Complainant

Respondent

Anonymised Parties

An Employee

A Health Care Provider

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011762-001

06/06/2017

The complainant’s claim is that he was discriminated against by his employer on the disability ground, in particular, he claims that discrimination took the form of harassment as per Section 14A of the Employment Equality Acts, and victimisation as per Section 74(2) of the Act.

The respondent refutes the complainant’s claims, it said the alleged incident of harassment raised occurred outside of the work environment at a non-work event. All subsequent events of alleged harassment and/or victimisation were dealt with in line with its set policies and procedures. Notwithstanding, it claims that all the events referred to are all out of time for investigation by the Workplace Relations Commission (‘WRC’).

The following is a summary of the complainant’s case.

The complainant has worked around 30 years with the respondent and continues to work there presently. The complainant said that he has Cerebral Palsy and has noticeable difficulties with his gait and use of some of his limbs and he struggles with his mobility.

The complainant said that on 25 September 2015 he was socialising in a local pub with a group of his friends. He claims that he suffered an unprovoked verbal attack at the hands of Mr. A, a work colleague, who called him a “handicapped c**t” a number of times, he threatened to damage his car and made other belittling gestures to the complainant. I am told that Mr. A was escorted out of the bar. The complainant said he was extremely upset, he claims that he wept uncontrollably in front of his friends and the whole ordeal was as source of great embarrassment.

The complainant said on Monday 28 September 2015 he raised a complaint with his line manager and others including Ms. B (Head of Human Resources) in relation to the above incident.

On 17 November 2015 the complainant said there was a further incident between him and Mr. A, which left him extremely shaken. The complainant passed Mr. A in the corridor at work, and Mr. A deliberately bumped into him. He said that Mr. A then turned and aggressively accused the complainant of having bumped into him. The complainant said that he informed Mr. C, of Senior Management, who reported this incident to the Gardaí, which he said demonstrates the seriousness of the incident. He said he had a meeting with Mr. C on 16 December 2015 where he set out in detail the substance of his complaint, he outlined that these incidents were taking a toll on his health. He said that he raised this issue again on 5 January 2016. The complainant said that nothing appears to have been done after the making of this complaint.

The complainant said that a further incident occurred on 10 March 2016. The complainant was now in a new office when Mr. A walked into that office unannounced, and stood staring at the complainant for around 15 seconds, said ‘hello’ and left. Due to the previous aggression and threats the complainant became extremely frightened. He said that by email dated 31 March 2016 the complainant wrote to Mr. C explaining the impact this was having on him and that he was seriously considering taking early retirement. He followed that up on 7 April 2016. Mr. C responded saying that he would forward the matter to the Employee Relations Manager for consideration under the Dignity at Work Policy for a Preliminary Screening as per that policy.

The complainant said that the preliminary screening report was carried out by Ms. D (Human Resources) on 22 April 2016 and he said that “she bizarrely found that ‘the complaint documents, do not fall under the definitions as set out in the Dignity at Work Policy’”. The complainant said that this conclusion is simply un-understandable, however in any event the complaint should then have been investigated under a number of other policies. The complainant said that after this report the respondent failed to do anything and the complainant’s complaint was essentially forgotten about. The complainant also said that while the report is dated 22 April 2016, he was not notified of it until 31 May 2016, some 6 weeks later.

The complainant said that he also received notification of allegations made by Mr. A against him. Mr. A’s allegations are contained in an email to Mr. C dated 26 February 2016, the complainant said that Mr. A’s complaint is clearly retaliatory in response to the complainant’s complaint of 5 January 2016. On 5 August 2016 Ms. E, of Employee Relations, confirmed by letter that due to insufficient detail Mr. A’s complaints could not be investigated. The complainant said that Mr. A had been asked on a number of occasions to substantiate his vague allegations which he failed, refused or neglected to do.

The complainant said he wrote on 30 August 2016 requesting further details of Mr. A’s allegations and confirming that he wished to take further action against him for having made a spurious allegation against him. On 15 September 2016 the complainant wrote to Mr. C again requesting an independent investigation into Mr. A’s conduct. On 23 September 2016, Mr. C outlined that the complainant should make a Freedom of Information Act request in order to get the information, to which the complainant responded on 7 October 2016 outlining his disappointment that the matter was not being investigated under the Dignity at Work Policy, but stated that surely it could be dealt with under some other policy that protects Safety, Health and Welfare at work. He also sought clarification on whether Mr. A was being investigated for having made a false complaint about the complainant.

