ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017335
An installation provider
Mr. Dan Walshe B.L., instructed by Dobbyn & McCoy Solicitors
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 20/11/2019
Workplace Relations Commission Adjudication Officer: James Kelly
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The name of the Respondent was amended to reflect its correct title. I have decided to anonymise the parties in this decision on request from the Complainant on account of the sensitive information in relation to his mental health.
Summary of Complainant’s Case:
The following is a brief summary of the Complainant’s case.
The Complainant commenced his employment with the Respondent as a Scheduler on 18 September 2017. The Complainant’s sexual orientation is homosexual.
The Complainant said that during his employment he was regularly and repeatedly subjected to homophobic abuse, was harassed, victimised and discriminated against on the basis of his sexuality.
He said that Mr. A, a co-worker and team leader, repeatedly laughed and sniggered into the Complainant’s face in the workplace and made disparaging remarks about the Complainant and his partners including comments about the Complainant’s social media account which included him and his partner.
The Complainant’s evidence was that he had to put up with repeated and continuous intimidating behaviour at the hands of Mr. A and others where there was a barrage of comments in relation to the Complainant and his sexuality. The Complainant gave many examples of same, including where Mr. A told him to sit beside him “so [I] can keep an eye on him” and then told another workmate “[the Complainant] is a faggot, I better not sit beside him, or I’ll catch the gayness from him”. The Complainant said that the comments were aimed at him on a daily fashion and there was constant sniggering and juvenile stereotypical references made in his company, all of which made him feel under threat and humiliated. The Complainant presented a co-worker Ms. X from his time at the Respondent who said that she felt sorry for the Complainant for the repeated daily attacks and would have heard much of comments and sniggering in the workplace.
The Complainant said that his team leader intervened and defended him on many occasions. The Complainant made a complaint against Mr. A and his team leader escalated the complaint up to Ms. B, Operations Manager, who’s office was adjacent to the open plan office where the scheduling staff would work. The Complainant said that he was called in for a meeting with Ms. B and gave an account of what was happening. Ms. B then called in Mr. A for his version of events and Ms. X, who attended the hearing and gave evidence that she informed Ms. B what she had heard and observed in the workplace. The Complainant said that the following day he was called back in again where Ms. B told him that he had lied to her and Ms. X had lied, and they were wasting her time.
The Complainant said that Mr. A was moved to a desk right behind him where he could look directly at him daily. He said that this was so uncomfortable. He also said that Mr. A was heard by a work colleague that reported back to him that Mr. A “would get [the Complainant] sacked, as he is a f…..g p…k”.
The Complainant gave other accounts of incidents he was subjected to and others reported to him by friends and work colleagues. He said that Mr. A took issue with the Complainant’s work even though he was not reporting to him and had nothing to do with him. The Complainant said that his hours were cut to two days a week. He said that was because of a reduction in work load and his quality of work, which the Complainant does not accept. The Complainant said that he was in constant fear and worry, and that the work environment for him was the most hostile he ever worked in. He said that his mental health was suffering incredibly, to such an extent, that he was treated with depression and ended up in the Accident and Emergency department of the Hospital with panic attacks.
The Complainant said that it was well known in the Respondent that he was gay, and he suffered direct discrimination as a result of his sexual orientation.
The Complainant referred to the case of Piazza v the Clarion Hotel [DEC-E2004-033] where the Equality Officer said that a serious issue such as an allegation of sexual harassment should not be dealt with by way of grievance procedure. The Respondent said that it had no policy in place to prevent harassment in the workplace, and that the investigation carried out was totally unsatisfactory. The Claimant was awarded compensation in that case.
The Complainant said that he was discriminated, victimised and harassed. He said that there was repeated inappropriate behaviour and cited the subjective nature and characteristics of harassment as was found in the Labour Court case in Nail Zone Ltd. v A Worker [EDA 1023] in support of his case here.
The Complainant by its own submission referred to 27 March 2018 as the most recent date of discrimination. However, the Complainant remained in employment up to 25 April 2018. He said that up to his time before he left the Respondent he was ignored and isolated by Ms. B and nothing further was done to investigate the allegations of discrimination, victimisation and harassment that he had raised, or any obvious plans put in place tackle the behaviour of Mr. A and a few others. On the contrary, Mr. A was placed in a stronger position of control over the Complainant. The Complainant claims that this all amounts to a continuous state of affairs that did not let up until he had to leave his employment.
The Complainant claims that should there be a need to apply for an extension of the time limits as per Section 41(8) of the Workplace Relations Act 2015 that it wished to rely on Cementation Skanska v Carroll DWT 127/2013 that his mental health was badly effected due to the hostile environment that he was subjected and he had to be hospitalised with panic attacks and depression. He also said that he had requested his HR file from the Respondent and that was not released to him and thus delayed him from lodging his complaint with the WRC.
