(Represented by Herman Good & Co, Solicitors)
(Represented by Peter O'Brien BL, on the instructions of Hegarty McCarthy & Co, Solicitors)
1.1 This dispute concerns a claim by a complainant that he was discriminated against by a company on the ground of sexual orientation, contrary to the provisions of the Employment Equality Acts 1998 to 2007, when he was subjected to demeaning treatment.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 12 July 2004 under the Employment Equality Acts 1998 to 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated the case on 1 July 2005 to an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. For operational reasons, the case was re-delegated on 1 February 2006 to Anne-Marie Lynch, also an Equality Officer. Submissions were sought from the parties, and a joint hearing was held on 1 June 2007. Subsequent correspondence concluded on 13 July 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant was employed as assistant supervisor on a Community Employment (CE) project in 1997. His work involved organising educational and training programmes, supervising workers on the project's ancillary schemes and visiting their various work locations (there were up to 12 locations, with one or two workers in each).
2.2 The complainant says that in 2000 he was confronted by the Chairman of the CE project (Managing Director of the project's sponsoring company), the Treasurer of the CE project, his supervisor and a FÁS official, and accused of downloading homosexual pornography as a screensaver. The complainant says the offending screensaver was activated five minutes before the meeting with the four individuals and he claims it was a deliberate act to "out" him as a homosexual.
2.3 The complainant says he was able to rebut the accusation by virtue of the fact that the material had been downloaded during his holiday abroad. The complainant says that he then intimated that the Gardaí should be called but was asked not to do so. He says that in spite of his protestations, nothing further was done, yet the meeting had been called because of his sexual orientation.
2.4 The complainant says that he was told by his supervisor in January 2004 not to use the staff cups, and was subsequently told by her not to use the staff toilets. He says that, in effect, an employee was being denied staff facilities because of his sexual orientation. In addition, the complainant claims he was not allowed to go upstairs to the Treasurer's office when he needed to have the accounts signed, but had to wait in the hall for the Treasurer to come down. The complainant alleges that a new employee in February 2004 was told by his supervisor that he was homosexual and HIV positive, and that his supervisor also handed him magazines of homosexual pornography.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent company says it first became involved with a single CE scheme in the mid-1990s. Around 1997, FÁS identified the company as suitable to form an umbrella group for an amalgamated FÁS CE scheme which involved various organisations employing a couple of people each. These employees were paid through the company's bank account, but were not considered at the time by the Managing Director to be employees of the company. His initial response to the Equality Tribunal was to deny that the complainant had been an employee, but at the hearing of the complaint he accepted that this was the case.
3.2 The respondent says the CE scheme was renewed annually and that the complainant never once stated he was treated unfairly until 5 March 2004. It says the indications on that date were that the CE scheme was not going to be renewed, and that the complainant's employment would cease. The respondent says this was also the date when certain financial irregularities in the scheme had been discovered. The Chairman and Treasurer went to interview the complainant about the unauthorised movement of funds from the CE account. The respondent says that it was in the course of that meeting that the complainant said he was the victim of sexual discrimination, having been accused of downloading pornographic images some years earlier. The respondent says the Chairman and Treasurer were taken aback by this statement, but asked the complainant to put his complaint in writing.
3.3 The respondent says the complainant made a written complaint on 7 March, which contained a litany of allegations not made before. The Chairman refuted these allegations in a letter dated 3 April, and says the complainant wrote again on 9 April retracting certain allegations and persisting with others. The respondent submits that this was an act of throwing as much mud as possible in the hope that something might stick. The respondent says that the Chairman continued to investigate the complainant's allegation of discrimination, while continuing to try to resolve the financial irregularities. In the meantime, the complainant and his supervisor had a serious altercation about a business they were running together and he had to be asked to leave the premises.
3.4 The respondent says that the investigation of the running of the scheme uncovered further problems. Besides the unauthorised movement of funds, signatures on certain documents appeared to have been forged and money was incorrectly lodged into the complainant's personal account. The complainant, who was the assistant supervisor, and the supervisor each blamed the other for the irregularities. The Chairman of the CE project notified FÁS of the problems and was told that he was the employer. He says that he was perturbed at the situation as it made his company appear to be solely liable for (i) having taken on the responsibility of sponsoring an amalgamated CE Scheme which it could not practicably run as a real employer, and (ii) for sponsoring a scheme and participants most of whom did not work for the company or whose activities did not in any way benefit the company.
