THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-049
Mr. Brian Merriman
(represented by Gearoid O'Byrne, solicitor)
O'Flaherty's Ltd. t/a Reads Print, Design & Photocopying Bureau
(represented by Emer O'Sullivan & Co., Solicitors)
File Reference: ES/2009/043/044
Date of Issue: 8th November, 2011
Equal Status Acts, 2000-2008
Decision No. DEC-S2011-049
O'Flaherty's Ltd. t/a Reads Print, Design & Photocopying Bureau
Equal Status Acts - Section 3(1) - Section 42, Vicarious Liability - Section 3(2)(d), sexual orientation - Section 11, harassment - texts - Section 3(2)(j), Victimisation
1. Delegation under the relevant legislation
1.1. On 9th April, 2009, the complainant referred two claims to the Director of the Equality Tribunal under the Equal Status Acts against the respondent. On 19th November, 2010, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts (hereinafter referred to as "the Acts"), the Director delegated the complaints to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, on which date my investigation commenced.
1.2. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 10th May, 2011. Further documents were sought from the parties and final correspondence in this respect was received on 28th June, 2011.
2.1. The dispute concerns a complaint by the complainant that he was sexually harassed and harassed and discriminated against by the respondent on the gender and sexual orientation grounds contrary to the Equal Status Acts in terms of Sections 3(2)(a) and 3(2)(d) of the Equal Status Acts and contrary to Sections 5(1) and Section 11 of the Equal Status Acts. On 12th November 2010, he also submitted that he was victimised by the respondent in terms of Sections 3(1)(a) and 3(2)(j) of the Equal Status Acts with respect to alleged incidents that had occurred on and after May, 2010.
3. Summary of the Complainant's Case
3.1. The complainant, a gay man, gave a detailed account of communication he had with the respondent with respect to a commercial dispute. He gave evidence that this communication was carried out in person as well as through texts and e-mails and took place between February and May 2009.
3.2. In particular, the complainant stated that he received a series of sexually abusive texts that were sent to him by Mr A (an employee of the respondent) on Friday nights into Saturday mornings. In that context, he referred to texts he received in the early morning of Saturday, 28th February, 2009, including one which read, "see you soon. Goodnight. xx" and two further texts which read "xx". He also outlined further texts he received that evening. He stated that he felt threatened by the texts that were sent to him that evening and, inter alia, he called the Gardai in that context. He agreed that a text that was forwarded to him from Mr A on the following 16th May could have been part of the text exchange on the evening of the 24th February. This text, inter alia, read "ur a sick man".
3.3. The complainant stated that he did not believe that a straight man would have received the same kind of texts as he did and that he found it extremely distressing. He stated that many people wake up regretting what they said with a few glasses of wine but no attempt was made to assure him that the communication in question was not related to his sexual orientation. The complainant said that the following day he brought the matter to the attention of Mr B, Director of the respondent company, by e-mail but did not receive any response. He added, in light of the fact that the respondent said this was not a valid e-mail, that this e-mail did not bounce back as not having been received.
3.4. The complainant also said that while the texts from Mr A were discontinued three months later, the level of intimidation continued in a different form. He said that he received confirmation from Mr A that no-one in the gay community had anything good to say about him and stated that the respondent told third parties, including people who currently fund his voluntary work, that he had made a complaint to the Tribunal.
3.5. Inter alia, the complainant said that he got a phone call from a third party to say that if he proceeded with his complaint it would have a very adverse effect on another organisation they both were involved with and he provided the Tribunal with copies of a number of letters as proof of the communication he had with this third party in this context. The complainant stated that his name was maligned and the word put out by the respondent that the basis of his complaint to the Tribunal was to do with anti-gay sentiment and homophobia. He stated that he was victimised by the respondent in that respect.
