EMPLOYMENT EQUALITY ACTS
Decision DEC-E2016–067
PARTIES
An Employee,
represented by Ms Mairead McKenna B.L. and Ms M.P. Guinness
instructed by Neil McNelis & Co. Solicitors.)
and
An Employer
(represented by Arthur Cox Solicitors.)
File References: EE/2014/328,
Et-149733-ee14
Date of Issue: 22nd April 2016
Keywords: Gender, victimisation, harassment.
1. Claim
1.1. The complaint concerns a claim by An Employee (the complainant) that An Employer (the respondent) discriminated against her and harassed her on the grounds of gender and family status contrary to Sections 6(2)(a) and 6(2)(c) of the Employment Equality Acts 1998 to 2011 (hereinafter referred to as the Acts), relating to issues around paid leave following the birth of her twins to a surrogate mother. The complainant also submits that she was subjected to victimisation by the respondent in terms of Section 74(2) of the Acts
1.2. On 17 June 2014, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal. On the 20th October 2014 the complainant referred an additional associated complaint. On the 2nd June 2015, in accordance with his powers under S. 75 of the Acts, the Director delegated the cases to me, Peter Healy, 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.
1.3. As required by Section 79(1) of the Acts and as part of my investigation, I then proceeded, to hold a hearing of the case on 21st September 2015, the 7th and 8th of March 2016. At the hearing the complaint withdrew allegations of discrimination connected to the wider issue of not being afforded the same level of benefits/entitlements as a mother who has a baby by natural or adoptive means. It was clarified on each day of the hearing that the complaint for my consideration relates to harassment and victimisation on the grounds of gender and family status.
1.4. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
2. Summary of the Complainant’s Case
2.1 At the time of the events the complainant, was a manager employed by the respondent. The complainant sumits, that she has not attended work with the respondent since June 2014 as she continues to be certified by her General Practitoner as being unfit for work. The complainant submits that this is due to injuries she acquired as a result of the stress and upset of the events, the subject matter of this complaint (namely the respondent’s unlawful and unfair decision to subject the complainant to a disciplinary procedure).
2.2 In February 2013 (at various dates) the complainant submits that she told colleagues at work that she and her partner were expecting twins through surrogacy and informed them she was going to speak to her line manager about applying for paid leave. The complainant informed her colleagues that she was concerned about this application as she was aware that there was no obligation on the part of her employer to sanction leave for her.
2.3 In April 2013, in accordance with the Respondent’s procedures, the complainant approached her line manager (Mr B) a senior manager and told him of the circumstances of her surrogacy arrangement. She informed Mr. B that she wished to apply for paid leave, something which would afford her as a mother time to spend with her babies when they arrived back home to Ireland. She submits that she informed Mr. B that there is no legislation in Ireland around surrogacy and therefore there was no obligation on the organisation to grant her paid leave. The complainant submits that she told him that while there was no obligation to sanction the leave she wanted to exercise her entitlement to apply for paid leave and hoped that the organisation would consider her application favourably. The complainant submits that she was advised by Mr. B that he would support her application as he believed ‘one is a parent by whatever means’. During this meeting they discussed what form or method she should use to apply as there was no appropriate policy, procedure or form available to apply for this type of leave, namely leave for the purposes of having children through surrogacy. The complainant submits that Mr B advised her to use the adoptive leave application form as it was the nearest form to the leave she was applying for, 24 weeks leave, the same as for adoptive parents. In July 2013 the complainant completed the adoptive leave application and it was signed by Mr B.
2.4 On the 3rd of September 2013 prior to the complainant commencing her period of leave she received a phone call from Mr D (a clerical worker in the HR department) who asked her if she had a placement order which is a document required in an adoption context. The complainant states that she informed Mr. D that there was no placement order as she was not involved in an adoption but that her twins were arriving as a result of a surrogacy arrangement. The complainant insists that she did not simply say to Mr. D that ‘it wasn’t a regular adoption’. She submits that she explained to him (as she had done to everyone) that it was a surrogacy situation. The complainant submits that Mr. D sent the form back to her and instead of completing a new form she changed the dates on the form by crossing out the dates on the form and writing the revised dates as requested. She returned the form to Mr. D.
