Employment Equality Acts 1998 – 2008: S. 2, 6, 8, 14, and 77 – age, harassment, access to promotion, constructive dismissal, time limits
Joanna Fortune
(represented by Ms M. P. McGuinness, B.L., instructed by Ms Aine Curran, O’Mara, Geraghty, McCourt)
v.
CARI
(represented by Ms Fiona Higgins, IBEC)
1. Claim
The case concerns a claim by Ms Joanna Fortune that Children at Risk in Ireland (CARI), discriminated against her on the ground of age contrary to Sections 6(2)(f) of the Employment Equality Acts 1998 to 2004, in permitting her to be harassed contrary to S. 14A of the Acts, by denying her promotion contrary to S. 8(1)(d) of the Acts, and by discriminatorily dismissing her contrary to S. 8(6)(c) of the Acts.
Background
The complainant claims that a colleague harassed her on grounds of age by questioning her professional and life experience as relevant to her work; that the same colleague undermined her success at promotion to a more senior position within the respondent organisation by raising the same points with senior management; and that the respondent discriminatorily dismissed her.
The respondent contends that the promotion complaint is out of time under the Acts; that the complainant does not show a prima facie case of harassment on grounds of age; and that the complainant resigned from the respondent’s employment of her own free will and was not discriminatorily dismissed.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 18 August 2006. On 12 May 2008, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, 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. As required by Section 79(1) and as part of my investigation, I proceeded to hold a joint hearing of the case on 16 October 2008. A submission was received from the complainant on 12 September 2007. A submission was received from the respondent on 31 March 2008. Additional submissions on legal issues were requested from both parties at the hearing of the complaint and received 13 November 2008, 20 February 2009, 9 March 2009 and 15 April 2009.
Summary of the Complainant’s Written Submission
The complainant submits that she started to work for the respondent as a psychotherapist in May 2004. Soon after she commenced her employment, her colleague, Ms A., started to question her regarding her training, years of practice and accrued clinical hours. According to the complainant, Ms A. said that psychotherapy-training courses should have a very high minimum age for intake. The complainant contends that this is a clear inference that Ms A thought that the complainant was too young to be a psychotherapist, and constitutes harassment on grounds of age.
The complainant further submits that the respondent endeavoured to resolve the difficulties between herself and her colleague. According to the complainant, this was first approached informally, but later she was advised of her right to make a formal complaint. The complainant did make a formal complaint of bullying and age discrimination by her colleague. This complaint was investigated by the respondent. The complainant submits that she felt insufficiently supported throughout the process by the respondent, and that the investigation process was marred by delays and changes of investigators. The complainant submits that while this was ongoing, she was expected to continue to work with Ms. A., and contends that this shows that the respondent took no action to prevent her harassment. The complainant also alleges breaches of confidentiality in the handling of the investigation process.
In October 2004, the respondent filled the position of Head of Therapy. The complainant applied for the position and, while shortlisted, was not successful. The complainant alleges that Ms A. and another colleague actively canvassed against her becoming Head of Therapy in the process because they thought that the complainant had not enough life experience to be a therapist. The complainant submits that she learned of this intervention from another colleague at a later date. She submits that the respondent discriminated against her, with regard to a possible promotion to Head of Therapy, on grounds of her age.
The complainant did not submit specific arguments with regard to the discriminatory dismissal which forms part of her complaint.
Summary of the Respondent’s Written Submission
The respondent rejects the complaint, and submits that the complainant does not show a prima facie case of harassment on grounds of age. The respondent further contends that the complainant’s complainant of discriminatory treatment in relation to promotion cannot be investigated by the Tribunal, since it is outside the time limits set out in S. 77(5) of the Acts.
The respondent submits that a personality conflict between the complainant and Ms A. persisted, which management at the respondent organisation was anxious to resolve, first by informal means. The respondent submits that the complainant was advised of her right to make a formal complaint and request a formal investigation. The respondent submits that the complainant filed a formal written complaint on15 November 2005, and that the respondent went on to investigate her complaint thereafter.
The respondent rejects the complainant’s allegations of breach of confidentiality. The respondent accepts that delays occurred and that investigators changed due to problems to agree terms of reference. The respondent submits that an outside investigator was appointed in April 2006. The respondent submits that in August 2006, the complainant withdrew from the investigation without meeting the investigator. This left the investigator with no choice but to complete his investigation finding that the onus of proof had not been met.
The respondent submits that the complainant resigned of her own volition and did not seek to make a case at that time that it was the conduct of the respondent that forced her to resign.
Conclusions of the Equality Officer
The issues for decision in this case are:
(a) Is the complainant’s claim with regard to discrimination in access to promotion in time pursuant to the provisions of S. 77(5) of the Acts? If so, was the complainant discriminated against in access to promotion on the ground of age, contrary to S. 8(1)(d) of the Acts?
