DEC-E2017-089

EMPLOYMENT EQUALITY ACTS   

DECISION NO. DEC-E2017-089    

PARTIES  

A Teacher(Represented by Stephen O’Sullivan B.L. instructed by Sweeney Solicitors)   

AND  

A VEC(Represented by Mairead McKenna B.L. instructed by Mason Hayes & Curran)

File reference: EE/2006/280  

Date of issue: 20 December 2017

HEADNOTES: Employment Equality Acts - Sexual Orientation – Promotion – Conditions of Employment – Victimisation – harassment – time limits  

DISPUTE

1.1  This dispute concerns a claim by A Teacher (the complainant) that he was discriminated in relation to promotion and conditions of employment by A VEC (the respondent) on the grounds of sexual orientation contrary to section 6 of the Employment Equality Acts and that he was harassed contrary to section 14A of the Acts and victimised in accordance with section 74 (2) of the Employment Equality Acts.

1.2  The complainant referred his claim to the Equality Tribunal on 4 August 2006. It was initially assigned to a different Equality Officer and a hearing took place on 22 January 2009. A Judicial Review was taken to the High Court and its outcome was appealed to the Supreme Court. Judgement was delivered on 13 July 2016. The claim was remitted back to the Equality Tribunal for investigation and determination.

1.3  The claim now falls under the jurisdiction of the Workplace Relations Commission (WRC). The Director General of the WRC assigned the case to me, Hugh Lonsdale, Adjudication Officer/Equality Officer, on 8 July 2015, in accordance with her powers under section 16 of the Workplace Relations Acts, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, on which date my investigation commenced. Submissions had already been received from both parties prior to the initial hearing in 2009. The complainant’s representative made an additional submission on 20 July 2017. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing which was held over 2 days on 26 July and 22 September 2017.

1.4  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.  COMPLAINANT'S SUBMISSION

2.1  The complainant’s initial complaint form referred to two incidents. Firstly, that on 16 December 2005 a colleague tried to assault him. It was prevented by another colleague. He reported the incident to the Principal but nothing was done.

2.2  Secondly, that on Friday 10 March 2006 another colleague placed a half peeled banana in a condom in his mail box in the staff room. The complainant reported this to the Principal, who replied “what do you want me to do about it”. He then said he would make a staff announcement that morning but did not do it. The following Monday the complainant asked why not and the Principal said “I got waylaid”. The complainant went on sick leave that day.

2.3  On 19 September 2007 the complainant made a written submission which referred to the following.

2.4  From 1981 to 2003 he worked in A Community College and from 2003 to 2006 in an Institute of Further Education.

2.5  In the school year 1991/1992 the complainant was required to teach 3 levels of Junior Certificate English all in one class.

2.6  In 1997 the Principal referred to the complainant as ‘honky tonks’ in the presence of other staff members.

2.7  In October 1998 the complainant’s partner called to the school and the Principal told the complainant that he should not defecate on his own doorstep. No such restraints were placed on other spouses or partners of other teachers.

2.8  In the Community College the complainant submits that he was given the most unfavourable timetables and excessive supervision.

2.9  In 1999 the complainant returned from treatment for alcoholism and submits that he received no support or consideration, and he suffered discrimination. On 23 April 1999 signed complaints were submitted by some of his pupils. The complainant was never given a copy of the complaints. The Principal and Assistant Principal met the students but did not involve the complainant. He was mistreated by pupils and complained to the Principal but the pupils were not seriously reprimanded. Subsequent incidents were not properly investigated.

2.10  In January 2005 a new Principal was appointed (Mr A) who had a negative attitude towards the complainant because of his sexual orientation.

2.11  In February 2005 at a staff meeting the complainant was told to take minutes. The Principal said all teachers would be asked and he was doing in alphabetical order. The complainant refused to comply and when asked other colleagues also refused.

2.12  16 December 2005 a colleague was accused of making racist comments by a student. The complainant was required to investigate and during the investigation the colleague attempted to assault the complainant

2.13  Prior to the complainant’s return from sick leave in August 2006 the timetable was announced and the complainant’s main subject, Media Analysis, was cut by 50% and his other subject area, The Principles of Teaching was omitted from the timetable. He met the Principal on 31 August and the Principal spoke to him in an aggressive manner and told him what decisions had been made.

2.14  The complainant submits that the timetable was used arbitrarily against him because of sexual orientation and also to victimize him in retaliation because for the letter sent by his solicitor in March 2006, which said he intended to issue court proceedings.The complainant submits that the timetable proved unworkable and he became increasingly stressed as a result. Eventually he had no option but to leave because of the adverse effects on his health, safety and welfare. 

3.  RESPONDENT'S SUBMISSION

3.1  The respondent submits that it objects to the earlier incidents that were not detailed in the initial EE1 claim form being submitted and considered.

3.2  Also the complainant has instituted a Personal Injuries claim in the High Court which have subsequently been settled. The respondent contends that this claim was identical to this claim and that under section 101 of the Employment Equality Acts the complainant is estopped from pursuing this claim.

3.3  The respondent submits that the complainant has established no primary facts regarding the alleged lack of support on his return to work in 1999.

3.4  In April 1999 students presented a letter of complaint to the Principal about the complainant. The respondent followed its normal practice when an entire class makes a complaint. He met the class with the vice Principal and subsequently met the complainant with a union representative.

3.5  The respondent submits that they dealt with all complaints made by the complainant. They have no record of a formal complaint into some of the incidents.

3.6  The allegation that the previous Principal said “honky tonks” is denied. As are the comments in relation to the complainant’s partner.

3.7  The respondent denies that the complainant was given unfavourable timetables or excessive supervision.

3.8  In 2003 the complainant transferred to the Institute of Further Education and was asked to teach Communications & Media Analysis and was given the necessary training. He was not treated less favourably than other members of staff.