3.6. The complainant gave a detailed account of discussions he had about these matters with Mr K, who worked for the respondent, including in relation to his claim that he had been victimised by the respondent in that respect. He stated, inter alia, that Mr K told him that they had no desire to defend the matter. He said that he met with Mr K with a view to agreeing a settlement that could benefit non-profit organisations but that a settlement agreement on the matter could not be reached. He denied that he told Mr K that he had asked him to stop supporting another organisation in that context.
3.7. In summary, the complainant said that he did not believe that Mr A would have communicated with him in the way he did if he had not been a gay man and he would not have sent kisses in texts to a straight man.
4. Summary of the Respondent's Case
4.1. The respondent submitted that Mr B was the Managing Director of the respondent and not an employee. It submitted the case against him should be dismissed as the notice of complaint was served on the company and the service of the second complaint was wrong in that Mr B was named rather than the company. A number of other minor preliminary matters were dealt with at the hearing.
Evidence of Mr A
4.2. Mr A, who was present at the hearing, gave an account of his communication with the complainant with respect to the commercial dispute. With respect to 28th February, 2009, Mr A said that he did not know if he said "xxx" but that he could have done so. He added that he did not know if it was that evening (i.e. it was not necessarily on 28th February) but it was some evening when he sent these texts.
4.3. Mr A stated that he did not have a problem with homosexuality and that what was in his mind when he sent the texts was that he was annoyed. He said that he did not say to himself that he was going to harass the complainant because of his sexual orientation. He said that it was possible that to say "xxx" in texts would have sexual connotations, but did not consider that it would have the effect of creating a humiliating, degrading or hostile environment. He said that he had a few glasses of wine and he was not clear-minded. He accepted that these texts were silly and unprofessional but said that it was not his intention to violate the complainant's dignity and his intention was to resolve the commercial dispute.
4.4. With respect to the complainant's claim of victimisation, Mr A said that he did not know why the third party concerned would have gotten the impression that he was being anti-gay. He said that it was possible that he had mentioned to the parties the complainant referred to that the complainant considered he was being discriminated against. However, he said he definitely never said that if the complainant proceeded with his case it could reflect badly on another named organisation. He added that Mr B did not respond to the complainant because he did not use a computer and the e-mail address to which the complainant sent the relevant e-mail does not exist.
Evidence of Mr K
4.5. Mr K gave a detailed account of his meetings with the complainant about the issues arising in these complaints. He stated that he had rung the complainant initially in this respect because, naturally, he wanted to meet any individual who had made a complaint. He said that he came to those meetings in good faith with a view to settling the matter but said that the complainant wished to obtain money for himself. He added that the complainant did not strike him as being someone who felt intimidated by what had taken place. He said that he decided that a resolution of the matter through discussions with the complainant was not possible after the complainant asked him to stop supporting another organisation. Mr K said that this would be detrimental to the respondent and to other organisations. He said that he spoke with Mr B about the matter and Mr B thought the respondent was being extorted by the complainant.
4.6. The respondent stated that it had not kept records of the matters raised in these complaints because it had no idea there would be a case before the Tribunal whereas "if you are taking a case you would take records". It also stated that the complainant claimed that his name had been maligned yet, in one of the documents he submitted to the Tribunal, he had redacted material which included "a comprehensive setting out of the problems with the complainant". In that context, the respondent provided an unredacted version of the same document to the Tribunal.
4.7. In summary, the respondent stated that the complainant had not made a case that there had been humiliation and degrading treatment of him by it and added that he was possibly sending texts that provoked Mr A. It said that the complainant had not made out a case of discrimination on grounds of sexual orientation. It added that the respondent had a good relationship with the gay community and that it was not in the business of discriminating against people on the sexual orientation ground. It said that it was questionable whether there was a sexual orientation issue involved and that it was a debt collection matter that went astray.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Preliminary Jurisdictional Matter
5.2. The respondent raised a preliminary matter of jurisdiction with respect to the complaint before the Tribunal. Two ES1 complaint forms were issued: one against Mr A and one against Mr B, both of Reads Print and Design at the respondent's address. The respondent argued that the second complaint form addressed Mr B rather than the company and was therefore incorrectly served. Furthermore, Mr B was not an employee but the Managing Director of the respondent company. In that context, it submitted that the second complaint should be struck out as it was not addressed to the correct person and that the only complaint that should proceed should be that against Mr A.