(b) Did the respondent discriminate against the complainant on grounds of age in her terms and conditions of employment by not preventing her harassment by a colleague on this ground, pursuant to S. 14A(7) of the Acts?
(c) Did the respondent discriminatorily dismiss the complainant on the ground of age contrary to S. 8(6)(c) of the Acts?
In relation to the complainant claim of harassment, I need to consider three different aspects of the evidence:
(d) Whether the complainant has established on the balance of probability that she was harassed in any of the incidents she describes in her evidence. This includes an evaluation as to whether the events the complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment, and whether they were linked to the complainant’s age.
(e) Whether the respondent is vicariously liable for the harassment pursuant to S. 15 of the Acts.
(f) Whether the respondent took reasonable action to prevent harassment occurring in the workplace. This includes considering the extent to which the respondent was aware of the complainant’s experiences, to enable it to deal with the complainant’s complaint of harassment, and if it was aware, whether it took appropriate action to enable it to rely on the defence.
“Harassment” is defined in S. 14A(7)(a) of the Acts as any form of 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 the person. S. 14A(7)(b) further states that such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
S. 14A(2) of the Acts states that it shall be a defence for an employer to prove that the employer took such steps as are reasonably practicable … to prevent the person from harassing the victim or any class of persons including the victim. In the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
In making my decision in this case, I have taken into account all of the evidence, written and oral, submitted to me by the complainant.
Harassment
The complainant began working as a psychotherapist with the respondent organisation in May 2004. She was instructed to work with an older colleague, Ms. A. The complainant stated in evidence that shortly after she started work, and regularly afterwards, Ms. A. would comment on the complainant’s lack of client experience, lack of years of clinical practice and clinical hours prior to accreditation and general life experience. According to the complainant, Ms A. also stated that in her opinion, psychotherapy training courses should have a high intake age of over 30 years of age to ensure graduates had the necessary life experience, and that she had previously known a young therapist who was unable to cope with her caseload due to lack of life experience and subsequently killed herself. The complainant, who was in her twenties at the time, understood this to be a criticism of her own age and experience, and states that when Ms A made that statement, she looked directly at the complainant. The complainant further stated that Ms. A. repeated these statements to her on a fortnightly basis throughout their working relationship. The complainant states that if Ms A had wanted to make her opinion known on these matters, repeating same again and again would not have been necessary. In response to a direct question, the complainant stressed that her perceived lack of life experience was Ms A.’s main point of criticism.
The complainant also stated that Ms A. occasionally embarrassed her in front of clients, by referring to her as a “little girl”, or emphasising her own parent status in meetings with parents, in the presence of the complainant, by making statements like: “As a parent, I understand”. The complainant stated that she felt undermined by these statements, and it was her contention that it was Ms A.’s intent to make her feel undermined.
The complainant’s evidence was not challenged by the respondent. Ms A. was not present at the hearing of the complaint to give evidence.
From the above evidence, I am satisfied that the complainant has established a prima facie case of harassment on the ground of age. Ms A.’s constant references to “life experience” and the connection she made in her statements to the complainant that trainee therapists should be over 30 years of age to ensure sufficient life experience make it clear that Ms A. took issue with the complainant’s relative youth. I also find that being called “little girl” in front of clients was indeed humiliating and undermined the complainant’s dignity. I am satisfied that these statements had the effect of violating the complainant’s dignity in the workplace and created a hostile environment in her working relationship with Ms. A.
I now turn to the question whether the respondent, pursuant to S. 14A(2) of the Acts, “took such steps as are reasonably practicable … to prevent the person from harassing the victim or any class of persons including the victim.” As noted above, in the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
The respondent’s Director, Ms B., stated in evidence that the respondent did not have a policy to prevent bullying and harassment of staff at the material time, only a grievance procedure that was a single page document. Ms B. further stated that she was not aware of the Employment Equality Act 1998 (Code of Practice)(Harassment) Order, S.I. 78 of 2002, which was in force when the complainant’s harassment occurred. A policy was launched in June 05, partly in response to the complainant’s harassment being noted by staff and management, and was taken from the policies of “other organisations, unions and IBEC”, according to Ms. B.
Bringing in a policy in response to the situation that gave rise to the case on hand cannot be interpreted as taking reasonably practical steps to prevent situations of harassment from arising, especially since the promulgation of S.I .78 of 2002 pre-dates the events of the case by some two years. I therefore find that the defence of S. 14A(2) does not avail the respondent.
