Complainant

Respondent

Anonymised Parties

A Service Station Manager

A Service Station

Representatives

 Solicitors

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00011690-001

01/06/2017

The complainant became an employee of the respondent following a transfer of undertakings in May 2015 having been employed by the previous employer for nine years without incident. The complainant resigned from her position with effect from 27th January 2017. The complaint relates to allegations of discrimination on the gender ground and alleged discrimination in relation to training and promotion, victimisation, constructive discriminatory dismissal, harassment and sexual harassment. Complaints of alleged discrimination on the disability ground and an alleged failure on the part of the respondent to provide reasonable accommodation to the complainant were withdrawn at the adjudication hearing.

The parties furnished written submissions at the adjudication hearing. Further information was requested and was submitted on 14th May 2018.

The complainant stated that certain issues arose during a store visit on 8th July 2016. The complainant contends that the way her area manager spoke to and behaved towards her, left her feeling humiliated and undermined. The complainant outlined her concerns to the area manager by email dated 15th July 2016. In her email the complainant stated that during the site visit on 8th July 2016 the area manager made inappropriate comments in relation to how she performed in her role, namely questioning her method of invoicing, criticising the store layout, suggesting the complainant should take a “step down” and threatening her with disciplinary action if she refused. The complainant also stated that the area manager told her that the staff had no respect for her. The complainant contends that the behaviour of the area manager towards her amounted to harassment. In addition to harassment the complainant stated that the area manager told her she had beautiful eyes which she felt was sexual harassment. The complainant also submitted that the area manager made confusing comments about his own wife and her personality traits which the complainant also interpreted to be a criticism of her own management capabilities.

The complainant stated that there were also issues with the funding of a third level course she was attending and in relation to further training that she required but that was not provided to her. The complainant stated that her original contract of employment provided that 100% of her college course fees would be paid by the employer yet the respondent would pay only 50% of the fees. The complainant stated that she eventually had to drop out of the college course as she could not afford to pay the remainder of the course fees. The complainant contends that she was discriminated against in relation to training and promotion as a result of the respondent’s actions.

The complainant confirmed that she raised a grievance in August 2016 in relation to the behaviour of the area manager but did not pursue the grievance at that time as she felt it more appropriate to concentrate on her studies. The complainant stated that she was subsequently diagnosed as suffering from stress, anxiety and depression and was medically certified unfit for work for a number of months. The complainant also raised issues in relation to the non-payment of sick pay which she believed she was entitled to and the fact that her expenses claims were being unnecessarily scrutinised by the respondent. The complainant stated that, on reflection, she felt that her grievances should have been investigated in line with Company procedures. The complainant confirmed that she notified the respondent of this on 6th November 2016.

The complainant confirmed that she was subsequently certified medically unfit for work until December 2016 at which point the complainant’s Doctor advised her that returning to work could potentially cause further health problems. The complainant notified the respondent of this and submitted her resignation with immediate effect by email dated 27th January 2017. The complainant is seeking compensation in relation to her complaint.

The complainant’s representative stated that the employer is vicariously liable for the actions of its employees and that the complainant has discharged the burden of proof in establishing a prima facie case of discrimination. In support of its case the complainant’s representative citied O’Higgins v UCD [2013] E.L.R, 146, A Worker v a Hotel [2010] E.L.R. 72, Mitchell v Southern Health Board, 2001 E.L.R. 201, Ntoko v Citibank [2004] E.L.R. 116, Minagushi v Wineport Lakeshore Restaurant DEC-E2002-020, Nailzone Ltd v A Worker EDA 1023 and A Worker (Mr O) v An Employer [2005] ELR 132.

The respondent refutes the complaint. The respondent stated that when it received the details of the complainant’s email of the 15th July 2016 to the area manager, it sought to arrange a meeting in an attempt to resolve the issues raised. The respondent stated that a meeting took place with the complainant and the HR Department on 8th August 2016 and the grievance procedures were given to her for consideration. The respondent confirmed that the complainant acknowledged receipt of the grievance procedures on 9th August 2016 and sought clarification in relation to the payment of fees for the continuation of the college course. The respondent stated that it confirmed its policy of paying 50% of the fees and the complainant appeared to accept the offer at the time.

The respondent stated that on the 6th October 2016 the complainant provided a medical certificate stating “stress overload.” The respondent confirmed that it then arranged a welfare meeting with the complainant for 21st October 2016 and advised her of the availability of its Employee Assistance Programme if required. The respondent stated that it did not provide a sick pay scheme but sought clarification from the previous employer as to the complainant’s previous entitlements. Subsequently, the respondent authorised the same discretionary sick pay that had been paid to the complainant in her previous employment. The respondent stated that it also agreed to pay 100% of the college fees as had been agreed with the previous employer and notified the complainant of this on 9th November 2016. The respondent stated that the complainant sought to have her complaint dealt with under the bullying and harassment procedures but did not clarify the nature of the complaint. The respondent stated it was unsure if it was a new complaint or a complaint in relation to what had happened on the 8th July 2016. The respondent sought clarification on this issue and also reiterated its intention to provide full funding for the college course by email dated 25th November 2016. The respondent stated there was no response received from the complainant.