2.5 The complainants leave commenced in September 2013. In November 2013, the complainant received a phone call from Mr. D requesting she complete a Social Welfare Form. Mr. D told the Complainant that this form should probably have been completed prior to her going on leave but HR omitted to inform her about it. The complainant sent a completed form to Mr. D, stating on it that it was a surrogacy arrangement not adoption.
2.6 On the 11th of December 2013 the complainant received a phone call from Mr. B who stated there was an issue with her leave and that it may not be approved going forward. He informed her that HR would be in contact with her about the matter.
2.7 On the 13th December 2013 the complainant received a phone call from the HR Manager Ms S. During this call the complainant was informed that there was a problem with her leave in that it probably should not have been sanctioned in the first place. She was informed that she probably would not receive any more paid leave and would have to seek advice. Ms. S phoned back later that evening to tell the complainant that her December salary was sanctioned but needed to check what the situation would be going forward and could not guarantee any further salary payments.
2.8 On the 18th December 2013 the complainant received a phone call from Mr. B. He informed her that her leave should not have been sanctioned and that she may be allowed to take unpaid leave but she informed Mr. B that this was not an option for her. She was advised that HR would be in contact with her and again was left waiting until 20th December 2013 for a response.
2.9 On the 20th December 2013, the complainant received a phone call from Ms. S and was informed she would receive no further paid leave. The complainant asked when she would need to return to work to ensure her salary was uninterrupted and she was informed that organisation would be seeking to recoup all of the salary paid to her while she was on leave. No further information was given and she was not told who made the decision or on what basis the decision was made. The Complainant was extremely shocked, upset and stressed by what had transpired.
2.10 On the 8th of January the complainant lodged a complaint pursuant to the Acts. On the 16th January 2014, the complainant received a phone call from a senior manager Mr X. She was informed by him that following a meeting a decision was made on the issue of her leave and that she would continue to receive paid leave until the date sanctioned on her application. It was emphasised to the complainant that this decision would not be reversed and that she should relax and enjoy the rest of her leave. The complainant submits that on this call Mr. X asked her if he could meet with her to have a ‘chat’ around the circumstances of how her application for leave was sanctioned so that the organisation could learn from the situation. The complainant stated she did not have a problem with Mr. X calling to see her and to chat about the matter. The complainant submits that at no point was there any mention of an investigation or the invocation of the respondent’s formal procedures.
2.11 On 24th of January 2014 the complainant received written confirmation of her leave status and she agreed to withdraw her existing Employment Equality Complaint.
2.12 On the 27th of January Mr X and Ms Y came to the complainant’s home while she was on sanctioned paid leave from work. The complainant submits that in so doing, Mr X and Ms Y attended her home under false pretences and that it is entirely inappropriate for an employer to conduct an investigation that may lead to a disciplinary process in the home of its employee. The complainant submits that her privacy was invaded and that of her and children and partner. The complainant was informed that the purpose of the visit was to have a chat and for the organisation to learn from this situation. The complainant submits that she was not informed that she was being investigated; she was not informed the outcome of this ‘chat’ could result in a disciplinary action against her.
2.13 The complainant submits that the was not afforded any rights as an employee and was denied fairness and natural justice and that she was the victim of clear victimisation and adverse treatment as a result of having challenged a decision which she believed infringed her rights under the Acts. She challenged this decision by seeking advice from the Equality Authority, refusing to accept the respondent’s decision and lodging a claim of discrimination: all of these acts amount to protected acts under the legislation. The complainant submits that there is a clear nexus between the complainants’s protected act(s) and the respondent’s decision to conduct a disciplinary process into the matter.
2.14 On the 11th February 2014 the complainant wrote to the Equality Authority informing them that she was withdrawing her complaint against the respondent on the basis that the organisation had confirmed the matter had been resolved.
2.15 The complainant submits that on the 7th April 2014 One week before she returned to work she received an email to her private email address from Mr X. Attached to the email was a redacted draft report for her to review in terms of factual accuracy and return by April 16th, one day after she was due to return to work. The complainant submits that this was the first time she realised an investigation had been carried out, that various staff members were interviewed and that there was a report and findings made against her. The complainant submits that was still not made aware of any complaint or allegation against her. She submits that she was:-
a) never allowed an opportunity to respond to an allegation or complaint
b) not asked to provide a statement
c) not made aware of who was interviewed
d) not given any statements of interviews
e) again not afforded any rights, fairness or natural justice.
