FULL RECOMMENDATION
PARTIES : THE MINISTER FOR JUSTICE AND EQUALITY DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)DEC-E2017-045 This is an appeal by Mr Peter Onyemekeiha (‘the Complainant’) from a decision of an Equality Officer (DEC-E2017-045, dated 7 June 2017) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received by the Court on 17 July 2017.The Court convened a case management conference on 26 January 2018 and proceeded to hear the appeal on the following dates: 17 October 2018, 18 October 2018, 19 October 2018, 21 April 2021 The Court heard evidence from the Complainant and from the following witnesses for the Complainant: Professor Brendan Kelly, Mr John Clinton, Ms Teresa Buczkowska and Ms Beverly Thompson OBE. Campus Governor Murphy (Retired), Assistant Governor Paul Flynn (Retired), Mr Keith Lynn and Mr Donal Landers. Factual Matrix The Complainant is a prison officer employed by the Irish Prison Service (‘the IPS’). He is of African ethnicity and black. During the course of performing his duties as a prison officer, the Complainant was subject to continuing racial abuse by prisoners. The Complainant reported many but not all incidents of abuse he experienced to the prison authorities in accordance with the Prison Rules and the ‘P19’ system provided for in the Rules. Disciplinary proceedings were subsequently initiated against the prisoners concerned. Issues in Dispute It is accepted that the Complainant was the subject of racial abuse by prisoners that is comprehended by the definition of racial harassment in section 14A of the Act. The Complainant submits that the IPS has not taken sufficient steps to discourage the type of racist behaviour he experienced and that it cannot therefore rely on the defence provided for in section 14A of the Act. The Respondent submits that the prison environment is unique and that the Act must be applied having regard to the heavily regulated nature of that environment and that steps to prevent harassment that may be reasonably practicable in other contexts are not so in the prison environment. The Respondent further submits that the system in place pursuant to the Prison Rules for sanctioning prisoners who have misconducted themselves satisfies the ‘reasonably practicable’ defence in section 14A. The Complainant’s Evidence The Complainant outlined his working history with the IPS. From 2008 to 2011, he initially worked as a class officer in Mountjoy prison where he was responsible for the day-to-day welfare of up to 58 prisoners on a particular landing in the prison. Between 2011 and 2013 he worked in administration. He resumed working as a class officer thereafter. The Complainant referred to a number of specific incidents with prisoners where he was the subject of racial abuse. He told the Court that he believed that the sanctions imposed on the prisoners in question following complaints by him using the P19 system were either never implemented or briefly implemented only and then suspended. He said that in one case, the P19 he submitted was deleted from the system. The witness informed the Court that he had written to a number of senior figures in the IPS in an attempt to raise awareness of his experience of racism at work and the effect it was having on him. In that correspondence he pointed out, inter alia, that abuse of a prisoner by a prison officer was regarded as a more serious offence in the rules than abuse of a prison officer by a prisoner. He also raised the issue of there being no anti-racism policy in place in relation to racial abuse of prison officers. The Complainant told the Court that he rejected the IPS’s offer of a move to low conflict duties in July 2015 because it didn’t offer a meaningful solution to the issues he had raised in correspondence with the Prison Service. Furthermore, in his view, he said it would reflect poorly on him as it is used when an officer is under investigation. Nevertheless, the Complainant was subsequently placed on low conflict duties from April 2016 until May 2017. The Complainant gave evidence in relation to his experience working as an officer in the Midlands Prison in Portlaoise since he moved there approximately a year previously and where he works in C Block. He said he had experienced racial abuse on two occasions in that period of a year working in Portlaoise. The second incident was resolved immediately and without the need to file a P19 complaint as the prisoner in question apologised. The Complainant said that in the prison Portlaoise a Race Relations Policy document is displayed on the landings – at least in Blocks C and E, to his knowledge – and is therefore available for prisoners to read. Under cross-examination, the Complainant accepted that the vast majority of prisoners do not engage in racist abuse. He further accepted that he had made extensive use of the P19 system for reporting complaints against prisoners and that that system is an important element of the prison disciplinary regime as thousands of P19 complaints are processed annually. The Complainant, in reply to a question from Mr White SC, re-iterated his view that the sanctions imposed under the P19 system for racial abuse are too lenient and not always fully implemented. He referred to a number of cases to illustrate his point. He said he believes this gives the impression to prisoners that it is OK to racially abuse a prison officer. The Complainant also restated his view that loss of remission of sentence should be available as a