Complainant

Respondent

Parties

Geraldine Allen-Ross

Teachers Union of Ireland (TUI)

Representatives

Gillian Mahony David Burke & Company Solicitors                             Paul Hutchinson BL

Mary Cullen Solicitor

Mary McNeal Solictor                 Mary Paula Guninness BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00006732-001

23/08/2016

The parties herein were both legally represented. I was provided with comprehensive documentation which included written submission and supporting documentation. I heard legal argument from the parties’ respective legal representatives and heard from the Complainant as well as a number of witnesses for the Respondent Employer. This case was heard over three days.

The Complaint herein is grounded on a workplace relations complaint form dated the 23rd of August 2016. In the complaint form, the Complainant states that the Teacher’s Union of Ireland discriminated against her on the grounds of her gender and in the provision of the services which the TUI is bound to provide to it’s members.

I have been asked to waive anonymity in this decision.

The Complainant by way of workplace relations complaint form has brought a claim against the TUI stating that their decision not to provide her with assistance and representation at a workplace complaints process was contrary to their promise to provide such services and was a decision made as a consequence of her being a woman.

The Respondent challenged the Complainant’s entitlement to invoke the Equal Status Act in this instance and in particular rejected the proposition that the Respondent herein was providing a good or service to the public generally as envisaged by this Act. This issue was dealt with by way of Preliminary issue.

The Respondent thereafter challenged that Complainant’s assertion that she was discriminated against. The Respondent offered a rationale for the decision not to represent the Complainant in the complaints process and indicated that this rationale was sound and was applied to all of it’s members regardless of gender. The rationale offered was contained within the TUI handbook and was an open policy.

Preliminary Issue

I was at the outset, asked to determine whether the Teacher’s Union of Ireland should be deemed a person or body which is obliged, pursuant to Section 5 of the Equal Status Act of 2000 to

“…not discriminate in the disposing of goods to the public generally or section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”

In these circumstances, the Claimant says that in the ordinary course the TUI (her Union) would be expected to provide legal assistance or representation where the Complainant is involved in a legal or quasi legal process which arises from her employment.

In the circumstances, I opted to treat the issue of the appropriateness of the Equal Status Act as a preliminary issue and heard all the relevant evidence in connection with that. The Union’s obligation to make representation (legal or otherwise) available to it’s member was therefore left over to a later date.

The Union by way of preliminary point have asked me to make a finding that the Complainant is not entitled to the beneficial protection afforded by the legislation as the Union, it says, is not providing goods or services to the public or any part therefore as is a requirement under the 2000 Act.

In essence, the Union is saying that it is precluded from being considered a person or body to which the Act applies by reason of the fact that it’s services (including representation) can only be enjoyed by it’s members and more particularly that the membership of the Union can only be given to a select group of persons that have to adhere to strict criteria and have specific professional and membership qualifications which they say are a pre-requisite to any entitlement to become a member of this body.

I have been provided with lengthy and considered submissions prepared by the respective Counsel and I recognise and commend the vehemence with which both sides have put their client’s case to me for consideration. In the course of the hearing I also listened to a certain amount of input from interested parties and witnesses who clarified a number of matters for me as the respective positions were being put to me.

There is surprisingly little case law from which direction can be taken. A number of 1970 English authorities have looked at what might constitute a “section of society” and there is little doubt that these cases find that these words are intended as words of limitation (Charters and Ors -v- Race Relations Board 1973 1AC and Dockers Labour Club -v- Race Relations Board 1976 1 AC) and it seems that the general thrust of these findings is that protections cannot be granted against persons gathered in a private capacity. I have been invited by Counsel for the Complainant (and in the absence of any Irish authority) to look at the broad interpretation which has been developed in the Equality Tribunal where for example co-operatives, gun clubs and even Young Fine Gael have all been deemed to have provided services for the purpose of the Acts. Membership of these bodies must presumably have some commonality or common interest though it is not clear if just anyone can sign up. It certainly seems that describing such bodies as providing a public service is pushing the acceptable definition to the limits.

