The Equality Tribunal
Employment Equality Acts
(Represented by Michael O’Reilly, UNITE)
- V -
(Represented by Anthony Kerr, B.L, instructed by O’Mara Geraghty McCourt Solicitors)
File reference: EE/2006/295
Date of issue: 30 June 2009
1.1 This dispute concerns a claim by Mr Kevin McCorry that he was subjected to discriminatory treatment by Southside Partnership on the grounds of association with members of the Traveller community in terms of section 6 of the Employment Equality Acts, and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 16 August 2006 under the Employment Equality Acts. On 12 September, 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - 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 sought and received from the parties. As part of my investigation, I proceeded to hearing on 6 March 2009. Both parties were allowed to make written closing submissions on or before 6 April 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent as a Community Development Worker for Travellers from 2001 to early 2007. The complainant submitted that he was discriminated against by reason of association with members of the Traveller community. The complainant submitted that the less favourable treatment occurred in early 2006 while he was in the respondent’s employment and was a result of his representations on behalf of a Traveller family who were tenants of the local council.
2.2 The complainant submitted that the less favourable treatment was in connection with three matters. Firstly, how a complaint made against the complainant by a council official was dealt with. Secondly, how disciplinary proceedings against the complainant were initiated and dealt with. Thirdly, how grievance proceedings were dealt with by the respondent.
2.3 The complainant submitted that the situation arose when he was telephoned by a Visiting Teacher for Travellers who informed him that a Traveller family were facing possible eviction for alleged anti-social behaviour. The complainant submitted that he met with the family a number of times between December 2005 and January 2006. During the course of these meetings, the complainant agreed a number of actions with the Traveller family to deal with the complaints against them. The complainant then contacted the local Council advising them that the family wanted to address the issues that had led to their predicament and requesting a delay in the eviction proceedings.
2.4 In January 2006, a Council official contacted the respondent alleging unprofessional conduct of the part of the complainant and stating that there was a conflict of interest on the part of the respondent in making representations on this matter. This document was subsequently shown to the complainant and he submitted that he expected the respondent to thoroughly investigate the matter. The complainant sent a copy of this letter to the Solicitor acting for the Traveller family.
2.5 The complainant was subsequently advised by letter that the respondent was taking disciplinary proceedings against him for breach of confidentiality for sending a copy of the letter to an external contact. The complainant submitted that the procedure was unfair in three ways – firstly, every effort should have been made to resolve the issue before invoking the disciplinary procedure; secondly, the solicitor was entitled to have sight of the letter; and thirdly, the person who carried out the disciplinary hearing was not fully conversant with the disciplinary procedure. At the end of the process, the complainant was issued with a formal warning for breach of the confidentiality guidelines.
2.6 In March 2006, the complainant invoked the grievance procedure as laid down in his terms and conditions of employment. The grievance body did not uphold the complainant’s complaint.
2.7 The complainant submitted that no serious attempt was made by the grievance body to probe statements and claims made to it, the manner in which the grievance procedure was pursued unilaterally changed his contract of employment and that the grievance was not dealt with in a fair and impartial manner.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant was employed by it as a Community Development worker on a part-time basis. His role was dedicated primarily to implementing the respondent’s Traveller Support Strategy.
3.2 The respondent submitted that the first time it became aware of the complainant’s representation on behalf of a particular Traveller family was when it received an email communication from the council outlining complaints against the complainant. Initially, the respondent met with the complainant to establish what had happened and to ask the complainant to submit his written response. The respondent submitted that shortly thereafter, the complainant sent this internal documentation to an external party without discussion or approval. The respondent submitted that it was this action which precipitated invoking the disciplinary procedure.
3.3 The respondent submitted that this disciplinary action had absolutely nothing to do with the complainant’s work with members of the Traveller community but rather was invoked as a response to the complainant’s inappropriate actions vis-a-vis confidentiality. The decision to invoke the disciplinary procedure was taken having consulted with an independent Human Resources consultant.
3.4 The respondent submitted that the disciplinary procedure took place as soon as possible after the alleged breach, having regard to the complainant’s annual leave plans and the availability of the complainant’s union representative. On foot of this process, the complainant received a verbal warning.
3.5 The respondent submitted that the complainant did not appeal the findings of the disciplinary process but instead invoked the grievance procedure immediately upon receipt of the outcome of the disciplinary process.
3.6 The respondent submitted that a member of staff invoking the grievance procedure against the whole of the management was unprecedented. It was submitted that the policies did not adequately address such an unprecedented action. It further submitted that it became apparent that it was not feasible to provide a fair and equitable process to all parties within the timeframe outlined in the company’s policy. Therefore, a longer period was required and this was explained to the complainant. Ultimately, the finding of the panel was that the grievance was not upheld.
3.7 The respondent categorically refutes any allegation of discrimination towards the complainant on the basis of his work with Travellers.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated by association against Mr. Kevin McCorry on grounds of Membership of the Traveller Community, in terms of section 6 of the Employment Equality Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts 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.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”. In considering evidence submitted by both the complainant and the respondent, a number of uncontested facts emerged:
· The complainant is employed in an organisation whose mission is to assist members of the Traveller community. Every employee, therefore, has firsthand knowledge of the situation, experience and identity of members of the Travelling community.
· The complainant was subjected to a disciplinary procedure for sending a copy of correspondence (which was viewed by the respondent as being of a confidential nature) to a named solicitor for a specific Traveller family.
· The complainant was not happy with the conduct of the disciplinary procedure and chose to invoke the grievance procedure rather than pursue an appeal of the disciplinary decision.
· The grievance procedure was not carried out exactly according to the employee’s contract.
4.4 At the hearing, the complainant presented evidence that the disciplinary procedure was invoked against him. Based on the evidence from the complainant and respondent, I am satisfied that disciplinary proceedings would have been invoked against any employee who committed a similar alleged transgression. Therefore, no less favourable treatment has been established in relation to this aspect of the complaint.
4.5 At the hearing, the complainant stated that the respondent disregarded the disciplinary procedure by having another manager sit in on the process as note-taker and when the complainant’s manager discussed the matter with his own manager. The respondent indicated that as the complainant’s manager was new (only a number of weeks in the job) that a note-taker was required to enable the manager to concentrate on the matter to hand. Additionally, the respondent stated that as the manager was new, it is only to be expected that he would consult with his own manager as to how procedures are normally followed in the organisation. From the submissions and statements of both parties, I am satisfied that the complainant was not treated in a manner less favourable than any other employee would have been treated in such circumstances.
4.6 Regarding the grievance procedure, the complainant stated that the timeframes as set out in his contract of employment were not adhered to. In response, the respondent stated that where timeframes were extended, it was only by a matter of weeks to enable a thorough and fair investigation to be carried out. Having considered the submissions and statements from both parties in relation to this issue, I am satisfied that the complainant was not treated in a manner less favourable than any other employee would have been treated in such circumstances.
4.7 From the evidence presented to the Tribunal, I am satisfied that the complainant has not established facts upon which he can rely in asserting that he suffered less favourable treatment to any other employee of the respondent.
4.8 In addition, I am satisfied that the manner in which the various steps were conducted was unrelated to association with membership of the Traveller community ground.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of association with membership of the Traveller community ground has not been established and this complaint fails.
30 June 2009