MS. G AND A HOTEL RESERVATION AGENCY (REPRESENTED BY ARTHUR COX - SOLICITORS)
This dispute involves a claim by Ms. G that she was (i) discriminated against and (ii) harassed by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Act, 1998 and in contravention of sections 8 and 32 of that Act. The complainant further contends that she was discriminated against by the respondent on grounds of gender in terms of section 6(2) of the Act and in contravention of section 23 of the Act in that she was sexually harassed by a work colleague. In accordance with the Equality Tribunal’s normal practice in claims of sexual harassment the names of the parties involved have been withheld.
2.1 The complainant is a Polish citizen and commenced employment with the respondent in May, 2001 as a reservation sales agent. She contends that she was harassed by her immediate Line Manager and another colleague on grounds of race on a number of occasions and that this alleged treatment of her culminated in her being issued with a verbal warning by the Line Manager in March, 2003. She adds that when she raised her concerns with the respondent it did not conduct its investigation of her complaint in a manner which permits it to rely on the defence at section 32(6) of the Act. She further contends that she was subjected to less favourable treatment by the respondent, also on grounds of race, in respect of the manner in which it applied its disciplinary procedures to her in March, 2003. The complainant also alleges that she was sexually harassed by a colleague in May, 2003 and submits that when she reported these matters to the respondent it did not conduct its investigation of the complaint in a manner which permits it to rely on the defence at section 23(5) of the Act. The respondent denies that the complainant was treated less favourably on grounds of race. It further contends that it conducted all of its investigations into Ms. G’s complaints in a manner which enables it rely on the relevant defences under the Act.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on12 September, 2003. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act on 16 March, 2004. Written submissions were received from both parties and a Hearing of the complaint took place on23 March, 2005, the earliest date that was suitable to both parties. A number of issues emerged at the hearing which gave rise to further correspondence with the parties subsequent to the hearing. This process concluded on 9 August, 2005.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant is a Polish citizen and commenced employment with the respondent in May, 2001 as a reservation sales agent. She contends that her immediate Line Manager Ms. A treated her in a manner which constitutes harassment of her on grounds of race contrary to the Act. She states that this treatment of her culminated in Ms. A giving her a verbal warning for being absent from her workstation on the morning of 12 March, 2003– a punishment which she considers excessive. The complainant adds that when she raised her concerns with Ms. B (Office Manager) and Ms. N (HR Manager) they did not conduct their investigation in a thorough and confidential manner. The complainant further alleges she was racially harassed by another work colleague Mr. Z in that he made derogatory comments to her about Polish nationals and that when she reported the matter it was not investigated by the respondent. She submits that the respondent’s failure to deal with her complaints in a reasonable manner does not permit it to rely on the defence at section 32(6) of the Acts.
3.2 The complainant states that she was suspended from work on full pay pending the outcome of an investigation into allegations of gross misconduct as outlined in the Staff Handbook in respect of abuse of company property. The complainant denies that she was ever given a copy of the Handbook and was therefore unaware of the potential consequences of her actions. The investigation centred on a series of internal e-mails between the complainant and two of her colleagues – Ms. C (who was French) and Ms. X (who was Irish) which came to light following an audit of the e-mail system carried out by Ms. B. The complainant states that the investigation, which was carried out by Ms. N, was unfair to her in that she was denied the opportunity to put her side of events forward. She adds that following the investigation she was given a final warning and contends that this constitutes less favourable treatment of her on grounds of race, as her Irish colleague (Ms. X) was not given the same punishment for her part in the incident.