LEGAL BASIS FOR THE CLAIM

The complainant’s claim is that he was discriminated against by his employer on the disability ground. In particular, that discrimination took the form of harassment as provided for in Section 14A of the Employment Equality Acts, and victimisation as provided for in Section 74(2) of the Acts.

The complainant relies on Section 15(1) of the Employment Equality Acts which provides: “Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”

He said in light of this provision the respondent is vicariously liable for the actions of all its employees acting in the course of their employment. In particular, the respondent is vicariously liable for the actions of Mr. A in harassment and discriminating against the complainant.

The complainant relies on Section 85A(1) of the Employment Equality Acts which provides: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” The complainant said that it is well established (O’Higgins v UCD [2013] ELR 146) that the burden on the complainant is only to establish a prima facia case after which the burden reverts to the respondent to disprove any discrimination. It is submitted that due to the particular language used by Mr. A, the Adjudication Officer should have little difficulty in concluding that the complainant has discharged this initial burden. As such, the burden now rests with the respondent to prove otherwise.

In relation to the case for harassment, the complainant noted that discrimination is defined as including ‘harassment’, which is defined is Section 14A(7) of the Act: “(a) In this section –

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

…

Being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a) such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation or written words, pictures of other material.”

The complainant said that it is well-established that what constitutes unwanted conduct is a subjective test. The intention of the perpetrator is largely irrelevant. In Nail Zone Ltd v A Worker EDA1023 [2010] the Labour Court stated: “The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to a paragraph (a) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment of the purposes of the Acts.”

The complainant argued that by applying the above to the facts of his case, it is clear that the behaviour of Mr. A was ‘unwanted’ and that it related to the disability ground. It clearly had the effect of seriously violating the complainant’s right to dignity and it created a hostile, degrading, humiliating and offensive environment for the complainant in which to work.

In relation to the case for victimisation the complainant noted that victimisation is defined by Section 74(2) of the Employment Equality Acts in the following terms: “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…”

The complainant said he suffered victimisation vis-à-vis the retaliatory making of the unsubstantiated complaint against him by Mr. A. This constitutes ‘adverse treatment’ within the meaning of the Acts as a reaction to the making of a complaint by the complainant. As is set out above the respondent is vicariously liable for the actions of its employees.

Finally, in response to the preliminary matter raised by the respondent that this case is out of time, the complainant was adamant that this situation had not been resolves to his satisfaction, it was an ongoing situation and was a continuum of discrimination, harassment and victimisation up to the present time.

The following is a summary of the respondent’s case.

Preliminary matter

The respondent set out that the case presented by the complainant relates to events that occurred in 2015 and 2016 and are grossly outside the timeframes for lodging Equality Claims as set out in the Workplace Relations Act 2015. The respondent said that the alleged incident of discrimination that the complainant is stating the respondent is vicariously liable for as per Section 15(1) of the Employment Equality Acts occurred on 25 September 2015.

The respondent said that the complainant’s claim to harassment relies on Section 15(1) of the Employment Equality Acts for an incident that allegedly occurred on 17 November 2015.

The respondent said that the complainant’s claim to victimisation relies on Section 74(2) of the Act for an incident relating to Mr. A making of an alleged unsubstantiated retaliatory complaint against the complainant occurred on the 26 February 2016.

The respondent said that all three alleged incidents that the complainant is seeking redress for under the Employment Equality Acts occurred in late 2015 and early 2016. The complainant’s referral to the WRC was not made until 6 July 2017. The respondent claims that all claims are outside the timeframes permissible under the legislation and accordingly the WRC has no jurisdiction to hear the cases due to the timelines involved.

Substantive case

The respondent said that on Monday 28 September 2015, the complainant did report to Ms. B (HR) and Mr. C (Senior Management) an incident that had occurred the previous Friday evening in a local pub. The respondent said that this was a non-work-related social gathering.

The respondent claims that the Employment Equality Act, 1998 outlaws’ discrimination in a wide range of employment and employment-related areas. The legislation defines discrimination as treating one person in a less favourable way than another person based on any of the nine grounds. The respondent said that discrimination is defined as less favourable treatment. An employee is said to be discriminated against if they are treated less favourably than another is, has been or would be treated in a comparable situation. To establish direct discrimination, a direct comparison must be made, for example, in the case of disability discrimination the comparison must be between a person who has a disability and another who has not, or between persons with different disabilities.

