The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-
(Represented by Ola Ladenegan B.L. instructed by Kevin Tunney Solicitors)
Green Isle Foods Limited
(Represented by IBEC)
File reference: EE/2008/298 & EE/2008/716
Date of issue: 18 November 2013
HEADNOTES: Employment Equality Acts - Sections 6, 8, 14A & 74 – Family Status & Race – Conditions of Employment - Training – Harassment - Victimisation.
1.1. This dispute concerns claims by Ms Janet Ologbosere that she was discriminated against by Green Isle Foods Limited on the grounds of family status and race contrary to section 6 of the Employment Equality Acts in relation to training and conditions of employment contrary to section 8 of the Acts, that she was harassed contrary to section 14A of the Acts and that she was victimised contrary to section 74 (2) of the Acts.
1.2. The complainant referred claims to the Director of the Equality Tribunal on 13 May 2008 and 22 October 2008 under the Employment Equality Acts. Written submissions were received from both parties. The cases were assigned to two Equality Officers who were unable to complete their investigations, as one went on maternity leave and the other left the Equality Tribunal. Then, on 13 March 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale an Equality Officer, on which date my investigation commenced. In accordance with Section 79(1) of the Acts and as part of my investigation I proceed to a hearing on 25 September 2012. A second day was set for 15 November 2012 but the complainant was unable to attend through illness. A second day of hearing took place on 14 December 2012. A further day was scheduled for 17 January 2013 but the complainant was unable to attend through illness, however the complainant’s representative asked me to recuse myself from investigating the claims as he contended that I had shown bias against his client and was prejudiced in the manner I dealt with the complaints. These were the same reasons that he had articulated in another investigation in which he was representing another complainant against the same respondent. I stated that I was not biased or prejudiced. However, as he had made the request I gave him the opportunity to submit a written request, with reasons, that I recuse myself. I received a written submission dated 23 January 2013 which I forwarded a copy to the respondent’s representative for their views. The respondent’s representative did not agree with complainant’s representative version of events.
1.3. Having considered the submissions I wrote to both parties on 13 February 2013 refusing the applications to recuse myself from both investigations. I refuted in the strongest possible terms the allegations that I conducted the hearing with great hostility, grave bias and unfairness against the complainants, their witnesses or their legal team. I confirmed that I am required to bring detachment and impartiality to the performance of my duties and functions. My duty is to ensure that I investigate and decide on complaints of alleged discrimination in a fair, impartial and unbiased way. I have a statutory obligation to hear all cases assigned to me unless there are cogent reasons why it would be inappropriate to do so. I confirmed that I could not find any reason as to why I could not continue to hear the complaints.
1.4. Further hearing days took place on 25 and 26 April 2013, 7 June 2013 and 27 June 2013. A Yoruban interpreter was requested by the complainant and assisted on all days of the hearing. Final information was received on 26 July 2013.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant is African and started working for the respondent as an agency worker in December 2003 and on a permanent basis for the respondent in January 2004. She worked on a permanent night shift in the Baseline Department as it suited her personal circumstances. In August 2007 the complainant was promoted to the position of Intermediate Operator.
2.2. The complainant submits that in November 2007 a number of EU Nationals from east European countries who were agency staff were promoted; two to be Senior Operators and three to be Intermediate Operators. This was done without consultation with the complainant or her Senior Operator who was also of African origin.
2.3. The complainant submits that in November 2007 her line manager asked her to change her shift pattern from working nights to a 4 cycle shift as it was intended to run the Baseline on a 24 hour rota. The only staff required to work shifts were the Intermediate Operators and the Senior Operators. The general operatives remained in their regular shifts and were not required to work shifts. The complainant explained to her manager that she was unable to facilitate the shift change because of her personal and family circumstances. None of those recently promoted had children and were informed they would be working shifts when promoted.
