Persaud (represented by Conor Power B.L., instructed by the Equality Authority) -v- The Shelbourne Hotel (represented by Emily Egan B.L., instructed by A & L Goodbody)
1.1 The case concerns a claim by Ms. Tanya Persaud that The Shelbourne Hotel, Dublin directly discriminated against her on the ground of race in terms of section 6(2)(h) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in relation to her conditions of employment. She also claims that she was victimised within the meaning of section 74(2) of the Act following her complaint to her Manager and to the Human Resources Department.
2.1 The complainant submits that she is an Australian national whose father is of Afro- Caribbean origin from the West Indies. She submits that her Manager made derogatory remarks about others of her race and ethnic origin on 15 November 2000. She submits that following her complaint, management failed to deal with it in an appropriate manner and she was subsequently victimised by her Manager. The respondent submits that it had done what was reasonably practicable to prevent harassment at work and that when the issue arose, it did what was reasonably practicable to deal with the complaint. The respondent denied the allegation of victimisation.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 25 May 2001. On 23 July 2002, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 16 April 2004 and from the respondent on 22 June 2004. A joint hearing of the claim was held on 2 November 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant was employed in the position of Personal Assistant to the Food and Beverage Director of the respondent hotel initially for a period of three months. She submits that she was discriminated against, treated less favourably and harassed because of her race contrary to sections 8 and 32 of the Act. The Food and Beverage Director (Mr. M) made derogatory remarks about others of her race and ethnic origin. She reported the incident to the Human Resources Manager (Ms. B) who said she would have a chat with Mr. M. The Human Resources Manager showed the letter of complaint made by the complainant to Mr. M who reacted in a threatening and hostile manner to her. He changed her conditions of work, refused to speak to her and generally made her feel uncomfortable. Despite her employer being aware of the remarks, the complainant's reaction to them and the subsequent behaviour of Mr. M, no investigation was undertaken. It is submitted that this constituted discrimination by the respondent in relation to the complainant's conditions of employment.
3.2 The complainant is an Australian National whose father is of Afro-Caribbean origin from the West Indies. She started working in the hotel on 8 November 1999 and reported directly to the Food and Beverage Director. On 15 November 2000, Mr. M made a number of racist remarks to the complainant. Mr. M was complaining about a person who was a coat attendant and he did not like the way she did things. Mr. M commented that she was "as useless as an African". The complainant asked him to stop the conversation as it was racist but he continued. He proceeded to make derogatory remarks about people in the West Indies and intimated that they were lazy. The complainant then left the office and came back later on and tried to talk to Mr. M but he refused. The complainant submits that at this point, she got upset and left the office again.
3.3 The complainant complained in writing to the Personnel Section on 21 November 2001. She had a meeting with Ms. B (the Human Resources Manager) about the matter and it was agreed between the two of them that the matter would be dealt with informally and that the complainant would withdraw her written complaint. Ms. B asked her if she would like the letter returned but it was agreed that Ms. B would destroy the letter. In breach of that agreement, Ms. B gave the letter to Mr. M. The complainant then received a letter from Mr. M dated 23 November 2000 which contained no apology for the remarks but attempted to justify them. The complainant complained to Human Resources but no investigation or inquiry was undertaken.
3.4 The only response to the complainant's complaint was to give the letter to Mr. M and let him reply directly to her. Nobody was appointed to independently investigate the allegations and despite the fact the complainant continued to work in the hotel until 5 December, no attempt was made by the respondent to investigate the allegation of discrimination and harassment. During those final weeks, Mr. M made matters very difficult for the complainant in that he refused her access to his computer which she needed to be able to carry out her work, accessed private files within her computer and told her he was going to change her conditions of work. The respondent has responded by saying that there has been no breach of the Employment Equality Act, 1998.
3.5 In relation to the claim of harassment under section 32 of the Act, it is submitted that the complainant found the reference to African and West Indian people to be offensive, especially as her father was from the West Indies and of Afro-Caribbean origin. Mr. M was aware of this fact and clearly ought to have been aware that any detrimental references to people of West Indian origin would reflect on and have a detrimental effect on the complainant, particularly in view of Mr. M's previous remark concerning Africans. It is clear from the conversations that the complainant had with Mr. M that his remarks were clearly unwelcome to her as they referred to her race/nationality.
3.6 When the complainant complained to Mr. M, he refused to deal with the matter and the complainant was therefore forced to make a complaint directly to Human Resources. Ms. B in Human resources did not abide by the agreement that she had with the complainant and gave the letter of complaint to Mr. M. This caused an escalation of the difficulties the complainant was having at work. As a result of a conversation that the complainant had with Mr. M on 24 November, he stated to her that he no longer trusted her. He informed her that he had been through her personal computer and printed out letters belonging to her. He went on to state that as a result of her complaints, he wanted to know of her plans to stay with the hotel or if she would leave and he wanted this information by 27 November 2000. He said that if she was going to stay, he would have to implement some guidelines to protect his Department from becoming involved in her personal concerns. It is submitted that this treatment was less favourable and was as a result of her objection to racist remarks.