3.5 Both the complainant and the supervisor were suspended with pay. FÁS suspended the CE Scheme, and the respondent's accountant carried out a review. FÁS carried out an internal audit, and all bank accounts were frozen. The FÁS audit found that the monitoring of the scheme was inadequate, and that certain transactions were fraudulent. The Scheme was formally closed by FÁS in June 2004. The complainant and the supervisor were issued with notices of termination and the remaining CE participants were notified that they would not be coming back to the company CE scheme but would be remaining with the alternative schemes to which they had been re-located during the suspension. The Chairman made a formal complaint to the Gardaí. Money remained owing to FÁS from the CE scheme account, but FÁS agreed not to pursue the company for repayment.
3.6 Regarding the specific matters referred to in the complainant's submission, the respondent denies absolutely that the complainant was accused of downloading pornography in 2000. It says that there had been an issue about pornographic images on a computer, and that it was just one item on the agenda for a committee meeting. The meeting agreed that the internet facility on the computer should be discontinued, and the respondent says there was no question of anyone being accused of responsibility. It says there was never any reference to the complainant's sexual orientation, nor any reference to complaining to the Gardaí. The respondent says further that the offending computer was in a separate building from the one where the committee meeting was held, and that the participants did not look at a screensaver of any nature.
3.7 The respondent says that the supervisor denied absolutely that she had told the complainant not to use staff cups or staff toilets, and says the complainant never made such a complaint at the time. The respondent points out that the lease on the premises from which both people were working was held in both their names, and casts doubt on the idea that a leaseholder would permit someone else to refuse him permission to use his own facilities. The respondent says the Treasurer did not prevent the complainant from coming upstairs in his building, although he may occasionally have gone downstairs to the complainant out of courtesy. The Chairman says that the complainant made the same complaint about him in his letter, but withdrew the accusation after the Chairman insisted that it was not true. The respondent says that it is satisfied that nobody told anyone else that the complainant was homosexual and HIV positive, and that the supervisor denied that she had ever given pornography to the complainant.
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.
4.2 The complainant alleged that the respondent discriminated against him on the ground of sexual orientation contrary to the provisions of the Employment Equality Acts 1998 to 2007. Section 6 of the Acts 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 sexual orientation. Section 8 provides that
(1)In relation to-
...(c) conditions of 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 gender ground, said "In order to establish a prima facie case of discrimination, the evidential burden is on the complainant to establish the primary facts on which they rely and to satisfy the Court that these facts are of sufficient significance to raise an inference of discrimination, thus shifting the burden to the respondent..." (Health Service Executive and Michael McGoldrick, Determination No EDA076). The first matter to be addressed, therefore, is whether the complainant has established the relevant facts.
4.4 The allegations of the complainant, in summary, are that (i) he was accused of downloading pornography, and that the fact that it was downloaded constituted his "outing" as a homosexual; (ii) he was told by his supervisor not to use staff facilities; (iii) he was not allowed upstairs to the Treasurer's office; (iv) other employees were told he was homosexual and HIV positive; and (v) his supervisor handed him pornographic material.
4.5 The complaint about the downloading of pornography occurred in 2000, and is therefore outside the six-month time limit specified in section 77 of the Acts. For the avoidance of doubt, however, I wish to note that I found the respondent's version of events in this regard to be more probable. It is hard to imagine that a meeting would be called to discuss the complainant's sexual orientation, presumably on the basis that it was a problem, and that nothing further would happen for three years.
4.6 Having considered the evidence carefully, I am unable to accept the complainant's allegations regarding the other matters complained of. I note that the first occasion on which he raised the assertion that he had suffered discrimination was the day on which financial irregularities were raised with him. I note also that he and the supervisor entered into a joint lease and were in business together, but that after the irregularities were discovered they each blamed the other and their relationship deteriorated. In the circumstances, I am satisfied that the complainant has failed to establish a prima facie case of discrimination and the respondent has no case to answer.
5.1 Based on the foregoing, I find that the respondent did not discriminate against the complainant, contrary to the provisions of the Employment Equality Acts 1998 to 2007.
21 September 2007