Complainant

Respondent

Anonymised Parties

A Security Worker (1)

An Employer

Representatives

BDM Boylan Solicitors

Cliona Kimber B.L. instructed by Ronan Daly Jermyn

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011077-001

02/05/2017

The Complainant’s case is that four male staff with less service than her were placed ahead of her on the roster for annual leave purposes. The Complainant claims that this amounts to gender discrimination. The Complainant also claims that she was subjected to harassment and victimisation in relation to an incident regarding an inspection of her mobile phone, and a ‘snapchat’ social media issue.

The Respondent denies the same. It claims that there was no gender discrimination, victimisation or harassment as per the Employment Equality Act 1998. It said that the Complainant was placed on its roster for annual leave on the day she joined that roster as per its practice.

A substantial amount of oral, written and documentary evidence was presented in this case. The following is a brief summary of the Complainant’s case.

Preliminary matter

The Complainant made the following submission in response to a preliminary application made by the Respondent arguing that the complaints were statute barred.  

As regards the primary claim of gender discrimination, the Complainant said that the discrimination in relation to the annual leave roster constitutes a continuum as per Section 77 (5) of the Act. The Complainant referred to the Decision of the Labour Court in the case of Brothers of Charity Services, Galway – v – Kieran O’Toole, [2017] EDA177, in particular where the Labour Court quoted, with approval, a previous decision of the Labour Court in the case of County Cork VEC – v - Anne Hurley, [2017] EDA1124 where it held:- “Sub-Section (5) and Sub-Section 6 (A) of S.77 deal with different forms of continuing discrimination or victimisation. Under Sub-Section 6 (A) an Act will be regarded as extending over a period, and so treated as done at the end of that period, if an Employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the Complainant (Barclays Bank Plc – v – Kapur) [1989] IRLR387).

This Sub-Section would apply where, for example, an Employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an Employer pursues a Policy or Practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the Policy or Practise is discontinued.   Hence an aggrieved party could maintain a claim in respect of Acts or omissions which occurred in pursuance of the Policy or Practice regardless of which the Act or omission occurred”.    

The Complainant said that the complaint in relation to one of the incidents referred to as the Snap Chat issue is still ongoing and is subject to a formal external investigation. The same applies in relation to another incident referred to as the mobile phone incident. Therefore, the Complainant claims that this is an ongoing situation.

The Complainant also referred to the Labour Court decision of Mary Dempsey – v – NUIG, where the Tribunal held: - “Having regard to my findings below, I find that this was a related Act of discriminatory treatment in relation to her conditions. I am also satisfied that the Complainant has established a satisfactory link between all incidents, and they can be considered as separate manifestations of the same disposition to discriminate and constitute an ongoing Act or a continuum of discrimination within the meaning of Section 77. I find therefore that the complaints were referred to within the 6-month time limits provided for in Section 77 (5) (a) of the Acts and that I have jurisdiction in the matter.”  

The Complainant said that her situation is similar to the case in Dempsey and therefore can be considered by the Adjudication Officer.

The Substantive matter

The Complainant commenced working with the Respondent on 26 April 2011. On 20 November 2011, she said that she started on Roster 1.

She said on 12 February 2012, the Complainant was threatened by a male colleague and whilst trying to avoid subsequently coming into contact with him, he, as a supervisor, continued to undermine her and was constantly trying to find fault with her work. In September 2013, the team of supervisors indicated that she needed to improve her performance. Notwithstanding, she was offered a fixed-term contract with an extension until 28 February 2014. She took a formal grievance in relation to the comment on her performance review and in relation to the terms on offer of a fixed-term contract extension.

In November 2013, a Collective Agreement was entered into between the Union and her employer regarding issues including those arising out of the assessment process that should be pursued, through the Company's grievance procedures. It was agreed that staff members were also to have access to these records upon request and any future major changes regarding rosters will involve consultation with the Union and staff. On 27 March 2014, the Complainant was offered a permanent contract with effect from 1 April 2014 with her service dating back to the 26 April 2011.

The Complainant said that the rosters were re-organised in 2014 and on 1 April 2014, Mr. A, head of security, issued a document with respect to roster changes, and he made a reference to a mirror line. The Complainant said that Mr. A acknowledged to her that the procedure was not correctly followed, when she and another work colleague, Ms. X, were removed from Roster 1, when the rosters were reorganised in 2014. She said that it is acknowledged and uncontroverted, that when the mirror line was created both the Complainant and Ms. X would be offered the next available positions on the permanent Roster 1, in addition to the creation of the mirror line arrangement. The Complainant said that it is clear from the evidence, that interviews were performed when one line became available. The only interviewees were the Complainant and Ms. X., where Ms. X obtained the position on Roster 1 at that stage. It is submitted that this is further evidence of the error made by Mr. A, when the Rosters were drawn up in 2014, and an acknowledgement of same. The Complainant said he promised the Complainant and Ms. X the next available positions on the permanent Roster 1.

On 15 October 2014, the Complainant said that HR sent an email to Mr. B, a supervisor, suggesting that the note, regarding her past performance, referring to an incident between Mr. B and the Complainant from a few years previously, should be removed from the 2014 performance review. On 20 November 2014, the Complainant’s performance review reports states that the Complainant is inconsistent in her work, that she can be a distraction to others in that she is very talkative and that she needs to improve her ‘observation’ score. The overall rating is three. The review is carried out by another supervisor Mr. C.

On 16 December 2014, an amendment is agreed on the rosters in the company and it describes the permanent Roster 1 as being “X” lines plus one shadowing line (the mirror line). On 1 June 2015, a line became available in Roster 1. The line was not advertised, and the only people interviewed were the Complainant and Ms. X, both from the shadowing line. On 29 June 2015, Mr. D, deputy head of security, confirmed that the Complainant would be moved to Roster 1. The Complainant started covering maternity leave on Roster 1 from middle July 2015.

