EQUALITY OFFICER'S DECISION NO: DEC-E/2017/045
PARTIES
A Prison Officer
(Represented by Catherine Donnelly B.L. instructed by IHREC)
Vs
The Minister for Justice and Equality
(Represented by Alex White S.C. and Peter Leonard B.L. instructed by the Office of the Chief State Solicitor)
FILE NO’’s: et-156572-ee-15 and ADJ00002885/ CA-00004015-001
DATE OF ISSUE: 7th of June, 2017
1. Dispute
This dispute involves claims by the complainant against the respondent that he was discriminated against on grounds of race both directly and indirectly in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015, in relation to his conditions of employment as well as a claim of harassment and victimisation.
2. Background
2.1 The complainant referred complaints against the above respondent under the Employment Equality Acts 1998 to 2015, to the Equality Tribunal/Workplace Relations Commission on the 20th of May 2015 and on the 22nd of April 2016.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 12th of October 2016 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing which took place over 3 days i.e. the 18th of November, 2016, 21st of November, 2016 and the 12th of December, 2016.
3. Summary of complainant’s case
3.1 It is submitted that
· the complainant, is originally from Nigeria, and commenced employment with the Respondent in 2008 on a full-time permanent basis as a prison officer,
· the complainant is a full time employee at “the Prison” and he continues to work for the respondent,
· the complainant is Officer Grade, which means that his primary responsibility is to ensure the welfare of prisoners and, as such, his role requires daily contact with the prisoners within the prison,
· the complainant was prior to his complaint in charge of running a landing alone with responsibility for some forty prisoners,
· the complainant is one of only two black Prison Officers currently working for the respondent and has been subjected to ongoing racial abuse by prisoners at the Prison,
· the abuse comprises racial taunts and harassment which occur effectively on a daily basis, including for example, being called a “black bastard”, a “nigger”, and a “monkey”, “a black monkey”, “a black cunt”, and being told to “open the fucking gate you fucking monkey”. Prisoners also sometimes throw bananas and peanuts at him, or tell him to go home to the Congo,
· as the racial harassment occurs on a near daily basis, the Complainant has not reported every incident to the prison service,
· the Complainant, on a number of occasions since 2009, has reported specific racial incidents pursuant to the prison disciplinary procedures, which are governed by Part 3 of the Prisons Act 2007 and Rules 66—68 of the Irish Prison Rules 2007 (“the 2007 Rules”),
· Acts which amount to a breach of prison discipline are set out under Schedule 1 of the 2007 Prison Rules, and the sanctions which can be imposed for breaching prison discipline are contained under Section 13 of the 2007 Act,
· Rule 66 Schedule 1(3) states that it is a breach of prison discipline to “treat with disrespect, through the use of any abusive, insolent, racist or threatening behaviour or language, the Governor, any prison officer, any prisoner, any visitor to the prison or any person”,
· the respondent investigated the racial incidents and applied sanctions which were not severe enough to prevent or deter further incidents of racial harassment,
· some of the sanctions imposed were not even implemented,
· the sanctions imposed by the respondent as a result of other non racial incidents were much greater than those imposed on foot of the complainant’s P19 reports of racial abuse,
· the respondent on one occasion deleted a p19 report submitted by the complainant reporting an incident of racial abuse,
· the complainant due to the respondent’s inaction continued to be subjected to racial harassment forcing him to take sick leave from his job,
· the complainant’s increment was deferred following a period of sick leave,
· the complainant on his return to work from sick leave was given Low Conflict Duties which meant he had no contact with prisoners,
· the complainant remained on Low Conflict Duties which he submits was a punishment for making complaints of racial abuse/harassment,
4. Summary of respondent’s case
· the complainant is employed by the respondent since August 2008 as a Prison Officer,
· from 2008 to 2011 the complainant was assigned to general prison officer duties, from 9th of November, 2011 to 30th of June 2013 the complainant worked as Acting Clerk II and his dealings with prisoners were very limited, he was in receipt of an acting up allowance and plain clothes allowance for these duties,
· in the context of the Public Service Agreement 2010 -2014 redeployment commenced in the IPS for Clerk I and II grades and administrative work was no longer available to the complainant or any other basic grade Prison Officer. Thereafter in 2014 he was assigned to the Separation Unit on the A2 Class Officer Relief Panel and in 2015 he was A2 Class Officer. In 2016 he was placed on B Base Panel, the complainant was in this role in charge of 42 prisoners on a landing,
· it is not denied that the complainant in the course of carrying out his role was subjected to numerous incidents of racial abuse and taunts by prisoners,
· the complainant was on one occasion assaulted by a prisoner,
· the complainant reported incidents of racial abuse to the respondent and the respondent investigated the incidents and applied appropriate sanctions,
· the respondent in applying sanctions is governed by the Prisons Act 2007 and the Prison Rules 2007 which sets out the range of sanctions available to the respondent in addressing misdemeanours and crimes committed by prisoners within the prison,
· the respondent submits that the range of sanctions available to it are confined to those set out in the Prison Act and Rules,
· Rule 66 Schedule 1(3) states that it is a breach of prison discipline to “treat with disrespect, through the use of any abusive, insolent, racist or threatening behaviour or language, the Governor, any prison officer, any prisoner, any visitor to the prison or any person”,
· the procedure to be followed in relation to such incidents is that a p19 disciplinary report is made against the prisoner which is then adjudicated on by the Governor and a sanction applied. Incidents of racist abuse are also referred to the Gardaí,
· the respondent submits that a prison is a unique situation and that certain sanctions which may be available to other organisation’s for example refusal of service to the alleged harasser are not available to them as the prisoners are there due to a Court Order,
· it is not possible to extend the length of a prisoner’s sentence as the length of a sentence has been determined by a judge,
· the respondent does not tolerate racism and has introduced a program entitled ‘show racism the red card’ in order to raise awareness and prevent racism within prisons,
· the respondent has introduced a racism awareness module in its prison education program,
· the respondent displays anti-racism posters throughout the prison,
· the respondent has applied different sanctions to different incidents which have been the subject of P19 reports as each p19 has to be considered separately and a sanction applied accordingly,
· the complainant has not been discriminated against by the respondent either directly or indirectly,
· the complainant has not been victimised by the respondent,
· all staff members with more than 15 days sick leave in a 12 month period sick leave over a certain level are notified that their increment may be deferred but may be reinstated subject to an appeal, the complainant had incurred 7 absences of 58 days during the period,
· 113 similar letters were issued to staff members in the period 1st of January 2015 to 31st of July 2015,
· the complainant appealed the decision and his increment was restored and arrears paid,
· the complainant was on certified sick leave from 1st of October, 2014 for 59 days, stated to be due to stress, following a return to work meeting in June 2015 he was offered Low Conflict Duties in order to remove him from the prisoners who were causing him difficulties, he declined this offer and was rostered on routine duties,
· in April 2016 the complainant complained that he was constantly receiving verbal racial abuse from prisoners in the B base, following this complaint and in light of medical evidence received from the complainants doctor and following a referral to the CMO and a report on his findings, a decision was taken to remove the complainant from B base and to place him on non-contact duties,
· the respondent has an anti-harassment and an anti-bullying policy which deals with harassment and bullying by other employees and or third parties,
5. Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not, the respondent discriminated against the complainant either directly and/or indirectly, on grounds of race in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to his conditions of employment and whether he was subjected to harassment on the ground of race and victimisation by the respondent. 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 at the hearings.
