Thornton - v - Cheeverstown House Ltd.
(Represented by IBEC)
This dispute involves a claim by Ms. Marie Thornton that she was (i) discriminated against by Cheeverstown House Ltd. on grounds of religion, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts, (ii) harassed on grounds of religion, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 14A of those Acts and (ii) victimised in terms of section 74(2) of the Acts when she referred her complaint to the Equality Tribunal.
2.1 The complainant works as a Social Care Leader with the respondent. She alleges that two of her colleagues made comments to her on 3 November, 2004 which she considers were offensive and humiliating to her on grounds of her religious belief - she is a member of the Church of Ireland. She contends that this behaviour constitutes harassment of her contrary to section 14A of the Employment Equality Acts, 1998 - 2004. The complainant further contends that when she reported the matter (and other issues) to Management she was penalised in circumstances which she believes constitute victimisation of her contrary to the Acts. Finally, the complainant contends that she was treated less favourably on grounds of her religion in respect of certain aspects of her conditions of employment. The respondent rejects the allegations in their entirety and notwithstanding this submits that upon becoming aware of Ms. Thornton's complaint on 11 November, 2004 it acted in a manner which permits it to rely on the defence available at section 14A(2) of the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 -2004 to the Equality Tribunal on 16 November, 2004. In accordance with her powers under the Acts 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 Acts. Written submissions were received from both parties and a hearing of the complaint took place on 16 January, 2006.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is a member of the Church of Ireland. She alleges that on 3 November, 2004 two of her colleagues (Ms. A and Ms. B) made remarks that "she was a left footer" and that she "didn't believe in Our Lady" whilst they were working together. The complainant adds that both of her colleagues seemed amused at the fact that she did not understand the term "left footer" and when they explained it to her she found it and the other remark to be offensive to her on grounds of her religion. She states that she reported the matter to the respondent's Management on 11 November, 2004 and asked that it be investigated along with a number of other issues which were of concern to her, several of which involved Ms. A - the most serious of which was her belief that she (the complainant) was on report. The complainant contends that the alleged treatment of her constitutes harassment on grounds of religion contrary to section 14A of the Employment Equality Acts, 1998-2004.
3.2 The complainant states that on 7 November, 2004 she spoke on the telephone with the respondent's Assistant Manager Community Services (Mr. C). She alleges that in the course of this conversation he refused her annual leave and used disparaging language to her. She further states that she applied for annual leave/privilege time on 19 and 20 September, 2005 through the normal channels. She was unable to confirm that her request had been granted and reported for duty in the circumstances. She adds that on her arrival Mr. C informed her she was not required and sent her home. The complainant also states that having reported for duty on 23 September, 2005 she was initially assigned to one location to find that this was not the case and was then assigned to another location. This location also had sufficient levels of staff and she was assigned a third location. She contends that during the course of this process Mr. C did not speak with her once, choosing to relay his instruction via a third person. The complainant submits that this treatment of her constitutes discrimination and/or victimisation of her contrary to the Acts.
3.3 The complainant suffered a family bereavement in tragic circumstances in January, 2005. She subsequently took time off work on sick leave, although she claims this was due to the stress and bullying she was subjected to in the workplace. She submitted medical certificates as required to support her absence. She contends that she was fit to resume duty in early March, 2005 but was denied the opportunity to do so by the respondent's Director of Human Resources (Mr. D). She contends that the respondent was influenced in this decision by a trivial complaint which had been made about her (the complainant) to the respondent in respect of an incident prior to her absence on sick leave. The complainant adds that the respondent arranged for her to attend a Family Therapist at the Clanwilliam Institute and that she attended for seven sessions over a period of time. She states that Mr. D attended one such session and in the course of that meeting (18 March, 2005) he told her she had no trust in the respondent as she was taking a case to the Equality Tribunal and discouraged her from pursuing same. The complainant adds that he also discouraged her from returning to work. The complainant also contends that Mr. D made comments on other occasions to the effect "was she (the complainant) enjoying the name she had" and "she (the complainant) was picking out the juicy bits", the latter at a meeting on 1 December, 2004. The complainant submits that the forgoing constitute victimisation of her contrary to the Acts.
