THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 047
(represented by Samuel Martins, Employment Advice and Representation Unit)
(represented by Marguerite Bolger B.L. instructed by Mason Hayes and Curran Solicitors)
File reference: EE/2006/430
Keywords:Employment Equality Act, Gender, Family Status, Discriminatory treatment, Harassment, Sexual Harassment, Victimisation, No prima facie case
1.1 The case concerns a claim by Ms. A that Fr B, Parish Priest of a Roman Catholic parish ,discriminated against her on the grounds of gender and marital status contrary to Sections 6(2)(a) and (b) of the Employment Equality Act 1998-2008 [hereinafter referred to as ‘the Acts’], regarding her conditions of employment. The complainant claims that she was also harassed and sexually harassed by the respondent. The complainant has made a complaint of victimisation in terms of 74 (2) of the Acts. The complainant also claimed discriminatory and victimisatory dismissal. Prior to the Hearing, I wrote to both parties explaining that I would not be investigating the claims of discriminatory or victimisatory dismissal. This is because under Section 101 (4) of the Act an employee who has been dismissed shall not be entitled to seek redress under this Act if the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.
1.2 Through her legal representative, the complainant referred a complaint under the Act to the Director of the Equality Tribunal on the 9th November 2006. On 16th January 2009, in accordance with her powers under Section 75 of the Act, the Director delegated the case to me, Orlaith Mannion, 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. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 22nd July 2009 as required by Section 79(1) of the Act. The last piece of correspondence relating to the complaint was received on 9th September 2009.
Preliminary issue - time limits
2.1 The respondent submits that I only have jurisdiction to examine incidents of alleged discrimination or victimisation within the six months prior to the submission of the complaint which was the 3rd November 2006. The respondent refers to Section 77 (5) of the Acts which states a complaint may not be referred after the end of the period of six months from the date of occurrence of discrimination or victimisation or the date of its most recent occurrence. The complainant has not made any application in accordance with Section 77(5)(b) to extend the time for reasonable cause. The respondent submits that, in these circumstances, I only have jurisdiction over alleged discrimination or victimisation where the date of its most recent occurrence took place within the six months prior to the complaint being submitted i.e. the six months prior to the 3rd of November 2006. The respondent submits that I have no jurisdiction to deal with the matters in the complainant's EE1 form as they submit they relate to events before 4th May 2006.
2.2 The complainant made no submission, oral or otherwise, regarding time limits.
2.3 Regarding the issue of time limits, Section 77 (6) (a) clearly provides for a situation where a continuous act of discrimination is alleged to have occurred. Ms A was dismissed with effect from 4th July 2006, which is evidently within the statutory time limits. As stated in Paragraph 1.2, I am not entitled to award redress in relation to the alleged discriminatory and victimisatory dismissal. However, the dismissal was a culmination of alleged acts of discrimination and victimisation. I am allowed to examine the events that led up to the dismissal. As McGovern, J states in relation to an investigation by an other Equality Officer:
I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation, it is clear that the complaints which are made within that expanded period are not time-barred. [my emphasis]
Therefore, I have jurisdiction to examine alleged acts of discrimination and victimisation that occurred prior to and subsequent to the period between 4th May 2006 and 3rd November 2006.
Summary of the complainant’s case
3.1 The complainant began employment with the respondent on the 20th August 2001 as a Parish Secretary. She worked for Canon C until he retired in September 2002. The complainant submitted that she had a good working relationship with Canon C and this is reflected in the reference which she submitted as evidence.
3.2 In mid-September 2002, Fr B took over as Parish Priest. The complainant submits that he said shortly after he took over as Parish Priest that he entrusted the complainant implicitly to do the work she was hired to do and he did not become a priest to do administration. The complainant submits that they worked well together as a team. She, along with others, was invited to many of the social occasions e.g. dinners with the Archbishop of Dublin following confirmations etc.
3.3 The complainant acknowledges that she bought small gifts for Fr B but she submits that she did the same for the other priests in the parish as she did for previous employers. She submits that there never was a romantic agenda and that her relationship with Fr B was strictly professional. Ms A states that Fr B was supportive during her marriage separation in 2004 and that these gifts were to show him that she appreciated his kindness in a pastoral way. Among the gifts that she gave Father B at various times that she worked to him were a golf-cap, T-shirt, a 'welcome home' bottle of wine and cake after return from study leave. Father B gave her gifts of a statue of a Madonna and Child from Lourdes and a ceramic tile with a dove on it.
3.4 Ms A submits that she took on extra duties because she enjoyed them. She states that she attended all parish functions to take photos of parishioners. She printed these photographs and did the parish newsletter at home on Thursday nights.
