incident occurred on an occasion when he was attending a function hosted by the Respondent. The Complainant told the Court that he believed that the assault was motivated by an imputation to him of a certain religious affiliation because of words addressed to him by the assailant before the assault occurred. He claims that this incident and the incidents referred to above form part of a continuum of harassment. This occurrence will be referred to as ‘the 2008 incident’

The Complainant further relies on an incident surrounding the placing of graffiti of a personalised and highly offensive nature about him in a staff toilet. This incident appears to have occurred on or about 20^thJune 2012. The Complainant contends that it took the Respondent three weeks to have this graffiti removed. It appears from the Complainant’s submission that he is relying on this occurrence and a further incident of harassment as an act of victimisation. This will be referred to as ‘the graffiti incident’

Finally, the Complainant refers to an incident in which offensive material was posted on Facebook by an employee of the Respondent which was directed at two Managers. In that case the employees concerned were disciplined immediately. He relies on the different approach of the Respondent in his case as an act of discrimination.

Position of the Parties
The Complainant contends that the offending publications and conduct constitute harassment as that term is defined by the statute. He further contends that he suffered the harassment in the course of his employment in consequence of which the Respondent is fixed with liability under the Acts. It is also the Complainant’s case that the Respondent had failed to take effective measures to prevent the harassment and cannot, therefore, avail of the defence provided by the Acts.

The Respondent accepts that the offending comments were published in relation to the Complainant and that the author of the comments was an employee of the Respondent. However, the Respondent denied that the Complainant was harassed in the course of his employment. It was the Respondent’s position that the offending conduct occurred in circumstances unrelated to the Complainant’s employment. In these circumstances the Respondent submitted that the Court has no jurisdiction to entertain these complaints.

In relation tothe 2008 incident the Respondent contends that they are outside the statutory time limit and are likewise outside the scope of the Court’s jurisdiction.

In relation to the complaints concerning graffiti, the Respondent submitted that following the complaint received from the Complainant the defilements were removed as soon as possible and that its response in this case was no different to that which it adopted in all other similar cases.

Legal Principles
The first issue arising in the case is whether the Facebook incident constituted discrimination within the meaning of s.14A of the Act. That section provides: -

• (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, or
  (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.

  (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

  • (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

    (b) in a case where subsection (1)(b) applies, 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.

  (3) A person's rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

  (4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim's employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

  (5) In this section “employee” includes an individual who is—

  (a) seeking or using any service provided by an employment agency, and

  • (b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),
  and accordingly any reference to the individual's employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

  (6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim's conditions of employment” there were substituted “contrary to section 11”, or, as the case may be, section 12.

  (7)

  (a) In this section—

  • • (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

      (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

    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.

What is complained of in this case comes within the ambit of subsection (1)(a) of this section. There was no evidence that the Complainant was treated less favourably in the course of his employment for having accepted or rejected the harassment. Consequently subsection 1(b) is not applicable. This is a point of some relevance when considering whether the Respondent can avail of the defence provided by subsection (2) of s.14A. Where subsection 1(b) applies, subsection (2)(b) provides, in effect, that in order to make out a defence the employer must show that, in addition to having preventative measures in place, it took measures to reverse the effects of any adverse treatment suffered by the Complainant in consequence of having accepted or rejected the harassment.

In this case the defence available to the Respondent is that provided for at s.14A(2)(a). Accordingly, in order to avail of that defence the Respondent must show that it took such steps as were reasonably practicable to prevent the harasser from harassing the victim or any class of persons which includes the victim. The applicability of that defence on the facts of the instant case will be considered later in this Determination.

The liability that subsection (1) of this section imposes on employers is not akin to vicarious liability in common law. Rather, this provision applies a form of constructive direct liability on an employer where an employee is harassed by another employee, or a person in a category referred to at subsection 1(a) (ii) or (iii) of section 14A. That is clear from the use of the words “the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment”in the final sentence of subsection (1) of that section.

In the Course of Employment – Facebook Incident
Unlike vicarious liability, in the case of harassment committed by an employee on another employee there is no requirement to show that the wrongdoer was acting in the course, or within the scope, of his or her employment. Hence, it matters not that the harasser was off duty or at home when he posted the offending material. It is, however, essential that the victim suffered the harassment in the course of his or her employment.

It follows that in the instant case the focus of the Court’s enquiry must be on whether the Complainant suffered the harmful effects of the conduct complained of while in the course of his employment.

The meaning to be ascribed to the expression ‘in the course of employmentwas judicially considered by the Court of Appeal for England and Wales inJones v Tower Boot Co. Ltd. [1997] I.C.R. 254 in which the Court was required to construe a similarly worded provision at s 32 of the UK Race Relations Act 1976. Here, having reviewed a line of relevant authorities Waite LJ said the following: -

• The tribunals are free, and are indeed bound, to interpret the ordinary, and readily understandable, words “in the course of his employment” in the sense in which every layman would understand them. This is not to say that when it comes to applying them to the infinite variety of circumstances which is liable to occur in particular instances — within or without the workplace, in or out of uniform, in or out of rest-breaks — all laymen would necessarily agree as to the result. That is what makes their application so well suited to decision by an industrial jury. The application of the phrase will be a question of fact for each industrial tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort.