3.3 The complainant states that she wrote to the respondent on 12 May, 2003 invoking the respondent’s internal grievance procedures and made, inter alia, allegations of sexual harassment and racial harassment against a work colleague, Mr. Z. She accepts that she agreed the approach set out by the respondent in respect of its investigation on her allegation of sexual harassment, which was communicated to her on 15 May, 2003. She contends however, that the investigation process was neither fair nor thorough. She asserts that Mr. Z was permitted to remain in work pending the investigation of her complaint and that he was dismissed by the respondent for absenteeism prior to the outcome of the investigation emerging in an effort to protect his reputation. The complainant submits that notwithstanding the fact that the respondent’s internal investigation upheld her allegations of sexual harassment, the manner in which the company handled the process could not be regarded as reasonable in terms of the defence at section 23(5) of the Acts.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent states that the complainant was issued with a verbal warning on 12 March, 2003 as a result of an incident where she was late logging on to her computer that morning and was rude to her Line Manager when she addressed the matter with her. It adds the complainant had also been rude to her colleagues in the preceding weeks. In addition, the respondent states these were not isolated incidents and that it had found it necessary to raise issues concerning the complainant’s attitude and behaviour at work with her on three previous occasions - September, 2002, January, 2004 and February, 2004. The complainant was not happy with the warning and raised the matter with Ms. B and Ms. N. They met with the complainant on 14 March, 2003 and the complainant accused her Line Manager and two other managers of bullying her. The respondent interviewed the managers concerned (having informed the complainant of same) and came to the conclusion that whilst there were tensions in the complainant’s department, there was no evidence to uphold her claim of bullying. The respondent states that the complainant was informed of this conclusion by Ms. B and Ms. N at a meeting on 18 March, 2003 during which the complainant indicated she was happy with the process and outcome. In conclusion on this point the respondent submits that the Employment Equality legislation does not cover claims of bullying and notwithstanding this it argues that it investigated the complainant’s grievances in a fair and thorough manner and is therefore entitled to rely on the defence at section 32(5) of the Act.
4.2 The respondent states that whilst there was an unwritten acceptance that staff used the e-mail system for personal purposes, the process was being abused and Management were “keeping an eye on things”. An audit of the system was conducted by Ms. B in mid March, 2003 and a significant amount of abusive and offensive e-mails were discovered. These e-mails had been created and transmitted by the complainant, Ms. C and Ms. X and referred to other colleagues in a crude manner with the use of foul language. In accordance with the Staff Handbook the complainant and Ms. C were suspended on full pay on21 March, 2003 pending an investigation. Ms. X was not suspended because Ms. N considered her involvement in the incident to be less than the others. The respondent states that the complainant and Ms. C did not deny their involvement in the creation and transmission of the e-mails. An investigation of the issue was conducted by Ms. N and she found the complainant and Ms. C to be guilty of gross misconduct. Disciplinary meetings were held on 3 April, 2003 which were presided over by Ms. Y, the respondent’s Vice President of International Operations, at which both employees were given an opportunity to state their case and the outcome of the disciplinary process was that both employees were issued with a final written warning the following day. The respondent states that Ms. X was issued with a verbal warning because her involvement was less, the tone and content of the texts were not as offensive as the others and when confronted about the matter she had shown genuine remorse. The respondent submits that it conducted the disciplinary procedure in a manner which accorded with the Staff Handbook and did not treat the complainant in a less favourable manner because of her Polish nationality.