3.5 The complainant submits that the working relationship with Fr B deteriorated in April/May 2005.
3.6 Regarding her complaint of sexual harassment, Ms A submits that Mr D, the FAS Community Employment Scheme Supervisor, said to her in her workplace on more than occasion that he knew what she lacked. She submits that he meant regular sex. Between April and August 2005, the complainant submits that Mr D sent risqué emails to a female friend from Ms A's computer in the parish office. She raised this issue with Fr B and only then did Mr D stop using the parish computer. Ms A also subsequently encouraged Ms E, who found inappropriate material in a filing cabinet, to make a complaint.
3.7 The complainant submits that suspending her while she was being psychiatrically assessed was an act of harassment.
3.8 The complainant submits that she felt hurt and humiliated by being removed from the Parish Council and the Liturgy Group and excluded as a Minister of the Eucharist. The complainant maintains that on one occasion while she was suspended the complainant submits she went to collect plants from her office. In response, Fr B asked that she make an appointment to visit the parish office in future. The complainant submits that she is devastated that she cannot do the work she enjoys. The complainant submits this to be victimisation.
Summary of the respondent’s case
4.1 The respondent submits that he never discriminated against the complainant as a woman or because of her marital status. The respondent submits that initially the working relationship with the complainant was fine. After approximately a year, he began to feel uncomfortable. One day Fr B mentioned that he had a migraine. She bought him a card which showed a man wearing a chef’s hat, an apron and nothing else with a legend which read ‘I like a man with a bit spice’. On a number of occasions he asked the complainant to desist from giving him gifts but she continued to give them. He did not want to embarrass the complainant so he accepted the gifts. He also admits that he gave the complainant two gifts mentioned in 3.3.
4.2 After Christmas 2004 Fr B had planned to go to Donegal on holidays and that is was necessary for him to persuade Ms A not to go on holidays to Donegal at the same time. He submits that the complainant tried to rearrange her holidays to go to Donegal when she heard Fr. B was going there. The respondent also points out that her screensaver on the parish computer was a picture of Fr B playing Golf.
4.3 In May 2005, the complainant made a Bon Voyage card for Fr. B before his impending study-trip abroad. The respondent submits that in the card the complainant revealed that she loved him. Fr B submits that he said that while he respected such feelings, he could not reciprocate them. The complainant tendered her resignation on 20th May 2005. Fr. B siad he would not accept her resignation yet and would discuss it further on his return. He said he also discussed boundaries with the complainant and that he wanted no further gifts from her.
4.4 During the time he was abroad, the complainant contacted him three times about non-urgent matters. When he returned to Ireland there was a 'Welcome Home' card and presents from the complainant left in his home. Ms A had taken keys for his home which were left in the parish safe for emergencies. Fr B submits that he was very shaken by this.
4.5 On 15th July 2005, Ms A made a complaint to Fr B regarding Mr D, the then supervisor of the FAS scheme. She stated that he was using the computer in the parish office to send emails to a female friend. Fr B requested that she put her complaint in writing. She refused to do this so he asked would she would be content if he asked him not to use computer in the future. A few days later at a meeting between Mr D, the Chairperson of the FAS sponsoring body and Fr B, the respondent gave him a severe warning regarding this issue and instructed him not to use the Parish computer in future. Ms A seemed happy with this and the respondent believed the matter to be closed. The respondent submits that she did not make any complaint to the respondent about suggestive sexual comments by Mr D. Fr B submits that the first time he was aware of the alleged comments regarding these comments was when he read the submission to this Tribunal.
4.6 It was at a later date that Ms E, a FAS employee, made a formal complaint regarding the discovery of inappropriate material in a filing cabinet. Ms A did not make a complaint regarding this issue nor was the respondent aware of her having any involvement in it. The respondent submits that he immediately took appropriate action. Legal advice was sought and the matter investigated. Mr D acknowledged that the material belonged to him but he could not understand how it found its way into the filing cabinet. Mr D was given a severe warning. Mr D also apologised to Ms E. Ms E was offered a transfer which she declined. The respondent submits that the complaint was taken seriously as would any complaint of such nature.
4.7 In the following months the complainant changed from being friendly to being covertly threatening. In September 2005 at the complainant’s request, Fr B and she had a further meeting. Again, the complainant told Fr. B that she loved him. Fr B asked her to return the keys of the parish centre. According to the respondent, she became hysterical and stormed out of the parish centre.
4.8 A number of days later the complainant returned to the parish centre, despite being previously told not to do so without a prior appointment. On 4th October 2005, the respondent wrote to the complainant:
At a meeting requested by you in the Parish office in early May you declared to me that for almost three years that you loved me. At that meeting I told you that whilst I respected your disclosure that I could not reciprocate these feelings in any way. I express that for some time I had been concerned about the number of gifts, presents and cards that you gave me. Furthermore, I did state and made it quite clear that the card were inappropriate and that I was concerned and surprised at the contents therein. I advised you that I would need time to reflect on what you said and that I had to seek advice on how to deal with this matter
…I have now had time to reflect on the situation and I believe that, in view of our most recent discussion, the correct course of action is for me to allow you to withdraw your resignation and I am offering you that option. I do have, however, serious concerns.
