FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : NATIONAL GALLERY OF IRELAND (REPRESENTED BY ARTHUR COX SOLICITORS) - AND - FRANCES DONNELLY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 5th September 2012. A Labour Court hearing took place on the 13th February 2013. The following is the Courts Determination:
DETERMINATION:
This is an appeal by Ms Frances Donnelly against a Decision of an Equality Officer in a complaint against the National Gallery of Ireland where she alleged that:
- (a)she was subjected to sexual harassment and harassment on the gender ground;
(b)she was not paid equal pay with a named comparator ;and
(c)she was victimised for having lodged an equal pay claim in 2005.
- (a)the Complainant had not established aprima faciecase of harassment and/or sexual harassment;
(b)the Complainant had not established aprima faciecase of victimisation; and
(c)the Equality Officer had no jurisdiction to open an investigation into the complaint of equal pay.
In this Determination the parties will be referred to by the designations given to them at the original hearing hence Ms Frances Donnelly will be referred to as “the Complainant” and the National Gallery of Ireland will be referred to as “the Respondent”.
In her complaint the Complainant submitted that she was sexually harassed contrary to Section 14A of the Employment Equality Acts, 1998 to 2011 (the Acts); that she was discriminated against on the gender ground in breach of terms of Section 6(2)(a) of the Acts and in contravention of Section 8 of the Acts; that she was victimised in contravention of Section 74(2) of the Acts and that she was paid unequal pay contrary to Section 19 of the Acts.
Background
The Complainant commenced employment with the Respondent on 2ndJanuary 2002 on a part-time basis as a Cleaner.She remained in that position until June 2005 when she was appointed a Service Attendant on a full-time basis.
Summary of the Complainant’s Case
Mr Conor O’Gorman and Mr Ed Kenny, SIPTU, on behalf of the Complainant, submitted an equal pay claim and submitted that the Complainant hadbeen the victim ofa sustained pattern of victimisation by the Respondent and had been subjected to
bullying and harassment by a number of different Managers over the past several years.
Equal Pay Claim
Mr O’Gorman told the Court that the Complainant had lodged an equal pay claim with the Equality Tribunal in July 2005. At the Tribunal a Mediation Agreement was reached between the parties whereby the Complainant was placed at point seven (maximum point) on the Service Attendant (Tier 2 Band 3) pay scale with effect from 1stJanuary 2006. The Complainant now claims thatManagement had breached the terms of the MediationAgreementby not progressing her up the incremental scaleat thesame rateasthe nominated comparator for the 2005 claim and therefore she submitted a further claim for equal pay.
Mr O’Gorman argued that the mediated Agreement of 2006 was not pertinent to her claim as she was now seeking parity with her comparator for the Long
Service Increment 1 (LSI 1). He contended that the mediation Agreement makes no mention of the Long Service Increment.The Complainant claimed
retrospection back to 2008 when she claims she should have received theLSI1
increment and sought to progress at the same rate as her nominated comparator.
Sexual Harassment /Harassment/Victimisation Complaints
The Complainant made various complaints to the Equality Tribunal on 12thOctober 2009 concerning incidents which she contended amounted to sexual harassment, harassment andvictimisation by the Respondenton the ground of her gender. Due to the complexity of the many allegations made the Court sought clarification from the Union on the claims on appeal before the Court. The Court requested details of the claims, appropriate dates and the alleged contraventions of the Acts in respect of the each allegation of sexual harassment, harassment and victimisation. By letter dated 12thFebruary 2013, the Union provided the clarification required. The incidents cited are summarised as follows:-
- •Victimisation
- •Victimisation
- •Victimisation
- •Victimisation and Harassment
- •Victimisation
- •Victimisation and Harassment
- •Victimisation and Harassment
- •Victimisation and Harassment
- •Harassment and Sexual Harassment
- •Victimisation and Harassment
- •Sexual Harassment
A meeting was set up to discuss her grievance on 29thSeptember 2009 with Mr O’Gorman in attendance as the Complainant’s representative. He submitted that the Operations Manager treated the matter as though it was a disciplinary hearing rather than an opportunity to allay the Complainant’s concerns and he stated that the Operations Manager was very accusatory in his manner towards the Complainant.Management informed the Union that the lock was removed as a safety risk as the locked door was a fire hazard. However, Mr O’Gorman stated that they could not produce a risk assessment at that time.Mr O’Gorman stated that the Complainant felt bullied and harassed at this meeting. He submitted that the Complainantwas not
treatedwith fairnessandsensitivity and not in a confidential manner.
