EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-001
(Represented by Michael Brennan, BL instructed by B.J. O’Beirne & Co Solicitors) Complainant
Amark Healthcare Services Ltd
(Represented by Hayes Solicitors) Respondent
File reference: ET-154163-EE-15
Date of issue: 10 January 2018
1.1 On the 4th March 2015, the complainant referred a complaint of discrimination in relation to his conditions of employment as well as harassment and victimisation. The complaint is made on the race ground and pursuant to the Employment Equality Acts. On the 27th September 2016 and in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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.
1.2 The complaint was scheduled for hearing on the 13th October 2016. The complainant was represented by Michael Brennan, BL instructed by B.J. O’Beirne & Co Solicitors. Two witnesses attended to give evidence on the complainant’s behalf. They are referred to as the care assistant colleague and the colleague. Hayes Solicitors represented the respondent. Three witnesses attended for the respondent, referred to in this report as the supervisor, the home manager and the housekeeper.
1.3 It was not possible to electronically circulate relevant CCTV footage for technical reasons. On the 28th April 2017, I attended the offices of the respondent solicitors to view CCTV footage of the incident of the 18th September 2014. Counsel for the complainant was also present. Both parties made submissions in relation to the contents of the footage.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act.
2. Summary of the complainant’s evidence and submissions:
2.1 The complainant commenced employment with the respondent on the 30th March 2010. He was a cleaner and his tasks included cleaning rooms, corridors and clearing rubbish. He worked 10 hours per day and started at 8am. He had problems with the supervisor from the start. She would, for example, give him additional work on top of his duties and subjected the complainant to pressure. He had been asked to put together cardboard boxes, to pick up cigarette butts and to wash windows from the outside. He was responsible for the cleaning of two floors and anything else was extra. There were about 20 rooms on each floor. He mainly worked alone and it would take 20 or 30 minutes for a normal clean. He could also do a deep clean in a room, which involved washing everything and stripping the bed. If he was not able to complete a clean within a specified time, he would get “not nice” comments from management. This included the supervisor saying to the complainant to “f*** off back to Poland”, his country of origin. He said that this also occurred a few times in 2011 and 2013.
2.2 In respect of the incident of the 18th September 2014, the complainant said that at 7.40am, he was having a coffee prior to starting work. The supervisor entered the staff room and asked him whether he had done a deep clean the previous day and that a pillow was missing from the room. He was told to replace the pillow, which he did. The complainant then went to clean on the first floor and while cleaning the dining room, he was asked by the colleague to help open a door. The colleague was worried as the resident was inside the room and the door would not open. The complainant was able to open the door and returned to clean the dining room. On his return, the supervisor approached him and asked “where were you”. She said “everyone is working except you”. He explained what had happened but she did not believe him. She started shouting at him and said “f*** off back to Poland”. He had been away for five or ten minutes. The supervisor had shouted at him and clenched her fist. She was not calm. They had been told to lodge grievances with management and not with nursing staff. He then sought to contact a named manager. The complainant did not stay in workplace as this was not the first time this had happened.
2.3 The complainant had been given more work than others and this was on top of his duties. He was verbally abused by the supervisor. There were no issues with his work, but she did not have a good view of him. He was treated differently. He was told on many occasions that he needed to do two deep cleans in a shift, when others would only have to do one. In respect of another incident, the complainant said that he had been cleaning the ground floor when he went to the bathroom. The supervisor challenged where he had been, and he explained. She then said “you are stupid Polish.” He reported this to the former home manager. She asked what he wanted to do, to which he replied that he did not want to be shouted at. This manager gave the supervisor a warning. This could have taken place in 2012. He did not know why the supervisor treated him differently. After the warning, there was one week of quiet, but she began behaving in the old way. He just wanted to continue with his work and received positive comments about his work. The supervisor would always shout at him, uncontrolled. He could not understand what she was saying. The complainant made one written complaint, but a number of verbal ones too. The complainant said that after the incident of the 18th September 2014, he was very stressed and in a state of shock. He ended up in hospital. He said that he was probably treated differently because he is Polish.