sanction to be used in cases of racial abuse. Evidence of Professor Brendan Kelly The witness is a practising Consultant Psychiatrist and a Professor in Trinity College. He prepared a report dated 13 July 2016 in relation to the Complainant’s mental health following an assessment of the Complainant made at a once-off meeting with him. He concluded that the Complainant did not suffer from a depressive disorder but displayed symptoms of PTSD. Under cross-examination, the witness accepted that although he had had access to reports from the Complainant’s treating physician (Dr Choudra) his own assessment of the Complainant’s condition was heavily reliant on the Complainant’s perception that he had not been treated well by prison authorities. Evidence of Mr John Clinton The witness has been the General Secretary of the Prison Officers’ Association (‘the POA’) since 1990. Prior to assuming this role, he had served as a prison officer for ten years. The Complainant is a member of the POA and approached the Association for assistance in 2015. The witness said he engaged with the Respondent’s Human Resources department on the Complainant’s behalf before the Irish Human Rights and Equality Commission took over his case. The witness’s direct evidence consisted for the most part of a recitation of his views in relation to the steps the IPS should put in place in order to mitigate against the risk of racial abuse of prison officers by prisoners. Under cross-examination, the witness stated that in his view the sanction applied to prisoners who had committed acts of racial abuse against the Complainant were inadequate and an insufficient deterrent. He opined that the sanction of a reduction in remission of sentence should have been applied. This would, he said, have been a more meaningful sanction than withdrawing a prisoner’s access to evening recreation. The witness also expressed the view that as racial abuse of a prisoner by prison officer is a Category A complaint and this should also be the case when the allegation is one of racial abuse by a prisoner of a prison officer. Evidence of Ms Teresa Buczkowska The witness outlined her expertise and experience in the field of diversity management in front-line services. She addressed the Court in relation to her understanding of the profound effect of racist behaviour on individuals who are targets of such behaviour and of the need for victims to understand that those in authority are willing to bring perpetrators to account. She said that merely removing the victims from the situation only serves to cause them to experience further victimisation. She also said that all organisations need to adopt a zero-tolerance approach to racist behaviour. In this context, she said she disagreed with the Respondent’s argument that the nature of the prison environment was such that a zero-tolerance approach could not be adopted there. It was also her view that the Respondent’s reliance on the reporting mechanism provided for in the Prison Rules was insufficient as it did not reflect the extent to which racist behaviour negatively impacts on the dignity and humanity of the targets of such behaviour. The witness opined that education is the key to counteracting racism and all prisoners should therefore be subject to mandatory training in this area. She accepted that the ‘Red Card’ poster campaign in prisons was ‘better than nothing’ but was not as effective a tool as mandatory training. She recommended that the IPS put in place ‘Diversity Champions’. The witness was critical in general terms of the IPS efforts with regard to the Complainant. In her view, the IPS had done only the bare minimum to support him and had, in the process, ‘diminished his experience [of racist abuse]’ and suggested it wasn’t valid. Evidence of Ms Beverly Thompson OBE The witness was called as an expert on international best practice on combating racism in prisons. She has extensive experience as a race equality advisor and was previously a Member of the Board of Visitors at HM Prison Brixton, Independent Member of Thames Valley Police Authority and (currently) a member of the Sentencing Council of England and Wales. The witness’s evidence in chief focused largely on the development of the RESPECT – a national BAME staff network within HMPS – launched in 2001. The witness told the Court that her knowledge of the Irish prison system was based on her reading of the Complainant’s witness statement and of various reports by the Inspector of Prisons. She acknowledged she had never visited an Irish prison. Based on her reading, however, she told the Court that she had formed the view that the IPS was aware of the need to incorporate international best practice standards in its efforts to modernise and professionalise the organisation. Nevertheless, in the witness’s opinion, the many IPS practices are at odds with the organisations’ stated ambitions in this regard. She said also that that she was of the view that the IPS could apply some of the learning experiences from HMPS in order to assist it in achieving its ambitions to implement best practice, including in the areas of racial diversity and equality. The witness was cross-examined by Mr Leonard BL. Under cross-examination, the witness accepted that is difficult to make comparisons between the prison system in Ireland and that in the United Kingdom and that, for example, there is a much greater incidence of racial diversity amongst both staff and the prison population in the