EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC – E2017 – 039
PARTIES
Mr Eugene Pidgeon (represented by SIPTU)
and
HSE Dublin Mid-Leinster (represented by Ms Mairéad McKenna, B.L., instructed by J.D. Scanlon, Solicitors)
File Reference: et-151161-ee-14
Date of Issue: 31st May 2017
Keywords: gender – harassment – S. 14A(2) defence – necessity of prior complaint – victimisation – no prima faciecase.
1. Claim
1.1 The case concerns a claim by Mr Eugene Pidgeon that the HSE Dublin Mid-Leinster discriminated against him on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2011, in terms of permitting his harassment contrary to S. 14A of the Acts. The complainant also complains of victimisation contrary to S. 74(2) of the Acts.
1.2 The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 23 November 2014. A submission was received from the complainant on 7 November 2016. A submission was received from the respondent on 27 January 2017. On 8 March 2017, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 30 May 2017.
2. Summary of the Complainant’s Written Submission
2.1 The complainant submits that on 26 May 2014, at a ward environmental meeting, he was singled out by a Clinical Nurse Manager II when she stated that the complainant should be “very careful going into patient areas when there were no parents around” and that he was a “high risk”. He submits that the manager directed these remarks at him and looked him in the eye whilst making them. It is the complainant’s contention that the manager’s remark was made because he is a man. He states that as an HSE employee, he has been vetted by An Garda Siochana, that he has a family himself, and that he is no higher risk to patients than anyone else.
2.2 The complainant also states that a request for regular Monday to Friday hours which he had made three years earlier was never followed up by the respondent.
3. Summary of the Respondent’s Written Submission
3.1 The respondent submits that the complainant has not established any documentation which would support a complaint of discrimination on either the gender or the family status ground. It submits that the complaint should therefore be dismissed as frivolous and vexatious.
4. Conclusions of the Equality Officer
4.1 The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3 In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4 The complainant stated that he had worked for the respondent for about 12 ½ years and that he had worked in a children’s ward in a midlands hospital for 7 ½ years. The complainant is a multi-task attendant. He specified that this included bringing patients their meals, cleaning and various other support tasks.
4.5 The complainant did not set out an argument as to why he feels the comments of the clinical nurse manager have a gender connection. This is important insofar as S. 14A(7) of the Acts sets out that harassment is
any unwanted conduct related to any of the discriminatory grounds […] [Emphasis added]
4.6 This means that the connection between the conduct to the ground or grounds has to be obvious from what is entailed in the speech or behaviour. In cases where it is not, such as the within case, the onus is on the complainant to adduce cogent evidence and/or arguments as to why a connection to a protected ground ought to be implied from the behaviour complained of.
4.7 However, the complainant did not do this, and it is not my role to substitute for his evidence or reasoning in any way. He just stated that nobody should be told they are a “high risk”, and that this was defamatory.
4.8 The complainant also stated in evidence that he made a written complaint to the respondent about the remark. I requested sight of the letter because I wished to examine it to see whether it would constitute a valid harassment complaint. Counsel for the respondent objected to this, because whilst the complainant had ticked the “gender” box on his complaint form, he had otherwise ticked “victimisation” instead of harassment. However, I am mindful that many people, including some legal professionals, confuse victimisation and harassment when they file complaints, and that the form is not a statutory document. I am further satisfied that from the narrative the complainant provided on the form, it was clear that the complaint might be about harassment. I am therefore satisfied that this error on the part of the complainant did not prejudice the respondent and that I am entitled to investigate this point. The respondent provided this letter during the hearing of the complaint and I examined it.
4.9 I note that in this written letter of complaint the complainant clearly refers to the respondent’s “Dignity at Work” policy in addition to its grievance policy, which indicates to me both that the respondent does have such a policy and that the complainant was familiar with it. Yet in this document, too, the complainant again does not set out why being told he was “high risk” has a gendered dimension, although he did note in that letter that he felt the comment was discriminatory on the ground of gender. To say therefore that the complainant’s letter notified the respondent that he was complaining of gender-based harassment would stretch matters beyond breaking point, and I am not satisfied that a prima facie case of gender-based harassment has been made out by the complainant.
4.10 Furthermore, this letter is dated one day (24 November 2014) after the within complaint was received by the Equality Tribunal (date-stamped 23 November 2014). Section 14A(2) of the Acts provides a complete defence to an employer against complaints of harassment if an employer can prove that it
took such steps as are reasonably practicable […] to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, […].
4.11 It is long settled law that this provision means that in cases where a worker is employed by an employer which is large enough to have appropriate structures in place – a fact which certainly applies to the within respondent, who according to its own submission is the largest employer in the State – the worker complaining of harassment must bring a complaint to their employer before bringing a statutory complaint. This will enable the employer to investigate the matter and take steps to prevent the harassment. One such structure is the existence of a policy on harassment, which I am satisfied from the complainant’s evidence, the respondent has in place. If no such prior complaint is received, the defence set out in S. 14A(2) will avail a respondent completely. I am satisfied that this is the case here, quite apart from the fact that I am not satisfied that a prima facie case of gender-based harassment has actually been made out, as detailed in paragraph 4.9 above. For all of these reasons, the complaint cannot succeed.
4.12 Whilst I am of the view that the complainant’s complaint of victimisation is simply based on a misunderstanding as outlined in paragraph 4.8 above, for the sake of completeness I also wish to state that no evidence at all was adduced that the complainant was victimised by the respondent in any way and hence this complaint must also fail.
5. Decision
5.1 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
5.2 Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015, that the Health Service Executive did not discriminate against Mr Eugene Pidgeon on the ground of gender, and did not victimise him contrary to S. 74(2) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
31 May 2017