3.7 In relation to a defence by the respondent, it is submitted that the respondent did not take such steps as were reasonably practicable to prevent the complainant from being treated differently in the workplace or to prevent Mr. M from further harassing and victimising the complainant. The complainant was of the opinion that as a result of the behaviour of Mr. M both in making the initial racist remarks and his behaviour to her afterwards and the failure of the hotel to investigate her claim of harassment; she had no option but to resign. In accordance with section 15 of the Employment Equality act, 1998, it is submitted that the respondent is vicariously liable for the acts of Mr. M.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent rejects the complainant's claim of discrimination and harassment on the race ground and victimisation. The complainant commenced employment with the respondent in November 1999 as a Personal Assistant to the Food and Beverages Director.
4.2 The respondent argues that the complainant's claim in relation to alleged racial harassment has been referred out of time. Without prejudice to that argument, the respondent will contest the allegation that racial harassment took place. Furthermore, the respondent will also argue that it has no liability as it did what was reasonably practicable to prevent harassment. The complainant's first complaint form alleging discriminatory treatment was referred to the Tribunal on 25 May 2001 alleging discrimination on 15 November 2000 and the date of the most recent discrimination as 8 December 2000. A second complaint form in relation to harassment and victimisation was received in the Tribunal on 1 June 2001. To comply with the six months time limit, the alleged incident of harassment should have been referred by 15 May 2001 and is therefore out of time.
4.3 The alleged comment in relation to people from the West Indies was "well then I have been to the West Indies and if you don't tell them to open a restaurant at 10am they don't'." The respondent does not accept that the comment constitutes racial harassment as defined by the Act. The comment is not offensive, humiliating or intimidating to anyone. The complainant appears to be alleging that because her father was West Indian that she found a comment made by the Director offensive and that this amounted to harassment on the grounds of race. The complainant herself is Australian and so to substantiate an argument that discrimination on the race ground occurred, she would have to prove as a preliminary point, harassment on the grounds of racial origin. The only two references to origin on race grounds in the Act relate to ethnic origin and national origin.
4.4 The respondent refers to the UK case of Mandla & anor v. Lee & ors (19830ICR 385, HL) which considered the meaning of ethnic origin and held that there are two essential characteristics to an ethnic group which are:
- A long shared history, of which the group is conscious as distinguishing it from other groups and the memory it keeps alive and
- A cultural tradition of its own, including family and social custom and manners.
In the UK, the term 'national origin' has been interpreted as meaning that at some point in time, on both historical and geographical grounds, a nation existed. The respondent refers to Northern Joint Police Board v. Power  IRLR 610 in this regard. Thus the terms 'nationality' and 'national origins' have different meanings since the former refers to a person's citizenship of an existing recognised State, whereas a person's national origins can apply to a nation which no longer exists.
4.5 West India is not and never was a separate identifiable country. There would not be historical and geographical grounds to show that at one time, a separate country existed. Therefore, the term 'West Indian' is not covered by the terms 'ethnic or national origins'. Thus no breach of the Employment Equality Act, 1998 could have occurred when the Director made a reference to people from the West Indies. Furthermore, the respondent does not accept than the comment is offensive on the grounds of race.
4.6 Without prejudice to its arguments on the time limit issue and that racism did not occur, the respondent also contends that it is not liable as it had done what was reasonably practicable to prevent racism at work. The respondent has a written policy on bullying at work contained in the Human Resources Employee Handbook. The director was briefed on this policy as part of his induction in August 1999 and also attended a presentation on bullying/harassment in the respondent in May 2000. Thus, the respondent had done what was reasonably practicable to prevent racism at work. Furthermore, it was at the instigation of the HR Manager that the conflict between the complainant and the Director came to light. When the complainant's complaint came to the attention of the respondent, it attempted to deal with the issue but obviously, it had to ensure that it was fair to both parties. No investigation took place because there was no time to do so.
4.7 The complainant received the letter from the Director setting out his response to her allegation on Thursday, 23 November. She gave a resignation letter to the Director on 26 November 2003 and copied it to the HR Manager. On receipt of the resignation letter, the HR Manager asked the complainant to reconsider her resignation but the complainant refused to do this.
4.8 As no breach of the Employment equality act, 1998 occurred when the Director made the comment about people from the West Indies to the complainant, then she could not have been victimised in breach of the Act. Neither was the complainant penalised in any way. Thus, victimisation as defined by the Act could not have occurred in this case. The respondent rejects the allegation that the Director reacted in a threatening and hostile manner towards the complainant. It is rejected that he changed her conditions of employment, refused to speak to her or generally made her feel uncomfortable. There was never any further complaint made against the Director. The Director changed the password on his PC. However, this did not prevent the complainant from doing any of her work.
4.9 The respondent has no case to answer in relation to alleged harassment on the grounds of race or alleged victimisation. In relation to alleged racial harassment, the complaint has been referred outside the time limits set down in the legislation and exceptional circumstances do not exist to grant an extension in this case. In any event, no harassment occurred. Furthermore, the respondent did what was reasonably practicable to prevent any alleged harassment occurring. No victimisation occurred as the complainant was not harassed or penalised in any way. The letter from the Director did not penalise the complainant. Furthermore, there is an obligation on the complainant to use the respondent's grievance procedure.
