EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-027
PARTIES
Sarah Butler
Complainant
V
Noel Murphy
T/A Murphy’s Gala Foodstore
Respondent
File reference: EE/2012/662
Date of issue: 17 December 2018
Introduction:
1.1 On the 24th December 2012, the complainant referred a complaint to the Director of the Equality Tribunal in relation to harassment on the grounds of family status.
1.2 On the 17th August 2015 and in accordance with the powers under section 75 of the Employment Equality Act, the Director delegated the case to me for investigation, hearing and decision. The parties made submissions in advance of the hearing and attended the hearing on the 24th August 2015.
Submissions and evidence of the complainant:
2.1 The complainant commenced working respondent as a deli assistant for the on the 28th September 2008. She complains that she was harassed in her workplace on grounds of family status and that the most recent date of discrimination was the 29th November 2012. The complainant cared for four children and in early 2011, she became the carer for her brother-in-law who has special needs. At this time, the complainant spoke with the manager of the respondent (the daughter of the owner) and they agreed that the complainant would work 15 hours per week. She also availed of Carer’s Allowance and the respondent assisted by providing documentation regarding her hours of work and rate of pay.
2.2 The complainant outlines that on the 20th July 2012, her manager asked her to work additional hours to cover a colleague’s annual leave. The complainant said that she could not work these additional hours due to her caring responsibilities. The manager was very unhappy and said the respondent needed people who were flexible. Unconnected to this event, the complainant was certified on sick leave from the 22nd July 2012 until her return to work on the 5th November 2012.
2.3 Later in November 2012, the complainant submitted a request for annual leave for later in the year. Further to this request, she received a difficult telephone call from the manager who was unprofessional and degrading. The manager asked the complainant to contact a named colleague for her to cover the sought-for annual leave; the complainant did this and the colleague agreed. This took place on the 23rd November 2012 and on the 27th November 2012, the complainant sought to meet the manager to address the nature of the telephone call and the issues arising from it. This was on her day off and the complainant was accompanied by her husband. While the manager said that the dispute over the complainant’s annual leave was a misunderstanding, she also said that she could not get anyone to cover the colleague’s annual leave and that the complainant was obliged to cover it.
2.4 On the 29th November 2012, the complainant attended work and met the owner; he is the father of the manager. The owner requested a meeting with her and during this, she describes his behaviour as aggressive and threatening. The owner challenged the complainant for bringing her husband to the recent meeting and asked why she could not work the additional hours. She explained her family commitments. She describes that she was shaken and upset by the meeting. The owner presented her with a rota for December 2012; this allocated the complainant 18 hours per week. This was the first time any rota had been presented to her. The complainant asked why this change had been made and said that she did not have a contract of employment. The owner replied that she did not need a contract of employment. The complainant describes the owner as overpowering and intimidating. She said that she felt that she could not return to work, despite enjoying the interaction with customers and colleagues.
2.5 At the hearing, the complainant outlined that she was taken on by the wife of the respondent and worked well with colleagues and customers. She said that in early 2011, she became the carer of her brother-in-law following the death of her mother-in-law. Her brother-in-law was 57 years of age and lived in a granny flat adjoining her home. He had a disability that required constant care. The complainant outlined that she worked behind the deli counter and her ordinary hours had been 8am to 2pm. She did not remember signing a contract or a statement of the terms of her employment; she said that she had never seen the employee handbook submitted by the respondent at the hearing.
2.6 The complainant said that when she assumed the caring responsibilities for her brother-in-law, she approached the respondent about reducing her hours. The respondent facilitated this request and she finished work at 1pm, instead of 2pm. The respondent also agreed to draft and sign the letter dated the 28th October 2011. There would ordinarily be one member assigned to the deli role and additional staff would move behind the deli counter at busy times. She had previously worked the period of annual leave taken by a named colleague, but this was not possible due to her caring obligations. She denied that there was any custom or practice of colleagues working during the periods of annual leave taken by colleagues. Responding to the submissions of the respondent, she denied that the reduction of the working week to 15 hours had been a short-term experiment and this had been her ordinary working week in 2011 and 2012.
2.7 In respect of the meeting of the 29th November 2012, the complainant said that the respondent had told her that her working week had to be 18 hours per week. She described the owner’s demeanour as that of a “raging bull” as he was red in the face and waving his arms. After this meeting, the complainant said that she felt that she could not go back to work. She went to her G.P. and obtained a sick certificate to say that she could not work due to workplace stress. On the 30th November 2012, her husband telephoned the respondent to explain this. She called to the premises during the following week and briefly met the owner; he said that there was nothing to discuss. The complainant continued to submit certificates in relation to her inability to work. She had the same caring responsibilities. She acknowledged receipt of the respondent’s letters of the 7th and 14th December 2012. The complainant outlined that it was only in November 2012 that the issues of her family responsibilities conflicted with her covering colleagues’ annual leave. She explained to the manager that she could not work these hours.
