The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2009-050
(Represented by Mandate)
Martin Quigley (Nenagh) Ltd, t/a Quigley’s Café & Bakery
(Represented by Patrick F. Treacy & Co Solicitors)
File reference: EE/2007/480
Date of issue: 19 June 2009
Employment Equality Acts, 1998-2008 - Race – Harassment
1.1 This dispute concerns a claim by Ms Eswary Valaithan that she was discriminated against by Quigley’s Café & Bakery on the grounds of race contrary to section 6 (2) (h) of the Employment Equality Acts 1998-2008 in that she was harassed in terms of sections 14A of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 12 September 2007 under the Employment Equality Acts 1998 and 2004. On 21 January 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 6 May 2009.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant, who is from Malaysia, started working for the respondent in January 2005. She submits that from her first day of work her supervisor made references to her race. These included calling her “blackie” and comparing her to a black handbag. The complainant also submits that on a number of occasions the supervisor made derogatory remarks about her appearance and her partner which were related to her race.
2.2 The complainant submits she did not confront the supervisor as she was afraid it would make matters worse and her hours might be cut. However, as she felt she was being constantly undermined by the comments, on 17 May 2007 she sought help from the Citizen’s Advice Bureau who helped her to write a letter of complaint to her manager. When the complainant met the manager on 25 May she would not listen to her complaints but instead mentioned customer complaints against the complainant and how her supervisor supported her. On 30 May the complainant submits that the she went back to the Citizen’s Advice Bureau who told her they would contact the respondent but she did not find out what happened.
2.3 The complainant submits that after she made the complaint her situation at work deteriorated in that; from 28 May her regular working hours were cut without any explanation. The complainant also related an incident on 1 June when she was hit in the leg by a trolley pushed by her supervisor which caused an injury that resulted in her taking eight days off work. A Mandate representative wrote to the respondent on 26 June 2007 regarding the complainant’s treatment by her supervisor. Then on 6 July 2007 the complainant was issued with a first written warning for disciplinary matters. The Mandate representative met the manager on 10 July 2007 when the respondent agreed to carry out an investigation. The complainant left the respondent’s employment in September 2006 to study. On 16 October 2007 the Mandate representative met the respondent again and they requested to take a statement from the complainant but the complainant did not comply as she had left their employment and had made this claim.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denies any discrimination took place. The complainant started work for the respondent in January 2005. Her time was split between their outlets in Cruises Street and the Crescent Shopping Centre until May 2005 when she requested to work full time in the Crescent Shopping Centre. The respondent was surprised that the complainant would have chosen to work full time in the Crescent if she was being insulted by her supervisor from the start.
3.2 The supervisor denies ever calling the complainant “Blackie”. She submits there was an on-going joke between herself and the complainant about the age of the complainant’s partner but denies making any derogatory comments. The supervisor submitted that everything was fine between them until the complainant wrote to the manager in May 2007, which totally shocked her.
3.3 The respondent submits that the complainant sometimes spoke very loudly to staff members and customers. She did not mean to be unkind or rude but the respondent did receive a number of complaints.
3.4 The respondent submits that the manager was unaware of any issues between the complainant and her supervisor until she received the letter from the complainant in May 2007.
3.5 The respondent submits that the complainant’s hours were reduced because when her Visa was renewed it clearly stated that she was a student and could work a maximum of 20 hours per week.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision is whether the complainant was harassed on the ground of her race by the respondent. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties and witnesses.
4.2 At the hearing the respondent confirmed that there had been a lot of banter between staff which included comments about the complainant’s colour and the complainant making comments referring to her colour but that it was all meant in fun. The supervisor agreed at the hearing that she had used the term “blackie” in referring to the complainant but that the complainant would have referred to her as “whitie”. Also at the hearing three former colleagues of the complainant, one of whom is still working for the respondent, gave evidence that corroborated the complainant’s allegations that the supervisor had made derogatory comments of a racial nature to and about the complainant. They also gave evidence that initially the complainant and the supervisor had a satisfactory relationship but at some point it changed and it got even worse after the complainant wrote to the manager in May 2007. The witnesses also confirmed that there was banter between themselves and the complainant which included references to colour but it was meant in fun.
4.3 Section 14A (7) (a) states “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, …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 that 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.” It is not acceptable to say that comments were made in fun and I therefore find that the supervisor’s comments which made reference to her race and which the complainant described as constantly undermining her, created such an environment as to amount to harassment within the meaning of the Acts.
4.4 I must now consider if the respondent can rely on Section 14A (2) of the Acts which states: “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 …it is a defence for the employer to prove that the employer took such steps as are reasonably practicable … to prevent the person from harassing or sexually harassing the victim”.
The complainant wrote to her manager on 20 May 2007 raising a grievance against her supervisor and clearly indicated that she considered there was a racial element to her treatment. The respondent states they were unaware of any issues until the complainant wrote to her manager. The complainant and her manager met on 25 May 2007 at which meeting the respondent contends that the complainant did not raise grievances about her supervisor and the complainant contends that she was not given the opportunity. The manager also met the supervisor who stated that she didn’t know what the complaint was about. The respondent also discussed the grievance with staff in the Citizen’s Advice Bureau, from whom the complainant had sought advice. The respondent gave evidence at the hearing that they accepted the view of the staff from the Citizen’s Advice Bureau that there was no substance to the complainant’s grievance. The manager did become aware that there was banter between members of staff which included comments that referred to the complainant’s race. In evidence the manager stated that she considered these comments would have to stop but there is no evidence that any action was taken by the respondent to prevent them from continuing. The respondent clearly considered this to be the end of the grievance.
4.5 Mandate, the complainant’s representative, wrote to the respondent on 26 June 2007 requesting a meeting to discuss the grievance. This took place on 10 July 2007 and the respondent agreed to carry out an investigation but nothing happened until a further meeting in October 2007 when the respondent indicated that they wanted to take a statement from the complainant. Mandate stated there was no point in doing this as the complainant had left their employment and had already submitted this claim to the Equality Tribunal.
4.6 To rely on the defence under section 14A (2) of the Acts requires the respondent to take “such steps as were reasonably practicable”. In this case, where the respondent became aware that discriminatory remarks were made the onus is on the respondent to investigate the situation. I would therefore consider that this defence could have been satisfied if the respondent had followed a grievance procedure and carried out a satisfactory investigation into the complainant’s grievance. In this case I accept the complainant’s evidence that at her meeting with the manager she was not given the opportunity to set out her complaints. Also the respondent met the Citizen’s Advice Bureau without knowing the complainant’s grievances. Furthermore, it took the respondent from 20 May 2007, when the grievance was lodged, until 16 October 2007, when she had left their employment, to try and take a statement from the complainant. In these circumstances I conclude that a satisfactory investigation was not carried out and I find the actions of the respondent to be totally inadequate to be able to rely on a defence under section 14A (2) of the Acts.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to harassment on the grounds of race and I order the respondent:
- to pay the complainant €15,000. This award is not in the nature of pay and therefore not subject to tax,
- to implement a grievance procedure,
- to implement anti-bullying and harassment policies and procedures,
- to undertake diversity training for all staff
19 June 2009