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the race ground and that she was victimised. A preliminary issue arises in relation to whether the complaints of discrimination and victimisation were referred with the statutory time limit. I will consider that issue as a preliminary issue. If I find that the discrimination claim was referred in time, I will consider whether the respondent directly discriminated against the complainant on the race ground in terms of section 6(2)(h) of the Employment Equality Act, 1998 and in contravention of section 8 and 32 of the Act in relation to her conditions of employment. If I find that the complainant was so harassed, I must then consider (ii) whether the complainant's employer is vicariously liable for the harassment and in the event that it is liable, consider as a defence (iii) whether the respondent took reasonable action to prevent the harassment occurring in the workplace. In this case, I will also consider the manner in which the respondent dealt with the complainant's complaint of harassment. Additionally, if I find that the complaint of victimisation was referred in time, I will consider whether the complainant was victimised within the meaning of section 74(2) of the Act. If I find that either complaint was not referred in time, I do not have jurisdiction to investigate it. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
The preliminary issue in relation to time limits
5.2 As referred to in the preceding paragraph, a preliminary issue arose in this case in relation to whether the claim was referred within the time limit for referring a claim under the Employment Equality Act, 1998. Section 77 (5) of the Act provides that ...a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates. Accordingly, a claim of discrimination or victimisation must be referred to the Equality Tribunal within six months of the occurrence of the most recent alleged incident of discrimination or victimisation. The complainant in this case has referred a claim of discrimination on the race ground and a victimisation claim. If the referral in respect of either claim was out of time, I have no jurisdiction to investigate the claim. As the complainant's referral was received on 25 May 2001, the most recent occurrence of any alleged act of discrimination or victimisation must have been no earlier than 26 November 2000. On the referral form, the first incident of discrimination is stated to be 15 November 2000 and the discrimination is submitted to be ongoing with the most recent occurrence stated to be 8 December 2000. However, the period of the complainant's employment is stated in her reference from the respondent to be from 8 November 1999 to 5 December 2000. At the hearing, the complainant clarified that her contract was due to expire on 8 December 2000 but her last working day was actually 5 December 2000. The most recent incident of discrimination or victimisation could not, therefore, have been 8 December 2000 and any discrimination or victimisation could only have occurred up to and including 5 December 2000.
Interpretation of the time limit issue
5.3 The only incident of discrimination on the race ground is alleged to have occurred on 15 November 2000. It appears that a claim in relation to that allegation should therefore have been referred to this office on or before 14 May 2001. The claim was not actually referred to this office until 25 May 2001 and therefore, does not appear to have been referred within the six month statutory time limit. Section 77(5) does not appear to provide for a situation where a claim refers to both discrimination and victimisation and refers to the referral of a claim within six months form the date of the occurrence or the most recent occurrence of the "act of discrimination or victimisation to which the case relates." If the Employment Equality Act, 1998 is considered to be a remedial statute, it would seem that the correct approach to interpretation is the purposive approach. Walsh J stated in relation to the Family Home Protection Act that:
"The Family Home Protection Act is a remedial social statute enacted to protect the interest of the non owning spouse in the family home and to deal with and to seek to remedy the social problem which was created or could be created by the fact that the spouse who owned the family home could effectively put the other spouse out on the street by selling it or mortgaging it. ......... This statute is not to be construed as if it were a conveyancing statute. As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done."1
5.4 More recently in a Supreme Court case, Mc Guinness J stated in relation to the Child Care Act, 1991:
".... There can be no doubt that it is a remedial social statute, and was seen to be such by all who were affected by its provisions. ...... I would therefore accept the submission of the Appellant that the construction of the 1991 Act as a whole should be approached in a purposive manner and that the Act, as stated by Walsh J should be construed as widely and liberally as can fairly be done."2
I note that the purposive approach to interpretation should be applied in interpreting legislation which seeks to implement Community law.3 This could be argued to be the correct interpretation to apply in the light of Council Directive 2000/43/EC which has been implemented into domestic law by the Employment Equality Acts, 1998-2004. However, at the relevant time, I note that there was not a Community law aspect to discrimination on the race ground.
5.5 The Supreme Court has stated in relation to the Employment Appeals Tribunal's application of a time limit rule strictly against a respondent:
"The case arises from a matter which came before the Employment Tribunal, which is one of a number of Tribunals set up to relieve people of what is regarded as the undue technicalities of courts and the expense and the delay. It has a fairly rapid procedure and sits locally, and is, in many ways, intended to be somewhat informal. This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity."4
Section 77(5) of the Act in relation to the time limit for referring a claim is ambiguous in relation to the time limit which applies where the claim is one of discrimination and victimisation and accordingly, the literal approach is not the correct approach to apply. In the light of the caselaw referred to above regarding the purposive approach to statutory interpretation where the legislation is remedial and in the light of the Supreme Court Judgment in the Halal case that Tribunals should be flexible and accessible, I consider that the purposive approach to interpretation of the time limit is the correct approach to adopt.
