FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : CAMPBELL CATERING LIMITED TRADING AS ARAMARK IRELAND (REPRESENTED BY IRISH BUSINESS EMPLOYERS' CONFEDERATION) - AND - MARIE FOGARTY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision No: DEC-E2017-006.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 25 January 2018. The following is the Determination of the Court:
DETERMINATION:
This matter comes before the Court as an appeal of a decision of an Adjudication Officer in a complaint by Ms Marie Fogarty (the Appellant) that she had been discriminated against on grounds of family status in that she had been harassed by her employer Aramark Ireland (the Respondent) contrary to the Employment Equality Act, 1998 to 2015.
The Adjudication officer, in a decision dated 24thJanuary 2017 decided that the respondent did not harass nor victimise the Appellant within the meaning of the Act.
Background
The basic facts of the case are not in dispute.
The Appellant is employed by the Respondent as a catering Assistant located at Portiuncula Hospital. The Appellant has been employed by the Respondent since 3rdNovember 2008.
On 8thOctober 2014 a manager of the Respondent, Ms O’D, invited the Appellant to her office where she enquired of the Appellant if she had a problem with her hair. When the Appellant responded in the negative Ms O’D enquired as to whether the Appellant’s daughter had a problem with her hair. The Appellant responded in the negative and enquired as to whether Ms O’D meant ‘nits’ (i.e. head lice)
At the termination of the meeting the Appellant returned to her ward and went to the ward kitchen. Ms O’D arrived in the ward kitchen and ultimately, following an interaction, the Appellant left.
The Respondent supplied the Appellant with a copy of the Respondent’s Dignity at Work policy and she made a complaint. That complaint was investigated and the Respondent found that Ms O’D managed the conversation with the Appellant in her office incorrectly but that Ms O’D did not intend to upset the Appellant and had offered the Appellant an apology. The investigation also found that the interaction in the ward kitchen did not amount to intimidation of the Appellant by Ms O’D.
The Appellant appealed that outcome and an appeal hearing took place which upheld the original decision but recommending that further training pertaining to the company’s policies take place and that mediation between Ms O’D and the Appellant should take place. Training has since been provided to Ms O’D but mediation has not taken place with the Appellant who remains unavailable for work because of illness.
The Appellant clarified to the Court that no complaint of victimisation contrary to the Act was being pursued on appeal to the Court.
Position of the Appellant
The Appellant submitted that Ms O’D’s query as regards her daughter was a reference to her family status and constituted harassment on that ground contrary to the Act. The Appellant stated in evidence that she was prevented by Ms O’D from leaving the ward kitchen until a colleague asked Ms O’D to allow her to leave.
Position of the Respondent
The Respondent submitted that no harassment of the Appellant took place. Ms O’D stated in evidence that two of the Appellant’s colleagues had reported a concern to her on 8thOctober as regards something in the Appellant’s hair. She stated that, as a manager of long experience and with responsibility for hygiene and safety in the Respondent’s hospital operation, she had no option but to approach the Appellant as regards the issue. She stated that her reference to the Appellant’s daughter arose from her lived experience of outbreaks of ‘nits’ among children at school at that time of the year. Ms O’D provided the Appellant with a written apology to the Appellant in respect of the events. The Respondent submitted that all of the management staff of the location shared the same family status as the Appellant and 80% of all other staff shared that family status and that all of the colleagues were women.
The Law
The Acts make unlawful the harassment of an employee. The Acts, at Section 14A(7) provide as follows:
(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,
- (b)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.
- (c) 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.”.
Discussion and conclusions
The Court is satisfied that the asking of a question by Ms O’D as regards the Appellant’s daughter raises the inference of discrimination in this case and consequently, in accordance with the Act at Section 85A, it is for the Respondent to establish that discrimination did not take place.
The Court has considered the evidence of Ms O’D as regards her meeting with the Appellant in the office. The Court accepts the evidence of Ms O’D that she received a report on 8thOctober from two staff of a concern as regards the presence of something in the Appellant’s hair. The Court also accepts the evidence of Ms O’D that in the circumstances of the Respondent’s operation she had no option other than to engage with the Appellant in relation to the matter. The Court accepts that the discussion was difficult for both parties. The Court also accepts the evidence of Ms O’D that her query as regards the Appellant’s daughter arose from her life experience as regards infestations of head lice and her knowledge, deriving from what both parties agreed was a historically good relationship between the parties, of the fact that the Appellant had a daughter. The Court concludes that the reasons for the engagement are as stated in evidence by Ms O’D but also accepts that the experience caused distress to the Appellant.
Both parties accepted in evidence to the Court that Ms O’D stated that her intention was to apologise when she entered the ward kitchen. The parties are disagreed as to whether Ms O’D sought to physically restrain the Appellant from leaving the kitchen at that time. The Court concludes that none of the interaction between the parties in the kitchen can be contended to be related to the family status of the Appellant. Rather it was related to an attempt by Ms O’D to apologise to the Appellant for the interaction they had had minutes earlier and as such it was a separate and discrete event to the earlier meeting. The Court finds that none of the events in the ward kitchen could be construed as discrimination on the ground of family status in the form of harassment of the Appellant. The Court consequently does not require to resolve the contradiction between the evidence of the Appellant and Ms O’D in relation to this event.
In the view of the Court the key question before the Court is whether the asking of a question of the Appellant as to whether her daughter had a problem with her hair constitutes discrimination on the grounds of family status and amounted to harassment within the meaning of the Act. The Court, having accepted that the interaction arose entirely as a result of a report of the possible presence of something in the Appellant’s hair, cannot accept that the impugned meeting in the office arose from or was connected with the family status of the Appellant. The Court concludes that a person of a different family status to the Appellant in the same circumstances would have been invited to engage with Ms O’D in the office. The Court also accepts that a person of a different family status would not have been asked about his or her child’s hair if Ms O’D had been aware of that difference in family status.
The Court however finds that any question as regards the hair of the Appellant’s daughter did not, of itself, amount to conduct which had the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. If such an effect arose from the interaction in the office it can only reasonably be concluded that such an effect derived from the conversation as a whole and the subject matter under discussion rather than because a question was asked of the Appellant in relation to her daughter. In this regard the Court does not accept that any accusation was levelled at the Appellant in respect of herself or her daughter at the meeting in the office. The interaction was in the form of questions.
In all of the circumstances the Court finds that the Respondent has discharged the burden of proof which rested upon it and that the Respondent did not harass the Appellant on grounds of her family status.
Determination
The Respondent did not harass the Complainant on the grounds of family status within the meaning of section 14A(7) of the Act. The decision of the Adjudication Officer is, for the reasons outlined above, affirmed and the appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
16 February 2018______________________
MNChairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.