2.4 In cross-examination, the complainant agreed that he had signed an exhibited contract of employment but said that he never received the Employee Handbook. It was put to him that he had signed an acknowledgement slip for the Employee Handbook; he replied that he had not seen the Handbook. He had also not seen the bullying and harassment policy and it was put to the complainant that this had been sent to him on two occasions. He did not recall receiving the letters of the 28th September and the 8th October 2014, enclosing the policy. It was put to the complainant that he should have availed of the policy and complained to the respondent; he replied that he had no option but to take legal action. The complainant had attempted telephoning a named manager on her landline and her mobile but could not reach her. He had obtained this manager’s mobile number from the roster. He also telephoned HR on the 19th September 2014 but never received a return phone call.
2.5 The complainant agreed that he had signed the contract exhibiting a flexibility clause and that it included a reference to a grievance procedure. He had phoned his line manager and there was no response. He had informed the respondent and it took one month for someone to contact him. It had been the line manager who contacted him some two or three weeks later. The complainant said that he had informed the nursing home of his new address. It was put to the complainant that the additional duties he referred to were part of his normal duties, for example cleaning the outside of windows; he replied that his duty was general cleaning, including deep cleaning. The complainant accepted that there should be a pillow on a bed following a deep clean, but the conversation of the 18th September 2014 related to the need for a second pillow on the bed. It was put to the complainant that on the 18th September 2014 he had left a trolley with dangerous chemicals in an area occupied by residents with advanced dementia and this was strictly prohibited; he replied that he left the trolley for 5 or 10 minutes and no one was then in the dining room. He had not created a dangerous situation and he had been asked by the supervisor to leave the trolley on numerous other occasions. He stated that the trolley had been in the hallway outside of the dining room and everyone was asleep at this time. In respect of availing of the complaints procedure, he said that the HR Business Partner was new and only in place for a few weeks. He had previously addressed a complaint to the former home manager. It was put to the complainant that he had been able to detail 23 complaints in his letter of February 2016; he replied that these were problems arising in his employment. It was put to the complainant that the supervisor’s evidence would be that she asked him “why weren’t you at the trolley” and you replied “you’re not my boss”. It was also put to the complainant that the supervisor was shaken and had to leave and that he had shouted after her. He replied that she asked where he had been and that she was very aggressive. She had not mentioned the trolley but where he had been. It was reasonable for her to ask but not to shout at him. He denied saying that she was not his boss. It was put to the complainant that it was reasonable for the supervisor to say that everyone else was working; he said that he had explained the circumstances of why he left to help a colleague and felt that she was physically threatening him. It was put to the complainant that the supervisor would deny swearing at him; he replied that this was not the first time she was verbally abusive.
2.6 The complainant accepted that the respondent workplace was diverse and said that the supervisor may have a problem against Polish people. She had problems with two named Polish colleagues. It was put to the complainant that the home manager would say that he had not raised any allegation of bad treatment; he replied that he had verbally made complaints to her. It was put to the complainant that he had been aggressive at two meetings; he denied this and said that he should have been given warnings if he behaved aggressively. It was put to the complainant that there had been a final warning on his file; he replied that he was told that they should only complain to the HR Business Partner, who had only been in place for some weeks and they were told not to complain to managers. This manager had contacted him in early October and said she would look into the matter. It was put to the complainant that the investigation report had found that the complaint was not well founded; he said that the people interviewed were not direct witnesses of the incident. It was put to the complainant that his complaint related to what the supervisor said to others; he replied that there had been some issues with other staff and they were afraid to say what the true situation was. The complainant said that he did not think he could return to work because of the stress. It was put to the complainant that there was no evidence of discrimination; he replied that the supervisor’s actions were done in a way that no one heard it but a named colleague had been present on the 18th September 2014. The contents of the letter of the 5th February 2016 were put to the complainant, in particular the part relating to the derogatory language; he replied that he had given the names of two witnesses. People had known but no one did anything about it. He had wanted to keep his job and kept his head down.
