An Employee -v- An Employer (In Liquidation) (Represented by A Firm of Solicitors)
This dispute involves a claim by a named complainant that he was (i) discriminated against and harassed by a named employer, on grounds of sexual orientation, within the meaning of section 6(2) of the Employment Equality Act, 1998 and contrary to sections 8 and 32 of that Act, (ii) paid a different rate of remuneration to two named comparators and that this difference was based on age, within the meaning of section 6(2) of the Employment Equality Act, 1998, contrary to section 29 of that Act and (iii) victimised within the meaning of section 74(2) of the Employment Equality Act, 1998. The complainant also referred a claim of sexual harassment contrary to section 23 of the Act but this was withdrawn by him in the course of the preliminary hearing.
2.1 The complainant commenced work with the respondent as a cleaning operative in September, 1997. He states that shortly after he commenced work the owner of the respondent company (Mr. A) began to behave inappropriately towards him. He contends that this behaviour resulted from the fact that Mr. A was homosexual and was attracted to him. He submits that Mr. A subsequently harassed him and discriminated against him because he rejected his inappropriate advances. The complainant further contends that after he took an unfair dismissal case against a client of the respondent, he was offered a series of alternative working arrangements with the respondent which were bogus. He argues that as a result of this he was victimised by the respondent. Finally, the complainant alleges that he received a lesser rate of remuneration from the respondent than two other named employees who were performing the same work as him. He contends that both of these employees were younger than him and that the difference in remuneration was based on age. The respondent rejects all of the allegations made by the complainant.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Office of the Director of Equality Investigations on 29 November, 2000. In accordance with her powers under the Act, the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under the Act. Due to delays concerning the issue of the complainant's representation in the course of these proceedings, a preliminary hearing did not take place until 5 November, 2001. Following the preliminary hearing the respondent accepted that "like work" existed between the complainant and the two named comparators and that the complainant was older than them. However, he submitted that the only difference in the rates of remuneration paid to the parties concerned arose when they performed different duties. The Equality Officer decided that a work inspection was not therefore necessary. Subsequent to the preliminary hearing the issue of representation of the complainant resurfaced as did some confusion as to whether or not the complainant was pursuing his complaint. As a consequence, further delays were encountered. Written submissions were received from both parties - the respondent's in early May, 2002 - and a hearing took place on 12 August, 2002. A small number of issues emerged at the hearing which required clarification and gave rise to further correspondence subsequent to the hearing. The final piece of correspondence in connection with the complaint was received by the Equality Officer on 5 November, 2002. Given the nature of the allegations in this dispute the Equality Officer has decided, on application by the respondent's solicitor, to withhold the names of the parties to this dispute.
3. SUMMARY OF COMPLAINANT'S SUBMISSION
3.1 The complainant states that he commenced work with the respondent in September, 1997 as a cleaning operative. He contends that within a month of commencing this employment Mr. A, who was the owner of the company, informed him that he was gay. The complainant adds that Mr. A then began to behave inappropriately towards him. He contends that Mr. A made persistent phone calls to him after normal working hours (6pm); that he sought to meet with him in private and that he used a "droning or syrupy" tone in his voice when talking to him. The complainant states that none of these alleged advances on the part of Mr. A were ever reciprocated, in fact he states that he made it very clear to Mr. A that he should desist from such behaviour.
3.2 The complainant states that he took a case against a client of the respondent because he considered that organisation to have dismissed him. He alleges that when the respondent became aware of this case he began to use "revenge tactics" against him. These tactics included restricting cleaning contracts to the complainant and allegations about his work and him personally. The "revenge tactics" ultimately resulted in the termination of his employment with the respondent and the offer of a sub-contracting arrangement carrying out, inter alia, cleaning services at the same locations he had previously (as an employee). However, this arrangement only lasted for a couple of weeks when it was terminated by the respondent. The complainant states that there were no problems with his work and submits a reference from one of the companies where he performed cleaning duties in support of this assertion. The complainant submits that this chain of events constitute victimisation of him because he took an unfair dismissal case against a client of the respondent.
