Employment Equality Acts
DECISION NO: DEC-E2016-129
An Employee
(Represented by Conor J Glendon & Co Solicitors.)
V
A University
(Represented by Ronan Daly Jermyn Solicitors)
File Nos. ET-158737-ee-15
Date of Issue: 23rd September 2016
1. DISPUTE
1.1. The case concerns a claim by An Employee (hereinafter referred to as ‘the complainant’) that that she was (i) discriminated against by her employer (“the respondent”) on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, and contrary to section 8 of those Acts, (ii) harassed by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, and contrary to section 14A of those Acts, (iii) sexually harassed by the respondent contrary to section 14A of the Employment Equality Acts 1998-2008, (iv) vicitimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and (iv) dismissed by the respondent in circumstances amounting to discrimination. The respondent rejects the complainant’s assertions in their entirety.
1.2. The complainant referred his claim to the Director of the Equality Tribunal under the Employment Equality Acts (hereinafter referred to as “the Acts”) on the 7th August 2015. On the 8th June 2016, in accordance with his powers under section 75 of the Equal Status Acts, the Director General of the Workplace Relations Commission 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 General under section 25 of the Acts, on which date my investigation commenced. A hearing took place on the 19th July 2016.
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 In May 2013 the complainant, was recruited by the respondent to work as a research database manager in a Research facility which is part of the University. The complainant submits that from her very first meeting with the person to whom she would be reporting (Mr X) it was made clear that there was a distinct cultural division in the research facility between staff who were from the private sector and staff from an academic background and that the working environment was poor due to that cultural division.
2.2 It is the complainant’s submission that from the outset it was Mr X’s understanding that she had been brought in to replace him. The complainant has submitted a series of events beginning in October 2013, that she says demonstrate bullying and childish behaviour towards her by Mr X and his team (two other female members of staff) These events include, a request to cease E-mail communication, general unfriendliness, speaking over her and a blanket refusal of all suggestions The complainant submits that she was becoming increasingly upset by the atmosphere in work and with the way she was being treated by Mr X. The complainant submits that in November 2013 she requested a meeting with, the head of the facility, (Manager A) at which she informed him that she was being prevented from doing her job and that there was a bullying mentality within the team with Mr X at its centre.
2.3 The complainant submits that following that meeting in November that Mr X’s behaviour went from general hostility to the following,
· Her desk was situated right outside of Mr X’s office with her back to him. He would continuously stand behind her for periods of time doing something on his phone.
· In Mr X’s office when she went in for meetings with him the guest chair was not at the opposite side of his desk as you would expect but at the corner of his desk at the same side as him which she found very uncomfortable. As a result of this sometimes when he would call her into his office she would stand at the door instead. Also during the following months during these discussions she found that he would not make eye contact with her and instead he would direct his attention on the area between her neck and chest which she found extremely off-putting and it would cause her to lose her train of thought. She found he would often do this when they were having a disagreement over something. On other occasions when the complainant would stand up to leave his office Mr X would focus his attention on her genital area
· On more than one occasion when sitting in close proximity to Mr X in his office he would sit with his legs spread and scratch his genital area. Again this would often occur when we were disagreeing on a topic. The complainant found this extremely uncomfortable and completely unacceptable
2.4 The complainant submits that in October 2014 she brought the behaviour of Mr X to the attention of senior management for the first time setting out in detail the behaviours outlined above at 2.3. The complainant submits that Manager A dissuaded her from going to Human Resources with the problem and that it could be handled internally. The complainant says that she had an excellent working relationship with Manager A and that while he was extremely sympathetic that he appeared to do nothing.
2.5 It is the complainant’s submission that after meetings with Manager A, that he removed Mr X as her immediate boss and restructured the organisation to allow the complainant to take a leading role, but that Mr X continued to be obstructive.
2.6 The complainant submits that the October meeting constitutes a complaint of sexual harassment and that a concerted campaign was instigated against her from that point on, by Mr X and the two female members of his team. The complainant submits that Mr X refused to co-operate with a handover process. The complainant has submitted direct evidence of the serious effects on her wellbeing as a result of events in work at that time.
