Complainant

Respondent

Parties

Glen  Weir

Anord Mardix (Ireland) Ltd

Representatives

Maeve Griffin of Fieldfisher LLP

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-00039416-001

28/08/2020

The complainant referred a complaint under the Employment Equality Acts on 28 August 2020 on the grounds of religion. On the claim form he ticked ‘other’ as the area of alleged discrimination but it is clear from the narrative written by the complainant on the initial referral form the complaint falls under the area of Harassment.  

The complainant started working for the respondent on 8 October 2018 as a production assembly operative. He submits that on 1 July 2020 he was working in the assembly area and music was being played that was controlled by one or two female operatives. He describes the music as anti-British songs; one which contained the lyrics “go home you British bastards”. He says this song was played 2 or 3 times. The music lasted for about 2 hours. The complainant is a protestant living in Northern Ireland and he says the music made him feel uncomfortable.

Whilst the music was being played a co-worker stopped by his desk and shouted “up the RA”, which he found particularly threatening. He was very upset by the music and the comment. As far as he was aware he was the only British Protestant working in this location. The complainant was unable to return to work because of the incident and feels intimidated out of his work.

He reported the incident on 3 July 2020 to HR and it was suggested the person playing the music did not understand the significance of the music.

He made a formal complaint and on 5 September had a telephone interview with an HT manager in the UK and the Production Manager. He was told they had not found out who played the music. He was informed of the outcome of the investigation on 20 August and told that no more personal music would be played on the factory floor. He was also given an apology from the person who played the music; it was a one line apology and did not have his name on it.

He appealed the outcome of the investigation and on 14 September 2020 had a telephone interview with the Head of HR for the region and the Chief Operations Officer. He was advised that nothing more could be done. Excuses were made that the person playing the music was young and no malice was intended. He was then asked if it was a personal issue against the person who played the music.

On 19 October 2020 he was set to return to work but he was nervous about returning and he sent the Regional Hear of HR an email saying he could not work for the IRA. He went into work but was sent to HR and was issued with a letter suspending him. He had a disciplinary hearing on 30 October 2020 and was dismissed on 4 November 2020.

The complainant commenced employment with the respondent on 8 October 2018 as a Production Assembly Operative. He transferred to the Dundalk facility in 2019. The respondent has a multi-denominational workforce with employees of various nationalities and religious beliefs. The respondent has a clear anti-harassment policy in place prohibiting discrimination and harassment on any discriminatory ground, including religion.

On 3 July 2020 the complainant failed to attend for work and his absence was unauthorised. On 8 July 2020 the complainant emailed the HR Manager requesting a meeting to discuss “a few different things going on in work from I last spoke to you”. They met on 10 July to discuss feedback following his interview for a Deputy Supervisor position, communication with his leader, and republican songs being played on the factory floor and an inappropriate comment made which the complainant claimed was sectarian abuse. The complainant wads informed of his right to raise a formal grievance but instead he agreed to deal with matters informally by way of mediation.

In the meantime the respondent immediately took steps to prevent the alleged discriminatory conduce from recurring by implementing a new policy prohibiting personal music on the assembly and permitting approved radio stations only.

A mediation meeting took place on 15 July 2020 to discuss all the workplace grievances raised by the complainant. The complainant was informed of the steps taken in relation to the inappropriate music. The respondent agreed to talk to the individual about the alleged comment. The individual subsequently denied making the alleged comment and there was no evidence to support this allegation. At the end of the mediation the complainant confirmed he was happy to move on from these issues. He requested two weeks leave to “sort his head out” and it was agreed he would return to wo0rk on 6 August 2020.

The complainant raised an issue about pay for the period from 3 July. The respondent confirmed he would receive sick pay for on week, from 3-10 July. He was not happy with this and said he had been “punished And have suffered a loss of earnings” due to both the “treatment of management and the sectarian abuse”.

On 28 July the respondent wrote to the complainant to confirm the outcome of the mediation and that the period 3-10 July would be paid in full on a discretionary basis. The period 13 July to 5 August was to remain as a mixture of annual leave and unpaid leave, as requested by the complainant. On 29 July the complainant invoked the formal complaints procedure alleging that his complaint regarding “sectarian and anti-British music being played on the factory floor was not handled in a satisfactory manner”. On 5 August a grievance meeting took place to discuss the issues raised in detail. At the end of the meeting that complainant was asked about returning to work and he stated that “well it depends what the next outcome is. I’ve already been speaking to a solicitor and I know there is definitely a case there so if I’m not happy with the outcome I will go ahead with legal action …. That isn’t a threat, I’m just letting you know what I have been doing in my spare time and that is one road I can go down if I don’t get a satisfactory outcome and so far its not going to be on your behalf”. The grievance concluded i) that inappropriate music was played on the work floor and the issue was initially resolver by mediation. The employee admitted to playing the music and explained It was a random playlist and there was no malicious intent. She wrote an apology. It was acknowledged that measures had been put in place to prevent this recurring. ii) the alleged comment was denied and there was no evidence to support the allegation, and iii) The annual leave was not reinstated as this was taken at his own request. The respondent did agree to pay the complainant in full, from 3-10 July and 5-21 August 2020.