The Complainant became too agitated to continue with the meeting and left after a very short while. Shethen met the Head of Administration and explained what had happened at the meeting and seeing how distressed she was he advised her to take the rest of the day off work. The Complainantcontendedthat as a result of the treatment she received at the hands of the Operations Manager at this meeting an inference of discriminationon the balance of probabilitiescan be presumed.
The Complainant went to see her Doctor who certified her as unfit for work.It was at this time that the Complainant decided to make her complaint to the Equality Tribunal.
Mr O’Gorman and Mr Kenny outlined details of the incidents set above and claimed that these constituted acts of bullying and harassment by several different members of Management over a number of years, spanning the period from 22ndFebruary 2007 until 31stMarch 2010.
Theycontended that, given that no male member ofstaff experienced bullyingand harassment of this scale, the only possible explanation for Management's attitude was its gender bias and the scale of the harassment and victimisation resulted from the fact that the Complainant took a complaint to theEquality Tribunal in 2005.
Mr Kenny contended that the incidents outlined above were sufficient to raise an inference of discrimination particularly given the fact that the Respondent had actual and constructive knowledge of the difficulty and distress caused to the Complainant by way of a Medical Report. It was contended that the Respondent continued to allow her to remain working in a stressful environment by not reinstalling the lock on the changing-room door which was at the essence of her claim of sexual harassment and harassment and victimisation.
The Union submitted that the actions of the Respondent had the effect of violating the Complainant’s personal dignity and created an intimidating, hostile, degrading, humiliating and offensive environment for her. It submitted that when viewed in their totality, sufficient facts had been established, on the balance of probabilities, from which discrimination, in accordance with Section 14 (7)(a) of the Acts, could be inferred.
Therefore, the Union contended that in accordance with Section 85 A of the Acts, the burden of proof must now shift to the Respondent.
Summary of the Respondent’s Position
Mr Kevin Langford, Solicitor, Arthur Cox, Solicitors, on behalf of the Respondent, refuted all allegations made by the Complainant. Mr Langford stated that in her complaints under the Acts, the Complainant referred to several alleged incidents going back a period of nearly three years prior to the date on which she lodged her claim with the Equality Tribunal in October 2009. Furthermore, he submitted that the Complainant had not established a causal link between her alleged mistreatment by her colleagues and her claim of victimisation.
Mr Langford stated that in respect of most of the alleged incidents now complained of, the Complainant did not invoke the Respondent's Grievance Procedure. In this context, he pointed out that the Complainant was a SIPTU Shop Steward and either knew, or should have known,of the avenues available to pursue any grievance or complaint she had in the workplace.
Claim for Equal Pay
Mr Langford referred to the Complainant’s claim for equal pay with the named comparator lodged with the Equality Tribunal in July 2005, which was subsequently resolved by mediation. He stated that the Mediation Agreement entered into in 2006 was in full and final settlement of the claim and was entered into by the Respondent strictly without admission of any liability. He stated thatthe nominated comparator was not a valid comparator ashewason a different pay scaleto theComplainant.
Mr Langford now submitted that the new equal pay claim is identical in substance to the first one in that it relates to the same issue and the same nominated comparator. Therefore, it was not open to the Complainant to seek to re-visit the first equal pay claim and/or to assert a breach of the Mediation Agreement by way of a fresh claim under the Acts.