I further note that when the complainant did make a formal complaint to the respondent in August 2005, following the launch of the policy, that the investigation of her complaint was not handled well. Ms B. stated as much in her direct evidence. The sequence of events is of importance for the complainant’s complaint of discriminatory constructive dismissal, and I will therefore refer to it in detail. The respondent’s investigation into the complainant’s complaint of harassment unfolded as follows:
The complainant made a complaint to her manager about her situation in August 2005. On 2 September, she was informed that a formal investigation would follow, as recorded in meeting minutes submitted in evidence. On 22 September, it was communicated to the complainant that senior management would prefer an informal resolution to the matter, notwithstanding the fact that efforts to resolve things informally had been documented since May 2005 without result. On 29 September 2005, the complainant was told that Ms C., a member of the senior management team, would investigate her complaint, and was asked to submit a written complaint. The complainant did so on 14 October. This document was also submitted in evidence. I prefer the complainant’s evidence in this matter and am satisfied that the respondent was notified of the complainant’s request for a formal investigation of her complaint earlier than 15 November 2005, as stated in the respondent’s written submission (see para4.2) above.
Following numerous queries to senior management, she was informed on 7 December 2005 that Dr X., an independent arbitrator and investigator from outside the organisation would take over the investigation from Ms. C.
However, Ms. A.’s union representative objected to Dr. X. on the basis that the terms of reference of his investigation had not been agreed with Ms. A.s trade union prior to his appointment. Subsequently, on 8 February 2006, Dr X. resigned from the investigation. On 10 February, the complainant sent an email to Ms B., expressing her severe disappointment at the fact that the investigation into her complaint had collapsed yet again. On 21 February 2006, the complainant resigned from her employment with the respondent, to be effective 24 March 2006.
I will revert to this evidence when considering the complainant’s case of discriminatory dismissal. However, in the context of her complaint of harassment, I find that the respondent’s haphazard efforts at conducting an investigation into her complaint cannot be considered a mitigating factor in its liability for the complainant’s harassment.
Access to Promotion
Before turning to the complainant’s complaint of dismissal, I propose to examine her complaint of access to promotion, and whether I have jurisdiction to investigate it. As noted in paragraph 5.6above, this part of the case is closely linked to the complainant’s harassment case.
In October 2004, the respondent sought to fill the position of Head of Therapy. The complainant stated that she was invited to apply, and that together with one outside candidate, she was shortlisted for final interview. However, she learned in March 2006 from a colleague, Ms E., that Ms A had approached her, Ms E., and another colleague, at the time of the competition stating that she felt the complainant was too young and inexperienced to be Head of Therapy, and that she, Ms. A., would not work with the complainant if she was appointed to the position. Ms A suggested to Ms E. to approach the respondent’s clinical director, Dr. F., to relate these objections to him. Ms E. confirmed in direct evidence that she had been approached in this way by Ms. A., but that she had refused to participate in this intervention.
The respondent’s Director, Ms. B., also confirmed in direct evidence that Dr F. had been approached by Ms A. prior to the final interview and that she had stated to him that she felt the complainant was too young and inexperienced for such a senior position, and that Dr F. had shared the details of the relevant telephone conversation with her. Ms B. was also a member of the interview board for the final interview.
I have no doubt that this intervention by Ms. A., directed at a senior manager in the respondent organisation, constitutes harassment of the complainant on the ground of age. A direct intervention with senior management to influence a worker’s chances for promotion for reasons directly and expressly connected to a protected ground does violate a person’s dignity (since it is not connected to the person’s potential ability to do the job) and must count as conduct that has the purpose of creating a hostile environment for that person, even if the person affected remains unaware of such conduct until some later time.
Since Ms A.s attempt to influence the outcome of the competition to the disadvantage of the complainant forms part of her harassment of the complainant on the ground of age, that is, was part of a chain of events that was ongoing until the complainant resigned from the respondent’s employment, I find that pursuant to S. 77(6A), I have jurisdiction to investigate complainant’s complaint of lack of access to promotion on the ground of age.
In my examination of the relevant evidence, I follow the decision of the High Court in Mary Helen Davis v. Dublin Institute of Technology [1999 No. 493SpCt5], where Quirke J held that a
gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation of the type referred to in Zafar (supra). A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates “together with” a gender difference may give rise to such a requirement.
As already noted, the complainant’s age was at issue in the selection process following Ms A.s intervention. I therefore propose to examine the qualifications of the two candidates who were called to the final interview, to see whether a significant difference in qualification exists in favour of the complainant.
The complainant had obtained a B.A. in Psychoanalysis in 2000, and an M.A. Honours degree in Clinical Psychotherapy in 2002. At the time of the interview, she had studied for a qualification in play therapy for approximately four months. In terms of professional experience, she had worked first as a Children Consultation Officer, and subsequently as Manager of the Children Consultation Unit with a national children’s organisation, before taking up employment with the respondent in May 2004. The complainant confirmed in evidence that her employment with the respondent organisation was her first role as a psychotherapist.
