Mr. A -v- An Electronics Company
1.1 The case concerns a claim by Mr. A that an Electronics Company directly discriminated against him 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 his conditions of employment. He also claims that he was victimised within the meaning of section 74(2) of the Act following the referral of his claim to the Tribunal.
2.1 The complainant who is English submits that a colleague made a derogatory reference to his nationality on 28 March 2003. He submits that following his complaint, management failed to deal with it in an appropriate manner and he was subsequently victimised in that management ignored him and gave him a written warning for leaving the workplace two minutes before the designated time. He also submits that his attempt to appeal the warning was ignored. The respondent rejects the contention that it failed to deal with the complainant's complaint in an appropriate manner and submits that the employee who made the remark was reprimanded, she offered to apologise and gave an undertaking not to repeat the behaviour. The respondent also denies the allegation of victimisation.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 15 April 2003. On 3 December 2003, 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 15 December 2003 and from the respondent on 30 January 2004. A submission in respect of victimisation was received from the complainant on 29 March 2004 and from the respondent on 14 June 2004. A joint hearing of the claim was held on 29 September 2004.
3. SUMMARY OF THE COMPLAINANT'S FIRST WRITTEN SUBMISSION
3.1 The complainant submits that on 28 March 2003, a colleague (Ms. D) stated to him "I hate those fucking English bastards over here." He submits that Ms. D is aware of his nationality and has continuously made derogatory references to it.
3.2 The complainant submits that managerial staff in the respondent company failed to deal with his complaint in an appropriate and sensitive manner. When discussing his complaint initially with Mr. C (Engineering and Production Manager) on 2 April 2003, he offered to have Ms. D's employment terminated should the complainant deem it suitable. On 3 April 2003, at a meeting with Mr. C, he was advised that a more senior member of management would be handling his complaint, i.e. Mr. H - the Plant and Personnel Manager. The complainant felt that his complaint was being treated in a trivial way. On 4 April 2003, he submitted his complaint in writing solely for the attention of Mr. H.
3.3 As a result of events, he was forced to abstain from work due to work related stress. He was absent from 04 April 2003 to 11 April 2003. On the day of his return to work, it was common knowledge that Ms. D had been spoken to when he was off sick. He submits that Mr. H and Mr. C walked past his workstation and ignored him.
3.4 On 15 April 2003, Mr. C invited the complainant to his office and disclosed to him that "it" (his complaint) had been noted on Ms. D's file. At that meeting, the complainant expressed surprise as he understood that Mr. H was dealing with his complaint as he had previously submitted his complaint in writing solely for the attention of Mr. H. Mr. C had a copy of the complainant's written complaint and he denied that he had told the complainant that Mr. H would be dealing with his complaint. Mr. C stated that no one had made a complaint against Ms. D previously and the complainant reminded him of Ms. D's suspension at one time. The complainant advised Mr. C that he had a material witness who encountered Ms. D's harassment towards him (the complainant) in February 2002.
3.5 On 18 April 2003, Mr. H (the Plant and Personnel Manager) met the complainant to discuss the situation. He explained that all witnesses to the event on Friday 28 March 2003 had been interviewed. Two days prior to that, the complainant had spoken to Ms. Mc D (a witness to the harassment) about the incident and she explained that she had not been interviewed. For the rest of the meeting, Mr. H raised the issue of his sick cert and asked him if he wished to retract any part of his statement.
3.6 The complainant submits that he continues to be ignored by Mr. H whilst he walks around the factory floor. He submits that Mr. H stops to speak to other staff in front of him, behind him and beside him.
4. SUMMARY OF THE RESPONDENT'S FIRST WRITTEN SUBMISSION
4.1 The respondent does not accept that it failed to deal with the complainant's complaint in an appropriate and sensitive manner. The complaint was investigated by the company and appropriate action was taken. Ms. D who made the offensive remark on 28 March 2003 admitted same, was reprimanded and offered to apologise, giving an undertaking not to repeat the behaviour which she stated was taken out of context and was not intended to cause offence
4.2 The respondent rejects the complainant's statement that Mr. C offered to terminate Ms. D's employment and that Mr. C said that he did not have the appropriate training to deal with the complaint. Mr. C at all times dealt with the complaint in a serious and confidential manner. The complainant was informed that Ms. D had been sanctioned. The details of the sanction is not a matter to which the complainant or any other party should be privy.