Time Limit Issue
Mr Langford stated that as the Complainant's claim was received by the Equality Tribunal on 12thOctober 2009, her claim is limited to acts of alleged victimisation or harassment that occurred in the six months prior to 12thOctober 2009 (i.e. the period from 13thApril 2009 to 12thOctober 2009).The alleged incidents complained of by the Complainant in her October 2009 referral date back over a period of timecommencing nearly three years prior to the lodging of her claim.
In any event Mr Langford submitted that the Complainant can only rely on alleged acts which occurred before the presentation of her complaint to theEqualityTribunaland not after such referral.This proposition was recently confirmed by the Court inA
School v A Worker EDA122.
Burden of Proof
Mr Langford referred to Section 85A (1) of the Acts which deals with the burden of proof and held that the onus falls on the Complainant to establish facts from which it may be presumed that there has been victimisation,harassment or sexual harassment.It isonlyif theComplainant establishessuch factsthat any question of the onus of proof shifting to theRespondent arises. Mr Langford referred to the test formulated bythe Labour Court inSouthern Health Board -v- Mitchell [2001] E.L.R.201for determining if the burden of proof shifts to the Respondent where the Court stated as follows: -
- "The first requirement of Article4of the Directive is that the Complainant must "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment"
Sexual Harassment/Harassment
Mr Langford submitted that the alleged incidents cited by the Complainant in support of her claim for sexual harassment must be construed strictly in accordance with the definition contained in Section 14 of the Acts.He submitted that there was no basis for the Complainant's assertion that the removal of a lock on the outer door of the ladies’ changing-room, which was done for health and safety reasons, could have"seriously violated her right to dignity and respect in the workplace"as alleged by the Complainant.
Mr Langford told the Court that on or about 26thAugust 2009 the lock on the outer door of the ladies’ changing-room was removed by Maintenance Attendants on the instructions of the Assistant Safety Officer.This instruction was given on foot of the findings of a risk report prepared by an external safety consultant which stated that the door must remain unlocked at all times.He stated that theladies’changing-room hasan inner door with a lock which was not removed and through which toilets and washhand basins are located and where women can change their clothes. Heemphasised that the removal of the lock from the outer locker room door affected all the female Service Attendants who used those facilities i.e.it was not an issue specific to the Complainant only and no other complaints were made.
Mr Langford referred to a meeting held on 1stSeptember 2009 at which
the Assistant Safety Officer explained the reasons for the removal of the lock from the external door and informed those present that the women using the changing-room were to be relocated to another ladies’ changing-room with immediate effect.
Mr Langford told the Court that at the meeting held on 29thSeptember 2009, called for the purpose of dealing with the Complainant’s grievance as outlined in her letter dated 1stSeptember 2009, the Operations Manager explainedthat he would deal with each element of her complaint and if necessary would havefurther meetings until the issues were resolved. From the outset, the reasons why various steps had been taken were explained to the Complainant. However,Mr Langford stated that the Operations Manager formed the view that theComplainant appeared unwilling to engage. He contradicted the assertion that theOperations Managerrefused to produce the risk assessments. He said that the Complainant became visibly agitated and left the meeting prematurely.
Finally,Mr Langford submitted thatthe Complainant had not made out a valid claim of harassment under the Acts
Findings of the Court
The Union did not call any witnesses. The Respondent indicated to the Court that it wished to call a number of witnesses. However, with the concurrence of both parties it was agreed that witness evidence would only be necessary if the Court determined that the Complainant had established aprima faciecase of discrimination.
The Court has carefully evaluated the written and oral submissions of both sides tendered in the course of this appeal together with the extensive documentation put in evidence.
In the instant case the Complainant has set out a number of instances which she alleges show a pattern of sexual harassment, harassment and victimisation.
