(Represented by Marguerite Bolger BL, on the instructions of Northside Community Law Centre)
Bus Átha Cliath/Dublin Bus
(Represented by CIE Solicitor's Office)
1.1 This dispute concerns a claim by Ms Sonzic Francis that she was discriminated against by Bus Átha Cliath/Dublin Bus on the grounds of gender and race, contrary to the provisions of the Employment Equality Act 1998. She also claimed harassment and victimisation. She originally claimed discrimination on the grounds of marital status and age also, but these claims were withdrawn prior to the hearing of the complaints.
1.2 The complainant referred claims to the Director of Equality Investigations on 7 October 2003, 22 April 2004 and 27 April 2004 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the claims on 13 October 2004 to Anne-Marie Lynch, 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. Extensive and lengthy submissions were received from the parties, and a joint hearing was held on 29 May 2006. Subsequent correspondence concluded on 8 August 2006.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant, a native of the United Kingdom of Afro-Caribbean ethnicity, was employed by the respondent on a probationary basis as a bus driver on 31 July 2001. She was based in Clontarf garage until March 2003 and Broadstone garage until January 2004. She says her complaints were of three sets of proceedings alleging discriminatory treatment on the grounds of gender and race. The first set (EE/2003/340) concerns discriminatory treatment in her conditions of employment and harassment by various employees of the respondent. The second set (EE/2004/086) concerns victimisation, wherein she claims she was penalised by the respondent for instituting the first claim, resulting in her dismissal on 15 January 2004. The third claim (EE/2004/087) concerns the denial of access to various occupational benefits schemes operated by the respondent, including a pension scheme, welfare scheme and sick pay scheme.
2.2 The complainant submits that she was the only black female bus driver employed at either Clontarf or Broadstone garages. She says that while she was undergoing training in August 2001, one particular trainer started to call her "Tina Turner", which she says was a reference to her braided hairstyle and that fact that she is black. She says that she complained about this to her union representative, who told her she was being "too touchy". The complainant says she was also subjected to harassment and racist remarks by way of abuse of the radio intercom system connecting the buses operating out of Clontarf garage with the depot. She says that an employee of the respondent, whom she was unable to identify, would mimic monkey noises into the radio which would be heard on all buses connected to the system. She says she complained about this to her union representatives, but no action was taken. The complainant also alleges that she was approached by her union representative, on behalf of the Divisional Manager, and asked to change her braided hairstyle as it was deemed "too scary" for passengers.
2.3 The complainant submits that the respondent reviewed her employment on four occasions between 2002 and 2004, and on each occasion stated that the decision had been taken not to appoint the complainant as a regular staff member but to extend her probation. The complainant says that the respondent had had sufficient time to assess her performance and that she should have been appointed at the next review or had her employment terminated on the basis that she was not capable of performing the required duties. The complainant submits that no other employee remained on probation for two and a half years, and that this period was unlawful in that it resulted in a loss to her of various benefits and thus constituted discriminatory treatment. She says also that her union, of which she was obliged to become a member, was not acting in her best interests.
2.4 The complainant further submits that the grounds relied upon by the respondent for extending her probationary period - principally that she was late reporting for duty (details supplied) - were insufficient, arbitrary and irrelevant and at times incorrect as on various occasions she was on sick leave. The complainant contends that the fact she was allowed to perform her duties for two and a half years was in itself evidence that she had attained a sufficient standard and the decision not to appoint her as a regular staff member was arbitrary and discriminatory.
2.5 The complainant asserts that she was not afforded any guarantees of fair procedures applicable in an employment context in regard to several investigations relating to customer complaints (details supplied). She says the complaints were not investigated properly, that on each occasion it was assumed the complainant was the driver in question, that the Divisional Manager refused to furnish her with a copy of the complaints and he refused to listen to her responses to the complaints.
2.6 The complainant claims that she was harassed within the definition of section 32 of the Act in that she found the conduct of various managers to be offensive, humiliating and intimidating. She says that she was called into the Divisional Manager's office on a weekly basis in connection with either her standard of driving or a customer complaint. She says she was regularly shouted at, belittled and intimidated by the Manager. She contends that the reason for her transfer from Clontarf to Broadstone was that the respondent was aware she was being harassed by the Manager. She claims she told several members of management that she was being harassed, discriminated against and victimised but management failed to address the problem. The complainant claims that she told the respondent's Chief Medical Officer (CMO) about these issues, but the CMO refused to get involved.