The time limit in relation to both claims
5.6 The complainant also referred a complaint of victimisation to the Tribunal on 1 June 2001. She submitted in her written submission in relation to that claim that following the incident on 15 November 2000 and her request to Mr. M to stop the comments about Africans and people from the West Indies and her subsequent complaint to Human Resources in relation to the incident, she was victimised. She submits that Mr. M refused her access to his computer, accessed private files on her computer and told her he was going to change her conditions of work. She did not provide dates in her submission in respect of the various alleged incidents. At the hearing, she submitted that Mr. M changed the password on his computer immediately after the incident on 15 November 2000. At the hearing, she explained that she did not have a printer attached to her computer and therefore needed to log on to his computer in order to be able to print documents. She would firstly type the menus on her own PC and then e-mail them to Mr. M. She would then log on to Mr. M's computer and print them. As part of her functions, she also used to respond to Mr. M's e-mails by drafting responses for him and he would read and send them at the end of the day. She submitted that not a day would go by that she would not use/need to use his computer. She submitted that she was not sure of the date that he accessed personal documents on her computer but he gave her the documents he accessed on 24 November and that he told her he was going to change her condition of work at a meeting on that date. At that meeting, he gave her three days to decide whether she was going to stay or leave.
5.7 The complainant submitted that after the incident on 15 November 2000, Mr. M would log on and stand over her whilst she printed the documents she needed to print from his computer. Mr. M was not in attendance at the hearing and has left the employment of the respondent. The complainant's allegation was not disputed by the respondent. The complainant's last working day was Tuesday, 5 December 2000, she would therefore, have carried out her duties including typing and printing menus until that date with Mr. M standing over her in the light of the changed access rights on his computer. It is therefore the case that the victimisation was ongoing to 5 December 2000. Accordingly, adopting a purposive approach to section 77(5), I find that the claims of discrimination and of victimisation fall within the six month time limit for referring a claim and I have jurisdiction to investigate them.
Establishing a prima facie case
5.8 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell5 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.9 More recently, the Labour Court has stated in relation to the burden of proof:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board  ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."6
5.10 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the race ground. Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned 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) provides that as between any two persons, the discriminatory grounds are, inter alia:
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),
Discrimination on the ground of race
5.11 Part IV of the Employment Equality Act, 1998, deals with discrimination on grounds other than gender. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. In relation to the race ground, a comparison may be made between a person who is of a particular race, colour, nationality, ethnic or national origins with a person who is of a different race, colour, nationality, ethnic or national origins. Section 28 of the Act provides that C and D represent two people who differ in relation to any of the eight grounds, e.g. two people who differ in relation to their race or ethnic origin. The complainant in this case submits that the Director of Food and Beverages "made derogatory remarks about others of her race and ethnic origin." She alleges that on 15 November 2000, Mr. M made a number of racist remarks to her commenting that a particular coat attendant was "as useless as an African" and that he then proceeded to make derogatory remarks about people in the West Indies and intimated that they were lazy. The alleged comment in relation to people in the West Indies was "Well then I have been to the West Indies and if you don't tell them to open a restaurant at 10am they don't."
5.12 The first issue that must be addressed is whether these comments were made and the second issue is whether they constitute harassment on the race ground within the meaning of section 32 of the Act in relation to the complainant's conditions of employment. Section 32(1) provides, inter alia, that where an employee (E) harasses another employee (C) by reference to the relevant characteristic of C, at the place of employment or otherwise in the course of the employment of the person harassed, the harassment constitutes discrimination by the victim's employer in relation to the employee's conditions of employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristic as C. Section 32(5) provides that:
"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."
5.13 It is clearly the effect and intention of the Employment Equality Act, 1998 that employees are entitled to expect freedom from being harassed at work on the race ground by gestures, words and written material. In her written submission, the complainant submits that she is an Australian National whose father is of Afro-Caribbean origin from the West Indies. At the hearing, the complainant submitted that her mother is Australian and her father was born in Guyana in the West Indies. She submitted that Mr. M knew her ethnic background and was aware that her father was a West Indies cricket fan as she told him about sending her dad a single red rose when the West Indies team lost a game. She submitted that half of her was West Indian and she understands her background to be West Indian. Whilst noting that Guyana is located in South America, it is culturally and historically tied closely to the former British colonies of the Caribbean and may in that respect be considered a Caribbean nation. However, I am not considering the correctness of the complainant's claim in a geographical sense as it is not necessary for me to do so for the purposes of the claim. I note that section 32(4) provides that "..... any reference in this section to the relevant characteristic of C (or the same relevant characteristic as C) includes a reference to what E believes to be the relevant characteristic of C." Given the complainant's belief that she is of West Indian origin, Mr. M may also have believed her to be of West Indian origin.