5.2 Discrimination
5.2.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
5.2.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Sections 6(2)(h) of the Acts define the discriminatory grounds of race as follows – “as between any 2 persons, ...
(h) that they are of a different race, colour, nationality or ethnic or national origins”..
5.3 Conditions of employment
5.3.1 The complainant, advised the hearing, that he was regularly subjected to racial harassment by prisoners in the course of his employment with the respondent. The complainant advised the hearing that the system of reporting such incidents to management is via the creation of P19 incident reports as set out under the Prison Rules. The complainant advised the hearing that he brought these incidents to the attention of the respondent’s management via numerous p19 reports which were presented in evidence. The p19 reports submitted in evidence indicate that for each incident the respondent called the prisoner in question to a hearing to investigate the complaint and that a decision was then made following the interview with the prisoner and a sanction imposed depending on the outcome of the investigation. The complainant submits that the sanctions imposed were not severe enough given that the incidents involved racist abuse.
5.3.2 The respondent advised the hearing that each P19 report submitted by the complainant was dealt with in the same way as all P19 reports, in that the prisoner in question was called to a meeting with the Governor where the report of the incident was investigated by the Governor and a sanction applied following the outcome of the Governors investigation.
5.3.3 The complainant advised the hearing that the P19s submitted by him in respect of incidents of racial abuse did not attract sanctions as severe as P19s submitted in other cases where the incidents related to non-racial incidents. The complainant submits that the sanctions imposed in the context of the P19 Reports submitted by him have often been extremely lenient for example
(1) First, in certain cases, prisoners have even been released before ever being sanctioned. For example in one case the prisoner was transferred to another prison while the investigation was on-going and was ultimately released on temporary release prior to any determination being made in relation to the alleged racist incident.
(2) Second, the sanctions that have been imposed do not reflect the seriousness of the incident and, in certain circumstances the sanctions have not even been fully imposed on the perpetrator and the sanction has even been suspended.
(3) Third, the most common sanction imposed is the prohibition on recreation/evening activities and phone calls. Many prisoners do not even consider such a prohibition as a deterrent, or serious sanction, as the consequence is merely that these prisoners have to spend the evening in their cells relaxing with a play-station, rather than having to go out for activities.
(4) Fourth, even where a sanction has been imposed, frequently, it has not been fully implemented.
5.3.4 The complainant submits that the respondent has treated P19 reports made by other prison officers in relation to non-racial complaints, far more seriously than P19s made by the complainant in respect of racial abuse and that the sanctions imposed for these non-racial incidents are more serious than those imposed for racist offences committed against the complainant. The complainant cites the following as examples of incidents which were treated more seriously than his complaints of racial abuse by prisoners.
(1) In April 2010, Prisoner A slapped a female officer on the bottom in the “A Division” of the Prison. A disciplinary report was written; the prisoner received 56 days loss of specific activities; and he was removed from the landing. The next day, he was transferred to Midlands’s prison. The same prisoner was also prosecuted on a charge of sexual assault, and remanded in custody on 27 September 2010. He was sentenced to one month imprisonment and his name was added to the sex offenders register on 24 November 2010.
(2) On another occasion, Prisoner B threatened an officer in the New Medical Unit area of the prison and was subsequently moved to the main prison.
(3) On or about 9 March 2015, Prisoner C threatened an officer in the B Division, and wrote a message on a glove-made balloon. The inmate was immediately transferred to Midlands Prison.
5.3.5 The complainant submits that these incidents demonstrate that the Prison differentiates between its treatment of harassment of white prison officers and the harassment experienced by the Complainant.
5.3.6 The respondent advised the hearing that the prisoner referred to above as Prisoner A was transferred not as a sanction for the incident alone but for the purpose of maintaining good order and security.
5.3.7 With respect to Prisoner B, the Respondent advised the hearing that Prisoner B was moved due to a large range of misconduct and that the decision to transfer was “the cumulative effect of a number of alleged infractions by the said prisoner” the respondent went on to list a number of dates of incidents involving Prisoner B. Evidence was adduced at the hearing to indicate that Prisoner B had been transferred to a high observation cell in October 2014, after smashing a television, threatening to “do a prison officer” when he gets a chance, spitting in rations and threatening to “give it to your wife, the Whore”.
5.3.8 With respect to Prisoner C, the respondent advised the hearing that the incident in question involved a prisoner writing the name and address of a Prison Officer on glove-made balloon. The respondent stated that a prisoner having obtained such personal details about a prison officer and indicating that he was going to use them represented a serious threat to the safety of the prison officer in question and to the safety of his family.