2.4. The complainant submits that she was ‘sidelined’ because she refused to change shift patterns and she was not allowed to act in her capacity as Intermediate Operator. The respondent could have operated a system that would have accommodated her circumstances, in allowing her to work on the night shift and continue as an Intermediate Operator.
2.5. The complainant submits that her Senior Operator, who is also of African origin, reluctantly agreed to try the new shift pattern. The Senior Operator’s request to return to night shifts only was refused and this is the subject of another complaint before the Equality Tribunal.
2.6. The complainant submits that those who were newly promoted were sent on IT Training and Health and Safety Training which she was denied. The only supervisors in the complainant’s department not sent on the Health and Safety Training were of African origin. The complainant submits that the newly promoted east Europeans were subsequently transferred to other departments as the 24 hour supervision was no longer required.
2.7. The complainant submits that this amounts to discrimination in relation to training and conditions of employment on the grounds of family status and race.
2.8. The complainant submits that on 28 September 2008 she came to work an overtime shift and they were very busy because of a lack of staff. That was until 1am when there was a machine breakdown and the Senior Operator asked the staff to go on a break. There were between 20-25 staff in the canteen at the time. On their way back to work after the break a manager stopped the complainant, her Senior Operator and a Polish colleague and accused them of overstaying their break. He interrogated them in his office. The Polish colleague was excused and he told the complainant and her Senior Operator that he had “influence form above” and he would be reporting the incident. He sent an email to various managers, the Unit Manager, the then General Manager and HR. The complainant submits this is an unusual procedure as staff who overstay their welcome are usually told off verbally. Many other staff, particularly the Irish, who overstayed their break were not pulled up.
2.9. The complainant submits that there was then a witch hunt, based on the email by the manager on the night, which was cloaked as an investigation. She told the investigation that the person to talk to was the Senior Operator but they ignored this as it was their intention to punish and victimise heer.
2.10. The complainant submits that on the night of 30 April 2008 her daughter was sick and she fell asleep and then woke up after the start of her shift. She could not ring the Production Manager as she did not have her number. The following night she went to work and the Production Manager called her over and asked her to fill out a Return to Work From. The complainant told her manager that she had not been sick but her child had been sick and she requested an explanation about the form. This was not provided by the Production Manager but she called over another Manager on the pretext that the complainant talked loudly, even though she knew full well that the complainant has a loud voice. The new Manager helped the complainant to fill out the form. The complainant took the form to the Production Manager around 07.00 but she said she was busy. At around 07.20 the Production Manager called the complainant into her office and told her that there were mistakes on the form. Instead of correcting the form the Production Manager phoned another manager. She gave no reason for phoning her and did let the complainant have her own witness present. The complainant was delayed further whilst the Production Manager and the new manager discussed the situation; she was eventually allowed to leave around 07.45, about 15 minutes after the end of her shift. Following this there was a meeting when the Production Manager put a counselling note on the complainant’s file, which was not prescribed by the employee handbook. At the meeting the complainant was accompanied by a colleague, another African, and the Production Manager commented that she was not happy with the “quality of the people in the room”.
2.11. Because of the respondent’s discriminatory actions the complainant instructed her legal representative to write to the Respondent’s HR Manager, which they did on 3 May 2008. He was asked to refrain from putting the counselling note on the complainant’s HR file. The HR Manager advised the complainant to use the respondent’s grievance procedure. Following further correspondence it was agreed on 19 May 2008 that the counselling note would be ‘parked’. The complainant submits that she suffered discrimination as many others were not asked to fill out Return to Work Forms immediately they returned to work and many did not fill out these forms for months. These people were not African and were treated differently by the same manager.
2.12. The complainant submits that on 5 May 2008 she and two other employees of African origin invoked the respondent’s grievance procedure. They were the only Africans working in that section and they made complaints of less favourable treatment. The complainant submits that both the investigation and the appeal were flawed.