In defence of her client’s position, Counsel for the Respondent pointed to the entitlement of just about anyone in the public being entitled to become a member of Fine Gael (albeit presumably restricted by having to be young) and therefore that institution has a somewhat more open, expansive and public membership as against the membership of the TUI which is narrow and demanding of express standards and conditions i.e. not just anyone can be a member of the TUI and its services are not intended to be for the Public.

I have been invited in particular by Counsel for the Complainant to consider the limited consideration given by Ms. Justice O’Malley in the case of G -v- The Department of Social Protection 2015 [IEHC] 419 wherein the Judge (albeit obiter) considers that the Equal Status Act 2000 should have a broad and inclusive interpretation as far as can be fairly done.

It is on the face of it unusual that a body such as a Trade Union which in this case (the TUI) has such a strong and evident lobby function and which is without doubt constantly in the public eye and indeed on the public airwaves would eschew any recognition of it’s having a service to the public or a section thereof. I think in this context the TUI might very well accept that it is as a matter of fact of service to the Public without (it says) providing a service to the public.

The TUI have also asked that I consider that it’s obligations to the Complainant herein would have been more appropriately been brought under section 13 of the Employment Equality Act of 1998 wherein Trade Unions are expressly disallowed to discriminate against a person such as the Complainant herein in relation to membership or any other benefit   provided by it (the TUI I should say have pointed this out without in any way consenting to the supplanting of the one Act for the other for the purpose of bringing a Complaint within time before the WRC). I can see that there is merit in this argument though I am not convinced that the fact that the Employment Equality Acts has made provision for this express cause of action against a Trade Union does in any way preclude the Complainant or any litigant for that matter from having a cause of action under the Equal Status Act 2000. The two Acts are not mutually exclusive and had the Complainant identified both Acts in her original Workplace Relations Complaint Form this would not have been a cause for concern.

On balance, I find that the TUI certainly is a body which is readily recognised by the Public. The TUI is comprised some 15,000 members drawn from (per their own website) the “Irish Public Education Sector” meaning I believe the community schools, vocational schools and Institutes of Education etc which by their very nature rely on public funding. The Public must be allowed to presume that these centres of education (providers of service) operate within the law and that the teachers and lecturers (providers of a service) therein must operate within the law – is it too much then to presume that the body which purports to represent these service providers must be bound to operate within the law too?

Counsel for the Complainant has asked me to consider the anomaly created by a body as big and representative as the TUI not being bound by the strictures of the Equal Status Act of 2000? How could it’s own members endorse such a stance?

The TUI does not of necessity perform it’s functions in the private premises and dark mysterious club houses averred to in the earlier case law. I do not accept that that the Equal Status Act of 2000 was not intended to be interpreted so as not to cover a body of this sort. The membership rules it implements are self-regulatory and do not have any Statutory basis. They seek to limit (or perhaps increase) numbers and/or bring like minded people together for good reason. Their membership is drawn from the public. In the spirit espoused by Judge O’Malley and in line with the Equality Tribunal’s more expansive interpretation I cannot find that the Equal Status Act of 2000 does not apply to this Trade Union.

In dealing therefore with the preliminary issue raised, I have found that the TUI is a body obliged to not discriminate in the disposing of goods and/or in providing a service to a section of the public.

This decision having been made the parties came back before me to hear the complaint made under the Equal Status Act.

Substantive Issue

I have carefully considered the evidence adduced over the course of three days of hearing. The Complainant submitted her Workplace Relations Complaint Form on the 23rd day of August 2016 and has brought a complaint against her Union who she says has discriminated against her, by reason of her gender when the said Union failed to provide her with the service of representing her in a workplace situation which had arisen.