5.3.9 The complainant submits that these sanctions are on the more severe end of the scale unlike the sanctions imposed following his P19 incident reports of racial abuse. The complainant submits that this is evidence that the respondent does not take racist abuse as seriously as it does other misdemeanors. The complainant in his evidence to Commission provided details of each P19 Report submitted by him.
5.3.10 The complainant submits that these incidents were treated more seriously than the complainant’s reports of racial abuse and that the sanctions imposed were much greater than those imposed following from the complainant’s complaints of racial abuse. The complainant in advancing this claim refers specifically to an incident where he was assaulted by a prisoner who also used racist remarks towards him. The complainant advised the hearing that the incident in question involved a prisoner who was seeking to be left through the gate to obtain methadone from the methadone clinic. The complainant advised the hearing that the prisoner had shouted at him to “open the fucking gate you monkey” and had punched him in the jaw when the gate was not opened.
5.3.11 The respondent at the hearing presented video footage of this incident and while there was some disagreement as to whether the punch was to the complainant’s jaw or to his shoulder both parties agree that the complainant was assaulted by the prisoner.
5.3.12 It is clear from the evidence adduced that this incident occurred as a result of a prisoner seeking access to methadone which the complainant as the officer in charge of the gate was preventing the prisoner from accessing. The prisoner then proceeded to racially abuse the complainant before assaulting him. The complainant advised the hearing that following this incident he filed a P19 incident report. The complainant submits that the respondent investigated the incident and following the investigation imposed a sanction on the prisoner of 40 days loss of recreation, 40 days prohibition on personal visits and phone calls and 40 days prohibition on using money/credit. The complainant submits that this was not a severe enough sanction given the prisoners actions and that it was open to the respondent to apply a sanction of ‘loss of remission’ for such a serious incident but stated that the respondent chose not to use this sanction.
5.3.13 The respondent advised the hearing that it did consider this to be a serious offence and that the sanction applied was in accordance with the range of sanctions available to the respondent for such offences. The respondent in addressing the suggestion by the complainant, that a loss of remission should have been used as a sanction advised the hearing that loss of remission is a sanction open to it under the Prison Rules but also advised the hearing that the use of loss of remission as a sanction is no longer advised under the Guidelines for applying disciplinary sanctions. I note that Prisoner A who assaulted a female prison officer also received a sanction of 56 days loss of specific activities.
5.3.14 The respondent advised the hearing that a revision to the Guidelines for disciplinary sanctions (submitted) indicates that loss of remission should only be used in the most exceptional of circumstances and stated that governors rarely if ever impose this sanction anymore.
5.3.15 The respondent advised the hearing each P19 incident report has to be assessed according to its own individual facts and circumstances and that it is not possible to state that this incident is the same as incidents involving Prisoner A or B and to thus apply the same sanctions. The respondent advised the hearing that the assault on the complainant was investigated and sanctioned in accordance with the range of sanctions available to the respondent and that the sanction applied was from the higher range or the more severe sanctions available to the respondent. The respondent also advised the hearing that the prisoner who assaulted the complainant was reported to the Gardaí and that he was prosecuted by them for his assault on the complainant. The respondent went on to state that it has no role in determining whether a prisoner will be subject to a criminal charge in relation to abuse that occurs in a prison.
5.4 The deletion of the P19 Report
5.4.1 The complainant in advancing his claim of discrimination on grounds of race advised the hearing that the respondent had on one occasion deleted a p19 report submitted by the complainant in respect of a racist incident on 21 November 2014, the complainant advised the hearing that the deletion of a p19 report involves a ‘highly irregular departure from the strictures of the P19 system’.
5.4.2 The respondent advised the hearing that the P19 in question was deleted as it was considered to be a duplication of another prison officer’s report. The respondent advised the hearing that the incident in question involved the complainant and another prison officer Mr. X. The respondent advised the hearing that Mr. X had filed a P19 report on the incident in question which related to a prisoner allegedly being passed an object by a visitor. The complainant does not dispute that a report on the incident in question was filed by Mr. X.
5.4.3 However, the Complainant submits that his p19 report although it related to the same incident, involving a prisoner allegedly being passed an object by a visitor was separate, to the report filed by Mr. X as the complainant was reporting racist abuse directed at him by that prisoner after the complainant and Mr. X had intervened. The complainant submitted that the two reports although related to the same incident were different as his related specifically to the racist abuse which was directed at him by the prisoner.
5.4.4 The p19 submitted by Mr. X was presented in evidence and the report shows that Mr. X’s p19 also made reference to verbal abuse directed by the prisoner towards the complainant. The report on the hearing of this matter indicates that the prisoner admits to calling the complainant “a black c**t” and states that he was aggressive towards the complainant. The respondent advised the hearing that the p19 report was investigated in accordance with set procedure, a finding was made and a sanction applied to the prisoner in question. The respondent advised the hearing that the prisoner could only be investigated once for the incident in question and that the sanction applied was as a result of the investigation which did include the racial abuse against the complainant. The respondent added that a second p19 report of the same incident would only confuse matters and so it was deleted as it was duplication.
5.4.5 The Complainant advised the hearing that the deletion of the P19 constitutes an irregular departure from procedure and is highly unusual. Witness for the respondent Governor M agreed that the deletion of a p19 was an occurrence that “seldom” arose. The respondent went on to say that the p19s are used as a measure of the number of disciplinary reports made against a prisoner and so it cannot permit more than one report of an incident as it would then be counted as two reports and two incidents of disciplinary action against a prisoner when only one took place. I am satisfied from the evidence adduced that the respondent’s explanation as to why the p19 report was deleted stands up to scrutiny and that that it does not amount to evidence of discriminatory treatment of the complainant on grounds of race.
5.4.6 It is clear from the totality of the evidence adduced that the respondent has a procedure in place for dealing with incidents of abuse and assault, of Prison Officers by prisoners and that this procedure takes the form of P19 reports following which an investigation takes place and a sanction is imposed. It is not my role to compare the seriousness of each p19 incident reported or to say whether or not the respondent should have imposed a particular sanction on a particular prisoner for such incidents. The totality of the evidence adduced demonstrates that this procedure was followed by the respondent and that sanctions were imposed following investigations of P19 reports submitted by the complainant. The complainant submits that the sanctions were not adequate or severe enough but it is clear from the evidence adduced that the sanctions applied were within the range of sanctions provided for in the Prison Rules and I am satisfied from the totality of the evidence adduced that the complainant was not treated less favourably on grounds of his race in respect of the procedures applied or the sanctions applied. I am satisfied from the totality of the evidence adduced that the complainant was not treated less favourably by the respondent in respect of his p19 reports than someone of a different race.