On 8 October 2015, Mr. D sends an email to Mr. E and copied all the supervisors saying that the Complainant needs to receive additional coaching to enable her to return to full duties and also wishes to investigate the alleged refusal by her to take direction from Mr. B, a supervisor. A note appears on the Complainant's performance record on 9 October 2015 to say that she did not carry out a task correctly. The Complainant submitted a detailed report in relation to victimisation and harassment by Mr. B on 12 October 2015.

On 5 November 2015, the Complainant raised an issue about a male colleague’s invasion of her privacy by viewing her personal mobile phone.

On 9 November 2015, Mr. D meets with Mr. B who says that he does not want any punitive action against the Complainant for her not taking an instruction. However, it was his expectation that the Complainant will take direction from him in future.

On 10 December 2015, Mr. D sent an email to the Complainant, further to her query regarding her placement on the seniority list for annual leave for 2016. He confirmed that the Complainant would be on the full-time permanent Roster 1 as this is where she had been since earlier the previous summer.

On 23 February 2016, the Complainant noticed that her name was not in numerical order on Roster 1 for annual leave. She said on 23 February 2016, Mr. A confirmed to the Complainant that as far as he was concerned, seniority determined your placement on the annual leave list. On 2 March 2016, Ms. X issued an email to the Supervisors in relation to the annual leave list. On 8 March 2016, the Complainant sent an email to Mr. A and Mr. D, indicating her opposition to the removal of her seniority on the annual leave list. On 9 March 2016 Ms. X sent a further reminder email to the supervisors in relation to the annual leave list. On 11 March 2016, Ms. X sent a third email to the supervisors requesting a response regarding the annual leave list.

On 22 March 2016, the Complainant sent an email to Mr. D urgently seeking a meeting in relation to the shadowing line and her seniority position for annual leave purposes. On 1 April 2016, Mr. D sends an email to Ms. F in HR, confirming a meeting on 1 April 2016 with the Complainant regarding a move to a different line to cover maternity leave and that the change will come into effect on the 24 April 2016.

In or around the beginning of April 2016, Mr. D confirmed to the Complainant at a meeting that there was never anything in writing regarding an alleged ‘custom and practice’ in relation to placement on the annual leave list, and that the annual leave roster was devised solely by one of the supervisors, Mr. E. On 4 April 2016, the Complainant sent an email to Mr. D confirming an agreement made at a meeting on 1 April 2016 that she shadows a work colleague on the full-time permanent Roster 1 from 24 April until she returns from maternity leave.

On 4 April 2016, Mr. D sent an email to the Complainant confirming that when the Complainant finished maternity cover, that she would go back to the ‘mirror line solution’ if there was no long-term sick leave or maternity line available to cover. On 4 April 2016, the Complainant sent an email to Mr. A complaining about the manner in which the full-time, permanent Roster 1 was allocated without being advertised internally or externally or interviews held. A formal grievance was lodged with Ms. G in HR on 11 April 2016 and on the following day Ms. G sent an email to the Complainant asking whether she had received a response from the supervisors, or whether she is unhappy with their response.

On 13 April 2016, Mr. D sent an email to the Complainant following up on her response to the notes of the meetings and says that her seniority for annual leave will be on the full-time Roster 1 as this is where she had been since early the previous summer.

On 22 April 2016, the Complainant sent an email to Mr. A chasing up on her formal grievance. He replied by acknowledging that her grievance was issued more than 15 working days previously but that he had been on holidays and had a backlog. On 16 May 2016, the Complainant sent an email to Ms. G indicating that she is under an enormous amount of stress because she is on call on a consistently changing line, and not being given the same opportunities as her colleagues.

On 7 June 2016, another member of staff viewed the Complainant’s personal mobile phone, without consent. On 10 June 2016, the Complainant sent an email to Ms. H referring to the fact that she had just heard that a decision had been made in relation to the annual leave seniority issue, despite the fact that she had heard nothing in three weeks and that the grievance was going on for over 14 weeks.

Mr. I replaced Mr. A and on 21 June 2016, and he informed the Complainant that she has lost her seniority, due to ‘custom and practice’. On the same day the Complainant sent an email to Ms. H, HR manager, confirming that she wanted to appeal Mr. I’s decision. She also sent an email to Mr. I, seeking a written decision on the matter of her seniority and confirming that she will be appealing that decision. On 22 June 2016, the Complainant commenced sick leave.

On 11 July 2016, Ms. H sent an email to the Complainant seeking a meeting for 13 July 2016, and she is told at that meeting that Mr. I changed his decision on her seniority for annual leave and wanted to meet the Complainant to discuss other options. She said that following a discussion Mr. I indicated that he would consider her proposal and would revert back to her shortly.

However, on 2 August 2016, Mr. I issued a response rejecting the grievance issued by the Complainant and said a decision confirming that the Complainant's roster position was regularised and that the ‘mirror line’ mechanism was no longer in place and confirming that she would transition to the reduced-hours roster. She said that he indicated to her that on the transition to the reduced hours Roster, her seniority for annual leave will be based on the seniority of her staff number. She said that this is a clear contradiction of the Respondent’s position, in these proceedings, which is that seniority is dictated by length of service, and in the event of a tie, by staff number.

