DECISION NO: DEC-E/2013/130
KELLY AND LYNCH
(REPRESENTED BY RICHARD GROGAN AND ASSOCIATES - SOLICITORS)
SCALLY T/A APPLEGREEN SERVICE STATION
(REPRESENTED BY SHERWIN O'RIORDAN - SOLICITORS)
File No: EE/2012/397-398
Date of issue: 8 October, 2013
Headnotes: Employment Equality Acts 1998- 2011 - sections 6 & 14A - gender- harassment - prima facie case
This dispute involves claims by two complainants (i) Ms. Michelle Kelly (the "first named complainant") and (ii) Ms. Aoife Lynch (the "second named complainant) that they were harassed by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 14A of those Acts when a certain comment was made to them by their Line Manager sometime in May, 2012. The respondent rejects the complainants' assertions in their entirety.
The complainants were employed as Sales Assistants at the respondent's outlet in Enfield. They contend that sometime in May, 2012 their Line Manager, Mr. X, made a certain comment to them which they found offensive and humiliating as women. On 25 July, 2012 their legal representative referred complaints on behalf of each of them under the Employment Equality Acts, 1998 - 2011 to the Equality Tribunal alleging that they were each harassed on grounds of gender contrary to the Acts. In accordance with his powers under the Acts the Director delegated both complaints to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaints commenced on 6 September, 2013 - the date the complaints were delegated to me. A hearing on the complaints took place on 20 September, 2013. The parties agreed that the identity of any witnesses to these complaints should be anonymised in this Decision.
3. SUMMARY OF COMPLAINANTS' CASES
3.1 The first named complainant commenced employment with the respondent as a Sales Assistant in early October, 2010 and works in the "Burger King" area of the respondent's outlet in Enfield. She accepts that the Staff Handbook contains a Harassment and Bullying Policy and that she received a copy of this Handbook at the outset of her employment. In the course of the Hearing the complainant's solicitor clarified that the matter at issue in both complaints is a single comment attributed to Mr. X. The first named complainant states that the incident complained of occurred about two months before her complaint was referred to the Tribunal - she was unable to say exactly when. She further states that on the day in question Mr. X approached her and asked her if she knew anyone who was interested in a job. She adds that Mr. X went on to say "No girls - girls are bitches. If I had my way I'd have an all male workforce". The first named complainant states that she replied she knew someone who was looking for work and left it at that. She states that this conversation took place when she was standing at the entrance to the front counter of Burger King. She further states that the conversation involved only her and Mr. X consequently she believed the comment was directed at her and she considered it "not a nice thing to say". The first named complainant states that the second named complainant was four/five feet away, but she believed she overheard the comment. She states that later the same day Mr. X called her to the Office and repeated both comments to her. She adds that she responded the same way she had earlier. The first named complainant states that all staff were called into the Office by Mr. X that day. She assumes they were all asked the same questions.
3.2 The first named complainant states that she did not report the incident to anyone and when asked why (in the course of the Hearing) she initially offered no reason for her failure to do so but later stated that she felt intimidated by Mr. X. She added that at a staff meeting in early January, 2012 Mr. X had informed staff not to go over his head. Consequently, she did not mention the matter to the proprietor Mr. Scally. The first named complainant subsequently stated (in the course of the Hearing) that she had made a complaint to Mr. Scally about another matter sometime after the alleged incident with Mr. X occurred and the matter had been addressed. She states that Mr. Scally approached her about her complaint after he received confirmation of the complaint from this Tribunal but she declined to discuss the matter with him as instructed by her solicitor.
3.3 The second named complainant also commenced employment with the respondent as a Sales Assistant in early October, 2010 and works in the "Burger King" area of the respondent's outlet in Enfield. She accepts that the Staff Handbook contains a Harassment and Bullying Policy and that she received a copy of this Handbook at the outset of her employment. The second named complainant is also unable to say when the alleged incident occurred but states that it happened about two months before her complaint was lodged with the Tribunal. She states that on the day in question she was in the kitchen of the Burger King area of the respondent's outlet when she was approached by Mr. X and he asked her if she knew anyone who might be interested in a job. She adds that Mr. X went on to say that "He would rather have no girls - girls are bitches. He would rather have an all male workforce". The second named complainant states that she replied he "would run out of female staff" and she didn't engage any further. She adds that Mr. X made this comment when she, Mr. X and the first named complainant were in a group.
3.4 The second named complainant states that she did not report the matter to anyone because she was scared of losing her job. She adds that Mr. X had told them at a staff meeting not to go over his head and she was fearful of doing so. She further states that she was aware of another female employee (details supplied) who complained about Mr. X and she "was out the door". In the course of the Hearing the second named complainant stated that she did not know the reason why the female colleague left and accepted, when put to her by the respondent's representative that it could have been for personal reasons. She stated that she was not aware of any other employee leaving or being "pushed out" because of fear. The second named complainant stated (at the Hearing) that she was not called to the Office by Mr. X later on the day he made the comment to her.