3.9  The respondent submits that the complainant was absent from work on sick leave from 1 September 2004 to 4 January 2005 and the Principal was supportive on his return to work.

3.10  In relation to the taking of minutes at staff meetings the Principal considered it would be fairer if this task was shared between all teachers and the complainant was asked first because of where him surname was in the alphabet and was unrelated to any discrimination.

3.11  Regarding the incident with a colleague in December 2005 the respondent submits that it was investigated in January 2006 and the complainant accepted his colleague’s apology.

3.12  The respondent submits that it took steps to deal with the incident involving the banana on a Friday in March 2006. The following Monday a teacher admitted putting the banana in the complainant’s post box. He alleged it was in circumstances where the complainant had made sexual advances to him. He was told to apologise immediately. He attempted to do so but the complainant had left the school. Furthermore, a note was sent to all staff which set out the respondent’s position in promoting equality in the workplace. An investigation took place and the perpetrator was given a warning. The respondent that, in accordance with section 15 of the Employment Equality Acts, it is not vicariously liable for the actions of the teacher as he was not acting ‘in the course of his employment’ and they had policies in place and took such steps as were reasonable practical to prevent the employed from doing that act.

3.13  In March 2006 the respondent received a letter from complainant’s solicitor alleging that he was bullied and harassed. The complainant was out of work until August 2006. The changes to the timetable were made to reflect the needs of the students and management reserve the right to change timetables. Therefore the complainant’s return to work could not be considered to be discriminatory. The Principal met with the complainant to explain the reasons for the changes. The complainant stated he was not teaching communications and he was being victimized. He then refused to attend a meeting on Communications. 

4.  TIME LIMITS

4.1  The respondent contends that, as this claim was referred on 4 August 2006, all events before 5 February 2006 are out of time in accordance with section 77 (5) (a) of the Employment Equality Acts. They contend that the only incident submitted by the complainant that could be considered in time was on 10 March 2006. They further contend that I can only consider and investigate the 2 incidents in the original complaint form, which was the incident on 10 March 2006 and a previous incident on 16 December 2006. The complainant contends that all the incidents were part of a continuation of discrimination and are, therefore, directly linked to the later incidents.

4.2  The Labour Court in Determination EDA 1124 Hurley v County Cork VEC determined: “that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.” and “On the evidence adduced there is no basis whatsoever upon which the Court could conclude that either of the incidents relied upon by the Complainant within the time limit were acts of victimisation. Accordingly, the Court must conclude that no acts capable of constituting victimisation occurred in the period of six months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly. Even if the complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limits prescribed by Section 77(5) and are statute barred.”

4.3  Firstly, I must therefore consider the only incident which is within the strict time limits of section 77 (5) which occurred on 10 March 2006.

4.4  Section 14A (7) of the Acts defines harassment as any form of unwanted conduct related to any of the discriminatory grounds ….. 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.”

4.5  An object was placed in complainant’s mail box and from the description given I conclude that the object was offensive and was related to his sexual orientation; as such it falls within the definition of harassment given above.

4.6  Section 15 (3) states: “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 prove that the employer took such steps as were reasonably practicable to prevent the employee— 

(a) from doing that act, or 

(b) from doing in the course of his or her employment acts of that description.”  

4.7  The respondent has submitted that the colleague who placed the object in the complainant’s mail box was not acting in the course of his employment and they are not vicariously liable for his actions. The Respondent submitted a “TUI/IVEA Code of Practice for Dealing with Complaints of Bullying and Harassment in the Workplace” which they contend was in pace at the time of this incident. This Code of Practice clearly sets out the levels of behaviour expected of teachers. This cannot be taken to be limited to their work as teachers but is clearly intended to include their conduct towards colleagues. Also, I interpret-sub section 15 (3) (b) to be intended to exclude actions taken out of and unrelated to the workplace, not to be interpreted in the way put forward by the respondent.

4.8  Section 15 (3) gives a defence for an employer if it can show that it took reasonably practical steps to prevent the action from taking place. In the first instance that would be having procedures in place that would deal with any alleged acts of harassment. The respondent contends the Code of Practice was in place. The complainant contended that the Code of Practice submitted was dated April 2006, which was after the incident. However, I accept that this was updated version of a previous Code of Practice. Furthermore, no evidence was submitted that the complainant was unaware of how to make a complaint. Which he did as soon as the incident took place. The complainant’s contention is that the action taken by the Principal was inadequate, particularly on the day the incident took place.

4.9  The Principal took no action on the Friday. I accept the respondent’s evidence that, on the Monday, the colleague admitted putting the banana in the complainant’s mailbox. He was told to apologise immediately but the complainant had already left and did not return until the end of August. An investigation took place in the complainant’s absence and the colleague was issued with a warning. Also, a note was sent to all staff setting out the respondent’s position in promoting equality in the workplace.

4.10  It is my conclusion that the respondent took all reasonably practical steps to deal with the complainant’s complaint and can avail of the defence in section 15 (3) in relation to this incident

4.11  The complainant put forward no ‘reasonable cause’ argument for me to consider why the incident in December 2005 was not referred to the Equality Tribunal within six months. Therefore, as I have found that the one incident which was within the time limits is not discriminatory, all the other incidents cannot be considered, as they are not related to a discriminatory act that is within the time limits, in accordance with the Labour court Determination in Hurley v County Cork VEC, and are therefore out of time. 

5.  DECISION

I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:

-  The incident in December 2006 was not harassment within the meaning of the Employment Equality Acts, and

-  All other incidents were out of time, in accordance with section 77 (5) and the complaints fail.          

____________________

Hugh Lonsdale

Adjudication Officer/Equality Officer  

20 December 2017