Complainant

Respondent

Anonymised Parties

Ms. X

A Respondent

Representatives

Clodagh Gill Sherwin O'Riordan

Graham Bailey IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025051-001

16/01/2019

The Complainant commenced employment with the Respondent as an Accounts Executive in September 2016. She worked 37.5 hours per week and was paid a gross monthly salary of €2916.66. Her employment ended on 10th December 2018. This complaint was received by the WRC on 16th January 2019.

The Complainant provided a detailed written submission.

The Complainant submitted that on 26th July 2018, the Respondent held its annual summer party; a meal followed by a play followed by drinks. During the evening the Complainant socialised with all her colleagues who attended, including Mr A, a male colleague, who worked in the same department as the Complainant. At approximately 01.00 many the group decided to go to a late-night bar. While at this bar Mr A began to act in an intimidating and inappropriate manner towards the Complainant, making her feel very uncomfortable; she told him to go away.

The Complainant submitted that Mr A continued with his intimidating behaviour including unwanted physical contact of a sexual nature which continued for approximately 90 minutes, culminating in a cornering of the Complainant against a wall. The Complainant was so distressed by this turn of events she suffered a panic attack and left the premises through a back entrance to ensure she would not have to face Mr A again.

On the 30th July 2018, the Complainant raised a formal grievance on foot of the incident of 26th/27th July 2018, which was investigated by the Respondent. The Complainant submitted that although she advised the Respondent that approximately nine individuals had witnessed the incident, the Respondent only interviewed three people as part of the investigation into the matter.

On foot of the investigation, a number of the allegations made against Mr A were upheld. On 20 August 2018, the Complainant was advised by the Respondent that Mr A would no longer be attending the office and would be working from home.

On the 1st October 2018, the Complainant was called to a meeting with her manager Ms B and the HR Manager, Ms C. During this meeting the Complainant was advised that Mr A would be returning to the office the following day and that he would be working from the desk directly next to the Complainant. The Complainant became extremely distressed on receipt of this news and immediately asked to move desk. She was told this would be facilitated but only on a temporary basis.

On 2nd October 2018, Mr A returned to the office. The Complainant advised her manager, Ms B, that she was feeling anxious, uncomfortable and unsafe being in the same office as Mr A, and that she was going home. The Complainant left the office that day at approximately 3.00pm to return home.

The Complainant submits that the Respondent refused, despite repeated requests from the Complainant, to provide her with a safe place of work.   The Complainant’s solicitor wrote to the Respondent twice in November 2018, setting out the Complainant’s concerns and asking for options to be put forward by the Respondent to address those concerns. The Respondent’s response was to the effect that having considered both the Complainant’s and Mr A’s rights, it was unable to offer any possible solutions. The Complainant submits that in choosing to reject the Complainant’s legitimate and perfectly reasonable concerns, the Respondent chose to prioritise the interests of Mr A, over the basic rights of the Complainant.

On 10th December 2018, the Complainant’s solicitor again wrote to the Respondent, advising that the Complainant had been left with no choice but to resign from her position; that the decision was not taken lightly but was the only option for the Complainant in circumstances where the Respondent refused to provide her with a safe place of work forcing her to be absent on sick leave for an extended period of time. The Complainant took up employment with another employer in January 2019.

The Complainant submits that her resignation was a direct result of the Respondent’s conduct and the deterioration of the Complainant’s financial situation as a result of her being on sick leave. The Complainant submits that she had no alternative but to resign in order to be able to take up other employment.

The Complainant gave direct evidence at the hearing re-iterating the above sequence of events.

In her direct evidence the Complainant stated that at the outset of her employment with the Respondent she had a good relationship with Mr A, however, in the spring of 2018, Mr A made some comments to the Complainant along the lines that he was going to make it his mission to make the Complainant straight. The Complainant was upset at this and decided to distance herself from Mr A. Gradually, their relationship deteriorated. When the Complainant was called as a witness in a complaint made against Mr A by a colleague, their relationship deteriorated even further.