The Complainant is in education and was an Art teacher engaged by Cork ETB, working in youth reach Bandon and Youth reach Ballingcollig since 2007. The Complainant gave evidence that her experience with her Employer was made difficult by reason of the behaviour of the then co-ordinator. The Complainant said that she was personally bullied by this man and witnessed many things about this gentleman’s behaviour that made her particularly uncomfortable. The Complainant gave evidence relating to the back story leading up to the actual events that I am bound to consider. Some of this evidence (dating back to 2012) has no bearing on the matter forming the Complaint herein. However, the evidence was compelling and, whilst I accept it was not tested, I am inclined to accept it and I therefore acknowledge that the Complainant was working in a very difficult environment where she was demeaned and bullied and oppressed by one individual. From the Complainant’s perspective this workplace was very difficult.

The Complainant sought assistance from her Union. She was advised to communicate with Mr. M. Lyons the Cork Branch Chairperson. On the 5th of February 2015, the Complainant wrote to Mr. Lyons indicating that she was having difficulties in the workplace that needed to form the basis of a serious Grievance to be investigated by the Employer. The Complainant additionally stated that she wished to bring a Complaint under the Employment Equality Legislation. At that time the Complainant was specifically wondering if she could trigger both actions at the same time? I accept that the Complainant was contacted by Mr. Lyons of the Union in the aftermath of this communication. There was a phone conversation and the Complainant came away from that conversation thinking that Mr. Lyons was supportive. Mr Lyons seemed to understand the workplace and knew of the individual with whom the Complainant was having difficulty. I accept that the Complainant had no reason not to believe that this support would not extend to a full range of assistance for any workplace complaints and grievances she was on the point of triggering. Mr. Lyons himself indicated that he was not entirely sure what help the Union would be in a position to offer or not offer at this time.

In any event, by February 6th 2015 the Complainant was buoyed up by her conversation with Mr. Lyons. Independently of her communications with Mr Lyons, the Complainant also understood that one of her colleagues (KD) who was himself bringing a bullying Grievance in the workplace (against the same individual) was getting support, assistance and representation from the Union. She believed she would be afforded the same service.

There was some urgency from the Complainant’s point of view. The Complainant had been out sick for a significant period of time with workplace related stress. The Complainant went ahead and triggered two separate processes. In the first instance the Complainant lodged a formal workplace grievance against the co-ordinator and which related to allegations of bullying and harassment against him. In the second instance the complainant lodged a complaint with the WRC under the Workplace Relations legislation. The Complainant notified Mr. Lyons of the fact that she had initiated these processes by letter of the 20th of March 2015. In this communication, the Complainant signalled that there was a request that she nominate her trade union representative for the internal Grievance process. She wanted Mr. Lyons to advise.

Mr. Lyons came back to the Complainant and at this stage was somewhat more equivocal about the Unions position in terms of representing members in a Grievance procedure wherein bullying and harassment was being alleged. Mr. Lyons suggested that the Union did not provide representation in situations where one Union member was making allegations against another Union member. The Complainant found this assertion to be disingenuous where she understood that her male colleague KD was getting just such representation. The Complainant could not understand why the Union was now rowing back from a position wherein she had believed she would be afforded every service and assistance. The Complainant believed she was being denied assistance because she was a woman bringing contentious claims against a male member of the Union. The Complainant’s concerns were heightened by the fact that the co-ordinator against whom she had brought these allegations was also the TUI representative in the workplace.

I accept that the Complainant felt that the TUI had closed ranks and operated to exclude her.

On the 26th of March the Complainant was sent a short email from a Mr. McElligot which simply stated that the TUI would not give representation to either TUI member in the Grievance process.

Not surprisingly, the Complainant queried the provenance of this policy as she had not been made aware of it by Mr. Lyons, nor had it featured in any of the literature she had examined in advance of initiating the Grievance process. It was Mr. Lyons who came back to the Complainant on the 13th of April 2015 when he wrote to the Complainant a lengthy email that purported to set out the Unions position. He indicated the Unions position was to take a hands-off approach where a complaints procedure between two TUI members had been invoked.   Mr. Lyons recommended that the Complainant trust the process as set up in the workplace as the Union was itself satisfied that the process was fair, respectful and appropriate.