2.8 In response to the evidence given by and on behalf of the respondent, the complainant said that the owner was not credible in his concern about the hours worked off the books; he pointed out that the declaration made to Revenue was made on the 29th July 2015, over two years after he learnt of the alleged practice. The complainant denied that she had worked off the books and said that her working work was 15 hours. On the 29th November 2012, she had returned to work after the meeting, even though she was upset. She was so upset that a customer asked her whether she was alright. She outlined that there had only been one meeting during the week of the 3rd December and could not recall whether it was pre-arranged. On this occasion, she entered the shop and the owner shouted at the work colleague to come over. This meeting took place in the front of the shop and only lasted a couple of minutes.
Evidence and submissions of the respondent:
3.1 In advance of the hearing, the respondent made a two-page submission, stating that the complainant worked 18 hours per week and covered annual leave of a named colleague. It was custom and practice for all staff to cover the annual leave of colleagues. The respondent outlines that, in early 2011, the owner agreed to a short trial period for the complainant to work 15 hours per week, instead of 18 hours. This was not successful, and the complainant was put back on 18 hours per week. On the 27th November 2012, the complainant stated to the store manager that she no longer wished to work Saturdays and would not work the days taken by her colleague as annual leave. The owner told the complainant at the meeting of the 29th November 2012 that the role entailed an 18-hour week and a shorter working week of 15 hours could not be accommodated. A colleague also attended this meeting. The owner said that the complainant called to the premises on the 3rd December 2012 and he arranged for them to meet again the following day. This meeting occurred in the presence of the same colleague. The meeting of the 4th December 2012 was abrupt, and that the complainant waved pieces of paper. The complainant did not follow the grievance procedure.
3.2 In evidence at the hearing, the manager said that the complainant worked 18 hours per week and that it was custom for her and a named colleague to cover each other during annual leave. She employed two deli assistants and they worked alternative shifts. When the deli counter was busy, shop staff from other parts of the store assisted the deli assistant on duty. The manager outlined that the complainant requested a shorter working week in January 2011. They agreed to trial a shorter working week of 15 hours, so that the complainant started at 8am and finished at 1pm. Another staff member covered the complainant after 1pm and this put pressure on other parts of the store. The manager raised this with complainant and they agreed that the complainant would resume her traditional 18-hour week.
3.3 The respondent outlined that while the complainant was on sick leave in 2012, she was replaced by someone employed for this specific purpose. In November 2012, the other deli assistant asked for annual leave. The complainant said that she could not do these additional hours due to her caring needs and suggested that the respondent re-engage the person who had replaced her while on sick leave. In respect of the telephone call of the 23rd November 2012, the manager said that this was a normal call and not the difficult one described by the complainant. She did not accept that she had been abusive. In respect of the 27th November 2012, the manager outlined that the complainant’s husband did most of the talking during this meeting. He explained that the complainant would no longer be able to work during her colleague’s annual leave. The complainant also asked for Saturdays off; it was practice for the deli assistants to work alternate Saturdays. The complainant’s husband raised the issue of the telephone call a few days earlier and accused the manager of using bad language; the manager denied this. The manager said that she was concerned at the tone of this meeting and wrote a contemporaneous account of it. She also raised her concerns with the owner.
3.4 The owner outlined that he had initially been reluctant to reduce the complainant’s hours to 15 per week but agreed to try it. When it became clear that the 1pm finish could not accommodate the business needs of the deli, all parties were agreeable to restore the 2pm finish time. It was custom for the two deli assistant to cover each other’s periods of annual leave. The owner became involved after the 27th November 2012. He was told that the complainant worked 18 hours per week but only 15 hours was recorded on the pay slip. He met the complainant in the canteen to the rear of the store on the 29th November 2012 at about 11 or 12. He handed the complainant a printed-out roster and said that all the complainant’s hours would be recorded on the pay slip. The meeting lasted 5 to 10 minutes and it was a calm meeting; there had been no aggression and no problem at the meeting. He had been accompanied by a staff member who also gave evidence at the hearing. The owner described that the complainant returned to work after this meeting and remained on the premises to the end of her shift. The following day, the complainant’s husband telephoned to say that she would not be working as she was sick. She did not work the following day. The owner said that he surmised that this absence was related to the meeting of the 29th November. The owner said that he next saw the complainant on Monday, 3rd December; when he saw her entering the shop and he thought she was returning to work. The complainant said that she wanted to get the matter of her work roster sorted and asked if the manager was available. The owner said that they should have a meeting and they agreed to do this on a later date. This was arranged for the 4th December. On this date, the owner met the complainant entering the shop. He had intended that they would conduct the meeting in the canteen, but they never got there. The complainant did most of the talking and took out pieces of paper; she said that she was going to take action. The owner did not know what the complainant meant by this. On questioning, the respondent said that it did not have records of the hours worked by staff or other such documentation drawn up in compliance with the Organisation of Working Time Act.