When the Complainant made her complaint against Mr A, on the Monday following the Summer Party, she noticed he was gone within an hour.   The Complainant stated that she was told he had been suspended and there was to be an investigation. The Complainant did not feel the investigation was carried out thoroughly and she was disappointed with the outcome. She stated that she believed the Respondent had failed to give her any support in this matter except for telling her about the Employee Assistance Programme.  The Complainant was made aware by a manager on 20th August that Mr A’s suspension was over, but he was working from home. She thought he was not coming back.

The Complainant stated that when she heard, on 1st October 2018, that Mr A., was coming back she got very upset, especially as he would be sitting at a desk within arms-length of her. The Complainant met with her line manager and asked that she be moved. The Complainant was very upset and was advised to go home. Later that day she received a call or an email, she could not clearly recall, informing her that she would be allowed move desk on a temporary basis.   The following day she moved desk but when Mr A. arrived at work she became very anxious and absented herself.    

The Complainant stated that she resigned because there had been no solution made regarding her working arrangements; i.e. the Respondent was unwilling to allow her move desk permanently or move to another team.

The Complainant supplied a list of 12 names of employees in the Respondent organisation as comparators, who the Complainant submits, have not and would not be subjected to the same treatment by the Respondent.

In response to questions the Complainant stated that the comparator being used in relation to sexual orientation was a hypothetical comparator. In relation to the gender ground the Complainant was relying on the list of male employees submitted.

In concluding, the Complainant submits that the harassment to which she was subjected to at the hands of the Respondent had a profound effect on her well-being, which was only exasperated by the actions taken by the Respondent after the 1st October 2018. Despite several attempts, made through her solicitor, to have her concerns addressed, the Respondent failed to agree to any accommodation that might have come some way to addressing the complaint’s genuine worries. Having a policy in place is not enough, the employer must act to resolve such issue. The Complainant also submits that by virtue of the Respondent’s actions, as set out above, she has made out a prima facie case of unlawful treatment, discrimination, harassment, sexual harassment and victimisation, contrary to the provisions of the Employment Equality Acts, 1998, as amended.

The Respondent provided a detailed written submission.

The Respondent submitted that in July 2018, the Complainant made a complaint against a colleague, Mr A, alleging that he had behaved inappropriately towards her in a night club following the company’s summer party. The complaint was investigated by the company under the Dignity at Work Policy and a report was compiled. The finding was that misconduct did occur at the nightclub and that of the four allegations made; one was well-founded, and one was well-founded but not to the extent alleged; three and four were found to be inconclusive and not well founded respectively. It was found that disciplinary proceedings were required in relation to the first and second allegations. These were carried out following the Disciplinary Policy. Following a disciplinary hearing Mr, A was issued with a first written warning.

In August 2018, while the above complaint was being investigated Mr A made a complaint against the Complainant, alleging inappropriate behaviour towards him over the last number of months including bullying and intimidation. The complaint was investigated by the company under the Dignity at Work Policy; the finding was that of 15 allegations made five were not founded and 10 were inconclusive. It was found that no action was required in the matter.

While the company processes related to each complaint were ongoing, the Respondent felt that, given the sensitive and serious nature of the complaints and because that the Complainant and Mr A worked on the same small sales team and were seated beside each other, it would be better for the two employees not to work in the same location or to have direct communication with each other. For this reason, Mr A was suspended from work during the investigation of the complaint the Complainant had made against him. Following the completion of this investigation and while the complaint made by Mr A against the Complainant was being investigated, Mr A was taken off suspension and worked off site, from home. The Complainant remained working in the office. It was explained to both the Complainant and Mr A on several occasions that the separate working arrangements were temporary while company process related to both complaints were ongoing.

The Respondent submits that on completion of the company processes related to both complaints, including the disciplinary process against Mr A, the Respondent company organised for normal working arrangements to resume, that is for Mr A to return to office-based work and re-join the team. Safety was considered, and appropriate measures were put in place. Individual meetings were held with Mr A and the Complainant on the 1st of October 2018 to confirm that Mr A would be returning on the 2nd of October 2018 and to discuss safety measures put in place, support and behavioural expectations.