The respondent stated that the complainant submitted further sick certificates on 11th December 2016 citing anxiety and depression. The respondent confirmed that the complainant made no further contact until she submitted her resignation with immediate effect on 27th January 2017.

The respondent stated that the complainant has failed to establish a prima facie case of discrimination. In support of its position the respondent’s representative cited the cases of Southern Health Board v Mitchell [2001] E.L.R. 201 and Margetts v Graham Anthony and Company Limited, EDA 038. In relation to the burden of proof in the constructive discriminatory dismissal claim the respondent cited McCormack v Dunnes Stores, UD 1421/2008 and Employee v Employer UD 2387/2011.

The complainant was in a management position within the respondent organisation. The complainant’s area manager carried out a site visit on the 8th July 2016 and the complainant was subsequently certified as medically unfit for work and eventually resigned from the organisation.

The complaint relates to allegations of discrimination on the gender ground, discrimination in relation to promotion and training, victimisation, constructive discriminatory dismissal, harassment and sexual harassment.

8th July 2016 Site Visit

The complainant gave direct evidence in relation to the site visit of 8th July 2016 and the subsequent effects that it had on her health and wellbeing. The area manager is alleged to have highlighted performance issues and then suggested that the complainant should take a “step down” to another location and to other duties. It appears that this was supposedly a way of supporting the complainant yet it was not received as such by her. Based on the evidence of the complainant, I find that this interaction resulted in the complainant feeling that she was being demoted and transferred elsewhere and that she would be disciplined if she refused. The complainant stated that she felt let down and unsupported. The complainant also stated that the area manager criticised the floor layout yet the respondent organisation was awaiting approval for a new floor layout. This criticism also left the complainant feeling that she was to blame for issues that were outside her control. The complainant also stated that the area manager commented on her methods of invoicing stating that it was correct for the first time in a number of months and he also stated that the staff had no respect for her. The complainant responded that she always followed the same procedures in relation to the invoicing so she was unsure why there were previous issues in relation to them. The complainant also stated that the area manager told her she had beautiful eyes and also made references to his own wife and her personality traits vis a vis her ability to manage people.

Vicarious Liability

Section 15 of the Employment Equality Acts, 1998-2015 provides as follows:

15.(1) 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.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also bythat other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

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

The respondent did not dispute that it was vicariously liable for the actions of its employees.

Burden of Proof

Section 85A (1) of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

“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.”

If the Complainant raises facts from which an inference of discrimination can be drawn, the burden of proof then shifts to the Respondent.

The Labour Court determined in Southern Health Board v Mitchell [2001] ELR 201 that:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those 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 is no infringement of the principle of equal treatment”

The Labour Court determined in Cork County Council v McCarthy EDA21/2008 that:

“it is for the Court to decide from the facts proved whether the inference or presumption contended for can be properly drawn from those facts.”

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Acts, 1998 to 2015 which at relevant part states as follows:

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

Discrimination by the employer etc.

Section 8 of the Employment Equality Acts, 1998 to 2015 provides as follows:

8.(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or  

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

Having considered the evidence of the complainant in relation to the site visit and in the absence of any rebuttal evidence, I find that the area manager behaved in a way that was unsupportive and dismissive of the complainant which left her feeling humiliated and demeaned. I also find that his attitude towards her was one of criticism as opposed to one of support and assistance.

The area manager in the email he sent to the HR Department accepted that he commented on the complainant’s eyes and that he also mentioned his own wife as being a quiet person but still able to manage people. This, he said was mentioned during a conversation in relation to the complainant’s management approach. The area manager, in his email denied much else of what he was accused of having said.

In conclusion and having regard to all of the circumstances of the site visit, I find that the attitude of the area manager towards the complainant was inappropriate.

The complainant also stated that she had been discriminated against in relation to training and promotion on the basis that the respondent would not pay 100% of her college fees. The complainant stated that she had a contractual entitlement from her previous employer that 100% of the fees would be paid and that following the transfer of her employment to the respondent, the entitlement should remain. The complainant stated that she was forced to drop out of the training course as she could not afford the remainder of the fees.

The respondent stated that its practice was to pay 50% of the college fees and that the complainant had accepted this in August 2016. The respondent stated that when it became aware of the fees issue and other issues relating to sick pay, it made enquiries from the previous employer in relation the complainant’s entitlements. The respondent stated that it informed the complainant that it would honour the previous contractual arrangement in relation to the fees by email dated 9th November 2016 and reiterated this position that it would pay the college fees in full by email dated 25th November 2016. The respondent sought clarification from the complainant whether she had deferred the course for a year as it had thought or whether she was continuing with her studies. The respondent stated that there was no response from the complainant.

I do not find that the respondent discriminated against the complainant as claimed. The respondent sought clarification from the previous employer in relation to the college fees in the absence of the complainant’s written contract of employment and subsequently agreed to honour the payment in full. Accordingly, I declare that this complaint is not well founded.