2.7 A care assistant colleague gave evidence. He worked at the nursing home between 2011 and 2013 and was a nurse in his country of origin. He worked with the supervisor and he heard her use bad language on a number of occasions, including making reference to Poland. On one occasion, he was in the sitting room and the supervisor entered the room and touched the top of the window sill. She was talking to herself and said “f***ing useless Polish”. This occurred in or around 2012 and the complainant was present at the time. On another occasion, he saw the supervisor and the complainant have an argument in a corridor. She had spoken loudly and said that the complainant was not professional. He remained calm but became teary. He suggested to the complainant to go to management and it was impossible to work in this tension. The care assistant colleague said that there had been many occasions where the supervisor had made negative references about Poland in the presence of the complainant. In cross-examination, the care assistant colleague accepted that he was not an employee of the respondent in 2014 and that he had left in 2013. He was asked whether he suggested to the complainant the means of reporting the issue to management; he replied that he suggested reporting it to management, in particular the incident where the complainant had become teary.
2.8 The colleague gave evidence. He worked as a healthcare assistant with the respondent for four years and helped residents with whatever they needed. He dealt with the supervisor a lot and had no problem with her. She had bought presents for his children. The colleague said that he was here because he thought that the incidents leading to this complaint were his fault. While he had no problem with the supervisor, he had heard her speak badly to the complainant. She often used bad language. On the 18th September 2014, they were doing a handover in the morning. Breakfast was being delivered to rooms on the first floor and they would help residents with their food. 90% of residents stayed in their rooms for breakfast with one or two going to the sitting room. He came across a locked door and some rooms could be locked from the inside. He panicked and shouted into the room. This resident had fallen a number of times. He was afraid that the resident could have fallen. He shouted for the complainant to come as he was the only other staff member on duty. The complainant ran down and helped open the door. The complainant then walked back to work. The colleague then heard screaming and shouting and walked up the corridor. He explained to the supervisor what had happened and she stated that she wished that the complainant would “f*** off back to Poland”. The colleague had been on his way back to the dining room to pick up breakfasts. He was never contacted to be part of the investigation, including in April 2016. In cross-examination, the colleague confirmed that he had been dismissed by the respondent in January 2016 for gross misconduct. It was put to the colleague that the supervisor would deny saying “f*** off back to Poland” to the complainant.
2.9 In closing comments, the complainant outlined that the investigation report had listed the colleague as being unavailable from the start. The evidence was that the complainant had complained to such an extent that the supervisor “dreaded” hearing from him. Two witnesses had given evidence about one or more occasions where the supervisor had referred to the complainant’s nationality. The complainant had not understood the grievance procedure and the performance issues arose because of a language barrier. The complainant walked out of work because the racial slur was the final straw. The supervisor made racial comments on more than one occasion. She said these comments in anger. The confrontation of the 18th September 2014 had gotten out of hand and this was not the first time the race issue had been raised by the supervisor.
2.10 In supplemental submissions of the 20th January 2017, the complainant replied to additional submissions and documentation provided by the respondent on the 27th October 2016. The complainant states that it is regrettable that there was no written outcome of the February 2013 grievance meeting. This demonstrated that the grievance procedure had not been complied with and could not but dilute the confidence he could have in such procedures. In respect of the sample cleaning schedules, the complainant states that the actual schedules for the period prior to the 18th September 2014 were not provided. While the sample schedules are quite balanced and fair, they do not reflect the complainant’s workload in the six years where he was isolated. He refers to the schedules for the 24th September 2012, the 1st October 2012 and the 25th March 2013 where his workload exceeded that of others. The complainant submits that the colleague was a direct witness to the events of the 18th September 2014 and his evidence was crucial to the investigation. The complainant is critical of the respondent’s decision to only interview then current employees and not to interview former employees, such as the colleague. He comments that current employees would contemplate negative ramifications of giving disparaging evidence against the respondent. It was submitted that the colleague should have been interviewed as part of a full investigation of the incident. The complainant outlines that he and the supervisor had a difficult relationship. The evidence was that the supervisor used derogatory language about the complainant, and also treated him unfairly in respect of the working conditions and duties. He describes the incident of the 18th September 2014 as an outburst where the supervisor had shouted “f*** off back to Poland”. This was the final straw for the complainant. He exhibits employment references from 2008 onwards.