6 Harassment
6.1 Harassment is defined in Section 14A(7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds 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.
6.2 Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].
6.3 The Complainant advised the hearing that he is one of only two black Prison Officers currently working for the Respondent and that he has been subjected to ongoing racial abuse by prisoners at the Prison on a regular basis. The complainant advised the hearing that the abuse comprises racial taunts and harassment which occur effectively on a daily basis, including for example, being called a “black bastard”, a “nigger”, and a “monkey”, “a black monkey”, “a black cunt”, and being told to “open the fucking gate you fucking monkey”. He stated that prisoners also sometimes throw bananas and peanuts at him, or tell him to go home to the Congo.
6.4 It is submitted that the Complainant, on a number of occasions since 2009, has reported specific racial incidents pursuant to the prison disciplinary procedures, which are governed by Part 3 of the Prisons Act 2007 and Rules 66—68 of the Irish Prison Rules 2007 (“the 2007 Rules”). It is submitted that acts which amount to a breach of prison discipline are set out under Schedule 1 of the 2007 Rules, and the sanctions which can be imposed for breaching prison discipline are contained under Section 13 of the 2007 Act. It is submitted that Rule 66 Schedule 1(3) states that it is a breach of prison discipline to
“treat with disrespect, through the use of any abusive, insolent, racist or threatening behaviour or language, the Governor, any prison officer, any prisoner, any visitor to the prison or any person”.
The complainant advised the hearing that the appropriate procedure in relation to complaints against prisoners is to file a P19 report which is then adjudicated on by the Governor and a sanction applied within the range of sanctions provided within the Prison Acts and Rules. The complainant advised the hearing that the respondent investigated the racial incidents reported by him via the P19 system and applied sanctions following these investigations. The complainant submits that the sanctions applied were not severe enough to prevent or deter further incidents of racial harassment.
6.5 The complainant advised the hearing, that he was regularly subjected to racial harassment by prisoners in the course of his employment with the respondent. The complainant advised the hearing that the system of reporting such incidents to management is via the creation of a P19 incident report. The complainant advised the hearing that he brought these incidents to the attention of the respondent management via numerous p19 reports which were presented in evidence. The p19 reports submitted in evidence indicate that for each incident the respondent called the prisoner in question to investigate the complainant and that a decision was then made following the interview with the prisoner and a sanction imposed depending on the outcome of the investigation. The complainant submits that the sanctions imposed were not severe enough given that the incidents involved racist abuse. The complainant submits that the respondent has a Bullying and Harassment Policy which covers harassment by colleagues but which does not provide for incidents of harassment by prisoners.
6.6 It is accepted that the respondent does have a Harassment Policy in place but it is submitted that the respondent Harassment Policy is entirely premised on the assumption that harassment may arise from co-workers. The Harassment Policy is framed in terms of ensuring that “staff treat colleagues with respect” (emphasis added). The complainant advised the hearing that the Harassment Policy specifically excludes complaints against prisoners. This provision states as follows: “An allegation of harassment, sexual harassment or bullying made by a member of the Irish Prison Service against a prisoner cannot be dealt with under this policy”.
6.7 The respondent at the hearing did not dispute the claim that its harassment policy does not make provision for harassment of prison officers by prisoners and stated that
“[t]he IPS does not currently have a specific policy or action plan in relation to racial harassment by prisoners towards prison officers – the policy as outlined above is that such incidents are dealt with under P19 disciplinary reports”.
6.8 The respondent advised the hearing that harassment of Prison officers by prisoners is dealt with as a matter of legislation and stated that The Prison Act and the Prison Rules set out the procedure to be followed in reporting incidents of breaches of Prison discipline. The respondent advised the hearing that Rule 66 Schedule 1(3) states that it is a breach of prison discipline to
“treat with disrespect, through the use of any abusive, insolent, racist or threatening behaviour or language, the Governor, any prison officer, any prisoner, any visitor to the prison or any person”.
In addition Schedule 1(9) states that it is a breach of prison discipline to
“engage in any form of bullying or harassment”
6.9 The respondent advised the hearing that incidents of harassment by prisoners are treated as breaches of prison discipline and as such are dealt with by way of P19 reports following which investigations take place and sanction are applied. The respondent advised the hearing that procedures for dealing with breaches of Prison Discipline are set out in the Prison Act and the Prison Rules. The respondent stated that Section 13 of the Prison Act 2007 sets out the sanctions that may be imposed for breaches of prison discipline. The respondent advised the hearing that the sanctions imposed for incidents reported by the complainant have often attracted penalties and sanctions from the higher level of penalties and sanctions available.
6.10 The respondent advised the hearing that a booklet entitled “Know Your Rights” is provided to all prisoners and includes information regarding prison discipline and advises of the fact that prisoners will be disciplined for using abusive threatening or racist language towards prison officers.
6.11 The respondent also advised the hearing that incidents of racial abuse are also reported to the local Gardaí by the Chief Officer. The respondent in this regard provided copies of emails issued from Chief Officers to the local Gardaí in respect of complaints made by the complainant. The complainant advised the hearing that the response from the Gardaí has been inadequate and that matters have not been prosecuted as decisions have been made by the DPP not to prosecute. The complainant advised the hearing that he is also reluctant to press charges as doing so could make him a target for further abuse and or retaliation.
6.12 The complainant advised the hearing, that he was regularly subjected to racial harassment by prisoners in the course of his employment with the respondent. The complainant advised the hearing that the system for reporting such incidents to management is via the creation of a P19 incident report as referred to earlier in my decision. The complainant advised the hearing that he brought these incidents to the attention of the respondent management via numerous p19 reports which were presented in evidence. The p19 reports submitted in evidence indicate that for each incident the respondent called the prisoner in question to investigate the complainant and that a decision was then made following the interview with the prisoner and a sanction imposed depending on the outcome of the investigation. The complainant submits that the sanctions imposed were not severe enough given that the incidents involved racist abuse.
