EDA181

Background

The Complainant is in employment with the Respondent for a number of years. She previously brought proceedings under the Act against the Respondent in which she claimed to have suffered discrimination on grounds of her gender. She also claimed to have suffered harassment and victimisation by the Respondent. An Adjudication Officer, at first instance, found that the Complainant had been discriminated against as alleged and she received an award of compensation. The complaints of harassment and victimisation were not upheld at first instance. It is against the dismissal of those claims that the Complainant now appeals. There is no cross-appeal by the Respondent against the finding of discrimination.

The Complainant works in a service that is provided by the Respondent on a 24-hour basis over seven days. The issues giving rise to the complaints of harassment and victimisation arose against the background of a move to a new premises in which the Complainant was to be relocated. The Complainant was dissatisfied with the facilities that were made available to her as compared to other staff in the new premises. Discussions were had with the Complainant and her Union representative and the other staff members in relation to redesigning the facilities to ensure that all staff were facilitated appropriately. Agreement was reached between the Respondent and the Complainant’s Union by which she was placed on paid leave pending the resolution of the facilities issues.

It is the Complainant's case that this led to incidents of harassment. She also contends that in consequence of having taken a claim of discrimination she was subjected to victimisation by the Respondent in terms of not pro-actively facilitating her return to work.

Complainant’s case
The Complainant told the Court in evidence that there were a number of incidents which she believed constituted harassment. She accepted that details of some of these incidents were not provided to the Respondent. On that account, she was not relying on those occurrences in advancing her claims. However, there were two incidents that were of a more general nature which she believed constituted harassment as defined by the Act.

One incident related to the posting of a notification on the notice board in the workplace and the second issue was the failure of the Respondent to implement the recommendations of an equality report that it had commissioned.

The Complainant told the Court that she had visited her workplace while on paid leave and had seen a notice on the notice board setting out two options in relation to the proposed changes to the facilities. The Complainant understood from the notice that a meeting had taken place for the purpose of ascertaining the views of employees on the proposed changes in the facilities in question. However, she was not informed of the meeting or asked for her view. She told the Court that she regarded this omission as a form of harassment. In her evidence the Complainant accepted the source of the notice was not clear.

The second incident upon which the Complainant placed reliance was in relation to an equality report that the Respondent had commissioned. The Complainant told the Court that in her opinion the respondent was not actively seeking to implement the recommendation of the report. In particular, the Complainant referred to the fact that a recommended review had not been carried out and that a protocol recommended in the report had not been formally issued until a number of months after she returned to work. This, according to the Complainant, also constituted harassment.

In the course of her evidence, the Complainant told the Court that she believed that the Respondent’s failure to actively facilitate her return to work from paid leave constituted an act of victimisation. This, the Complainant believed, was because she lodged a complaint of gender discrimination with the WRC on 8^thOctober 2015.

In essence, the Complainant’s case is that the Respondent continued her period of paid leave, which was intended to be of short duration, from mid-September 2015 to 10^thApril 2016.

According to the Complainant she had not been informed by the Respondent of the extension of her paid leave on a number of occasions on which it had been continued. While there was no issue in relation to her receiving her pay for the period she did not feel it appropriate that either she or her Union had to contact the Respondent to confirm that the paid leave was continuing. This, she claimed, constituted victimisation. The Complainant acknowledged that along with her Union representative she had met with management on the 11^thMarch 2016 where she was given an update in relation to the progress being made both on the physical changes to the facilities and the recommendations from the equality report. It is her contention that at this meeting that when her Union representative asked if the reason she was on paid leave so long was due to the case she was taking, a senior manager (witness Y for the Respondent) nodded his head to indicate that was the case. Following that meeting and discussions with her Trade Union representative the Respondent emailed her on the 5^thApril 2016 confirming her return to work later that week.

The Union on behalf of the Respondent and in support of their arguments referred to a number of earlier cases that they believe are relevant in respect of the issues arising in this case. In particular, they relied onA worker v A Store EDA 163 and the Southern Health Board v Mitchell [2001].

Respondent’s case
Two witnesses gave evidence on behalf of the Respondent. Witness X is the HR person who dealt with the Complainant and witness Y is head of the service where the Complainant works.

Witness X told the Court in evidence that the Complainant had made a general complaint about harassment but when the witness wrote to the Complainant seeking details of what was alleged the Complainant replied to the effect that she did not want to make a complaint against any of her colleagues.

In relation to the notice on the notice board, the witness told the Court that she did not know who put it there but once it was brought to her attention she brought the notice to the attention of Y who is the head of the service where the Complainant works. On the claimed non-implementation of the report in a timely manner, the witness testified that the report was commissioned in November 2015 and was received by the Respondent at the end of January 2016. A copy was given to senior managers and sent to the Complainant immediately. A meeting was held with the Complainant and her Trade Union representative on the 11^thMarch 2016. The purpose of the meeting was to give an update on the progress made in relation to the facilities and the recommendations from the equality review and to discuss the Complainant’s return to work. As the report was only issued at the end of January it was, in this witnesses’ opinion, too early to carry out a review. The review was carried out twelve months after all the necessary work was completed.