On 5 August 2016, the Complainant sent an email to Ms. H, seeking an apology in relation to the interference with her mobile phone. She also referred to the snapchat incident with Colleague A and requested that this be dealt with under the “social networking policy” as a disciplinary matter. On 8 August 2016, the Complainant sent a detailed email to Mr. I, clarifying that the recent meeting between them was not an appeal under the grievance procedure. The Complainant goes onto say that she contacted Ms. H in HR as her immediate supervisors appeared “unable or unwilling to deal with the issue at hand”. She referred to a meeting she had with Mr. I on 21 June 2016, where he had already made up his mind and how Mr. I had reviewed his decision and wanted more time to discuss it.

On 8 August 2016, Mr. I sent an email to the Complainant, in relation to her clarification of a recent meeting not being an appeal meeting and indicated to her that he would review her email and revert in due course. On 12 August 2016, Mr. I sent an email to the Complainant, confirming that he had no sight of the mirror line agreement made in March 2014 with Mr. A, prior to issuing his decision on 2 August 2016. The Complainant said that it is clear that Mr. I failed to make proper enquiries, in relation to the nature of the grievance prior to making his decision on 2 August 2016.

On 17 August 2016, the Complainant sent an email to Mr. I referring to the previous agreement reached on 1 April 2014 by Mr. A and the non-implementation of same; to which he said that he would review and revert back to her shortly.

On 19 August 2016, the Complainant sent an email to Ms. H separating out the two appeals, firstly in relation to the change to her annual leave line in breach of an agreement in March 2014 and secondly, the interpretation by Mr. I of the criteria used to determine the 2016 annual leave rota.

On 19 August 2016, Ms. H spoke with the Complainant informing her that the offender in relation to her viewing her mobile phone was prepared to apologise on her return to work. The Complainant said an internal note produced and relied on by Ms. H stated that the Complainant had agreed to defer any further issues regarding the snapchat incident until she returned to work. The Complainant said that was not the case.

On 24 August 2016, Mr. J, senior manager, wrote to the Complainant inviting her to a final grievance appeal meeting on 31 August 2016. In her reply of 5 September 2016 to him, she referred to the appeal hearing on 30 August 2016 and, in particular, the agreement which was reached in March 2014 with Mr. A.

On 7 September 2016, Mr. J wrote to the Complainant with respect to her final grievance appeal, which was held on 31 August 2016. He referred to the fact that the prioritisation of leave allocation is subject to custom and practice, reflecting local agreements which are not documented.

On 14 September 2016, Ms. H sent an email to the Complainant, confirming that there are no internal options available to her in relation to appealing the final determination regarding the annual leave. On 23 December 2016, the Complainant’s solicitor issued a letter to Ms. H referring to gender discrimination in relation to the annual leave line, inspection of the Complainant’s mobile phone, and the snapchat issue, together with victimisation.

On 16 January 2017, Ms. H issued a response to the warning letter denying discrimination on the basis of gender and referring to custom and practice with respect to the annual leave. The Complainant noted that Ms. H also says that she had closed out the issue regarding the inspection of her mobile phone and alleged that the Complainant was happy with the result.

On 15 February 2017, Ms. H issued a letter indicating that the Complainant had not been available in work to receive an apology in relation to the mobile phone issue.

On 2 May 2017, a complaint form was lodged with the Workplace Relations Commission alleging gender discrimination, victimisation and harassment.

The Complainant submitted that she had been discriminated on the basis of gender relating to her placement on Roster 1 for annual leave purposes. The Complainant and Ms. X gave evidence to the effect that when they were moved to Roster 2, they appeared at the top of that list, notwithstanding, the evidence of Mr. D and Mr. E, to the effect that seniority is dictated at the time that one joins a roster and despite this being the Respondent’s position as regards the custom and practice. The Complainant said she was regularly moved between the two rosters, and on each occasion ended up on top of the annual leave Roster 2, which is in clear contradiction to the stated custom and practice that seniority is dictated from the time that one joins a roster. She said that the additional part-time Roster 2 and the associated annual leave seniority list were only in existence for 2 years at the time that the Complainant’s issues arose. She said that the period of time was clearly insufficient for there to be in existence, an established custom and practice in relation to positioning on that particular roster.

The Complainant said that the test for custom and practice, was formulated in the case of O’Reilly – v – Irish Press [1937 71 I.L.T.R.194], wherein Mr. Justice Maguire expressed that the practice must be “……..so notorious, well known and acquiesced in that in the absence of agreement in writing it is to be taken as one of implied terms of the Contract between the Parties……..it is necessary in order to establish a custom of the kind claimed that it was so generally known that anyone concerned that should have known of it or could easily become aware of it”. The Complainant said that Mr. D had stated in evidence that if all staff were asked what the custom and practice was in relation to the seniority for annual leave, they would all give a different answer. She said that this admission clearly established that the Respondent failed to meet the requirements as set out in the Irish Press decision as to what constitutes custom and practice.

The Complainant submitted that the Respondent has failed to establish that a clearly defined custom and practice was in existence in relation to the allocation of annual leave, or indeed, the definition as to when one joins a particular roster. She said that the evidence of the Respondent is inconsistent here, in particular between Mr. D’s view that the Complainant joined the permanent Roster 1 in 2014, and Mr. E’s view that the Complainant joined Roster 1 in July 2015 when she took up her maternity cover.

The Complainant claims that the discrimination continued unabated, on the basis that the four male members of staff with less service remained ahead of the Complainant on the annual leave roster, and in that regard, the discrimination is continued.

The Complainant also submits that she has been victimised as a result of bringing the complaint as regards gender discrimination.

The Complainant has been a victim of harassment in the workplace and said harassment has not been dealt with adequately by her employer, both in relation to the interference with her mobile phone and the ‘snapchat’ incidents.