6.13 The p19 reports submitted in evidence indicate that for each incident the respondent called the prisoner in question to investigate the complainant and that a decision was then made following the interview with the prisoner and a sanction imposed depending on the outcome of the investigation. The complainant submits that the sanctions imposed were not severe enough given that the incidents involved racist abuse. The complainant advised the hearing that he was not satisfied with the outcome of a number of the P19 investigations he and stated that there were incidents where the respondent did not follow the p19 process through to a satisfactory conclusion. The complainant submits that in certain cases, prisoners have even been released before ever being sanctioned and in one case a prisoner was transferred to another prison while the investigation was on-going and was ultimately released on temporary release prior to any determination being made in relation to the alleged racist incident. The respondent in reply to this allegation has indicated that the prisoner in question was actually released as he had reached the end of his prison sentence and had to be released on his release date.
6.14 The complainant went on to state that the sanctions that have been imposed do not reflect the seriousness of the incidents and, in certain circumstances the sanctions have not even been fully imposed on the perpetrator and the sanction has even been suspended. The complainant also advised the hearing that the most common sanction imposed is the prohibition on recreation/evening activities and phone calls. He stated that many prisoners do not even consider such a prohibition as a deterrent, or serious sanction, as the consequence is merely that these prisoners have to spend the evening in their cells relaxing with a play-station, rather than having to go out for activities. The respondent submits that this is a sanction provided for within the range of sanctions and stated that in many cases the prohibition on phone calls and recreation are combined sanctions. The respondent advised the hearing that in addition to carrying out investigations under the p19 process it had where appropriate referred certain allegations to the Gardaí for criminal prosecution.
6.15 The complainant has submitted that it is open to the respondent to take additional action in order to prevent racial harassment of Prison Officers. It is submitted that other organisations such as Transdev and Dublin Bus have introduced policies to deal with racism against its drivers by customers of the organisation. At the hearing extensive evidence was given by Ms. P, witness for the complainant, outlining the work she had undertaken with Transdev and Dublin Bus in order to introduce a policy to deal with and prevent harassment of employees by users of the service.
6.16 The respondent advised the hearing that a prison situation is very different to users of a service in a non prison context. The respondent advised the hearing that prisoners are not the same as users of a service or customers, in that the customers or users of other services are usually only transient or intermittent users and it is open to the service provider to refuse to provide service to its customers or users where the customers behavior is deemed to be inappropriate or as a sanction for racist behavior or abuse of its employees who are providing a service. The respondent advised the hearing that it is not open to the respondent to refuse to provide its service to prisoners as they are incarcerated in the prison by law and on foot of a court order and so it is not within the power of the prison management to refuse to provide their service to its users, the prisoners. In addition, the respondent added that prisoners within the prison have already been denied their freedom by virtue of being incarcerated and that additional sanctions or punishments are provided for by the Prison Act and the Prison Rules. The respondent further advised that such procedures have been followed and sanctions applied on foot of complaints of racial harassment made by the complainant.
6.17 The complainant went on to state that other organisations have introduced incentives such as anti racism posters on buses and trains as a constant reminder to users of the service that racism will not be tolerated.
6.18 The respondent advised the hearing that it had recently engaged a program entitled “show racism the red card” in a bid to tackle racism within the prison system. The respondent advised the hearing that they have also recently placed anti racism posters in the public areas of the prison and that they are also running a program against racism on the prison TV in two out of three of the landings. The respondent advised the hearing that these are new initiatives and that they were not in place prior to the complainant’s complaint to the Commission but added that racist incidents against prison officers are also a relatively new issue to the prison system given that there are only two black prison officers employed by the respondent to date. The respondent advised the hearing that it has also introduced a module on racism awareness in its prison education programme. The respondent pointed to the fact that the anti racism campaigns in the named organisations which are being held up as examples by the complainant are also relatively new and that the respondent while slightly behind these oraginsations in introducing such initiatives is responding to an emerging need for such policies.
6.19 The respondent in its defence advised the hearing that a prison situation is very different to dealing with customers in an everyday service industry firstly due to the fact that prisoners are in a prison against their will and on foot of a Court order and secondly due to the type of people who inhabit prisons. The respondent advised the hearing that the prison population is made up of a large proportion of individuals with emotional and psychological issues. There is also a very high ratio of dependency on drugs and other illegal substances within the prison population.
6.20 I am satisfied from the totality of the evidence adduced that the complainant has raised a case of harassment on grounds of his race. I am also satisfied from the totality of the evidence adduced that the respondent has taken action to deal with the complaints of harassment and has investigated such complaints as breaches of prison discipline and applied sanctions as it deemed appropriate in accordance with its procedures for doing so. The complainant has submitted that the respondent cannot avail of the Section 14 (2) defence as its Harassment Policy does not cover incidents of harassment of employees by prisoners. The Employment Equality Acts provide that an employer can avail of the Section 14(2) defence where it can show that it took reasonably practicable steps to prevent the harassment and to reverse its effects” . It is clear from the totality of the evidence adduced that the respondent does have a procedure in place for investigating incidents of harassment and that such incidents when reported by the complainant were investigated and sanctions applied. It is also clear that the sanctions applied were within the range of sanctions open to the respondent in dealing with such breaches of prison discipline. It is thus hard to see how a dedicated Harassment policy for the prevention of harassment of Prison Officers by prisoners, if such a policy existed, could apply any procedure or sanctions other than those currently open to the respondent in applying sanctions or punishments for breaches of prison discipline in accordance with the p19 system.