4.3 There was absolutely no attempt to embarrass or ignore the complainant. Both Mr. H and Mr. C have occasion to walk through the plant on a regular basis in the course of their duties as Plant Manager and Engineering and Production Manager respectively. It would have been inappropriate to discuss the complainant's complaint with him at his work-station in front of his colleagues. The allegation that the complainant was being ignored is rejected by the company.
4.4 Mr. C communicated the outcome of the investigation to the complainant on 15 April 2003. He was told that Ms. D had been reprimanded and that there should be no further instances of that nature. The respondent disputes the complainant's record of the meeting with Mr. C on 2 April 2003, the meeting with Mr. C on 15 April 2003 and the meeting with Mr. H on 18 April 2003. The respondent rejects that the complainant has been treated as an offender in this situation.
4.5 The respondent does not accept that there has been any discrimination against the complainant. His initial complaint was investigated and appropriate action taken. The company has a comprehensive Grievance Procedure. The complainant did not pursue his complaint through the stages of that procedure. The company has a comprehensive Bullying and Harassment Policy and it does not condone bullying, harassment or any form of discrimination.
5. SUMMARY OF THE COMPLAINANT'S SECOND SUBMISSION (on victimisation)
5.1 The complainant submits that on 17 February 2004, he was advised by his supervisor (Mr. T) when giving him a new clock - card, not to clock out as he had already been clocked out for that day. The next day, he was requested by Mr. T to accompany him to the meeting room. He was informed that he was being given a formal written warning. Mr. T explained that the decision was made by Mr. H as both he and Mr. H had witnessed him driving past Mr. H's office window two minutes before the bell rang signifying the end of the workday. The complainant explained that he had intended to walk to his locker first and then clock out but that Mr. T had told him that he was already clocked out. The complainant refused to acknowledge or sign the written warning. The complainant asked for an explanation of the company's grievance procedure but was given none and was informed that he would have to talk to Mr. H. As a result of the episode, he was detained an extra 14 minutes after his work day usually ends. He raised this issue with Mr. T and was subsequently paid for the minutes.
5.2 The complainant is aware that two colleagues who were late back from lunch the previous night did not receive a written warning for their tardiness and were just told to ensure that they were back in time if they left the building. The next day, the complainant became upset in work and Mr. T took him to one of the meeting rooms. The complainant felt he could not go back there in front of everyone and needed to be at home. He visited his GP and explained to him that he had broken down in work and that he was having restless nights. He was prescribed medication and was given a cert to abstain from work for one week.
5.3 The complainant returned to work on 26 February 2004 and requested a meeting to discuss the written warning which had been given to him as he wished to appeal the decision. Later that day, Mr. T informed him that his presence was required in Mr. H's office. The complainant took a colleague to the meeting with him. Mr. H informed him that the company did not have it in for anybody including him and that he would talk to anybody who wanted to talk to him. The complainant reminded Mr.H that he had not spoken to him in ten months. The complainant asked Mr. H to explain the reason for the written warning and was told it was a separate issue and they could talk about it later. He brought to Mr. H's attention that on the same morning, Mr. T had congratulated him for achieving 92% of his production target and that Mr. T did not indicate that he would be later issuing him with a formal written warning. Mr. H said he did not know what Mr. T had said and Mr. H then said "With the height of respect, I would like to finish this meeting because clearly you are not able to have this meeting." The complainant's attempts to discuss the formal warning he received proved futile and it became clear to the complainant that Mr. H had no intention of justifying his actions and decisions and throughout the course of the meeting, Mr. H answered his telephone four times.