4.3 The respondent accepts that the complainant wrote to it on 12 May, 2003 in which she made complaints of sexual harassment and racial harassment against a named colleague Ms. Z and allegations of bullying against Ms. A. The respondent states that as far as it was concerned no new allegations of bullying came to light at this time to those covered in the meeting of18 March, 2003. The respondent’s Vice President (Ms. Y) and Ms. N met separately with the complainant on 5 June, 2003and the matter was discussed. The respondent states that the complainant indicated at this meeting that she was not making a new allegation of bullying and she subsequently withdrew her complaint on this issue by way of letter dated10 June, 2003. Consequently, the respondent considered the matter closed. The respondent states that the complainant did not offer any evidence to support her claim of racial harassment by Mr. Z and her claim was not upheld. It adds that her complaint of sexual harassment by Mr. Z was upheld following an investigation by Ms. N. However, the investigation did not conclude until20 June, 2003. Mr. Z had given notice of his resignation on 2 June, 2003 and left its employment on 9 June, 2003and consequently, the respondent states that it was unable to deal with the matter further. Notwithstanding this argument, it submits that it responded in a prompt and professional manner to Ms. G’s complaint which permits it to rely on the defence under section 23(6) of the Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not Ms. G was (i) discriminated against and harassed by the respondent on grounds of race in terms of section 6(2) of the Employment Equality Act, 1998 and in contravention of sections 8 and 32 of that Act and (ii) sexually harassed by the respondent on grounds of gender in terms of section 6(2) of the Act and in contravention of section 23 of the Act. In reaching my decision I have taken into account all submissions, both oral and written, made to me by the parties. The Tribunal does not have jurisdiction to investigate allegations of bullying unless the alleged incidents fall within the definition of harassment on the relevant discriminatory ground.
5.2 Section 6 of the Act provides that discrimination will be taken to have occurred “where on any of the…. ‘discriminatory grounds’ one person is treated less favourably than another is, has been ….”. The same section also defines the ground of race as between any two persons “that they are of different race, colour, nationality or ethnic or national origins” and the gender ground as “that one is a woman and the other is man”. Section 8 of the Acts provides that: “(1) In relation to—
(a) Access to employment,
(b) conditions of employment, …an employer shall not discriminate against an employee or prospective employee…”
(6) Without prejudice to the generality of subsection (1) an employer shall be taken to discriminate against an employee….. in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not afford the employee…..
(c) the same treatment in relation to ……disciplinary measures as it affords to another person… where the circumstances in which both such persons are employed are not materially different.”
5.3 Section 23 of the Acts provide as follows:
(1) If, at a place where A is employed (in this section referred to as "the workplace"), or otherwise in the course of A's employment, B sexually harasses A and either —
(a) A and B are both employed at that place or by the same employer,…then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.
(3) For the purposes of this Act: (c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A.
(5) If, as a result of any act or conduct of B, another person ("the Employer") who is A's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against A, it shall be a defence for the Employer to prove that the Employer took such steps as are reasonably practicable—
(a) … to prevent A being treated differently in the workplace or otherwise in the course of A's employment and, if and so far as any such treatment has occurred, to reverse the effects of it, and
(b) …. to prevent B from sexually harassing A (or any class of persons of whom A is one).
Section 32 of the Acts defines harassment on grounds of race and provides a defence for an Employer in similar terms.
5.4 It is the established practice of this Tribunal and the Labour Court to apply a procedural rule concerning the burden of proof in non-gender claims of discrimination similar to that applied in gender based discrimination claims and I propose to follow that approach in the instant case. This requires the complainant to establish, in the first instance, facts from which it can be inferred that she was treated less favourably on grounds cited. It is only when the complainant has discharged that obligation to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.5 The complainant alleges that she was harassed on grounds of race by her immediate Line Manager Ms. A. Having regard to the totality of the evidence submitted I do not accept this was the case. I am satisfied that there were factors unrelated to her nationality which resulted in her receiving a verbal warning on 12 March, 2003 and that this sanction was in accordance with the Staff Handbook. I am also satisfied that when she raised this matter with Ms. B and Ms. N they handled the matter in an appropriate manner and were entitled to reach the conclusions they did. For completeness on this issue my investigation only addressed those incidents mentioned by the complainant which could be construed as constituting harassment under the Acts and did not extend to other incidents which the complainant described as bullying. The complainant offered no evidence in support of her contention that she was racially harassed by Mr. Z and I find that she has failed to establish a prima facie case of harassment on grounds of race in respect of those allegations. I note the respondent’s investigation on foot on Ms. G’s letter of12 May, 2003 covered these allegations. I would comment that had the complainant established a prima facie case of harassment on this issue it is highly unlikely that the actions of the respondent, which in my view were virtually non -existent, would have enabled it rely of the defence at section 32(6) of the Acts.