The successful candidate had obtained a B.A. in psychology in 1992, an M.S. degree in Marriage, Family and Child counselling in 1994, and been licensed as a family therapist in 2002. Her professional experience prior to her application with respondent included four years in a management role in a psychiatric outpatient service that was part of a community mental health programme, employment as a group therapist in a family support centre, a role as adjunct faculty member at the university she had graduated from, a role as care coordinator in a psychiatric outpatient service different from the service above, a role as mental health rehabilitation specialist in a supported housing programme and two roles as trainee therapist in two different mental health programmes.
From the CV’s of the candidates as summarised above, I am satisfied that a significant difference in qualifications in favour of the complainant does not arise with regard to the competition under investigation, and that therefore she had not established a prima facie case of discrimination in access to promotion pursuant to S. 8(1) of the Acts. I also wish to state that I did not find any evidence of discrimination against the complainant by members of the interview board.
Discriminatory Dismissal
It is the complainant’s contention that her resignation from the respondent’s employment constitutes constructive dismissal. She maintains that the drawn out efforts to first find an informal resolution to Ms. A.s harassment of her, and then the respondent’s haphazard attempts to investigate the matter, left her with no option but to resign her position. She submitted that by the time she handed in her resignation, she was at “breaking point” from the stress the situation was causing her. She emphasised in particular that during all this time, she was asked to continue to work with Ms. A. as part of a team. The respondent confirmed this fact, stating that due to the small size of the organisation, it was not possible to assign the complainant to different duties.
S. 2(1) of the Acts specifies that
“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be constructed accordingly.
The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the “contract” test and the “reasonableness” test, and held that these tests may be used either in combination or in the alternative. I find that in the case on hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee’s grievance or complaint.
I am satisfied that regardless of the fact that the respondent did not have a policy in place to deal with cases of harassment, the complainant’s situation had been noted by her immediate managers from May 2005 at the very latest. A policy was launched in response to the situation that had arisen between the complainant and Ms. A. The complainant then availed of the opportunity to raise a formal complaint. I am satisfied that the complainant complied promptly with all requests made to her in the course of the investigation. However, significant delays occurred on the respondent’s side, mostly due to difficulties in securing Ms. A.’s cooperation with the investigative process. Furthermore, changes in the investigative process, as set out in paragraphs 5.15to 5.18above, occurred, for which the complainant was not responsible, and it has not been suggested by the respondent that she would have been.
I am satisfied that the experience of continuing harassment over the course of nearly two years, and the continuing requirement to work with her harasser placed considerable stress on the complainant. I am further satisfied that the drawn-out, haphazard, start-and-stop manner in which the respondent attempted to deal with her situation placed further stress on her, and I accept the complainant’s evidence that the reason she resigned her employment with the respondent was because she felt herself to be at “breaking point”.
With regard to the respondent’s actions in this matter, I do not accept that they constitute a reasonable response to the complainant’s complaint. It has been the respondent’s argument that the regrettable delays and false starts in investigating the matter occurred because nobody in the organisation had experience in handling such a process. However, there is nothing that would have prevented the respondent from obtaining comprehensive advice on the technical aspects of investigating a complaint of harassment and then following it within a reasonable time frame.
I therefore find that the complainant’s employment with the respondent came to an end in circumstances amounting to dismissal within the meaning of S. 2(1) of the Act, and that her dismissal occurred on the ground of the harassment she experienced while in the respondent’s employment. Accordingly, I find that the respondent discriminatorily dismissed the complainant contrary to S. 8(6) of the Acts.
Decision
Based on all of the foregoing, I find that pursuant to S. 79(6) of the Acts that
(i) The respondent discriminated against the complainant in relation to her conditions of employment contrary to S. 8(1) of the Acts by not taking reasonable and practicable steps to prevent her harassment on ground of age contrary to S. 14A(7) of the Acts;
(ii) The respondent did not discriminate against the complainant in relation to access to promotion contrary to S. 8(1) of the Acts and
(iii) The respondent did discriminatorily dismiss the complainant contrary to S. 8(6)of Acts.
In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent
(i) Pay the complainant € 35,000 in compensation for the harassment endured and the constructive dismissal that resulted from it. This award takes into account the fact that the harassment persisted for nearly two years, that the respondent had no policy to prevent its occurrence, and that the respondent’s belated attempts in addressing the situation were so inept that they compounded the complainant’s distress, leaving her no option but to resign her employment.
This award is in compensation for the distress experienced by the complainant in relation to the above matter, and is not in the nature of pay, and therefore not subject to tax.
_________________________
Stephen Bonnlander
Equality Officer
June 2009