4 SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts that the comments as set out by the complainant were made to her by her colleagues. It adds that she reported the matter to Senior Management in the course of a meeting on 11 November, 2004 during which a number of other issues were raised by the complainant, several of which involved Ms. A. The respondent states that between 11 November, 2004 and 23 November, 2004 all of the parties mentioned by the complainant at the meeting, including herself, were interviewed by Senior Management about the issues raised. The respondent states that the outcome of this process was communicated to the complainant by Mr. D and the Director of Services (Ms. E) at a meeting on 1 December, 2005. In particular, the complainant was advised that she was not on report, that her colleagues had accepted they made the comments attributed to them but that they were made in a jovial manner and they did not mean to cause offence, that the respondent would not tolerate discrimination of any kind and that they would be reprimanded for same, which they subsequently were. It adds that whist both Ms. A and Ms. B furnished written apologies for their behaviour, these were not brought to the complainant's attention until 18 March, 2005 due to the tragic bereavement suffered by the complainant - this decision had been taken by Mr. D. The respondent states that the complainant rejected the apologies at that stage. The respondent submits that the manner in which it behaved after the matter was brought to its attention is such as to enable it rely on the defence at section 14A(2) of the Employment Equality Acts, 1998-2004.
4.2 The complainant rejects the complainant's assertion that she was discriminated against on grounds of religion in respect of her applications for annual leave or privilege time. The respondent's Mr. C cannot recollect a phone conversation with the complainant on 7 November, 2004. Notwithstanding this he denies that he ever used disparaging language to the complainant and adds that subject to the normal requirement to maintain adequate staffing levels in the organisation at all times, he cannot recall refusing an application from her for annual leave or privilege time on any occasion. Mr. C accepts that the complainant applied for annual leave/privilege time on 19/20 September, 2005. He adds that it was standard practice to contact the employee only in circumstances where an application for time off was being refused. He accepts that the rosters may have been late that week and that the complainant reported for duty in the normal course. However, he submits that she should have been aware that her application was approved as he hadn't notified her to the contrary. There was no alternative shift available for her following her arrival and he informed her she would have to go home. He states that this would be the way he would treat any other employee in the circumstances and submits that the complainant was not treated any differently. The respondent states that the complainant was on an overtime shift on 23 September, 2004. Mr. C accepts that there was confusion over where she could be assigned and states that he attempted to find a vacancy for her. He cannot offer an explanation as to why he did not speak with the complainant directly but rejected the assertion that it constituted discrimination or victimisation of her.
4.3 The respondent states that the complainant commenced certified sick leave on 14 January, 2005. It adds that the certificates submitted by the complainant state that her absence is due to sudden bereavement - they do not indicate any other reason. The respondent further states it was never advised that the complainant was bullied or felt stressed. It adds that following a telephone conversation between the complainant and Mr. D in late January/early February, 2005 he formed the view that the complainant might benefit from contact with the Clanwilliam Institute as part of the respondent's Employee Assistance Programme and he put the necessary wheels in motion. The complainant attended for a number of sessions at the respondent's expense. Mr. D attended one such meeting at the request of the Institute. He states that in the course of discussions that day he informed the complainant that the respondent wished to support her in whatever way it could. He indicated to her that she did not seem to trust the respondent and that such a bond was necessary to maintain a working relationship between them. Mr. D states that in an effort to illustrate his view he mentioned the complainant having referred her compliant to the Equality Tribunal at a time when the respondent was still investigating her grievance at local level. Mr. D rejects the assertion that he tried to influence the complainant about pursuing her complaint or that he made the comments attributed to him by the complainant.
4.4 The respondent states that as part of its normal practice the complainant was examined by an independent Physician on 9 March, 2005 to determine whether or not she was fit to resume work. The opinion of the Physician at that time was that she was not fit to resume as she was suffering from "reactive depression following a recent bereavement". The respondent states that the medical report made no reference to bullying or stress at work. The complainant was examined by the same Physician on 25 March, 2005 and was deemed fit to resume her occupation. Mr. D states that he had made the decision not to permit the complainant to resume work until she was considered ready to do so by a medical practioner and this was the only reason which influenced him. The complainant resumed duty at the earliest possible shift following the examination. The respondent submits that the foregoing demonstrate its attempts to support the complainant at that time and could not in any sense constitute unlawful victimisation of her contrary to the Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICE
5.1 The issues for decision by me are whether or not Ms. Thornton was (i) discriminated against by the Cheeverstown House Ltd. on grounds of religion, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts, (ii) harassed on grounds of religion, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 14A of those Acts and (ii) victimised in terms of section 74(2) of the Acts when she referred her complaint to the Equality Tribunal. In reaching my decision I have taken into account all of the evidence, oral and written, made to me by the parties.