3.3 The complainant states that during the early months of 2000 he was speaking with one of the named comparators and she told him she was on a higher rate of remuneration than he was. He states that he approached Mr. A to discuss this issue and was advised by him that the rate mentioned was not due until March/April, 2000. The complainant states that as both of the named comparators were younger than him he was discriminated against on grounds of age.
4. SUMMARY OF RESPONDENT'S SUBMISSION
4.1 The respondent rejects all of the complainant's allegations. Before dealing with the specific allegations the respondent submits that the complainant is attempting to abuse the purpose for which the Act was intended by making scandalous, malicious and unfounded allegations against the respondent. In support of this assertion the respondent furnished the Equality Officer with a copy of two pieces of correspondence. One is a letter from the respondent to the complainant dated 27 January, 2000 and the second is an altered version of this document which, the respondent argues, creates a misleading impression that there was wrongdoing on behalf of the respondent relating to the complainant's employment. The respondent submits that the complainant deliberately corrupted this letter. The other piece of correspondence submitted is a letter, which the respondent contends was written by the complainant and was received by the respondent during the period between the preliminary and final hearings. The respondent submits that this letter effectively seeks to pressurise the respondent to make a financial settlement in respect of this dispute or the complainant will go to the media with a story that the respondent had a homosexual relationship with a well known public figure. The respondent states in the strongest possible terms that he is not homosexual and that no such relationship existed.
4.2 The respondent states that all employees involved in cleaning duties were provided with a mobile telephone by him in order to maintain a reliable avenue of communication between staff, who were performing cleaning duties at various locations, and staff in Head Office, including Mr. A. The respondent contends that the complainant frequently refused to take official calls from Mr. A and consequently, Mr. A was left with no option but to attempt to contact him after normal working hours to confirm arrangements etc. for work over the following day(s). The respondent accepts that there were occasions, both in Head Office and on site, when he met with the complainant. However, these were nothing other than routine or necessary meetings to ensure the smooth operation of a contract. The respondent acknowledges meeting with the complainant on one occasion around May 2000 - the end of the complainant's tenure with the company - in his car and that this meeting took place outside of the complainant's home. The respondent denies that he used a "droning or syrupy" voice in any of his conversations with the complainant.
4.3 The respondent states that contrary to the complainant's comments, there were issues relating to the complainant's work performance which necessitated Mr. A speaking with him about the matter. In particular, there were difficulties concerning the complainant taking instruction in relation to the manner in which his duties were to be performed and his disregard for authority. In this regard the respondent cited an incident between the complainant and the Managing Director of a customer of the respondent around Christmas, 1999 regarding a Christmas gift received by the complainant. The respondent states that the continued difficulties encountered with the complainant ultimately resulted in the complainant terminating his employment with the respondent in May, 2000 by mutual agreement and commencing business on his own, with the assistance of the respondent and performing cleaning duties (on that basis) in the locations he had previously operated as an employee.
4.4 The respondent states that the company had the cleaning contract at a large private sports venue and that the complainant was assigned to that contract on a continuous basis for a considerable period. The Manager of the venue contacted Mr. A in early 2000 and asked that the complainant be removed from that particular contract because of his attitude and behaviour, particularly towards staff employed by the sports venue. Mr. A immediately removed the complainant from the contract and spoke with him about his attitude/behaviour. The complainant subsequently referred a complaint of unfair dismissal against the sports venue - the respondent was not a party to the claim. In April, 2000 the Manager of the sports venue wrote to Mr. A asking him to confirm that the respondent was the complainant's employer at the time of the alleged dismissal. Mr. A furnished written confirmation that this was the position. He rejects the complainant's assertion that his actions in this regard, which were factually correct, were followed by a campaign of victimisation of him by the respondent.