2.7 The complainant submits that in November 2014 that she sent a written complaint of bullying and inappropriate behaviour to Manager A, but the hostile treatment from Mr X continued. The Complainant submits that after a meeting in December 2014 she told Manager A that enough was enough and that she was handing in her notice, but that Manager A asked her to stay. The complainant submits that a series of meetings between the complainant and Manager A followed at which Manger A asked her to stay and outlined his efforts to have Mr X transferred. The complainant submits that the effects on her health became most serious during this period as Mr X had intensified his bullying behaviour.
2.8 The complainant submits that she arranged a meeting with Manager B from Human resources in February where she outlined the bullying behaviour she had experienced. She submits that although she did not name Mr X directly that it was “obvious we both knew who we were talking about” The complainant submits that at that meeting it was made apparent that a disciplinary process could take six months which the complainant felt she could not endure.
2.9 The complainant gave formal notice on 18th March 2015. Following that the respondent made significant efforts to retain the complainant.
2.10 The complainant submits that a formal procedure should have been triggered after a verbal and e-mail complaint to Manager A but that instead the failures of her employer towards her constituted a serious breach of it’s duties under the Acts and resulted in her suffering sexual harassment ,victimisation and ultimately lead to her being constructively dismissed.
3. SUMMARY OF RESPONDENT’S CASE
3.1 The respondent submits that the Complainant resigned from her employment, in circumstances where the Respondent had sought to retain her in employment and offered repeatedly to undertake a full investigation of what it understood to be a bullying complainant to allow her to address any concerns.
3.2 The respondent submits that the Complainant only provided details of her allegations on her clear direction that she wanted to leave – seeking confirmation of that position before she submitted any detail. The respondent submits that the Complainant failed or declined to submit the required detail in the manner requested and thus failed to invoke the Respondent’s detailed policies and procedures. The Respondent submits that the complainant could have made discrimination complaints at any time during her employment but chose not to. She chose to resign, which she did, and only at that point did she submit details of what was still being termed a “bullying” claim. It was being processed as a bullying claim with persons appointed to investigate. She could have allowed the Respondent to undertake that process. The respondent submits that the complainant circumvented and closed out that process by invoking instead this complaint. The Respondent submits that it offered to investigate any such matters as discrimination issues but when details were sought the Complainant merely responded with her WRC complaint. Thus, because of the Complainant’s approach to the addressing of the issues, the Respondent submits that it has been left without a mechanism to address her complaint.
3.3 The Respondent submits that instead of invoking properly the policies available to her in a timely manner, the Complainant has lodged claims under the “Acts”. The Respondent relies on section 14(2)(A) of the Acts in defence to the claim, by reason of the fact that it has detailed policies and procedures in place intended to make all employees aware that harassment and sexual harassment are unacceptable. They provide for clear mechanisms for resolving any such complaints and the Complainant has failed to invoke and instead has moved straight to these proceedings.
3.4 In regards to the meeting in October 2014 the respondent submits that it was Manager A, and not the Complainant, who sought and arranged for an informal meeting with the Complainant and her colleague as he wished to meet with his staff on an informal basis to discuss the project in general, to see how things were developing and assess the structure the group which he felt was not being established in the manner he had wanted. Manager A does recall that the Complainant had a view that the group was not working well together, that there was tension and difficulty and that two cliques had developed – with Mr X and two female members of staff in one group and the Complainant and others in the another group. One side come from more of an “academic experience” and the other from more “industry experience”. It is not unusual for such initial tensions to develop within such a new group with that type of personnel mixture.
3.5 It is the respondent’s submission that the Complainant did tell Manager A that Mr X was “difficult” but she in fact placed equal if not greater emphasis on her interpersonal difficulties with a female member of staff. That was the full extent of her assertions. It was akin to an “us and them” work dispute and never once portrayed as an individual complaint against Mr X or of the nature alleged in this complaint.