As can be seen from that passage, Waite LJ recognised that there are a variety of situations in which it can be held that a person is engaged in the course of his or her employment that go beyond the time spent actually in the workplace or performing the duties and tasks associated with the person’s occupation. Hence, it has been held that an employer can be liable for harassment that occurred in situations such as where the victim is attending a social function organised or sponsored by the employer or is attending meetings or conferences . That is acknowledged by the Respondent and it is also made clear in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (S.I.208/2012), which provides: -

• The scope of the sexual harassment and harassment provisions extend beyond the workplace, for example to conferences and training that occur outside the workplace. It may also extend to work-related social events.

There must, however, be some discernible connection between the harassment and the victim’s employment in the sense that the victim suffered the harmful effects of the harassment while he or she was engaged in activity authorised by the employer.

Discussion

In the instant case it appears clear that the offending comments posted in the Facebook incident were directed at the Complainant in his capacity as a representative of a group or body of workers employed by the Respondent. He was clearly authorised by the Respondent to act in that capacity. There can be no doubt that the purpose and effect of the publications was to disparage and ridicule the Complainant in the eyes of his colleagues. In these circumstances it follows that, in the words of s14A(7)(a) of the Act, it was conduct having “the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.Moreover, it appears clear from the context and content of the offending comments that their harmful effects were intended to impact on the Complainant while exercising his role as a worker representative; a role that he performed in the course of his employment.

It follows that the posting of the offending comments constituted harassment of the Complainant within the meaning of s.14A(7) of the Act. Consequently the employer is rendered liable for that harassment unless it can avail of the defence provided by s.14A(2) of the Act.

2008 Incident – Time Limit

The Complainant gave evidence in relation to the 2008 incident. That incident occurred when the Complainant was attending an event organised by the Respondent and he was doing so in his capacity as an employee of the Respondent. He was physically assaulted by another employee. As a prelude to the attack this employee addressed the Complainant using a crude and vulgar expression having a religious connotation (details of which were given in evidence). The incident was witnessed by a member of the Respondent’s management. No action was taken against the perpetrator of the assault. For reasons that were explained to the Court the Complainant did not make a formal complaint to the Respondent in relation to this incident.

This incident occurred some four years before the within complaint was referred to the Equality Tribunal.Prima facie,it was at that stage statute barred. However, the Complainant contends that it should be considered a part of a continuum of discriminatory treatment to which he was subjected and that the time limit started to run on the date of the last act of harassment, namely the Facebook incident, 1^stMarch 2012.

Both s.77(5) and s.77(6A) of the Act provide for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon where they form part of what is conveniently referred to as continuing discrimination.

Section 77(5)(a) of the Acts provides: -

• (a) Subject to paragraph (b) , a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

Section 77(6A) provides: -

• For the purposes of this section—

  (a) discrimination or victimisation occurs—

  • • (i) if the act constituting it extends over a period, at the end of the period,
    (ii) [not relevant]
    • (iii)[not relevant]

The application of these provisions was extensively considered by this Court in Determination EDA1124Ann Hurley v Co Cork VEC. It is appropriate to set out the relevant passage in that Determination in full: -

• Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] ILRM 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act (see the decision of the Court of Appeal for England and Wales in Robertson v Bexley Community Centre [2003] IRLR 434, at para 21).

  Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. The circumstances in which a corresponding provision of UK law can come into play was considered by the Court of Appeal in Arthur v London Eastern Railway Ltd [2007] IRLR 58. Here the Court was concerned with a claim of victimisation in the form of a series of acts directed against the complainant, some inside the three-month time limit provided at s.48 of the UK Employment Rights Act 1996, and some outside that limit. In considering if the time-limit in respect of all of the acts relied upon stated to run from the last such act Mummery LJ said: -

  • The provision in s.48(3) regarding a complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.

    The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them.

The Complainant relied on s.77(6A) of the Act in advancing his claim that the 2008 incident and the Facebook incident in 2012 should properly be regarded as separate manifestations of continuing discrimination in the nature of harassment and so treated as within the time limit when he made his complaint on 12^thJune 2012. As is clear from the decision inAnn Hurley v Count Cork VEC, s.77(6A) applies where the Respondent has maintained and kept in force a discriminatory regime, rule, practice or principle which extends over a period. It is not contended, nor is there any evidence to suggest, that the Respondent maintained such a rule, practice or principle directed at or facilitating the harassing the Complainant. Consequently, s.77(6A) has no application in this case.

For the sake of completeness the Court has considered if, on the fact of this case, both the 2008 incident and the Facebook incident can be considered as in time by application of s.77(5) of the Act. That requires a consideration of whether both incidents were sufficiently connected and can properly be regarded as separate manifestations of continuing harassment, so that the time limit started to run from the date of the least such incident (the Facebook incident).

