EMPLOYMENT EQUALITY ACTS 1998-2015
DEC – E2017-006
(represented by SIPTU)
(represented by IBEC)
File reference: et-154416-ee-15
Date of issue: 24th January 2017
Keywords: Employment Equality Acts, Family Status, Victimisation, Headlice
1.1 The case concerns a claim by Marie Fogarty a Catering Assistant against a Catering Service Provider in a hospital (Aramark). Her claim is that she was harassed on the grounds of family status in terms of 6(2)(c) of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’]. She also claims victimisation.
1.2 Through her Trade Union, the complainant referred a complaint under the Acts to the Equality Tribunal on 16th March 2015. On 18th January 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, Orlaith Mannion, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date, my investigation commenced and a joint hearing was held on 18th February 2016 in Galway as required by Section 79(1) of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
Summary of the complainant’s case
2.1 On 8th October 2014 the complainant states that her manager called her into the office. According to Ms Fogarty, her Manager asked her whether she had a problem with her hair. The complainant submits that she responded by asking ‘What do you mean’? Her Manager answered ‘The girls said…’. When the complainant asked ‘What girls?' her Manager would not answer. Ms Fogarty submits that her Manager asked whether the complainant’s daughter had a problem with her hair. Her daughter was aged 8 at the time. The complainant responded in the negative and then asked ‘Do you mean ‘nits’. Look at my hair’. The complainant submits that she was distressed that her colleagues thought either she or her daughter had headlice.
2.2 Within an hour of the incident her Manager followed the complainant into the kitchen. The complainant was very upset and asked to be left alone. The complainant submits that her manager refused to allow her to leave the room and another member of staff had to intervene.
2.3 As per the company’s procedures a formal grievance was raised by Ms Fogarty (outlined in paragraph 2.1) but the second part (as stated in paragraph 2.2) was rejected. The complainant appealed the second part but the appeal was lost. She received a written apology. Ms Fogarty has been on sick leave since 9th October 2014 with work-related stress as a result of the incidents. She submits that the company should compensate for the lost wages as the respondent does have a policy of paying employees while on sick leave. The complainant maintains that disciplinary action should have been taken against the manager.
2.4 The complainant submits that she was harassed on the grounds of family status. She maintains that it is clear beyond peradventure that to summon a worker to a meeting to receive an entirely unfounded and irrelevant accusation that one’s child was infested with parasites is unwanted conduct which has the purpose or effect of violating a person’s dignity. The complainant maintains that nobody else was summoned to the office and asked whether they or their child was infested by parasites. According to the complainant she was singled out because she was a mother of a child.
2.5 The complainant submits that she remains on medication and attending counselling as a result of the incidents.
Summary of the respondent’s case
3.1 Aramark Ireland is the leading contract catering, facilities and property services provider in this jurisdiction. It has approximately 4000 employees in Ireland. The complainant commenced employment with the respondent on 3rd November 2008 as a catering assistant. She works in Portiuncla hospital, Ballinasloe.
3.2 In relation to the first incident, the facts are not in dispute except to say her Manager was acting as a result of a complaint and avoiding infestation of headlice is of paramount importance when working with immunosuppressed patients.
3.3 However, her Manager vehemently denies restricting the complainant’s access out of the kitchen. She merely wanted to apologise for upsetting her. The Manager readily admits that she did close the door but that is so that passers-by did not overhear the conversation. She also readily admits that she stood in front of the door in the kitchen as the room is small. However, when complainant went to leave the room, she did not restrict her egress.
3.4 The respondent investigated the complainant’s grievance promptly under their Dignity of Work policy. The investigation was conducted by the Regional Manager. It concluded that the Manager could have handled the first incident better but found that the Manager did attempt to apologise and the complainant left the room upset. The appeal conducted by the Operations Director found a similar result. In the appeal the Operations Director suggested mediation between the Manager and Ms Fogarty when she returned to work. However, the complainant has not returned to work.