2.7 The complainant says she was subjected to continuous monitoring of her driving standards during the course of her employment, which amounted to harassment. She was monitored seventeen times during the course of her employment, as well as being required to attend at least three courses of corrective training. The complainant submits that the average number of assessments would be two or three per driver each year. She claims that she was being intimidated and harassed by management due to the number of assessments and was also made the subject of ridicule within the garages.
2.8 Regarding her complaint of victimisation, the complainant asserts that she was penalised in circumstances amounting to victimisation as defined in section 74 of the 1998 Act, following the lodging of her claim with the Equality Tribunal on 7 October 2003. She says she was asked by two of her managers to withdraw the proceedings. She says that one of them told her on 14 January 2004 that he would dismiss her if she did not withdraw them, that she refused to do so and was accordingly dismissed on 15 January. The complainant says her union representative also requested her to withdraw the proceedings on the instructions of management.
2.9 The complainant says that she wrote to the respondent's Equality Officer on 7 March 2003 to complain that she was being unfairly treated. She says that the Equality Officer never contacted her in this regard or in relation to the claim she referred to the Tribunal in October 2003. The complainant submits the Equality officer was negligent in her duties in failing to respond to the complainant or investigate her claim once she had been put on notice of discrimination within the company.
2.10 With regard to her claim to have suffered discrimination on the gender ground in respect of the occupational pension scheme, the complainant says she was refused access to the scheme because of management's failure to appoint her as a regular member of staff. She says she was refused access to the respondent's welfare scheme for the same reason, which meant she did not have access to the respondent's GP panel or payment for sick leave.
2.11 The complainant submits that, in view of the fact that she was the only Afro-Caribbean female bus driver to work in the garages, the onus rests on the respondent to explain the reasons for her treatment on grounds other than race and gender. She suggests that her membership of two minority groups within the respondent's employment meant management was under an enhanced obligation to ensure she did not suffer from discrimination. In this regard, she referred to the Labour Court determination in Campbell Catering Ltd and Aderonke Rasaq (Determination No EED048), where the Court said "...applying the same procedural standards to a non-national worker as would be applied to an Irish national...could in itself amount to discrimination."
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that the complainant had been discriminated against, harassed or victimised. It says the complainant was not the only black employee who worked in Clontarf and Broadstone, and says that the number of women employed as bus drivers is approximately the same in all garages, that is about 5% of the workforce. However, at the hearing of the complaint the respondent accepted that the complainant may have been the only female of Afro-Caribbean ethnicity in its employment.
3.2 The respondent says the complainant never made any allegations of racist comments to her supervisors or management. It says the complainant's submissions make it clear that she was familiar with the company's induction guide, and was therefore familiar with the correct procedures for making such complaints. The respondent says it is clear from the complainant's submission that she felt not only that she was not assisted by her trade union representatives, but that they were in collusion with management against her. The respondent describes this as a clearly ridiculous allegation which, if it were true, would be the first time in the industrial relations history of the company that trade unions had conspired with management against the interests of one of their members.
3.3 The respondent says the complainant's probation was extended more than once because of her unsatisfactory driving and behaviour and was in no way motivated by an attempt to discriminate against her on the grounds of gender or race. The respondent says it would have been possible to terminate her employment at the end of the 12 month period on the grounds that she had not reached a satisfactory standard, but it extended her probation and continued re-training and monitoring because it was anxious to give her every opportunity to prove her capability.
3.4 The respondent says that the investigation of customer complaints was in no way motivated by the complainant's gender or race. It says that complaints would contain the time, location and route being complained of, and it can accurately identify drivers from the rosters. The respondent also points out that the complainant did not deny that she was the correct driver, but claimed she was assumed to be at fault.
3.5 The respondent says the Divisional Manager would only have cause to call the complainant into his office when complaints or monitoring reports made it necessary. The respondent submits that, as the complainant herself was responsible for generating the complaints or reports, it is disingenuous to suggest that this amounted to harassment. It denies absolutely that she was shouted at, belittled or intimidated by the Divisional Manager, and denies also that she told management or the CMO about the alleged harassment. The respondent says the transfer to Broadstone came about after the complainant had been issued with seven days' notice of dismissal prior to the end of her first extension of probation. On appeal this was reduced to transfer and further extension of probation. The respondent says the transfer was an attempt to give the complainant an opportunity to make a fresh start, and was not for discriminatory reasons.