3.5 The work colleague gave evidence. She commenced working with the respondent in 1998 and worked as a shop assistant. She also helped in the deli when asked to. The owner asked her to attend the meeting with the complainant of the 29th November 2012. At this meeting, the complainant asked for a 15-hour working week and the owner said that she had to work for 18 hours. She said that while the complainant appeared uncomfortable, it was a calm meeting. She did not accept that the owner had been aggressive or that anyone had shouted. After the meeting, the owner asked her to write up a record of the meeting, which she gave him and kept a copy. In respect of the meeting of the 4th December 2012, the work colleague said that this happened at the front of the shop, at the counter. The complainant had asked to meet the manager, but the owner replied that he was now dealing with this matter. The meeting was a short one and the complainant said that she would be pursuing this matter. She wrote up a record of the meeting. On questioning, the work colleague said that she had a copy of the employee handbook at home. After she returned to work from a period of sickness, she had not used the form contained that document. She said that it was not practice for the respondent to hand out weekly rosters; employees learnt of their hours by consulting a roster pinned up.
Findings and reasoning
4.1 This is a complaint of harassment pursuant to the Employment Equality Act. The complainant commenced working as a deli assistant for the respondent in 2008. This complaint relates to events in 2012 after the complainant’s working hours changed following her caring responsibilities for family members. The complaint is made under the family status ground. The complainant alleges that the respondent harassed her in discussions about her hours of work; the respondent denies the claim. There is a complete conflict in evidence between the parties regarding the tenor of their conversations and interactions.
4.2 Section 2 states that “‘family status’ means responsibility (a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or (b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability”. In Henry Denny & Sons (Ireland) Ltd EDA1310, the Labour Court held “It is clear that the meaning ascribed to family status for the purpose of the Act is sufficiently wide so as to encompass the Complainant’s role as a carer of her disabled child. Consequently, in so far as her complaints are grounded on her caring responsibilities for her daughter, they come within the ambit of the family status ground”.
4.3 Section 14A prohibits harassment related to any of the nine grounds. Subsection 7 of this provision states:
“(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.”
4.4 In Nail Zone Ltd v A Worker EDA 1023, the Labour Court commented on the subjective nature of harassment. The Court held “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 at paragraph (b) 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 for the purpose of the Acts.”
4.5 The Code of Practice on Harassment (S.I. 208/12) refers to either the purpose or effect of unwanted conduct. It states “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. Bullying that is not linked to one of the discriminatory grounds is not covered by the Employment Equality Act”. The Code states that it is irrelevant what the employer intended. It provides “The intention of the perpetrator of the sexual harassment or harassment is irrelevant. The fact that the perpetrator has no intention of sexually harassing or harassing the employee is no defence. The effect of the behaviour on the employee is what is relevant.”
4.6 This case is striking by the complete divergence in the parties’ evidence, in particular in relation to the tenor of their conversation. The complainant describes the owner as being a “raging bull” and that both the owner and his daughter were aggressive and threatening. The respondent asserts that the meetings were calm, although it wanted the complainant to work the colleague’s annual leave and the full working week. As set out above, harassment is subjective, so even where the evidence is so disputed, a finding can be made that the interaction constituted harassment for one complainant even where this is genuinely denied by a respondent. Furthermore, where there is such conflict, it is often prudent to assess the case, taking the complainant’s evidence at its height. For the purpose of this assessment, I take the complainant’s evidence at its height and that the events occurred as she described and as she experienced them.
4.7 The question is whether the unwanted conduct “related to” the discriminatory ground of family status. The Act and Code of Conduct are clear that harassment unrelated to a discriminatory ground cannot constitute harassment within the ambit of the Employment Equality Act. In assessing whether the respondent’s conduct was related to the complainant’s family status, I note that the respondent wished the respondent to work a colleague’s annual leave, which the complainant said she could not do. The respondent wished for the complainant to work the full working week; the complainant replied that she could not because of family commitments. There was no evidence of any comment made by the owner, the manager or any other employee relating to the complainant’s family commitments. It was also not in dispute that the complainant had made the respondent aware of these commitments. Taking these factors together, even if the respondent behaved as set out by the complainant, this was not related to her family status. It is certainly the case that the complainant could not accede to what the respondent wanted because of family commitments, but this does not mean that the respondent’s subsequent behaviour was “related to” these family commitments and family status. In the absence of direct evidence of such a relation, the behaviour complained of does not constitute harassment within the ambit of the Employment Equality Act.
Decision
In accordance with section 79 of the Employment Equality Acts, I conclude the investigation and hold that the complainant has not established that there was unwanted conduct related to the discriminatory ground of family status and the claim of harassment and a contravention of section 14A of the Act does not succeed.
_______________________________
Kevin Baneham
Adjudication Officer / Equality Officer
17 December, 2018