Complainant

Respondent

Anonymised Parties

A Trainee Recruiter

A Recruitment Agency

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-00026852-001

06/03/2019

This is a claim for discrimination on grounds of sexual orientation, Discriminatory Dismissal, Harassment, Sexual Harassment and Victimisation where the most recent act of discrimination was linked to 23 November 2018.

The claims are denied by the company, a Recruitment Agency.

I have exercised my discretion as an Adjudicator and have decided to anonymise the decision considering the sensitivity of the subject matter.

The complainant had some uncertainty on the correct legal title of the respondent. Once this was clarified by the respondent, two parallel complaints of ADJ 20308 and ADJ 20312 were withdrawn. A claim for discrimination on gender grounds was also withdrawn on the second day of hearing.

Both parties were represented at hearing, the complainant by Rachel O Flynn, BL and the Respondent by Muireann Mc Enery, IBEC. Both parties made comprehensive written submissions.

On the first day of hearing, I made a request for some picture detail of the lay out of the office space and staff handbook referred to in the submissions. I am grateful to the respondent for this submission.

Counsel for the complainant outlined the background to the case. The complainant had claimed discrimination on grounds of sexual orientation. He also claimed that he had been discriminatorily dismissed, experienced Victimisation, Harassment and Sexual Harassment during a 3-month tenure of employment as a Trainee Recruiter, 13 August 2018 to 15 November 2018. The complainant had worked full time and earned €1923.08 gross per month.

The complainant is a 29-year-old Homosexual male. He had previously worked in both the Irish and UK Naval service. He had secured valuable experience and an interest in a career in recruitment before he left to pursue a career in the private sector.

The complainant joined the Respondent Recruitment Team in August 2018 and worked until his employment was terminated in November 2018. During his time there, his role was to source suitable candidates for selection by client companies. The company relocated base during October 2018.

The Manager, Ms A had overall managerial responsibility and Ms B, the accounting Manager was also based at the office.

The office was open plan and home to 9 to 10 employees. Background noise was a frequent back drop due to phone use. The complainant noted that he was often singled out for making noise and he felt this was unwarranted.

The complainant felt that he was being held back in his work and favourable accounts did not come his way. Some of the candidates he put forward for interview were either “no shows” or overtaken by those put forward by Ms B.

The complainant found that Ms B was frequently cross towards him and sarcastic in communication with him. His desk was placed across from her desk. Ms B did not address him by name and tended to hit him with a back scratcher in a bid to get his attention.

Ms B was a practising Born Again Christian and religious pictures adorned the office. The complainant was troubled by Ms Bs statements on more than one Friday “Don’t catch anything over the weekend” and the complainant interpreted this as a reference to his sexual orientation and by association a sexually transmitted disease. These comments were unsolicited and a cause of great concern to him. Ms B also referred to certain entertainment venues as being “full of fairies and faggots “The complainant viewed this as a derogatory reference to his sexual orientation and he found it offensive.

The complainant sought to address his concerns with Ms A but was not heard. On November 13, 2018, the complainant found that he had been the topic of an email exchanged between Ms A and Ms B. He told Ms A that he was being bullied by Ms B and was troubled by her comments in respect of his sexual orientation. Ms A decided that he should work with her at another office the next day, travelled with the complainant the long distance to this office and drove him back.

Ms A introduced Ms C as an extra source of supervision for the complainant and he was pleased with this.

On 15 November 2018, the complainant worked a full day in his regular office before being requested to attend Ms as office at 4.45 pm where he was asked to clear out his desk, hand over his company property and leave the building. He was unable to decipher a reason for this approach.

While he was preparing to leave, Ms B addressed the office in saying “If we need him, we will find him on Grindr” an online dating application for gay, bisexual and transsexual persons. He was horrified.

Evidence of the Complainant:

The complainant confirmed that he had applied for the position on line. He had experience in recruitment in the public sector but not the private sector. He interviewed firstly by phone and subsequently by interview. The complainant submitted that was asked to expand on what difficulties he had faced previously? to which he answered that he had faced difficulty in coming to terms with “who I am “at a younger age.

He had not received a copy of his contract but really enjoyed his work in the first office which was small in lay out. He recalled relocating office after 4 weeks and working hard to make that happen.

The Complainant submitted that he had been excluded by his Managers for making noise. If he has a question, he was told to wait. Ms B directed the grey back scratcher at him several times. He maintained that he was the sole recipient of this behaviour His desk was in front of Ms A’s office.

The complainant did not have a recall of specific dates but recalled that once or twice he finished work for the weekend only to receive a retort from Mrs B “don’t catch anything “The complainant interpreted this as referencing his sexual activity. He felt shamed for who he was in the presence of a co-worker and cried.

When a certain pub was proposed for the Get together, he was told that it was full of “Fairies and Faggots” he interpreted this as a Homosexual man who is flamboyant. The pub was a known Gay Bar.

The complainant submitted that he had been badly treated and this caused him to decide to leave in October rather than anything to do with his competence. MS A assured him that he was “doing well and to stick at it “

He did not report Ms B as she was senior, and he believed that it would bring trouble on him.

On 13 November 2018, he asked to meet Ms A as he was not comfortable with Ms B and things had got worse. He stated that he “told her everything “inclusive of the upsetting commentary mentioned earlier. He had not mentioned a preferred procedural framework on that day.

Ms T offered to bring him to Limerick the next day. He saw it as a break and agreed to go. He found Ms T cool towards him on the journey and there was no conversation.

