Complainant

Respondent

Parties

Mary Roche

Derrycourt Facilities Services

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-00032029-001

06/11/2019

The respondent has a contract to provide cleaning services at a Dublin hospital and the complainant worked there as a site supervisor. Having been employed with a predecessor company since February 2008, she transferred to the respondent in October 2011 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The complainant alleges that in July 2019, she was discriminated against on the ground of her age. While she did not state her age, from the evidence of the respondent, I understand, that she is over 65. She complains that her manager made comments about her age and humiliated her and belittled her at work. The complainant was disappointed with the outcome of an investigation into the manager’s comments, and on September 22nd, she resigned. On the complaint form that she submitted to the WRC, the complainant said that she felt that she had no option but to leave her job, that she was “put in an impossible situation to continue to move forward...”and that her resignation is a constructive dismissal.

Chronology of Events

In June 2019, a new site manager, “SM,” was appointed to the cleaning contract at the hospital.   SM worked from 7.00am to 3.00pm and the complainant worked in the evenings, from 4.00pm until 8.00pm, although she said that she sometimes started at 3.00pm.

In the week commencing Monday, July 29th, SM was working later than her normal finish time of 3.00pm because the day shift supervisor was on holidays. As she was in the hospital later in the day, she had more contact with the complainant than previously.

On the evening of Wednesday, July 31st, the complainant said that asked a member of her staff to lift a bucket of cloths so that they could be put into a washing machine. She said that SM intervened, saying that she would lift the bucket, because, unlike the complainant, she wasn’t too old to bend her back. The complainant said that the comment was made in front of her staff member. The following evening, the complainant said she confronted SM and “had it out with her” about the comment and that SM apologised.

On Friday, August 2nd 2019, the complainant sent an email to the Head of HR and the Healthcare Manager, in which she complained about SM’s behaviour on July 31st, saying that it was “an unacceptable comment of ageism.”

On Wednesday, August 7th, the Healthcare Manager and the HR Executive went to the hospital to meet the complainant to discuss what occurred the previous Wednesday.   Following a discussion about how the complainant was treated by SM, she asked for an investigation to be carried out.  

In accordance with the company’s grievance procedure, SM attended a meeting on August 12th with the Healthcare Manager and the HR Executive. Explaining her version of what occurred on the evening of July 31st, SM said that she told the janitor to leave the bucket and that another employee, “OE” came in to help her, and she responded, “I’m not that old, I can do it myself.” She said that she and OE had just had a conversation about their ages and OE was surprised to find out that SM was 10 years older her. SM said that she didn’t realise that the complainant was in earshot of the conversation. The following day, when she was confronted by the complainant, SM said that she apologised, and she said that she explained to the complainant that the conversation wasn’t about her.

At the same time that this meeting was taking place, the complainant sent another email to the Head of HR and the Healthcare Manager, in which she claimed that SM told other employees that the complainant had initiated a grievance about her conduct.   In her email she said, “I am now finding this situation increasingly difficult to effectively carry out my duties” and she asked for her complaint to be investigated.

The following day, the Healthcare Manager asked the complainant for the names of the people who told her that they had been informed about the investigation. The complainant replied that “there is no way I am willing to name the 4 members of my team as I and they will believe this could lead to the working environment being untenable. I believe it is HR responsibility to look into this complaint and draw their own conclusions…I believe what I told HR should be investigated by HR with the staff directly without making me responsible and feel like I am the one who is being investigated. I go back to my last mail and stand by what I said and what the staff told me. If HR or your good self cannot come to a conclusion based on your own investigations into the breach of confidentiality and deceit based on my mail and without prejudice to other staff members well then HR has failed in their responsibility to me.”

The managers conducting the investigation into the complainant’s grievance decided to meet with the four colleagues who worked closely with the complainant, including the day shift supervisor and separate meetings with the employees took place on August 21st. The day supervisor wasn’t at work at the time of the incident on July 31st.   He said that he never heard SM saying anything inappropriate about the complainant, although he recalled her saying, “When I’m your age, I want to look that good.”

The second and third employees were also not present at the time of the incident. They said that they didn’t hear any SM making comments about the complainant and they were not aware that she submitted a grievance about SM.

The fourth employee was the person who brought the bucket of cloths to the laundry room where the complainant and SM were on the evening of July 31st. The notes of the investigation meeting record that he said,

“If I heard rightly, (SM) remarked about herself. SM was taking to (OE); I’m getting so old that I can’t bend. Two girls were having a laugh. I was laughing too.”

On September 17th, the Healthcare Manager sent the complainant a letter in which he set out his conclusion that “no evidence was found to suggest that (SM) made any comments about your age before this incident. However, any type of comment regarding someone’s age or any comment made in relation to any other grounds of discrimination, especially from a site manager, is totally unacceptable. The matter will be dealt with under Derrycourt Disciplinary Procedure.”   The complainant was informed of her right to appeal against this decision; however, she decided against this option.