4.5 The respondent states that the complainant and the named comparators were generally engaged on routine industrial cleaning, referred to in the industry as "Memo Work". Up to January 2000 all staff engaged on this type of work received Euro 6.35 per hour. In January, 2000 this rate was increased to Euro 7.62 per hour Monday/Friday, Euro 8.25 per hour on Saturday and Euro 10.16 on Sunday. The respondent states that complainant also performed general office cleaning duties, known as "DOC" and that this type of work is governed by a Labour Court Registered Agreement. The respondent further states that the comparators worked approximately 20/30 hours per week whereas the complainant worked 40/60 hours per week with 20 of these hours being on DOC work. The respondent submits that there was no difference in the rates of remuneration paid to the parties other than that which arose because of the performance of different types of cleaning work.
5. SUMMARY OF HEARING
5.1 The complainant stated that he was unable to state what his hourly rate of pay for "Memo Work" was and accepted that the rates furnished by the respondent for this type of work (see paragraph 4.5 above) were accurate. The complainant was unable to provide any details of the rates of remuneration received by either of the name comparators. He acknowledged that he performed additional duties known as "DOC" on a regular basis and that the comparators did not perform such work. He confirmed that he was claiming equal pay for the period January-June, 2000.
5.2 The complainant stated that the incidents of victimisation commenced during the last six months of his employment with the respondent. The respondent criticised the standards of his work and everything he did was wrong. In addition, he did not get work in new locations when other employees were and Mr. A advised him that other employees did not want to work with him. The complainant added that he felt this treatment of him was motivated by a desire by Mr. A to pay him back for taking the dismissal case and for rejecting his (Mr. A's) advances. The complainant added that Mr. A never made any direct reference to him about a homosexual relationship, but he (the complainant) felt uncomfortable in Mr. A's company because Mr. A had informed him of his homosexuality shortly after he commenced work with the respondent.
5.3 The complainant stated that he could not explain who amended the letter dated 27 January, 2000 although he accepted that he had seen a copy of this letter. When asked by the Equality Officer if he knew anything about the letter addressed to the respondent seeking to elicit funds under threat of exposing an alleged homosexual relationship between the respondent and a well known public figure, the complainant was evasive and did not reply.
5.4 The respondent furnished the Equality Officer with copies of P60's in respect of the complainant and the two comparators for the tax year ending April, 2000. He also furnished details of the gross weekly wages of all three employees for that year. He stated that this documentation indicated the complainant received higher weekly wages than the two comparators although he accepted that some of the excess could be accounted for by the complainant performing DOC duties. He added that all three employees were paid the rates outlined at paragraph 4.5 above when they performed routine industrial cleaning duties.
5.5 The respondent stated that he had found no fault with the standard of the complainant's work, the difficulty with him concerned his behaviour. From the early part of 1999 other staff had spoken with Mr. A and told him that the complainant was rude and difficult to work with. Similar sentiments had been expressed to him by an employee of the sports venue where the complainant performed cleaning duties. Mr. A described the complainant as a "solo runner" who would not take instruction, even from him. He recalled a conversation with the respondent in the middle of that year which took place at a particular location. The complainant had argued with other members of the cleaning crew and the respondent had to attend the site to "smooth things over". The respondent stated that he engaged the services of a Management Consultant in late 1999 to review structures and procedures within the company and that this review specifically examined ways of how to deal with the complainant's behaviour. The review resulted in the letter of 27 January, 2000 which sought to formalise the complainant's conditions of employment and clearly set out parameters as regards use of the company van and mobile phone. The respondent added that he had hoped this process would result in the complainant remaining with the company because Mr. A still considered his work to be of a high standard. The respondent furnished the Equality Officer with copies of documentation between Mr. A and the consultant in respect of the complainant and stated that the proposed arrangement was never signed. The respondent's representative added that the final document which emerged from this process is the one which Mr. A contends was deliberately altered by the complainant (see paragraph 4.1 above).