UK than in Ireland. Likewise, she accepted that there are similarly significant differences in the racial profile to the prison population in individual prisons in both jurisdictions. The witness said she believed the focus on rules and sanctions as a response to racism in the Irish prison system was too narrowed and should be broadened by reference to external benchmarking and verification. She said also that there should be a greater focus on education both staff and prisoners in relation to diversity matters. The witness did accept, nevertheless, that a prison context is a very different type of work environment due to the fact that prisoners are confined against their will and generally do not want to be there. Evidence of Campus Governor Murphy The witness was Campus Governor in Mountjoy between 1 September 2014 and 31 July 2018. Prior to this he worked as Operations Director in the IPS. The witness gave detailed evidence in relation to conditions in Mountjoy prison in 2014 when he assumed office and the internal and external events taking place in or around that time that impacted on the running of the prison. He also described the profile of prisoners there. Mountjoy had many repeat offenders who were troubled individuals, a large number of whom were violent and had addiction and/or mental health issues also. The witness described the manner in which the prison environment is necessarily highly regulated by law, including the Prisons Act 2007 and the Prison Rules 2007. He explained the content of a number of the Rules including Rule 66 that provides for the P19 complaints process. He said that between 2,500 and 3,000 P19s were raised annually in Mountjoy at the commencement of his term as Governor. This reduced to approximately 1,800 annually when the practice of slopping out was discontinued. The witness also gave evidence in relation to the Guidelines that are in place to ensure consistency in the imposition of sanctions for breaches of the Rules. These were developed by Prison Governors collectively over three to four meetings. The witness told the Court that he had a clear recollection of the Complainant calling to his office in early 2015. He said the Complainant had a letter of resignation with him and told the witness that he was not prepared to take any more racial abuse. The witness said he urged the Complainant to withdraw his letter and to think about his future employment in the IPS. As the Complainant didn’t retract the letter, the witness took it and placed it in a drawer. However, the Complainant returned a few days later and withdrew the letter. Some time later, the witness received correspondence from IHREC in relation to the Complainant. In the witness’s opinion, the Complainant’s expectations far exceeded what was permitted under the Rules. For example, the Complainant had suggested that a prisoner guilty of racial abuse could be transferred to another prison. However, according to the witness such a step could only be taken on foot of a Ministerial Order. The witness was asked, in cross-examination, about section 13 of the Prisons Act 2017 which provides, inter alia, for forfeiture of remission of up to fourteen days. He told the Court in reply that IPS Management took a decision in 2015 not to apply forfeiture of remission as a sanction having regard to the fact that the prisons in the system were already operating at full capacity with the effect that forfeiture of remission in the case of an individual prisoner would be immediately rescinded in practice. Evidence of Assistant Governor Paul Flynn (Retired) The witness told the Court that he had been appointed Assistant Governor in 2012, initially in the Dóchas Centre and from March 2014 until January 2020 in main prison in Mountjoy where he had responsibility for human resource matters. He described in detail the circumstances that prevailed in Mountjoy in late 2014 and early 2015. He said that Landings A, B and C were being renovated at that the time and St. Patrick’s Institution was being wound down. The numbers of prisoners in the prison were quite high and this led to frequent conflicts arising that involved prisoner on prisoner assaults. Such conflicts were not every day occurrences but could suddenly flare up. In the witness’s opinion, communication between prison officers and prisoners was generally good. However, he said that name-calling and abusive commentary in general is a feature of interactions between prisoners and prison officers. He gave detailed evidence of the approach adopted by the prison authorities generally, and he himself, to dealing with incidents of racist abuse raised using the P19 system which, he said, prisoners are fully aware of. He went on to say that prisoners know what is expected of them, they are familiar with the rules and with the sanctions that may be imposed on them when they break those rules. He described the Incentivised Activities Regime which was operated by prison officers on the floor. He said a P19 sanction could impact a prisoner’s standing in this regime, leading to a lower gratuity or loss of additional privileges. He said a P19 sanction could result in a prisoner losing privileges for up to forty days. This he described as having a significant impact on a prisoner. He also said that an individual prisoner’s record of P19s has downstream consequences – e.g. it is taken into account by the Parole Board and the Probation Service. The witness gave evidence of his interactions with the