Complainant

Respondent

Anonymised Parties

Technical Support Employee.

Technical Support Contractor.

Representatives

Moran Ryan    Moran & Ryan

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-00018605-001

03/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00019042-001

07/05/2018

The Complainant was employed by the Respondent as a Technical Support Officer from the 22nd May 2017 until he resigned on the 20th April 2018, complaining that he was being discriminated against by two employees of the company and that the Respondent company failed to adequately address this discrimination.

The Complainant says that soon after he joined the Respondent company on the 22nd May 2017, harassment of him by two other employees (PLC and PC) whom he worked alongside, commenced. He says that this harassment/discrimination was in the form of a “greeting”, which both employees used toward him, which he considered offensive in that he knew the terms used to be racist, coming from his background. He says that he asked them not to use the terms “gros” and “wesh gros” as he considered them to be racist provocation.

He says that at a later stage a screen-saver picture was put up on the computer of one of the employees concerned which was of food and included bacon. He believes that this was intended to be further provocation on the basis that the employees concerned believed he was Muslim. He subsequently brought this to the attention of his supervisor when articulating his complaint.

He says that when the harassment continued he brought it to the attention of the Manager in charge (HM) in May 2017. He says that the manager advised him to “take it easy” and that he would take the issue up with the two employees. He confirms that the manager took the issue up with the two employees. He was not involved in the conversation nor advised of the outcome, but says that one of the employees (PC) did stop using the offensive terms for a number of months but that the other employee (PLC) continued to address him as before.

He says that he did not raise a formal grievance at that time as he was new to the company. He tried to resolve the issue informally. He said that he asked PLC to stop using the offensive terms on many occasions, but that PLC continued to use the terms.

His manager then advised him that the two employees accused of harassment were shocked when he advised them of the allegations raised by the Complainant. They said it was normal for them to greet others in this way, but they agreed not to use the complained of words again.

He says that the harassment resumed and that he became involved in an altercation with both employees and in his frustration, invited them “outside” to deal with this matter. This occurred on the 20th March 2018. The two employees complained to the manager (HM) who then met with the Complainant and asked what had occurred. The Complainant says that the harassment had continued for 9-12 months and that the manager was not doing anything to effectively bring it to an end.

He said that he was advised by the manager to leave the office and go home on the day and that they would contact him.

He says that at this point he had made a complaint to the HR department of the company to which, on contract, they were providing back office IT services, because of frustration in his dealings with his own management.

At this point the Respondent company HR manager was asked to meet the Complainant and they had two meetings on the 16th and 20th March 2018. At the second of these meetings they had discussed the incident on the 20th March 2018. These meetings were part of an investigation that the HR manager was conducting into the Complainant’s complaints and the surrounding issues that arose.

The Complainant advised the HR Manager and his manager (HM) that he was resigning from the Respondent company and that he had sent an email to this effect to his manager and that his last day of service would be the 20th April 2018.

He says that the HR Manager said that given his formal resignation and all the other circumstances he suggested that the Complainant be placed on “garden leave” until his final day of service.

He says that when the HR Manager issued his findings, following his investigation of the Complaints, his complaint was not upheld, with little reasoning provided by the manager for this decision.

The respondent says that the issues of discrimination raised by the Complainant came to their attention in March 2018, when they were advised by a client company, where all of the players here were providing a service as employees of the Respondent.

The HR Manager says that he initiated an investigation into the complaints. He interviewed all the employees involved.

He says that the Complainant had advised him of his belief that he was being harassed by two employees (PLC and PL) and that this amounted to discrimination on racial grounds. He said that he was advised that the Complainant had taken the issues up with the employees concerned and with his manager but that the harassment/discrimination had not ceased.

The Respondent says that in his interview of the employee (PLC) that he had put the complaint to him. He says that the employee concerned had denied that he was ever told by the Complainant not to use the terms that he considered discriminatory. He says that he used the terms when addressing the complainant but did not consider them offensive. He believed they were terms of friendship.

The employee (PC) also said that he did not know that the Complainant had regarded the greeting used as offensive until he was advised of this by their manager (HM) and that he did not use the terms thereafter.

The Respondent says in his Findings of the Investigation that:

“I have carefully considered all of the information put forward by the Complainant (oral and written) and also the responses of the persons against whom allegations of harassment were made by the Complainant (PLC and PC). In addition, I have considered the response of the site manager (HM).

While I am of the view that the Complainant has made his complaint in good faith, based on all the evidence, I am unable to uphold his complaint”.

The only submission presented at the Hearing of this complaint was that in relation to the complaint of Discrimination under Complaint Number, CA –00018605 – 001.

In their submission the Respondent says:

                                 “The Company acknowledge that in May 2017 and February 2018, the then site manager (HM), addressed (separately) an issue between the Complainant and two employees in relation to a salutation being used at that time. The manager spoke to the Complainant who told him that he did not like the use of the term “Salut Gros” towards him. The manager spoke to the employees who had used the greeting and who were unaware that the Complainant found it in any way offensive. Both agreed that they would not use the term in future.

In February 2018 the company was forwarded a formal written complaint, received by a client company (on whose premises the Complainant and the two employees were working) from the Complainant. In his submission, the Complainant alleged that he was being harassed, in the workplace, by two of his colleagues, since he commenced working at the site in May 2017”

This complaint was sent to the Respondent and at that point an investigation into the complaint commenced.

Section 14A of the Employment Equality Act, 1998 deals with harassment of employees:

S 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 was 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 ----

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

(11) it could be reasonably anticipated that he/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 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 such steps as are practicable-----

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from 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, if and so far as such treatment has occurred, to reverse its effects.

(7)(a) ----- In this section-----

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

Being conduct 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.

(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.

I find that the Complainant, early in his employment with the Respondent company, complained about the salutation he received which he said he regarded as harassment and discrimination based on race and religion. He asked the perpetrators of this racist harassment to desist. They did not. He brought his complaint to his manager who said he would deal with it, but clearly did not do so decisively. This resulted in further ongoing use of the spoken words that the complainant had complained of as being harassment. The Complainant subsequently made a complaint through the client company to which he was assigned and only then did the Respondent get into formal investigation of a complaint that had first been raised with the Complainant’s manager one year earlier. The effects of the harassment were clearly not reversed.

Section 85A of the Employment Equality Acts sets out the Burden of Proof in relation to complaints of discrimination:

(1)    Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there is discrimination in relation to him/her, it is for the Respondent to prove the contrary.

I find that there were facts adduced from which discrimination in this case may be presumed:

·         Facts in relation to the early complaint – not vigorously pursued by the Respondent.

·         Facts in relation to the commitment of the employees concerned not to repeat the words complained of.

·         The fact that the complaint made was not treated with the gravity or urgency required.

·         The fact that, though the Complainant’s manager was aware of the complaint, it was a year later before the Respondent formally investigated the complaint, by which time the Complainant had decided that he must resign from his employment to get away from the harassment/discrimination being perpetrated.

I find that in relation to the facts established by the Complainant, the Respondent has not proven the contrary.

I find for the Complainant and award him €5,000 compensation for the discriminatory manner in which he was treated.