In support of her case the Complainant referred me to the Labour Court decision EDA 1017 in relation to the protection against victimisation, and also the Labour Court in determination EDA 1718 regarding a male getting more full-time roster hours ahead of a female worker with more experience. Where it was found that the Respondent failed to provide a non-discriminatory reason for her treatment.

The Complainant said that her complaint is clearly that the four males had been placed ahead of her, on the seniority list for annual leave despite having over two years’ less service. She said that this case is not a matter of what Mr. E’s intentions were, the practice is discriminatory.

The Complainant said she has established a prima facie case of discrimination on the basis of gender and it is a matter for the Respondent to establish that the practice is not discriminatory.

The following is a summary of the Respondent’s submission.

Preliminary issues

The Respondent said that the case is out of time as the Complainant did not file a complaint with the Workplace Relations Commission within 6 months of the discriminatory action. The complaint was made on 2 May 2017 and therefore only events which occurred on or after 3 November 2016 are within time. It said the Complainants case relates to matters in 2013 – as to her terms of contract, 2014 – in relation to performance review, and 2015 – supervisor reprimand on her performance. The Respondent said that all these are not related to the centre grievance of her position on Roster 1 for annual leave purposes.

The Respondent said that the Complainant’s central case of discrimination was the effects of her positioning on Roster 1 for annual leave which became known to her in and around February 2016. No complaint was filed with the WRC within 6 months from that date. The Complainant had subsequently gone out on sick leave since 22 June 2016 and had not returned to the workplace at the time she submitted her complaint or indeed at the time of the hearing. The Respondent said that no further events occurred after June 2016.

The Substantive matter

Matters agreed between the Complainant and the Respondent

The following four items are agreed between the Complainant and the Respondent

1. That there was a mirror line put in place in April 2014 whereby it was agreed that the Complainant would mirror the working hours of another person on Roster 1.

2. That the Snapchat issue arose and that the Phrase “they won’t even sit with us now” was captioned on the Snapchat.

3. That the Complainant was appointed to maternity leave on Roster 1, in July 2015. Her seniority was unaffected at this time and this changed in February 2016.

4. That the Complainant became aware that she was on the bottom of the annual leave list in February 2016 for Roster 1.

The Respondent said that it refused to accept that it discriminated against the Complainant on the grounds of gender under the terms and conditions of employment contrary to the Employment Equality Acts, 1998; in particular, where she was placed on Roster 1 for annual leave purposes as compared to four male members of staff.   The Respondent also disputes the claims that she was victimised and unlawfully discriminated against by virtue of harassment.

The Respondent said that for the functioning of its operation it is required to have an equal number of males and females rostered to perform its functions in security; following discussions with the Trade Union internal restructuring and reorganising which took place in 2014 to create two rosters. Roster 1 for staff with predefined hours (for full time hours) and Roster 2 for staff with variable hours. The Respondent said it does not accept that she was on Roster 1. The new rostering arrangement came into play in 2014. There were at the time a number of vacant places on Roster 1 which were filled by moving some staff placed on Roster 2, the variable hours roster. The selection of the staff from Roster 2 was done in order of how they had scored in a performance skills rating score. The Complainant and her colleague Ms. X were not selected for Roster 1 and remained on Roster 2 because of that evaluation.

The Respondent said that subsequently following changes to the Complainant’s working hours – to a full-time job-sharing position – she moved to Roster 1 in 2015 and on moving to Roster 1 she has a seniority date relating to that time in question.

The Respondent states that the list of staff for seniority for annual leave purposes, which is the crux of the Complainant’s claim, is determined according to which roster a staff member is on, and the position on that roster is determined as from the date when the staff member joined that roster. The Respondents said that this is the understanding of the practice and custom that is in place within the Respondent and applies to everyone.

The Respondent presented in evidence one of its supervisors, Mr. E, and he gave evidence on behalf of the Respondent on this issue. Mr. E is the supervisor with responsibility for drawing up and managing the annual leave arrangements and the rostering rota. Mr. E said that it is his view and from his experience in the Respondent that when a staff member joins a roster it is on that date that the staff member joins the seniority list for the purpose of annual leave and goes to the bottom of the seniority list. He said that if two or more people join the roster at the same time the person with the lowest staff number, which is awarded on the date of commencement in the Respondent, takes the higher position. He said that in most rosters that staff numbers are largely in sequence but then there are people with staff numbers out of sequence because of the date they joined that particular roster. Mr. E said that if a staff member leaves permanently from the organisation but comes back, they hold on to their staff number, but they go to the bottom on the list for the purpose of seniority for annual leave. In such instances the staff number will be out of sequence. He said if a member of staff leaves the roster to go on a trial elsewhere in the organisation or on secondment that on their time of return back to the roster, they are not punished for exploring that option and they are reinstated back on the list for annual leave purposes at the point they were at just prior to leaving.

Mr. E said that as he is the person that looks after the arrangements for annual leave and he applied this practice, as it was the practice that applied to him personally in his career within the Respondent previously and applied to him when he was appointed to the supervisor’ role. He said that there are a number of staff members in the supervisory grade who have longer service than him but have been placed behind him on the annual leave list because he joined the supervisory roster before those individuals.

The Respondent said that looking at the seniority list for annual leave on Roster 1, there are five people who are ahead of the Complainant and Ms. X. Four of these are male and one is female, but all five have staff numbers which are higher than the Complainant’s staff number and therefore would suggest that they joined the Respondent after the Complainant. The Respondent said that the female staff member ahead of the Complainant did join the organisation on the same day. However, as she joined Roster 1 prior to the Complainant she and the four men are ahead of the Complainant and it has remained consistent.

