Complainant

Respondent

Anonymised Parties

Customer Service Support Officer

Facilities Service Provider

Representatives

  Self-represented

IBEC  

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-00056243-001

23/04/2023

The complainant referred to the Workplace Relations Commission complaints of harassment and discrimination on grounds of gender and race.  The complaints relate to access to bathroom facilities at the complainant’s place of work, which at the relevant time was at a client site of the respondent.

The respondent submitted that there was no discrimination or harassment and further that the complainant had failed to establish a prima facie case.

The complainant remains on the respondent’s list of active staff and had done some cover work for the respondent in the weeks prior to the hearing. 

At the material time, the complainant was working in a customer service support officer role at one of the respondent’s client sites. 

The client site had security measures in place due to the nature of its operations.  The complainant was informed by the site manager on 6 April 2023 that the respondent’s staff would no longer have access to the door codes on the client site.  The complainant understood that this was for security reasons.   This meant that the complainant had to ask members of the client’s staff to bring her to the bathroom facilities located in an area behind doors with security codes.

On 6 April 2023, the complainant asked a staff member of the client to bring her to the staff room so that she could use the bathroom.  The complainant was unable to use the facilities in circumstances where the staff member was waiting for her.  Later that morning, the complainant had to wait until a staff member became free to accompany her to the bathroom.  The complainant was unable to wait and wet herself.  She left the workplace early. 

The complainant informed her manager in the respondent company about what had happened that day.  The respondent’s manager told her that she would go to the site to check the situation and that there should be no refusal by the client’s staff to open bathroom doors for her.  Female members of the respondent’s cleaning staff were not in the same situation as they were able to use the facilities whilst cleaning the bathrooms.   The respondent’s male security staff working at the same site had access to a bathroom on the main floor. 

The complainant’s discomfort and feeling of discrimination lay in the fact that she had to use the bathroom facilities in the workplace under the supervision of another person.  The complainant’s only request was to have the issue of free access to bathroom facilities resolved. She did not want another female to be in the same position as her.  It was uncomfortable to work in conditions where the complainant had to ask staff to bring her to the bathroom. 

The issue in the workplace was only resolved after the complainant made her complaint to the Workplace Relations Commission; it was resolved the following day by the complainant being allowed to use an alternative door to exit the bathroom facilities.

The situation affected the complainant psychologically.  She was near tears and embarrassed asking someone to bring her to the bathroom or when she had to explain how long it would take for her to use it.

The complainant decided to stop working at the client site as she thought that her complaint to the Commission would be quicker.  On 1 June 2023, the complainant sent her manager a message regarding notice.

Under cross-examination, the complainant accepted there were low-risk and high-risk areas on the client site.  The respondent’s security guards on site had access to bathroom facilities on the main floor, via a door with a security code; these were for male use and the complainant did not have the door code.  Her male customer service support officer colleague used the same facilities as the security guards.   Customers, female cleaners and Irish cleaners had to use the bathroom downstairs which was the bathroom the complainant had to use.   The issue was not about nationality, the issue was about the complainant not having access to bathroom facilities.  A simple solution would have been for the complainant to have been provided with the security codes to the doors which would have allowed her access the bathroom facilities.

The complainant confirmed the discrimination was not by reason of her race, but that the issue was access to bathroom facilities.

The client site at which the complainant was working at the material time had restricted access to certain areas and security measures in place. 

The complainant complained to the respondent about access to the bathroom facilities in a high security area behind a “secure line” on the premises. 

The respondent’s employees were reminded on 6 April 2023 that they did not have access to the security codes on the client site.  This applied to all contractors working on the client site.  The complainant informed the respondent of a challenging experience in relation to accessing the bathrooms on 6 April 2023.  The complainant had to ask a member of the client’s staff if she wished to access the facilities.  The respondent investigated the complainant’s concerns.  A walk through of the site was completed by the respondent’s manager to fully ascertain the situation. 

The complainant was not treated differently.  There was also an alternative bathroom available for the complainant to use.

Summary of sworn evidence of key account manager

The respondent’s client restricted the respondent’s access to areas on the client site.

The complainant texted the witness on 6 April 2023 in relation to having been informed by the client that the respondent’s staff would not have the security codes for doors on the client site.  The respondent’s employees would need to ask a member of the client’s staff for access when needing to go somewhere in the building behind secure doors.  The complainant expressed her dissatisfaction with having to ask a staff member to go with her to the bathroom and that they had to wait for her outside.