5.2 Section 6(1) of the Employment Equality Acts, 1998-2004 provides, "without prejudice to provisions relating to discrimination occurring in particular circumstances" that discrimination will be taken to have occurred where " a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the 'discriminatory grounds'". Section 85A of the Acts provide-
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
(5) In this section 'discrimination' includes -
(a) indirect discrimination,
(c) harassment or sexual harassment, ...."
The complainant therefore must, in the first instance, establish facts from which it can be presumed that she was subjected to discriminatory treatment on the ground of her religion. It is only when she 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.
5.3 The complainant's claim of discriminatory treatment centres on issues surrounding annual leave and privilege time. Having examined the totality of the evidence presented by the parties on this issue, I am not satisfied that the complainant has discharged the initial burden of proof required of her to demonstrate that she was treated less favourably on grounds of her religious belief. Her claim of harassment revolves around comments made to her by two colleagues on 3 November, 2004 and a number of other issues which were of concern to her, several of which involved Ms. A - the most serious of which was her belief that she (the complainant) was on report and formed part of the issues she reported to the respondent on 11 November, 2004. Section 14A of the Acts provide -
"(2) If harassment... of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable --
(a) in a case where subsection (1)(a) applies ..., to prevent the person from harassing .. the victim.., and
(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.
(7)(a) In this section --
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds,.... being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.".
5.4 It is accepted by the respondent that the complainant's colleagues made the comments attributed to them. It is clear that the complainant found the comments unwelcome and offensive as a result of her religious belief and they therefore constitute harassment of her contrary to the Acts. She reported the matter to Senior Management on 11 November, 2004 and the respondent immediately commenced an investigation of her complaint. I am satisfied that this investigation was thorough and was conducted in a timely fashion by staff of the respondent at a suitably senior level. The respondent met with the complainant on 1 December, 2004 and informed her, inter alia, that her colleagues had admitted making the comments but that they had been made in a jovial fashion and they apologised for any offence caused, that the respondent would not tolerate such behaviour and that her colleagues would be reprimanded - they were subsequently given a verbal warning by the Director of Human Resources - and that she was not on report - an issue which was of some concern to her. I note that at this meeting the respondent also addressed the other issues raised by the complainant, however I am of the opinion that these relate to routine work related issues between colleagues and were not matters which were connected with the complainant's religion. In light of the foregoing, I find that the respondent's actions, when it became aware of Ms. Thornton's complaint on 11 November, 2004, is such as to enable it rely on the defence at section 14A(2) of the Acts and it did not therefore harass the complainant on grounds of her religion.
5.5 Section 74(2) of the Acts defines victimisation as the -
"dismissal or other adverse treatment of an employee by his or her employer.. as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, ....
(f) an employee having opposed by lawful means an act which is unlawful under this Act..., or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs"
I am not satisfied that the complainant has established a prima facie case of victimisation as regards the issues connected with her annual leave and privilege time. As regards the issue of her return to work in March, 2005 I note the medical certificates submitted by her state that her absence in due to sudden bereavement - no reference to work related bullying or stress is made. I also note that at the hearing the complainant confirmed she had never mentioned these matters to the Physician who examined her in connection with her ability to resume her occupation. The Physician was therefore assessing her on the understanding that she had suffered a tragic bereavement, that her absence was due to same and formed her opinion that the complainant was suffering from "reactive depression following a recent bereavement" on that basis. The respondent, in my view, acted in a responsible manner and quite rightly followed the medical opinion submitted to it by the Physician on 9 March, 2005 and again on 25 March, 2005, after which there was no undue delay permitting her return to work. One further issue warrants mention on this point. At the hearing Mr. D stated that he had made the decision not to permit the complainant to return to work and that this decision, along with the decision to offer the facility of the Clanwilliam Institute to the complainant, were prompted to a significant degree by the contents of a telephone conversation he had with the complainant during her absence on sick leave and the concerns he formed from that conversation. Comments made by the complainant in the course of the hearing about that telephone conversation lead me to the conclusion that Mr. D's actions were premised on legitimate concerns for the complainant's wellbeing and that he had her best interests at heart at all times. As regards the alleged comments attributed to and the behaviour of Mr. D around this time, I favour, on balance, the respondent's version of events. In light of the foregoing I find that the complainant has failed to establish a prima facie case of victimisation.
I find that the complainant has failed to establish a prima facie case of discriminatory treatment on grounds of religion or victimisation contrary to the Employment Equality Acts 1998-2004. I also find that the respondent did not harass Ms. Thornton on grounds of religion contrary to those Acts.
27 January, 2006