Mr. E gave evidence of two staff members on the list who are out of number sequence and explained how they arrived on the list, one of which left the organisation completely and returned and another left the Roster 1 for a trial but returned. Mr. E said that his application of the rules was not discriminatorily motivated. Mr. E said that he applied the rules to the Complainant and Ms. X on the same basis. Mr. E also said that when the Complainant joined Roster 1 for maternity leave cover, she moved to the bottom of the seniority list for annual leave purpose and when she moved back to Roster 2 when she finished covering for maternity leave, she slotted back to her position on the list which she held previously.

The Respondent acknowledged that the Complainant challenged that decision through the internal grievance’s procedures, where there was a substantial number of meetings, oral and written exchanges throughout. However, never during these exchanges was gender discrimination ever raised. The Respondent said that there were staff changes in and around that time and a new decision maker Mr. I stepped in to replace Mr. A and he made attempts to explore a solution.

The Respondent admitted that the custom and practice in relation to how the rosters were organised for seniority for annual leave was not written down, but Mr. E said the practice was as he applied it.

The Respondent said that the Complainant has cited the standard legal test for custom and practice as established in O’Reilly v Irish Press [1937] 71 ILTR 194 and said that test is not proper here as it relates to an Industrial Relations case.

The Respondent said that it applied the custom and practice there was no major ground swell of opinion saying it was from form the Trade Union on the ground that the practice was wrong or requiring change.

The Respondent presented Ms. H, the Respondent’s HR manager at the time and her evidence was that there were discussions throughout July and August 2016 with the Complainant with regard to the ongoing grievance on the rosters and seniority for annual leave issues, the mobile phone issue and the snap chat issue. It was her understanding at first that the Complainant was to go away and see how she wanted to proceed. She felt that following that the Complainant wanted to deal with the latter two issues informally. The Respondent said that the Complainant’s grievances in relation to a work colleague looking at her phone have been informally sorted. The Respondent said that the grievances were resolved back in 2016 following much communications and meetings on the matter and where it was agreed that final apologies were to be delivered face-to-face by the accused on the Complainant’s return to work. The Respondent said that the Complainant has not returned to work in that time and therefore the apology cannot be delivered.

In relation to the snap chat issue, that issue was a lot more fraught, however, it was Ms. H’s understanding that this too was to be held aside until the Complainant returned to work. Ms. H referred to correspondence exchanges between the parties at the end of September and October when it would appear that the Complainant was returning to work. Ms. H said that she was checking in on the Complainant to facilitate that return and seeing what she might need for a smooth return to work. The Respondent said that it is not a case that it failed to deal with the issue, because it had managed it, and therefore it cannot be considered as victimisation on any basis under the Employment Equality Acts.

In relation to the other claims by the Complainant that the Respondent failed to engage with the Equality Coordinator, the Respondent’s response was that there were no equality issues ever raised and therefore there was no equality issue before it for consideration and it questioned why then would it include the equality coordinator.

Preliminary Matter - Statute Barred

The Relevant Law

Section 77 of the Act, as amended, provides inter alia the following:

“(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5) (a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.

(6A) For the purposes of this section-

discrimination or victimisation occurs-

if the act constituting it extends over a period, at the end of the period.

if it arises by virtue of a term in a contract, throughout the duration of the contract, and

if it arises by virtue of a provision which operates over a period, throughout the period,

a deliberate omission by a person to do something occurs when the person decides not to do it, and

a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either-

does an act inconsistent with doing it, or

the period expires during which the respondent might reasonably have been expected to do it.”

The Respondent claims that the Complainant’s case is out of time. The complaint was filed with the Workplace Relations Commission on 2 May 2017 and therefore only the events that occurred on or before 3 November 2016 are within the time limit and as no event occurred within that time the whole claim is statute barred.

The Complainant claims that the case is within the time limits, the primary claim relates to the ongoing scenario of the Complainant’s placement on the Roster for annual leave purposes and one of the other issues relied upon, the ‘snap chat issue’ is not resolved and is subject to a formal external investigation.

Having considered the parties evidence and arguments in relation to the preliminary matter raised, I have reviewed with interest the relevant authorities in this area and I have decided that the complaints are properly before me and are not statute barred. The reasons being as follows, the alleged events that the Complainant raised are the basis of a list of events that indeed stretch into the past, some of which go back to 2012 and could in their own right be construed as stand-alone incidents and therefore are long outside of the permittable time limit. However, the Complainant has argued that the case as a whole is one of discrimination on the gender ground and that derives from a practice or policy that the Respondent had established or has decided to hold that is in itself discriminatory and remains in place still today.

To support my decision on the matter I have carefully studied the cases in particular the pre-mentioned decisions in Dempsey v NUIG and in Cork VEC v Hurley, I note in the latter where it specifically deals with the question of Section 77(6)(a) where it allows for an act to be regarded as extending over a period “where an Employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has a clear and adverse effect on the complainant”. I note that the Complainant maintains that this is the case here and claims that the Respondent’s practice/policy for placement on the list for annual leave purposes is discriminatory and I am satisfied accordingly, that the continuum has been established to allow me jurisdiction to examine the case.

The Substantive matter

For ease of reference for my own records I have reviewed the evidence in the order that it was presented to me in the submissions from the Complainant so that it can be followed in sequence as follows.

Discrimination

The Relevant Law

Section 6 of the Employment Equality Acts 1998 -2015, states as follows:

“6.-(1) For the purposes of this Act and without prejudice to its provision relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as ‘the discriminatory grounds’), which -    

exists,

existed but no longer exists,

may exist in the future, or

is imputed to the person concerned,

a person who is associated with another person –

is treated, by virtue of that association, less favourable than a person who is not so associated is, has been or would be treated in a comparable situation, and

similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are-

that one is a woman and the other is a man (in this Act referred as “the gender ground”) …

(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

Indirect discrimination on the gender ground

Section 22 of the Act, as amended, provides as follows:

“22. -(1) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

The issue that I have to determine here under both direct and indirect discrimination, which I will do in turn below, relates to the placement of the Complainant on the work roster and the effect of that placement on her entitlement for annual leave purposes. The staff higher up the list get preference on selecting annual leave. I have to determine whether it was a discriminatory act and if the seniority policy for annual leave ipso facto is a discriminatory policy.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If s/he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.  