5.6 The respondent states that after he confirmed the complainant was an employee of his company, in the context of the complainant's unfair dismissal claim, the working relationship between them deteriorated. However, the standard of the complainant's work was still good and the respondent was anxious to find a way of retaining his services whilst at the same time minimising the problems. Mr. A states that it was this dilemma which prompted the "sub-contract" arrangements in late April. This arrangement, which was largely based on the contracts which the complainant was doing at that time, included payment of Euro 1,270 in full and final settlement of all claims, or threatened claims, against the respondent and the sports venue (mentioned above). Mr. A adds that the payment was also made with a view to providing the complainant with a source of revenue to purchase material etc. in the context of starting up business on his own. The terms of this Agreement were signed by the complainant on 29 April, 2000 and by Mr. A on 2 May, 2000. The respondent issued the complainant with his P45 on 2 May and he considered the complainant's employment with the company to have ceased on that date. The respondent accepts that the arrangement was terminated a few weeks later and stated that this arose because the complainant was not performing the duties as agreed.
6. CONCLUSIONS OF THE EQUALITY OFFICER
6.1 The issues for decision by me are (i) whether or not the respondent paid a different rate of remuneration to the complainant for "like work" (within the meaning of section 7 of the Employment Equality Act, 1998), than the rate paid to two named comparators and whether this difference was based on age, within the meaning of section 6(2) of the Employment Equality Act, 1998 and contrary to section 29 of that Act, (ii) whether or not the respondent discriminated against and harassed the complainant, on grounds of sexual orientation, within the meaning of section 6(2) of the Employment Equality Act, 1998 and contrary to sections 8 and 32 of that Act, and (iii) whether or not the complainant was victimised within the meaning of section 74(2) of the Employment Equality Act, 1998. In reaching my decision on these matters I have taken into consideration all of the written and verbal submissions made by both parties.
Claim for Equal Pay
6.2 Sections 28 and 29 of the Employment Equality Act, 1998 when read together prohibits an employer paying different rates of remuneration to two employees, where both are employed to perform "like work" and where both are, inter alia, of different ages, unless the difference is lawful in accordance with section 29 (5) of the Act, or is excluded for the parameters of the legislation by virtue of another provision of the statute. Section 7 defines "like work" for the purposes of the Act.
6.3 The respondent accepted that the complainant and the named comparators were of different ages and that they performed "like work". He argued that when they performed routine industrial cleaning, or Memo Work, they were all paid the following rates - prior to January 2000 Euro 6.35 per hour; from January, 2000 the hourly rates were Euro 7.62 Monday/ Friday, Euro 8.25 on Saturday and Euro 10.16 on Sunday. The complainant was unable to furnish details of the hourly rates of pay received by him or the comparators for this type of work and I note that in the course of the hearing he accepted the aforementioned rates were accurate. Whilst details of the rate of remuneration paid to other employees is not always available to a complainant, it is generally the case that the complainant can furnish evidence of his/her own rate of remuneration. In the absence of any such evidence from the complainant and in light of his acceptance of the accuracy of the rates of remuneration furnished by the respondent, I must conclude that these were the rates applicable to all employees performing Memo Work at the time.
6.4 The respondent states that the complainant worked approximately 40/60 hours a week whereas the comparators worked 20/30. I note from one of the many pieces of correspondence furnished by the complainant in the course of my investigation, that he states he was working 60 hours per week. I further note that throughout a considerable volume of documentation there is consistency as to the volume and location of Memo work which the complainant was performing and I am satisfied that the complainant was spending approximately 30 hours per week on Memo Work. The complainant accepted that whilst he performed the additional DOC duties the comparators did not do so. I am satisfied therefore, that my investigation of the complainant's claim for equal pay should focus on the rates of remuneration paid in respect of Memo Work.