3.6 The respondent submits that contrary to her submissions the Complainant did not at any point during this meeting advise of a “bullying mentality” within the team “with Mr X at the centre of it”. Neither did the Complainant allege that she was being sexually harassed, harassed, victimised or discriminated against. That is absolutely denied in the strongest terms by the respondent. This was a frank and informal discussion about identifying and ironing out team work issues.
3.7 At the meeting Manager A proposed an action plan for restructuring which was agreed by all. As a consequence of this new structure there would be a clear separation between the Complainant and Mr X with no direct reporting line. The respondent submits that the structure that was always envisaged and the meeting was called mainly to ensure that this preferred structure was properly implemented. Manager A recalls clearly that the Complainant was in fact very satisfied with this proposed restructure.
3.8 The Respondent rejects that Complainants allegation that she did not know how to deal with the situation. The Respondent has a Staff Anti Bullying Policy, a Grievance Policy and a Workplace Dignity and Respect – Harassment and Sexual Harassment Policy. It is submitted that there is a clear onus on the Complainant to raise and invoke the protection of the policies in place where a legitimate concern arises.
3.9 In relation to the Complainants allegation that at a meeting with Manager A in October 2014 she outlined what she alleged was inappropriate behaviour by Mr X The respondent submits that this meeting was not a meeting called to discuss complaints but operational matters to the advantage of the complainant. Manager A absolutely denies that at this meeting the Complainant stated that she was being “bullied or sexually harassed”. The respondent accepted that the Complainant made broad criticisms of her working relationship with Mr X and others. That is not denied. However, that falls far short of the type of elevated claim now alleged. It is also accepted that the Complainant referenced very briefly and in an offhanded manner the fact that Mr X “scratched himself”. Manager A recalls that this was uttered as a derogatory statement by the Complainant, in the context of her disregard for him and his working style. It was stated as something of a personal slight about his appearance and his demeanour, effectively an inference regarding his office etiquette implying a pejorative sense of unkemptness in his appearance. Manager A submits that in fact Mr X did indeed have a tendency to scratch himself. He will say that this was simply an insult thrown out by the Complainant raised in a “did you ever notice” fashion. There was however absolutely no context of or reference to it being sexual harassment. That is denied in the strongest terms. Manager A gave evidence at the hearing that he was not in any way “embarrassed” by the conversation as alleged as was no sexual nature to the conversation and even if there had been, he is an experienced medical professional who is trained to handle difficult and uncomfortable conversations.
3.10 Manager A denies ever having tried to dissuade the complainant from going to HR with her complaint.
3.11 The respondent rejects the Complainants claims claimed that the incidents in November 2014 were part of a campaign of victimisation “due to having raised a complaint of sexual harassment” as at this point no complaint of sexual harassment had been made. It follows therefore that where no complaint had been made no such victimisation arising from a complaint could have occurred. The Respondent cannot accept that the reference to “scratching”, which was so clearly stated within a particular earlier context, can now be recast as an allegation of sexual harassment, particularly where no actual claim or mention of sexual harassment was ever put forward at this point.
3.12 The respondent submits that the first written reference to alleged bullying behaviour relates to an email to Manager A on the 17th of November 2014 which stated that she had been to see her General Practitioner and that she was unable to perform her work duties due to stress, claiming:-
“the work stress I have been feeling over the past year has increased to an unacceptable level and it is primarily due to Mr X’s treatment of me at work. I feel bullied by him continuously over the course of my time”.
It also stated that the Complainant believed that Mr. X had acted inappropriately towards her when they had one to one discussions in the office. The respondent accepted that the term “bullying” is now directly referenced in the email but submits that additional use of this term for the first time was very much noted by Manager A. However, at no time did the Complainant raise any issue of sexual harassment, harassment, victimisation or discrimination. That is denied by the respondent who submits that it is supported by the only contemporaneous note of the Complainant’s concerns at that point as in the aforementioned email.