In the case of Melbury Developments v Arturs Valpetters [EDA0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other either is a man". Accordingly, the issue for decision in this case is whether the Complainant was discriminated against by the Respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

Direct discrimination

From the evidence adduced much of the core issue appears to stem back to the re-organisation of the rosters in 2014. The Complainant is adamant that Mr. A at the time was aware of the predicament he had created in that re-organisation and he had reassured the Complainant and Ms. X that they would be accommodated and would not lose out. The mirror line or shadowing line solution was set up to correct that imbalance, and where the Complainant and Ms. X’s annual leave seniority would be dictated from the top of Roster 2 (the part time roster). I am satisfied that the Complainant recognised that the crux of this issue lay with the re-organisation of the rosters, but I am satisfied that she does not claim discrimination on the re-organising of the rosters by Mr. A but instead on realising of her placement on Roster 1 on annual leave entitlement which created a disadvantage for her.

I also take note that again the Complainant failed to hold any grave issue with moving on to Roster 1 sometime later, again on the premise that as long as her terms and conditions were not adversely affected. The Complainant has articulated what she perceives as less favourable treatment, namely that because of her placement on the annual leave list she is the last one to nominate her block of annual leave each year and effectively must wait until everyone else on the roster chooses their preference for holidays before her. She explained that had she been placed higher up the panel, as she suggests she should be placed, she would have better options opened to her; namely, if she was placed ahead of four male colleagues who have less service than she has.

The Complainant’s evidence is that the Respondent’s claim to rely on custom and practice for the methodology for her placement on the list for annual leave purposes has not been established and she cites the decision in O’Reilly v Irish Press, where the test for determining custom and practice is set out. She points to what she claims are inaccuracies in the Respondent’s evidence that there is a lack of transparency here and her appeal of her grievance.

I note the Respondent’s evidence where it relies on the re-organisation of the roster as a necessity at the time, the Complainant and Ms. X were proper to the Roster 2 but accept that Mr. A had an arrangement in place to facilitate the two workers until a permanent solution on the permanent Roster 1 came about through natural means. As noted above the crux of this case is when the Complainant and her colleague Ms. X had moved to Roster 1 and the consequences of the move was not apparent until February 2016 when they realised that their names were not in (staff) numerical order on the list for annual leave purposes. The Respondent has said that grievances were raised and representations were made but as far it was concerned the determining factor for placement on the list for annual leave was firstly the date the staff member “joined that roster” and in the event of the same date assignment of two or more staff, the staff number sequence order.

The Respondent presented Mr. E at the hearing, who’s role was to manage the annual leave requirements and determine the definite list of seniority. It was his evidence that the practice that he followed for assignment on the annual leave list was, as far as he was aware, the custom and practice that existed and that had been applied to him in his own career and within his understanding and experience was how he applied the rules to the roster he had prepared. It was in effect the custom and practice for seniority as he knew it.

I note that the Complainant and her colleague Ms. X, went to great levels to demonstrate their objection to the practice applied. A grievance followed, and they were less than satisfied with the outcome. I note that the Complainant in her presentation of her grievance demonstrated where she had felt she should be positioned on the annual leave list and noted the 5 co-workers ahead of her – one female and four male – that she felt should be behind her on the annual leave list.

I do note that at this point in time the central issue raised by the Complainant was not a suggestion of gender discrimination but rather akin to an industrial relations nature. I accept the Complainant is entitled to present her grievance as she sees fit. However, it is a point I noted. I also note that the Complainant could accept that the female placed ahead of her on the list was entitled to be there and she gave her reason as this worker joined the Respondent the same day as she and Ms. X and she has no issue. However, I note that her staff number is in effect after the Complainant’s staff number and she has also been placed on the annual list ahead of the Complainant. That cannot be discounted.

The Complainant has said that the Respondent’s lack of demonstrating a custom and practice for determining placement on the list for seniority - the high court test in O’Reilly v Irish Press – suggests that there was none. I note the very unsatisfactory grievance process carried out by the Respondent, where a decision and recommendation seemed to have been delivered and then held back with the suggestion that more time for investigating into the process was needed, and then the confusion whether the decision had been delivered at all and whether a further appeal should lie. This is a matter where I can only suggest that the Respondent is trying to unravel a mess, that goes back to the re-organisation of the roster in the first place and with possibly all good intentions poor decisions resulted. The Workplace Relations Commission and the Labour Court have often been critical of situations where there are poor processes in place or where Respondent’s fail to follow their own processes and where a lack of transparency is found. I too have to be critical here as the lack of certainty from the Respondent has not helped to unravel a complex situation. However, I am clear that this in its own right does not establish a prima facie case of discrimination.

On the facts of this case I have to determine whether a prima facie case has been established and if so, has the rebuttal been sufficient. Applying the test in Melbury above I am satisfied that the Complainant has demonstrated sufficient facts that she was placed lower down the seniority list for annual leave purposes. Both her and Ms. X evidence was that when this was been worked through at the time, a Trade Union representative said that he would have “four males on his back” if both the Complainant and Ms. X were successful on the grievance and/or appeal. It was inevitable that someone would lose out. I note that the Complainant has also gone to some lengths to highlight the composition of the work environment at the time, it was heavily male orientated, all the supervisors were male, all management were male, and all trade union representatives were male. I am satisfied that she has established a prima facie case of discrimination.