The 2008 incident involved an assault on the Complainant by a named individual. The Facebook incident occurred some four years later. That posting was made by a different person than the assailant in the 2008 incident. There was no evidence proffered of any other incidents of harassment of the Complainant in the intervening period. The 2008 incident was also different in its nature and character than the Facebook incident. In these circumstances, and having regard to the length of time between both incidents, the Court can see no basis upon which it could be held that they were sufficiently connected so as to be characterised as separate manifestations of the same harassment. Consequently the Court is satisfied that they do not constitute a continuum of the harassment for the purpose of s.77(5) of the Act. Accordingly the Court must hold that the 2008 incident was a stand-alone occurrence and that the complaint in relation to that incident was presented outside the statutory time limit and is statute barred.

Graffiti Incident

This incident relates to the placing of graffiti in a toilet on the Respondent’s premises which was disparaging of the Complainant. On becoming aware of the presence of this graffiti the Complainant reported it to his Manager and asked that it be removed. According to the Complainant, it was some six days after he made the complaint that the graffiti was removed. The Complainant became aware of the graffiti on or about 20^thJune 2012. The Complainant was unaware of when the offending graffiti was placed in the toilet.

It the course of the appeal it became clear that this incident occurred after the within complaint was referred to the Equality Tribunal. Consequently, it could not have been comprehended by that complaint. It appears that this incident was first raised in the written submissions filed on behalf of the Complainant with the Equality Tribunal. Those submissions were received by the Equality Tribunal in 2014. In so far as the filing of the submissions constituted the referral of this aspect of the complaint, it was then out of time and statute barred. It follows that this aspect of the Complainant’s complaint was not properly before Equality Tribunal and it cannot be properly before the Court in this appeal.

Different Treatment in the Case of two Manager

In presenting his case to the Court the Complainant referred to an incident in which an employee posted offending comments on social media concerning two Managers of the Respondent. In that case immediate action was taken by the Respondent to address the incident through its disciplinary procedures. He contrasts the treatment of his complaint with that of the Respondent in the case of the Managers in question.

There was no evidence proffered, nor was it otherwise suggested, that if there was a difference in treatment in relation how these complaints and those of the Complainant were processed (and the Court makes no such finding) that it was on grounds of either religion or nationality. Accordingly, this matter could not come within the scope of the within complaint.

Defence

Section 14A(2) provides an employer, who would otherwise be liable for harassment by application of subsection (1) of that section, with a full defence in defined circumstances. In order to avail of the defence, the employer must demonstrate that preventative measures were taken before the occurrence of the offending conduct, occurred. The taking of post-hoc action in response to a complaint does not make out the defence.

The Respondent had a policy against harassment and sexual harassment at work. But it did not contain a provision specifically directed at preventing harassment through the use of social media at the material time, although it put such a policy in place later. Moreover, the initial response of the Complainant’s Manager was to deny any responsibility for what occurred on the basis that the Respondent’s dignity at work policy did not cover this type of conduct. The Complainant appealed to the Respondent’s Head of Human Resources against the refusal of the local Manager to address his complaints. The Head of Human Resources recognised that the type of conduct giving rise to the Facebook incident was in fact prohibited under Rule 18 of the company rules as conduct “prejudicial to the reputation and welfare of fellow employees”.

That Rule was invoked against the harasser and a disciplinary sanction was imposed against him. There was a delay of some months between the raising of the matter with the Head of Human Resources and the completion of the disciplinary process. However, that was attributable to the absence of the employee concerned on sick leave in the intervening period.

While Rule 18 predates and is not part of the Respondent’s dignity at work policy, the Court was told in evidence by the Head of Human Resources that it is ascribed a wide ambit and is frequently invoked to deal with any form of offensive conduct perpetrated by one employee on another. Both the Head of Human Resources and the Complainant told the Court that the Rule Book is provided to all employees on commencing employment and that its content is well known by all employees.

This Rule may not be an adequate substitute for a well-defined policy against the use of social media as an instrument of harassment (which the Respondent now has in place). But it is, nonetheless, a comprehensive provision directed at protecting employees from any form of prejudicial or harmful treatment by fellow employees. As this case demonstrates, that can include harassment or discriminatory treatment on any of the grounds prohibited by the Acts by whatever mode it is perpetrated.

Outcome
The Court accepts that in the Facebook incident the Complainant was subjected to wholly unacceptable personalised abuse in the course of his employment that no worker should be expected to tolerate. However, the net question that arises for consideration by the Court is whether the Respondent can be held liable in law for what occurred. Having regard to all of the evidence before it, the Court has concluded that the Respondent can avail of the defence that the Act provides at s.14A(2). Accordingly the Respondent cannot be fixed with liability.

In these circumstances the Court must affirm the decision of the Equality Tribunal and disallow the appeal.

Signed on behalf of the Labour Court



Kevin Duffy
18th February 2016______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.