Summary of Respondent’s Case:
The Respondent was in attendance at the hearing and stated that the Office that the Complainant had worked in had closed down and all the staff had moved on. It held no records on the allegations or statements from the relevant people cited by the Complainant.
The Respondent did acknowledge the Complainant and the various people mentioned in this case as having worked in the Respondent’s at the time claimed by the Complainant. However, it was not in a position to rebut the allegations raised against it by the Complainant.
Findings and Conclusions:
Preliminary Matter – time frame.
The Relevant Law
Section 77 of the Act, as amended, provides inter alia the following:
“(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 General of the Workplace Relations Commission 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.
(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.
(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5) (a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.
(6A) For the purposes of this section-
discrimination or victimisation occurs-
if the act constituting it extends over a period, at the end of the period.
if it arises by virtue of a term in a contract, throughout the duration of the contract, and
if it arises by virtue of a provision which operates over a period, throughout the period,
a deliberate omission by a person to do something occurs when the person decides not to do it, and
a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either-
does an act inconsistent with doing it, or
the period expires during which the respondent might reasonably have been expected to do it.”
The Complainant had made submissions that should I determine that the case is out of time, that I would consider extending the time limit as per Section 41(8) of the Workplace Relations Act 2015 and he wished to rely on the case Cementation Skanska v Carroll DWT 127/2013 in relation to an extension of time. I am satisfied that the complaint was received in the WRC on 7 October 2018 and he worked with the Respondent until the 25 April 2018. I note from the Complainant’s direct evidence that up to that point he was continually ignored by Ms. B and that his hours were not re-established prior to him leaving. I am satisfied that these are two element that fall within the 6-month time period.
Having considered the evidence, the alleged events that the Complainant raised are the basis of a list of events that stretch into the past beyond the 6-month time frame. I have carefully studied the cases in particular the decisions in Dempsey v NUIG, EE/2009/275 and in Cork VEC v Hurley  EDA1124; I note in the former decision where it specifically deals with this question and I note that the Equality Tribunal found that the Complainant, in that case, had established a satisfactory connection between all the incidents complained of and that as a result they could be considered ‘separate manifestations of the same disposition to discriminate and constitute an ongoing act or continuum of discrimination within the meaning of Section 77’. I note that the Complainant maintains that this is the case here and I am satisfied accordingly, that the continuum has been established to allow me jurisdiction to examine the case.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… 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”.
Accordingly, the issues for decision in this case for me are:
1. Whether or not the Complainant was subjected to harassment pursuant to S.14A of the Acts
2. Whether or not the Complainant was subjected to discriminatory treatment on the grounds of his sexual orientation in relation to his conditions of employment.
3. Whether or not the Complainant was subjected to victimisation contrary to Section 74(2) of the Acts.
In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
The issue here that I must consider is whether or not the Complainant was subjected to harassment pursuant to Section 14A of the Acts. In this regard, I am required to consider two aspects of the evidence, namely:
(a) Whether the Complainant has established on the balance of probability that he was harassed in terms of the incidents described in his evidence. This includes an evaluation as to whether the events the Complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment.
(b) If the answer to the question in (a) above is in the affirmative, did the Respondent take reasonable action to prevent the harassment occurring in the workplace.
Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground. It is well accepted that the Employment Equality Acts do not apply to generalised bullying or harassment, when there is no link to the discriminatory grounds. This was made clear in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (S.I. No. 208 of 2012) which came into force on 31 May 2012.
Therefore, it is clear Section 14A(7)(i) of the Act defines “harassment” as any form of unwanted conduct related to any of the discriminatory grounds and being conduct 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.
The Complainant maintains that the conduct he suffered continually at the hands of Mr. A, and others who allegedly explicitly referenced and ridiculed him about his sexual orientation. The Complainant’s evidence was corroborated by Ms. X, who said she tried to support the Complainant throughout this process and even gave evidence in an interview with the Operation Manager of what she had seen and heard. I am satisfied that all the evidence presented amounted to harassment as defined by the Acts, it is clear that this was unwanted conduct relating to the Complainant’s sexual orientation and had the purpose and effect of violating his dignity. It has without doubt created an intense, hostile, humiliating and offensive environment for him in the workplace. It had a great burden on his physical and mental health where he was hospitalised.
The Complainant contends that the manner in which Ms. B’s investigation of his complaints of harassment was dealt with by the Respondent was disastrous. Ms. B claimed that both the Complainant and Ms. X “were liars” and told them “not to be wasting her time”. The net effect following this was Mr. A was given more power over the Complainant, who’s hours in turn were reduced and his health deteriorated due to the harassment he was subjected to.
