EQUALITY OFFICER'S DECISION NO: DEC-E/2007/011
ST. VINCENT'S HOSPITAL
(REPRESENTED BY IBEC)
File No: EE/2004/284
Date of issue 27 February, 2007
This dispute involves a claim by Mr. Kevin Scanlon that that he was (i) discriminated against by St. Vincent's Hospital on grounds of race in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, (ii) harassed by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 32 of that Act and (iii) victimised contrary to section 75 of the Act.
2.1 The complainant commenced employment with the respondent as a Grade III Clerical Officer in November, 2003. His appointment was for an initial fixed term period of six months. At the end of this period the contract was extended for a further two months. The respondent submits that this extension was granted in order to enable the complainant improve on his performance, which it contends had been poor during his period of employment. It states that when his performance did not improve it did not renew his contract and the complainant's employment was terminated on 2 July, 2004. The complainant contends that the respondent's decision to terminate his employment and the subsequent references it furnished about him to prospective employers constitutes victimisation of him contrary to section 75 of the Employment Equality Act, 1998. He further contends that during his period of employment he was subjected to a campaign of discriminatory treatment and harassment on grounds of race by his immediate supervisor Mr. X after he became aware that the complainant was born in England. The respondent rejects these allegations and states that when the complainant lodged a formal complaint against Mr. X through the internal grievance procedure it investigated the complaint and found no evidence to support his allegations. It submits therefore that its actions enable it to rely on the defence available at section 32(5) of the Act.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998-2004 to the Equality Tribunal on 7 December, 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. Submissions were received from both parties and a Hearing of the complaint took place on 5 February, 2007
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent as a Grade III Clerical Officer on 10 November, 2003. He was assigned to the respondent's Medical Records Department and reported to Mr. X. He states that at the beginning of his employment Mr. X praised his work and the complainant felt he was doing fine. He adds that Mr. X's attitude toward him changed in May/June, 2004 when he found out that he (the complainant) was born in England. The complainant states that Mr. X informed him he disliked English people and contends that he subsequently embarked on a campaign of discrimination and harassment against him. The complainant further contends that Mr. X falsely accused him of substandard and erroneous work. He adds that he also falsely accused him of changing lunch breaks without permission and made a number of racially offensive remarks about his nationality in front of other employees. The complainant refers specifically to a comment made by Mr. X on the day he (the complainant) had been informed his contract would not be renewed in which he contends Mr. X announced in front of other employees that the "English were arrogant and nobody likes them". The complainant submits that this comment clearly displays a negative disposition by Mr. X toward English people and this attitude culminated in Mr. X providing him with a poor appraisal which was used by the respondent in determining whether or not to renew his contract in June/July, 2004 and that this constitutes victimisation of him contrary to the Act.
3.2 The complainant made a formal complaint about Mr. X to the respondent's Human Resources Department on 1 July, 2004 and the matter was investigated under the respondent's Internal Grievance Procedure. The outcome of this investigation was that there was no evidence to substantiate the complainant's allegations. He states that he was not satisfied with this outcome. He adds that subsequent to his departure from the respondent it furnished prospective employers with poor references for him and this also constitutes victimisation of him contrary to the Act.
4 SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's allegations in their entirety. Its states that the complainant's employment was terminated because he failed to improve his performance, despite the fact that his shortcomings had been raised with him formally by Ms. M, the Deputy Medical Records Officer on 2 June, 2004 and informally on a regular basis by Mr. X during the course of his employment. His contract was extended by two months to enable him improve his performance and he did not do so. The respondent adds that the decision not to renew the complainant's contract was taken by Mr. C, Human Resources Manager. It states that this decision had regard to the performance appraisal completed by Ms. M on the complainant on 2 June, 2004. This appraisal was signed off by Ms. M on the basis of her own knowledge of the complainant and after she had consulted with the complainant's Line Manager Mr. X and Ms. A, a second Supervisor in the Records Department who had daily contact with the complainant. It submits therefore that Mr. X only had a partial role to play in the appraisal process.