6. SUMMARY OF THE RESPONDENT'S SECOND SUBMISSION (on victimisation)
6.1 The company does not accept that there was any question of victimisation towards the complainant on the dates mentioned in his submission or indeed any other time. In relation to 18 February 2004, it is correct to state that the complainant's supervisor Mr. T congratulated him on achieving 92% of his production target. A first stage warning was issued to the complainant in accordance with the company's Disciplinary Procedure. The warning was issued for departing the workplace before finishing time on 17 February 2004. The complainant had been issued with a new clock card that day and was told that he did not have to clock out as it was unnecessary with the new card. He was expected to depart the workplace at the appropriate time; however, he left the workplace early and was therefore issued with a warning.
6.2 The company at all times allows adequate time to meet employees where matters of a disciplinary nature are involved. Sometimes, the meeting may overrun as a result of normal dialogue or questions raised. It is not the intention of the company to detain any employee outside of their normal working hours and in all cases, employees are paid when this occurs. The fact that the complainant received payment two weeks later is evidence of the company's good faith in this matter.
6.3 In relation to the incident on 19 February 2004, Mr T was informed that the complainant was upset. After some discussion, the complainant asked to go home and the request was granted. The next day, Mr. T was informed that the complainant would be out of work for a week because of depression.
6.4 The company has no evidence of a request by the complainant to discuss the warning on his return to work and rejects the contention that such a request was made. No appeal against the first stage warning was lodged in the context of the company's Disciplinary Procedure. The meeting on 26 February 2004 was requested by Mr. H to clarify two comments made by the complainant to Mr. T that (i) the company was out to get him and (ii) that Mr. H had been avoiding him. Mr. H stated at the outset of the meeting that he only wished to clarify his and the company's position with regard to the two comments made by him. Mr. H believed it was important to assure the complainant that no one in the company was out to get him and to go on record as saying that directly to the complainant. During the meeting, the complainant tried to introduce other issues involving other employees. As the meeting progressed, the complainant became very agitated and in order to avoid any further distress, Mr. H brought the meeting to a close.
6.5 There has been no attempt by the company to single out or treat the complainant in any way differently from other employees, either prior to making his complaint or subsequently. The complainant continues in employment and is afforded the same opportunities and benefits as any other member of staff. He is subject to the same company rules and procedures as all other employees and is dealt with impartially and fairly in the light of those.
7. CONCLUSIONS OF THE EQUALITY OFFICER
7.1 In this case, the complainant alleges that the respondent directly discriminated against him on the race ground and that he was victimised. 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 his conditions of employment. I must consider (i) whether the complainant was harassed on the race ground. 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, I will consider the complainant's claim that he was victimised within the meaning of section 74(2) of the Act. 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.
Establishing a prima facie case
7.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 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.
7.3 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."2
7.4 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"),
7.5 Part IV of the Employment Equality Act, 1998 deals, inter alia, with harassment on eight different grounds. 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. Section 32(1) provides, inter alia, that where an employee (E) harasses another employee (C) by reference to the relevant characteristic of C, i.e. on one of the grounds, 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. 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."
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.
7.6 The complainant alleged that Ms. D stated in his presence "I hate those fucking English bastards coming over here." The respondent in its written submission state
that Ms. D "the employee who made the offensive remarks on 28th March 2003, admitted same, ...." However, it appears from a summary of the investigation prepared by Mr. C that Ms. D did not specifically accept that she made the precise statement in question. In that summary, it is submitted that when questioned about the incident, Ms. D said "Those English bastards are not going to win us." In any case, it is not in dispute that the words "English bastards" were used. In its defence, the respondent submitted at the hearing and relied heavily on the argument that the statement was not directed at the complainant and was taken out of context. This is entirely irrelevant in considering whether an act or conduct amounts to harassment within the meaning of section 32(5) of the Act. Taking into account the provisions of section 32(5) which consists of a subjective and objective test, I consider that the statement by Ms. D referring to "English bastards" constituted harassment of the complainant, as it was unwelcome to him and could reasonably be regarded, in relation to his nationality as offensive, humiliating or intimidating to him. I find that the complainant has established a prima facie case of discrimination on the race ground.