He told the hearing that he offered to work in Limerick and was informed that this would be discussed on his return to base.

On the 15 November, he worked a normal day before being informed at 16.45 hrs that he was losing his job and his employment was at an end. He was dismissed. He was requested to hand back keys, phone and lap top and was shocked. Ms B was in the office and said, “if we need him, we can find him on Grindr” Six employees were present for this.

He did not have a phone with which to call his parents and it was the worst he ever felt in his life and suffered extreme vomiting and a visit to hospital. He had tried to put the experience behind him. the complainant was confused as during his employment, weekly meetings, email exchange had not addressed hi performance and he had not been addressed that his probation was not working out.

He had indicated that he would probably go to work for a Government body, but he had not applied but was not 100% sure that he had told the respondent this.

During cross examination, he denied that he walked out of the job and confirmed that he had retracted his resignation submitted on 12 October 2018. He told the respondent representative this followed 2 days in the new office which was much larger than the first office

He disputed that he had behaved erratically in work. He took on Ms Bs work when she was on leave. He disputed that he had not filed an appearance on the company training log before 17 October 2018.He also disputed receiving excessive personal phone calls. He had a security job one evening a week but denied that the phone calls reflected this.

The complainant confirmed that he was on the phone with a candidate when hit by the backscratcher, he did not see it as in jest. He did not accept that Ms A had to address him on the nature of his conversations being sexually disinhibited.

He confirmed that he expected to have attained the €30,000 quarterly target had he been permitted to remain in post and rejected that he had failed to deliver in the job. He had client interviews line up during the week of his dismissal.

In response to events of November 13, the complainant denied that Ms T had asked if he wished to formalise a grievance, he said he thought they could work it out.

He confirmed that he had taken some anxiolytic medication provided by a colleague who drove him to the Pharmacy to obtain it. He had not taken medication when he started in the job and denied that he had come to the job with a psychiatric history.

The complainant confirmed that everyone spoke about their personal issues at work. He denied that he was unable to sit at a desk and reaffirmed that he did not resign through performance. He denied mentioning that he was going to work at a public body or that he had hugged Ms A and Ms B on leaving in addition to thanking everyone.

He confirmed that he found the religious pictures unsuitable in a professional setting and found them offensive as the LGBT grouping were not looked on favourably by Christian faiths.

The complainant confirmed that he had not appealed his dismissal to a higher body. He could not recall who suggested the pub for the get together party. He confirmed that he has moved office along with Ms B on 24 October. Meetings on 12 October and 13 November had lasted 30 minutes each.

The complainant confirmed that he had not been asked to sign any documentation on leaving and no notes were retained on any discourse with the respondent. He was unaware of the code of practice on sexual harassment.

The complainant confirmed that he had been commenced on psychiatric medication in October and a colleague had the same medication. He did not avail of sick leave during his employment.

The complainant submitted that there were no markings or categories on his probation report.

In conclusion, Counsel for the complainant outlined that he had raised several matters of concern two days before his employment was arbitrarily terminated. This satisfies the burden of proof required Section 85A of the Act. The complainant had been dismissed due to his sexual orientation and links to this treatment were everywhere in the employment relationship. The respondent did not have policies to protect the complainant and had not maintained a written log of his probationary period.

The complainant had also suffered sexual harassment for which the respondent had no defence as the effect of the conduct amounted to a violation of the complainant’s dignity.

Counsel concluded in seeking the remedy of compensation as re-instatement would not be a practical remedy.

The Respondent is a General Recruitment Agency covering the IT, Health and Manufacturing sectors and has 65 employees. All claims were denied.

The respondent hired the complainant as a trainee recruiter/sourcing specialist on 13 August 2018, subject to 6 months probationary period due to expire on 13 February 2019.The contract of employment was exhibited.

The respondent had an early difficulty with the complainants work performance. The respondent operated the practice of a weekly performance report every Thursday.

On 29 August 2018, Ms A familiarised the complainant with this form and requested that he compile this report at close of business every Thursday. It was to be accompanied by a status report.

The respondent met with the complainant on 12 October 2018 and determined that he had not reached any of the targets set within the first two months of his employment. At this performance review meeting the complainant was offered additional training to write better job advertisements, advised to make more phone calls to candidates and increase CV send outs to 10-15 weekly. He had been given a quarterly target for €30,000 and his result was zero.

The Complainant walked out of this meeting and followed up by his resignation later that day. Ms A met him again later that afternoon and asked him to reconsider his resignation and offered further training and support.

The complainant was requested to submit a copy of a CV he had dispatched daily. He was also requested to undertake an hour a day training on the company training module.

The respondent followed up progress some two weeks later and found that the complainant had not increased his time making calls, nor had he hit any targets. The respondent had reservations about the complainant as he was not spending time at his desk and was easily distracted. his despatched CVs were not a good match. Further training on “qualifying candidates “was requested for him on 24 October 2018.

On 12 November 2018, Ms a received a complaint from Mr A that the complainant “is being very confrontational and aggressive towards M B”

The next day, Ms A met the complainant and he explained that he was troubled by his lack of success in the job. He told her that he was unhappy  in the job and was troubled by personal issues which he was on medication to deal with. He expressed a view that he may not be suite to the job, acknowledged that he had difficulties with Ms B, but they were resolvable. He was requested to stay and press on in the job. Ms A did not get the opportunity to present the complainant with Mr As’ complaint.

The respondent heard from Ms B later that day, who expressed an unhappiness with the complainant. Ms A undertook to address the matter.