A number of the alleged incidents cited, save two, occurred more than six months before the date on which the matter was referred to the Equality Tribunal and were, accordingly, outside the time limit prescribed by Section 77(5) of the Acts.
In order for the Court to consider the alleged incidents which occurred outside the time limits prescribed, the Court must examine whether or not there is a causal connection/link between the alleged incidents which occurred outside the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.
In Determination EDA1124,Ann Hurley v County Cork VECthis Court considered the scope of its jurisdiction in dealing with alleged acts of discrimination which occurred before the presentation of a claim to the Equality Tribunal.
- “The decision inCounty Louth VEC v The Equality Tribunal and Pearse Brannigan,Unreported, High Court, McGovern J. 24th July 2009, is clear authority for the proposition that a claim under the Act may be amended so as to rely on additional acts or omissions which occurred before the claim was initiated provided that the nature of the claim remains the same.”
In respect of alleged incidents which occurred after the date of claim, inA School v A Worker, Determination No EDA122thisCourtheld that the Complainant can only rely on alleged acts of discrimination which occurred before the presentation of his claim to the Equality Tribunal for the purpose of seeking redress. However, evidence tendered in relation to later incidents which have probative value in respect to any facts in issue, in relation to matters comprehended by the claim at the time it was made, could be admitted. In the within case no details were supplied to the Court on the second sexual harassment incident alleged to have occurred on 31stMarch 2010, i.e. post the date of claim and accordingly, the Court has no facts/evidence upon which to consider this allegation.
Therefore, the Court must first consider whether the complaints which are within the time limit are the most recent occurrences in a series of related events and are sufficiently connected to so as to make all of them part of a continuum thereby bringing the complaints within the time limits set out in Section 77(5) of the Acts. For many of the alleged incidents the Complainant relies on essentially the same set of facts to ground a claim of victimisation and harassment while at the same time relying on the same incidents to ground her claims of harassment and sexual harassment.
The essence of the case before the Court as presented by the Union is that the Respondent was engaged in a pattern of victimisation, harassment and sexual harassment against the Complainant. It seems to the Court that as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts. The Court will, however, deal with these overlapping claims as if they were pleaded in the alternative in so far as they are found to come within the time limit.
The incidents that occurred within the time limit involved the removal of a lock from theladies’ changing-roomdoor and the grievance meeting held on 29thSeptember 2009 set up to discuss her opposition to that action by the Respondent. The Respondent disputed the contention that the removal of the lock constitutes an act of “sexual harassment” within the statutory meaning of that term in accordance with Section 14A(1) of the Acts.
- Harassment/Sexual harassment
Section 14 of the Acts states as follows: -
"(7)(a)(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, (ii) references to "sexual harassment" are to any form of unwanted verbal,nonverbal
or physical conduct of a sexual nature,
(b) being conduct which in either casehas thepurpose or effect of violatinga person's dignity and creating an intimidating, hostile, degrading, humiliatingor offensive environment for that person.
(c) Without prejudice to the generality of paragraph (a),such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
The Recast Equal Treatment Directive, Council Directive 2006/54, Article 2(1)(d) defines sexual harassment as occurring:
- …..where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.
This definition provides that discrimination is recognised as occurring where a person is subjected to unacceptable treatment simply because they are a woman.
The Complainant submitted that the actions of Management by removing the lock from the external door of the ladies changing room was an act of sexual harassment as itimpacted on her sense of privacy, personal security and safety and she felt that it was an aggressive act that seriously violated her right to dignity and respect in the work place. She alleged that this action was discriminatory on grounds of her gender and constituted sexual harassment within the statutory meaning of that term.
The Court must consider if the actions of Management referred to amount to sexual harassment within the statutory meaning of that term. If the Court answers that question in the affirmative it must consider if the Respondent can avail of a legally recognised defence.