7.7 Whilst clearly not of any binding force in this jurisdiction, I note that there are a number of UK cases concerning negative comments in relation to Irish persons. For example, comments such as "thick Paddy"3 and "typical thick Paddy"4 have been considered by the UK Tribunals. An extract from a publication by the UK Commission on Racial Equality (again of no binding force) titled "Racial harassment: what employers can do about it" (page 9) is helpful in summarising the UK position. "Racial harassment may be deliberate and conscious. But it can also be unintentional; 'I meant no offence', or 'It was just a joke' is a common, sometimes genuine, protest when someone has been oblivious to another person's feelings or sensitivities (see Case 2). Unlawful discrimination as defined by the Race Relations Act need not be conscious, and as a tribunal once remarked, 'it certainly does not need to be motivated; the great majority of people believe they have no prejudices.'
While the intention of the perpetrator may provide an explanation for the harassment, it can never be an excuse. The industrial tribunals have consistently ruled that there can be 'no degree of acceptability' for racist banter and abuse in the workplace. The context is irrelevant, and any use of it is an expression of racial prejudice (see Case 3)."
Action taken by the respondent
7.8 In relation to the meeting on 2 April with Mr. C, the complainant submitted that Mr. C "sought my advice on what further steps to take." In relation to the meeting on 3 April 2003, the complainant submitted that Mr. C "sought confirmation of my intention to make an official complaint. He advised me that due to his heavy workload that he would personally be unable to deal with my complaint and nominated Mr. H as the likely member of management who would deal with my complaint in due course." The complainant stated that on 4 April 2003, he submitted a complaint in writing to Mr. H. He submitted that on 15 April 2003, Mr. C informed him that "he had interviewed all parties concerned (i.e. witnesses and [Ms. D]). He further informed me that "it" had been noted on [Ms D's ] file." The complainant further submits that he had a meeting with Mr. H on 18 April 2003 at Mr. H's request at which Mr. H offered to run through his complaint. He submitted that Mr. H informed him that all parties had been interviewed and then queried his sick cert. He submitted that during the meeting, Mr. H read his complaint three times and offered to have any additions made and that on two separate occasions, he asked was there any part he wished to retract. The complainant also submitted that one of the persons he named as a key witness was not interviewed. The respondent disputes the complainant's version of the meeting and submits that Mr. H enquired as to whether there had been any further incidents and the complainant declined to make any additions to his original complaint.
7.9 The respondent submitted that the complainant's complaint was investigated by the company and appropriate action taken. It submitted that Mr. C, the Engineering and Production Manager was responsible for carrying out the investigation. It submitted that on Tuesday, 1 April 2003, the complainant sought a meeting with Mr. C to discuss his complaint in relation to the incident on Friday, 28 March 2003 and Mr. C then carried out an investigation. It submitted a copy of Mr. C's summary report detailing witnesses interviewed. The report is undated and at the hearing, Mr. C clarified that the report was made on 3 April 2003. Mr. C submitted in his summary that when the complainant complained, he asked him whether there was any connection between a ban on radios (which had been introduced as a result of a complaint by Ms. D who held the position of Post Soldering Assembly Lead Operative in her role as supervisor with operational responsibility) and the fact that he had not reported the incident the day before and that the complainant denied that there was any connection.
7.10 The summary continues:
"I asked him what was his expectation, was he looking for an apology and he said he just wanted to make an official complaint. He entitled his complaint as "Racial discrimination or hatred of English people". He appeared unhappy but gave no indication of what he expected. I tried to prompt him by suggesting various options but he still would not indicate what was the point of the complaint. I told him that we could not necessarily control what people say but the Company's policy was that of equality across all races and nationalities. [X] didn't seem too interested in this so we left it at that for the day."