6.5 I have already set out at paragraph 6.3 above the reasons why I accept the rates of remuneration as furnished by the respondent. In the absence of any specific evidence from either party regarding rates of remuneration, I have applied the weekday rate from January, 2000 (Euro 7.62 per hour) to the range of hours which the parties agreed the comparators performed Memo Work. The results of this calculation are generally consistent with the details of the gross weekly wage paid to each of the comparators which was furnished by the respondent. I am satisfied of the veracity of these particular details because they correspond to the details included in the P60's for those employees in respect of the tax year ending April, 2000. I have examined details of the gross weekly salary for the complainant and both comparators in respect of the tax year ending April, 2000. The amounts paid to the complainant exceed that paid to both comparators on all except four occasions during the year (two by Comparator A and two by Comparator B). These differences are small, the largest amount being around Euro 110 over a two week period) whereas the difference regularly exceeds Euro 200 per fortnight the other way. I note the complainant received approximately Euro 6,100 more than Comparator A and Euro 4,900 more than Comparator B in respect of salary in the course of that tax year. The respondent submits that this excess relates to DOC work carried out by the complainant which was not performed by the comparators and it is not related to a difference in the rates of remuneration paid to those employees for Memo Work. I note that the complainant acknowledged he performed the additional DOC Work and the comparators did not. Whilst the material furnished to me is not conclusive, I am of the view, that on balance, the difference in remuneration in favour of the complainant is attributable to this additional DOC Work. In light of the foregoing, I find that the complainant has failed to discharge the onus on him to provide evidence which, prima facie, would support his contention that he was paid less than the comparators for "like work" and his claim in respect of this aspect of his complaint has not been established. Claim of Discriminatory Treatment and Harassment
6.6 The complainant contends that he was discriminated against and harassed by the respondent on the ground of sexual orientation. He further contends that this discriminatory treatment of him stems from two particular issues. Firstly, because he took an unfair dismissal claim against a client of the respondent and secondly, because he rejected the inappropriate advances of Mr. A, whom he believes to be homosexual.
6.7 Section 6(1) of the Employment Equality Act, 1998 provides:
"For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) of the Act provides, inter alia, that the discriminatory grounds for the purposes of the Act include:
"(d) that they are of different sexual orientation (in this Act referred to as "the sexual orientation ground")".
Section 8(1) of the Act provides:
"In relation to --
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts, an employer shall not discriminate against an employee or prospective employee....".
Section 32 of the Employment Equality Act, 1998 provides, inter alia, as follows:
"(1) If, at a place where C is employed (in this section referred to as "the workplace"), or otherwise in the course of C's employment, another individual ("E") harasses C by reference to the relevant characteristic of C and -- ......
(b) E is C's employer, or ....... then, for the purposes of this Act, the harassment constitutes
discrimination by C's employer, in relation to C's conditions of employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C.
(2) Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of C's employment, if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled --
(a) E harasses C by reference to the relevant characteristic of C, whether or not in the workplace or in the course of C's employment, and
(b) C is treated differently in the workplace or otherwise in the course of C's employment by reason of C's rejection or acceptance of the harassment or it could reasonably be
anticipated that C would be so treated, then, for the purposes of this Act, the harassment constitutes discrimination by C's employer, in relation to C's conditions of
employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C.
(5) For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C.".
6.8 Paragraph 3 of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20011 provides that where a complainant establishes facts from which it may be presumed that discrimination has occurred, the onus shifts to the respondent to prove the contrary. It is necessary therefore for a complainant to establish, in the first instance, a prima facie case of discrimination. Whilst these principles relate to issues of gender discrimination, they have been applied by Equality Officers and the Labour Court in cases of non-gender discrimination in the past and I propose to apply them in the instant case. Prima facie evidence has been described as "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred"2.
6.9 The complainant asserts that he was treated less favourably than other employees on grounds of sexual orientation. He adds that he believes the motive for this treatment was because he had taken an unfair dismissals case against a client of the respondent and because he had rejected the inappropriate advances of Mr. A, who was his employer, and whom he believed to be a homosexual. Whilst the complainant appears to be arguing the entire range of alleged incidents in support of his complaint, the Act clearly classifies harassment as a particular type of discriminatory treatment and I propose to examine it in isolation from other non-harassment allegations of discriminatory treatment.
6.10 Taking the allegation of discriminatory treatment first, it appears to me that the essence of the complainant's case is that the respondent denied him, or restricted him, to the less lucrative cleaning contracts which the respondent operated and that these jobs were assigned to other staff. He submits that the reason for this was because of "the gay scenario" - Mr. A (who he alleges was homosexual) was attracted to him and as he (the complainant) was heterosexual he didn't reciprocate the sentiments. The respondent rejects, in the strongest terms, the complainant's assertion that he is homosexual. He also rejects the allegations of discriminatory treatment of the complainant arguing that any variation in his working arrangements were necessary because of the behaviour of the complainant.