3.5 The complainants' representative submits that the treatment of them amounts to gender harassment contrary to the Acts. He further submits that the respondent cannot avail of the defence available to it under section 14A(2) of the Acts because it was aware of the existence of the complaints when it received notice of same from the Equality Tribunal and took no action, when it could have done so.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainants' allegations in their entirety. The respondent (Mr. X), who is the complainants' manager, states that part of his role as Manager is to ensure there is sufficient staff to cover the shifts. He adds that he regularly asked current staff if they were aware of anyone who was looking for a job as a method of recruitment. He would then interview any candidates and make a recommendation to Mr. Scally, who would approve any appointments. He accepts therefore that it was likely he would have asked both complainants if they knew anyone seeking employment but he emphatically rejects the comments attributed to him by both or the assertion that he called the first named complainant to his Office.
4.2 The respondent (Mr. X) accepts he mentioned at a staff meeting that staff should come to him first if they had any problems and he could therefore have used the words attributed to him by the complainants. He adds however, that the comment must be taken in context - he was trying to indicate to staff that if they had any problems they should come to him first, as their immediate manager, instead of unnecessarily bothering the proprietor. He contends it was clear that if he was the source of a staff member's problem that person would not have to bring his/her complaint to him and could approach Mr. Scally direct. The respondent (Mr. Scally) states that neither of the complainants reported or approached him about the alleged incident with Mr. X and that the first time he knew of it was when he received copies of the complaint forms from this Tribunal. He adds that he subsequently approached the first named complaint to discuss the matter but she refused to do so on the advice of her solicitor and he respected that. He further states that the first named complainant had previously approached him with unrelated concerns and he had addressed them.
4.3 The respondent rejects any assertion by either of the complainants that it operated, or attempted to operate, a campaign of not recruiting women. It furnished details of staff recruited as Sales Assistants since the business opened in 2010 and submits that the recruiting and staffing patterns do not support any practice of discrimination on grounds of gender.
4.4 It is submitted on behalf of the respondent that there is significant inconsistency between both complainants as regards the alleged incident of harassment and in that regard they have failed to discharge the initial burden of proof required and their claims must fail. It is further submitted that if they meet that burden the respondent had a Harassment Policy in existence at the time, which both complainants were aware of and neither availed of it. The respondent's representative submits that the arguments advanced for this failure - fear and intimidation - are not credible particularly in circumstances where Mr. Scally had previously addressed issues of concern for the first named complainant. Finally, it rejects the argument that it cannot avail of the defence at section 14A(2) of the Acts because it failed to investigate the complaints following receipt of the referral forms under the employment equality legislation from this Tribunal. It states that Mr. Scally attempted to discuss the matter with the first named complainant and she refused. He respected her wishes and did not press the matter - this was the correct approach as any such pressure might expose it to allegations of victimisation contrary to the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision is whether or not the complainants were harassed by the respondent on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 14A of those Acts In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainants to prove the primary facts upon which they rely in seeking to raise an inference of discrimination in respect of the treatment of them. It is only if this initial burden is discharged and I am satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainants do not discharge the initial probative burden required, their cases cannot succeed.
5.3 The issue at the heart of both these complaints is the same - that a comment made by Mr. X to both complainants was offensive and humiliating to them because they are women - and consequently this amounts to harassment of them on grounds of gender contrary to the Acts. Whilst the complainants have slightly different wording as to the alleged comment their evidence was that Mr. X approached them enquiring if they knew anyone who might be interested in working at the respondent's outlet and in the course of this discussion he expressed the view that women were bitches and he would favour having an all male workforce. However, that is where the similarities between their respective versions of events cease.
5.4 The first named complainant gave evidence that this discussion took place when she was standing at the entrance to the front counter of Burger King and that it was between her and Mr. X - indeed her evidence was that she considered the comment was directed at her and she did not consider it a nice thing to say. The first named complainant added that the second named complainant was four/five feet away and heard this comment. The second named complainant's recollection of this incident was that she, Mr. X and the first named complainant were in a group and they were standing in the kitchen area of the same premises. Their evidence was taken independently of each other at the Hearing and neither could offer an explanation for the differences in their version of events and indeed they each maintained their version was the accurate one.
5.5 The first named complainant states that later that day Mr. X called her to his Office and asked her the question a second time and repeated the impugned comment to her. She also states that all members of staff, including the second named complainant, were called to the Office by Mr. X and although she does not know what was discussed at these meetings she assumes it was for the same purpose she was summoned. In the course of the Hearing Mr. X strenuously denied any such meeting occurred and the evidence of the second named complainant was that she was not called to the Office that day. I therefore find, on balance, that the first named was mistaken as to her recollection of this alleged meeting with her.
5.6 In Melbury Developments v Arturs Valpetters1 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence...." The Court went on to say that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.7 Having examined the evidence of both complainants, which purports to be evidence of the same incident, I find that it is littered with significant differences and inconsistencies. As the Labour Court stated in Melbury Developments v Arturs Valpetters2 the complainants must, in the first instance, establish facts on credible evidence which could lead this Tribunal to infer that the alleged unlawful treatment more likely than not took place. Applying this test to the instant cases I find that the complainants fall well short of discharging that probative requirement and consequently their complaints must fail.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that -
(i) the first named complainant has failed to establish a prima facie of harassment on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998- 2010 and contrary to section 14A of those Acts,
(ii) the second named complainant has failed to establish a prima facie case of harassment on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998- 2010 and contrary to section 14A of those Acts
and both complaints fail in their entirety.
8 October, 2013
1 EDA 0917
2 EDA 0917