Complainant. He referred to the Complainant’s letter of 16 January 2015 requesting him to provide the Complainant “with all information relating to the Irish Prison Service policy for racial discrimination and/or abuse in the workplace”. Counsel also directed the Court to an email of the same date from Ms Edel Higgins to the witness which referred to the assistance available to any officer encountering difficulties at work from the Staff Support Officers and the Employee Assistance Programme. Ms Higgins also attached a copy of the IPS policy on harassment and sexual harassment within the meaning of the Employment Equality Act 1998. The witness forwarded this information to the Complainant on 26 January 2015 having suggest to the Complainant by letter dated 19 January 2015 that he consider availing himself of “the assistance and support available from the Staff Support Officers acting under the Employee Assistance Programme”. The Complainant re-iterated his request in writing on a number of occasions in February and March 2015. The witness was subsequently advised by Ms Higgins by email that the IPS anti-harassment policy she had previously furnished to the witness did not deal with complaints of harassment by a prison officer against a prisoner as such matters could be the subject of a P19 complaint by the prison officer. The witness went on to tell the Court that he had contact on a weekly and/or monthly basis with the Complainant over a two-year period in 2014 to 2015. His recollection is that they met on at least thirty occasions in that timeframe. He said that he referred the Complainant to the Employee Assistance Programme because he appeared to be stressed and the witness was concerned for his mental well-being. However, the Complainant indicated he did not wish to avail himself of counselling. The Complainant was on sick leave for an extended period up until mid-June 2015. On 19 June 2015, the witness wrote to the Complainant offering him the option of taking up low conflict duties on his return to the workplace. The Complainant replied by letter dated 6 July 2015 declining this offer as “it does not offer a meaningful solution for dealing with the issues I have raised”. Counsel asked the witness about management training and diversity training in the IPS. He confirmed that diversity and equality training had been provided in 2012 and 2013 by the Irish Human Rights and Equality Commission and that 90% of staff had participated in it. He also referred to anti-discrimination posters (‘Give racism the red card’) which he said had been placed at that time on notice boards on the landings in the prison complex. The witness said the sporting metaphor, in his view, was a very suitable one in the prison environment as many prisoners were interested in sport. He also referred to an 18-minute anti-racism video that was available to prisoners on one of the channels they could access from their cells. Evidence of Mr Keith Lynn The witness said he had worked as Operations Director in the IPS. During that period he dealt inter alia with appeals from P19s. He gave detailed evidence in relation to how he dealt with a particular appeal which appeared to refer to two overlapping P19s (Nos 64 and 65) dealing with the same incident of alleged racist abuse and assault although the IPS system works strictly on the basis of one P19 per incident. Having read the file that related to P16 No 64, the witness determined that the prisoner in question had admitted the breach and was sanctioned by the Governor. The witness concluded that No 65 was a duplication of No 64 and he, therefore, erased it from the system as P19s on a prisoner’s record are reviewed when decisions are taken regarding potential transfers etc. Evidence of Mr Donal Landers The witness was Personnel Officer for the IPS at the material time. He had HR responsibility for uniformed staff and governors from April 2013 onwards. In that context he met each prison governor on a monthly basis and otherwise was a regular visitor to prisons attending to various projects that were underway and within his remit. The witness said that he had been made aware of the Complainant’s issues by Governor Flynn and Governor Murphy and he had been reassured by them that they were seeking to address those issues and that the Complainant had been advised of the availability of the Employee Assistance Programme and of staff network support. The witness told the Court that he had met with Mr Clinton of the POA and the Complainant on 18 May 2015. During their meeting he said he re-iterated that the P19 process was the appropriate means to address the Complainant’s issues. The witness gave extensive evidence of efforts made by the IPS to address racism in the prison system. He referred, inter alia, to voluntary racial awareness sessions for prisoners through the Prisoners’ Education Unit; the “Show Racism the Red Card” poster initiative; playing anti-racism DVDs on the internal television network; the programme developed with IHREC in 2012 and delivered to all staff in 2012-13; the appointment in August 2019 of Mr Byrne as Liaison Officer (AP Level) and the conduct of seminars in Prison School to address racism. Submission on behalf of the Complainant Ms Bolger SC submitted that the Respondent has admitted that the Complainant was the subject of racial harassment in his place of work during the period encompassed by the within complainant and that, therefore, the key issue to be determined was whether or