EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-092
PARTIES
A customer care representative
Complainant
AND
A provider of outsourced customer support to a mobile phone operator
(Represented by Conor Hannaway, BL and HR advisor)
Respondent
File reference: EE/2013/278
Date of issue: 20th June 2016
1. Introduction:
1.1 On the 11th June 2013, the complainant referred a complaint relating to discrimination and harassment on grounds of gender and disability arising in her place of employment. On the 4th June 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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.
1.2 The complaint was scheduled for hearing on the 8th June 2015. The complainant attended the hearing in person. The respondent was represented by Conor Hannaway, BL and HR advisor and the HR manager attended as witness.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st 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. Submissions and evidence of the complainant:
2.1 The complainant commenced employment with the respondent on the 22nd November 2011. The respondent assigned the complainant to work in the offices of a client company, a high street mobile phone operator. Her role related to customer care, fielding telephone calls from members of the public regarding their “pay as you go” or “bill pay” accounts. Her employment came to an end in July 2014 when she received a letter of dismissal from the employer. This act post-dates the submission of the complaint form. In respect of her disability, the complainant outlines that she has depression. This is assessed as “severe” by the complainant’s General Practitioner in documentation exhibited in the case file. She also indicated that she had an ongoing endocrine disorder and that the medication she used had side-effects, which made her conscious about her appearance.
2.2 The complainant outlines that the respondent failed to adequately investigate and address complaints she made of bullying and harassment in her workplace. She says that she was forced to take a period of unpaid leave and subjected to malicious complaints from colleagues. The complainant outlines that evidence supporting her grievances was ignored and she refers to documentary evidence of abusive messages being left on Facebook pages. Addressing the use of Facebook at work, the complainant said that it was common for staff to communicate with each other both during and after work. While it was not officially permitted, its use was pervasive and not blocked on work terminals. It was an easy way to communicate with colleagues who might not be on the same hours. The complainant outlined that she received a final written warning in May 2012 for a message she posted on her social media account after a frustrating phone call. She said that she was more careful after that.
2.3 The complainant that she had not been able to return to work from sick leave as the respondent had not adequately addressed the bullying in the workplace, for example the use of Facebook. She submitted print outs of one colleague’s page taken when she was still in sick leave; this shows this colleague has her social media page open while at work. Friends of this colleague are seen to post messages, commenting on this.
2.4 The complainant described an incident of bullying on the 19th May 2012, when one colleague, a team leader, messaged another on Facebook referring to the other colleague as ‘jokesies’ and using an abusive term at him. The complainant said that she had heard this team leader and a colleague in the IT department refer to her as “jokesies”, apparently because of the Facebook message she was disciplined for. In this incident, the team leader was using his colleague as a decoy and the offence was directed at her.
2.5 In respect of the email from a colleague of the 6th June 2012, the complainant said that the respondent was determined not to address her complaints of bullying. This email was from an experienced colleague, with whom she had shared a house and knew well. She had emailed this colleague to inform him of an error on his account and the colleague had emailed back, obviously unhappy, saying that people in the company gossiped about the complainant and ranked her as one of the worst performers in the team. The complainant said that it was very stressful in the workplace as there were often mistakes and mis-communication between teams. This led to a blame culture.
2.6 The complainant outlined that she had then worked well in the company, winning a customer service award and gaining positive feedback from customers. She worked well with her team leader, who was supportive. The complainant said that there had been further incidents of bullying. In one, another team leader had shouted and screamed at her after this team leader had been locked out of an account. She raised this with her own team leader, who then spoke with the other team leader. The complainant said that because of the bullying, on one occasion in November 2012 she took to record her colleagues secretly. She hoped to record bullying to corroborate her allegations. She had not meant to upset anyone. The claimant offered to play the content of the video at the hearing; I asked what it proved and whether it captured acts of bullying. She said that it did not capture an incident of bullying and I, therefore, did not view the video.
2.7 The complainant also complained of a social media message by a colleague, who referred to staff of another mobile phone operator as “smelly”. The complainant said there were constant references or allusions to her as “smelling”. Later that month, on the same day as the HR manager investigated the complainant’s grievance, many colleagues posted various pictures and messages on social media. While they did not directly mention the claimant, she believed that they referred to the investigation. They did not make sense without this context. In a further incident, she spoke with a colleague regarding obtaining a cancellation for a customer and this led to colleagues, including the aggressive team leader, making references to “smell” and saying that she was a “knacker from the caravans”.