The Complainant expressed concern about Mr A returning to the office-based work and requested a desk move, which the Respondent accommodated. She also stated that she had believed that the separate working arrangements were going to continue indefinitely. She said that she felt the Respondent was not providing a safe work environment. The company responded to these concerns verbally in a meeting and call on the 1st of October 2018 and in an email on the 2nd of October 2018.

Mr A returned to work on the 2nd of October 2018. On that date at about 14.00, the Complainant emailed her manager to say that she was feeling anxious and uncomfortable and was going home. Her manager asked to meet with her, but she declined to meet with her manager and went home. The Complainant did not come to work the following day and submitted a medical certificate stating work related stress, dated for a 2-week period. Her absence continued beyond this date and certs were submitted every two weeks stating, work related stress.

The Respondent arranged an occupational health assessment for the Complainant which she attended on the 18th of October 2018. The report was received on 1st of November 2018. It's stated that the Complainant was unfit for work due to an ongoing and acute anxiety response with a focus on difficulties with encountering Mr A at work, but that she was fit to engage with the company to discuss her wishes and what was feasible. No other accommodation at work was it the specified.

On the 20th of November 2018, the Respondent received a letter from the Complainant's solicitors including queries regarding what the Respondent planned to do to accommodate the Complainant’s loss of earnings related to not being in receipt of company sick pay, what plans the Respondent had to accommodate her at work and raising an issue regarding payment of state illness benefit directly to her. On the 30th of November 2018 the Respondent replied to this letter and resolved the state illness benefit pay issue period. The Respondent also listed the measures the Respondent had taken to “accommodate and support” the Complainant at work and to” ensure her safety following [Mr A’s] return to office-based work…..”

The Respondent submits that on the 10th of December 2018, a letter was received from the Complainant’s solicitor stating the Respondent had not taken appropriate safety measures and that it had discriminated against the Complainant and that on this basis the Complainant had no alternative but to resign.

On 12th of December 2018, the Respondent emailed the Complainant directly to ask her to reconsider her resignation and stating that if she wished to revoke it, she should email the company by the 14th of December 2018. It was stated that if she did not do so, the Respondent would accept and process her resignation.   Also, on the 12th of December 2018, the Respondent replied to the Complainant's solicitors to confirm that it had contacted the complaint directly in relation to her resignation. The Respondent did not receive an email from the Complainant revoking her resignation. On the 17th of December 2018, the Respondent emailed the Complainant to confirm acceptance and processing of her resignation and leaving administration details. On the 19th of December 2018, the Complainant’s final payslip and P45 were emailed to her.

At the hearing Ms C, the Respondent’s Manager gave direct evidence supporting the case made above. Ms C stated that due to the physical layout of the offices and the nature of the work there were not the resources to move people around. The witness also confirmed that Mr A had left the Respondent’s employment “a month or two ago.”

In concluding, the Respondent submits that the Complainant has not provided primary facts in relation to the grounds claimed on which to proceed with a viable complaint. The Respondent submits that significant credible contradictory evidence has been provided which would lead a reasonable person to conclude that no discrimination took place. The Complainant has, according to the Respondent therefore, failed to establish a prima facie case to be heard.

Notwithstanding the above the Respondent submits that the if a prima facie case is deemed to have been established by the Complainant, the Respondent submits that the Complainant has failed to prove that they have been treated any less favourably than another person is, has or would be treated in a comparable situation on the specified ground.

I have considered this matter carefully.

The Complainant referred complaints pursuant to the Employment Equality Act on the grounds of Gender and Sexual Orientation. She also asserts victimisation, discrimination in; conditions of employment; dismissal for discriminatory reasons; dismissal because she opposed discrimination; harassment; sexual harassment. The Respondent denies the claims. Both parties provided detailed written submissions. I have taken account of those submissions in writing this decision.