2.13. The allegations in relation to the investigation are that:
- the complainant was not given adequate notice of meetings,
- she was put under pressure to elicit her statements,
- the respondent failed to provide her with an interpreter,
- the respondent did not call the witnesses of the complainant,
- the respondent did not allow the complainant to sign all statements contrary to their procedures,
- the complainant was pressured throughout by the respondent as they intended to conclude the process on time, but this was not borne out, by delays,
- the respondent failed to conclude the grievance within 10 days as prescribed by its’ procedures
- the respondent treated the Production Manager more favourably,
- the complainant was not allowed to put questions to the Production Manager’s witnesses,
- statements of meetings did not accurately reflect the proceedings,
- the respondent failed to properly consider all the facts,
- the findings and conclusions were deliberately picky of facts,
- the complainant was verbally informed of the outcome on 31 July 2008 but was not given a written decision until October 2008
2.14. The complainant submits that the appeal was delayed until the written outcome of the investigation was furnished. Meetings to discuss the grounds of appeal were held on 28 November and 19 December 2008.
2.15. Shortly after the complainant returned to work after the Christmas break she was informed that her work cell was being disbanded. All members of the work cell wrote to management stating that they knew the cell was being disbanded because of the grievance being taken by the complainant. The complainant submits that this decision by the respondent amounts to victimisation.
2.16. Soon after this the complainant went off sick due to work related stress. The complainant came in for a meeting with HR on 10 March 2009. The complainant was put under pressure to accept a voluntary severance package. The respondent wrote to the complainant on 19 March 2009 in relation to the appeal but the complainant submits this only happened because her legal representative had written to the respondent in relation to the appeal of her colleague. The appeal took place and the complainant contends that witnesses were asked misleading questions, not all witnesses were interviewed and unrelated issues were looked into. The complainant went back to work and was then on maternity leave from 13 June 2009. The respondent failed to furnish the outcome of appeal until 14 January 2010.
3. RESPONDENT'S SUBMISSION
3.1. The respondent confirms that the complainant started working with them in December 2003 as an agency worker. On 11 January 2004 she became a direct employee. At that time she was issued with an employee handbook. The complainant started working on a 3 cycle shift. On 16 January 2005 she moved to working on a permanent night shift. In August 2007 she was promoted to Intermediate Operator. At the time the written submission was made in January 2009 she worked as an Intermediate Operator on the night shift base packing team.
3.2. The respondent submits that on 29 March 2007 the complainant attended an HR clinic on the company’s Grievance Procedure and in November 2007 she attended an HR Clinic on their Dignity and Respect Policy.
3.3. In 2005 there were 2 Senior Operators (SOP) who were African. In late 2005 one of them left for personal reasons. In early 2006 an Intermediate Operator post was advertised (an Intermediate Operator acts as a relief Senior Operator. Before the Intermediate Operator post was filled a 2nd SOP left. Consequently the advertised post was changed to SOP. There were 6 applicants: 3 African and 3 East European. In April 2006 the respondent appointed an SOP. In August 2007 the complainant was appointed Intermediate Operator because of production demands in the area she was working.
3.4. In November 2007 the respondent submits that they had to make changes to the base packing production. It had to carry out base packing during the day and not only on nights and in order to do so they set up a 4 shift system. The complainant was encouraged by the Production Manager to apply for a promotional opportunity arising. The complainant explained to the Production Manager that she could not change to the 4-cycle shift due to childcare issues and requested to remain on the permanent night shift. The Production Manager said she would be able to accommodate her on the permanent night shift and that her pay as an Intermediate Operator would not be affected. It was also explained that because of the new 4 shift structure (each of which would have 1 SOP and 1 Intermediate Operator) her opportunities to deputise as a SOP would be reduced. The respondent submits that the complainant did not have an issue with this at the time and raised no issue about her treatment through their own internal procedures.
3.5. Due to changing business conditions in January 2008 base production reduced from 7 day per week and 24 hours a day to 5 days (Monday to Friday) per week and 24 hours per day. The respondent informed all SOPs and Intermediate Operators of the need to change to a new 3 cycle shift. This change had no impact on the working hours or pay of complainant.