2.8 The complainant outlined that she had mentioned her state of mind to the HR department at the time she was given the warning. She told them that she was in a vulnerable condition following personal problems. After the incidents above, the complainant said that she disclosed to a team leader that she was contemplating suicide. This team leader raised this with the HR manager and the claimant was referred to a company doctor. The claimant was deemed unfit for work for a period on the 18th November 2012 and later went on some annual leave. She never returned to work and said that the respondent’s failure to deal with her grievance and bullying complaints was the cause of this.
2.9 The complainant said that the HR manager thought that she was a troublemaker and said that they had clashed over an email the complainant had sent about a public transport taxsaver scheme. The HR manager had criticised the way the complainant had raised her concerns. Commenting on the grievance complaints made against her, she said that there had been issues between her and some of her colleagues. The complainant said that the investigation carried out by the HR manager to her complaints was not sufficient. She said that a meeting took place on the 5th November 2012 and the HR manager as well as one team leader and an employee representative attended. The complainant said that she was upset and was then referred to a doctor. She outlined that the medical reports do not reflect what the doctors said to her; she said that she had covertly recorded one session.
2.10 The complainant outlined that she submitted certificates to the respondent certifying her unfitness to work. They were from her doctor. She said that she later lost her medical card so could not afford to go to the doctor to obtain new weekly certificates. She then stopped submitting certificates to the employer. She said that in 2014, the respondent wrote to ask her to attend a disciplinary meeting. She did not feel strong enough to attend such a meeting and later received a letter of dismissal from the respondent.
2.11 When the complainant was out on sick leave, the respondent continued to process her appeal of the unsuccessful grievance. She said that she had to fight to lodge the appeal and that the appeal was not an independent process as the manager doing the appeal had ignored the contents of the email of the 6th June 2012 in the same way as the HR manager had. She challenged the transcript of the hearing and said that none had been taken at the meeting.
2.12 In concluding submissions, the complainant said that she could not have returned to work because of the respondent had done nothing to facilitate her return. She was walking back into the same environment that made her unwell.
3. Submissions and evidence of the respondent:
3.1 The respondent outlined that the complainant had not established a prima facie case of discrimination. Issues 1, 2 and 5 in the complainant’s case summary of the 9th November 2013 had occurred at a time in which the respondent had no knowledge of the claimant’s illness or disability. Responding to the third allegation of the claimant, the representative denied that the complainant had been asked to take unpaid leave. In respect of the email of the 6th June 2012 from the claimant’s colleague, the respondent said that this was banter between colleagues and the conversation had been initiated by the claimant. After this, the respondent reacted appropriately by introducing a “dignity and respect” charter as well providing information on its bullying and harassment policy.
3.2 Addressing the issue of social media access, the respondent said that it had been made clear to staff that such use could not occur in the workplace. The respondent did not have physical control of the work terminals as this was in the hands of the client and people could always use their phones. In respect of the complainant’s complaints of bullying, the respondent said that the HR manager investigated her complaints. The message using an abusive term was clearly directed at another named colleague. The reference to ‘jokesies’ was clearly a generic term and did not refer to the complainant. The HR manager had given her report to the complainant, after which she had made reference to suicide. The respondent then provided the complainant with paid leave and referred her to the company doctor. The earliest appointment that could be obtained was the 12th November 2012. The complainant was assessed four times by doctors on behalf of the company and was later deemed fit to return to work. The respondent said that the claimant did not submit sick certificates as required by company policy. The first of the certificates were submitted in March 2013 and then submitted intermittently. She was issued warnings in respect of this failure and subsequently dismissed. The respondent outlined that anything that occurred after the submission of the complaint could not be dealt with at this hearing, i.e. the circumstances around the dismissal.
3.3 The HR manager denied that the respondent was aware of the complainant’s health difficulties at any time prior to November 2012. She denied the complainant’s assertion that this had been raised at the time of the written warning. The respondent referred to the issue of the complainant not disclosing an underlying mental health problem, not to criticise the claimant for this omission, but to corroborate their evidence that the complainant would have been reluctant to disclose this. On the 30th November 2012, the HR manager notified the complainant of the unsuccessful outcome to her grievance. The respondent denied that the appeal was anything but independent; the notes challenged by the complainant had been taken by a named colleague. The HR manager said that many of the complainant’s colleagues had made grievance complaints against her, which they wished to investigate. They could not do so when the complainant did not attend work, despite being certified as fit.
3.4 The HR manager outlined that the roll out of the “dignity at work” policy was effective in controlling what people said to each other. There had been no issues since its introduction. The respondent denied the claimant’s allegations that there were still issues in the workplace. The respondent concluded by saying that the complainant had not raised a prima facie case of discrimination and that she had refused to comply with the respondent’s sick and absence policy.