6.21 I note from the evidence adduced that the respondent has in the past few months introduced a number of measures aimed at raising racism awareness in the prison including a racism awareness programme on prison TV in all cells as well as posters on racism in public areas of the prison. This is a positive step towards tackling the issue of racism in prisons. I note that the complainant has submitted that these steps should have been taken sooner however it is clear from the evidence adduced that the issue of racial harassment of prison officers by prisoners is an issue that the prison has not had to deal with until relatively recently given that there are only two black prison officers in its workforce. The actions taken by the respondent do represent positive steps towards preventing future acts of racial harassment of prison officers by prisoners and while it may be the case that such steps could have been taken sooner it is nonetheless a positive step in combatting racism in prisons. The respondent has not shown itself to be perfect in its reactions to the complaints of racial harassment of the complainant and while the new anti-racism initiatives and posters are a step in the right direction towards preventing and reversing the effects of racial harassment the respondent acknowledges that it needs to continue to develop a find new ways to raise awareness of and to tackle racism in the prison as a workplace. Having said that I am satisfied from the totality of the evidence adduced that the respondent in this case is entitled to rely on the Section 14(2) defence in that it did take reasonable steps to prevent the harassment of the complainant by prisoners and to reverse the effects of such harassment. I also note that the respondent offered the complainant Low Conflict duties in an attempt to remove him from contact with the perpetrators of the harassment. The respondent has indicated that this decision was taken on foot of medical reports it had received on the complainant’s health and the effects which being exposed to racist abuse from prisoners had on his health.
6.22 In addition it is clear from the totality of the evidence adduced that a prison situation is not the same as any other workplace and that the primary aim of a prison is to incarcerate individuals whom it has been decided by a judge and/or jury cannot be allowed to remain in society and who must be kept behind bars. It is also clear that the job of a prison officer is a challenging and difficult one and that it is not for the fainthearted. It is clear from the very nature of the job that one must expect to come into contact with individuals who are unlikely to treat authority figures with respect. The job of prison officer is also one which attracts a decent salary and benefits and rightly so given – the nature of the duties. I also note that the overall remuneration package is significantly higher than Transdev or Dublin Bus the examples given by the complainant. This salary takes into account that a prison population is different to the demographic using public transport. While it is clear that racism is not acceptable in any shape it has been pointed out by prison officials and governors that prisoners will often pick on perceived weakness when making derogatory comments to Prison Officers.
6 Discrimination
6.1 Overall, on examination of all the evidence, on balance, I am thus satisfied from the totality of the evidence adduced that the complainant was not discriminated against on the grounds of race in relation to the above matters.
7 Indirect Discrimination
7.1 The complainant submits that he was subjected to Indirect Discrimination by the respondent.
Section 22(1) defines “indirect discrimination” as follows:
“(a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B) unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
(c) In any proceedings statistics are admissible for the purpose of determining whether subsection (1) applies in relation to A or B”
Section 31 of the 1998 Act extends protection from indirect discrimination to persons who differ in a respect mentioned in any paragraph of Section 28(1) (which includes, at Section 28(1)(g), the ground of race).
7.2 It is submitted by the complainant that the Respondent’s policies give rise to indirect discrimination. The complainant advised the hearing that the Respondent’s policies and practices while they are apparently neutral, give rise to discrimination as prison officers are compelled to follow the existing inadequate procedures for addressing harassment by prisoners. In this regard it is submitted that it is more likely that prison officers in racial minorities will suffer from harassment from prisoners and require assistance in coping with such harassment, which assistance is not forthcoming.
7.3 In this regard, the Complainant relies on the case of the case of JH Walker v Hussain [1996] IRLR 11, in which the employer had introduced a policy of not permitting non-statutory holidays to be taken by employees during the company’s busiest months of May, June and July. When its Muslim employees took a day off in June to celebrate Eid (one of the most important religious festivals in the Muslim calendar), having been refused leave by their employer, they were given a final written warning. Indirect discrimination having been found at first instance, the employers did not appeal. I find that the circumstances of this case cited are very different to the one presented here.
7.4 It is submitted that the Respondent’s refusal here to put in place a specific policy to deal with harassment of prison officers has, a disproportionate impact on prison officers of minority backgrounds. The complainant in advancing this claim has not provided any statistical evidence to show that prison officers of a particular race are more likely to be harassed by prisoners than any other prison officer who falls into any of the protected grounds and a mere assertion or speculation unsupported by any statistical evidence is not enough to raise a prima facie case of indirect discrimination. For example it could be said that female prison officers in a male prison are at a particular disadvantage. The respondent in replying to this claim advised the hearing that the Respondent does in fact have an Anti-Harassment and Bullying policy which covers harassment, sexual harassment and bullying from fellow employees and/or third parties. The respondent stated that this policy does not cover harassment from prisoners as this is already provided for in the p19 system which is set out in the Prison Rules.
7.5 In examining the complainant’s arguments on this matter it seems to me that any prison officer who comes under any of the protected grounds could be said to be disadvantaged by a policy which does not provide for harassment of prison officers by prisoners. Indeed it could be said that any and all prison officers are disadvantaged by such a policy. While it is clear that the Respondent’s policy does not make provision for harassment of prison officers by prisoners but it is also clear that the respondent does have an alternative procedure for dealing with such complaints of harassment and that is through the p19 incident report system. While the respondents anti-harassment policy does not offer specific protection to prison officers from harassment by prisoners based on their race neither does it offer specific protection based on gender, age or any of the protected grounds. I am satisfied from the totality of the evidence adduced that the complainant was not subjected to indirect discrimination on the ground of race by the respondent in respect of this matter.
8 Victimisation
8.1 The complainant in advancing his complaint of victimisation initially referred to the deletion of the P19 report and to the deferral of the complainant’s increment in February 2016 as the basis of his victimisation claim. The complainant following the hearing submitted that both of these incidents involved adverse and egregious treatment of the complainant and violation of policy, but has submitted that he is satisfied that these instances of adverse treatment were not necessarily in reaction to his acts of complaining about racial abuse or bringing the complaint and indicated that he was no longer pursuing them as bases of his victimisation complaint.
8.2 The complainant has submitted that he was victimised by the respondent. The complainant at the hearing stated that he was victimised by being treated less favourably following his complaints of discrimination.
Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employer………….
