SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
DUBLIN CITY COUNCIL
(REPRESENTED BY BCM HANBY WALLACE SOLICITORS)
- AND -
JACQUI MC CARTHY
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Appeal against Equality Officer's Decision DEC-E-2001/015
2. The appellant has been employed by the Council since October, 1982, as a Legal Assistant. In December, 1996, she took a claim under the Employment Equality Act, 1977, alleging that her employer discriminated against her in a competition for Senior Legal Assistant. As a result of taking the claim, she alleges she has been subjected to systematic and deliberate victimisation by her employer. The claim was referred to an Equality Officer for investigation. On the 10th of May, 2001, the Equality Officer issued her Decision. Both parties appealed against the Equality Officer's Decision.
The Court heard the appeals on the 5th of March, 2002.
This is an appeal by both sides to an Equality Officer’s Decision No: DEC-E-2001/015 which awarded redress on foot of a complaint alleging victimisation within the meaning of Section 2(d) of the Employment Equality Act, 1977, and Section 74(2)(a) of the Employment Equality Act, 1998.
Dublin City Council holds that the Decision of the Equality Officer and the orders made were wholly disproportionate to the findings of victimisation.
The employer appellant raised a substantial number of grounds of appeal; at the hearing these were reduced to essentially three grounds which the Equality Officer had ruled on:-
1. The Respondent's/complainant's allegations concerning the actions of the Chief Clerk.
2. The allegations regarding the report in "Forum".
3. The Appellant's invoking of its Bullying & Harrassment Policy following a complaint duly made to it concerning the Respondent.
The worker appellant appealed the Equality Officer’s findings on the grounds that the Equality Officer failed to consider the instances of “social exclusion” and management’s failure to deal with same, as victimisation.
The appeal in relation to the Equality Officer’s findings concerning the “briefing of her colleague (referred to as Ms. A)” was withdrawn by the worker appellant’s counsel at the hearing.
At the date of the claim on 24th July 2000, the appellant was employed as a Legal Assistant on a salary of €30,893 Grade V.
Subsequent to an application by the appellant for a position as a Senior Legal Assistant, the appellant took a claim of gender discrimination against the City Council on 16th December 1996. A hearing was held on 23rd September 1997. The Equality Officer in EE2/1998 found against the City Council and recommended that the appellant be appointed to the position of Senior Legal Assistant from 1st January 1997 and paid the benefits accordingly.
Following an appeal by the City Council the Labour Court in DEE6/1998 upheld the finding of discrimination but varied the remedy, determining that the appropriate redress was compensation in the amount of €1270.
In her complaint to the Director of Equality Investigation on 24th July, 2000, the appellant held that as a result of her taking this case against the City Council, she had been subjected to systematic and deliberate victimisation, which was and remained ongoing. The Equality Officer in DEC-E-2001/015 decided that the appellant had established aprima faciecase of ongoing victimisation, which the City Council had failed to rebut. There were three examples of victimisation upheld by the Equality Officer;
•the Chief Clerk’s deliberate and consistent refusal to acknowledge and speak to the appellant;
•the inaccurate reporting of the Labour Court’s determination DEE6/1998 inForum(the internal electronic news/information page); and
•the manner in which an internal investigation had been conducted.The Equality Officer, in accordance with Section 23 of the Employment Equality Act, 1977 awarded the appellant €25,395 and, in accordance with Section 82 of the 1998 Act, awarded a further €25,395. The Equality Officer also ordered that the City Council,inter alia,
•Should not proceed to administer a warning, verbal or written on foot of the internal investigation into the appellant;
•ensure that every effort is made to assist the claimant with any transfer request that she might make, and
•immediately publish a statement in theForumindicating a clear commitment to equal opportunities in the workplace.
This decision is now the subject of appeal by both sides. The Court proposes to examine each of these findings.
Actions of the Chief Clerk
The appellant alleges that from the morning after the hearing of the claim (EE2/1998) on 23rd September 1997 she has been the subjected to systematic and deliberate victimisation by the Chief Clerk, manager of the department in which the appellant worked (until he ceased employment with City Council on 9th October 2000).
She alleges that the Chief Clerk refused to speak to her and deliberately ignored her; he communicated with her through written memos or through others. She also alleges that the Chief Clerk made a point of making sure others knew that he was ignoring her. The appellant alleges that this victimisation arose as a result of a statement made in her submission to the Equality Officer at that hearing which stated “this first became manifest in 1992 on the appointment of Mr.X, a male, to the Conveyancing Section, who was at the time of the said appointment a Senior Legal Assistant in the Litigation Section and had little relevant experience in Conveyancing”.Counsel for the City Council state “umbrage was taken” by the Chief Clerk to the statement made by the appellant in her submission.
The appellant states that the actions of the Chief Clerk acted as a catalyst for others to behave in a similar fashion to the appellant. He created the atmosphere, which was described by her in her letter to the investigator on 3rd March 1999 as “harassment and polarisation”.The appellant had a discussion with the Principal Officer of the City Manager’s Department in November 1998 about her unhappiness in her work. He referred the matter to an Assistant Principal Officer in the Human Resource Department in December 1998. The City Council maintains that such complaints were made “in the course of a conversation” and were informal.