3. Summary of the respondent’s evidence and submissions:
3.1 The supervisor gave evidence. She was a housekeeper with the respondent and had been in the role for 10 years. She managed 7 or 8 cleaning staff and was in charge of cleaning and laundry. The respondent employed staff of many nationalities and she was only interested in getting the work done. She would fill up the rosters and assign work to staff. Work was allocated per floor and some floors were larger. They sought to mix it up and to keep a rota for deep cleans. If someone was allocated a smaller floor, they might also do a deep clean. The complainant had never raised an issue about his workload. She accepted that he had raised this on the 15th September 2014 after she had asked him to help two staff member. The complainant was not happy and objected to working in a group. In respect of the 18th September 2014, the supervisor had seen the complainant in the staff room and went to check the first floor as there were issues with the top of cupboards. The complainant had done a deep clean the day before and she always signed off on deep cleans. There should always be two pillows on a bed, but there was only one pillow on this bed. There was also an issue with the bin. When she returned and saw the trolley, she asked the complainant where he had been. He went into a rant and asked who did she think she was. The supervisor accepted that she raised her voice. She said that the complainant was intimidating and she wanted to get away. She was not able to put the code numbers into an access pad to enter a room and the complainant followed her. The colleague then approached them and said that he had heard two people shouting. The supervisor reported this incident to the home manager, who looked at the CCTV and saw the complainant following the supervisor down the corridor. During the incident, the complainant had asked whether she had any issue with him and she replied that she was concerned about the work. He said that she was on his case. The supervisor denied saying “f*** off back to Poland” to the complainant on the 18th September 2014. The complainant had never told her about helping the colleague gain entry to the room. She did not know about this incident. The complainant consistently resisted being managed. He was negative and intimidatory and had a short fuse. She dreaded asking him to do tasks. In respect of the care assistant colleague’s evidence, she had no recollection of these incidents and denied mumbling anything about country of origin.
3.2 In cross-examination, the supervisor said that she had worked with the complainant since he started and he was difficult to manage. While he would do his work, it was not up to standard. He was good with residents. She and the complainant had run-ins ever so often. She inspected his work in the same way as everyone else and the complainant took offence at her supervising him at all. He would acknowledge that he understood her point. He would not do jobs that he did not understand and would not ask for clarity. The supervisor was asked if she was frustrated by the complainant not doing tasks; she replied that sometimes the complainant did not want to do what he was asked to do and sometimes he did not understand. There was insubordination where he would sit on the window sill, having a rest and later told her that this was none of her business. She raised his aggression and his not doing tasks. The supervisor would not say that this was frustrating and thought that everything was okay. She reported that she could not work with his attitude and was told not to confront him. She was told to try to get along with him. She was not to blame.
3.3 It was put to the supervisor that the respondent’s response had been inadequate and this added to the tension; she did not agree that this was the case. She was asked whether she was frustrated by the complainant’s actions; she said that they were frustrating to an extent. In respect of the account given by the colleague, the supervisor said that this was the first time she had heard this full account. She had been at the trolley for a minute or two. She went away and came back to see that the trolley was still unattended. She started the conversation with the complainant by saying “where were you?” and he then challenged her authority. This was not unusual behaviour and did not explain to her what had happened. It was put to the supervisor that it was her shouting at the complainant, who had done something right, that caused him to raise his voice; she replied that she felt intimidated. It was put to the supervisor that she had said that she could not remember what she said but also that she denied making reference to race; she categorically denied raising the issue of race. It was put to her that the care assistant colleague had given evidence of micro-management; she replied that she had raised the issues that needed to be addressed. The supervisor said that she was not denying that there had been an incident with the complainant, but she did not swear or refer to his home country. In redirection, the supervisor said that she treated the complainant the same as others. She always raised the issues to be addressed.
