EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-097
PARTIES
MICHELLE DOYLE
(Represented by Victoria Barrett BL instructed by Mary O’ Neill Solicitor)
AND
G4S CASH SOLUTIONS (IRELAND) LIMITED.
(Represented by IBEC)
File reference: et-154140-ee-15
Date of issue: 7th July 2016
HEADNOTES: Employment Equality Acts, Section 6, Discrimination on grounds of Gender and Disability, conditions of employment, harassment, promotion.
1. DISPUTE
i. This dispute concerns a claim by Michelle Doyle that she was discriminated against by the G4S Cash Solutions ( Ireland) Limited on the grounds of gender and disability civil contrary to section 6 of the Employment Equality Acts.
ii. The complainant referred her claim to the Director of the Equality Tribunal on the 03rd March, 2014 under the Employment Equality Acts. On 20 April 2016, in accordance with his powers under section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Niamh O’ Carroll Kelly, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to hear the matter on the 16th May, 2016.
iii. 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.Preliminary Matter.
Respondent’s Submissions
i. Under Section 77(5) of the Employment Equality Acts the time limit for
referring claims of discrimination to the Equality Tribunal is as follows:
‘(5) (a) Subject to paragraph (b), 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 of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, 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 substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly”
ii There is a six month time limit for referring a claim from the date of the occurrence of the discrimination or victimisation to which the case relates or six months from the date of the last occurrence of the act alleged to constitute discrimination. The complainant referred her complaint to the Equality Tribunal on 03rd March 2015. A number of the complaints in the complainant’s submission refer to incidents from 2010 / 2011 which are out of time. In addition these alleged complaints were thoroughly investigated by the respondent at the time and despite best efforts no colleague of the complainant could be identified as being responsible. The respondent spoke to all ATM engineers (ATME) at the time and reissued the company’s bullying and harassment policy to ATME staff.
The complainant transferred out of that section in 2011 but on her own application transferred back into that position in November, 2013.
3. Claimant’s Submissions.
i. In the case of Cork County VEC v Hurley,Determination No. EDA1124 the Labour Court discussed this section and stated:
“Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v KapurIRLR 387). ………….
In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred.”
ii. It is submitted therefore that treatment to which the Claimant was subjected constituted a continuum of the discrimination and that the claim was submitted within six months thereof.
iii. Section 77 as amended by the 2004 Act states:
“(5)(a) Subject to paragraph (b), 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 of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, 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 substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”
iv. Without prejudice to the matters raised or in the alternative, the Complainant makes application for the reference to 6 months to be substituted by a period not exceeding 12 months. This application is grounded on the Complainant’s illness as detailed in the submission of the Complainant’s booklet, which it is submitted constitutes “Reasonable Cause”. In the alternative and without prejudice to the foregoing, it is submitted that the time, for the purpose of Section 77 of the Act did not start running while the internal complaints process was ongoing. The Claimant relies on the case of Ashley Fitzgerald v Chief State Solicitors Office, UD529/2013. This case, concerned the Unfair Dismissals Act and a preliminary point was raisedasto whether the appeal was submitted within the six-month period as stipulated in the Unfair Dismissals Acts, 1977 to 2007 or within one year if the appellant could show that exceptional circumstances prevented the lodgement of the appeal. The appellant had been dismissed from her position on the10 February 2012. She lodged her appeal within the 10 day period allowed by the Respondent’s procedure. Her appeal was heard on 14 May 2012 and the decision of the Appeals board was 10 July 2012 upholding the decision to dismiss. The respondent argued that the time for the purpose of S8(2) of that Act commenced running on the 10 February 2012 and not on 10 July 2012.
v. The Employment Appeals Tribunal held that to adopt such a principle would be to deny the appellant her Statutory Rights pursuant to S8(2)and thatif the respondent’s appeal process had not completed until after 10th August 2012, based on the proposition put forward by the respondent, then the appellant’s appeal would be Statute barred before she actually had an appeal. The Tribunal were satisfied that the time for the purposes of S 8 (2)cannot start to run until all elements of the disciplinary process are exhausted.
vi. It is submitted that similarly, the Complainant was entitled to let the internal process take its course and that time did not start running while it was ongoing. This is particularly so where the Respondents failure to deal with the matter forms part of the complaint. The Complainant was entitled to rely on her employer to resolve matters but considered the process to be concluded when it appeared to her that her employer would take no further steps to resolve matters and it is submitted that time did not start to run for the purpose of Section 77 until then.