3.6. In relation to the complaint regarding IT Training the respondent submits that the appropriate training is given to those who require email access. SOPs require email access in order to communicate with their managers who may be working different hours. An Intermediate Operator is not normally provided with email access unless they are required to act up as a SOP for a substantial period. Members of the Staff Representative Group (SRG) are also given email access to facilitate them carrying out their role. The complainant fell into neither category.
3.7. In March 2008 the complainant’s Production Manager was asked to nominate staff from her area for a training programme called ‘Supervising for Health and Safety’. The complainant was not chosen as she was not in a position of sole responsibility, as she would not be required to carry out the duties of a SOP in the new shift arrangements.
3.8. On the night of 29/30 April 2008 the complainant was absent from work and made no contact with the respondent. On 1 May 2009 the Production Manager asked to meet the complainant to complete a Return to Work Form. The complainant refused to complete the form in an unreasonable and inappropriate manner. The Production Manager became concerned with her behaviour and called over another manager but she again refused to complete the form. The other manager later returned to the complainant to encourage her to complete the form. A period of time later the complainant came to the Production Manager with most of the form completed but there was an error. The Production Manager began to discuss the form and complete and amend the remaining parts. She called the Quality Manager because she thought she might be able to explain the importance of completing the form. The Production Manager became concerned by the complainant’s behaviour. The meeting was not a disciplinary meeting and the complainant did not need a witness. On the next day, 2 May 2008, the Production Manager arranged to meet the complainant to discuss her inappropriate and unreasonable behaviour. She said that because of the complainant’s behaviour she intended to put a counselling note on her file to mark what had occurred. The Production Manager denies that she made any comment about the “quality of the people in the room”
3.9. The respondent received a letter from the complainant’s Solicitor dated 2 May 2008 informing them that as they continued to discriminate against the complainant she would be referring a case to the Equality Tribunal. This was the first the respondent had heard from the complainant regarding any allegation of discrimination. The letter contained no details of the discrimination. The majority of the letter referred to the incident regarding the Return to Work Form. The respondent submits that the completion of such a form is mandatory. The respondent replied requesting the complainant to avail of their Dignity & Respect Policy. The complainant chose not to use the respondent’s internal procedures and submitted her claim to the Equality Tribunal on 2 May 2008.
3.10. Furthermore, on 5 May 2008 the Unit Manager received a letter, which was copied to five other senior managers, from the complainant and two colleagues making complaints against their Production Manager. On 7 May 2008 a Senior HR Facilitator met the complainant and one of the other complainants to confirm the complaint was being dealt with seriously and that an investigation would be instigated. They were given a copy of the respondent’s Dignity and Respect Policy. The Factory Manager and HR Manager were appointed to carry out an investigation. The respondent submits that the investigation was carried out in accordance with the respondent’s policy and procedures.
3.11. The two members of the investigation team met the complainant on 15 May 2008 to give the complainant the opportunity to provide details of her complaint. The complainant stated she was not in a position to discuss the details of her complaint and she requested time to put her complaints in writing. She submitted a letter dated 18 May 2008 detailing her complaint. Following initial meetings with the complainant and the Production Manager against whom the complaints were made, witnesses were interviewed. The complainant was given the opportunity to comment on the witness statements. It was arranged that one witness who was on annual leave would be interviewed over the phone. The phone interview went ahead but the complainant refused to take part as she was not sure the person was the person they claimed him to be.
3.12. Notes of all the meetings were given to the complainant for comment. The respondent notes that the statements in relation to the complainant’s interaction with the Production Manager regarding the return to work form highlighted the complainant’s behaviour toward the Production Manager, rather than the other way around. The respondent’s procedures have no provision for an employee to cross examine witnesses during an investigation but the respondent agreed to this when asked by the complainant. An interim manager was appointed to the complainant’s area of work during the investigation.