3.4 The home manager gave evidence. She said that she had been in the role for three years and the supervisor reported to her. The complainant had raised the October 2013 holiday issue and he was quite angry. She stated that no appraisal of the complainant had been done in 2014. The supervisor was visibly shaking after the incident of the 18th September 2014 and raised this incident with her. She advised the supervisor to contact the HR Business Partner. In cross-examination, it was put to the home manager that the complainant left work after the incident; she agreed and said that it was obvious that the supervisor and the complainant did not have a great relationship. In respect of the complaints made by the supervisor, the home manager said that the supervisor had asked her to speak with the complainant regarding the holiday issue as the supervisor was concerned about doing so.
3.5 The housekeeper gave evidence. She started with the respondent in 2010 and was a cleaner, but was now a housekeeper as the supervisor was on sick leave. The housekeeper said that she had never seen the supervisor treat the complainant unprofessionally. The supervisor raised performance issues and would not approach complainant aggressively. The complainant could become annoyed and did not like being told that something was wrong. When issues were raised about him, the complainant would raise issues with other people’s work. The housekeeper said that she never heard the supervisor curse or use racial slurs. In cross-examination, the housekeeper said that the supervisor checked the work of all staff, Irish or not. She did not agree that the complainant was singled out to find faults. It was put to the housekeeper that the complainant’s work was always checked first, leading him to check the work of others. The housekeeper acknowledged that she did not have the same language barrier as the complainant.
3.6 In closing comments, the respondent outlined that the burden was on the complainant to meet a prima facie case of discrimination and harassment. It was submitted that the complainant had not been able to link the 23 issues raised in the submission of the 5th February 2016 with race. The supervisor had not said the racial slur. The complainant had received a contract of employment and the employee handbook. He had not invoked the bullying procedure and did not attend the first two investigation meetings. The investigation concluded that the claim was not well founded. The complainant had not referred to a comparator and the alleged racial slur was used to ground the case. The supervisor had been doing her managerial role and the complainant resisted being managed. This was nothing to do with race.
3.7 In additional submissions of the 27th October 2016, the respondent addressed issues that arose at the hearing. It outlined that no record was made of the outcome of the grievance meeting of the 7th February 2013 and there was also no 2014 written appraisal of the complainant. The respondent provides the relevant job descriptions, rosters and cleaning schedules, although the schedules are sample schedules from 2016 and not the ones applicable to the period prior to the 18th September 2014. It submitted that the sample schedules depict that cleaning tasks are allocated fairly and equitably and that this system has been in operation since 2010. The respondent exhibits rosters for the months of September 2012, October 2012 and March 2013. The submissions address why the colleague was not involved in the investigation of the incident of the 18th September 2014. They state that the external investigator was reluctant to call the colleague as a witness as, at the time of the investigation, he had just been dismissed on grounds of gross misconduct. The investigator is reported to have had a concern about the impartiality of this witness and also refers to having the evidence of three other witnesses. The respondent submits that even if the colleague’s evidence corroborated that of the complainant, this would not be sufficiently persuasive in the light of the evidence of three other witnesses. In September and October 2014, the respondent did not have an updated address for the complainant and exhibits proof of postage of its letter of the 8th October 2014.
4. Review of CCTV footage
4.1 On the 28th April 2017, I reviewed two excerpts of CCTV footage of the events of the 18th September 2014. I did so in the offices of the respondent solicitors and in the presence of the counsel for the complainant and the solicitor for the respondent, as well as its HR manager. Each clip was about five minutes in duration.