4. Decision (Preliminary Point)
i. The complainant commenced her employment with the respondent on the 11th March, 2002. In October, 2009 she applied for and succeeded in getting a job as an ATME. She transferred out of that section in 2011 and upon her own application, transferred back into the role in November, 2013.
ii. There is no doubt that the treatment the claimant alleges she was subjected to pre 2011 and post 2013 was identical. The issue that must be addressed is whether or not the break in the complainant‘s role as ATME served to sever the ‘continuum’ in the acts alleged.
iii. Whilst the complainant was working in a different department from 2011 to November, 2013 there were no incidents of the type complained of whilst she was carrying out her role as ATME. The act is silent on the issue and no case law on the point was opened during the hearing of the matter.
iv. The behaviour of both the complainant and the respondent has to be examined in order to establish if the actions of the complainant served to sever the ‘continuum’.
v. Prior to the complainant’s transfer out of the ATME department the complaints in relation to the graffiti had been addressed by the respondent. An investigation was launched however the respondent, due the nature of the location, was unable to identify the culprit. However, in the absence of someone to discipline they issue Staff Notices which were displayed on notice boards in their premises. In addition to that, a staff meeting was held and all staff were issued with an updated Bullying and Harassment policy. Following that, the complainant did not invoke the grievance procedure or make known her dissatisfaction with the respondent’s handling of the complainant. On that basis the respondent was justified in concluding that the matter was resolved.
vi. The complainant’s application to transfer back into the ATME role could only have served to further satisfy the respondent that their handling of the complaint had been to the satisfaction of the complainant. It is on that basis that I find that the link between the allegations has been severed and the complainant’s continuum argument fails.
vii. As previously stated all of the images which are the subject matter of the complaint are similar in nature. The complainant found images on various dates from April, 2014 to May, 2015 (after this claim was lodged.) The nature and subject matter of the occurrences are identical. On each occasion the complainant found images of a pig, some had breasts and some had her initials. On that basis I find that I have jurisdiction to hear the complaint in relation to all of the 2014 occurrences.
5. Complainant’s Submissions:
i. The complainant whilst carrying out her contractual duties noticed, on several different dates images painted on a wall inside the ATM bunker depicting a pig. Some of the images had breast and some had her initials. On one of the images the initials MD can be seen. The complainant stated that she is the only employee of the respondents with those initials. She also stated that she is the only employee who wears her hair in a high pony, as is depicted in one of the images. The complainant made a complaint to EH on the 23rd September, 2014. The following day EH spoke to the complainant and told her that she would deal with the complaint. The complainant received a letter on the 24th September, 2014 stating:
“ It is difficult to determine who is doing this but I would advise if you have any evidence or other information to please send it to me. In the meantime we will:
- Have all of the bunkers cleaned in an attempt to try and track who is drawing in them.
- Interview those who have entered the bunkers between the 23rd and the last time you were there.
If there is anything else you feel we can do please don’t hesitate to contact me”.
ii. The complainant accepted that the bunkers were covered, wall to wall, in graffiti.
iii. She went out on certified sick leave in October, 2014 and remained out for a period of three months. She engaged her solicitors in October/November, 2014 in relation to the issue. The complainant accepted that in the respondent’s letter to her solicitors in January, 2014 they outline the efforts they had gone to in an attempt to resolve the situation. However, she said that whilst on paper it looked like the respondent was taking the matter seriously the reality was that they were not. She did accept that the notice referred to in the letter dated 14th January was on the notice board when she returned to work. She also accepted that the respondent offered her a position outside the ATME role. She stated that she was not provided with transcribes/ minutes of those who were interviewed in relation to the matter and that she should have been.
iv. On the 8th May, 2015 the complainant wrote to the respondent stating that the bunkers were not cleaned.
v. The Complainant relied on the following facts, in raising a prima facie case:
· The content and derogatory and offensive nature of the graffiti;
· The ongoing and repetitive nature of the discrimination;
· The Respondent’s admission that this occurred, was most likely directed at the Complainant and acknowledgement that it constituted harassment.
vi. The Complainant also relied upon the Respondent’s inadequate response. The Complainant stated that she simply cannot accept that it was as difficult as the Respondent asserts to identify the perpetrator. It was not accepted that colleagues were interviewed. It was not accepted that any preventative steps were taken to stop the repeat incidents. The Complainant relied on the email from LF Occupational Psychologist, to the Respondent which states “I can of course provide psychological support to Michelle, however in the absence of her perception of meaningful support from her employer, my efforts will be limited.”
