EDA2451

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00029767 (CA-00040411-005)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 07 July 2023. Labour Court hearings took place on 03 September 2024.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Veronica Dowling against the Decision of an Adjudication Officer (ADJ-00029767, CA-00040411-005) made under the Employment Equality Act, 1998 against by her former employer, An Post, on the age ground and the disability ground.

The Adjudication Officer found that no prima facie case of discrimination was adduced on the grounds of disability, victimisation or failure to provide reasonable accommodation.

The Adjudication Officer found that Veronica Dowling was discriminated against and harassed on the grounds of age and made an award of €1,000 as compensation.

This appeal is linked to HSD/24/10. For ease of reference the parties are given the same designation as they had at first instance.  Hence, Veronica Dowling is referred to as “the Complainant” and An Post is referred to as “the Respondent”.

Summary Position of the Complainant

The Complainant was subject to harassment on the ground of her age.

The Complainant’s supervisor made jokes about her age following which two junior members of staff began laughing at her over her age. The Complainant was at the receiving end of their jokes. They laughed at her and remarked that the song on the radio by Gilbert O'Sullivan was “her vintage.”

The Complainant’s supervisor set a tone in the workplace which was discriminatory and did not respect the Complainant’s right to dignity at work. She was set apart and made to feel different over her age. The Complainant was subject to harassment.

Summary Position of the Respondent

The Respondent submits that it is not clear from the Complainant’s submission if her appeal relates to the level of compensation awarded for her successful claim for harassment on the grounds of age, or the finding that she was not discriminated on the grounds of age and/or disability.

The Complainant alleged that she was discriminated against on the grounds of disability.  There is no evidence that there was any prohibited act or that the Complainant was subject to unfavourable treatment on the grounds of disability.

The Adjudication Officer upheld her complaint of harassment on the grounds of age and she was awarded compensation. That finding has not been cross appealed by the Respondent. It is submitted that the compensation awarded was appropriate considering the nature of the comment and the immediate apology made by her supervisor.

Evidence of the Complainant

The Complainant’s supervisor made an inappropriate remark about a Gilbert O’Sullivan song on the radio being “her vintage”. She felt ridiculed. She told the supervisor that it was upsetting. He didn’t seem to realise how offensive it was. His attitude towards her was that it was okay to make such comments. She didn’t think he should make such remarks in the workplace. He couldn’t understand why it was offensive. She had to explain to him that she was offended.

The Complainant accepted that when she raised the issue, the supervisor apologised to her, and she accepted his apology. She viewed the matter as closed, until a few weeks later when another unrelated matter arose involving the supervisor but the subject of the linked appeal referred to above. She raised it as an issue but felt the matter was not investigated. 

She could not say why she appealed the Adjudication Officer’s decision. It was not about the money.

The Law

The definition discrimination at Section 85(A) of the Act provides as follows

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment...”

The definition of harassment is contained at Section 14A of the Act which provides: -

(7) (a) In this section—

(i) references to harassment are to 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,

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.

(b) 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.

These provisions must be read in conjunction with Section 15 of the Act which fixes an employer with vicarious liability under the Act for the wrongful acts of an employee committed during that employee’s employment. This Section provides as follows: 

(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(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.

Deliberations and Findings

As no evidence was presented to the Court to ground a complaint of discrimination on the ground of disability, the Court finds that no prima facie case of discrimination on the disability ground was made out, and that element of the appeal must fail.

The Court heard submissions and evidence in relation to an allegation of harassment on the ground of age.

The Act sets out that where an employee is harassed in the workplace by a person employed by the same employer that the harassment constitutes discrimination by the employer in relation to the victim’s conditions of employment.

Harassment is defined in the Act as unwanted conduct and includes conduct that has the effect of violating a person’s dignity at work by creating a humiliating or offensive environment for that person.

In this case, the Complainant’s evidence was that she felt ridiculed and made to feel different because of her age.  In reply, the Respondent submits that the supervisor believed the comment to a light-hearted remark, which was made entirely off-the-cuff and without malice. He made a full and heartfelt apology to her, there and then.

Whether the comment was made as part of workplace banter or playful teasing is irrelevant to the impact of the comment on the Complainant, which had the effect of violating her dignity at work.

On the facts as presented in this case, the Court finds that the Complainant was subject to harassment, as defined at s.14(7)(a)(i) of the Act on the grounds of her age.

An employer can avoid liability for the harassment of an employee committed by another employee in the course of employment, by making out a defence provided for at Section 14(2), if it can establish that it took reasonably practicable steps to prevent the harassment, or where harassment took place, to prevent the victim from being treated differently and to reverse its effects.

No such submission was made by the Respondent to the Court in this case.

Based on the submissions and evidence proffered, the Court finds that the Respondent is liable in law for the harassment suffered by the Complainant on the age ground.

Decision

No prima facie case of discrimination on the disability ground was made out. Accordingly, the Court finds that the complaint of disability discrimination is not upheld.

For the reasons referred to above the Court is satisfied that the Respondent is liable for the harassment suffered by the Complainant on grounds of her age, contrary to the Act. The Court is further satisfied that the said harassment must be regarded as discrimination by the Respondent against the Complainant in relation to her conditions of employment.

The Court considers that the appropriate redress is an award of compensation. Having considered the submissions and the evidence of both parties, the Court orders that the Respondent pay to the Complainant the amount of €1,000 for the effects of the harassment which she was subject to on the ground of age, which it deems to be just and equitable having regard to all the circumstances of this case.

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
ÁM	______________________
25 October 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to [SECRETARY], Court Secretary.