4.2 The first clip commences at 8.13am and features the dining area and a hallway. Out of shot is the cleaning trolley. The supervisor is seen entering the vicinity of the hallway and looking and walking round. She walks slowly and calmly. The complainant is then seen to arrive and does so calmly and at a slow pace. The complainant and the supervisor commence a prolonged conversation that becomes more and more heated. The footage did not include audio. The complainant begins to gesticulate in an aggressive fashion and his demeanour becomes tense and aggressive. The supervisor reciprocates in her body language and is seen to lurch forward. There continues a heated and intense exchange between them, so much so that a resident is seen to walk in between them and they are impervious to her presence.
4.3 The exchange ends as the supervisor turns down a hall and walks away. It appears that both parties made comments as she walked away, with the supervisor turning back and the complainant speaking and gesticulating towards her. Sometime later, the complainant walks down the same hallway and goes out of shot. The supervisor later returns to the area from a different direction and enters an office area. The complainant returns and takes the trolley away. He leaves the area and later returns and appears to be looking to speak with the supervisor.
4.4 The second clip commences at 8.15.22 and takes place in a hall area off the dining area. The colleague is seen pushing a trolley holding breakfast for residents who remain in their room. The colleague is calm. The complainant approaches him and while only the complainant’s back and the top of his head are visible, it is clear that he becomes angry and gesticulates extensively. This takes place after the exchange with the supervisor and it appears that the complainant is recounting what has happened. The colleague enters a room and the complainant leaves. The supervisor is seen to walk through the hallway and through a red door at the end of the area.
4.5 The parties were afforded the opportunity to make submissions on the contents of the CCTV footage. In the complainant’s submissions, he states that in the footage depicting the interaction between him and the supervisor, she is so agitated that she cannot correctly input an access code and cannot enter a room. He submits that the respondent has not provided CCTV footage of what happened in the reception area, where the supervisor said that the complainant had followed her to. He submits that this footage would have been kept if it depicted the complainant being aggressive. The complainant submits that it is confusing that the respondent did not save footage relating to why he left the trolley and the second interaction with the supervisor. This was an unfair attempt to bolster the respondent’s case. It was the supervisor who had been the aggressor.
4.6 In reply, the respondent made the following submissions in respect of the CCTV. It confirmed that the CCTV footage presented on the 28th April 2017 was the full extent of the CCTV preserved. It states that the home manager had preserved only the footage that captured the interaction between the complainant and the supervisor. The other footage was deleted. The home manager confirmed that no other CCTV footage covered the remaining interaction between the parties, i.e. after the supervisor walked to the reception area. She had been informed that the complainant had alleged being assaulted by the supervisor and the home manager preserved the footage relevant to investigate such an allegation. The respondent submits that the CCTV footage depicts aggression on the part of the complainant and that the supervisor was intimidated.
5. Findings and conclusions:
5.1 The complainant asserts that he was subjected to discriminatory treatment on the race ground and that he was also subjected to harassment and victimisation. The respondent denies the claim. At the centre of the case is a sharp conflict whether the supervisor used derogatory language to the complainant associated with his nationality. Specifically, there was a conflict whether the supervisor told the complainant to “f*** off back to Poland”. While the complainant’s evidence and that of his witnesses was that there was on going harassment on the race ground, the principal incident was that of the 18th September 2014. This was investigated on behalf of the respondent and the investigation report did not find that the incident occurred as described by the complainant. He then referred this complaint pursuant to the Employment Equality Act.
5.2 Section 14A of the Employment Equality Acts addresses harassment and provides as follows:
“(1) For the purposes of this Act, where—
(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—
(i) employed at that place or by the same employer,
(b) without prejudice to the generality of paragraph (a)—
(i) such harassment has occurred, and (ii) either—
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—
(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.
(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim's conditions of employment” there were substituted “contrary to section 11”, or, as the case may be, section 12.
(7)(a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
(b) 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.
(c) 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.”
5.3 Section 15 of the Employment Equality Acts addresses the vicarious liability of employers for the conduct of employees. It provides as follows:
“(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to provide that the employer took such steps as were reasonably practicable to prevent the employee-
(a) from doing the act, or
(b) from doing in the course of his or her employment acts of that description.”