The complainant submits that she felt extremely pressurised, trying to prepare to return to work and to organise childcare while at the same time realising that she had been the subject of an investigation and that findings were made against her in a formal report. The complainant says that she was once again placed under extreme physical and emotional pressure and all because of the fact she challenged the respondent’s decision to withdraw her agreed period of paid leave. This leave was only applied for by the complainant because of her family status. Being asked to focus and comment on a report that she was completely unaware of, a report that potentially could impact on her career, professionalism and whole future was extremely stressful for her.
Change of Role
2.16 On the 15th April 2014, the Complainant returned to work. She returned to a different position with very different responsibilities to the role she had left. The complainant submits that this new role had commenced while she was on leave and was unsuited to her as she had no knowledge of the area, no relevant experience or background and had not receive the specific training services which had been provided to other employees. The complainant submits that this move was aimed at placing her in at a disadvantage, to make her vulnerable, to isolate her from colleagues, to encourage her to make a mistake or fail so that she could be further reprimanded or was this a demotion in itself.
2.17 On the 3rd June 2014 after waiting two weeks the complainant received a copy of the final report attached and was requested by E-mail to attend a formal disciplinary hearing on 16th June 2014. The complainant submits that at this time she was extremely distressed, upset and exhausted both mentally and physically from the previous months. On the 9th of June 2014 the complainant wrote to the respondent outlining her objections to the allegations, to the report and to the proposed disciplinary meeting.
2.18 On the 24th June 2014 the complainant attended the disciplinary hearing in Dublin in head office. The complainant declined to participate in the hearing as per advice from her Trade Union as did not accept the investigation was carried out in accordance with correct procedures or natural justice and therefore the outcome as stated in the report was not acceptable.
2.19 On the 4th July 2014 the complainant received a letter from the respondent upholding the allegations against the complainant and indicating that no formal sanction would be applied but ultimately confirmed a note of the matter would remain on her record.
2.20 On the 21st August 2014 the respondent wrote to the complainant stating that a record would be placed her personnel file and that as no sanction was imposed there would be no leave to appeal. The complainant submits that placing a record on the file is the same if not worse than receiving a sanction.
2.21 The complainant alleges that she has been, and is being, unlawfully discriminated against, victimised and harassed by the respondent by reason of her gender and/or family status. The complainant submits that the alleged victimisation to which the she was subjected has a clear nexus with her assertion of her equality rights. The complainant submits that had the she not voiced her concern to the decision to renege on her paid leave, which concern was based entirely on her assertion of her equality rights, no disciplinary process would have been commenced against her.
2.22 The complainant submits that the Respondent commenced an entirely unwarranted, unfair and flawed disciplinary process against her. The invocation of this process is the adverse treatment referenced in the Act.
2.23 In relation to victimisation the complainant submits that the decision to return her to work in an entirely different sector in which she had no experience or training amounted to adverse treatment of her.
2.24 In relation to harassment the Complainant relies on her family status under this heading. She is the mother of two children from a surrogacy arrangement. This is her family. If she did not have a family she would not have applied for leave. She was subjected to significant unwanted conduct as a result of her application for leave which was intrinsically linked to her family status. The behaviour of the respondent created an intimidating, hostile, degrading, humiliating or offensive environment for the complainant. Tangible evidence of this is the fact she had to go out on sick leave and was deemed unfit for work, the fact that she took legal advice and submitted claims to this Tribunal and to the LRC regarding the conduct she was subjected to.
3. Summary of the Respondents’ Case
3.1. The respondent is in agreement with the chronology of events as put forward by the complainant but disputes the complainant’s interpretation of most of the significant events.
3.2. The respondent submits that the complainant completed and signed an Adoptive Leave Form, dated 4 July 2013 which was also signed as approved by Mr. B who forwarded the Adoptive Leave Form to the HR Department (to Ms. S, Head of HR). On 8 July 2013, the Adoptive Leave Form was received by the HR Department and processed by Mr. D. The respondent submits that on 14 August 2013, the complainant informed Mr X (a Senior Manager) of her intention to take leave. On 22 August 2013, Mr. B emailed Mr. X stating that the complainant would be taking adoptive leave.