5.6 The complainant submits that she was treated less favourably than a colleague (Ms.X) in terms of the application of the respondent’s disciplinary procedure to them following the discovery of offensive messages on the internal e-mail system. The complainant accepts that she was involving in composing and transmitting the offensive e-mails to two of her colleagues - Ms. C and Ms. X. She contends that she was unaware of the potential consequences of her actions as she had not received a copy of the Staff Handbook on the commencement of her employment. On the basis of the evidence presented I do not accept the complainant’s assertion on this point and I am satisfied, on balance, that she was furnished with a copy of the Handbook shortly after she commenced work with the respondent. The respondent furnished copies of the offensive e-mails to me. It is not my task to decide whether or not the sanction imposed was warranted or excessive, rather it is my role to examine whether or not the process itself or the sanction imposed demonstrate a bias against the complainant because of her nationality. Having regard to the totality of the evidence on this point I am satisfied that the complainant’s involvement in the incident was greater than Ms. X’s and that the tone and content of the e-mails she created was cruder and more abusive than those created by Ms. X. In addition, I note that she was on a verbal warning at this time. In the circumstances I find that the complainant has failed to establish a prima facie case that she was treated less favourably on the basis of her nationality and her claim must therefore fail. In the interests of completeness I would add that in my opinion the respondent conducted the entire process in a non-discriminatory manner.
5.7 The complainant made her complaint of sexual harassment, racial harassment and bullying to the respondent on 12 May, 2003. The respondent acknowledged her letter three days later, setting out a plan of action in respect of the investigation of the complaint for her consideration. This agreement was received by the respondent on 21 May, 2003, Mr. Z was notified in writing of the allegations that day and his legal representative responded two days later denying those allegations. I am satisfied that the respondent’s aforementioned actions constitute a prompt response on its part. However, the respondent did not seek statements from the witnesses identified in the complainant’s letter of complaint until 17 June, 2003 although it was in a position to do so – which is contrary to its own policy statement on sexual harassment where it states that an investigation will be conducted promptly - and it can offer no explanation for this delay. I note that by this time Mr. Z had left the respondent’s employment - he had tendered his written resignation on 2 June, 2003 (due to expire on 28 June, 2003) and left on 9 June without serving his notice. The investigation conducted by Ms. N made a finding of fact that the complainant had been sexually harassed by Mr. Z. These findings were never disputed by the respondent in the course of my investigation and I therefore accept them as fact. The respondent submits that it could not take any further action on the matter as Mr. Z had left the organisation. I do not accept this proposition. Given that no sanction could be imposed on Mr. Z, I am of the view that the least it could have done was to acknowledge the distress suffered by the complainant and apologise for the behaviour of Mr. Z – given that it is liable for his actions under the Acts and it was responsible for the delay in the investigation process. It could also have used the situation to heighten staff awareness on the issue of sexual harassment within the organisation and re-iterate it policy on the matter. However, it took no action at all, instead deciding that it could not take the matter further as Mr. Z had left its employment. In the circumstances I am not satisfied that the respondent did all that was reasonably practicable to reverse the effects of the treatment of the complainant and it cannot therefore rely on the defence at section 23(5) of the Act.
6. DECISION OF THE EQUALITY OFFICER
6.1 I find that –
(i) the complainant has failed to establish a prima facie case of harassment and discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998 -2004 and contrary to those Acts;
(ii) the respondent discriminated against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 23 of those Acts, when she was sexually harassed by a colleague.
6.2 In light of the circumstances of this case I consider monetary compensation to be the most appropriate form of redress. I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2004 that the respondent pay the complainant €5,000 by way of compensation for the distress suffered by her as a result of the discrimination. This award does not contain any element in respect of loss of income on the part of the complainant.
28 October, 2005
1] Citibank v Masinde Ntoko EED045 of 8 March, 2004 and Icon Clinical Research v Djemma Tsourova ED/04/2