(f) an employee having opposed by lawful means and act which is unlawful under this Act…….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
8.3 In Tom Barrett v Department of Defence[1] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
8.4 The complainant advised the hearing that he wrote to the Governor in September 2014 tendering his resignation and making a complaint about his treatment and working conditions at the Prison. He submits that he was persuaded not to resign, but received no formal response to his substantive case and subsequently wrote again on a number of occasions. The Complainant stated that he was advised by the respondent to contact the Employee Assistance Service (“EAS”), which he did, but he states that he was informed by the EAS that they could not assist him in respect of this matter and that he should write directly to the Respondent in relation to his complaints. In addition, the respondent provided the Complainant with the Respondent’s “Anti-Harassment, Sexual Harassment and Bullying Policy”. However, neither the Harassment Policy nor the Circular addressed the Complainant’s specific situation. The Complainant advised the hearing that he wrote directly to the Respondent on 27 April 2015 and received a reply dated 30 April 2015 which confirmed that the respondent’s procedure for dealing with incidents of racial harassment is provided for under the P19 prison discipline procedure and that any such matter should also be dealt with by the Gardaí. The complainant advised the hearing that the Respondent had also indicated that it was satisfied that disciplinary action had been taken against the prisoners when incidents were reported by the complainant and also that the criminal allegations had been referred to the Gardaí. The complainant advised the hearing that he then referred a complaint of discrimination on the grounds of race to the Tribunal/Commission on the 18th of May 2015. I am satisfied that this amounts to a protected act as set out in paragraphs (a)-(g) of section 74(2) of the Acts.
8.5 The second component which must be present for a claim of victimisation is adverse treatment. The complainant in outlining his case advised the hearing that the ongoing abuse and harassment by prisoners had a serious effect on his health and stated that he was forced to take a period of sick leave from his work due to the ongoing harassment. The complainant advised the hearing that that he had in December 2014, following an assault during which the prisoner shouted “open the gate you fucking monkey” the Complainant had a near breakdown and went to his GP, Dr B. He stated that he was then referred to Dr C, a psychiatrist and psychotherapist and since February 2015, the Complainant has seen Dr C regularly. The complainant advised the hearing that he has taken sick leave on the worst days (59 days since 1 October 2014 on 8 different occasions), but stated that he prefers to work than stay at home feeling distressed.
8.6 It is submitted that Dr. C in his report of 10 February 2016, confirmed that the Complainant had been severely affected by his experiences at work and diagnosed him with Post-Traumatic Stress Disorder. Dr C’s report also stated that returning the Complainant to the environment which had caused him to get unwell could have very serious consequences and stated “If he is consistently exposed to the verbal abuse and humiliation, that he has described, his chances for a full recovery are low. I would be concerned about his mental health in the future. A person can be impulsive and can under duress and distress harm themselves fatally under the circumstances that (the complainant) is currently undergoing at present”. The respondent advised the hearing that the complainant had been absent from work on certified sick leave from 1st of October, 2014 for 59 days, stated to be due to stress and was referred by the respondent to the Chief Medical Officer, who saw him on 19 June 2015. It is submitted that the respondent’s occupational health physician, Dr M confirms the negative impact of the prisoners’ conduct on the Complainant and states that the respondent should improve matters as a priority. It is submitted that following Dr, M’s recommendation the complainant was referred by the respondent to Dr D, Consultant Psychologist who following examination of the complainant disagreed with the complainant’s own doctor’s diagnosis of PTSD. The report of Dr. D dated 11th of May 2016 was submitted in evidence and in this report Dr. D stated that the complainant “will be dissatisfied if he continues in the prison role where he is still subject to abuse and he will also be upset if removed from direct contact role as he believes that this will only contribute to the problem.” Dr. D in his report went on to state that “in an ideal world the complainant should not have to deal with racial abuse but in the world of hardened prisoners total elimination of racial abuse may not be possible”. Dr. D’s report went on to state that “if the complainant cannot adapt to a reality where all racial abuse cannot be eliminated then it would be reasonable to accommodate him on a permanent basis on non-contact duties”.
8.7 The complainant advised the hearing that the respondent by letter of 19 June 2015, suggested to the Complainant that he might switch from his position of managing a landing with 42 prisoners, to low-conflict duties to avoid being subjected to further racist bullying. The complainant stated that he declined this offer and that this suggestion caused him considerable distress as it involves treating him differently from his colleagues, and removing him from his position. The complainant submits that this suggestion amounts to adverse treatment following his many complaints of racist abuse and which also post-dated the referral of his Complaint to the Tribunal/Commission (on 18 May 2015). The complainant advised the hearing that he was later assigned to low conflict duties in April 2016.
8.8 The complainant submits that he was victimised by the respondent in respect of being assigned to Low Conflict Duties following his return from sick leave. The respondent advised the hearing that it provided the complainant with Low Conflict Duties as it had formed the view that removing the complainant from the situation which was causing him stress would enable the complainant to return to his duties. The respondent advised the hearing that Low Conflict Duties are much sought after and that a provision for putting officers on Low Conflict Duties is contained in the respondents Accommodations Policy.
8.9 The complainant advised the hearing that Low Conflict Duties (LCD) are usually reserved for those returning from sick leave and are viewed as a punishment for a prison officer often given to those who have been accused of an offence involving prisoner. The complainant submits that he was assigned to Low Conflict Duties as a punishment and as a reaction to his having made a complaint of discrimination and harassment against the respondent.
8.10 The complainant went on to state that he had been assigned to LCD for a period of six months which was far longer than the usual period for assignment to LCD. The complainant in advancing this aspect pointed to the respondent’s Accommodations policy which indicates that a prison officer could be assigned to LCD upon returning from sick leave for a period of up to three months not six months as the complainant had been.
8.11 The respondent agreed that the complainant was assigned to LCD for the past six months and agrees that this was a longer period than usual but states that this was an attempt by the respondent to facilitate and accommodate the complainant as they were aware that he was citing harassment from prisoners as being the cause of his stress and so the respondent advised the hearing that they had sought to remove him from that situation and from the stress by limiting his contact with prisoners while allowing him to continue in his role. The respondent stated that the complainant had been offered the opportunity to move back to the main prison in October 2016 but not to B or C base where the protection prisoners and the challenging behavior prisoners are located but that he had declined as he indicated that he wished to return to B base. The respondent advised the hearing that they could not return him to B base given the medical advice received about the effect of the abuse on the complainant.