On September 22nd 2019, in a letter to the Healthcare Manager, the complainant gave notice of her intention to leave her job on October 4th.

On behalf of the complainant, Mr Martin set out the complainant’s allegations regarding her treatment by SM and her dissatisfaction with the company’s response. The complainant said that she didn’t normally work with SM and that “comments were going on all week” and that whatever she said was found to be wrong. The complainant thought that SM wasn’t happy with how she was doing her work.

The incident on July 31st occurred just before the end of the evening shift. The complainant said that it was her practice that all her team showed up at the laundry room, so that everyone was seen to be leaving at the same time. She said that she asked her staff member to lift the bucket of cloths because it was his job, not because she wasn’t able to lift the bucket. She was offended when she heard SM saying, “I’m not too old to bend my back.” The following day, she confronted SM asking her, “have you got a problem with my age?” SM apologised saying, “I’m very sorry about that,” but the complainant said “things were not the same afterwards.”

Before this incident, the complainant said that she had just returned from holidays and she remarked that the floor was sparkling clean. She said that SM replied, “did you think you could be done without?”

At the meeting that took place in the hospital on August 7th, the complainant said that the Healthcare Manager wanted her to sit down with SM to discuss what happened the previous week, and she was reluctant to do so, but she said that she later agreed to such a meeting; however, no face to face meeting took place with her and SM.   After the August 7th meeting, the complainant said that all the staff were talking about her complaint and she alleged that SM asked one staff member if the complainant was talking about her.

In her evidence at the hearing, the complainant was clearly offended that the company did not respond to her letter of notice on September 22nd. She said that no one from the management side came to see her before she finished up on October 5th.

It is the respondent’s case that the complainant has not shown that, on the basic facts, she was discriminated against because of her age. In this regard, Ms McDevitt referred to the outcome of the Labour Court decisions in the cases of Margetts v Graham Anthony & Respondent Limited EDA 038 and the case of the Southern Health Board v Mitchell [2001] ELR 201.

The respondent took the complainant’s grievance very seriously, calling SM to a meeting in accordance with its grievance procedures. The complainant did not offer the names of any witnesses who could have corroborated her complaint that SM was offensive to her because of her age. Ms McDevitt said that while it is understandable that the complainant did not want to breach the trust of her colleagues, the effect of not providing witnesses to the incident meant that the managers conducting the investigation could not act on an unsubstantiated allegation. In accordance with their grievance procedures, the company carried out an investigation and all the people who were near the incident on July 31st were interviewed. The complainant’s other colleagues were also interviewed and no one said that they heard SM making a derogatory remark about the complainant’s age.

At the end of the investigation, the management accepted SM’s explanation that she made comments about her own age to another colleague. They also concluded that any reference to age is inappropriate in the workplace and a disciplinary investigation followed. On the balance of probabilities however, they found that SM’s comment about age was not directed at the complainant and that she did not set out to offend the complainant. They concluded that the age-related comment was made in jest.

On behalf of the company, Ms McDevitt said that when the complainant reached age 65 about a year ago, the Head of HR met her to let her know that she was a valued member of staff and that they did not expect her to retire. One year later, their position on this had not changed. On this basis, Ms McDevitt submitted that the respondent had no issue with the complainant’s age and wanted her to continue in employment with them for the foreseeable future.

Referring to the complainant’s upset that none of the respondent’s managers contacted her after she decided to resign, Ms McDevitt said that this grievance post-dates the investigation into the complaint of discrimination, and, while it is regrettable, it is not connected with that complaint.

The Legal Framework

The legal framework prohibiting discrimination based on age is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”).

“…discrimination shall be taken to occur where –

(a) 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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section 6(2)(f), “the age ground” is listed as one of the nine discriminatory grounds.

This complaint is about a comment that the complainant alleges was made about her age and her ability to lift a bucket.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than a younger employee.

Ms Mc Devitt referred to the Labour Court decision in Mitchell v Southern Health Board, DEE 11, [2001] ELR 201, to support her contention that, based on the primary facts, the complainant has not shown that she was discriminated against:

Describing the evidential burden on the complainant, the Labour Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 is only if those 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 is no infringement of the principle of equal treatment.”

The Primary Facts

Both sides agree that, around 8.00pm on July 31st 2019, in the laundry room of the hospital where the complainant worked, her manager made a comment regarding age and the lifting of a bucket. There is a dispute about whether the comment was directed at the complainant, or if the manager was referring to her own ability to lift the bucket. One of the witnesses who was interviewed about the incident said that he heard SM say, “I’m not too old to lift a bucket.” The complainant’s contention is that this was directed at her, whereas SM says that she did not know that the complainant was in the vicinity at the time.