The Complainant still understood that one of her colleagues was being supported by the TUI in respect of Grievances being brought against this same co-ordinator. However, the TUI stated that any such support was given in a most peripheral and objective way and that this level of support could be offered to the Complainant. Such assistance would have to be, of necessity, impartial. necessity

By the 24th of August of 2015 the Complainant was writing to the Assistant General Secretary of the Union querying if the Union was representing the co-ordinator for the purpose of an investigation into alleged misconduct on the part of the said co-ordinator.

Again, on the 30th of August 2015 the Complainant wrote to the Assistant General Secretary Declan Glynn seeking clarification on the issue of whether or not her Union was going to assist the Co-Ordinator in respect of the complaints she had brought against him.

On the 3rd of September 2015, the Complainant got a comprehensive response from Mr Glynn on the Union’s position regarding representation. In particular, Mr Glynn explained, the Union does not provide representation where workplace complaints concerning bullying and/or harassment have been raised. This is in recognition of the fact that the Union is satisfied that an appropriate structure has been put in place in this workplace for a fully independent consideration of complaints of this nature. The Union has recognised that the Employer implements a fair and appropriate process and that parties are not disadvantaged and therefore the need for Union “representation” does not arise. In addition, the Union recognises that complaints of this nature are invariably made by one member of staff who is a TUI member against another member of staff who is a TUI member. It would be inappropriate for the Union to support one Union member over another in such circumstances.

The Union does further acknowledge that it may sometimes offer a role in assisting and perhaps even accompanying at meetings – but this is strictly to provide a presence during an unfolding process and is not intended to afford representation. The Union recognises that being accompanied by a colleague is best practise.

In this same letter of the 3rd of September Mr Glynn goes on to explain that other complaints raised through the Grievance procedure are dealt with on a case by case basis. Sometimes it is appropriate for the Union to provide representation – such as where a group Grievance has been raised. It is only in situations of Bullying and Harassment that the Union has a blanket policy of not representing it’s members.

Mr. Glynn outlined the situation regarding a Disciplinary process being brought against one of it’s members by the Employer. In such circumstances, he indicated, it would be normal for the Union to represent it’s member though he clarifies that Union representation in this instance is for the purpose of ensuring that fair procedures and due process is observed.

Lastly, Mr. Glynn explained the Union’s position insofar as bringing a complaint under the Employment Equality legislation is concerned. It is the Union’s position that providing support in such cases will only be countenanced after due consideration by the Executive Committee. This is documented in the TUI handbook.

In May of 2016, Mr. Glynn advised the WRC of the fact that the TUI was not prepared to represent the Complainant with respect to the complaint she had brought under the Employment Equality Act and which had been lodged in March of 2016. In this letter Mr. Glynn explains that the complaint was lodged before the TUI had had an opportunity to review same and there had been no sanction for same by the TUI.

On balance, I find that the Complainant had every reason to feel let down by her Union. I do not believe the treatment was intentional, but arose out of a carelessness which served to compound the Complainant’s feelings of vulnerability and frustration. From March 2015 to August 2015 the Complainant was left without any real understanding as to why her Union was refusing to represent her at a time when she felt she needed Union support and understood she would and should be getting it. I do not reject the rationale behind the Union’s stance when one member brings a complaint against another. I do think it regrettable that the Complainant was not clearly advised of this policy from the start.

I accept that the Complainant was given the impression that there might have been other forces working against her. The Complainant believed that the balance of power lay with the co-ordinator and she believed that another male colleagues was getting more assistance than he was in fact getting.

However, in terms of the legislation under which the complainant has brought her complaint, I cannot accept that there is any evidence to suggest that the Respondent’s decision not to give comprehensive representation and support was withheld on the grounds of her gender.

The claim under the Equal Status Act 2000 – 2015 must therefore fail.

The claim under the Equal Status Act 2000 – 2015 must therefore fail.