3.13. The investigators facilitated meetings with the complainant during her normal working hours on the night shift, which involved them returning to work at 11pm for meetings. The investigators consider that the complainant acted in an unreasonable manner towards the witnesses, including accusing witnesses of being liars, raising her voice and repeatedly asking witnesses the same question in an aggressive tone and on a number of occasions it became necessary for the investigators to intervene to protect the witnesses by taking breaks and suspending meetings when they considered it appropriate. The respondent submits that it carried out a full and thorough investigation in which the complainant’s complaints were not upheld. The respondent rejects the criticisms of the investigation.
3.14. The complainant appealed the outcome of the investigation by letter received on 14 October 2008. The Supply Chain Director and HR Director were appointed to carry out an appeal. The appeal was carried out and they upheld the decision of the investigating managers, rejecting the complainant’s appeal. The respondent rejects the complainant’s criticisms of the appeal.
3.15. During the night shift of 28 September 2008 the Production Manager on duty was informed that the topping shift had to pack bases as there were not enough base packers on the line. He identified three people returning late from a break; the complainant, her SOP and one other. He approached them and asked them to explain their protracted absence from the floor. The SOP excused herself to resolve a pressing operational matter and returned a few minutes later. The other person answered the Manager’s questions in a reasonable way but did not provide an explanation for her absence. In the production office the complainant did not answer any of the Manager’s questions; in fact she refused to give the Manager her name. When the SOP returned she asked the other person to go and pack bases as she was needed on the line. The SOP and the complainant turned their back on the Manager and spoke to each other in their native tongue and did not answer any of the Manager’s questions.
3.16. Because of their unreasonable behaviour the Manager reported the incident to their line manager, their Unit Manager and HR. The Manager absolutely refutes the allegations made by the complainant. Their line manager spoke to the complainant and the SOP about the incident and asked them what happened but they did not offer an explanation. In the absence of an explanation their line manager got permission from the respondent to review CCTV footage and this footage made it clear that the three people were absent for a protracted period in excess of seventy five minutes. Having taken advice the respondent did not pursue this issue solely from the CCTV footage. The line manager pursued the matter as a disciplinary matter as the complainant and her SOP were being unreasonable and not cooperating with his efforts to investigate the incident. At no time in this process did the SOP state that she had given permission for the complainant and the other person to go to the canteen. When this information was given, two months after the incident, the complainant was informed that no disciplinary action would be taken against her.
3.17. The respondent submits that their actions in relation to this incident do not amount to victimisation within the meaning of the Employment Equality Acts.
3.18. The respondent submits that the decision to terminate the permanent nightshift was made for commercial reasons. It was not linked to the complainant’s complainant and it was not an unprecedented move on the part of the respondent, as alleged by the complainant. The decision was made in consultation with staff through the Staff Representative Group.
4. FINDINGS & CONCLUSION
4.1. In Faulkner v Minister for Industry & Commerce  ELR 107, O’Flaherty J. (at p.111) stated:
“When reasons are required from administrative tribunals they should be required to give only the broad gist of the basis of their decisions. We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.”
More recently O’Malley J. in Angela T. Carr and The Financial Services Ombudsman and EBS Building Society  IEHC 182 stated:
“87. The next issue is the alleged failure to consider all aspects of the case presented in relation to the main mortgage account.
88. I consider that the obligation of the respondent to give the “broad gist” of his reasons in a written finding means that he is not obliged to deal on a point-to-point basis with every argument made by a complainant. This was a case with extensive written submissions. The respondent is, within his discretion and relying on his own expertise in the area, entitled to select and determine those issues that appear to him to be relevant.”
In this claim the written submissions were substantial and oral evidence was heard over six days. I will not be referring to every piece of correspondence submitted or to every incident and event but I have taken them all into account. I have to decide if the complainant was discriminated against in relation to access to training and conditions of employment, if she was harassed and if she was victimised on the grounds of family status and race.