SM was appointed to the role of manager a few weeks previously and her first day-to-day engagement with the complainant occurred when she decided to cover for the day shift supervisor from July 29th. The evidence of the complainant is that, in the days leading up to the incident on Wednesday that week, she was unhappy with how she was being treated by SM, claiming, “everything I said was wrong.”  

The respondent carried out a thorough investigation into the complainant’s allegations, interviewing six people, including the complainant. Three of the interviewees were not present when the incident occurred on July 31st, and they said that they never witnessed SM humiliating or belittling the complainant. One said that he heard SM complimenting the complainant about how well she looked at her age. At the end of the investigation, the respondent concluded that,

“…on July 31st comments regarding age were made by (SM), however these were found to be said about (SM’s) own age and were made in jest while speaking to another employee who was in the laundry room at the time.   No evidence was found to suggest that she made any comment about your age before this incident. However, any type of comment regarding someone’s age or any comment made in relation to any of the other grounds of discrimination, especially from a Site Manager, is completely unacceptable. This matter will be dealt with under Derrycourt disciplinary procedure.”

The investigating manager also concluded that there may have been “blurred lines” between jest and respect and dignity and he said that he would circulate information to highlight the problems that could arise when this happens.

Although she was unhappy with the outcome of the investigation, the complainant did not appeal against it and, on September 22nd, she gave two weeks’ notice of her intention to resign.

Findings

The complainant described a single incident of alleged discrimination in which she claimed that her manager said that, unlike her, she wasn’t too old to lift a bucket. The respondent’s investigation concluded that the comment was not directed at the complainant and that it was made in jest. Rather than pronounce on the reasonableness or otherwise of this conclusion, if I accept the evidence of the complainant as fact, and the comment was directed at her, then it was insensitive and inappropriate.

Section 15(3) of the Employment Equality Act sets out the responsibility of employers when it comes to discriminatory conduct:    

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee -

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

I note from Anthony Kerr’s consolidated version of the Employment Equality Act in Westlaw, (© Thomas Reuters) that this section of the Act was inserted in response to the High Court decision in The Health Board v BC and the Labour Court [1994] ELR 27, where Mr Justice Costello found that the Employment Equality Act 1977 contained no provision for the vicarious liability of an employer in a complaint of sexual harassment. It is apparent that the 1998 Act intends that a conclusion that discrimination has occurred (on any of the nine grounds), must take account of the employer’s response to a complaint of discrimination. In the case under consideration here, the company had in place policies on dignity in the workplace and on managing grievances, which were accessed by the complainant before she decided to resign. In response to her complaint, the management took steps to ensure that SM was made aware that any reference to age in the workplace is unacceptable and that such comments could be discriminatory.   In this way, the respondent took the required action regarding the complainant’s allegation of ageism, ensuring that the comments would not be repeated. It is my view that the employer’s response that it has taken the necessary steps to prevent discriminatory conduct occurring, is a reasonable defence.

It is apparent that the management at the company had no issue with the complainant’s age, as they encouraged her to remain at work when she reached age 65. In this context, the allegation of ageism that the complainant said resulted in her resignation, would have been more effectively considered under the grievance procedure in accordance the Industrial Relations Act, rather than the Employment Equality Act. Under a standard grievance investigation and, with the assistance of the HR department, any problem in the relationship between SM and the complainant could have been resolved.

I note that, the day after the incident in the laundry, the complainant confronted SM about her comment and SM apologised. Unless there was a repeat of the impugned conduct, this should have been the end of the matter.

Failure to Exhaust the Grievance Procedure

I note also that the complainant did not appeal against the finding that her complaint was not upheld, but she submitted a complaint to the WRC instead. In this regard, I refer to the Labour Court decision in the case of Gregory Geoghegan trading as TAPS v a WorkerINT1014, where the chairman stated,

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

On behalf of the complainant, Mr Martin said that he did not pay attention to the section in the letter of September 17th 2019, in which the complainant was informed of her right to appeal against the respondent’s decision on her grievance.   I find this difficult to accept, because Mr Martin is a company director and he must have some knowledge of how work-related disputes are resolved. Before she contacted the WRC, the complainant ought to have appealed against her employer’s findings regarding her complaint and I find that her failure to do so is a major flaw in her argument that she suffered discrimination due to her age.

Conclusion

Having examined the primary facts adduced by the complainant, it is my view that they are inadequate to show that, on the balance of probabilities, she was subjected to age-related discrimination. For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

As I have concluded that the complainant had not established the primary facts which show that she was discriminated against on the ground of her age, I have decided that this complaint is not upheld.