The Complainant concluded by stating:-
“I am willing to give the situation more time in hope of resolution but if things continue the way they are I feel I am left with no option but to escalate these issues to HR for review and resolution”.
4. FINDINGS & CONCLUSION
4.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, (ii) harassed the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts, (iii) sexually harassed the complainant contrary to section 14A of the Employment Equality Acts 1998-2008, (iv) vicitimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and (iv) constructively dismissed the complainant. 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 Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered unlawful treatment contrary to the Acts. It is well settled in a line of decisions from both this Tribunal and the Labour Court that the type or range of facts which may be relied upon by a complainant can vary from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination has occurred. The language used indicates that where the primary facts alleged are proved it remains for this Tribunal to decide if the inference or presumption contended can be properly drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn from a fact, or range of facts, which have been proved in evidence. If the complainant does not discharge the initial probative burden required her case cannot succeed.
4.3 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.
4.4 Central to this complaint is the complainant’s contention that the numerous meetings in which she discussed the behaviour of Mr X with Manager A constitute her invoking of an official complaints process. At the hearing of this complaint the complainant made it clear that it was her attitude and opinion that once she mentioned her problems to Manger A, that she should not be required to take any further action. It is clear from the circumstances of this complaint that there were interpersonal reasons, unconnected with gender which would motivate Mr X to behave in an unacceptable manner towards the complainant. Having heard direct evidence from Manager A and the complainant of the relevant meetings I prefer the account put forward by Manager A and accept that the complainant was simply discussing problems at work with him, was aware of the formal procedures and chose not to invoke them. I am satisfied that at no time did Manager A believe that the gender discrimination was an issue or discourage the complainant from pursuing a formal complaint.
Victimisation.
4.5 I must note that arising from the numerous meetings it is accepted that the complainant position within her organisation improved significantly and that Manger A took prudent and considerate steps to assist the complaint in dealing with what he believed to be interpersonal difficulties. It is accepted that the complainant was to play a key role in the research facility on a long term basis and I can find no unfavourable treatment of her by the respondent but rather improving working conditions over the period in question. I find no evidence of victimisation in relation to any element of this complaint.
Sexual Harassment.
4.6 I also heard direct evidence from the relevant HR manger and accept his account of the one HR meeting at which he simply made the complainant aware of procedures and the length of time that an investigation would take. The complainant herself agrees that at no time did she identify Mr X. I am satisfied that at no time was the respondent on notice of any complaint of sexual harassment.
Harassment
4.7 As I have found that the respondent was not aware of any complaint of sexual harassment, or discrimination in relation to gender the respondent, I accept that when the respondent was made aware of a bullying complaint that the respondent took appropriate action. I find that the Respondent may rely on section 14(2)(A) of the Acts in defence to any aspect of this complaint, by reason of the fact that it has policies and procedures in place intended to make all employees aware that harassment and sexual harassment are unacceptable.
Constructive dismissal
4.8 I am satisfied that the complainant chose not to invoke any of the relevant policies and procedures until she had already decided to leave her employment having already secured alternative employment elsewhere. The respondent made every effort to keep the complainant and was not given sufficient time by the complainant to deal with her complaint. Therefor the conduct of the employer in this case cannot be a reason for the complainant to terminate her contract.
5 DECISION
5.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that the complainant –
(i) the complainant was not discriminated against by the respondent on grounds of gender, in terms in terms of section 6(2) of the Acts, and contrary to section 8 of those Acts,
(ii) was not harassed by the respondent on grounds of gender, in terms of section 6(2) of the Acts, and contrary to section 14A of those Acts ,
(iii) was not sexually harassed by the respondent contrary to section 14A of the Acts.
(iv) has failed to establish a prima facie case that she was victimised by the by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008,
(v) has failed to establish a prima facie case that she was dismissed by the respondent in circumstances amounting to constructive dismissal as defined under section 2(1) of the Acts.
and her complaint fails in its entirety.
____________________
Peter Healy
Adjudication Officer/Equality Officer
23rd September 2016