3.3. The respondent submits that on 3 September 2013, Mr. D telephoned the complainant to state there was a problem with the dates on the Adoptive Leave Form and that the placement date was before the date of the commencement of the adoptive leave. On 10 September 2013, the HR Department received a revised form with the amended dates. The respondent submits that Mr. D was not aware at this point that the complainant was in fact taking surrogacy leave rather than adoptive leave. In early November 2013, Mr. D telephoned the complainant outlining the need for her to complete an Adoptive Benefit Form (a Social Welfare Benefit Form). The respondent submits that, at this point Mr. D was not aware that the Complainant was taking surrogacy leave. On 11 November 2013, the complainant completed, signed and dated an Adoptive Benefit Form stating on the form “this is a surrogacy arrangement and not an adoption”. The respondent submits that in early December 2013, Mr. D received the Adoptive Leave Benefit Form and noticed the relevant section stating that the arrangement was a surrogacy arrangement and not an adoption.
3.4. The respondent submits that on 11 December 2013, Mr. B telephoned the complainant stating that her comment on the Adoptive Leave Benefit Form that it was a surrogacy arrangement was noted by the HR Department. He informed the complainant that there was a problem with the leave and that it may not be approved. According to the complainant, Mr. B informed her that he possibly should not have signed off on the leave without seeking clarity from the HR Department.
3.5. The respondent submits that on 13 December 2013 Ms. S, Head of HR, telephoned the complainant informing her that there was a problem with her leave and that it should probably not have been sanctioned in the first place. Ms. S said that she would have to seek advice. Ms. S asked the complainant if she had documentation to support the surrogacy arrangement, as at that time Ms. S was unsure whether the Complainant was planning to adopt the children born through the surrogacy, and required clarification in relation to the arrangement. The Complainant informed her that she had all of the documentation required. Ms. S informed the Complainant that she did not know if she would get paid for the month of December 2013. Ms. S telephoned the complainant back later that evening to inform her that she would receive her December 2013 salary, as it was the day before the payroll run and pending obtaining clarification on the matter, Ms. S deemed that it was fair to include the Complainant in the December 2013 payroll run.
3.6. On 18 December 2013, the complainant received a telephone call from Mr. B who informed her that leave should not have been sanctioned and that unpaid leave should be sanctioned instead. According to the respondent, she informed Mr. B that unpaid leave was not an option for her and Mr. B responded that HR would be in contact with her. On 20 December 2013, Ms. S telephoned the complainant to inform her that she would receive no further paid leave. The complainant asked Ms. S when she needed to return to work to ensure there was no break in her salary. Ms. S informed the complainant that the respondent would be seeking to recoup all of the salary paid to the complainant while she was on leave. The complainant telephoned Ms. S later that day to inform her that she was not accepting the respondent’s decision and requesting all documentation in relation to her leave to be forwarded to her.
3.7. The respondent submits that following discussions between the complainant, Mr. X and Ms. S regarding the status of her leave, Ms. S wrote to the Complainant on 24 January 2014, stating that while she is not entitled to adoptive leave, the respondent was cognisant of the circumstances that led her to reach the conclusion that she did and as a result the respondent was prepared to continue special paid leave for a 24 week period equivalent to what an adoptive parent would be granted. The letter went on to state that on the basis of the above, the respondent understood that this resolves her complaint under the Acts (lodged on the 8th January) and the complainant later withdrew this complaint.
3.8. Subsequently, the respondent states that they decided to carry out an investigation into the circumstances in relation to which the complainant applied for adoptive leave notwithstanding that her leave was to be taken in respect of a surrogacy arrangement. In furtherance of the investigation, Mr. X and Ms Y met the complainant at her home on 27 January 2014. The respondent submits that this meeting was by prior appointment and that Mr X had contacted the Complainant to confirm the purpose of the meeting by telephone prior to arrival. The respondent submits that at the meeting, the Complainant was informed that her paid leave would continue, however, she was questioned regarding the circumstances of her application for adoptive leave.