What happened at the party is not the issue here. What is important and what must be focussed on is how the Respondent acted after the investigation upheld the complaints made by the Complainant relating to the incidents at the party.

For discrimination to be established by a Complainant, he or she must demonstrate a “difference in treatment”, and not simply treatment of a manner which was less than ideal.

The general rule in the context of the burden of proof, as per section 85A of the Act, is that the burden lies on the party asserting a claim. The first question to be answered therefore is whether the Complainant has established a prima facie case.

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment”.

To determine whether the Complainant has established a prima facie case a three-tier test is employed:

First, the Complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground(s).

In considering this I am cognisant of the Labour Court decision in Valpeters v Melbury Developments Limited, [2010] 21 E.L.R. 64 which stated inter alia:

“Section 85A of the Act provides for the allocation of the prohibitive burden in cases within its ambit. This requires that the 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exceptions to that evidential rule.”

In this case, the agreed facts are that the Complainant is a woman (gender ground), and gay (sexual orientation ground) and thus covered by the two grounds cited in her complaint.

Although details differ between the parties, I find the treatment alleged to have taken place by the Complainant did in fact take place.

In considering the third tier of the test, I have noted that while the Respondent took disciplinary action against Mr A, it failed to provide the Complainant with the changes she requested in relation to working with Mr A, e.g. being allowed work in another area of the office away from him. At the hearing evidence was adduced to explain why movement of the Complainant from her physical location and her working team would have been very difficult to carry out. While this is was not satisfactory from the Complainant’s perspective, the fact that the treatment was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground(s) has not been proven. No evidence has been provided to support the contention that the Complainant was treated any less favourably because of the grounds specified in her complaint.  

Providing a long list of comparators is not sufficient to prove a case of discrimination. What is required, is evidence that a person or persons not covered by the specified ground was (or is or would be) treated more favourably than the Complainant because of their different, in this case, gender or sexual orientation. Allegations of direct discrimination requires direct comparators. No such comparator was provided by the Complainant.

I also find that the Complainant’s refusal to engage with the Respondent in a meaningful way regarding possible solutions to the issue of working arrangements indicates an intransigence which made it virtually impossible for the Respondent to find a resolution to the grievances she had raised (for example her decision not attend a meeting arranged for 6th November 2018, to discuss her wishes and what was feasible for the Respondent).

Addressing the complaint of victimisation, I refer to the Department of Defence v Barrett (EDA 1017), where the Labour Court held as follows in respect of victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment” 

 That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant submits that the Respondent victimised her. The complainant has not pointed to any act by the Respondent that caused her adverse treatment and was due to her making a protected act.

In this case, I find that the Complainant has not provided enough evidence to establish a prima facie case and her complaints on the grounds of gender and sexual orientation, therefore cannot succeed.

I find that the Complainant has not provided enough evidence to establish a prima facie case to uphold the other allegations selected in her complaint form.

For completeness, the complaints listed on the complaint form are set out below and the required decision is given on each:

Discrimination on the Ground of Gender – no prima facie case has been established.

Discrimination on the Ground of Sexual Orientation – no prima facie case has been established.

That the Respondent treated the Complainant unlawfully by discriminating against her in victimising her – no prima facie case has been established.

That the Respondent treated the Complainant unlawfully by discriminating against her in Conditions of employment – no prima facie case has been established.

That the Respondent treated the Complainant unlawfully by discriminating against her in dismissing her for discriminatory reasons – no prima facie case has been established.

That the Respondent treated the Complainant unlawfully by dismissing her because she opposed discrimination – no prima facie case has been established.

That the Respondent treated the Complainant unlawfully by discriminating against her in harassing her – no prima facie case has been established.

That the Respondent treated the Complainant unlawfully by discriminating against her in sexually harassing her – no prima facie case has been established.

The complaint is not well founded.

Discrimination, Gender, Sexual Orientation.