The Complainant adduced evidence in relation to particular incidents involving his interaction with Mr. A which he contends amounted to harassment. I have found the Complainant’s evidence to be very credible. I note that these events have been corroborated for a large part by his co-worker Ms. X. Therefore, I find on the balance of probabilities that the Complainant has established a prima facie case that he was harassed in the workplace on the grounds of his sexual orientation contrary to Section 14A of the Acts.
Section 14A(2) of the Acts provides that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent harassment from occurring in the first place and in circumstances where such harassment has occurred that it took action to reverse its effect. As noted above the Respondent said it is not in a position to demonstrate that it took those steps to prevent harassment. Accordingly, the Respondent cannot avail of the defence provided by Section 14A(2) of the Acts and it is therefore liable for the harassment suffered by the Complainant.
The Complainant cites all the matters raised above as discriminatory treatment. He also said in his evidence said that there was a general IT problem with the scheduling system, and that all the schedulers had to record notes in the system to explain errors/mistakes when the system was acting up from time to time. The Complainant said this work-around affected everyone from time to time and he was no different than anyone else. The Complainant said that after he had raised a complaint of bullying against Mr. A, any time that he raised a query on the IT system or placed a note on the system, he was taken to task. He believes that he was unfairly treated because of his sexual orientation and that he had stood up to Mr. A.
The Complainant claims that his hours were reduced down to 2 days per week and that no one else had their hours reduced to that extent at that time. He said that he questioned why his hours were reduced and he felt this was done after he had raised the issue with Mr. A and was a direct consequence of his sexual orientation and/or because he challenged Mr. A, who was a heterosexual married man with children.
The Respondent did not dispute the evidence presented.
I have been presented with uncontested facts of different treatment by the Respondent on the Complainant as compared to the other staff in particular Mr. A, who it is claimed is a heterosexual man married with children. It would appear that he was given significant control and power over the Complainant during their time working there. The Complainant claims that this occurred following certain comments that were passed about the Complainant and his partner on their social media accounts and around the time an incident occurred one evening when the Complainant’s partner came to collect him from work. Both incidents were related to the Complainant’s relationship with his partner and it could be linked to his sexual orientation.
I am satisfied that the incidents above reported by the Complainant led to him being ultimately reprimanded for an IT issue that he claims happened to all staff; however, he was singled out, and he alone was selected for a reduction in his hours. He claims that both of these could be associated with his sexual orientation. I note his specific evidence here, which had remained consistent throughout and accordingly I find, without evidence on the contrary, that the Complainant has established a prima facie case of discrimination, particularly at the hands of Mr. A and Ms. B.
The next element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to the Acts. Section 74 (2) of the Act, as amended, provides as follows:
The relevant law,
“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant
(f) an employee having opposed by lawful means an act that is unlawful under this Act….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
In the case of Tom Barrett -v- Department of Defence EDA 1017 the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) as noted above – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant. In the instant case, I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.
The Complainant has claimed that he was subjected to victimisation by the Respondent in relation to an incident that occurred prior to him leaving his employment with the Respondent on 25 April 2018. I note that the events predate the complaint referral to the WRC on 7 October 2018, where without doubt the Complainant officially lodged a complaint about discrimination. Therefore, the protected acts relied upon occurred well in advance to the case been referred to the WRC. I am satisfied that the matters do not fall within Section 74(2) and satisfy the test set out in Barrett -v- Department of Defence, the instances of victimisation well predate the protected act. Therefore, on the balance of probability, I do not find that it can be tantamount to victimisation as it fails to meet the test set out in Barrett -v- Department of Defence.
Accordingly, I find that the Complainant has failed to establish facts from which it may be inferred that he was subjected to victimisation contrary to Section 74(2) of the Acts.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:
(i) the Respondent has discriminated the Complainant on grounds of his sexual orientation in terms of Section 6(2) and contrary to Section 8 of those Acts.
(ii) the Complainant has established a prima facie case of Harassment contrary to Section 14A of the Employment Equality Acts.
(iii) the Complainant has failed to establish a prima facie case of Victimisation in terms of Section 74(2) of the Acts.
In accordance with the provisions of Section 82 of the Acts, I consider that an award of compensation is the appropriate form of redress in the circumstances of the present case. The award is arrived at having regard to the seriousness of the discrimination, the effect on the Complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.
Section 82(4) limits the monetary jurisdiction of an Adjudication Officer, to an amount equal to 104 times the Complainant’s gross weekly pay or €40,000, where the Complainant was in receipt of remuneration at the date of the reference of the case. I therefore order, in accordance with my powers under Section 82 of the Employment Equality Acts that the Respondent pay to the Complainant the sum of €27,000 (twenty-seven thousand euro) being the equivalent of approx. 18 months gross pay for the sustained distress suffered by him and the effects of the discrimination and harassment on him and his health.
Dated: 7th January 2020
Workplace Relations Commission Adjudication Officer: James Kelly
Employment Equality Acts - sexual orientation - discriminated - harassment - victimisation