…I have come to the conclusion that before coming to my final decision as to whether because of your conduct your position as Parish Secretary is still tenable, it is imperative that I satisfy myself that going forward there is going to be a proper employment relationship between us. As I have explained to you, I have serious concerns as to whether you are going to be capable of relating to me in a proper manner. With these concerns in mind, I have decided that it is necessary for you, at no expense to you, to attend for a psychological assessment.
4.9 Shortly after that Fr B was admitted to hospital with a heart condition. Despite medical advice insisting that only family was allowed to visit, Ms A came to the hospital and phoned most days.
4.10 While suspended on full pay, a medical assessment was conducted by a forensic consultant psychiatrist. The psychiatric report subsequently said that that the complainant suffered from morbid infatuation and her employment was terminated on the grounds of incapacity.
4.11Toward the end of November 2005, the complainant stood outside the parish office reading a book for three hours a day and refused to leave. This was intimidating for the replacement parish secretary. During this time, the complainant sat at the front at Mass and left if another priest arrived on the altar. Because her behaviour was becoming more erratic and because her role on these committees was linked to being parish secretary, the respondent concedes she was removed from various committees. She was allowed to continue on hospitality committee so was not totally excluded.
4.12 The respondent denies that anything the complainant submits was victimisation were as a reaction to her making complaints under the Acts.
4.13 The respondent denies that any complaints, other than the verbal complaint of 15th July 2005 about Mr D's use of the parish office computer were made by the complainant to Fr B as her employer.
4.14 The respondent denies the complainant's submission that the fact of her suspension constitutes harassment on the grounds of gender or her martial status. The respondent submits that as an employer the respondent was entitled to suspend the complainant from her employment in order to enable an investigation into the complainant's capacity to take place and relies on the decision of the High Court in Morgan v Trinity College Dublin and the earlier decision of the Supreme Court in Deegan v Minister for Finance.
5.1There are three issues for me to decide:
(i) Was the complainant discriminated against by the respondent in relation to her conditions of employment as per Section 8 (1)(b) on the ground of gender and marital status?
(ii) Was the complainant harassed and sexually harassed in terms of Section 14A(7) and whether the respondent has a viable defence against a claim of harassment as per Section 14A(2) of the Act?
(iii) Was the complainant victimised within the meaning of Section 74 (2) of the Act?
5.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory grounds in this case are gender and marital status.
5.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as ‘ evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’
Conditions of employment
5.4 No evidence has been adduced that suggests a link between the treatment of the complainant to being a woman or her marital status. Therefore, regarding her conditions of employment Ms A has failed to establish a prima facie case of discrimination.
5.5 Section 14 (7) of the Act defines harassment as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
5.6 I accept the respondent's contention (Paragraph 4.10) that the fact of her suspension does not constitute harassment on the gender or marital status grounds. Therefore, the complainant has not established a prima facie case of harassment within the meaning of the Acts.
5.7 Sexual harassment is defined in Section 14A (7) (ii) as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. Section 14A(1)(a)(iii) makes an employer liable where an employee is harassed by a client, customer or other business conduct of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have prevented it.
5.8 Section 14(2) and 15(3) of the Acts allow an employer a defence to a claim of sexual harassment where the employer can show it took such steps as were reasonably practicable to prevent the employee from doing the act which is found to have constituted sexual harassment or from so doing, in the course of employment, acts of that description.
5.9 There is a conflict of evidence on whether Ms A merely complained about Mr D using the computer or whether she also mentioned to her employer about his alleged sexual comments. On the balance of probabilities, I find Fr B's evidence on this issue more credible. It is common case that Mr D stopped using the computer following Fr B's instruction not to do so.
5.10 Regarding Ms E finding inappropriate material in the filing cabinet, Ms E has not made a complaint to this Tribunal. However I am satisfied that the matter was investigated in line with the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002.
5.11 I am not satisfied sufficient evidence has been adduced that the complainant was sexually harassed. Therefore, this strand of her case cannot succeed.
5.12 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
5.13 The complainant has emphasised how disappointed she was at her exclusion from the Parish Liturgy Group and the Parish Pastoral Council and the refusal to allow her to act as a Eucharistic Minister. In a different context, this could constitute victimisation. However, in the sad circumstance of this case, I find this did not occur as a reaction to Ms A making a complaint under the Acts. Rather it occurred as a direct result of the events that led to her suspension in September 2005 and, ultimately, which gave rise to her dismissal in June 2006.
I have concluded my investigation of Ms A's complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that:
(i) the respondent did not discriminate against the complainant in relation to her conditions of employment contrary to Section 8 (1) (b) of the Act on the grounds of gender or marital status
(ii) the complainant was not harassed on the ground of gender or marital status nor was she sexually harassed contrary to Section 14A of the Act
(iii) the respondent did not victimise the complainantwithin the meaning of 74(2) of the Act.
14th April 2009