The question whether the comments were made
5.14 The first comment that the complainant alleges was made on 15 November 2000 was that Mr. M stated that a particular cloak room attendant "was as bad/useless as the African people" (per her letter of 21 November 2000). The complainant also alleges that on the same date, Mr. M stated "Well then I've been to the West Indies and if you don't tell them to open the restaurant at 10am they don't." Mr. M's letter dated 23 November in response to the complainant's allegation states:
"The comment made on that particular day was not directed at you. I made a comment in relation to having worked with a particular culture, which I am entitled to comment upon from experience."
In its written submission, the respondent states that Mr. M "read the letter and rejected the allegation of racism". Whilst the respondent may interpret the letter as Mr. M rejecting the allegation of racism, he did not deny making the comments and it was not denied at the hearing that the comments were made. The comments were not made in respect of the complainant's nationality which was Australian. She submits that she is of Afro-Caribbean origin from the West Indies and she is claiming that the comments made by Mr. M were offensive to her because of her race and ethnic origin. She submitted at the hearing that she felt that the comments were having a go at her as well and that she did not consider that she was useless. She asked him to stop as his comments "struck a chord" with her.
5.15 The complainant submitted that it was the overall incident on 15 November 2000 that she considers discriminatory on the race ground. The respondent disputed that the particular ground of discrimination arose in the first place. At the hearing, it was submitted by the complainant that the Employment Equality Act, 1998 was designed for use in the workplace and that once some relevance is shown to one of the categories in section 6(2)(h), to give an overly technical approach to interpretation is not appropriate. Section 32(1) refers to harassment "by reference to the relevant characteristic of C" which 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." Accordingly, any harassment under section 32 of the Act must be considered by reference to the "relevant characteristic" of the person harassed and I do not think it is sufficient to say that once the person harassed falls into the category somewhere, that that is enough to base a claim of discrimination under the Act.
Question whether the first comment amounted to harassment on the race ground
5.16 In relation to the first claim that Mr. M commented that a coat attendant was "as useless as an African", the complainant must firstly establish that that she is of a particular race/colour. The proof required to show membership of a particular group was considered in the UK case of Mandla & anor v. Lee & ors7. Lord Fraser stated:
"...., I recognise that "ethnic" conveys a flavour of race but it cannot, in my opinion, have been used in the 1976 Act in a strictly racial or biological sense. For one thing, it would be absurd to suppose that Parliament can have intended that membership of a particular racial group should depend upon scientific proof that a person possessed the relevant distinctive biological characteristics (assuming that such characteristics exist). The practical difficulties of such proof would be prohibitive, and it is clear that Parliament must have used the word in some more popular sense."
I note the non binding nature of the above case and I also note the respondent's statement that the ground in the UK Race Relations Act is identical to the ground in the Irish Act which was disputed by the complainant. When asked at the hearing to clarify the basis on which Mr. M's comment offended her, the complainant stated that she had family and friends in Africa, it was a place close to her and she has seen what people have to go through. In the context of the Employment Equality Act, 1998, I do not consider that membership of a particular racial group can only be established by scientific proof. In any case, in my view, the general evidence in this case does not support the contention that the complainant had any particular African connection or characteristic in a racial sense, however, the evidence supports the complainant's contention that she is of a particular race/colour which is not Caucasoid/Caucasian.
5.17 The complainant clearly found offensive the comment about the coat attendant being as useless as an African as she took issue with Mr. M at the time and subsequently pursued the matter with Human Resources. Taking into account the provisions of section 32(5) which consists of a subjective and objective test, I consider that the statement by Mr. M that someone was as useless as an African constituted harassment of the complainant, as it was unwelcome to her and could reasonably be regarded, in relation to her race or colour as offensive, humiliating or intimidating to her. I find that the complainant has established a prima facie case of discrimination on the race ground which the respondent has failed to rebut.
Question whether the second comment amounted to harassment on the race ground
5.18 In relation to the second allegation of discrimination concerning people from the West Indies, the first issue for the complainant is establishing that she is of a particular race, colour or ethnic origin. As previously stated, the complainant is clearly not Caucasian. She submitted in her written submission that she:
" ....found the detrimental reference to African and West Indian people to be offensive, especially as her father was from the West Indies and of Afro-Caribbean origin. Mr. [M] was aware of this fact and clearly ought to have been aware that any detrimental references to people of West Indian origin would reflect on and have a detrimental effect on Ms. Persaud whose father originated from the West Indies, this was particularly in view of Mr. [M's] previous remarks concerning Africans."
5.19 Again, whilst not commenting on the geographical correctness of the complainant's statement as referred to at paragraph 5.13 above, the complainant considered her father to be from the West Indies and of Afro-Caribbean origin. She submits that she found the comments made offensive to her on the grounds of her race and ethnic origin. As submitted by the respondent, the meaning of ethnic origin was considered in the Mandla8 case in the UK. Lord Fraser considered that for a group to constitute an ethnic group, it must "regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to these two essential characteristics the following characteristics are, in my opinion, relevant' (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it' (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups."