Mr. C then continued that on the following day, 2 April, he consulted with the complainant's supervisor and Ms. D's supervisor and that they confirmed that there was an ongoing conflict between the two parties. He submits that he then asked the complainant's supervisor to send the complainant to him to confirm that he wanted to proceed and that there wasn't any other underlying issue. The complainant confirmed he wanted to proceed and he then spoke to Ms. D and she stated that she said "Those English bastards are not going to win us."
7.11 Mr. C submitted that he then spoke to Ms. D's named witness and she said she could not remember the incident. He then spoke to two of the complainant's witnesses and both confirmed that the words "English bastards" were used. Mr. C explained at the hearing that the reason he did not interview the third witness named by the complainant was that at that stage, he had interviewed three witnesses and confirmed that an incident had occurred. Mr. C's summary of the investigation states that subsequently after discussion with the Plant Manager, Mr. H, it was decided to reprimand Ms. D "for behaviour unbecoming of a member of staff" and further states that the "decision to make this a formal warning would be determined by her response to counselling by me." Mr. C concludes his report by stating that on 3 April, he met with Ms. D again and "repeated that her behaviour was not acceptable and that she should be more careful about how she spoke in front of other staff members." He does not mention any reprimand in his summary and submitted that he "came away thinking that she could probably do with some supervisor management training as she has only just recently been made a permanent Lead Operative."
7.12 It is clear from Mr. C's summary of the investigation conducted by him that he was unclear how to proceed. For example, his initial reaction to the complainant's complaint was to ask whether there was any connection between the complaint being made on Tuesday (as opposed to Monday) and the radio ban which was introduced the previous day. Additionally, Mr. C submitted that he asked the complainant what his expectation was and whether he was looking for an apology. Regarding the conclusion of the investigation, the respondent submitted in a letter to the Tribunal dated 8 September 2004, that "Details of the sanction that was imposed on Ms. D are recorded electronically on the company's personnel system and details of such sanction are contained within Mr. C's summary report....." However, as mentioned at paragraph 7.10 above, Mr. C concludes his report by stating that on 3 April, he met with Ms. D again and "repeated that her behaviour was not acceptable and that she should be more careful about how she spoke in front of other staff members."
7.13 Mr. C does not mention any reprimand and it is not clear that a reprimand was given to Ms. D particularly in the light of the statement in Mr. C's summary which he submitted was prepared on 3 April 2003 (several months prior to the respondent's written submission received in the Tribunal on 30 January 2004) and wherein he submits that the "decision to make this a formal warning would be determined by her response to counselling by me.". It also appears that at that meeting, issues other than the complainant's complaint were discussed. Mr. C's summary of the investigation states "We then discussed other issues relating to her difficulty with getting certain staff in PSA to carry out their duties in the absence of her supervisor. I told her she could always call on me for help and support. At that point we concluded our meeting." The complainant submitted that at the meeting with Mr. C on 15 April 2003, he was informed that all parties had been interviewed and "it" had been noted on Ms. D's file. Mr. C did not provide a summary of his meeting with the complainant on 15 April 2003. As referred to at paragraph 7.11 above, in its written submission, the respondent submitted that "Details of the sanction that was imposed on [Ms. D] are recorded electronically on the company's personnel system....". At the hearing, it submitted that a one liner is recorded indicating that Ms. D verbally abused a fellow worker on 28 March 2003. It further submitted that its IT Department could not provide a printout of the written record. Mr. C submitted at the hearing that he reprimanded Ms. D for "inappropriate language". I note that there was no reference by the respondent to Ms. D being reprimanded for having harassed the complainant on the nationality ground contrary to the Employment Equality Act, 1998 and I consider that the respondent did not appreciate the consequences of Ms. D's conduct. The respondent's contention that a sanction was imposed on Ms. D is not supported by Mr. C's summary of the investigation or any documentary or other evidence. I, therefore, am not convinced that Ms. D was reprimanded in the form of a verbal warning as submitted at the hearing and if a verbal warning was given, I am not satisfied that the warning related to harassment of the complainant on the nationality ground contrary to the Employment Equality Act, 1998.