I note that the Complainant has challenged the Respondent’s claim that there was in place a custom and practice in relation to the placement on the seniority for annual leave. There is no written policy, I am satisfied with that, and I now have to look at the Respondent’s claim that a policy was in place and it was on the basis of this policy and discrimination that the Complainant and her Colleague were placed on the list. Prior to that I believe I need to address the structure of the two rosters. I understand that the Complainant and Ms. X were in the reckoning for Roster 1 when the re-organising of the rosters was first carried out. The Complainant and Ms. X lost out as the Respondent decided to use a score of a test that all staff are graded on. They lost out to females and not males and they remained on Roster 2 accordingly, with a shadowing line arrangement. The Complainant claims that the re-organisation did not mean that she left Roster 1, the shadowing line arrangement kept her in association with that roster. However, it is clear that she was placed on Roster 2 for annual leave purposes and that is where she is listed. Determining whether she remained on Roster 1 on re-organising is critical to the case, because if she is entitled to remain on Roster 1 then on the basis of the Respondent own methodology, she joined the roster ahead of the 4 males and 1 female. Notwithstanding the said agreement with Mr. A, it is clear that the Complainant wrongly or rightly was placed on Roster 2. The mirror line gave her comfort. However, its purposes for the determining what roster the Complainant was on for annual leave does not help the Complainant’s case.

The custom and practice that the Respondent relies on, or more specifically what Mr. E has used to determine his decision, has been challenged by the Complainant on the basis that the two rosters were only in existence for two years and the reliability of an unwritten custom and practice been developed in that time frame is far-fetched. I would agree with the Complainant that the custom and practice relied upon was for those rosters only. However, I have been presented with evidence from Mr. E, that the custom and practice relied upon is not just limited to Rosters 1 and 2. He said it is the custom and practice used in at least all the other areas he has worked in within the Respondent and was used to determine his positioning on his specific roster. I also note the other examples cited, which demonstrate that there is some thought put into the methodology rather than a simple casual rule when the terms suit. I note that Mr. E was tasked with the role of devising the list rather than a wider group of people which might have variant views on how the rule should apply. I have not been presented with evidence to support that a different practice was applied in the Respondent. I note that the Complainant’s career with the Respondent was confined to these rosters and this might restrict her knowledge of practices elsewhere.

In relation to direct discrimination the essence that the Complainant has to demonstrate is that she received less favourable treatment and that was because of her gender. I am satisfied that in applying the rule Mr. E applied in relation to the Complainant, she in effect moved five places down the seniority list for annual leave purposes, and that she determines seniority should have applied. As I have mentioned above it is clear that the Complainant was worse off than five other staff members that she claims received more favourable treatment than her. Those are her comparators and no matter what the Complainant has said about the other female that has a staff number after her and she has no issue with, this female was treated more favourably than the Complainant too and therefore it has to be said that her comparators are a mixture of both male and female. Therefore, the decision cannot be said to be based solely on gender.

The Complainant and Ms. X gave evidence that a Trade Union Representative had raised a comment about the “4 males would be on his back”. I cannot attribute those comments to the Respondent, the Trade Union is a staff body supporting the rights of the employees and not defending the position of the Respondent.

For all the foregoing, I find that on the balance of probabilities that the Respondent has successfully rebutted the inference of direct discrimination on the ground of gender.

Indirect discrimination

The Complainant has advanced a claim that she was indirectly discriminated against by the Respondent’s practice by placing her at the bottom of the seniority list for annual leave.

Indirect discrimination arises where an apparently neutral provision criterion or practice puts persons having a protected characteristic, in this case gender, at a particular disadvantage. In Stokes v Christian Brothers High School Clonmel [2015] IESC 13, the Supreme Court per Clarke J, as he then was, at par 9.2, referred to the meaning to be ascribed to the term “particular” as used in this context. He held as follows: - “I am satisfied that the use of the term "particular" brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable.”

The practice that the Complainant said giving rise to the particular disadvantage contended for in this case is the placement of her on the annual leave list below her colleagues, who have less seniority in the Respondent than she does. This practice, the Respondent claims, is done on the basis of when a staff member joins a roster. They are from that date entered on the list for annual leave and it is not based on their overall service with the Respondent. In advancing that argument the Respondent cites a number of examples when co-workers left the roster on a temporary measure and on a permanent measure and what happened to their seniority respectively on their return. The claim to indirect discrimination would normally involve identifying a pool of people (the disadvantaged group) who because of this practice would fare worse off than a comparison group (the advantaged group) and those who do not (the disadvantaged group) and comparing the number in each category by reference to the protected characteristic in issue, in this case gender. If, in the context of the instant case, the advantaged group comprised significantly more male staff members that those in the disadvantaged group there is prima facie discrimination and the Respondent must objectively justify the practice that gives rise to the disadvantage. This approach was also adopted by the Labour Court in PSEU v Minister for Finance and CPSU EDA072. It has been held by the UK Court of Appeal in Grundy v British Airways PLC [2008] IRLR 74, that the correct principle is that the pool must be one which suitably tests the particular discrimination complained of, but that is not the same thing as the proposition that there is always a single suitable pool for every case.

Applying those general principles to the facts of the instant case, it appears that this case has not been made out and I cannot determine how it could be made out from the facts of the case.

It is well settled that the test for establishing if the probative burden shifts to the Respondent in a case involving discrimination is that formulated by this Court in Southern Health Board v Mitchell [2001] ELR 201. I also take note of the decision in Stokes v Christian Brothers School Clonmel, Clarke J, as he then was, pointed out, at par 10.10 that the onus of establishing particular disadvantage rests on the person claiming indirect discrimination.