3.9. The respondent submits that on 31 January 2014, Mr. X sent the complainant a draft note of the meeting that took place on 27 January 2014 and that the complainant was requested to correct any factual inaccuracies. On 7 April 2014, Mr. X emailed the complainant to state that he was attaching a draft report and to return same by 16 April 2014.
3.10. On 8 April 2014, the Complainant sent an email to Mr. X stating that she was still on leave and that she would be returning to work on 15 April 2014 stating that in light of her busy family circumstances she would not be able to review the investigation report within the timeframe requested On the same day Mr. X sent an email to the complainant extending the time for receipt of response by 21 April 2014 Further emails between Mr. X and the Complainant ensued in relation to the time scale for providing a response. On 23 April 2014, the complainant submitted her feedback in relation to the investigation report. The respondent submits that further emails were exchanged between the Complainant and Ms Y between 7 May and 20 May 2014 in relation to the investigation report.
3.11. The respondent submits that on 3 June 2014, they sent a letter to the Complainant enclosing a copy of the final investigation report as well as a copy of the respondent’s disciplinary policy and a letter requesting that she attend a formal disciplinary hearing on 16 June 2014. The Complainant and Ms Y exchanged emails on 4 June 2014 in relation to the disciplinary hearing and the allegations against the Complainant.
3.12. On 20 June 2014, the respondent’s legal representatives wrote to the complaints legal representatives objecting to the investigation of a dispute by a Rights Commissioner in circumstances where disciplinary proceedings were ongoing.
A disciplinary hearing took place on 24 June 2014. Subsequent to the hearing, the respondent issued their decision to the Complainant dated 4 July 2014 in which she stated that “application for leave on the adoptive leave form is seriously flawed and misleading” which “ultimately led to you receiving paid leave notwithstanding that you had no entitlement to same. In mitigation, I do accept that you did inform your Line Manager of the actual circumstances.” The respondent submits that the report concludes “that the appropriate action is to point this out to you and to ask that you ensure that all documentation submitted by you” is “in the future is clear and unambiguous”
The respondent submits that it can be seen from the above, that they decided not to issue any sanction to the Complainant.
LEGAL SUBMISSIONS
3.13. As a preliminary issue, the respondent submits that the complainant’s claims made under the Acts in October 2014 are statute barred. The alleged discrimination against the complainant by the respondent relates to her being denied paid leave and additional unpaid leave. The period of leave to which the complainant’s complaint of discrimination relates commenced on 26 September 2013. The first of the complainant’s two claims were lodged with the Equality Tribunal on 17 June 2014, which in excess of 6 months after the alleged discrimination. Therefore, it is submitted that this component of the claim is out of time. The complainant has not shown any “reasonable cause” within the meaning of Section 77 (5) (b) of the Employment Equality Acts to extend the time limit to allow her claim.
3.14. Without prejudice to the foregoing, the respondent submits that it did not discriminate against the complainant and that the complainant has failed to establish that she was victimised by the respondent as a result of bringing her complaints under the Acts. The alleged instances of victimisation referred to by the complainant, (i.e. the investigation and the subsequent disciplinary hearing in respect of the complainant’s leave) took place prior to the complainant making both claims in June and October 2014, and therefore were not related to the Complainant bringing a claim under the Acts. The respondent says that it should be noted that following the investigation and disciplinary hearing in respect of the complainant’s leave and after the complainant had submitted her complaint to the Equality Tribunal, the respondent decided not to impose any sanction on the complainant and the complainant was not required to repay the salary received during her leave. This was communicated to the complainant by letter dated 4 July 2014. It is submitted that the complainant suffered no adverse treatment as a result of her bringing complaints under the Acts or giving notice of her intention to do so.
3.15. The respondent submits that it is clear that the complainant has not been subject to the dismissal or any adverse treatment by the respondent as a result of bringing a claim under the Acts. Indeed, it is clear that the alleged treatment complained of by the complainant predated the bringing of her claim under the Acts.
3.16. The complainant has been out on stress related sick leave since June 2014. It is refuted that this stress was caused by poor management within the respondent organisation. The respondent submits that it is applying its normal sick pay regulations to the complainant in the same way as it does to any other member of staff.
