Employment Equality Acts
EQUALITY OFFICER'S DECISION
(with Mr. Brendan Archbold)
- V -
IBM Ireland Product Distribution Ltd
(Represented by Ms. Peggy O'Rourke BL on the instructions of Arthur Cox Solicitor)
File references: EE/2007/091 and 340
Date of issue: 19 April 2010
File references: EE/2007/091 and 340 - DEC-E2010-050
Employment equality Acts 1998 and 2008 – Discriminatory Treatment - Gender - Race Harassment - Victimisation - Condition of Employment- Prima Facie case
1.1. This dispute concerns a claim by Ms. Michelle Svoboda (hereafter "the complainant") that she was subjected to discriminatory treatment, harassment and victimisation contrary to the Employment Equality Acts by IBM Ireland Product Distribution Limited (hereafter "the respondent") on the grounds of her gender and race. The complainant maintains that she was abused, degraded and insulted in her employment and was subjected to disciplinary proceedings. Furthermore, she submitted that the respondent failed to investigate report of bullying/harassment made by the complainant or on her behalf.
1.2. The complainant referred her first claim of discrimination, harassment and victimisation to the Director of the Equality Tribunal on 23 February 2007 under the Employment Equality Acts. This claim was made on the gender ground. A subsequent complaint claiming harassment and victimisation was referred 06 July 2007. This complaint form referred to gender and race. On 13 November 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 26 January 2010.
2. Case for the complainant
2.1. The complainant, a French national and a woman, commenced employment with the respondent in March 1999. Initially she worked in the 'French Language Team'. She then moved to a Telesales Specialist on the Partner Choice Team. She resigned from her post as telemarketing agent in October 2007. It was submitted that the complainant finally bowed to the campaign of bullying, intimidation and harassment carried out by the respondent.
2.2. It was submitted that the respondent discriminated against the complainant in that she was permitted to work in excess of 48 hours on occasion. It was submitted that records provided by the respondent prove that the complainant worked up to 70 hours per week. Furthermore, it was submitted that the complainant's laptop was removed from her.
2.3. It was submitted that the respondent engaged in a series of actions against the complainant under the guise of Performance Improvement Plans (PIPs), disciplinary hearings and lengthy communications. It was submitted that the effect of all this was that the complainant was buried in letters, emails, performance reviews, salary stops, disciplinary hearings, excessive working hours and meeting after meeting after meeting. It was submitted that this was done so as to force the complainant out of the company.
2.4. It was submitted that as far as the complainant's allegation of victimisation is concerned, it is not suggested that the complainant was victimised because of any action relating to the Employment Equality Acts but rather that she was victimised in the more conventional industrial relations sense. It was submitted that this victimisation is more linked to the complainant's claim of harassment.
2.5. It was submitted that a named employee who was the complainant's line manager attempted to secure unfavourable reports on the complainant from at least two other employees. It was submitted that one of these named employees was so upset by the activities of the line manager that the employee resigned from the company and forwarded a complaint to the respondent's Director in April 2006. In this email the former employee wrote:
"One day [name] with whom I had a very good business and friendly relationship asked me to help him out to "get rid" of [complainant]. He asked me to send him an email so that he could forward it to HR. He said he needed help from people to "put Michelle down". He also asked [name of an female employee who had worked in the company for a month] to send him an email. I never sent the email to [name] as it felt it would have been like stabbing a friend in the back. .."
2.6. It was submitted a named manager replied to this email by stating that: "I appreciate that you took time to write to me and explain this situation. I am obviously concerned about the situation you describe and will investigate what is happening." It was submitted that despite this reassurance given to the third party the respondent's response to the complaint made by the named employee was tardy. It was submitted that the respondent made no attempt to communicate the contents of the letter to the complainant. It was submitted that the respondent did not communicate any decisions concerning an investigation or any outcome of such to the complainant. It was submitted that the reason for this was because the respondent believed that the complainant was not aware that the employee had sent such a communication to the respondent.
2.7. It was submitted that on 20 December 2006 the complainant and her representative attended a meeting with the respondent company concerning a disciplinary issue. It was submitted that the complainant's representative showed a copy of the email from the former employee and the Director's response to it to the respondent. The complainant's representative submitted that he informed the participants at this meeting that it was becoming apparent that the respondent was engaging in a 'shifting exercise', that is, an exercise designed to secure the departure of the complainant from the company and that is was clear that the respondent was failing to investigate a complaint when it was made to them.