The complainant attended training with a senior consultant on 14 November and feedback was poor. She reported a disengagement, displaying pills on table and failure to take notes.

On November 14, the complainant told the respondent that an interview candidate had been in a car crash and unable to attend an interview. The candidate subsequently denied talking to the complainant.

The next day, the respondent met the complainant and he agreed that the job wasn’t working out for him. He confirmed that he had applied for his previous role on November 14 and hoped to return there.

The Complainant left by agreement and thanked Ms A for sticking with him. He hugged and thanked the staff inclusive of Ms B.

The Respondent argued that the complainant had not provided a compactor and had not provided evidence of less favourable treatment. The respondent contended that the complainant had failed to establish a causal link between any of the alleged discriminatory treatment and his sexual orientation. Margetts v Graham Anthony and Co ltd EDA 038

Victimisation:

The Respondent submitted that the complainant had not met the test for victimisation set out in section 74(2) of the Act and in the seminal Labour Court case of Barrett v Department of Defence EDA 1017.

The respondent submitted that the complainant had not identified a protected act and given that he was not dismissed, he could not satisfy the test as set down.

The Respondent drew the attention of the hearing to the Role Profile of Sourcing Specialist dated September 2018.

“To focus on sourcing top calibre candidates for a range of positions and passing these CVs to the senior consultant/account manager. The Account Manager will deal directly with the client “

The respondent disputed that Ms B was in competition for commission. Ms B was the key Accounts Manager and the complainant was charged with sourcing CVs for her.

The respondent rejected the complainant’s interpretation of the back scratcher and said that it was “used as banter, some fun “The complainant used this also with another colleague.

The respondent submitted that a calendar in the canteen had holy symbols, but the complainant had not raised any issue with this and these complaints by him should be deemed frivolous band vexatious.

The respondent made the case that the complainants mind was not on his job, he was very engaged in talking about his private life and had not raised any issues of bullying or harassment during his employment.

The complainant has not reached the obligatory burden of proof. He left his employment by agreement and his complaints should fail.

The complainant was not dismissed by the respondent.

Evidence of Ms A, Office Manager

Ms A recalled meeting the complainant at interview an found him enthusiastic and impressive. She accepted Ms B’s recommendation that he join the team. she recalled Ms B asking the complainant how he had faced difficulty in the past and the complainant gave some background from a previous job.

Ms A completed the recruitment and induction process. The complainant was set clear targets of tasks and anticipated revenue.

Ms A recalled giving the complainant feedback on his performance through a “sandwich effect “in a positive, negative, positive format. The complainant had a clear difficulty in performance and this was communicated to him via weekly meetings on 1;1 basis. Ms A contended that the complainant was fully aware of the shortcomings as she suggested extra training which was accepted by the complainant.

It came the point where a junior recruit had built a 30k target in one quarter.

Ms a recalled the first resignation of October 12. A 1:1 meeting had taken place that morning and more CVS were needed. The complainant presented as frustrated and agitated and said he was only trying to learn and was confused by Ms Bs instructions. He became “red in the face “and stormed off. He followed up by asking her to check her emails, whereupon she discovered his resignation. Ms A discussed it with her senior and asked for advice. She thought the complainant was a nice guy and decided to press on for a “few more weeks” and supplement with training. He did not raise any other issue outside operational issues. There was no sign of discomfort.

A week later another 1:1 took place where the complainant was advised to shadow Ms B for training purposes. Ms A forwarded the job specification which had been recently refreshed and circulated to all. the complainant was expected to proceed with reportage and ½ hour per week on an online platform.

The complainant was advised to spend more time at his desk, CVs were formulated, but interviews did not follow. This cause frustration. Every effort was made to bring the complainant in the direction of his set targets.

Ms A acknowledged that the company did not have a high fail rate in probation.

On 12 November 2018, Ms A received the complaint from Mr A.

On 13 November, Ms A heard from Ms B that the complainant had not covered her desk well and had not spoken well to her. she planned to meet the complainant.

She met him in the boardroom and allowed him to speak. He said he was unhappy in not making placements. He had been overtaken by a junior and was going home in tears. He had issues in his personal life and he took tablets out and placed them on the table and became “red in the face “and agitated.

Ms A tried to break things down piece by piece. The complainant said that the backscratcher had been used to poke him and that he had done this also. He confirmed that he did not want to make a complaint as it was just banter.

Ms A told the complainant that he needed to spend time at his desk as he had difficulty keeping still.

Training in Limerick was already arranged for the next day and Ms A contended that the complainant was given every chance to make a placement.

Ms A had reservations surrounding inconsistent interview attendance by a customer and resolved to address the complainant on 16 November,

She met him in the Boardroom and told him that the employment wasn’t working out and the complainant agreed. He told Ms A that he was returning to a previous role for which he had applied the night before. He hugged her and thanked her for everything and seemed relieved.

Ms A acknowledged that the complainant was upset and embarrassed but did not discuss personal issues. she had no recall of any reference to Grindr or anything negative.

The office had a nice atmosphere and was down to earth with a low turnover of staff. Ms A had cause to pick up the complainant and Mr A in the early days of his employment to address “banter “that had gone too far and asked them to stop.

Exit interview

During cross examination, Ms A confirmed that she had commenced in her post 6 months before the complainant started in April 2018.she had worked for 12 years in the first office.