Complaint of harassment
3.17. The respondent submits that, it is a fact that the complainant knowingly applied for adoptive leave in circumstances where she was aware that her surrogacy arrangement was not an adoption. In doing so, the complainant completed an Adoptive Leave Form which she signed and dated 4 July 2013 which was then countersigned by her Line Manager, Mr B. However, the Complainant was not applying for adoptive leave and therefore her claim was submitted under false pretences. The respondent’s position is that the complainant did not make any attempts to clarify the situation or her entitlements with HR prior to submitting the application. The respondent submits that it was not until 11 November 2013, some 5 weeks after the initial submission of her form that the complainant brought up the issue of her surrogacy arrangement
3.18. Subsequently, the respondent carried out a review of the circumstances which resulted in the complainant taking 24-weeks’ paid leave to which she was not entitled. In furtherance of this review, the investigators, Ms Y, and also Mr. X, met with the Complainant on 27 January 2014. It is absolutely refuted that the representatives did not inform the Complainant of the true motive for the meeting. It was a review meeting to essentially investigate the circumstances that had arisen. The investigation concluded that the application for paid leave was "seriously flawed and misleading".
3.19. The investigation also concluded that it was similarly and equally concerning that the leave was approved by a senior manager. On the findings of the investigation report, the respondent decided to commence disciplinary proceedings against the complainant and Mr B. While it may not have had the intention at the commencement of the investigation, to take disciplinary action, it was perfectly entitled to do so once it determined that the circumstances established by the investigation warranted such action. Accordingly, a Director was appointed to conduct the disciplinary proceedings. That Director wrote to the complainant on 3 June 2014 inviting her to a disciplinary hearing on 16 June 2014. The complainant responded by submitting a claim to the Labour Relations Commission under the Industrial Relations Acts 1969-2001. The respondent exercised its right not to attend the Rights Commissioner hearing. This was an entirely appropriate decision in circumstances where disciplinary proceedings were pending. The complainant attended the disciplinary hearing and was represented at same. The decision at the disciplinary hearing upheld the findings in the investigation report and in all of the circumstances it was decided not to take any action. This was communicated to the Complainant by letter dated 4 July 2014. In contrast, it should be noted that the Complainant’s line manager was issued with a written warning.
3.20. The respondent absolutely refutes the assertion that the disciplinary hearing was a flawed process which arrived at arbitrary conclusions and submits the following to that effect. The disciplinary hearing was conducted fully in accordance with the respondent’s disciplinary procedure and fully in accordance with the complainant's rights to fair procedures and the principles of natural justice. The complainant was accompanied at the disciplinary hearing by a representative. She was given the opportunity to make submissions during the course of the disciplinary hearing. Regrettably, the Complainant and her solicitor withdrew from the meeting. This was entirely inappropriate.
3.21. The respondent submits that no right of appeal was offered to the complainant because no sanction was implemented. It is clear that there has been no harassment whatsoever of the complainant within the definition set out above or otherwise.
3.22. In summary, the respondent submits that this situation is entirely of the complainant’s own making, in that she completed an adoptive leave form deliberately and consciously knowing that she was not entitled to adoptive leave and the form of leave she was taking was surrogacy rather than adoptive leave. The respondent submits that the complainant benefitted from this to the extent of €38,000 in respect of payments which she was not entitled by law or under her contract of employment. No disciplinary action was taken against the complainant notwithstanding that it was open to the respondent to take such action.
4. Conclusions of the Equality Officer
4.1 I have to decide if the complainant was harassed and victimised on the gender and family status grounds. In reaching my decisions 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. I am satisfied the complainant is covered by the family status ground as she has responsibility for the care of two minors.
4.2 I have to consider is whether the complaints were referred within the statutory time limits. Section 77(5) of the Acts provides as follows:
(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction".
Section 77(6A) of the Acts provides as follows:
For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the
period"
The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the one year period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment. I must consider whether there is ongoing discrimination and whether all of the incidents were interlinked.
4.3 In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC -v- Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
"Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.”
4.4 In the instant case, I consider all instances of the respondent’s treatment of the complainant with regard to her application for leave and the events that followed are linked. I must decide if a continuum of discrimination exists following examination of those instances.