4.2 The respondent states that on the day before his employment with it ended (1 July, 2004) the complainant made a formal written complaint about the alleged behaviour of Mr. X towards him. The respondent states that it investigated this complaint thoroughly, interviewing all of the witnesses identified by the complainant and found that there was no evidence to support his allegations. As regards the particular comment about the English being arrogant, the Investigating Panel was satisfied that the comment was misconstrued by the complainant and had been made in the context of banter around England's exit from the European Soccer Championships following defeat to Portugal. The outcome of the investigation was communicated to the complainant in the course of a meeting on 26 November, 2004. The respondent submits that the investigation, which was completed in accordance with its Safety Statement and Dignity at Work Policy, constitutes reasonably practicable steps enabling it to rely on the defence at section 32(5) of the Act.
4.3 The respondent agrees that Ms. M completed two references for the complainant in the months after he left its employment. It submits that the references supplied are accurate and truthful and are consistent with the appraisal completed by Mr. M in respect of the respondent in June, 2004. It points out that in both references Ms. M indicates that the employment ceased because the contract expired and that she would be prepared to re-employ the complainant if a suitable vacancy arose. It states that Mr. X had no input in completing these references and submits that the actions of the respondent do not constitute victimisation contrary to the Act.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of race in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, (ii) harassed the complainant on grounds of race, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 32 of that Act and (iii) victimised the complainant contrary to section 75 of the Act.
5.2 It has been the well established practice of this Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. This approach is now codified in Irish discrimination law by section 14A of the Employment Equality Acts, 1998-2004.
5.3 Evidence was given at the Hearing by those work colleagues whom the complainant had identified to the respondent (in the course of the internal investigation) as witnesses to alleged behaviour of Mr. X toward him. The witnesses were not present in the Hearing Room until they had to give evidence and remained there until the conclusion of the Hearing. None of them supported the complainant's version of events in respect of a number of alleged incidents, adding that they found Mr. X to be a reasonable person and none ever witnessed him behaving in a bullying or harassing manner towards the complainant or any other employee. They confirmed that a sweepstake type arrangement on the European Soccer Championship had been organised and staff in the section had participated in it. They stated that as a person's team was eliminated from the competition there was a certain degree of discussion/banter the next day. In the course of the Hearing Mr. X accepted that the morning after England's exit from the competition he made a comment that they had lost the game because they were arrogant and over confident. One of the witnesses confirms this. I am therefore satisfied that the comment was made in that context and was not directed at the complainant personally in a manner that could be construed as harassment under the Act. I am supported in my decision in this regard by the fact that the complainant's colleagues, including Mr. X, were unaware until that time that he was born in England, that two of Mr. X's own children were born there and that on two occasions in June, 2004 when the complainant had an opportunity to raise his concerns about Mr. X with senior management in the hospital, he did not do so. In light of the foregoing I find that the complainant has failed to establish any primary facts from which it could be inferred he was harassed on grounds of his race.
5.4 The complainant states that Mr. X also falsely accused him of substandard and erroneous work and that he subsequently gave him a poor performance appraisal. Evidence was given by Mr. X and Ms. A at the Hearing in respect of the complainant's performance. Both stated there were regular issues with the complainant and that they did not consider him to be "up to speed and capable of handling the more complex tasks associated with the job". A copy of the complainant's formal performance appraisal which was signed of by Ms. M (Deputy Medical Record's Officer and Mr. X's immediate Line Manager) on 2 June, 2004 supports this evaluation of the complainant. Ms. M stated that she decided the final appraisal grade given to the complainant on the basis of her own personal knowledge of him and her discussions with Mr. X and Ms. A. She recommended an extension of the complainant's contract for a month to see if his performance would improve but it did not. A copy of minutes of a meeting of 4 June, 2004 attended by the Head of Employee Relations, Ms. M, Mr. X and Ms. A are consistent with the appraisal grades awarded to the complainant. I note that the final decision on whether or not to terminate the complainant's employment was made by the Human Resources Manager and that Mr. X had a minor role to play in the decision. Finally, the complainant contends that the respondent further victimised him by furnishing prospective employers with damaging references about him. Copies of these references, which were completed by Ms. M, were furnished to me and I am satisfied that their contents are consistent with her appraisal of the complainant which she concluded on 2 June, 2004. Having assessed all the evidence submitted by the parties I am satisfied, on balance, that the complainant has failed to establish a prima facie case of discrimination and victimisation contrary to the Act and his claim must fail.
6. DECISION OF THE EQUALITY OFFICER.
I find that the complainant has failed to establish a prima facie case of harassment, discrimination and victimisation and his claim must fail in its entirety.
27 February, 2007