She confirmed that everybody was subject to a weekly report. Ms A confirmed that while meetings had taken place with the complainant, she had not followed these up by email. All communication was verbal in 1:1 meeting. She told Counsel that she really wanted the complainant to succeed in the job.

Ms A confirmed that she had asked the complainant to stay on past his 12 October resignation as she recognised that he had potential. Her senior managers were appraised of developments but there was not a specific probation policy in existence. Ms A confirmed that she had not managed a resignation previously

Ms A offered more structure and training as she really liked the complainant, but this was not formalised in a set document.

In her recollection of the November 13 meeting, Ms A reaffirmed that the complainant was distracted and upset at being overtaken. She was nervous in his presence and did keep a look out for the door.

Ms A met with Ms B and told her not to use the backscratcher again. The office did not have a bullying and harassment policy that she was aware of.

Ms A confirmed that the complainant had travelled with her to training on November 14 had talked “the whole way there and back regarding his personal life “Ms A did not have reservations about training following November 13 as she replied that the meeting had ended up in laughing and joking and was fine.

She confirmed that the complainant had agreed that the working relationship was not working out. He told her that civilian life was not for him and he confirmed that he intended to return to the Public Body. Ms A had cause to seek the complainant out later that afternoon as he was taking personal calls in the hallway of the office. she understood that he had agreed to resign his position.

Ms A confirmed that she had asked that the complainant return his keys. He was not asked to sign a resignation form as he was going to another job. He was not upset when he left the meeting and seemed happy and relieved. She had not heard the comment about Grindr.

Summary of Ms Bs evidence.

Ms B had been a Recruitment Consultant since 2007. she recalled the complainant’s interview where he was well dressed. He had responded to an interview question on difficulties by mentioning how he had coped as a Gay Man. Ms B was impressed by his performance and identified a potential for him to work well as a recruiter.

She denied that she had said any of the comments attributed to her regarding the complainant’s sexuality.

Ms B clarified that both her role and that of the complainant were different and were not in competition. She detailed the instructions given to the complainant.

Ms B acknowledged that she became frustrated by the complainant’s lack of attention to his job but denied that she had been sarcastic. The complainant was not producing candidates to a level of offer and he was not speaking to enough candidates. Mr A, his colleagues were placing candidates well.

Ms B recalled that the complainant was puzzled by his own lack of progress.

Once the move to new office occurred, the previously cramped office was replaced by enhanced personal space and a better environment. The complainant was placed next to her as he required more training.

In addressing the issue of the back scratcher. She described it as a plastic object and she had used it to get the complainant to refrain from talking loudly about his extra-curricular security gig at work, while she had a client on the phone. She poked him and said shush. She never saw the complainant use this object, but a ball was occasionally thrown in jest.

She denied that the complainant had been singled out or ignored. Ms B advocated for him. she recalled that the complainant had a habit of walking around the desks engaged in a fair amount of frivolous chat. The concerned non-work-related issues and were instigated by the complainant.

The complainant based himself at his desk for 4 out of the allocated hours. Ms B denied bullying and harassment but did confirm that the complainant caused her frustration as he was supposed to be helping her, yet she was spending time fighting fires for him.

Ms B confirmed that she was of Christian faith and a volunteer at weekend camp. She had no issues regarding homosexuality. she stated that all sexual sin was sin in biblical terms.

She recalled on the day he left, he came out of the Boardroom with Ms A and said he was going back to the Public body and shook the guys hands. He thanked her for the training and her patience and packed up his things. He did not give the air of having been fired. he had a happy demeanour.

She understood that he was leaving for personal financial reasons, where he was going home to live. She also understood that there were legal issues following a car accident.

During cross examination, Ms B reaffirmed that she had spent time fire fighting for the complainant. she was not surprised when he resigned in October. She held a view that if he applied himself, he had potential. She had to intervene when the complainant gave mixed messages regarding client’s interviews. she was frustrated when she had to fix up that mess but did not take her frustrations out on the complainant who was consumed with personal issues.

Ms B confirmed that she became less engaged with the complainant as she chose to ignore “the piffle paffle”

Ms B denied any communication of her religious views to the complainant. She said that “she was not there to judge “and was not ashamed to be Christian.

Ms B confirmed that her religious views permitted to attend the work do at the Gay Bar, but she did not go due to a previous engagement.

She denied that she had addressed sexual innuendoes towards the complainant or that she had not called him by name during his employment. She submitted that she could not have articulated the innuendo as they were offensive. She denied any discrimination and recalled that the complainant was unhappy in his job, frustrated by his performance, lot going on personally and financial troubles. she had not ignored him. She did not complain to Mr A on November 12 and she had no knowledge of his medication regime.

Ms B just wanted to get her job done and did not wish to be lured into conversations that had nothing to do with work.

Summary of Mr A, Sourcing Specialist

Mr A commenced work on August 20, 2018.He described the complainant as a restless employee and recalled that he was making phone calls seeking work on his last day. It was his understanding that his age was going to disqualify him from the public body, but he was committed to lobbying influential people to reverse this.

He was aware that the complainant was taking anxiolytic medication as he was indiscrete on placing a bottle on the desk. On one occasion, he had run out of supply and Mr A loaned him money to cover an emergency prescription.

He recalled that the complainant had become very uncomfortable and animated in response to an email between Ms A an Ms B on 13 November.

Mr A submitted that the complainant had not informed him that he had experienced bullying, harassment or discrimination. He recalled his last working where the complainant hugged him on leaving and he was sad to see him go. He had struggled with the role and had several personal issues surrounding car crash, family and relationship issues. He had also given up cigarettes.