4.2. The complainant’s representative requested the Tribunal to consider events that arose during a confidential mediation process. The parties were given the opportunity to make written submissions on the admissibility of this evidence. I considered these submissions and informed the parties during the hearing that I concluded, from the written evidence adduced, that it is clear to me that all participants were told that the mediation process was confidential. I therefore conclude that I do not have jurisdiction to hear evidence about these events.
4.3. In November 2007 the respondent changed the shift patterns in the area where the complainant was working. The complainant was required to change to a four shift pattern from permanent nights. She asked if she could stay on permanent nights, as it suited her family circumstances, and the respondent allowed her to stay on permanent nights. The complainant says that she was subsequently ‘sidelined’ after this. She was no longer allowed to work as an Intermediate Operator and she did not received the same IT and Health & Safety training as newly appointed Intermediate Operators. The respondent contends that they explained to the complainant at that time that by accommodating her on permanent nights she was no longer part of the four shift pattern of SOPs and Intermediate Operators that had been put in place. Accordingly, she would not have the responsibilities of an Intermediate Operator but her pay was not affected.
4.4. This claim is made in relation to conditions of employment on the grounds of family status and race. The complainant contends that her treatment amounts to discrimination on the grounds of family status as she was in this position because she asked to stay on permanent nights which she wanted to do because of her family circumstances. The respondent contends they accommodated her family circumstances by allowing her to stay on permanent nights, which they recognized was important for the complainant. However, the permanent night shift was made up of General Operators only. The SOPs and Intermediate Operatives worked on a four shift cycle. Therefore, the respondent by accommodating her on the permanent night shift contends they could not accommodate her as an Intermediate Operator because there would be one on each of the four shifts.
4.5. The claim in relation to race is that the newly appointed Intermediate Operators, who were brought in to work the four shift system, were not African and were from Eastern Europe. The respondent contends that the nationality of the complainant or the newly appointed Intermediate Operators had no influence in the claims made by the complainant.
4.6. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”.
4.7. In this part of the claim the specified grounds are race and family status. From all the evidence adduced I can find nothing to support the complainant’s claims of discrimination on either ground. I conclude that the complainant has failed to establish any primary facts upon which a claim of discrimination could be inferred in relation to conditions of employment.
4.8. The complainant submits that following these incidents she submitted her claim to the Equality Tribunal which was received on 13 May 2008. She contends that the events of September and October 2008 in relation to being accused of taking a long break came about because of the claim she submitted in May 2008 and therefore amount to victimization in accordance with the Employment Equality Acts. Section 74 (2) of the Acts states: “…..victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to …. a complaint of discrimination made by the employee to the employer.”
4.9. Her main contention is that on the particular night there were many others who took a long break but it was only herself, another African, who had also taken a claim to the Equality Tribunal and a third person who happened to be with them who were questioned about their break. The manager who stopped them gave evidence at the hearing that he had been told that the packing area had no bases to pack. Therefore he went to find out what had happened. On his way to the base area he came across the Senior Operator, the complainant and another member of staff, who was from eastern Europe. He tried to deal with the matter there and then and viewed it as a matter that would normally be dealt with informally. It was the reaction of the complainant and the Senior Operator and their lack of co-operation and obstruction which meant he had no option but to inform their line manager, the Unit Manager, and other managers who he considered needed to know.
4.10. I accept the manager’s evidence that this was an every day issue which he would have been able to sort out on the night if the complainant and the Senior Operator had explained the circumstances that led to them taking a break. I can find no evidence to support the complainant’s contention that this treatment arose from her having previously made a claim of discrimination. I conclude that the complainant has accepted no responsibility for her actions that night which, together with those of the Senior Operator, were the reason the issue escalated. I conclude that the complainant has failed to establish a prima facie case of victimisation.