5.20 In the same case, Lord Templeman stated:
"A racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins. I agree with the Court of Appeal that in this context ethnic origins have a good deal in common with the concept of race just as national origins have a good deal in common with the concept of nationality. But the statutory definition of a racial group envisages that a group defined by reference to ethnic origin may be different from a group defined by reference to race, just as a group defined by reference to national origins may be different from a group defined by reference to nationality. In my opinion, for the purposes of the Race Relations Act a group of persons defined by reference to ethnic origins must possess some of the characteristics of a race, namely group descent, a group of geographical origin and a group history."
5.21 It is fundamental to the complainant's claim on the grounds of ethnic origin that there is a distinct ethnic group of Afro Caribbeans and that her ethnic origin is in such a group. It is commonly recognised in UK caselaw that Afro Caribbean people are a distinct ethnic group. The Court of Appeal stated:
"Thus, prima facie, to advertise a post as being confined to Afro-Caribbean and Asian applicants is to indicate an intention to discriminate against all applicants of other ethnic origins and so is unlawful ........"9
Similarly, in a case concerning whether Rastafarians constituted a group defined by reference to ethnic origins, the Employment Appeals Tribunal held:
"There is in our view insufficient to distinguish them from the rest of the Afro-Caribbean community so as to render them a separate group defined by reference to ethnic origins. They are a religious sect and no more."10
5.22 The complainant alleged that Mr. M stated "Well then I have been to the West Indies and if you don't tell then to open a restaurant at 10am they don't." The comment concerned people from the West Indies, however, not all people in the West Indies are of Afro Caribbean origin. Additionally, in my view, the general evidence does not support the complainant's contention that her father was of Afro-Caribbean origin and I consider that there is no evidence to ground a discrimination claim on the basis of the complainant being of Afro-Caribbean ethnic origin. However, the evidence supports the complainant's contention that she is of a particular race/colour which is not Caucasoid/Caucasian. Taking into account the provisions of section 32(5) which consists of a subjective and objective test, I consider that the statement by Mr. M referring to people from the West Indies constituted harassment of the complainant, as it was unwelcome to her and could reasonably be regarded, in relation to her race or colour as offensive, humiliating or intimidating to her. I find that the complainant has established a prima facie case of discrimination on the race ground which the respondent has failed to rebut.
Action taken by the respondent
5.23 The complainant submits that when she met with the Human Resources Manager (Ms. B) on 21 November 2000 in relation to her complaint, it was agreed between the two of them that the matter would be dealt with informally, the complainant would withdraw her written complaint and that Ms. B would destroy the letter. In breach of that agreement, she submits that Ms. B gave the letter to Mr. M. The respondent submits that "At the end of the meeting it was agreed that the HR Manager would talk to the Director. On the following day the HR Manager spoke with the Director and showed him the complainant's letter." It further submitted that "When the issue came to the attention of the respondent it attempted to deal with the issue but obviously had to ensure that it was fair to both parties. No investigation took place because there was not time to do so." I note that the complainant's letter of complaint states "The reason I am only coming to you now, is that it has gone around the hotel somehow about our differences. I wanted you to hear my side first hand." The letter does not suggest that the complainant wanted the respondent to conduct a formal investigation. I am unclear why the respondent has submitted that there was no time to conduct an investigation as the complainant complained on 21 November 2000 and although she handed in her notice on 26 November 2000, she did not cease work until 5 December 2000 (two weeks later). However, I do accept that there was limited time to conduct and conclude an investigation. It is not in dispute that it was agreed by Ms. B and the complainant that she would "talk to the Director". Ms. B gave evidence at the hearing that she started off not showing Mr. M the complainant's letter of complaint. Arising from their initial discussions in relation to the letter, Mr. M was emotional because of the contents, he disputed facts and she then proceeded to go through the letter in detail with him as she considered she needed to show him the contents of the letter to get to the bottom of the matter. She submitted that the meeting was quite heated and emotional. She also submitted that she now questions whether she should have shown him the letter and agreed that she did not tell the complainant that she had shown her letter to Mr. M.
5.24 The respondent did not appear to know how to deal with the complainant's allegations and attempted to investigate them by means of an initial informal method which then became a formal method when Ms. B showed the complainant's written complaint to Mr. M. However, the informal investigation was never concluded and the manner in which the complaint was handled resulted in Mr. M responding in writing directly to the complainant. The respondent clearly did not clarify for either the complainant or Mr. M how the complaint and investigation would be handled and it did not make any findings in relation to the investigation(s) it attempted to conduct. The respondent had an obligation to ensure that conduct of such nature as occurred did not happen in the workplace by putting in place appropriate policies, staff training, and effective human resource management. It also had a responsibility to investigate allegations fairly and thoroughly and if the allegations proved to be substantiated, to clearly re-affirm that such conduct was unacceptable including if necessary, taking disciplinary measures against the persons involved, taking appropriate measures to prevent recurrence and reassuring the complainant that her rights would be protected in the future. The respondent did not at any stage:
(i) indicate to both parties the manner in which the complainant's complaint would be dealt with;
(ii) deal with the complainant's complainant in accordance with either the informal manner of investigation or formal manner;
(iii) clearly indicate any findings to the complainant in respect of her allegations;
(iv) clearly indicate to Mr. M that such behaviour was unlawful and was regarded by it as serious misconduct;
(v) acknowledge to the complainant that unacceptable comments had been made to her, or provide her with an apology either on its own behalf or from Mr. M;
(vi) take any apparent steps to ensure that conduct of that nature did not recur.