7.14 The respondent in its written submission stated that Ms. D offered to apologise. Mr. C submitted at the hearing that he could not remember why the offer by Ms. D to apologise was not passed on to the complainant. There are inconsistencies between the respondent's submission received by the Tribunal on 30 January 2004 which stated that Ms. D "offered to apologise" and Mr. C's summary of the investigation and conclusion which stated that Ms. D "was upset and claimed that it hadn't happened like that, she said she was talking to someone else and that her comment was not directed at [the complainant].". The latter shows no element of acceptance by Ms. D of her behaviour or offer to apologise to the complainant.
7.15 The respondent submitted in its written submission that it has "a comprehensive Bullying and Harassment Policy". However, the document submitted to the Tribunal is titled "Anti-Bullying Policy" which states that the purpose of the Policy is "To ensure that all employees in [F] Electronics Ltd., are treated with respect and dignity. To be able to carry out their duties free from intimidation, humiliation or victimisation from whatever source." It is not clear to me that the Policy deals with harassment within the meaning of the Employment Equality Act, 1998 and it appears to deal with bullying only. I consider that the respondent's lack of clarity on how to deal with the complainant's complaint was exacerbated by it not or informally. The complainant submitted a verbal complaint initially and when he felt that it was not being adequately dealt with, he submitted a complaint in writing to a more senior manager. It appears that the complainant was unclear who was investigating his complaint and believed that it was in fact Mr. H to whom he had made a written complaint. No attempt was made to conduct a formal investigation on foot of the written complaint made by the complainant on 4 April 2003. The reason given for that at the hearing was that after the meeting between the complainant and Mr. H on 18 April 2003, it had been Mr. H's intention to conduct an investigation, however, in the interim, it received notification that a complaint had been forwarded to the Tribunal and he considered that there was therefore no point in proceeding and in his view, he was not afforded an opportunity to conclude his investigation.
7.16 I note that Ms. D held a supervisory role with operational responsibility although she did not have responsibility for personnel issues and was more senior to the complainant. 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 his rights would be protected in the future. I consider that the manner in which the investigation was concluded was totally unsatisfactory. Although the respondent carried out an informal investigation on foot of the complainant's verbal complaint and established that Ms. D had made an unacceptable statement towards the complainant, the employer did not at any stage:
(i) clearly indicate any findings to the complainant in respect of his allegations;
(ii) clearly indicate to Ms. D that such behaviour was unlawful and was regarded by it as serious misconduct;
(iii) acknowledge to the complainant that unacceptable comments had been made to him, or provide him with an apology either on its own behalf or from Ms. D;
(iv) take any apparent steps to ensure that conduct of that nature did not recur.
7.17 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.'
In the present case, there is no doubt but that the statement made by Ms. D was carried out in the course of her employment and notwithstanding that the statement 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
7.18 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)."
At the time of the harassment, the respondent did not have any policies in place in relation to the prevention of harassment on the race ground or any other grounds. It submitted that it is in the process of formalising a number of policies and procedures including an Equality Policy for production in the form of a new Company Handbook. As the respondent had not taken any steps to prevent harassment at the relevant time, it cannot avail of the section 32(6) defence.
7.19 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 -
(a) sought redress under this enactment 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),
7.20 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 he was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith sought redress under the Employment Equality Act, 1998. The complainant referred a complainant to the Equality Tribunal on 15 April 2003. The complainant claims that he was victimised in that Mr H ignores him since the meeting on 18 April 2003, that he was given a written warning for leaving work two minutes early and as a result of the meeting with his supervisor regarding the warning, he was detained for an extra 14 minutes after his work day ended. The complainant submitted that after raising his detention with his supervisor subsequently, he was paid for the minutes. The complainant further submits that his efforts to appeal the written warning have been ignored by management. The respondent disputes that the complainant was victimised. It submits that he has not been singled out or ignored since he chose to exercise his right to lodge a claim with the Tribunal. It submits that a first stage warning for departing the workplace before finishing time was issued to the complainant in accordance with the company's Disciplinary procedure. It further submitted that the fact that the complainant received payment two weeks later for the time he was delayed is evidence of the company's good faith in the matter. The respondent submits that it has no evidence of a request by the complainant for a meeting to discuss the warning which had been given to him and rejects his contention that such a request was made.