not the Respondent established a basis on which it could rely on the defence provided in section 14A of the Act. Counsel pointed to what she described as the reasons why, in her submission, the defence was not available to the Respondent: the absence of a specific policy covering harassment by prisoners of officers; the unavailability of sufficiently significant sanctions for prisoners who perpetrated such behaviour and the inadequate response on the part of the Respondent to the behaviour endured by the Complainant. Counsel next referred to the Guidelines referred to by the Respondent for the use of the P19 system. She submitted that they had been drafted without recourse to expert advice in relation to racism and diversity and this resulted in a low level of attention being paid to racist behaviour which attracts the lowest level (level 3) of sanction whereas bullying is sanctioned at level 2. She noted that while the Irish Prison Service had made progress in recent years in promoting awareness of diversity, inclusion and dignity at work at a general level, there had not been an appropriate focus on racism per se. She submitted that the Complainant’s continuous raising of racial abuse complaints and his expression of dissatisfaction with the P19 system as a means of addressing it appears to have had no impact on this shortcoming in the overall approach of the IPS. She also questioned whether putting in place a system of sanctions alone could satisfy the requirement of section 14A to have an active anti-harassment policy in place that is regularly communicated to all parties in the workplace. She said that while such a regime may form part of a policy, in her submission, it is not in itself one. According to Counsel, the IPS provided only inadequate supports to the Complainant. For example, she said, the Employee Assistance Programme is only a counselling service and did not provide the support that the Complainant required and needed. In fact, she said, he presented to the Employment Assistance Programme and was told that it wasn’t in a position to address his concerns about racism. Counsel acknowledged Governor Flynn’s attempts to support the Complainant but said these didn’t result in what the Complainant wanted i.e. the eradication of racism from the workplace and the introduction of a meaningful anti-racism policy. Submission on behalf of the Respondent Mr White SC submitted that a defence was available to Respondent for the purposes of section 14A of the Act as it had taken ‘reasonably practicable’ steps to prevent victimisation. He said that there has to be a margin of appreciation there, linked to what is actually possible and practicable in a given situation in this regard. According to Counsel, what is reasonably practicable in one context may not be so in another. He went on to describe relevant features of the prison environment which, in his submission, have a bearing on what is reasonably practicable there having regard to the requirements of section 14A. Prisoners, he said, by definition are in prison – a peculiarly controlled and regulated environment - against their will with the result that there is very little scope to modify their behaviour. He described the prison environment as “one like no other”. He submitted that this is something the Complainant has not engaged with in so far as he appears to be asking this Court to intervene in a delicate statutory regime where the Rules are the policy. The anti-harassment policy that is in place in the IPS, according to Counsel, comprises the P19 system and the associated sanctions that can be imposed on an offending prisoner. Discussion and Decision The Court accepts the thrust of the argument advanced on behalf of the Respondent in relation to the unique nature of the prison environment. In the Court’s judgment, section 14A cannot be interpreted as imposing a one-size-fits-all approach when it comes to an employer’s obligation to take reasonably practicable steps to prevent harassment and sexual harassment in the workplace. The Court is satisfied based, on the evidence before it, that the Respondent has consistently taken a robust approach in dealing with allegations of racist behaviour by prisoners against officers – including the Complainant - and that the sanctions imposed under the P19 regime, in accordance with the relevant Guidelines, are meaningful and proportionate. In that regard, the Court’s judgment, is that the Respondent has an active anti-harassment policy in place which is known to, and understood by, prisoners and officers and can, therefore, rely on the defence of section 14A. The Complainant’s appeal, therefore, fails. The evidence adduced from the Respondent’s witnesses indicate, in the Court’s view, that the Respondent’s approach to equality and diversity in the unique environment which is the prison system is an evolving one. It appears to the Court that there is some merit in the observation of Counsel for the Complainant to the effect that the issues of racism and racial harassment may have not, to date, been given the level attention that they require by the Respondent, having been obscured in the generality of its approach to equality and diversity matters. In this regard, the Court directs that the Respondent conduct a thorough review of its anti-racism strategy and policies having regard to examples of international best practice in this area in the prison systems of other similar jurisdictions. The Court so determines.
NOTE |