5.25 Section 15(1) of the Employment Equality Act, 1998 provides:
'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 without the employer's knowledge or approval.'
I note that Mr. M held a management role within the respondent organisation and was more senior to the complainant. In the present case, there is no doubt but that the statements made by Mr. M were carried out in the course of his employment and notwithstanding that the statements may have been made without the employer's knowledge or approval, the respondent is vicariously liable for the actions of its employee.
Section 32(6) Defence
5.26 In accordance with section 32(6), it is a defence for an employer to show that he took such steps as are reasonably practicable to prevent the harassment taking place.
Section 32(6) provides that:
"If, as a result of any act or conduct of E another person ("F") who is C's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against C, it shall be a defence for F to prove that F took such steps as are reasonably practicable-
(b) in a case where subsection (1) applies ....... to prevent E from harassing C (or any class of persons of whom C is one)."
5.27 The respondent submits that it "has a written policy on bullying at work contained in the Human Resources Employee Handbook. (Copy attached in appendix 5) Race is specifically referred to in the policy. The Director was briefed on this policy as part of his induction in August 1999 and also attended a presentation on bullying/harassment in the respondent in May 2000." I have examined the document referred to and it is headed "Policy Statement on Bullying". It states "The Shelbourne Hotel is committed to ensuring that the work environment gives all employees the freedom to do their work without having to suffer bullying and intimidation...... There are many forms of bullying which can relate to race, religion, sex, national origin, disability, age or sexual orientation." The policy gives examples of bullying behaviour and details a procedure for dealing with allegations of bullying. There is no reference to harassment on the nine grounds in the context of the Employment Equality Act, 1998 and it appears that the respondent did not have an Equality policy in place dealing, inter alia, with the prevention of harassment in the workplace and detailing how complaints of harassment would be dealt with. The manner in which the respondent dealt with the complainant's complaint was unsatisfactory and the failure to have an Equality Policy in place in all probability contributed to that. At the time of the harassment, the respondent did not have an Equality Policy in place in relation to the prevention of harassment on the race ground or any of the other grounds. As the respondent had not taken any steps to prevent harassment at the relevant time, it cannot avail of the section 32(6) defence.
5.28 In making my decision in this case, I have had regard to the Code of Practice on Sexual Harassment and Harassment at Work (S.I. No. 78 of 2002) which may be taken into account by me in accordance with section 56(4) of the Employment Equality Act, 1998. The Code of Practice at section 4 dealing with a Policy on sexual harassment and harassment provides:
"Prevention is the best way to minimise sexual harassment and harassment in the workplace. An effective policy, and a strong commitment to implementing it is required. The purpose of an effective policy is not simply to prevent unlawful behaviour but to encourage best practice and a safe and harmonious workplace where such behaviour is unlikely to occur. This policy is likely to be more effective when it is linked to a broader policy of promoting equality of opportunity. Employers should adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment."
It further provides in relation to the Definition section of a policy that:
"(d) the policy should emphasise that it is up to the employee to decide what behaviour is unwelcome irrespective of the attitude of others to the matter;
(e) the policy should state that employees who make a complaint or who give evidence in proceedings etc. will not be victimised."
The Code of Practice also provides that a complaints procedure in a policy should provide for informal and formal methods of resolving problems.
5.29 Section 74(2) of the Act provides, inter alia, that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith -
"(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,"
5.30 The first issue for consideration by me is whether the complainant in the present case has established a prima facie case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. The complainant submits that arising from her complaint to Mr. M on 15 November regarding his comments and her complaint to Human Resources subsequently, in the final weeks of her employment, Mr. M made matters very difficult for her in that (i) he refused her access to his computer to which she needed access to be able to carry out her work, (ii) accessed private files within her computer and (iii) told her he was going to change her conditions of work.
5.31 The letter dated 23 November 2000 from the Manager to the complainant following her complaint to Human Resources states:
"As opposed to your letter, you will see that my response is clear of any emotional content and is strictly professional. Although I have to admit that I was astonished by the contents and tone of your letter. I will not go into all the details but I do feel it necessary to address some major concerns I have with your letter. I am appalled that you would write such comments and verbally pass them onto some of my HOD's....... The nature of the above concern is very subjective. However, I understood your frustration and will organise myself in your presence not to talk about anything other than your direct job role. .... I am really concerned by your incapacity to keep control of your emotions. I am also putting a question mark on your ability to refrain yourself from talking to others about the information and discussion that had taken place in my office. I no longer trust that confidentiality is guaranteed. In a light of the above, I consider your attitude to be a poor payback. I take it as a professional lack of respect for the hierarchy and as a personal offence. ..... I expect from you to revert back by writing to all the people you have involved in this personal issue and to take back the comment you made against me in writing directly to myself and copied to the HR Manager. Finally, in a light of the above, I have decided to implement some guidelines which will protect my department from becoming involved in your personal concerns. I will issue you with them at my earliest convenience."