7.21 In relation to the first allegation of victimisation, the complainant has not adduced evidence, in the form of witness evidence or otherwise, to substantiate his claim that he was and continues to be ignored, in particular, by Mr. H. I find that he has not therefore, established a prima facie case of discrimination in relation to this allegation. However, I must point out that my finding on this matter should not be interpreted as a finding that the complainant is not being ignored.
7.22 The respondent made available a copy of its Disciplinary Policy which states:
"Where individuals have drifted from established standards of performance or behaviour a disciplinary procedure can help the individual to "get back on the rails". The shortcoming will be pointed out to the individual, and advice as to what needs to be done to correct it will be given. In many instances this counselling is all that is needed. Where the desired improvement has not taken place, further steps may be necessary. These can include verbal warning, written warning and suspension from work."
The Policy provides for a four step process when it "is found necessary to implement the disciplinary procedure." The process consists of
- a first written warning which includes pointing out the deficiency, what must be done to attain the accepted standard and the consequences of continuing below standard,
- a second written warning where the individual does not improve to the required standard within a reasonable time or in the meantime has been given a verbal warning for a different deficiency,
- a final written warning where the person fails to reach the required standard within a reasonable time;
- suspension or dismissal.
7.23 In relation to the second allegation of victimisation, the complainant submitted that he left the workplace two minutes early on 17 February 2004 i.e. at 4.28pm. The complainant's immediate supervisor stated that the complainant left the workplace two to three minutes early and that the bell signifying the end of the workday had not rung by the time he left. In the context of the respondent's Disciplinary Policy which refers to pointing out the shortcoming to the individual and giving advice as to what needs to be done to correct the behaviour in the initial stages, that on the day in question there was in fact no need to clock out as the complainant had just received a new clock card, that the times shown on watches/ clocks may vary by a small amount and that the complainant only left work two minutes early, it is questionable as to why such a severe penalty was imposed. Indeed, the penalty imposed on the complainant may be contrasted with the lesser sanction imposed on Ms. D as submitted by the respondent (although I am not convinced that one was imposed) for harassing the complainant on the race ground. The respondent submitted that Ms. D was given a verbal warning and that the sanction imposed was recorded electronically on the company's personnel system. It is therefore, the case, that a written warning was not issued for what seems to me to be the much more serious offence of unlawful conduct contrary to the Employment Equality Act, 1998. Additionally, a witness on behalf of the complainant gave evidence at the hearing that he was five minutes late back from lunch and was told by Mr. H that he should ensure he was back on time in future. Mr. H agreed that he stated to the witness that if he had to go out at lunch time, he should ensure he was back on time. I note that the respondent's Disciplinary Policy states "Copies of written warnings will be filed in the individuals personnel file. In no case will disciplinary action be taken until that person has had an opportunity to state her/his position." In this case, the complainant was called to a meeting room by his supervisor and given the written warning (which had been prepared before entering the room) without the opportunity to state his position. No explanation was provided by the respondent for imposing such a sanction on the complainant and why it was not dealt with in accordance with its Disciplinary Policy by pointing out the shortcoming to the complainant and giving advice as to what needed to be done to correct it is unclear. I find, on the balance of probability, that the complainant has established a prima facie case of victimisation in respect of the written warning he received which the respondent has failed to rebut.