The Court was provided with the “Risk Assessment Report” of the“Female staff changing area. Access and Egress”carried out by an Independent Risk Assessor on 20th August 2009, signed by the Assessor and cosigned by the Respondent’s Security and Building Manager on 20th August 2009. This Report states:
- “Hazard Description 345 Existing ladies staff toilet is locked at certain times”
“Risk Description: Serious injury, delay entering or evacuating room during emergency”
“Risk Level: Substantial”
“New Risk Controls: 1. Instruct staff that door must remain unlocked at all times”
The Court fully accepts the requirement forprivacy and personal security while changing and fully accepts that any breach of such could violate a woman’s right to dignity and respect in the workplace, however, there was no suggestion here that such privacy was necessarily in danger as it was still possible to lock the door when women were changing. While there was a reference to the changing-room being situated in a male-dominated area there was no allegation of their privacy being violated. In any event, on the removal of the lock, the Respondent stated that it was their intention at the time to relocate the changing-room with immediate effect, as was explained to the Complainant at a meeting held with the Assistant Safety Officer on 1stSeptember 2009.
The Court also fully accepts that having received an Independent Risk Assessors’ Report which refers to a substantial safety risk if the outer door was not unlocked at all times, it was necessary for it to take some immediate remedial action.
Taking account of all the circumstances, the Court does not find that the removal of the lock in such a situation can amount to sexual harassment for the purposes of the Acts.
The Complainant submitted that not only could this incident be deemed to be an act of sexual harassment but it also came within the definition of harassment on the gender ground, however the Court can see no reason how the two allegations can be distinguished from one another and accordingly does not find this aspect of the claim to be well-founded.
- Grievance meeting held on 29th September 2009
Despite this, she stated that thelock wasactually removed and she felt it wasan
aggressive act that seriouslyviolated her right to dignity and respect in the workplace.
At the meeting on 29thSeptember 2009 to discuss her complaint the Complainantalleged that rather thanbeing sensitive and confidential,the Operations Manager had subjected her to further harassment and her complaints werenever investigated contrary to the Respondent’s policies.She alleged that thisadverse treatment occurred at the beginning of the process and was therefore motivated by anattempt to discourage her from pursuing her complains any further.
The Court was provided with a written account of that meeting compiled by the Operations Manager. This was submitted to the Court by the Union. It states that the Complainant was accompanied by her Union representative and the Operations Manager was accompanied by a Senior Attendant. At the meeting the Operations Manager outlined the reasons why the various steps had been taken, however, from the outset, the Complainant was agitated and appeared unwilling to engage and, when asked to provide some detail in relation to a particular allegation in her letter of complaint where she alleged that the Respondent had failed to take a previous complaint seriously, she became so visibly agitated that she left the office.
The Court notes that in May 2010, following a detailed review of the Complainant’s grievance in relation to the female locker and changing facilities for Attendant staff, which included discussions with the Respondent’s Health & Safety consultants, plans were formulated to improve the facilities and these plans encompassed emergency evacuation procedures.
Having considered the submissions of both parties� the Court is not satisfied that an allegation of harassment can be substantiated in respect of this meeting. It is very clear that the Complainant was upset at what transpired at the meeting leading to her absence and referral of a claim under the Acts. However, the Court does not find that the treatment impugned was connected to the Complainant’s gender and accordingly finds that it does not come within the ambit of Section 14 of the Acts.
The Court has also carefully examined the evidence tendered in respect of the incidents which occurred outside the time limit and cannot see how any of those incidents have any probative value in establishing facts from which a claim of sexual harassment or harassment might be inferred.
Accordingly the Court does not find this aspect of the claim well-founded.