6.11 Section 6 of the Employment Equality Act, 1998 provides that it is unlawful to discriminate on grounds of sexual orientation as between two people of different sexual orientation. Section 2 of the Act defines sexual orientation as "heterosexual, homosexual or bisexual orientation". The complainant states that he is of heterosexual orientation. He must therefore demonstrate that another employee of the respondent, who is of homosexual or bisexual orientation, was treated more favourably than him. Alternatively he must demonstrate that another employee of homosexual or bisexual orientation would have been treated more favourably in similar circumstances. In my opinion the complainant has failed to discharge this obligation. I note that the respondent had, from mid-1999 onwards, found it necessary to speak with the complainant about his behaviour/interaction with other staff and that the continuation of this behaviour resulted in his removal from cleaning work at a particular sports venue (in early, 2000). It also resulted in an attempt on the respondent's part to terminate the employment relationship between them in May of that year by mutual consent but retain the complainant's services on a sub-contracting basis, performing cleaning services on that basis at a number of locations. I further note that in the course of the hearing the complainant acknowledged Mr. A had found it necessary to speak with him on a number of occasions about his interaction with other staff and his behaviour in general and that these discussions were primarily in the latter period of his employment. I also note the material submitted by the respondent from the Management Consultant engaged by him in late 1999 which resulted in the letter of 27 January, 2000 to the complainant. I am satisfied, on balance, that the foregoing supports the respondent's assertion there were difficulties with the complainant in late 1999 and that his (the respondent's) actions were not an attempt to discriminate against the complainant, rather they comprised an effort on his part to address issues of a management nature which had a direct impact on the business activity of his company. I find therefore, that the complainant has failed to establish a prima facie case of discrimination in respect of his complaint of discriminatory treatment.
6.12 I shall now turn to the complainant's allegation of harassment on the ground of sexual orientation. The complainant states that Mr. A informed him that he was gay around October, 1997 - one month after the complainant had commenced work with the respondent - an assertion that Mr. A strongly denies. The complainant alleges that the respondent then began to behave inappropriately towards him, phoning him on his mobile outside working hours and speaking with him in a "syrupy voice" and attempting to meet with him in private. The complainant contends that it was obvious to him that Mr. A liked him but that he never reciprocated his advances. The complainant submits that these advances constitute harassment of him as defined by section 32(5) of the Act and that his rejection of these advances resulted in Mr. A discriminating against him contrary to section 32(2) of the Act.
6.13 I note the complainant states that the alleged harassment of him commenced soon after he starting working with the respondent and that he told him "he was not that way inclined". I further note he stated that he had no problems with the respondent for the first two years of his employment. I find these statements contradictory and difficult to reconcile. It appears odd that the complainant would not take issue with the respondent immediately, if as he alleges he informed Mr. A that "he was not that way inclined" and Mr. A persisted with his behaviour. I further note the complainant confirmed in the course of the hearing that Mr. A never made any suggestion to him that the have a homosexual relationship, or made any reference to sexual favours of a homosexual nature. Rather the complainant submits that he knew Mr. A was homosexual because the respondent spoke to him in a "syrupy" voice and had told the complainant he was homosexual soon after the complainant commenced employment with the respondent - an assertion which is strenuously denied by Mr. A. I do not consider the tone of a person's voice to be a credible basis upon which to determine a person's sexual orientation and I therefore cannot accept the complainant's assertion in this regard.