7.24 The Disciplinary Policy provides that a person may appeal any of the disciplinary steps through the Grievance Procedure. It states that an appeal must be made within five working days if it is to be considered by the Company. The 'Problem Solving and Grievance Procedure' provides that if an employee has a problem or grievance, the problem or grievance should be addressed in the first instance with the employee's immediate Supervisor. If the employee is dissatisfied with the Supervisor's decision, the Supervisor is obliged at the employees request to arrange a meeting with the Department Manager to discuss the problem. If after that meeting, the employee is still dissatisfied with the decision of her/his Department Manager, the Department Manager at the request of the employee will refer the matter to her/his Senior Manager. The Policy further specifies that if all of these steps fail to provide a solution to the problem, the employee may request a meeting with the Managing Director to discuss the problem. The Policy does not provide for the submission of grievances in writing or specifically provide for or refer to an appeal of a disciplinary measure given to an employee.
7.25 The complainant provided a copy of the written warning which was given to him on 18 February 2004. In relation to the third allegation of victimisation, the complainant submits that on 26 February 2004 after a weeks sick leave, he requested a meeting to discuss and appeal the written warning which had been given to him. He submits that at a meeting with Mr. H on that date, Mr. H told him that he did not want to get into the issue of the warning and that he wanted to clear up one point and make it clear that the company did not have it in for him. The complainant submitted that he again tried to raise the issue of the warning and the reasons it was given to him and was told by Mr. H that it was a separate issue and they could talk about it later. The respondent submitted that it had no record or evidence of a request by the complainant for a meeting to discuss the warning and submitted that "No appeal against the first stage warning was lodged in the context of the company's Disciplinary Procedure." It submitted that the meeting on 26 February 2004 was requested by Mr. H (as opposed to the complainant) to clarify two comments which were made by the complainant to his supervisor on 18 February 2004 (being the date the complainant received the written warning) that (i) the company was out to get him and that (ii) Mr H had been avoiding him. At the hearing, Mr. H confirmed that the complainant tried to raise the issue of the written warning but he did not entertain his attempts as the mechanism was to appeal to company's manager, however, he did not submit that he tried to explain that to the complainant.
7.26 Firstly, I am unclear why the company refers in its written submission to no appeal being lodged which suggests a written appeal as there is no mention of such an appeal in the Grievance Policy. At the hearing, it was confirmed that an appeal of a written warning would take place verbally. Indeed, as clarified by Mr. H at the hearing, the complainant tried to raise the issue of the written warning at the meeting on 26 February 2004. At the hearing, the complainant stated that there was a certain inadequacy in the information provided by the company to employees regarding policies, procedures and time limits. The complainant submitted that he was distressed at having received a written warning and was on sick leave the following week. Indeed, the complainant's distress in recalling events was clearly visible at the hearing. The complainant's supervisor confirmed that the day after the complainant received the written warning, he became upset in work. I consider, on balance, that the complainant requested a meeting to discuss and appeal the written warning and that request was ignored by the company. No explanation was provided by the company as to why a meeting was not held with the complainant nor was the time limit issue raised and I find, on the balance of probability, that the complainant has established a prima facie case of victimisation in respect of the appeal of the written
warning which the respondent has failed to rebut.
7.27 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 provides:
"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 Practices also provides that a complaints procedure in a policy should provide for informal and formal methods of resolving problems.
7.28 In considering redress for victimisation, I have considered that victimisation is totally unacceptable as it has the potential to undermine the effectiveness of the equality legislation.
8.1 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 his conditions of employment.
8.2 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.
8.3 In accordance with section 82 of the Act, I hereby order that the respondent:
(i) treat the complainant in the same manner as other employees who have not referred a complaint to the Tribunal;
(ii) provide the complainant with a written apology apologising for the harassment on the race ground and for its victimisation of him;
(iii) pay to the complainant the sum of €5,000.00 compensation in respect of the act 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);
(iv) pay to the complainant the sum of €10,000.00 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);
(v) 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;
(vi) provide an equality training seminar within three months for all staff including senior management to brief them on the provisions of the Employment Equality Acts 1998 -2004.
29 October 2004
1 DEE011 15 February 2001
2 Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
3 1998 IRLR 186
4 1994 DCLD 21