Mr A was made very welcome at the company but presented as overly energetic and manic at work, where he needed to calm down.

Mr a had privately identified warning signals and predicted that the complainant’s health was suffering, and he needed time off to get help.

During cross examination, Mr A confirmed that he had expressed a concern regarding how the complainant interacted with Ms B on 12 November. He could not hear words but saw a hostile encounter where the complainant’s arms were flapping.

He had not received feedback on his email of concern. He denied that he was taking the same medication as the complainant.

He recalled that once or twice the complainant demonstrated his dexterity by undertaking forward rolls and a cartwheel and he thought this was odd.

Summary of Mr B, Hiring Lead

Mr B recalled that he had spoken to the complainant at interview. He was aware that he had recently come out as gay and had a young baby.

Mr B had 13 years of experience and submitted that the respondent had done their very best to get the complainant over the line in terms of his probationary period. He confirmed that intensive efforts were made in this regard through 1;1 meetings and other verbal interactions, not committed to writing. However, he was very slow to improve. He was aware of the efforts Ms A had extended to get the complainant to continue post his resignation in October 2018.

Mr B confirmed that the company had recently increased in size and had not yet a dedicated budget for Human Resources. The company had performed well for clients. Mr B submitted that the company operated “an open-door policy “

He had an awareness that the complainant and Ms B were not getting on, but the complainant had     not formalised a complaint. He was not aware of residual issues at the end of his employment but understood that an exist interview had been conducted.

During cross examination, he confirmed that he had met the complainant just 3 or 4 times. He confirmed that procedures around Dignity at Work, Grievance procedure had not been formalised.

While he was aware of the “backscratcher “issue, the complainant had not complained, and it was presumed that Ms B and the complainant could work together. He was not aware of the broader comments raised by the complainant in his evidence to the hearing.

Counsel pursued the absence of corresponding written notes to accompany the verbal dialogues. Mr B was clear the notes existed through an exit interview conducted. This was later clarified as not having occurred.

Mr B confirmed that the complainant had not improved in his job and received payment in lieu of notice. He had not considered reaching out to the complainant after he left.

The Respondent representative concluded by reframing that the complainant had marked performance issues during his work, which the respondent had addressed with great seriousness and support. The respondent was fully aware of the complainant’s sexual orientation from the outset of his employment and he was welcomed at the company.

The complainant has misconstrued what happened as discrimination rather an active management of a probationary period. All three site witnesses confirmed this fact.

Ms B had not treated the complainant differently or less favourably than anyone else.

The employment ended by agreement on one weeks’ notice was paid.

The Hiring lead, Mr B had reaffirmed that the complainant had not raised issues during his employment, if he had they would have been addressed. It was open to the complainant to raise matters in writing. The company had had ultimately prevailed on him to stay and continue working, this was not a sign tantamount to discrimination.

Mr A had emphasised that personal issues were brought into the company by the complainant.

The complainant had not engaged in a Protected act to ground a complaint of Victimisation.

I have listened carefully to all parties in this case and I have taken account of the extensive written submissions.

This is an extended complaint of discrimination that I propose to address in accordance with how the complaint was submitted.

1. A Complaint of Discrimination on Sexual Orientation grounds in relation to:

Getting a Job

Conditions of employment, Promotion and Training

2. Victimisation

3. Failure to grant reasonable accommodation (disability) No evidence adduced

4. Discriminatory Dismissal

5. Harassment

6. Sexual Harassment

The submitted date of the last act of discrimination was amended to the last date of employment as 15 November 2018 rather than 23 November 2018.

I would like to frame these findings by referring to the introduction to a Chapter of Discrimination on the ground of Sexual Orientation in the 2012 edition of Employment Equality Law, Bolger, Bruton and Kimber

“Limited evidence is available to suggest that discrimination and harassment on grounds of an employee’s sexual orientation is common or prevalent in the workplace. However, the number of cases referred to the Equality Tribunal under the Employment Equality Acts does not correlate to this view such that a considerable level of under-reporting could be said to exist. This suggests a certain level of non-disclosure of discrimination and an unwillingness on the part of claimants who feel they have been treated less favourably on grounds of their sexual orientation to press on with litigation, perhaps out of concern for their privacy. This is particularly the case where there is a workplace which has a strong religious ethos and where that religion takes the view that homosexuality is contrary to the teachings of that religion.”

Counsel for the complainant submitted that the climate of the respondent employment was permeated and influenced by Ms Bs faith and the complainant, a homosexual was treated less favourably as a result. This was strongly opposed by the Respondent representative along with the witnesses.

For me, it is important that these complaints are investigated in full to establish:

1. Did they occur as submitted?

2 Was the complainant treated less favourably or Victimised as a result?

I would like to outline the burden of proof required in the case is that outlined in Section 85 A of the Act. If I can infer facts from which discrimination may have occurred this burden passes to the respondent.

The complainant has relied on a notional comparator.

Section 6(2)(d) prohibits discrimination on grounds of sexual orientation which is described in section 2 of the Act as:

“sexual orientation” means heterosexual, homosexual or bisexual orientation;

Section 8 (1) (a -d) prohibits discrimination in relation to conditions of employment, inclusive of training, promotion, getting a job.

Both parties accept that the complainant placed the respondent on notice pre -employment of his homosexuality. The complainant gave a context and background for this disclosure in response to an interview question. I accept that the respondent hired the complainant to a permanent contract in the full knowledge of this fact. No issue arose for the respondent regarding this, which is disputed by the complainant.