4.5 Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
Harassment,
4.6 Section 14A of the Employment equality acts sets out the conditions under which harassment in relation to access to employment can take place. It provides as follows: -
(7) (a) In this section—
(i) references to harassment are to any form of unwanted
conduct related to any of the discriminatory grounds,
and
(b) 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.
4.7 The harassment alleged by complainant relates to the totality of her treatment at the hands of the respondent and includes all the instances that also relate to victimisation, I have examined all instances of alleged unwanted conduct submitted by the complainant to assess if they are related to the cited discriminatory grounds, but I present my findings below in relation to harassment in tandem with my findings on victimisation.
Victimisation.
4.8 The complaint lodged her first complaint under the Acts on 8th January 2013. Regardless of the fact that the complainant later withdrew this complaint, I must consider if any actions after this date by the respondent constitute Victimisation under the Acts. The main elements of the complainant’s victimisation claim relate to her change of role and to the fact of a disciplinary process.
Change of Role
4.9 The complainant alleges that her change of roles upon her return from paid leave constitutes victimisation. At the hearing of this complaint the respondent gave a full account of the business and organisational changes that it was undergoing at the relevant time which led to the complainant being assigned to a new position. I am satisfied that the new role assigned to the complainant was directly as a result of the significant evolving nature of the respondent organisation and not as a result of the fact of the complainant having made any complaint under the Acts. Further Mr B, who has a history of favourable treatment of the complainant, was a key decision maker in assigning the complaint to this new policy orientated role. I am also satisfied that the change of roles was in no way connected with the issue of surrogacy or the gender ground and does not constitute harassment.
Disciplinary Process
4.10 I have given significant detail above of the account by both parties of the circumstances that led the complainant to apply for leave as it is essential in this case to establish if it was reasonable for the respondent to initiate an investigation into those circumstances. In regards to the investigation and disciplinary process, I have heard a full account from the complainant and Mr B as a witness on her behalf. The respondent presented direct detailed evidence from all relevant staff that carried out, participated in and were subject to those processes. Having heard all of their evidence I accept the account put forward by the respondent. Specifically I find the following are the salient facts,
a. The complainant knowingly applied for adoptive leave in circumstances where she was aware that her surrogacy arrangement was not an adoption
b. She was assisted in this by Mr B who simply ignored his responsibilities from a HR perspective.
c. The respondent realised at a late date that its procedures had allowed an erroneous application for paid leave progress.
d. The respondent was placed in a position where it had authorised a significant benefit to an employee to which that employee was not entitled. Given the significant cost to the respondent and as it receives public funding, the respondent had no option but to investigate the circumstances that led to the granting of such a benefit.
e. The respondent conducted a preliminary investigation. The visit to the complainant’s house on 27 January 2014 was part of this investigation and not part of a disciplinary process. The choice of venue was an agreed effort by the respondent to accommodate the needs of the complainant and was appropriate.
f. There was a clear break between the investigation and the disciplinary process and neither were tainted by any considerations relating to the complainants gender or family status.
g. The findings of the investigation are rational and well founded no inference of harassment or victimisation can be drawn from then.
h. The complainant was not the only person subjected to the same investigation and disciplinary processes. Blame was apportioned to others and the consequences for the Mr B could be considered as more serious. While there was some minor difference in the mode of communication to Mr D during the investigation, it is not enough to raise an inference of harassment or victimisation of the complainant.
i. The complainant was from the outset aware of the allegation against her, as was formally made aware of the specific complaint after the respondent had gathered the relevant facts.
j. No inference of harassment or victimisation can be drawn from the findings or actions arising from the investigation or disciplinary process, rather the respondent has been quite lenient towards the complainant. The respondent has ultimately ignored its own rules and granted significant benefits to the complainant to which she was not entitled.
In relation to victimisation, I find there is no nexus between the complainants protected acts and the respondent’s decision to conduct a disciplinary process. I find no evidence of harassment of the complainant.
5. DECISION
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that
(i) the complainant was not subject to harassment on the gender or family status grounds,
(ii) the complainant was not subject to victimisation in terms of section 74 (2) of the Employment Equality Acts.
______________________
Peter Healy
Adjudication Officer
22nd April 2016