2.8. It was submitted that the from April 2006 to October 2007 the respondent deliberately chose to ignore a most serious complaint involving an attempt by the complainant's line manager to solicit damaging reports from other employees about her with a view to dismissing her. It was submitted that instead of investigating the claim, the respondent consistently argued that a complaint must be formally presented before an investigation can take place. It was submitted that such a complaint had already been made three times:
· By a named former employee - in an email to the respondent's Director;
· By the complainant who spoke with another named line manager who informed him 'informally' of the existence of the correspondence stated above; and
· By the complainant's representative who showed the respondent's representatives copies of the emails at the meeting on 20 December 2006.
It was submitted that the complainant's representative wrote to the respondent on 3 January 2007 to alert them to the fact that the respondent had failed to investigate the claims of harassment and bullying. It was submitted that this failure had been brought to the respondent's attention three times prior to this letter.
2.9. It was submitted that instead of investigating the allegations, the respondent has consistently argued that a complaint must be formally presented before an investigation can take place. It was submitted that the respondent wrote to the complainant stating that:
"based on the allegations made by you during our meeting on 20 December 2006, if there are any other issues that you wish to be investigated by IBM management please contact your second line manager or any other ...[2nd line manager in the company] providing written details of all your allegations. This will then be investigated in line with IBM policies."
It was further submitted that the very next day the respondent wrote to complainant again exhorting her to make a formal claim.
2.10. It was submitted that in response to this letter, the respondent shifted the onus to make a complaint to the complainant by stating: "While making these allegations you and your representatives refused to provide any specific details of the complaint". It was again submitted that the respondent refused to acknowledge the emails and the fact that these emails had been brought to the respondent's attention. It was submitted by the complainant's representative that subsequent to this communication the respondent made "repeated and almost hysterical attempts" to secure such a formal complaint. It was submitted that the respondent was anxious to secure such a complaint as this would then allow the respondent to carry out an investigation that could distance the respondent from its own abject failure to act on foot of the former employee's communication in April 2006. It was submitted that such attempts to secure a formal complaint continued until the complainant resigned in October 2007. Furthermore, it was submitted that the respondent abdicated its responsibility and its duty of care to the complainant by ignoring the original allegation made by the former employee and by shifting the responsibility for initiating an investigation onto the shoulders of the complainant. It was submitted that the respondent tried to hide behind the company procedure. It was submitted that an employer is obliged to act on foot of information which it has in its possession, regardless of whether or not a particular procedural route has been activated.
2.13. Citing Tesco Ireland Limited v A Worker (DEE 052) the complainant's representative submitted that the respondent failed to act promptly in accordance with its own rules and failed its duty of care. It is acknowledged that the complainant did not make a formal complaint but that she did invoke an informal procedure and waited in vain for a response.
2.14. It was submitted that the complainant requests that the Tribunal find in her favour and to award her the maximum compensation in respect of the discrimination suffered, the severe injury to feelings and the financial loss suffered.
3. Case for the respondent
3.1. It was submitted that the complainant had failed to make any reference to any of the protected grounds under the Acts. Furthermore, it was submitted that the complainant has failed to establish any case that she was treated less favourably than any other employee, was harassed or was victimised.
3.2. It was submitted that the matters brought before this Tribunal by the complainant are related to the efforts of an employer to legitimately manage one of its employees in accordance with its policies and procedures and in compliance with law. It was submitted that the respondent is entitled to manage the performance and conduct of its employees in accordance with its disciplinary procedure. It was submitted that the respondent carried out a number of such disciplinary procedures in relation to both men and women and individuals with different national origin in 2006 and 2007. The respondent emphatically rejects the allegations that it discriminated against the complainant on gender and/or race grounds. The respondent submitted that the complainant had put forward no evidence to justify the allegation made against the respondent or any other allegations under employment protection legislation.
3.3. In relation to allegations of breaches of conditions of employment (hours of work) on the gender ground, the respondent relies on the Labour Court Determination where the court refused to award the complainant compensation because the court found the complainant herself to be primarily responsible for the breach of the Organisation of Working Time Act 1997.