The workplace I was asked to explore had several issues of note. The company had amalgamated and had not bedded down employment policies. This has since been addressed in the format of two policies exhibited by the respondent

1 Grievance Policy

2Anti Harassment and Bullying Policy

Both parties accept that these were not live during the 3 months of the complainant’s employment, August -November 2018.

I considered the submissions on training, probation and access to employment. I am struck by a very unusual workplace where the complainants’ medications were clearly visible by several parties without intervention, where cartwheels and other exercises were remarked as demonstrated by the complainant and where Ms B recalled that 4 out of the 8 hours resulted in the complainant being away from his desk. A careful review of the job description suggested to me that this was a desk-based job.

The Complainant submitted that he was under Medical care from October 2018 onwards. His representative confirmed that this advanced to Psychiatric care. I did not have the benefit of a Medical/ Mental Health report to support this.

I considered the evidence of the complainant and Mr A and noted that they commenced around the same time, attended the same team night out at the Gay Bar and were faced with the same Induction and Training module. It is regrettable that the respondent, who is ordinarily engaged in recruitment did not adopt a proactive of recording a pathway through the probationary aspect of the contract.

I realise that strains of discrimination may be difficult for a complainant to find to submit for investigation at any time, that is the reason the burden of proof is relaxed in these cases; however, a complete absence of written records always raises concern. That is what happened in this case. I accept that the Parties engaged repeatedly, but very little paper trail if any exists. I found that to be inconsistent with the nature of the business of recruitment, where records are a key commodity.

I have taken account of how both parties worked through the first tendered resignation dated 12 October and am satisfied that both parties were committed to making the employment work.

The complainant was aggrieved early on in his employment that he was getting inconsistent instruction from Ms A and Ms B and I accept the evidence where he presented as dejected at being overtaken by Mr A in attainment of goals.

I noted that the respondent intensified the training from that point onwards and the complainant was an active participant in that training.

The complainant has asked me to infer that he was discriminated against because of his sexual orientation. I considered this very carefully and make the following findings.

I find that the complainant was welcomed to the job and I accept that he brought his partner to the Team night out early on the employment.

While I did consider the calendar dated 2019 exhibited by the respondent, who explained that the 2018 version visible during the complainant’s tenure was very similar. The calendar was termed an Irish Calendar and had a reference to Jesus in the Irish language at the very end. Apart from that it appeared to be populated with pretty landscapes of Irish Landmarks. I did not view it as determining an anti-homosexual culture or as less favourable treatment on grounds of sexual orientation.

Achbita v GS4 Solutions C-157-15 addressed the neutral blanket ban and unwritten rule that Belgian workers could not wear signs of Political / Religious beliefs and concluded that while not direct discrimination, a link to indirect discrimination could be drawn before referring it back to the National Court. I did not find written or unwritten rules on Religious beliefs in the instant case.

Perhaps more pertinent, I found that Ms A was very much in charge of the office and I did not establish any sign of less favourable treatment on grounds of sexual orientation on her behalf. I saw that she tried very hard to make the employment a success and was worried about the complainant. This was evidenced by the repeated investment in his training and 1:1 meeting and it is regrettable these were not officially logged. I have relied on evidence alone in regard.

The complainant submitted that Ms B somewhat dominated the office and the impact of her behaviour towards him caused him to feel excluded and singled which for him was discrimination.

I noted that Ms B endorsed the complainant’s appointment and her candid declaration of her exasperation towards the complainant was grounded in his lack of visibility in his role, an objective opinion, not linked to his sexual orientation. I note that she “shrunk” somewhat in the latter part of the employment given her reluctance to be drawn into non-work matters.

I noted that the complainant was accommodated with the same work equipment and opportunity for training as others. He did not apply for promotion while employed.

Ironically, I have found that it was Mr A who seemed to have a wider brimmed view of events. It was he who identified that the complainant had brought his personal issues to work and he feared for his welfare in that regard. He definitely seemed to know most about the complainant as he said he discussed these matters with him. I noted from the office plan that his desk was most proximate to that of the complainants. The complainant did not reflect this in his evidence.

On balance, I have not been able to infer facts from which I can establish that discrimination regarding training, promotion, or conditions of work linked to the complainant’s sexual orientation occurred in this case.

The complainant has not raised facts of enough significance for me to infer discrimination in this regard. His claim is not well founded.

2. Victimisation

The Complainant has submitted that he was victimised by his dismissal just 2 days after raising his concerns regarding his treatment by Ms B on November 13, 2018. The Respondent has totally rejected this by submitting that the employment ended by agreement and the complainant did not engage in a protected act from which he was adversely treated.

Section 74(2) of the Employment Equality Act addresses Victimisation

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

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

I have considered both parties responses to this claim. I am drawn to the complainant’s own evidence where he confirmed that he had not made a complaint during his employment. He gave a rationale for this.

This was echoed by the respondent who was unaware of any residual issues at the end of employment.

To satisfy a claim for Victimisation, the complainant must prove that by making a complaint which was the operative cause of the Victimisation Barrett V Dept of Defence EDA 1017, Mackerel v Monaghan County Council EDA 1213.

This case was not assisted by the lack of policies available to assist the complainant during his employment. The case came before the WRC on 6 March 2019, some four months post cessation of employment. The complainant had not raised a complaint in this intervening period.

The complainant has claimed discriminatory dismissal which I will address shortly.