3.5 In direct evidence the Manager said that she had a good working relationship with the complainant. She was happy to apologise and she would not like to upset Ms Fogarty.
3.6 The respondent points out it has a Dignity of Work policy and both investigations were conducted in line with that. Regarding victimisation, the respondent points out that the complainant’s contract entitles her to six weeks paid sick leave which she received.
3.7 The respondent points out that all of the management team including the alleged harasser have children. 80% of the complainant’s colleagues have children. It also points out that the complainant promised to return to work if she received an apology. She has not done so even though the apology was willingly given.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is family status. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.
4.3 Family status is defined in Section 2 of the Acts:
‘‘family status’’ means responsibility—
(a) as a parent or as a person in loco parentis in relation to a
person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a
person of or over that age with a disability which is of
such a nature as to give rise to the need for care or support
on a continuing, regular or frequent basis,
and, for the purposes of paragraph (b), a primary carer is a resident
primary carer in relation to a person with a disability if the primary
carer resides with the person with the disability;
As the parent of a child under 18 the complainant is covered by this ground.
4.4 Harassment is defined in Section 14A (7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
4.4 I appreciate that harassment is subjective. As the former Chairman of the Labour Court, Kevin Duffy has pointed out that if the impugned conduct had the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim 'whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the complainant, it constitutes harassment for the purpose of the Acts.' However, the incidents that are the subject of this investigation must must be contextualised. Discrimination is defined in the Acts as less favourable treatment on one of the nine grounds. Harassment is much more amplified as per the definition above. Therefore, to raise a prima facie case of harassment the bar is higher than that of discrimination. Both the complainant and the Manager in question stated that they had a positive working relationship prior to this incident. It is highly relevant that Ms Fogarty delivers food to patients in a hospital environment and headlice would be a very uncomfortable condition for people recovering from illness. There would also be significant resource implications for a hospital if there was an outbreak of headlice in that patients would have to be isolated etc. Her Manager was acting on an issue raised by other staff members. It is not a subject any of us would relish raising with colleagues. It was done privately. I am satisfied that it was a legitimate query, made in good faith by the Manager, and it certainly did not have the intention of offending the complainant. The complaint submits she was hurt at the implication that her child was dirty. However, the reason children are more susceptible to headlice is that they generally spend more time in close proximity to each other. The issue was only raised once. It was also against the flow of the previous working relationship of mutual trust and confidence. Had it been a more serious incident or part of a pattern of offensive remarks and conduct, I may have found differently. However, in the circumstances of this case, I do not find the incident of raising the issue about whether Ms Fogarty had headlice to be harassment on the grounds of family status.
4.8 It is a defence for the employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim or any class of persons which includes the victim and to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and where such treatment has occurred to reverse its effects. First of all, the Manager immediately tried to apologise to the complainant. Ms Fogarty was resistant to the apology. I do not find that the Manager falsely imprisoned or restricted the complainant’s movement in her attempt to apologise. The respondent has a Dignity at Work policy and the complainant raised a grievance under it. A thorough investigation (and appeal) was conducted and it is to the respondent’s credit that it reprimanded the complainant’s manager for how she brought up the headlice issue. Very often these investigations side with the more powerful person and are mere tickbox exercises. That is not what happened in this case. The respondent could not reasonably do anything more to reverse the effects of the alleged harassment than ask the Manager to apologise again and suggest mediation when the complainant returned to work. For the avoidance of doubt, even if I had found harassment on the family status ground (which I did not), the respondent would be entitled to avail of the 14A (2) defence.
4.7 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.8 I do not find the non-payment of salary while on sick leave above the complainant’s contractual entitlement to be victimisation. I am satisfied that the complainant has not raised a prima facie case of victimisation.
5.1 I have concluded my investigation of Ms Fogarty’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent did not harass the complainant on the ground of family status
(ii) the complainant was not victimised within the meaning of Section 74 of the Acts.
Therefore, the complaint fails in its entirety.
Equality Officer/Adjudication Officer
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