The respondent said that in relation to the disability discrimination claim the complainant ascertains that his employer has discriminated against him by reason of his disability. From this one can only infer that the complainant’s treatment by his employer was that of a less favourable nature than if he had been free from disability.

The respondent said it does not agree with the complainant that O’Higgins v UCD (2013) ELR 146 is sufficient to transfer the burden of proof on to the respondent and therefore the complainant is still required to establish a prima facia case.

The respondent claims that it was not in a position to defend itself against the complainant’s allegation of discrimination by reason of disability as neither he or his legal representation have cited any comparators that have been treated in a more favourable nature than he was treated. Under the Acts, a complainant must establish a prima facie case of discrimination. However, in this specific instance the complainant has not established a prima facie case of discrimination, or has one been presented on behalf of the complainant.

It said that in Melbury Developments v Arthus Valpetters (EDA0917) the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant “must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts that can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, the must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn...the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exception to that evidential rule”

It also claims that the 2001 Labour Court determination in Mitchell v. Southern Health Board, the Labour Court in this case emphasised that, in the first instance, the complainant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”. It continued, “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In reply to the complainant’s assertions that his employer has discriminated against him by reason of a disability, it claims that one can only infer that the complainant’s treatment by his employer was that of a less favourable nature than if he had been free from all illnesses that come under the broad legal interpretation of disability. In order to establish direct discrimination, it is necessary to prove that, but for the fact that the complaint falls within one of the discriminatory grounds, he would have been treated differently. As such it is necessary to identify an actual or hypothetical comparator, in a comparable situation who is, has, or would be treated differently.

The respondent claims that the complainant has not cited an actual or hypothetical comparator free of disability or illness that comes under the broad legal interpretation of disability that have been treated in a more favourable nature than he was treated. Therefore, the burden of proof still rests with the complainant to prove that he was treated less favourably due to his disability.

In Dyflin Publications Ltd. v. Spasic, the Labour Court, referring to its decision in Cork City Council v. McCarthy, pointed out that the complainant must not only establish the primary facts upon which he or she relies but, echoing the Mitchell formulation, must also satisfy the Court that they are of sufficient significance to raise an inference of discrimination.

It claims that the case law has developed in this area and it is now clear that the application of the burden of proof test requires the assessment of a number of distinct elements in discrimination cases. In order to succeed, the complainant must be able to adduce evidence establishing a link between the adverse treatment which he has suffered and the discriminatory ground being invoked.

The respondent claims that the complainant has not established a link between the events surrounding the non-work related gathering whereby he alleges that he was verbally abused, by another employee because of his disability. The respondent said it does not contest that the non-work-related incident may have occurred. However, the events alleged by the complainant afterward, and the management interaction with him once he made his employer aware of the incident, did not occur as they did because he had a disability, and in this instance, he was not treated less favourably than any other employee who is free from any type of disability.

It said that in Determination EDA1017, Department of Defence V Barrett, the Court held that in order to make out a claim of victimisation under the Act it must be established that;

a). The complainant had taken action of a type referred to in Section 74(2) of the Acts (a protected act); (b). The complainant was subjected to adverse treatment by the respondent, (employer); (c). The adverse treatment was in reaction to the protected act having been taken by the complainant (employee).

It said in the case of the Public Appointment Service –v- Kevin Roddy (EDA1019) the Labour Court held that: “To be encompassed within the ambit of sections 74(2)(b) “proceedings” must come within the definition as defined by Section 2 under interpretations where “proceedings” means -

a) proceedings before the person, body or Court dealing with a request or reference under this Act by or on behalf of a person, and (b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act”.

Under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to in Section 74(2) of the Acts. Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts, it is necessary that a complainant demonstrates the connection between his actions in relation to defending his entitlements under the Act and the adverse treatment complained of.

In case Humphries V Westwood Fitness Club (EED0378) the Court sets out a three-tier test which involves; (1) The employer must be in possession of all the facts. (2) The employer should consider what special treatment or facilitates may be available to facilitate the employee becoming fully capable (which is reasonable accommodation). (3) The employee must be allowed to fully participate and present medical evidence and submissions.

In relation to the victimisation claim, it said that the complainant has not provided demonstrative detail of the manner of victimisation or provided any tangible link to prove, that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to in Section 74(2) of the Acts.

The respondent claims that harassment is defined in section 14A(7) of the Employment Equality Act 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. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds and in addition this was made clear in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (S.I. No. 208 of 2012). Therefore, it is clear Section 14A(7)(i) of the Act defines “harassment” as any form of unwanted conduct related to any of the discriminator grounds and 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.