5.4 Harassment based on any of the discriminatory grounds is covered by the Code of Practice on Sexual and Harassment in the Workplace (S.I. 208/2012). The Code outlines “Prevention is the best way to minimise sexual harassment and harassment in the workplace. An effective policy, and a strong commitment to implementing it, is required. The purpose of an effective policy is not simply to prevent unlawful behaviour but to encourage best practice and a safe and harmonious workplace where such behaviour is unlikely to occur. This policy is likely to be more effective when it is linked to a broader policy of promoting equality of opportunity. Employers should adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment.” The Code further provides that the policy addressing harassment should emphasise the role of management: “The policy should state that management and others in positions of authority have a particular responsibility to ensure that sexual harassment and harassment does not occur and that complaints are addressed speedily. The policy should state that in particular management will:
- provide good example by treating all in the workplace with courtesy and respect
- promote awareness of the organisation’s policy and complaints procedures
- be vigilant for signs of harassment and take action before a problem escalate
- respond sensitively to an employee who makes a complaint of harassment
- explain the procedures to be followed if a complaint of sexual harassment or harassment is made
- ensure that an alleged perpetrator is treated fairly
- ensure that an employee making a complaint is not victimised for doing so
- monitor and follow up the situation after a complaint is made so that sexual harassment or harassment does not recur.”
The Code provides that the policy should include a complaints procedure, as well as the name of a competent person to address concerns raised by an employee.
5.5 In respect of the burden of proof, the Labour Court in A Worker v A Hotel  E.L.R. 72 followed Mitchell v South Health Board  E.L.R. 201 and held that it fell on the claimant to prove primary facts in order to raise an inference of discrimination. The Court assessed the defence available to an employer to claims of harassment in the following terms “This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees.”
5.6 In assessing the evidence and submissions of the parties, I make the following findings and comments. The central conflict in evidence relates to the events of the 18th September 2014. Where there is such a sharp conflict of evidence, it is necessary to first consider the internal coherence of each person’s account of an event. In this case, they are both internally coherent but are, of course, entirely in conflict. It is, therefore, necessary to look at other sources of evidence that might corroborate one version over the other. Having considered the evidence relating to the 18th September 2014, I am satisfied that the colleague asked for the complainant’s assistance in addressing the serious situation of a resident locked in his room. The complainant left his trolley to help this colleague. When he returned, there was an angry exchange between the complainant and the supervisor. This is evidenced by the CCTV footage, which depicts sharp, heated exchanges between both the complainant and the supervisor. While there was no audio of what was said, the interaction was so acrimonious that a resident is able to walk very close to both parties without either the complainant or the supervisor acknowledging her presence or desisting from the argument. Even where an exchange is so heated, I would expect a change in body language where a party escalated the dispute by using a slur associated with race or nationality. There is no such reaction in the footage. The CCTV does not cover part of the interaction between the complainant and the supervisor and so it is necessary to consider other evidence.
5.7 I note the evidence of the care assistant colleague and the tenor of complainant’s evidence that the harassment was a persistent feature of work. This included an earlier incident where the complainant became teary following an interaction with the supervisor. What is striking, however, is that there is no reference to this pattern of harassment on the race ground in any earlier documentation, for example a grievance. Even if the harassment had been so persistent as to be ingrained in the employment relationship, I would expect to see a reference, even a passing reference, to its existence. There is no such reference. Following this, I find that the evidence of the care assistant colleague is not of sufficient probative value to conclude that there was a pattern of harassment or derogatory language involving the supervisor or her references to nationality.