4. Findings and reasoning:
4.1 The complainant worked as a customer care representative employed by the respondent and assigned to work in the offices of a client company. It is clear from the evidence that there was a great deal of interaction between colleagues, both in open plan offices and on social media. The latter took place both inside and outside of work hours. It is also clear that the complainant encountered significant personal difficulties and became unwell. The complaint relates to harassment the complainant says she received in the workplace and the question for this report is whether the respondent fulfilled its obligations to her as an employee. The respondent says in reply that the complainant was a participant in the social interaction between colleagues and was herself the subject of complaints from colleagues.
4.2 In the first instance, it is important to acknowledge the difficult personal circumstances faced by the complainant, for which she has my sympathy. The questions to be considered in this report are whether the respondent discriminated against the complainant, whether the complainant was subjected to harassment on the equality grounds raised in the complaint and whether the respondent has a defence to any such acts.
4.3 Another issue to consider is the temporal scope of this complaint. The complaint was referred to the Equality Tribunal on the 11th June 2013. The complainant’s employment came to an end in or around July 2014. In County Cork VEC v Hurley EDA1124, the Labour Court held that a complainant could not seek redress in relation to incidents occurring after the submission of the complaint, although the Court indicated that it would consider evidence regarding the later incidents in order to assess their probative value in relation to the incidents encompassed in her claim. This is the appropriate approach to adopt with regard to this complaint.
4.4 The complainant referred to interactions with colleagues that she says constitute harassment. They include references to her smell and incidents where the complainant was subjected to aggressive behaviour. There are other incidents where the harassment is inferred, for example a particular day where the complainant says that Facebook postings related to her grievance complaint, while neither mentioning the grievance or the complainant by name.
4.5 Section 14A addresses harassment of a person on one or more of the nine discriminatory grounds provided in the Employment Equality Acts. Section 14A(7) provides:
(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,
(b) 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.
(c) 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.”
4.6 Where it is found as fact that such harassment has taken place, an employer has a statutory defence available to it. This is provided in section 14A(2) and provides:
“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.”
4.7 Section 15 of the Employment Equality Acts addresses the vicarious liability of employers for the conduct of employees. It provides as follows:
“(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
…
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to provide that the employer took such steps as were reasonably practicable to prevent the employee-
(a) from doing the act, or
(b) from doing in the course of his or her employment acts of that description.”
4.8 In A Worker v A Hotel [2010] E.L.R. 72, the Labour Court assessed the defence available to an employer to claims of harassment in the following terms: “This suggests that an employer must be conscious of the possibility of sexual 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.”
4.9 The respondent presented evidence of efforts to address interactions between employees. This includes a presentation entitled “Dignity, Diversity and Respect” given by the HR manager to staff. This seeks to address bullying and harassment, including under the nine grounds provided by the Employment Equality Acts. It addresses the manner in which colleagues should address each other, including by email and on social media. It provides details of the grievance procedure, which the respondent separately provided at the hearing.
4.10 Having considered the written and oral submissions of the parties, I find that the complainant does not succeed in this claim. I reach this finding with great sympathy for her. It is obvious from the print-outs of Facebook postings and other social media that there was considerable interaction between colleagues. This communication was informal in nature and took place during and after work. The respondent stated that the complainant “gave as good as she got”. It is the case that she engaged with colleagues, but I have the sense that this was a defensive action as well as being an attempt to integrate with a group. For a complaint of discrimination under the Employment Equality Acts to be made out, it must be demonstrated that there is a nexus between the alleged discriminatory treatment and the discriminatory grounds, for example disability. The provisions of the Employment Equality Acts, in particular those relating to harassment, do not create a “general civility code” for the workplace. I do not believe that there are grounds to find that the interaction between the complainant and her colleagues amounted to discrimination or harassment on the grounds either of disability or gender. Moreover, I do not doubt that the complainant raised personal issues at the time she received a warning for a Facebook post she made about a work call. I do not, however, find that the issues she raised amounted to putting the respondent on notice of a disability. I further find that the respondent acted appropriately in and around November 2012 when the complainant became unwell and began a period of sick leave. I have regard for the number of occupational health interventions instigated by the respondent at this time and the attention paid by the HR manager to the complainant’s situation. Taking these factors together, I have to find that there was no breach by the respondent of the Employment Equality Acts in respect of discrimination or harassment.
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 or gender.
____________________________________
Kevin Baneham
Adjudication Officer / Equality Officer
20th June 2016