3.6 The respondent says the complainant had an appointment with the CMO on 5 June 2003 at which she expressed frustration with management's refusal to permit her to "follow a bus" for a specified period, but she did not claim bullying, harassment or discrimination. At a further consultation on 31 July, the respondent says the complainant indicated the transfer to Broadstone was working well. The complainant first referred to harassment and victimisation in a conversation with the CMO on 26 November 2003, citing age, family status, gender and race. The respondent says, however, that she refused an offer of counselling, indicating that she felt well enough to deal with matters through legal and equality routes.
3.7 The respondent says the complainant was not initially subjected to any more monitoring than any other new employee, but her accident record resulted in a series of incidences of corrective training. The respondent points out that several positive assessments of the complainant's performance occurred when she was aware she was being monitored, but that her performance was frequently unacceptable when being monitored in the standard, unannounced manner.
3.8 Regarding the complaint of victimisation, the respondent denies that the complainant was asked to withdraw her complaint and threatened with dismissal if she refused to do so. It says she was facing the possibility of dismissal in July 2002 when her probationary period was first extended and she was given seven days' notice of dismissal in March 2003, reduced on appeal to a further extension. The respondent says the complainant was then offered one last opportunity for a further period of probation, which she accepted, and it was only at the end of this period she was dismissed.
3.9 The respondent says the complainant did not refer a discrimination claim to its Equality Officer. The complainant's letter of 7 March 2003 deals with monitoring of her performance by an inspector on 5 March, and was copied to several people. It is clear that a heated discussion arose between the complainant and the inspector which resulted in her being reported. The letter claims that the complainant was being unfairly monitored on a regular basis, as a result of an earlier negative report of her driving. The Equality Officer subsequently spoke to the complainant on the telephone and explained to her that the matters referred to should be dealt with by her manager. At no time was the Equality Officer aware of the complainant's ethnicity, and the letter made no reference to discrimination, race or gender.
3.10 The respondent says the terms of its occupational pension scheme and welfare schemes are very clear and the benefits of the schemes are only for appointed staff. The respondent submits that the fact that the complainant had her appointment deferred over a period of time does not in any way constitute discrimination on the grounds claimed, or on any of the grounds in the 1998 Act.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties. For the sake of completeness, I wish to acknowledge that the complainant's submissions contained numerous complaints regarding the behaviour of several individuals, not specifically referred to in the summary above because of length
4.2 The complainant alleged that the respondent discriminated against her on the grounds of gender and race contrary to the provisions of the Employment Equality Act 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including gender and race. Section 8 provides that
(1)In relation to-
(b) conditions of employment,
(c) training or experience for or in relation to employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 The Labour Court, in a recent determination of a claim on the disability ground (A General Practitioner and A Worker - Determination No EED062) said "It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities." The first matter to be addressed, therefore, is whether the complainant has established the relevant facts.
4.4 The complainant's allegations of racist comments encompass members of the respondent's training staff, inspectors, drivers, union representatives, management and unidentified members of staff. While it would be difficult for the complainant to establish the making of these comments as fact in the absence of a corroborating witness, it is not in dispute that she never complained of these incidents to management. She said that she notified them to her union representatives as she believed this to be the correct procedure. However, as the respondent pointed out, the complainant was undoubtedly familiar with its procedures for such complaints, and followed them when complaining of persistent monitoring of her driving. In the circumstances, I cannot accept that the complainant has established that she was subjected to the racist abuse complained of.
4.5 The complainant asserted that her probationary period was unlawful in that it resulted in a loss to her of various benefits and thus constituted discriminatory treatment. This is an argument I am unable to accept. The fact that the complainant suffered the loss of benefits because of the extension of her probationary period does not constitute evidence of discrimination. The respondent's induction guide deals with deferral of appointment to the permanent staff if performance is not up to standard. While the number of extensions to the complainant's probationary period may seem unusual, there is no evidence that it was based on discriminatory grounds.
4.6 From documentation supplied by both parties, it is clear that there were issues of concern to the respondent about the complainant's late attendance for duty and customer complaints. The complainant submitted that a severe reprimand she received on one particular occasion was disproportionate as her lateness was unintentional. I am unable to see how the complainant's intentions are of relevance to whether a reprimand is imposed or not. The respondent appears to have complied with its published procedures in relation to these matters. The customer complaints referred to were supplied to me and I am satisfied that the respondent had enough information available to it to properly identify the relevant driver.