3.4. In relation to victimisation. The respondent respectfully submitted that the Tribunal has no jurisdiction to make determinations or to hear matters in evidence in relation to matters that are not provided for by the Acts.
3.5. The respondent refutes that the complainant suffered harassment on the grounds of gender and race. It was denied that the respondent engaged in a 'shifting exercise'. It was submitted that the respondent had explained to the complainant and her representative at a meeting in December 2006 that, in accordance with the respondent's Bullying and Harassment and Inappropriate Behaviour Procedure, the respondent required details of the complaint and the allegations so that it could investigate. It was submitted that to this day the respondent does not know why, if the complainant had a legitimate complaint, she did not raise same in accordance with applicable procedures and despite repeated requests for her to do so.
3.6. The respondent respectfully submitted that the Tribunal has no jurisdiction to investigate complaints of workplace bullying. The respondent submitted An English Language Centre v. An Institute of Technology (DEC-E2007-019) as an authority to support this argument.
3.7. The respondent rejects that that the Tesco (DEE 052) case cited by the complainant has any bearing on this case. It was submitted that there is no analogy between that Determination and this case.
3.8. It was submitted that the examples in the complainant's submission relate to disciplinary procedures concerning her and her management and/or between her and other personnel. It was submitted that nowhere has the complainant identified any nexus between the incidents complained about and race and /or gender. The respondent submitted that the respondent has appropriate policies in place; it carried out investigations of any complaints made by the complainant - of which it had details - in a timely and fair manner. The respondent also wished to emphasise that all of its actions have been in accordance with the law. It was also respectfully submitted that the tone and the type of language in the complainant's submission is inappropriate and completely unnecessary.
3.9. The respondent submitted that it would appear that the complainant is aggrieved by the respondent's management of her performance and conduct. This, it was submitted, has not been linked with the protected grounds, and therefore the claims are not valid before this Tribunal. It was submitted that the Tribunal rejects the claims of the complainant.
4. Conclusion of the Equality Officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent. This means that mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. Discriminatory treatment (gender ground)
4.2.1. In order for this Tribunal to have jurisdiction to investigate any claim before it, it must be satisfied that the treatment complained of is linked with one of the protected grounds. On the whole, I find that the complainant has been unable to do so. I have been presented with no evidence to support an argument that the complainant's issues in the workplace were in any way linked to her gender. No comparator situation for the purposes of the Acts has been presented.
4.2.2. It has been submitted that the complainant has been treated less favourably in relation to the fact that the complainant worked up to 70 hours per week. It was submitted by the complainant's representative that this is a fact verified by Labour Court determination DWT 0818 where facts state that the complainant did on occasion work excessive hours. A mere breach of Organisation of Working Time Act 1997 in itself is not enough to establish a prima facie of discrimination on the gender ground. A simple breach of the Organisation of Working Time Act is outside the jurisdiction of this Tribunal and I note that the matter was investigated by a Rights Commissioner and that this decision was held on appeal by the Labour Court. It is not for this Tribunal to re-examine such findings. It is clear, however, upon reading the entire Labour Court determination, that while the court acknowledged that the complainant had worked excessive hours, she had done so despite bona fide efforts by the respondent to confine the complainant to her contractual hours. I have been presented with no evidence to support an argument of less favourable treatment on the gender ground in relation to the hours worked by the complainant.
4.2.3. Furthermore, it was submitted that the respondent treated the complainant less favourably when it removed a laptop computer from her. I accept that this was done in order to confine the complainant's working hours. I have been presented with no evidence to support an argument that this laptop was removed from the complainant, or the manner in which it was removed, was because of the complainant's gender.
4.3. Harassment (gender and race)
4.3.1. Harassment is clearly defined in section 14A of the Acts. I have been presented with no evidence of unwanted conduct related to gender or race grounds.
4.3.2. The complainant submitted that the respondent failed to investigate her complaint of bullying and harassment. I note that the complainant submitted that an employer must investigate any complaints of harassment regardless of how they are made. It was submitted that the respondent had received notification in writing when a named former employee sent an email to a named employee stating that the complainant's supervisor wanted to "get rid" of the complainant. This, it was submitted, was sufficient notice to warrant an investigation by the respondent. I note that the third party allegation makes no reference to harassment within the meaning of the Acts. Or that it would be reasonable to draw an inference from the allegation that the named line manager was involved in unwelcome conduct related to gender and/or race that could be construed by the complainant as creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant. From the facts of this case, it is clear that the respondent was aware that a third party had alleged that a line manager wanted to get rid of the complainant and that the complainant knew that this third party had made this allegation. I am satisfied that the respondent did not know what the complainant's personal experience was and whether the complainant personally felt that - because of her gender or national origin - the conduct of her line manager was creating an intimidating, hostile, degrading, humiliating or offensive environment.