5.3. The ES1 is a non-statutory form whose purpose, inter alia, is to facilitate the complainant in setting out his complaint and identifying the respondent. The complainant named the respondents as being Mr A and Mr B of O'Flaherty's Ltd. t/a Reads Print Design and Photocopying Bureau. Section 42 of the Acts is clear in making a service provider responsible for its servants and agents, whether employees or Directors. In that context, O'Flaherty's Ltd. t/a Reads Print Design and Photocopying Bureau is the correct respondent in this case and has been correctly identified by the complainant in that context.
5.4. The vast majority of the issues arising in this case relate to a commercial dispute and are not relevant to the claim before this Tribunal. The jurisdiction of the Tribunal with respect to the matters arising in this case relate to two issues only: Firstly, whether the texts referred to at par. 3.2 above were sent to the complainant on 28th February, 2009, and, if so, whether they constituted harassment within the meaning of the Acts. I would add that this is the extent of my investigation in this respect as there was nothing in the remaining communication between the complainant and the respondent that would constitute sexual harassment and/or harassment on the gender or sexual orientation grounds. Secondly, I must consider whether the respondent's subsequent treatment of the complainant was less favourable treatment arising from his having in good faith applied for a determination or redress under the Acts (i.e. whether it was victimisation).
5.5. The preponderance of evidence with respect to the harassment element of this claim, including the vast majority of the texts and other written communication between the parties, relate to the commercial dispute. In that context, the only communication between the parties that can be considered to be harassment within the meaning of the Acts are the texts allegedly sent to the complainant by Mr A which read "xxx" meaning "kiss, kiss, kiss". I am satisfied that these texts were sent by Mr A to the complainant as alleged.
5.6. It is clear from the overall context of the complaint that a serious animosity had developed between the parties as a consequence of the commercial dispute. It is clear that this dispute progressed to an unfortunate climax where the respondent sent inappropriate texts to the complainant that clearly had the intention of intimidating and/or undermining him because he was gay. It is clear that this was done in the context of the commercial dispute and it is in this context that I consider the texts "xxx" had that effect on the complainant. It should be said that, while the literal meaning of those texts, on their face, may normally be a sexual or benign one, I am satisfied that, in all the circumstances of the present complaint, the intended meaning of these words was to undermine the complainant (and his masculinity) on the basis of his sexual orientation.
5.7. Put another way, I am satisfied that Mr A's purpose in sending the texts in question was not to violate the complainant's dignity with comments of a sexual nature but to make reference to his knowledge of the complainant's sexual orientation as a source of intimidation in the context of the commercial dispute. It is clear, then, that the texts in question had both the purpose and the effect of violating his dignity and/or creating a humiliating, degrading or hostile environment for him in that regard. In that context, and in all the circumstances of the present complaint, I am satisfied that the texts in question constitute harassment on the grounds of sexual orientation (rather than sexual harassment).
5.8. In short, the complainant has established a prima facie case of harassment on the sexual orientation ground but has not done so with respect to his claim of sexual harassment and/or harassment on the gender ground.
5.9. It should be said that the serious nature of the complainant's reaction on the night in question (e.g. in calling the Gardai) was caused much more by the other texts he received and what he considered to be the threatening nature of those texts, rather than by the texts which related to his sexual orientation. However, I would also add that the fact that Mr A "had a few glasses of wine" cannot be considered to be a defence to the matter. I also note that the complainant's texts to Mr A were also considerably aggressive and insulting and there can be little doubt that Mr A was angered by them. However, that cannot justify harassing the complainant on the ground of his sexual orientation.