Harassment

Harassment and Sexual Harassment are defined under Section 14A of the Employment Equality Acts, 1998 to 2015 as follows:

14A. (1) For the purposes of this Act, where —

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either —

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and,

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section ‘employee’ includes an individual who is —

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),

and accordingly, any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12.

(7) (a) In this section —

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

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

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 of written words, pictures or other material

Having considered the complainant’s evidence on the interaction that took place during the site visit of 8th July 2016, I am satisfied that the conduct of the area manager towards the complainant was harassing in nature. The area manager made references to his own wife and her personality traits when discussing the complainant’s management style. On that basis I find that the complainant’s gender was a significant factor in the area managers attitude towards her. The area manager, in his email to the HR Department, accepted that he had commented on the complainant’s eyes. I find that, within the context and tone of that conversations during the site visit, the complainant was justified in feeling uncomfortable with that remark. The complainant was also criticised in other areas of her performance including the floor layout which was outside of her control and it appears from the area managers email that he was aware of that. On balance, I find that the conduct of the area manager towards the complainant constituted harassment on the grounds of gender.

From reviewing the documentation on the issue and on the basis of the complainant’s evidence I do not find that the comment in relation to the complainant’s eyes was sexual in nature and therefore do not find that the complainant was the subject of sexual harassment.

Victimisation

Victimisation is defined under Section 74(2) of the Employment Equality Acts, 1998 to 2015 as follows:

(2) 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,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act orthe said Act of 2000 or which was unlawful under any such repealedenactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

if and so far as any such treatment has occurred, to reverse its effects.

The complainant contends that she was victimised by the respondent. The respondent denies the claim.

In Tom Barrett v Department of Defence (EDA 1017) 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.

In the instant case, the complainant did not make any complaint in relation to the grounds provided under the Employment Equality Acts 1998 -2015 while she was still at work. The complainant clarified in her email to the respondent on 22nd November 2016 that she wanted to have her complaint investigated under the Bullying and Harassment policy. Therefore, victimisation within the meaning of the Act could only have occurred after the 22nd November 2016 at which point the complainant had already been absent on sick leave for a number of weeks and never returned to her employment. Accordingly, I find that the complaint of victimisation fails.

Constructive Discriminatory Dismissal

Section 2 of the Employment Equality Acts 1998 -2015 defines dismissal as follows:

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

The complainant contends that she was forced to resign from her employment in circumstances amounting to a constructive discriminatory dismissal. The complainant stated that the conduct of the employer and the incidents of discrimination, victimisation and harassment that she was subjected to left her with no other option but to leave her employment.

The respondent refutes the complaint and reiterated its position that the complainant had failed to establish a prima facie case of discrimination. The respondent stated that it had not behaved in such a manner that left the complainant with no other options than to resign from her employment.

I have given careful consideration to this complaint and to the submissions and evidence of both parties. The complainant was treated inappropriately by her area manager during a site visit on 8th July 2016 which amounted to harassment on the grounds of gender. The complainant raised the issue with the respondent who took the matter seriously. The complainant subsequently notified the respondent that she did not wish to pursue the initial grievance. Having commenced a period of sick leave in October 2016, the complainant, by her own admission had underestimated the effects the events of the 8th July 2016 had on her and decided to formally seek to have the matter investigated by the respondent. The respondent provided the relevant policies to the complainant and asked her to clarify which policy she wished to invoke in raising her grievance. The respondent also asked the complainant to provide specific details of the grievance and to confirm if it was a new grievance or a repeat complaint of the issues she previously raised but had not pursued. The respondent sought this information by a number of emails it sent to the complainant in November 2016. The complainant did not respond and she then submitted her resignation by email dated 27th January 2017 with immediate effect.

The issue for consideration here is if the employer behaved in such a way that the complainant was reasonably entitled to resign from her employment. The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

Notwithstanding the vicarious liability of the respondent in relation to the attitude of the area manager towards the complainant, I am of the view that the respondent made every effort to support the complainant. It advised her of the availability of the EAP and offered its continued support to her in general. It sought clarity in relation to the payment of the college fees and sick pay entitlements from the previous employer. It then confirmed that it would pay 100% of the college fees and also applied sick pay entitlements to the complainant despite the fact that previous sick pay was discretionary. It also notified the complainant in October 2016 that the area manager may be moving from that role and subsequently confirmed that to be the case. I accept that the respondent was unable to process the grievance that was raised in November 2016 as the complainant did not respond to its clarification request in relation to the specifics of the complaint. When the respondent received the complainant’ resignation on 27th January 2017, it then asked her to reconsider her decision.

In all of the circumstances of this case, I do not find that the respondent behaved in such a way that left the complainant with no option but to resign from her employment. Accordingly, I find that the complaint of constructive discriminatory dismissal is not well founded.

Having considered the written and verbal submissions of the parties and all of the evidence adduced at the adjudication hearing, I find that the complaint is well founded in part. The complainant was subject to harassment on the grounds of gender as a result of the treatment of her by the area manager on 8th July 2016.

The respondent is directed to pay the complainant €4000 in compensation for the effects of the harassment within 42 days of the date of this decision.

Discrimination, Harassment, Victimisation, Sexual Harassment, Constructive Discriminatory Dismissal, Vicarious Liability