5.8 The colleague’s evidence is crucial to the complainant’s case. He states he observed the incident and heard the derogatory term used. He was not interviewed as part of the 2016 investigation into the event. The investigation is also crucial to the respondent’s defence of the harassment claim, pursuant to either section 14A or section 15. The colleague gave evidence of directly hearing the supervisor using the derogatory term. The supervisor said that the hearing was the first time she had heard this full account of the 18th September 2014. It is striking that the investigation report lists the colleague as unavailable to be interviewed. It does not set out what evidence the colleague may have or explain why he was not considered for interview. The reason he was not interviewed was only given after the hearing. The investigation took the form of a number of interviews. The complainant was interviewed on the 26th April 2016 and the supervisor on the 19th May 2016. Other staff were also interviewed. In the complainant’s interview, he was asked “did someone else see this happen?” He identified another colleague, but not the colleague who gave evidence to the hearing. The interview notes for the colleague identified by the complainant record that her interview took place on the 19th May 2016 and she stated “[the supervisor] shout in an angry voice at [the complainant] in staff room and did not sound bad, just sounded like a boss. I can’t say who is right or wrong? Also she asked him why he was not at work one morning when he was sitting eating his breakfast but it was after 8am so she was right but she was also late.” The respondent submissions identify this colleague as being of Polish nationality. Incidentally, this was one of the Polish colleagues the complainant identified as also having problems with the supervisor. In assessing the probative value of the colleague’s evidence, I note that the complainant did not mention this colleague as having relevant evidence at the time of the investigation. One would expect to see the colleague’s evidence to be front and centre of the complainant’s case at the start of the investigation. Even if this colleague had separate employment law issues with the respondent in 2016, it would seem the obvious step for the complainant to, at least, mention the colleague as having relevant evidence to give. Instead, the complainant is asked to identify witnesses and he names someone else. This other person’s evidence does not corroborate the complainant’s evidence, as she does not refer to the supervisor making a derogatory reference involving the complainant’s country of origin. On balance and for the above reasons, I prefer the supervisor’s account of the events of the 18th September 2014.
5.9 I note that the respondent had a detailed bullying and harassment policy in place. I am satisfied, on the evidence, that this was circulated to the complainant. He acknowledged signing receipt for the document. While there was no formal outcome to the 2013 grievance (and there should have been), this did not concern race or nationality. I accept the complainant’s evidence that he promptly brought his 2014 complaint to the respondent’s attention. The respondent had an out-of-date address for the complainant, delaying their formal response. I note, however, that the respondent investigated the complaint thoroughly. While the formal investigation was further delayed because of sick leave, it adopted a considered approach to examining the facts and reaching conclusions. I have stated above that the investigation should have set out its approach to the witnesses it did not call, for example to assess their vantage point of the incident and give reasons for not calling them. On balance, however, this criticism does not undermine the overall integrity of the investigation. While employees may fear reprisals for participating in such investigations, I note, in this case, the statement made by the Polish colleague. As noted above, she was critical of the supervisor for being late and for her angry voice.
5.10 The complainant asserts that he was discriminated against in relation to his working conditions and the level of scrutiny exercised by the supervisor. Having considered the evidence, I find that the complainant has not established a prima facie case of discrimination on these issues. Given the findings I have made in relation to the harassment issues, they cannot lend support to the assertion that the supervisor’s treatment of the complainant was related to his race or nationality. I note the absence of the cleaning schedules for 2014. The complainant states that the supervisor gave him a more onerous workload. He states that making up cardboard boxes, picking up cigarette butts and washing the outside panes of windows were beyond his duties. He raises three specific instances: the weeks of the 24th September 2012, the 1st October 2012 and the 25th March 2013. Taking the complainant’s case at its height, even if the complainant was allocated excessive work on these occasions and at other times was asked to do work outside his normal duties, these are not facts of such significance to raise a prima facie case of discrimination. For the sake of completeness, the complaint form refers to victimisation, but no submission or evidence was adduced to make a finding that the complainant was victimised for making the within complaint to the Workplace Relations Commission.
6.1 In accordance with section 79 of the Employment Equality Acts, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that he was subjected to discriminatory treatment, harassment or victimisation on the race ground.
Adjudication Officer / Equality Officer
10 January 2018 .