4.3.3. I note that the respondent had a number of times requested that the complainant put her complaint in writing or by contacting any other line manager in the entire company. The complainant clearly refused to do so. I note that the complainant's representative submitted that the respondent's insistence that a complaint is made formally if it is to be investigated is a 'classic example of bureaucratic hair-splitting'. It is important to note that section 14(2) of the Acts provides an employer with a defence in cases of harassment:
(2) If harassment or sexual 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 under subsection (1), it
is a defence for the employer to prove that the employer took such
steps as are reasonably practicable—
It is important to note, and this is well settled area of law, that an employer is bound by the principles of natural justice when carrying out an impartial investigation into an allegation of unlawful conduct in the workplace. An employer must be in possession of certain facts before it can carry out an investigation and take reasonable steps as required by the legislation. It also important to note that while an employer has a duty towards the person making the complaint, an employer also has a duty of care towards the employee about whom a complaint has been made. Such an employee has a right to be informed of the nature of the complaint made against him or her and must be afforded the right to reply to such an allegation. Furthermore, in certain circumstances, the employer must the afforded the right to question the person making the allegation. As the complainant has not made any independent complaint of harassment to the respondent - other than referring to the third party email - it is extremely difficult for the respondent to act in a manner that would protect the principles of natural justice. It is not entirely clear why the complainant - when it was clearly communicated to her and her representative that the respondent required information before an investigation could take place - did not forward the relevant information to the respondent. I note that the complainant was unable to give the Tribunal any examples of unlawful conduct allegedly undertaken by the named line manager. She was unable to name one incident that could be construed as harassment under the gender and/or race ground. It is clear from the facts that the complainant's entire case is built upon a third party email suggesting that a named person was out to 'get her'. The complainant - who was having difficulties meeting her targets, etc - was only able to give examples of meetings concerning her performance and conduct and while I accept that these meetings were not positive events for the complainant, I have been presented with no examples of conduct that could be linked to gender and/or race. Furthermore, I note that when the complainant requested that a third person attend these meetings, the respondent organised for this to happen.
4.3.4. Having read the company's policy on harassment and bullying I am satisfied that the respondent takes its obligations in this area seriously. I am also satisfied that the respondent had carried out a separate investigation into a previous complaint that the complainant had made in 2006 (in relation to matters outside the Acts) and that there is no evidence to support that the respondent does not take such matters seriously or tries to fudge its responsibilities. I do not accept that the respondent was involved in any cover-up. It is clear from the facts that the respondent conducted its affairs professionally and legitimately in relation to the complainant.
4.3.4. I note that the complainant made a number of other speculative arguments going back as far as 2005 concerning a possible link between the complainant's difficulties in the workplace with the manager named in the email. I have been presented with no evidence to link any of these issues with the protected grounds. This Tribunal has no jurisdiction to investigate allegations of workplace bullying.
4.4. Victimisation (gender and race)
4.4.1. Victimisation is specifically defined in the Acts. The complainant has shown no evidence to a support a claim that she received less favourable treatment because she had lodged a complaint under the Acts. The complainant's spokesperson stated that it is not suggested that the complainant was victimised in the context of making a claim under the Acts. Rather, it was submitted, the claim was made in the more conventional industrial relations sense. Such a claim is outside the jurisdiction of this Tribunal.
4.5. Other matters
4.5.1. I note that the respondent has suggested in its written submission that this Tribunal ought to seek sworn evidence on these matters in accordance with fair procedures and the Supreme Court ruling in Ryanair v. The Labour Court  IESCR 6. Section 95 covers the Tribunal's powers in relation to the requirement on persons to provide information. The Tribunal does not have the power to act outside the provisions set out in the Acts.
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has been unable to establish a prima facie case of discrimination, harassment and victimisation on the gender and/or race ground(s) in accordance with the Acts. Therefore, the complaint fails.
19 April 2010