For now , while I accept that the complainant sought Ms A out on November 13 ,in the absence of a note from either party , I cannot establish that he made an actual complaint , or gave notice of an intention to make a complaint where he outlined a preferred course of action to be taken by the respondent .Instead , I found that he ventilated everything he saw wrong with his employment and then appears to have qualified it with a strong commitment to believing things were going to get better . This points to a certain level of acquiescence.

In this finding, I am strengthened by his preparation for the trip to Limerick for training next day. He asked Ms A if she had any snack preferences? I accept Ms A’s evidence that the complainant was highly fluent in speech during both journeys that day. This revolved around issues in his personal life. I found it remarkable that the complainant determined that Ms A had been “cool “with him and said little on the journey. He seemed to have no memory of his own demeanour on that occasion. This caused me some concern in terms of his recollected insight into events. In this, I am guided by Mr as observations of the complainant during November 12, 13 and 15, where he contended that he was on a virtual collision course.

I was also struck that he was not certain whether he had informed his former employer of his intention to return to the public body where he previously worked. I note Mr A said that the complainant was visibly seeking work during his last day of employment. I am satisfied that he did not resign.

I must accept that the complainant was dismissed as I cannot accept that he took his own dismissal or that some agreement sprung into being. I take the complainants evidence over that of the respondent in that regard

. I noted that he was compiling his weekly report just before the 15 November engagement. This did not demonstrate an intention to resign.

In addition, the fact that the respondent re-activated the October 12 resignation, by then operationally retracted displayed an inadequate knowledge of employment law, however I have not established that the complainant suffered adverse treatment for having made a complaint about his treatment on grounds of sexual orientation.

His dismissal arose for a different reason, that of unsuitability for the role, which should have been shared with the complainant and accompanied by a structured improvement notice rather than subject him to an arbitrary and unfair dismissal from which no notes emerged.

The complainant has not satisfied the test in Barrett, I find he was not Victimised in accordance with Section 74(2) of the Act. His claim is not well founded.

3. Reasonable Accommodation for Disability

No were advanced on this complaint and no request was made to be heard on the presence of a disability. This claim is misconceived and not well founded

4. Claim for Discriminatory Dismissal

The complainant has submitted that he was dismissed because of his sexual orientation. This was contested by the Respondent who was adamant that this was a mutual parting of ways.

I had difficulty with this response from the outset as I could not identify any records associated with the meeting of November 15, a letter of resignation or confirmation of the parting by agreement or details of the propounded exit interview. Instead, the complainant tendered that this was a catastrophic experience for him. I have no doubt that he was deeply disturbed by the events of November 15, 2018. I was slightly at a loss to understand why he did not challenge the outcome before March 2019. I appreciate that he had not been given a copy of the contract or staff handbook and the rejection he felt did have a traumatic and enduring impact.

I appreciate that Ms A had limited experience of employment law, however, I found that the respondent took a clear short cut in bringing the complainants employment to a pre-mature end.

I find that the Respondent had pronounced difficulty with the complainants work and personal behaviour. Given that the probationary clause is clearly outlined in the contract of employment, the complainant should have been allowed a structured time to improve with resultant feedback rather than subject him to an arbitrary and unfair dismissal from which no notes emerged.

I find that the respondent has misrepresented the basis for the conclusion of employment as consensual. The decision to terminate the employment was raised by the respondent and the complainant ought to have registered some disagreement during the meeting or reserved his position to avail of advice. I could not find any record of opposition by him in real time.

However, I am satisfied that the decision to dismiss the complainant was not linked to his sexual orientation and it was not the operative cause for his dismissal. I suspect that the complainant was ill during the last weeks of his employment and this was not picked up by his managers. I was struck by the absence of any joint team discussion fora and the absence of concurrent medical reports or pre-employment health screening records. The complainant  was not discriminatorily dismissed.

The claim is not well founded.

Harassment and Sexual Harassment

The Complainant has submitted that he was subjected to bullying and harassment because of his sexual orientation during his employment. In addition, he submitted that he had experienced name calling and innuendo due to his sexual orientation. This was always strenuously denied by the respondent who contended that this was a probationary employment in motion and the complainant was addressed on his shortcomings and efforts made to get him on track to meet his targets. This was qualified by a warm welcome extended to the complainant.

As discussed previously, this employment was bereft of employment policies at this time. This has since been rectified.

Neither the complainant or the respondent witnesses were familiar with SI 208/2012 Code of Practice (Harassment)Order 2012 which looks at giving practical guidance and advisory tips on prevention and procedural management of Harassment at work. This is influenced by the EU Commission Code of Practice on measures to combat Sexual Harassment [1992] OJ C-49/1.

Section 14 A of the Employment Equality Act defines both

Harassment and Sexual Harassment

(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 is employed (in this section referred to as “the workplace”) or otherwise during 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—

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

(II) it could reasonably be anticipated that he or 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 or her 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 took such steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether subsection (1)(b) also applies), to prevent the person from harassing or sexually 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 any such treatment has occurred, to reverse its effects.

(3) A person's rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim's employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section “employee” includes an individual who is—

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),

and accordingly any reference to the individual's employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim's conditions of employment” there were substituted “contrary to section 11”, or, as the case may be, section 12.

(7)

(a) In this section—

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

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The Respondent may rely on the defence contained in S. 14(2)(2) if they practicised reasonable measures to prevent its occurrence or reverse the effect. Whether a Policy was in place and communicated to staff.