4.11. The complainant contends that the Unit Manager’s treatment in relation to the incidents surrounding the completion of a Back to Work Form in May 2008 amount to harassment on the grounds of Family Status and Race. Harassment is defined bysection 14A (7) of the Acts which states:
“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds ….
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.
4.12. The complainant contends that the Unit Manager was completely unreasonable in insisting the form was completely immediately and in her continuing behaviour which resulted in a counselling note being placed on her personnel file. Particularly in circumstances when many others are not made to fill out the form as soon as they return to work and in some cases did not fill out the form for months. The respondent contends that it is mandatory for the Return to Work to be completed. They have a responsibility because of their role in food production and the Return to Work Form is an important part of that. They contend that it only became an issue when the complainant refused to complete the form when asked to do so by the Unit Manager. Again, as with the incident over the break, it seems that an ordinary incident escalated way beyond what would normally happen. I have considered all the evidence adduced in relation to what took place in relation to the completion of the Return to Work Form and I conclude that the complainant reacted in an unreasonable manner to a request from her manager and refused to cooperate with a reasonable request from a manager.
4.13. In this claim the ground is family status and race, however, I can find nothing in the evidence adduced to link any of the incidents to either of the grounds. Accordingly, I conclude that the complainant has failed to establish a prima facie case of discrimination in relation to harassment.
4.14. The complainant did not include the subsequent investigation into her grievances in her original claim. It was first referred to in an ‘Application to adduce further evidence’ which was received by the Equality Tribunal on 30 November 2011. The respondent submits that any claim in relation to the investigation and appeal are therefore out of time. In the decision of the High Court in County Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J). Judge McGovern stated:
"6.2 I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
6.3 Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."
4.15. I accept that the complainant’s grievances were partly related to the completion of the Back to Work Form. Accordingly I consider that these events, as they relate to the completion of the Back to Work Form, fall within the category of ‘furnishing of further and better particulars’. Also the respondent had the opportunity to respond to the complainant’s written submission in their written submission received in the Equality Tribunal on 4 January 2012. Evidence was also adduced from both sides in the hearings. I am therefore considering the complainant’s grievance and how it was dealt with in relation to her allegations over the completion of the Back to Work Form.
4.16. I have received a lot of written submissions and documents in relation to the investigation and the appeal, together with a large number of documents. I also heard extensive evidence during the hearing from both sides. Paragraph 2.13 below sets out the complainant’s allegations as to why the investigation and appeal were flawed. The respondent refuted all these allegations and gave evidence that their procedures were more than adequate and they followed these procedures. They also contend that in certain respects they went beyond the procedures in order to accommodate the complaint.
4.17. I have considered all the evidence and I do not intend to go through every detail that was presented. I conclude that the respondent carried out a thorough investigation and appeal that complied with their procedures and with the standards expected of a large company. I can find nothing in the investigation or appeal that could be considered discriminatory or might give rise to an inference of victimisation.
4.18. The respondent’s decision to terminate the night shift in January 2009 was also not included in the original claim but for the reasons given above in relation to the complainant’s grievances I will consider it as part of my investigation.
4.19. The complainant contends that the decision to terminate a shift was made by the respondent to victimise her for making a claim of discrimination. The respondent contends they made this decision for business reasons. The change to the four shift system was meant to allow the respondent to increase their production. As forecast sales did not materialise they changed to a three shift system and they subsequently decided to get rid of the permanent night shift. Issues were raised about the notice given and the way the way staff were notified but I accept the respondent’s position that they do change shift patterns from time-to-time for business reasons.
4.20. Other, than the time proximity of the process dealing with her grievances the complainant has produced no evidence from which I could find a link between the two. Indeed it seems quite absurd that the complainant could seriously have raised the claim that the respondent would have gotten rid os a whole shift to victimise one individual.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:
- the complainant has failed to demonstrate a prima facie case of discrimination in relation to training and conditions of employment, and
- the complainant was not harassed, and
- the complainant was not victimised.
18 November 2013