vii. It was submitted that these facts are well established and are largely undisputed, with the exception of one issue. It was submitted that the established facts are of sufficient significance to raise a presumption of discrimination and accordingly the onus shifts to the Respondent to prove that there was no breach of the Employment Equality Acts.
viii. In identifying a comparator, the Claimant identified: AV, DB, GC, JB, JB, MC, POC, FM, SD, JM, RM, DF. The Respondent’s submissions confirm that there are ten male colleagues and only one other female. In addition, the nature of the graffiti/comments are very specific to the complainant’s gender. It was submitted that the Complainant would not have been subjected to such images/comments were she not female.
6. Respondent’s Submissions.
i. The case before the Equality Tribunal relates to a claim by the complainant against the respondent, that she is being discriminated against on grounds of Gender and Disability together with a claim for harassment.
ii. The complainant has stated in her WRC complaint form “My employer has allowed me to be harassed and discriminated against over a significant period of time and has done nothing about it or nothing to protect me despite repeated complaints by me”. The respondent is assuming for the purpose of this submission that the complainant is claiming she is being discriminated against on grounds of gender in regards to being allegedly harassed as per her submission.
iii. The respondent totally rejected any allegation(s) that it allows any of its employees to be bullied or harassed in the workplace.
iv. The respondent demonstrated that it did everything in its power to address the complainant’s complaints which included;
(i) Contacting the complainant’s union representative to assist on the matter.
(ii) Investigating each complaint made by the complainant by interviewing her colleagues on each occasion to ascertain the truth.
(iii) Requesting the complainant to name the alleged colleague whom she believed was placing inappropriate drawings in the bunkers. Unfortunately the complainant has failed to name the alleged person.
(iv) Immediately cleaning and removing drawings from the bunker.
(v) Promoting and re-issuing the Dignity at Work Policy to all staff. Informing all staff that bullying and harassment will not be tolerated in the company.
(vi) Offering the complainant a transfer to another business area.
7. BACKGROUND to claimant
i. The complainant commenced employment with the respondent on 11th March 2002 in the cash services department of SSS. The complainant worked in the cash in transit (cit). In October 2009 she applied and successfully got the job as an ATME. This job involved fixing atm machines in an assigned area. For this role the complainant was provided with a car and worked alone when visiting ‘bunkers’ which is the area behind the atm machine.
ii. There are twelve ATME’s of which two are female including the complainant.
8. BackGROUND to RESPONDENT
i. The respondent company has 5 divisions and employs a total of 558 staff.
ii. The company stated that it takes its duty as an employer very seriously and has the required policies and procedures in place to deal with a multi-cultural work environment. The company’s Dignity at Work Policy was opened to me together with the Bullying & Harassment Policy. All staff were/are fully aware of these policies.
9. RELEVANT LEGISLATION AND CASE LAW
Section 6(1) of the Employment Equality Acts 1998 to 2011 states:
“(1)For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a)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) (in this Act referred to as the ‘discriminatory grounds’) which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,”
Section 6(2) provides that as between any two persons, the discriminatory grounds include:
“(a) that one is a woman and the other is a man (in this Act referred to as ‘the ground of gender’)”.
(g) that one is a person with a disability and the other wither is not or is a person with a different disability.
Section 14A (7) of the Acts 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”.
10. Prima Facie Case of Discrimination
i. It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited, in this case gender. The complainant has not cited a comparator.
ii. Section 85A of the Acts set out the burden of proof which applies to claims of discrimination. It requires the claimant to establish, in the first instance, facts upon which she can rely in asserting that he suffered discriminatory treatment. It is only when those facts have been established and are regarded by me as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
iii. In Melbury Developments v Arturs Valpetters, the Labour Court, while 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” It added 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.”
iv. The Court more recently extended this analysis when it affirmed the approach adopted by the Tribunal in Busikas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him and another person who does not possess the relevant protected characteristic, in this case a male comparator.
v. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:
“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
vi.
In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: -
“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”
vii. The respondent submitted that it is only when the complainant has discharged this burden to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. The respondent submitted that the complainant in her submission has failed to discharge this burden of proof and, consequently, the claim cannot succeed.
viii. Without prejudice to the above, the respondent below outlined the history of the case and its defence in relation to same.