It was confirmed by the City Council that no one ever spoke to the Chief Clerk about these allegations; no effort was made to alleviate the situation. The Assistant Principal Officer in the Human Resource Department responded by endeavouring to transfer the appellant to Dunlaoire Rathdown. Such a transfer was welcomed by the appellant who accepted that she would have been very happy with such a transfer and that it would have dealt with the difficulties she was experiencing. This transfer was not feasible and another attempt was made to transfer her, this time to the Housing Department, a move which was not acceptable to the appellant, as her career and expertise lay within the Law Department and she felt that had she accepted the move, she would have been admitting that she had done something wrong.The appellant outlined to the Court a number of examples of “social exclusion” which she maintained were examples of situations where the Chief Clerk, despite his obligations as Manager in charge of the Department, made no effort to stop. The Court is of the view that the Chief Clerk had a responsibility to ensure the safety, health and welfare of employees in his charge. The Court accepts that the details included in the appellant’s “History of Social Exclusion” are valid examples of how he failed to do this or to bring it to the attention of any other person who had the power to deal with such problems.
The City Council indicated to the Court that at no stage was it made aware of what was occurring as no complaint was made to them concerning the conduct of the Chief Clerk. From the evidence available the Court is satisfied that no formal complaint concerning the Chief Clerk was ever made, however, the complaint made to the Principal Officer in the City Manager’s Department has to be seen as an attempt by the appellant to resolve an intolerable situation. The fact that neither the City Manager nor the Assistant Principal Officer recorded or documented these complaints is more of a reflection of their attitude to the seriousness of the complaints than to the complainant’s lack of formality.
The Assistant Principal Officer stated to the Court that his recollection of his meeting with the appellant, was as follows:
•there was no reference to specific problems with the Chief Clerk mentioned
•the only person mentioned by name was Ms. A
•he was requested to organise a transfer to resolve the issues of her difficulties of working in a hostile working environment, as a clean break might be in her best interest
•he did not suggest that the appellant should process her complaint through the Anti-Bullying and Harassment Policy.
Following the discussion with the Principal Officer of the City Manager’s Department, the matter was processed by the Human Resource Department, which would seem to the Court to be the appropriate section to deal with such matters. However, when the second attempt at transferring the appellant did not resolve the situation, no further attempts were made. Around this time the Assistant Principal Officer was promoted and consequently transferred to another section. He did not pass the appellant’s case on to any other person. Therefore, the Court concludes that the complaint was not taken seriously enough; in this instance, human resource management failed to monitor and support healthy work relationships.
The Court is satisfied that there was a causal link between the attitude of the Chief Clerk and the evidence produced at the hearing of the claim (EE2/1998) on 23rd September 1997. Therefore, the Court is satisfied that the appellant has shown that she was victimised in accordance with Section 2(d) of the 1977 Act, and Section 74(2) of the 1998 Act. The fact that nothing was ever said to the Chief Clerk by a member of management concerning the alleged difficulties the appellant was having, would seem to the Court a dereliction of duties on behalf of the City Council and an example of their attitude to her which the Court accepts is an example of penalisation. The Court is satisfied that the Council is vicariously liable for the Acts of its employees carried out in the course of their employment. In this case there is no doubt that the Acts were carried out during the Chief Clerk's employment and were known to the Council when the appellant made a complaint to the Principal Officer.
In it’s submission to the Court, the City Council admitted that the reporting of the Labour Court Determination on Tuesday 27th October 1998 in theForum“regrettably was imprecise”. It took almost three and a half years for the Council to admit that the report was imprecise despite having been requested by the appellant to change it. The failure of the City Council to correct theForumdetails is, in the Court’s view, a further indication of victimisation and the Court concurs with the Equality Officer’s findings in that regard.
In December, 1998, the City Council’s Anti-Bullying and Harassment Policy was formally invoked by a colleague of the appellant (referred to in the Equality Officer’s decision as Ms. A) naming the appellant as the perpetrator. The Equality Officer found that the conduct of the Council in conducting this claim constitutes further victimisation by the respondent.
The City Council states that their policy has been impugned by the findings of the Equality Officer that their procedures were unfair, characterised by bias, lacking in transparency, or without compliance with the general principles of natural justice and fair procedures. The City Council holds the view that such a conclusion by the Equality Officer “is not supported by the evidence, constitutes an unwarranted interference in the management and procedures of the appellant, and is in excess of jurisdiction in all the circumstances”.
An incident, which occurred on 1st December, 1998, gave rise to a complaint of bullying and harassment against the appellant by Ms. A. At the meeting with the Assistant Principal Officer in the Human Resource Department on 3rd December, 1998 (described above) reference was made by the appellant to the incident.
The appellant indicated in a letter to the policy’s investigator on 3rd March, 1999, that she had a counter claim to this allegation. She stated that she would be setting out her complaint formally and in writing; no such letter was ever furnished and no formal complaint under the Anti-Bullying and Harassment Policy were made.