- Victimisation
Victimisation is defined by section 74(2) in the following terms:-
"For the purposes of this Part victimisation occurswhere dismissal or other
adversetreatment of anemployee by his or her employer occursasa reaction to–- (a) a complaint of discrimination made by theemployee to the employer,
(b) any proceedings by a complainant,
(c)an employeehaving represented or otherwise supported a complainant,
(d) the work of anemployee havingbeen compared with that of anotheremployee for any of the purposes of this Act or anyenactment repealed
bythisAct,
(e)anemployeehavingbeenawitness in any proceedings under this Act ortheEqualStatus Act 2000 or any such repealedenactment,
(f) an employeehaving opposed by lawful means an act which is unlawful underthisAct or thesaid Act of 2000 or which wasunlawful or anysuch repealedenactment,or
(g) anemployee having given notice of an intention to take any of the
actionsmentioned in thepreceding paragraphs".
- (a) a complaint of discrimination made by theemployee to the employer,
This section of the Acts is based on Article 11 of Directive 2000/78/EC on Equal Treatment in Employment and Education (The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker‘as a reaction to’a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision.
The Complainant’s original equal pay claim was submitted to the Equality Tribunal on 11thJuly 2005 and the Mediation Agreement was concluded in May 2006.The Complainant referred to a number of occurrenceswhich took place between22ndFebruary 2007 and 29thSeptember 2009, carried out by various different Managers, at different times. The first act alleged to constitute victimisation occurred some 19 months after the Complainant made her original complaint to the Equality Tribunal and 9 months after the Mediation Agreement.
It appears to the Court that, given that the first alleged act of victimisation took place some 19 months after the conclusion of the mediated Agreement and that a number of different Managers were involved in the alleged acts referred to, in all the circumstances the Complainant hasnot established any facts from which the Court could properly draw an inference that victimisation occurredfor bringing the equal pay complaint in 2005.
- Equal Pay Claim
The Union submitted that the Respondent was in breach of the Mediation
Agreement entered into in 2006 in settlement of her 2005 equal pay claim by not progressing the Complainant up the incremental scale on the same basis as her nominated comparator for the claim.
The Union submitted that the within claim is a new claim. At this point the Complainant claims that she was being discriminated on the ground of gender by not receiving the same rate of pay as her named comparator for the period January 2008 to January 2009. Mr O’Gorman stated that the nominated comparator went ahead of the Complainant in January 2008 by way of an LSI directly related to his length of service. He said that the Complainant and her comparator commenced work on the same date in 2002 and submitted that there were no grounds for the difference. He stated that the Mediation Agreement makes no mention of the LSI as this issue was not relevant in 2005 on the basis that the Complainant and her comparator were not eligible for it until January 2008.
Mr Langford on the other hand stated the Respondent was satisfied that it had fully complied with the termsofthe Mediation Agreement and implemented it in accordance with its terms. He said that the terms of the of the settlement agreed at mediation did not specifically equate theComplainant's point on the payscale with that of the comparator,but rather it placed the Complainant ontheseventh point on the Service Attendant scale with effect from 1st January 2006. As a consequence,the first possibilityfor the Complainant to receive a long service increment arose on 1stJanuary2009and thefirst possibility for her to receive the second long service increment arose on 1st January 2012.
Having considered the submissions made and having examined the Mediation Agreement, the Court is satisfied that the issue of long service increments naturally flowed from the terms of that settlement. The first long service increment was due after three years, therefore, the appropriate date it arose on 1stJanuary2009, and not 1stJanuary 2008, as claimed. The Agreement states:
- “The respondent agrees, without any admissions of liability and without any acceptance that it treated the complainant less favourably on grounds of gender, to place the complainant on the 7th(maximum) point on the Service Attendant (Tier 2 Band 3) pay scale with effect from 1 January 2006. The complainant’s incremental date for future pay determination purposes will be 1stJanuary each year.”
Accordingly, the Court finds that as the equal pay claim submitted in 2009 is essentially the same claim as that which was referred in 2005, and the latter was addressed by a lawful Equality Tribunal Mediation Agreement, there is now no valid equal pay claim under the Acts before the Court.
Conclusion
Determination
Having so concluded the Court disallows the Complainant’s appeal and affirms the Decision of the Equality Tribunal.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
11th April, 2013.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.