The respondent claims that the complainant has not demonstrated how the purported harassment and victimisation fall within the definition of harassment contained in Section 14A(7) (i) of the Act, or victimisation as per Section 74(2) of the Employment Equality Act, and/or how it is or was linked directly to any of the discriminatory grounds.

Issue of Jurisdiction – Time Limits

The respondent submitted that the claims of harassment and victimisation have not been referred within the time limits prescribed in Section 77(5) of the Acts. The respondent submitted that the alleged discriminatory treatment in relation to the complainant occurred in 2015 and 2016. The respondent submitted that, as the complaint in relation to this claim was referred to the WRC on 6 June 2017, it was outside of the six-month time limit prescribed in Section 77(5)(a) of the Acts.

The complainant claims that he continues to be employed with the respondent and as far as he is concerned the discriminatory treatment in relation to this matter has not been resolved and therefore that this has to be construed as ongoing. Accordingly, the complainant claims that his complaint was in fact referred to the WRC within the prescribed time limit.

In assessing this matter, I take note of the relevant legislation. Section 77(5) of the Acts provides as follows:

(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Section 77(6A) of the Acts provides as follows:

“For the purposes of this section –

(a) discrimination or victimisation occurs –

(i) if the act constituting it extends over a period, at the end of the period,”

The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events.

In considering this matter further, I have taken note of the case of County Cork VEC –v- Ann Hurley [EDAA24/2011] the Labour Court held that: “Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion”. The Labour Court also held in this decision that: “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum …… 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…… their admissibility is dependent upon some link being established between the occurrences outside of the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely. ”

In the present case it is clear that the complainant initially raised issues in relation to discriminatory harassment that he was allegedly subjected to during a non-work-related event on 25 September 2015. He reported two further incidents of harassment by Mr. A while at work, the incidents are dated 15 November 2015 and 10 March 2016. I am satisfied that these were three isolated incidents, which on the basis of the aforementioned satisfy the criteria to possibly be considered a continuum for that period in time.

I note that the complainant was informed that the incidents were considered by the respondent in line with the respondent’s policy on Dignity at Work and went through the preliminary screening phase as per the respondent’s policies, which was carried out on 22 April 2016 and he was informed on 31 May 2016 that no further action would be taken. No other incidents were reported.

I note that the complaint in relation discriminatory harassment was lodged with the WRC on 6 June 2017, 12 months after confirmation from the respondent that there would be no further action and, more importantly, 15 months after the last incident of the alleged harassment had occurred. In the circumstances, I am satisfied that the alleged discriminatory harassment is not still ongoing for the purposes of section 77(6A) of the Acts. Therefore, I find that this element of the complaint is outside the six-month time limit for the referral of a complaint. I must also note that I have not been presented with an application for an extension of the time limits. Accordingly, I find that I have no jurisdiction to investigate this aspect of the complaint.

In relation to the victimisation claim, the complainant maintained that he suffered victimisation vis-à-vis the retaliatory making of the unsubstantiated complaint against him by Mr A. He claims that this constitutes ‘adverse treatment’ within the meaning of the Acts as a reaction to him making a complaint against Mr. A. He said that the respondent is vicariously liable for the actions of its employees (Mr. A). The incident that the complainant refers to relates to a complaint that he was advised about in February 2016 and ultimately, he was informed that the complaint against him was not being pursued due to insufficient detail on 5 August 2016.

Again, I note that the complaint against the respondent in relation to victimisation was also lodged with the WRC on 6 June 2017, some 10 months after confirmation from the respondent that there was no further action accruing from Mr. A’s complaint against him and some 16 months after the last incident of alleged victimisation had occurred. Nothing more has been brought to my attention that was or should be construed as victimisation. In the circumstances, I am satisfied that the alleged victimisation is not an ongoing occurrence for the purposes of section 77(6A) of the Acts. Therefore, I find that this element of the complaint is outside the six-month time limit for the referral of a complaint. Again, I must also note that I have not been presented with an application for an extension of the time limits. Accordingly, I find that I have no jurisdiction to investigate that aspect of the claim.

Having carefully considered all evidence from both parties, I find that the complainant has failed to submit his complaint within the required time limit under Section 77(5) of the Acts.

I find that the claim is therefore statute barred and I lack the jurisdiction to hear the case.

Employment Equality Act – harassment – victimisation - statute barred -time limits