On 27 August the complainant appealed the outcome. He made his referral to the WRC on the following day. The appeal hearing took place on 14 September. The complainant said his appeal was how HR handled his original complaint and that he had use his annual leave to cover his absence from work. It was apparent the complainant had agenda and was never going to accept the outcome of the appeal. Those who heard the appeal met with the complainant on 23 September and informed him of the outcome. The conclusions were that; i) the complainant’s annual leave would be reinstated, ii) the apology from the employee who played the music was appropriate and further training would be provided to all managers and employees, and iii) the grievance was handled appropriately by way of mediation and then by a formal grievance investigation. It was agreed that further training would be provided to the HR team in relation to complaints of anti-sectarian abuse.

Following this the complainant sent a series of aggressive, intimidating and threatening emails to the respondent. Following a thorough investigation, disciplinary and appeals process the complainant was dismissed by reason of gross misconduct on 4 November 2020.

The respondent submits they took reasonably practicable steps to prevent the harassment and, if and so far as any such treatment has occurred, to reverse the effects of it and relies of the defence provided by section 14A(2) of the Employment Equality Acts.

I have to decide if the complainant suffered harassment in accordance with the Employment Equality Act on the grounds of religion. The Labour Court, in a case cited by the Respondent, Limerick City Council v Martin Mannering, EDA 1210 stated:

“The case proceeded before the Equality Tribunal on the basis that the Respondent was liable because it failed to undertake an adequate investigation into the Complainant’s complaint. The Equality Officer found that the Respondent has failed in its duty in that regard and that it was liable to the Complainant under the Act. The Complainant was awarded compensation in the amount of €5,000.

At the hearing of the appeal it was accepted by both parties that the case fell to be considered by application of s. 14A of the Acts and in particular on whether or not the Respondent can avail of the defence provided by s. 14A(2) of the Act.

Statutory Provisions

Section 14A of the Act provides: -

(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 in the course of 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 in the course of 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 or not 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.

In this case there was a single act of harassment by a person unknown but who was probably employed at the same place as the Complainant and by the same employer. Consequently, unless the defence provided for by s. 14A(2)(a) is made out the Respondent is liable to the Complainant by operation of s. 14A(1)(a) of the Act. That raises a question as to the necessary ingredients of the defence provided for at s. 14A(2)(a) of the Act. On a plain reading of paragraph (a) of subsection (2) what is required is that the Respondent proves that it took steps that are reasonably practical to prevent the perpetrator from harassing the victim. In a situation where there is continuing harassment the defence will normally succeed or fail on the adequacy of the employer’s response to any complaint made by the victim. Hence, where an employer fails to conduct an adequate investigation, or fails to apply adequate sanctions on a harasser, the employer will be fixed with liability for any subsequent acts of harassment.

However, this case involves a single non-recurring act of harassment. The Act requires that the Respondent proves that it took steps that could have prevented that single act of harassment from occurring. In the Court’s view, the adequacy or otherwise of the investigation undertaken after the occurrence of the event complained of is irrelevant to the question of whether or not the Respondent had taken steps which could have prevented that event from occurring. Rather, in cases such as this, the focus should be on whether or not the Respondent had in place adequate policies and procedures intended to make all employees aware that harassment on any of the discriminatory grounds is unacceptable and will not be tolerated by the Respondent. Both parties were agreed on the correctness of that approach in the instant case.”

In the case before me the complainant gave details of a single act, which I have to take as non-recurring. His main issue was with how the respondent dealt with his grievance. Whilst the respondent said their actions in investigating the grievance allowed them to avail of the defence allowed by section 14A. When the complainant raised his grievance the respondent attempted to resolve the issue through mediation, as evidenced by the notes of the meeting they submitted. To avoid a repetition they stopped individuals from playing their own choice of music. When the complainant decided he was not happy with the outcome of the mediation the respondent invoked a formal investigation and, when the complainant was unhappy with the outcome of the investigation, undertook an appeal. The complainant received an apology from the instigator of the songs.

The respondent submitted a copy of their Bullying & Harassment Policy which was in place at the time of the incident. They say they followed this policy which, together with the actions referred to above, shows they “took such steps as are reasonably practicable …… 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.”

I know the complainant was unhappy with how his complaint was taken initially, that the apology was not fulsome and that no action was taken against either of the individuals whose behaviour he complained of. However, I am satisfied that the respondent can rely on the defence in section 14A (2) of the Acts and find that the complainant was not harassed on the grounds of religion, within the meaning of the Employment Equality Acts.

For the reasons given above I find that the complainant was not harassed on the grounds of religion within the meaning of the Employment Equality Acts.

Harassment – reasonable practicable steps