The hallmark of Sexual Harassment is how the conduct is regarded by the recipient rather than the motive or intention of the alleged perpetrator.

In this case, I have been asked to probe the comments attributed to Agents of the respondent during their work which the complainant contended constituted sexual harassment.

As stated previously, I have identified this as very unusual workplace due to the apparent liberalism at the sight of anxiolytic medication on tables on at least two occasions. In addition, the complainant appears to have been highly mobile around the office for 4 out of 8 hrs per day in what is described as a desk-based job. I accept the evidence of Ms B in this regard.

In addition, it is impossible for me not to lose sight of the fact that the complainant had not managed to reach his agreed targets. The foundation of his employment was operationally fragile, and I suspect that he was ill and consequently vulnerable. I make no finding of causation in relation to this apparent illness or whether it pre-dated his employment.

However, I have reflected on the reported banter in the office regarding the Get together, Salutations at the weekend, the Back scratcher and the closing commentary attributed to Ms B and I make the following comments.

The Respondent did not have a presiding Live Policy governing bullying and harassment. The contract mentions a Grievance procedure.

In Piazza v Clarion Hotel DEC -E2004-033, the then Equality Officer held that the grievance procedure was not sufficiently robust to address claims of harassment. I note that the Respondent has since complied and circulated such a Policy.

I must examine whether the comments attributed to members of the Respondent staff, which are denied occurred.?

I found that the complainant appeared to have a profound recollection of these comments and very little clear recollection regarding the operational aspects of his employment. I found that it was opposite for the respondent who was ultra-consistent on the shortfalls in the complainant’s employment yet vague and inconsistent in relation to the attributed commentary.

I began to think this was unusual and then recalled that the workplace was unusually tolerant of banter, conversations on the complainant’s personal life and mobility around the office. I found a sharp lack of focus on delineating home and work and I believe these blurred boundaries contributed to this unusual presentation. It is important for me to reflect that both parties would have benefitted hugely from real time training in SI 208/2012.

On the balance of probability, I find that the complainant experienced the commentary he reflected in his evidence. I find that he did try and raise the initial comments with the respondent during November 13, but they got lost in the primacy of his performance shortfalls, which was a major consideration for his employer alongside his personal issues. He did not formalise a complaint at that time. He did not streamline the issues as now presented in this case. The issues were not time lined which I found unusual in a 3-month employment tenure.

At that time, I must accept that the complainant was very vulnerable, and this seems to have been overlooked by the respondent, who turned a blind eye to medication displayed on a meeting room table.

I could not identify steps undertaken by the respondent to intervene, by at a minimum investigating what the complainant said he mentioned to Ms A on 13 November, albeit that things got muddled.

I am mindful that Ms A confirmed that she had addressed Ms B on the backscratcher because of this, so this amounted to some direct action. I am also mindful that Ms A took the complainant and Mr A to task early on in their employment for “banter “. This demonstrates a management capacity for change.

I reject the argument advanced by the complainant that the workplace had a strong religious ethos which frowned on homosexuality.

I have taken some guidance in the Labour Court case of:

Catlan Trading ltd T/A Marco Moreo and Kelly Ann McGuinness [2017] 28 ELR 137, which determined that the claimant, a store worker had experienced sexual harassment during her employment and the alleged perpetrator left the employment.

·       (1) Section 14A of the Acts places an obligation on an employer to take such steps as were reasonably practicable to ensure employees are protected from sexual harassment during their employment.

·       (2) The respondent did not have in place a policy or procedure to deal with complaints of sexual harassment or harassment. An employer is liable for harassment where there are no written procedures in place to provide an employee with an avenue to seek redress.

·       (3) To avoid liability for harassment and rely on the defence in s.14(A)(2) of the Acts, an employer must establish that it had in place, at the time at which the harassment took place, arrangements intended to prevent and deal with the occurrence of such conduct.

·       (4) Although the respondent took reasonable steps to deal with the situation when it observed the behaviour, it was still liable for the discrimination suffered by the complainant due to its failure to take appropriate measures to prevent its occurrence.

I fully accept that the complainant in this case presented as a management challenge from early in his employment. However, I accept that the comments adduced in evidence, while   not time lined, apart from the last one, occurred and constituted sexual harassment, which caused the complainant to feel degraded. The situation was compounded by the lack of a procedural framework to address this climate.

I cannot grant the defence for the respondent outlined in section 14(a) (2) on that basis. I have applied the test in Catalan Trading.

I have not found that the complainant experienced harassment.

The claim for sexual harassment is well founded.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have found that the complainant experienced Sexual harassment during his 3-month employment. I have also found that the complainant engaged in a blurred boundary line between home and work issues which may have clouded his work issues.

Having regard for my scope under section 82 of the Act. I make the following orders of redress.

1.       The Respondent should engage in comprehensive staff and management training on securing a comprehensive understanding of Harassment in recognition, management and prevention with the assistance of SI.208/2012 within 3 months of this decision.

2.       The Respondent should pay the complainant €8,000 in compensation for the effects of the act of discrimination. Von Coulson principles applied.

3.       The Respondent should introduce a cataloguing system for Management of Probation with provision for participation by the respondent and the candidate on probation.

4.       I have found that the complaint on Victimisation is not well founded.

5.       I have found that complaints on discrimination (save sexual harassment), Discriminatory Dismissal, Reasonable Accommodation were not well founded.

Discrimination, Victimisation, Harassment, Discriminatory Dismissal, Reasonable accommodation.