4.7 The complainant's assertion that the Divisional Manager shouted at her and belittled her was denied in the respondent's written submission and by the Manager in evidence at the hearing. The Manager said he never spoke to the complainant without her trade union representative being present, and he submitted that he was on extended sick leave on one occasion when he was alleged to have mistreated the complainant. Having considered his evidence, I find that the Manager did not harass her in the manner alleged, and that she was reasonably summoned to his office on several occasions in connection with accidents or customer complaints.
4.8 The respondent's CMO also gave evidence in person at the hearing. From her contemporaneous notes at the time of the complainant's consultations with her, the CMO's evidence was that she was satisfied that the complainant did not refer to allegations of discrimination until the final appointment in November 2003, when she said she felt able to deal with her problems without medical assistance. An internal memorandum written by the CMO on 5 June 2003, following her first consultation with the complainant, was submitted in evidence. The memorandum confirmed the complainant's general good health and noted that she had "ongoing Industrial Relations issues". I am satisfied that the complainant did not make a complaint of discrimination or harassment to the CMO.
4.9 The complainant said, correctly, that her driving was monitored approximately 17 times during the course of her employment with the respondent, which she alleged constituted harassment. I note, however, that at least four of those instances of monitoring were corrective training as a result of accidents and another four were negatively marked. It seems to me to be reasonable that accidents and negative assessments would lead in turn to further monitoring of the complainant's driving, and I do not find that this constituted harassment.
4.10 The respondent agreed at the hearing of the claim that the Tribunal had the jurisdiction to consider the complainant's dismissal as an instance of alleged victimisation. However, as the complainant's dismissal occurred on 15 January 2004, it is governed by the provisions of the Employment Equality Act 1998 prior to its amendment by the 2004 Act. Section 77 (2) of the 1998 Act states
If a person claims to have been dismissed-
(a) in circumstances amounting to discrimination by another in contravention of this Act, or
(b) in circumstances amounting to victimisation,
then...a claim for redress for the dismissal may be brought to the Labour Court and shall not be brought to the Director.
I am satisfied that I do not have jurisdiction to consider the complainant's dismissal.
4.11 The complainant alleged that the behaviour of the respondent's Equality Officer also constituted victimisation. Having seen the letter written by the complainant on 7 March 2003, which was copied to the Equality Officer, I am satisfied that the complainant did not make a complaint of discrimination or harassment to the Equality Officer. The letter complained strongly about the monitoring on 5 March and the ongoing regular monitoring. The complainant said in the letter "I feel this monitoring is as a result of a previous report on me given by my mentor on commencement of work with Dublin Bus, which criticised my driving. A report I feel he was not qualified to give and which I believe was a major influence on my Divisional Manager...". I find that it was reasonable for the Equality Officer to consider that this complaint was not a matter for her, and that the complainant was not victimised in this regard.
Denial of access to benefit schemes
4.12 The complainant's allegations in relation to her denial of access to the respondent's occupational benefit schemes was referred on the gender ground only as the additional grounds were only inserted in the Pensions Act 1990 by the commencement of the Social Welfare (Miscellaneous Provisions) Act 2004 on 25 March 2004.
4.13 It is clear from the terms of the schemes that membership and benefits are confined to permanent employees. The complainant was excluded solely because she was never made a permanent member of staff. As I have found that the extension of the complainant's probationary period was not discriminatory, I am satisfied that her exclusion from the benefit schemes was also not discriminatory.
4.14 The complainant argued that the fact the she was the only Afro-Caribbean female employed by the respondent meant she should have received particular treatment, and she referred to the Labour Court determination in Campbell in this regard (cited at 2.11 above). However, in that determination the Court was dealing with an employee who was a native of Nigeria and who had been in Ireland for a few years. In that context, the Court indicated that special measures may be necessary to vindicate the rights of foreign workers, and said "It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture." The complainant in this case, while of Afro-Caribbean ethnicity, is of English nationality. Her first language is English and she has lived in Ireland for many years. I do not accept that she was in the potentially vulnerable situation envisaged in the Campbell determination.
5.1 Based on the foregoing, I find that Bus Átha Cliath/Dublin Bus
(i) did not discriminate against or harass Ms Francis on the grounds of gender and race contrary to the provisions of the Employment Equality Acts 1998 - 2004;
(ii) did not victimise Ms Francis contrary to the provisions of the Acts; and
(iii) did not discriminate against Ms Francis on the ground of gender in relation to the denial of access to its occupational benefit schemes.
I also find that the Equality Tribunal does not have the jurisdiction to investigate the complainant's dismissal as an instance of alleged victimisation.
26 September 2006