6.14 There is direct conflict between the parties concerning the issue of whether or not Mr.
A told the complainant he was homosexual. When such a direct conflict exists the Equality Officer must assess whether the balance of probabilities favours the complainant's version of events or the respondent's. In addressing this issue the credibility of the parties can prove a useful tool of evaluation for the Equality Officer. I note the complainant acknowledges that he saw a copy of the letter of 27 January, 2000 which was an attempt to formalise his conditions of employment, but was unable to explain how it had been altered. The respondent furnished the Equality Officer with a copy of the original of this letter and also a copy of an altered version of the letter which the respondent submits was deliberately corrupted by the complainant. I have examined both of these letters and note that the extracts omitted from the version alleged to have been tampered with by the complainant cover issues concerning the complainant's behaviour and manner with clients, other staff and management of the respondent. In addition, the text which has been included in the alleged altered version appears to be a different type font from that in the original and the tone and content of the text is consistent with terms and phrases which the complainant has used in his written submissions to the Equality Officer in the course of this investigation. I am therefore satisfied, on balance, that the complainant carried out these alterations to the original letter. I have also examined the letter which the respondent states was received by him in the period between the preliminary and final hearings. This letter seeks to force the respondent to pay an amount of money to another person in settlement of this dispute in order to keep "a lid" on a homosexual affair between Mr. A and a well known public figure. The letter is handwritten and the handwriting appears, in my view, to be very similar to that of the complainant. The amount of money sought is identical to that included in a letter which the complainant wrote previously to the respondent. I note the complainant did not deny that he wrote this letter when asked by the Equality Officer at the hearing, rather he remained silent on the matter. In light of the foregoing I am satisfied, on balance, that the complainant was the author of this letter. Whilst it is normal procedure for parties to seek to settle cases before the Equality Tribunal at any stage in the process, I am of the opinion that the attempts in the instant case go way beyond what could be termed reasonable in the circumstances and may in some quarters be viewed as at least bordering on the unlawful. It appears to me that the complainant was prepared to go to great lengths to persuade the respondent to recompense him for what he perceived was unfair treatment of him and his actions to achieve that aim damage his credibility. In light of my comments I find, on balance, the respondent's version of events to be more convincing and that he did not inform the complainant he was homosexual.
6.15 Section 32 of the Employment Equality Act, 1998 defines harassment for the purposes of the Act. In light of my comments in the preceding paragraphs I am satisfied that the complainant has failed to show that the alleged treatment of him by Mr. A constitutes harassment as defined by the statute.
Claim of victimisation
6.16 The complainant states that he took an unfair dismissal case against a client of the respondent in early 2000. He alleges that subsequent to this referral the respondent embarked on a campaign of "revenge tactics" against him which constitute victimisation of him contrary to the Act. The respondent rejects these allegations and states that when requested by the client he furnished written confirmation that the complainant was one of his employees at the time of the alleged dismissal.
6.17 It is clear to me from my investigation that the employment relationship between the complainant and the respondent was a difficult one and that this relationship deteriorated after Mr. A confirmed the complainant was an employee of the respondent in the course of the complainant's unfair dismissal case early in 2000. Section 74(2) of the Act defines
victimisation as follows: "...victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act
or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to
6.18` I note the complainant states that the alleged victimisation of him was motivated by a desire by Mr. A to "pay him back" for taking the unfair dismissal case and that it ultimately resulted in "sham agreements" between them. The complainant has not furnished any evidence to support these assertions - no evidence has been presented by him to show that he was coerced or pressured into terminating his employment with the respondent and signing the sub-contracting agreement in early May, 2000 or that the new arrangement resulted in any penalisation of him. In any event, I consider the complainant's allegations to fall outside of the scope of the definition of victimisation provided in the statute. I note that the complainant further alleges that a secondary motive for Mr. A's victimisation of him was his (the complainant's) rejection of his inappropriate homosexual advances. I have already found at paragraph 6.15 above that the complainant has failed to establish a prima facie case of harassment and it follows that this element of the complainant's complaint also falls. In short, the complainant has failed to establish a prima facie case of victimisation.
7. EQUALITY OFFICER'S DECISION
I find that the complainant has failed to:
(i) establish a prima facie case that he was paid a different rate of remuneration to that paid to two named comparators employed by the respondent to perform "like work";
(ii) establish a prima facie case of discrimination on grounds of sexual orientation contrary to the Act;
(ii) establish a prima facie case of harassment on grounds of sexual orientation contrary to the Act;
(iv) establish a prima facie case of victimisation contrary to the Act.
29 January, 2003
1 S.I. 337 of 2001
2 Gibney v Dublin Corporation