8.12 The complainant submits that the assignment to LCD would have a detrimental effect on his promotion prospects. In support of this the complainant submits that LCD are seen as a punishment and so would affect his chances of promotion or advancement. The respondent in reply to this stated that there is no evidence to suggest that LCD harms promotion prospects and stated that the complainant in his last promotion competition was placed on a panel for promotion and remains on that panel.
8.13 The complainant has submitted that the respondent in a meeting of 17th of January, 2017 offered him the opportunity to return to the main prison. The complainant states that he did not accept this offer as he submits that the offer was made without any explanation for the change of policy towards him or any evidence offered of concrete improvements made in tackling racism amongst prisoners. The complainant advised the hearing that he wishes to return to the main prison once the requisite information is provided.
8.14 The respondent advised the hearing of the advances it had made in seeking to raise awareness of racism within the prison population. The respondent advised the hearing that it had introduced measures such as “Show Racism the Red Card” in an attempt to promote racial awareness within the prison. The respondent stated that they have also put up anti-racism posters in locations where prisoners congregate and have played anti-racism DVDs on the internal prison television network in all cells. The respondent advised the hearing that they had also arranged seminars and meetings to address racism within the prison school. The respondent added that it is firmly committed to raising racial awareness in prisons.
8.15 The respondent advised the hearing that it had dealt with all complaint’s made by the complainant via the p19 system which is the procedure it has open to it to deal with any complaints of prisoner behaviour. The example cited by the complainant of a P19 report from a female prison officer who was sexually harassed by a prisoner supports the respondent’s submission that the p19 system is the procedure by which complaints of abuse and other misdemeanours or offences by prisoners are dealt with. It is clear that the respondent does not have a separate procedure for dealing with complaints of racial harassment by prisoners nor does it have a separate procedure for dealing with complaints of sexual harassment by prisoners. It is clear from the evidence adduced that the complainant has been on sick leave and has cited stress due to the racial abuse and harassment he encounters from prisoners as being the cause of this stress.
8.16 The respondent submits that the complainant was initially offered low conflict duties on his return from sick leave in June 2015 but that the complainant declined this offer as he stated it did not offer a meaningful solution to dealing with the issues raised by him. The respondent advised the hearing that a governor on tour of the prison in late April 2016 who enquired about the landing on which the complainant was in charge was told by the complainant that he was constantly receiving verbal racial abuse from the prisoners in B base. It was following this and in light of medical evidence received in relation to the complainant that a decision was taken to place the complainant on Low Conflict duties. It has been established that the complainant has attended Dr. C who stated that returning the Complainant to the environment which had caused him to get unwell could have very serious consequences and stated “If he is consistently exposed to the verbal abuse and humiliation, that he has described, his chances for a full recovery are low. I would be concerned about his mental health in the future. A person can be impulsive and can under duress and distress harm themselves fatally under the circumstances that (the complainant) is currently undergoing at present”.
8.17 The complainant was referred by the respondent to the CMO in June 2015 due to his stress related sick leave and later referred the complainant to Dr. D, consultant psychiatrist who advised that the complainant be accommodated on low conflict duties in circumstances where racism within prisons cannot completely be eradicated. It would appear that the respondent is seeking a solution which would enable the complainant to return to work in a situation where it has concluded that it cannot completely eradicate racism in a prison environment and where the medical advice provided has advised that the complainant be placed on Low contact duties.
8.18 It is clear from the evidence adduced that the complainant continues to be employed at the same grade at the same level of pay but on duties which do not involve contact with prisoners. The complainant works in the same location has not adduced any evidence that his pay or conditions are less favourable as a result of being placed on low conflict duties. The complainant has not indicated that his work schedule or hours have been changed or that his work environment has been negatively impacted. The complainant at the hearing did seem to have a lot of concerns about what the prisoners would think and say among themselves about the fact that the complainant was on low conflict duties given that he himself perceives this as a punishment and something which he submits is reserved for pregnant women or for those returning from long term sick leave.
8.19 In the present case it is not possible to completely extricate the decision to place the complainant on Low conflict duties from the fact of his having made a complaint to the Commission and several other complaints of racist abuse and harassment, as the reason for his sick leave is cited as being due to stress caused by racial abuse and harassment. In addition, it is clear that this decision to place the complainant on Low conflict duties was precipitated by medical advice and a recommendation given that the complainant had been out sick for a considerable period and given that the reason cited for this sick leave was stress due to racist abuse and harassment by prisoners. Having said that the complainant has not convinced me that being placed on Low Conflict Duties amounts to adverse treatment for the purpose of the act given the circumstances of this case.
8.20 I can see where a victim of workplace harassment could see being moved to another area of work, away from their harasser could be seen as adverse treatment if the harasser gets off ‘scot free’ and gets to remain in their own role but in this case the individuals responsible are not ‘getting off scot free’ as it were, as they are subject to the p19 procedures and sanctions and I am satisfied that it would not be possible or practical to remove the individual harassers from the situation in this case as they are prisoners incarcerated on foot of a court order. Thus I am satisfied from the totality of the evidence adduced that the placing of the complainant on Low conflict duties does not amount to adverse treatment for the purpose of Section 74(2) and that the complainant was not subject to victimisation by the respondent.
8.21 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was not victimised by the respondent in relation to these matters.
20. DECISION OF THE EQUALITY OFFICER
20.1 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 –
(i) that the complainant was not directly discriminated against by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of his conditions of employment
(ii) that the complainant was not indirectly discriminated against by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of his conditions of employment
(iii) the complainant was not harassed by the respondent on the grounds of race contrary to Section 14A of the Acts
(iv) that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts, 1998-2015
__________________
Orla Jones
Adjudicator/Equality Officer
7th of June, 2017
Footnotes
[1] EDA1017