5.32 The respondent in its written submission rejected the allegation that the Director reacted in a threatening and hostile manner towards the complainant. It rejected that the Director changed her conditions of employment, refused to speak to her or generally made her feel uncomfortable. It accepted that the Director changed the password on his PC but submitted that this did not prevent the complainant from doing any of her work. At the hearing, it was not disputed that the Director took the three actions referred to by the complainant at paragraph 5.30 above. The letter of 23 November 2000 indicates Mr. M's reaction to the complainant's complaint about his statements. It confirms Mr. M's intention to take action arising from her complaint. The first allegation by the complainant was that the Director refused the complainant access to his computer. The respondent accepts that the Director changed the password on his PC. The complainant had access to Mr. M's computer for the first year of her employment and no explanation was offered by the respondent for Mr. M's actions following the complainant's complaint. I, therefore, find, that the complainant has established a prima facie case of victimisation in relation to that particular action by Mr. M which the respondent has failed to rebut. In relation to the other allegation that he accessed private files on her computer on 24 November 2000 and told her in the letter dated 23 November and at a meeting on 24 November that he was going to change her conditions of work (although he did not have the power to do so), no explanation was provided by the respondent in relation to the manager's actions. On the balance of probabilities, I therefore, find, that the complainant has established a prima facie case of victimisation which the respondent has failed to rebut.
5.33 The respondent submitted that it "has a written grievance procedure, which was never used by the complainant in relation to this issue." and further submits that the complainant "should have used the Hotel's grievance procedure" . It referred to the Labour Court Determination in A Company -v- A Worker.11 That case concerned alleged constructive dismissal on the disability ground under section 77 of the Employment Equality Act, 1998. The Labour Court stated that considering whether the claimant had been constructively dismissed required consideration of the reasonableness of the employee in refusing to accept any changes in the terms and conditions of employment. The Labour Court stated:
"A constructive dismissal is one where the employee terminates the contract of employment in circumstances in which, because of the employer's conduct, either the claimant was entitled to terminate the contract without notice or it was reasonable for the claimant to terminate it. There exists in the continuing relationship of the employer and employee a mutual need for trust and confidence. In considering whether the claimant has been constructively dismissed, the reasonableness of the employee in refusing to accept any changes in the terms and conditions of employment will be considered in the light of the circumstances and good industrial relations. Thus the employee will be expected to have pursued their grievance through the appropriate procedures.
5.34 I have already referred to the respondent's policy on bullying at paragraph 5.27 above and that at the relevant time, the respondent did not have an Equality Policy in place. The case cited by the respondent relates to a constructive dismissal claim whereas the case before me relates to discriminatory treatment. The Labour Court did not state that the appropriate way for an employee to proceed in all cases is through the Grievance Procedure and referred only to pursuing a grievance through the "appropriate procedures." In the case cited, the employee had a grievance with her general terms and conditions of employment. It must be pointed out that what was at issue here was not a general grievance but harassment contrary to the Employment Equality Act, 1998. Any issues arising in that context should be addressed through the provisions of the Employer's Equality Policy drawn up in accordance with the Code of Practice on Sexual Harassment and Harassment at Work (S.I. No. 78 of 2002).
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the race ground in terms of section 6(2)(h) of the Employment Equality Act, 1998 contrary to section 8 and 32 of the Act in relation to her conditions of employment.
6.2 On the basis of the foregoing, I also find that the respondent victimised the complainant in terms of section 74 of the Employment Equality Act, 1998.
6.3 In accordance with section 82 of the Act, I hereby order that the respondent:
(i) provide the complainant with a written apology apologising for the harassment on the race ground and for its victimisation of her;
(ii) pay to the complainant the sum of €2,000.00 compensation in respect of the acts of discrimination (This award relates to compensation for harassment, distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(iii) pay to the complainant the sum of €5,000.00 compensation in respect of the acts of victimisation (This award relates to compensation for harassment, distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(iv) draft an Equality Policy which takes account of the provisions of the Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002 (S.I No. 78 of 2002) and effectively communicate the document to all relevant persons including management;
(v) provide an equality training seminar within three months for management and inform all staff of the provisions of the Employment Equality Acts 1998-2004.
20 December 2004
1 Bank of Ireland v. Purcell 1989 IR 327
2 Western Health Board v. M (K) unreported 21 December 2001
3 Murphy & ors v. Telecom Eireann No:2  ILRM 53 & Nathan v. Bailey Gibson 1998 2 IR 162
4 Halal Meat Packers Ltd v. E.A.T.  ILRM 293
5 DEE011 15 February 2001
6 Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
7 House of Lords UK 1983 (2) WLR 620
8 House of Lords, UK 1983 (2) WLR 620
9 London Borough of Lambeth v. Commission for Racial Equality  IRLR 231
10 Crown Suppliers (PSA) v. Dawkins  IRLR 327
11 ED/01/11 Determination No. 021 23 January 2002