5.10. I am not satisfied that the complainant asked the respondent to stop supporting a rival organisation, and consider that there may have been a misunderstanding between the parties in that context. However, it is also clear from the robust interaction with the respondent that the complainant subsequently demonstrated that its harassment of him did not serve to put him off defending his position with respect to the commercial dispute. Nonetheless, I am satisfied from the complainant's perspective that the series of texts in question served the purpose of harassing him on the ground of his sexual orientation and constitute harassment within the meaning of the Acts. Finally, lest there be any doubt about the matter in that respect, let me state that the harassment of the complainant by Mr A was undertaken while he was acting as the respondent's employee.
5.11. The evidence upon which the complainant relies with respect to the claim of victimisation suggests that the respondent informed third parties, who knew the complainant, that he had made a claim to the Tribunal. In addition, he submits that these third parties then made derogatory comments about him. He submits, essentially, that his good name was sullied in this context.
5.12. The Acts place victimisation as a separate ground and the complainant must establish a prima facie case that he was treated less favourably than someone else because he had made a complaint to the Tribunal. It seems to me that, even if it is accepted that the respondent did speak to these third parties about the matter, it did so in the context of seeking their assistance with respect to their defence to the matter. There is evidence that at least one of these parties took the opportunity to castigate the complainant. However, it is clear from the evidence at the hearing that this was not at the respondent's instigation.
5.13. It was certainly irresponsible for the respondent to speak to any third parties about the complainant's claim, and it may even have been an offence under the Acts in terms of Section 36(2). In that context, and while it is clearly a matter that the Tribunal would take very seriously, it is ultimately a matter for the Minister and/or the Garda Siochana to consider. It is not, however, a matter that I have jurisdiction to make a determination upon, although I do need to consider the factual basis of that claim in so far as it is relevant to the claim of victimisation.
5.14. As instruments of social legislation, a purposive approach must be taken to the interpretation of the Equal Status Acts. However, in all the circumstances of the present case, the complainant's submission with respect to the victimisation would require me to interpret the Acts in such a way as to make the respondent culpable for the acts of a third party which were made to the complainant unbeknownst to the respondent and certainly not at their behest. I consider that it would be a step too far, and therefore ultra vires, for me to interpret the Acts in this manner. In my view, such an interpretation can only be made in the context of Section 42, and the third party concerned was certainly not acting as an agent for the respondent in this respect.
5.15. In short, there is insufficient evidence to indicate that any comments that were made to the complainant by third parties which would appear to denigrate him can be attributed to a direct approach from the respondent to those third parties to act in such a manner. Thus, the respondent was possibly in breach of the Acts by informing these third parties of the existence of a claim, but did not treat the complainant less favourably in this respect as it did no more than seek information to make a defence to the claim. Additionally, I cannot see how it would have behaved differently if it was faced with the same or similar circumstances with respect to any other person.
5.16. Therefore, the complainant has failed to establish a prima facie case of discrimination on the victimisation ground with respect to the facts at issue in this complaint and his claim fails with respect to that ground. Finally, I note the complainant also made a claim of discrimination with respect to gender and sexual orientation in his complaint form but no evidence was presented with respect to those claims, either in his submissions or at the hearing. His claim in that respect also fails.
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground, in terms of Sections 3(1)(a), 3(2)(j) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts.
6.3. I find that the complainant has failed to establish a prima facie case of discrimination on the gender and/or sexual orientation grounds, in terms of Sections 3(1)(a), 3(2)(a), 3(2)(d) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts.
6.4. I find that the complainant has failed to establish a prima facie case of sexual harassment, in terms of Sections 3(2)(a) and 11(5) of the Equal Status Acts and contrary to Section 11(1) of the Equal Status Acts.
6.5. I find that the complainant was harassed on the sexual orientation ground by the respondent in terms of Sections 3(2)(d) and 11(5) of the Acts and contrary to Section 11(1) of the Equal Status Acts.
6.6. In accordance with Section 27(a) of the Equal Status Acts, I order the respondent to pay to the complainant the sum of €500 as redress for the harassment and for the distress caused to the complainant as a result.
8th November, 2011