I find that the application of the Respondent’s practice of assigning staff to a roster for the purpose of annual leave on the basis of when they join that roster is not determined by gender, it is solely determined on the date of joining the roster. I am satisfied that it has no bearing on gender.

I am satisfied that the Complainant has failed to make out a prima facie case of indirect discrimination. Accordingly, I cannot find in favour of the Complainant and the claim cannot succeed.

Victimisation

The next element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to the Acts. Section 74 (2) of the Act, as amended, provides as follows:

The relevant law,

“(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

[…]

(f) an employee having opposed by lawful means an act that is unlawful under this Act….

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In the case of Tom Barrett -v- Department of Defence EDA 1017 the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant. In the instant case, I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.

The Complainant has claimed that she was subjected to victimisation by the Respondent in relation to an incident that occurred in or around 9 October 2015 “mobile phone issue” and 5 August 2016 “social media issue” during which she contends that Respondent failed to conduct an enquiry under the appropriate policy or deal sufficiently with her complaint. I note that both of these events predate the complaint referral to the WRC on 2 May 2017, where without doubt the Complainant officially lodged a complaint about gender discrimination in her work place. Therefore, the protected acts relied upon occurred well in advance to the case been referred to the WRC.

The other notable date where it can be said that the Complainant had raised a concern about gender discrimination in the work place with the possibility of making a formal complaint against such matters is 23 December 2016, where her solicitor wrote to the Respondent and raises a concern. From my reading of the evidence here, the Complainant’s case is very much centred around the Respondent’s incorrect application of a policy for seniority on a roster heretofore. The Complainant has said that it was obvious that it was a matter of gender discrimination, that 4 males were placed ahead of her. However, I am satisfied on hearing all the evidence that there was no discussion about gender discrimination in the workplace before this. There is no suggestion prior to 23 December 2016 that the Respondent was on notice of a claim for gender discrimination.

I am mindful that work environments have evolved so when precise terms or references to bullying, harassment, discrimination and victimisation are used, parties tend to sit up and take notice. There is a more careful analysis of the way employers and employees react. A more formal obligation to document events and decisions. From the evidence I see a more systematic approach from the Respondent from when the Complainant’s solicitor came on board on 23 December 2016, prior to that I am satisfied that any reference to a protective act was not raised heretofore.

I accept that the issue at the crux of this case and possible solution was a scrappy situation and it was always going to be difficult to resolve it to everyone’s complete satisfaction. I am satisfied that an approach was taken in how to handle this situation and as far as the Respondent was concerned it had found a possible solution. I note that the Complainant is far less satisfied that the matters are near resolved. However, I am satisfied that the matters do not fall within Section 74(2) and satisfy the test set out in Barrett -v- Department of Defence, the instances of victimisation well predate the protected act and the modus operandi for dealing with these issues were in train well in advance of the mention of gender discrimination. Therefore, on the balance of probability, I do not find that it can be tantamount to victimisation as it fails to meet the test set out in Barrett -v- Department of Defence.

Accordingly, I find that the Complainant has failed to establish facts from which it may be inferred that he was subjected to victimisation contrary to Section 74(2) of the Acts.

Harassment

Harassment is defined in Section 14A(7) of the Acts which states: “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. 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” (my emphasis added).

Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground(s). It is well accepted that the Employment Equality Acts do not apply to   generalised bullying or harassment, when there is no link to the discriminatory grounds. This was made clear in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (S.I. No. 208 of 2012) which came into force on 31 May, 2012.

Therefore, it is clear Section 14A(7)(i) of the Act defines “harassment” as any form of unwanted conduct related to any of the discriminatory grounds and 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.

As noted above, I am satisfied that the Respondent was engaged with the Complainant in relation to both the mobile phone and the snap chat incidents. I know the Respondent is of the opinion that the matters were addressed, and apologies would be forthcoming once the Complainant returns to work. I note that the Complainant had not returned to work at the time of hearing the case. I note the Complainant holds a different view. She claims that the snap chat issue was not resolved to her satisfaction and there was no agreement to wait until she returned to work to find a solution. She wants her complaint under the social media policy to be fully worked through.

From strict application of the law the Complainant must establish a prima facie case of harassment on the basis that there was unwanted conduct on any of the protected discriminatory grounds, namely in this case on the gender ground.

I am satisfied that a number of the claims mentioned above are of a historical nature and relate to two co-workers, none of which are central people in the general gender complaint against the Respondent. The Complainant does cite the Respondent’s lack of urgency to fully investigate and resolve/take appropriate action against the accused. I cannot see the correlation between the incidents noted as harassment and the gender ground. No evidence has been presented to substantiate that they qualify as unwanted conduct on any of the protected discriminatory grounds, namely on the gender ground as proved for under the Acts.

Having regard to the foregoing and the totality of the evidence adduced, I find that the Complainant has failed to establish a prima facie case in relation to her claim of harassment. Accordingly, I find in the Respondent’s favour.

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:　

(i) the Respondent has not discriminated the Complainant on grounds of gender in terms of Section 6(2) and contrary to Section 8 of those Acts.

(ii) the Respondent has not discriminated the Complainant on grounds of gender in terms of Section 22 of those Acts.

(iii) the Complainant has failed to establish a prima facie case of Victimisation in terms of Section 74(2) of the Acts.

(iv) the Complainant has failed to establish a prima facie case of Harassment contrary to Section 14A of the Employment Equality Acts.　

　Accordingly, her complaint fails.　

Employment Equality Acts – gender – Victimisation – Harassment – rosters