THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC - E2013-099
(represented by Services Industrial Professional and Technical Union)
C & M Construction Ltd
(represented by Corrigan and Corrigan Solicitors)
File reference: EE/2009/269
Date of issue: 16th August 2013
Keywords: Employment Equality Acts, Membership of the Traveller Community, Harassment, Discriminatory Comment
1.1 The case concerns a complaint by Benny Whitehouse that he was harassed because he was a member of the Traveller community by his employer C & M Construction Ltd. Contrary to Section 14A of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as 'the Acts'].
1.2 Through his trade union, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 29th April 2009. On 31st January 2012, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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. Submissions were received from both parties and a joint hearing was held on 13th September 2012 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 On 6th January 2006 the complainant was employed as a Construction Operative. He worked as a labourer on various sites. He said most of his colleagues were aware he was of Traveller stock. He specifically remembers that early in his employment he informed Ms A (Health and Safety Officer) that he was a member of the travelling community. Initially he had an amicable working relationship with his employer and the other staff.
2.2 Mr Whitehouse made a number of allegations of bullying and harassment. I will only deal with the ones linked to his membership of the Traveller community. In June 2008 he submits that he received a voice message from Mr B (Site Clerk) on his phone that scrap metal and copper had been stolen from one of the respondent's construction sites. The message went on to say 'tell your cousins not to come back to the site again'. Mr Whitehouse interpreted this to be an implication that Travellers had stolen the materials and that he was implicated.
2.3 Mr Whitehouse submits he reported this incident to Ms A. He also reported it to two of the Directors of the company. He submits that other employees called him a 'Knacker' and a 'Gypo' and told him to get out of the canteen and that nobody wanted his type on site. Mr Whitehouse said a meeting was called to discuss his complaints of harassment. This meeting occurred on 18th July 2008 but Mr E (Site Manager) was very aggressive at it.
2.4 In July 2008 Mr Whitehouse submits that Mr E threatened to throw him over a 30 foot drop and cover him with concrete. Mr E also allegedly said to him that he should be ashamed of himself being a 'Knacker and sleeping with his 16 year old cousin.' Mr Whitehouse maintains that he was so upset that he was not able to return to work since 24th July 2008.
Summary of the respondent's case
3.1 The respondent acknowledges that Mr B made the comment as alleged at 2.1. The respondent accepts it was inappropriate although they say it was made in jest and that Mr Whitehouse and Mr B indulged in banter and had a good working relationship. When Ms A heard about the comment, she asked did Mr Whitehouse want to make a formal complaint. The complainant said he did not as 'it was only messing'. Mr B also apologised.
3.2 The respondent submits that Mr Whitehouse sought the meeting mentioned in Paragraph 2.2 to clear the air with to Mr E. Instead at that meeting the respondent submits that Mr Whitehouse goaded Mr E by accusing Mr E of doing things that he did not do to the point that Mr E lost his temper and did call Mr Whitehouse an abusive name but not a discriminatory one. Mr Whitehouse also recorded this conversation on his mobile phone. The respondent submits that Mr Whitehouse said 'Ha, that's lovely [Mr E], I have taped all this and I am going to my solicitor'.
3.3 The allegations at 2.4 are utterly refuted by the respondent. The respondent denies that name-calling like 'knacker' or 'gypo' were tolerated on any of their sites. They submitted as evidence the work diary of Ms A. According to the respondent Mr Whitehouse was infatuated with Ms A and regularly asked her out. She resisted his advances. The respondent submits that he frequently made spurious complaints about the size of wellingtons ordered etc to get her attention - all of which are detailed in her work diary. They submit that they are surprised that if he endured this name-calling that he did not raise this issue with her while he was working there. He was issued with a written warning on 8th July 2008 regarding breach of health and safety regulations i.e. for not wearing his hard hat and driving a vehicle that he was not licensed to drive. The respondent submits that this is the real reason he left work and never returned.
3.3 On 17th November 2008 the respondent received a letter from Mr Whitehouse's trade union representative raising a grievance. A meeting was set up with Mr Whitehouse and his union representative but they never attended and instead lodged a complaint in the Equality Tribunal.
Conclusions of the Equality Officer
4.1 There is significant conflict or evidence in this case. Regarding the incident where Mr. B rang Mr. Whitehouse following a theft and said 'tell your cousins not to come back to the site again' [Paragraph 2.2 and 3.1] it is common case that this did occur. While nobody would like to be employed in a workplace where there is no banter between colleagues, this comment crosses the discriminatory line. Anybody familiar with the mores and biases of Irish society will appreciate that this is an offensive comment to a member of the Traveller community on a few levels.
4.2 Harassment is defined in Section 14A (7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds 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. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.3 I am satisfied that this comment constitutes harassment within the meaning of the Acts. Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects. I have examined the respondent's Personal Harassment Policy and Procedure and the document complies with S.I 208 of 2012 Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 which is the approved Code of Practice for the prevention of harassment within the meaning of the Acts prepared by the Equality Authority. I note that in line with their harassment policy, the Health and Safety Officer asked whether Mr Whitehouse wished to make a formal complaint about this remark. At the time, Mr Whitehouse chose not to. When I asked him why he did not raise it as an issue at the appropriate time, he said that 'the more he thought about it, the more annoyed he got'.
4.4 It also must be borne in mind that the Chairman of the Labour Court has pointed out that if the impugned conduct had the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim 'whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the complainant, it constitutes harassment for the purpose of the Acts.'1 Consequently, even if the remark was made in jest, the test for harassment within the meaning of the Acts is subjective rather than objective.
4.5 I am satisfied that the respondent did attempt to reverse the effects of the incident of harassment as per Section 14A(2)(b) as it did offer to conduct an investigation in line with its harassment policy and Mr B subsequently apologised. However, the respondent manifestly did not prevent the incident occurring which is contrary to Section14A(2)(a) of the Acts. I also need to consider the fact that the remark was made by a supervisor and that there was some element of premeditation involved in that he would have had time to reconsider his action while dialling the number and waiting for the prompt to leave a message. Therefore the respondent cannot avail of the entire Section 14A(2) defence in relation to this incident.
4.6 Regarding being called the derogatory names listed at Paragraph 2.2 and 3.3, Mr Whitehouse was vague about where and when these comments were made as well as who made them. This is in contrast to the voice message discussed in the previous paragraph where he had a firm grasp of detail of what happened. Therefore the complainant has failed to establish a prima facie case of harassment on the Traveller community ground in relation to the alleged name-calling.
4.7 Mr E gave evidence at the hearing. He was a credible and cogent witness and was visibly upset at the accusations Mr Whitehouse made about him. Mr Whitehouse had said that there were people around when Mr E had threatened to throw him down 30 feet and bury him with concrete. I find it hard to believe that a manager, whose conversation had previously been surreptitiously taped by the complainant, would say such a thing in public. Therefore, I am not satisfied that the complainant was harassed by Mr E on the Traveller ground.
4.8 When considering redress, I need to balance a few considerations. While the discriminatory comment discussed in Paragraph 4.1 was offensive, it was only made once and that the respondent did take steps to reverse the effects of the harassment by ensuring Mr B apologised.
5.1 I have concluded my investigation of Mr Whitehouse's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the respondent the respondent harassed the complainant on the ground of membership of the Traveller Community contrary to Section 14A of the Acts in relation to once incident.
5.2 In accordance with Section 82 of the Act, I order the respondent pay the complainant €500. This is redress for the infringement of Mr Whitehouse's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
1 EDA1023 Nailzone Ltd and A Worker