The witness contacted the client’s manager on 21 April 2023 to schedule a meeting to discuss the issues raised by the complainant and to see if there were any alternatives.  The meeting was scheduled for 25 April 2023.  The manager was unable to meet with the witness on 25 April and the witness agreed to return to the site on 26 April.  The witness conducted a walk-through of the building with the client manager on 26 April and established there was an alternative exit from the bathroom in question, and also that there was a bathroom in a low-risk area of the site that was accessible to all the respondent’s staff.    After leaving the site, the witness received a message from the complainant advising that she had referred a complaint to the WRC.  The witness explained to the complainant the alternative means of exiting the bathroom.

The witness maintained that the complainant had not been treated differently to any of its other employees on site.

In closing, it was submitted that customers of both genders used the bathroom facilities the subject of the complaint.  The bathroom facilities set-up was not in any way related to the complainant’s gender or race.  The nature of the client’s business and operations meant that there were high-level and low-level security areas on site.  The bathroom in question was located behind a secure line on the site.  The location of the bathroom is not anything to do with the respondent or within the respondent’s control. 

The complaints against the respondent were of harassment and discrimination on grounds of race and gender in connection with the complainant’s access to, and use of, bathroom facilities at one of the respondent’s client sites.

In reaching my decision I have taken into account all the submissions, oral and written, made to me by the parties and the evidence given at the hearing.  

The Legal Framework

The Employment Equality Acts 1998-2015 (the “Acts”) prohibit discrimination in relation to conditions of employment on the protected grounds.

Section 6(1) of the Acts in relevant part provides that discrimination shall be taken to occur where:-

“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 subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,”

The discriminatory grounds specified in section 6(2) include the gender and race grounds in the following terms:

“(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

   …

  (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)

 …”

Section 14A(7) defines harassment for the purposes of the Acts as:

“… 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.”

Section 85A of the Acts sets out the burden of proof as follows:-

“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.”

In this regard the respondent cited the Labour Court’s determination in Melbury v Valpeters [EDA/0917] where it stated that:-

“… mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

It is clear from the determination that the burden of establishing the primary facts rests on the complainant.

The complainant is a Brazilian national.  The complainant’s evidence was that two female cleaners employed by the respondent at the same client site used the same bathroom as the complainant however they did not experience the same issues as the complainant as they used the facilities whilst cleaning them.  The complainant confirmed that the cleaners had to request a member of the client’s staff to open the door using the security code to access the bathrooms.  The complainant advised that the cleaners were female, and that their nationalities were Irish and Brazilian.   The complainant in her evidence said the issue was not one of nationality but about access to bathroom facilities.

The complainant raised with her manager an issue about not having the security codes for the doors on the client site.  The complainant had been informed that this was the case for all the respondent’s employees.  This was not accepted by the complainant.

On 26 April 2023, the respondent informed the complainant that there was a door the complainant could use to exit the bathrooms in question as an alternative to having a member of the client’s staff wait with her while she used the facilities.   On 27 April 2023, on attending work, the complainant was shown by the client site manager the alternative way out and was also authorised to use any bathroom in the building.   I have reviewed an exchange of ‘phone messages from 27 April 2023 between the complainant and her manager in the respondent company, which were submitted by the complainant, and note that the complainant maintained as an issue not having the security codes to doors on the client site, and queried the client’s policy in this regard.

The complainant advised that her complaint was not concerned with nationality, and there was no evidence before me of less favourable treatment on grounds of race.

There was also no evidence before me of harassment of the complainant contrary to section 14A of the Acts on the race or gender ground.

Given the nature of the client’s business and operations, it is apparent to me why there are high-risk and low-risk areas on site and the rationale for security codes to access certain areas.  The client had a policy in place in relation to access on site.

None of the respondent’s employees, male or female, were given the security codes to access the area where the bathroom in question was located.  The complainant acknowledged that it was for security reasons that the respondent’s employees did not have access to the security codes of doors leading behind the secure line on the client site.   The respondent’s employees were accompanied by a member of the client’s staff to access these areas.  The complainant’s evidence was that this was also the case for customers visiting the client site who required access to the bathroom in question.

Accordingly, I am not satisfied that the complainant’s access to, and use of, the bathroom facilities in question was discrimination on grounds of gender.  Any issue with accessing these bathroom facilities was by reason of where they were located on the client site behind a secure line, and the security policy in operation on the client site.  Following a site visit, the respondent established there were alternatives to someone having to wait for the complainant while she used the bathroom facilities.

The complainant has not established less favourable treatment on protected grounds compared with another person in a similar position to the complainant.

I am satisfied on the totality of the evidence adduced in this case that the complainant was not harassed or discriminated on grounds of race or gender contrary to the Acts. 

I find that the complainant was not discriminated against by the respondent on grounds of gender.

I find that the complainant was not discriminated against by the respondent on grounds of race.

Discrimination – Harassment – Gender – Race – Conditions of employment