In relation to the complaint of victimisation, the request for the Complainant to go on paid leave had been made by her Union representative. She had been responsible for interacting with the Complainant and her Union and at times the notification in relation to extending the paid leave had been late in issuing but as soon as it was raised with her she had issued a note. It was her understanding that the Complainant was unwilling to return until the issue concerning facilities was resolved. This, according to the witness, has proved more difficult than originally expected. As soon as the Complainant indicated that she wished to return to work this was facilitated. X in evidence to the Court stated that when, at the meeting in March 2016 the Complainant’s union representative asked if she had been continued on paid leave because of the initiation of an equality claim, the witness had reassured the parties that there was no connection between the paid leave and the Complainant’s equality case. It was this witnesses’ evidence that as she was sitting beside Y she did not notice whether or not he nodded his head.

Y in his evidence to the Court stated that he was not aware of the note on the notice board until it was brought to his attention by X. The document was not a formal proposal and he did not know who put it on the board. In relation to the issues around late notification of extensions of paid leave, this witness said that the HR department had dealt with that issue and he had no role in relation to it. As the head of the service he had worked hard to resolve the facilities issue but it proved impossible to get consensus from all the parties involved on the different elements of same.

It was his understanding that the purpose of the meeting on the 11^thof March was to give an update on the work done and the work proposed for the future and getting the Complainant back to work. It was his view that the review could not happen till all the works had been completed for a period of time. They had started implementing the recommendations from the report straight away. A draft policy in relation to dormitory usage and minimum attire code was circulated to all the local managers in April 2016. A final version could not be issued until all the works were completed. This was done in August 2016 when all the work had been completed. The review was carried out in July 2017 twelve months after the work was completed. Y gave evidence on cross examination that he did not recall nodding his head indicating that the Complainant was still out on paid leave because she had a complaint pending. He did not respond to that question as X answered it.

The applicable law
The first issue for consideration is whether the conduct or omissions complained of by the Complainant are capable of constituting either harassment or victimisation as those terms are statutorily defined.

Harassment
Section 14A(7) of the Act provides: -

(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

Victimisation
Section 74 of the Act defines victimisation as follows: -

(1) In this Part, unless the context otherwise requiresvictimisation” shall be construed in accordance with subsection (2)

(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 orthe Equal Status Act 2000or any such repealed enactment,
  
  (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
  
  (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
  • S85A.—(1) 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.
    
    (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
    
    (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commissionunder section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
    
    (4) In this section ‘discrimination’ includes—
    
    (a) indirect discrimination,
    
    (b) victimisation,
    
    (c) harassment or sexual harassment,
    
    • (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
    
    (5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

In Determination HSD095,Toni & Guy Blackrock Limited v Paul O’ Neillthis Court considered the appropriate test to be applied in determining if ‘penalisation’ within the meaning of the Safety Health and Welfare at Work Act 2005 had occurred here the Court held

• • “In order to make out a complaint of victimisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by the Act. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

Discussion and Conclusions
The Court has first considered the complaint of harassment. The meaning to be ascribed to this term is prescribed by s.14A of the Act. In order to come within the statutory definition, the conduct complained of must, in the words of the statute, have: “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

The test is a subjective one in that the impugned conduct need not be directed at having the purpose described by the statute. It is sufficient if it has that effect on the victim.

In this case the conduct relied upon in grounding the claim of harassment was the placing of a notice at the complainant’s workplace inviting comments on options as to the physical lay-out of facilities for employees. The Complainant took issue with the content of this notice because, in her opinion, the options did not include her preferences. The Complainant further contends that a delay in giving effect to an equality report constituted an act of harassment.

In relation to the placing of the notice, while the Complainant may have been aggrieved at this omission, there is no evidence that it violated her dignity or that it created an intimidating, hostile, degrading, humiliating or offensive environment for her, nor could it reasonably be suggested that it was capable of having that effect.

In relation to the equality report, witnesses for the Respondent provided a perfectly reasonable explanation for the manner in which this was handled. Moreover, there is no evidence by which it could be held that the Respondent’s handling of this had a result which could have amounted to harassment as that term is statutorily defined.

In these circumstances the Court is satisfied that there is no evidence upon which the complaint herein of harassment can be upheld.

Turning to the complaint of victimisation, what is in issue here is not the placing of the Complainant on paid leave,per se. Rather, issue is taken at the continuance of that leave for what the Complainant considers an inordinate duration. The evidence adduced disclosed that the decision to place her on paid leave was taken in ease of the Complainant and at the request of her Trade Union. The evidence further disclosed that as soon as the Complainant asked to return to work she was accommodated in that request.

Section 85A of the Act applies to a claim of victimisation just as it applies to claims of discrimination. The now standard test for applying the provisions of that section is that formulated by this Court inMitchel v Southern Health Board[2001] ELR 201. That test requires the Complainant to establish facts from which it may be presumed that victimisation occurred. It is only if such facts are established that the onus of proving the absence of victimisation passes to the respondent. It is well established that where a Complainant fails to establish facts from which that presumption can fairly be drawn he or she cannot succeed.

In relation to the instant case the application of this test requires the Complainant to establish, as a matter of probability facts from which a causal connection could reasonably be inferred between the continuance of her paid leave and the earlier claim of discrimination that she had taken against the respondent. No such facts have been established on the evidence before the Court. Accordingly, the complaint of victimisation cannot succeed.

Outcome
For all of the reasons set out herein, the Court finds that the Complainant was not harassed nor was she victimised within the statutory meaning ascribed to those terms

Determination

The within appeal is disallowed and the decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Louise O'Donnell
5th January 2018______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.