11. BACKGROUND to COMPLAINT
i. On ‘letter not dated’ – 2014, the complainant wrote a formal letter of complaint to Mr. H. referring to their conversation on the 23 September 2014 which identified a number of locations where the claimant had found ‘abusive’ drawings in the ATM Bunkers.On the 24 September 2014, the HR Manager replied to the complainant noting “When you last made an official complaint of this nature we did issue notices advising people of the bully and harassment policy. It is difficult to determine who is doing this but I would advise if you have any evidence or other information please send to me” . The letter also notes - ..”in the meantime we will
- Have all the bunkers cleaned in an attempt to try and track who is drawing in them
- Interview all those who entered the bunker between the 23 September and the last time you were there.”
ii. The letter concludes with asking the complainant “if you feel we there is anything else we can do please do not hesitate to contact me”.
iii. The HR manager also outlined to the complainant’s solicitors in a letter dated 14 January 2015 the efforts in which the company had undertaken to ascertain who the perpetrator was in doing the graffiti. These included:-
- Investigating staff who had visited the ATM bunkers before the complainant (as per records),
- Holding staff meetings to make staff aware of the inappropriateness of such graffiti and aware of the bullying and harassment policy
- Requesting the complainant to provide any evidence or name any suspects
- Offering of counselling to the complainant
- Offering to move the complainant to another work area (no loss of income)
iv. The letter concluded with the assurance that the company would continue to provide support to the complainant and to try and identify the person responsible for the graffiti.
v. The respondent stated that it went to great lengths to try and identify who is writing the graffiti in the bunkers. While the graffiti never specifically referred to the complainant the respondent appreciates the upset this has caused, not just to the complainant, but also to her colleagues in ATME.
vi. The respondent stated that it was of the view that the complainant was aware of who the perpetrator was but did not assist in identifying him or her. An exhibit contained a copy of a graffiti reply where the complainant writes “I know who you are, your writing is the same on call out dockets, management know that as well. MD”.
12. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
i. I have to decide if the complainant was the subject of discrimination pursuant to Section 6 (2) (a) and (g) and Section 14A of the Act. In reaching a 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.
ii. The complainant alleges she was the subject in several offensive pig images which appeared in bunkers where she visited in the course of her employment. She stated at the hearing that she did not know who was doing it however did suggested to the respondent that she had her suspicions. It is alleged that she even wrote beside one of the images that she knew who it was based on the handwriting. In circumstances where all of the respondent’s efforts to identify the individual had failed, the complainant should have made her suspicions known to the respondent.
iii. The bunkers are neither owned nor controlled by the respondent. Other third party company employees had access to the bunkers too. That made the investigation of this matter extremely difficult. It also puts in question who the images relate to. The complainant stated that the images must refer to her as she is female, wears her hair in a high pony and one of the images has the initial MD on it. Whilst there is a strong possibility the images do relate to the complainant it is also entirely possible that they relate to someone other than an employee of the respondents. There was no CCTV available to the respondent and they had no access to or right to investigate anyone other than their employees.
iv. I am satisfied that despite never identifying the culprit the respondent did exhaust all efforts in an attempt to do so.
v. I am further satisfied that the respondent did brief its staff on the issue and did place the aforementioned notices on the staff notice boards.
vi. The complainant was offered several other options which would have removed her from the situation and/or appeased her concerns.
vii. It is difficult to comprehend why the complainant, with full knowledge of the respondent’s handling of the situation in the past, applied to transfer back into the role having transferred out in 2009. She knew that the respondent could do no more to resolve her complaints given their lack of control over the bunkers in question.
viii. I am satisfied that the respondent did everything in its power to resolve the situation and offered the complainant a number of solutions, all of which were reasonable and none of which were acceptable to the complainant.
ix. I am satisfied that the claims lodged by the complainant do not come within the scope of the act and that there was no evidence to support the complainant’s complaint that she was discriminated against or harassed by the respondent.
x. The complainant has failed to establish a prima facia case of Discrimination, pursuant to Section 6 (2)(a) and(g) and Section 14A.
Decision I have investigated the above complaints and make the following decisions:
· The complainant failed to establish a prima facia case of discrimination on gender grounds.
· The complainant failed to establish a prima facia case of discrimination on disability grounds.
· The complainant failed to establish a prima facia case of harassment.
· The complaint fails.
_____________________
Niamh O’Carroll Kelly BL
Adjudication Officer/Equality Officer