In January, 1999, the appellant was transferred to a different floor. The Court is of the view that the appellant may have had reason to believe that no formal complaint of bullying would be made. This was because Ms. A did not formally make her complaint until 3rd March, 1999, by which time the appellant had changed floors. It was only when such a formal complaint was made that she referred to her own complaint of harassment and polarisation, a complaint she failed to follow up on with the investigator.
Until 1st December, 1998, when the incident with Ms. A took place in the doorway it is the Court’s view that the appellant considered herself to be the victim.
The failure to make any formal complaint to management must in the Court’s view be seen as weakening the appellant’s case somewhat.
The Court does not concur with the Equality Officer’s findings that the investigators' procedures were flawed, nor the finding that the appellant was penalised by the manner in which the investigation into the incident of 1st Decemberwas conducted, for having brought a claim under the 1977 Act.
Conclusion on the Internal Investigation
Having carefully examined the papers and listened to the evidence, the Court is satisfied that the investigators carried out their investigation in accordance with the procedures agreed – with one exception – the investigators went too far in recommending that disciplinary action should be taken against the appellant. Paragraph 15 of the procedures states that the investigators should report whether the allegations have been substantiated or not, based on the information gathered during the investigation and then issue their report to the Personnel Officer who will proceed “to make arrangements to take appropriate disciplinary action”.
The Court does not accept that the lack of an appeal process from the investigators findings is a flaw in the procedures. The Court takes the view that such an appeal should only be possible where new and significant information becomes available. The City Council’s policy in this regard is in line with similar policies in general and the lack of such an appeal process in the case of the appellant does not in the Court’s view suggest any form of penalisation.
The referral of the complaint to the Rights Commissioner was in accordance with the agreed procedures under the policy. The City Council went along with such a referral. The fact that the Rights Commissioner decided not to hear the case cannot be regarded as an indication of penalisation.
The Court cannot concur with the findings of the Equality Officer where she concludes that “it is extraordinary that there is no automatic forum for appeal from the decision of the Investigators” and proceeds to find that the appellant was “penalised by the manner in which the investigation was conducted”. The Equality Officer concluded that the appellant “had established aprima faciecase of victimisation in respect of the manner in which the investigation was conducted” which the management had failed to rebut. The Court is of the view that the process carried out by the investigators was not influenced by the fact that the appellant had previously taken a case under the Employment Equality Act, 1977.
Counsel for the appellant questioned the “motivation” of the investigators. There is no suggestion that during the investigators' process that neither the appellant nor her trade union representative were unhappy with the process. The Equality Officer in her findings makes the point that it was the Personnel Officer who was the person responsible for deciding on the appropriate disciplinary action following the investigators' report, and that this was the same person who “misrepresented the findings of the Labour Court Determination at the management meeting on 27th October, 1998, reported in theForum”. The Court accepts this as a fact. However, it also accepts that the decision on disciplinary action following the findings of the investigators is an appropriate function for the Personnel Officer and therefore a claim for penalisation on such grounds cannot be substantiated by these facts alone.
The Court accepts that the absence of a right of appeal from the report of the investigators is in accordance with the provisions of both S.I. No: 17 of 2002 Industrial Relations Act, 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration Order) 2002 and the Safety, Health and Welfare at Work Act, 1989 (Code of Practice on the Prevention of Workplace Bullying). Both codes of practice state: -
- “if either party is unhappy with the outcome of the investigation, the issue may be processed through the normal industrial relations mechanisms”.
In conclusion, the Court finds :-
(1) that the appellant has been victimised by the behaviour of the Chief Clerk following the discrimination hearing on 23rd September, 1997. No action was taken by City Council to deal with this problem - the only action taken was to make efforts to transfer her.
(2) that the continued inaction to deal with the imprecise reporting of the Labour Court Determination in theForumis victimisation.
(3) the internal investigation did not constitute further victimisation,
(4) the appellant’s failure to adhere to normal grievance procedures or policies to process her complaints must be taken into account.
The Court does not concur with the Equality Officer’s assessment of the amount of compensation to be awarded but agrees with her view that:
“The victimisation of a person for having in good faith taken a claim under the Equality Legislation is very serious as it could have the impact of undermining the effectiveness of the legislation and is completely unacceptable”.
The Court recommends that the appellant is awarded compensation of €20,000, pursuant to Section 23 of the Employment Equality Act, 1977, plus €5,000 pursuant to Section 82 of the Employment Equality Act, 1998, as a result of the distress suffered.
The Court notes that in accordance with the Equality Officer’s decision the City Council will not take any action on the disciplinary hearing until this case has been determined.
In view of the fact that the investigators recommended a penalty, which they did not have authority to do, the Court recommends that the disciplinary hearing should be carried out on ade novo basis.
The Court concurs with the Equality Officer's recommendation regarding the City Council’s obligations to assist the appellant with transfer requests and ensure that no further penalisation takes place.
The Court upholds the Equality Officer’s recommendations regarding the communication and updating of the Equal Opportunity Policy and Positive Action Programme.
The Court so determines.
Signed on behalf of the Labour Court
2nd July, 2002______________________
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.