ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024672
Shonagh Byrne SIPTU
Des Ryan BL instructed by Philip Lee Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 09/02/2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Specifically, I conducted a remote hearing on 12 November 2021 in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. At this hearing the Respondent’s representative indicated that they would not be willing to proceed with the matter being heard remotely and requested that the matter be adjourned until such time as a face to face hearing could be re-arranged. The Complainant ultimately agreed to this request and the matter was heard at the Workplace Relations Commission’s Offices in Lansdowne House, Dublin 4 on 9 and 10 February 2022.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General  IESC 24 on 6 April 2021 at the remote hearing and the Respondent requested that the names of the parties be anonymised given the sensitivity of the allegations raised. I requested that both parties made written submissions on the issue before I would make a decision on the matter. Both parties subsequently provided written submissions wherein the Complainant requested that the names of the parties be published while the Respondent asked the decision be anonymised. Having reviewed these submissions, I indicated at the start of the face to face hearing on 9 February 2022 that I would be anonymising the parties given the very sensitive nature of the allegations made and the potential repercussions of the revelation of the names of the parties for the future job prospects of the Respondent’s employees, in particular those of the CEO, who operate in a very niche and sensitive area of the charity sector.
The Complainant as well as two witnesses on behalf of the Respondent gave relevant evidence at the hearing. The Complainant as well as one of the Respondent’s witnesses made affirmations while the Respondent’s other witness swore the Christian oath.
The Complainant who is of the Jewish faith commenced her employment with the Respondent on 2 May 2016 in an entry level role on a fixed term contract and was thereafter engaged on a series of fixed term contracts. She stated that she was discriminated against by the Respondent as a result of anti semetic remarks made to her by a number of colleagues in 2019.
She also claimed that she was victimised by the Respondent when she was dismissed on the alleged grounds of redundancy and asserts that this termination of her employment was as a result of her having made a discrimination complaint to the WRC.
Summary of Complainant’s Case:
The Complainant stated that she was discriminated against on the grounds of religion due to harassment she experienced in the workplace. Specifically, the Complainant is of the Jewish faith and experienced anti-Semitic comments and exclusion on the grounds of her religion during her employment on 11th and 18th April 2019. She stated that these comments had the effect of violating her dignity and created a degrading humiliating and offensive environment for her. As a direct result of these incidents, which she also stated had a detrimental effect on her health and well-being, she went on medically certified sick leave.
She made a formal complaint about these incidents on 15 July 2019 and an investigation was subsequently carried out by a barrister. The final reports were issued on 16 November 2020 and the allegations made by the Complainant were not upheld. The Complainant subsequently appealed the findings of the Investigator. The appeal was conducted by a member of the Respondent’s Board of Directors. The outcome of the appeal upheld the findings of the Investigator.
The Complainant asserted to the WRC that the Investigator failed to demonstrate sufficient knowledge of anti-semitism and also stated that she did not agree with the Investigator’s analysis of anti-semitism. The Complainant also highlighted that the Investigator declined her requests to clarify the basis for her (the Investigator’s) understanding of anti-semitism and stated that an objective standard should have been referenced for a fair and transparent determination to be made in relation to the allegations of discrimination. The Complainant also alleged that the Investigator identified comments made by one of her colleagues as antisemitic but did not make a finding of anti-semitism. In addition, it was asserted that the Investigator was bound by the terms of reference and excluded earlier incidents of anti-semitism which were indicative of the culture of the Respondent. Specifically, the Complainant gave evidence at the hearing of a comment made by the Respondent’s CEO which she stated was anti-semitic.
The Complainant also asserted that she was victimised by the Respondent after she made the initial WRC complaint on 4 October 2019, when she suffered the detriment of being dismissed from her employment on the alleged grounds of redundancy. This was despite her having been informed by her line manager in early 2019 that her employment with the Respondent would be extended beyond 31 December 2019, namely the date on which the contract she was engaged on at that time was due to expire.
Summary of Respondent’s Case:
The Respondent stated that it is committed to equality and diversity in the workplace and is
an equal opportunities employer. The Respondent’s Employee Handbook gives an express commitment to ensuring equality in the workplace and this is consistently honoured by the Respondent in practice.
The Respondent also highlighted that the Complainant went on sick leave on 14 May 2019 and not 18 April 2019 as she asserted. Specifically, she was at work from 16 April until her long-term sick leave commenced on 14 May 2019 although some of the time between these dates she took off as time off in lieu.
The Respondent also highlighted that it was apparent from the extensive documentation provided that an exhaustive investigation was thoroughly conducted by the independent barrister engaged by the Respondent in respect of the discrimination complaints made by the Complainant and that these were not upheld. In addition, the Complainant was given the opportunity to appeal the findings of the Investigator.
The Respondent also stated that the Complainant failed to establish the requisite legal nexus between the alleged less favourable treatment and her religion. The Respondent further stated that the Complainant’s case rests on speculation and unsupported assertion, a submission which is entirely consistent with the position as found in the Investigation Report.
In addition, the Respondent refuted the allegations that the invocation of termination of employment by redundancy in any way amounted to discrimination, victimisation, less favourable treatment and/exclusion of the Complainant on the grounds of religion as alleged or at all. Prior to the official notice of termination of employment by redundancy of 6 March 2020, it was asserted that the Respondent in fact afforded more favourable treatment to the Complainant in providing for a lengthy redundancy consultation of nine weeks as compared to the standard four weeks set out in the staff handbook.
This demonstrated that the Respondent treated the Complainant as consistently as other workers and took a supportive, reasonable, and understanding approach as the Complainant’s employer. It was also highlighted that that Complainant was afforded a right of appeal against the decision to terminate her employment by redundancy as provided for in the Respondent’s staff handbook. This decision to dismiss the Complainant on the grounds of redundancy was upheld In a letter communicated to her on 31 March 2020 signed by the Appeal Officer.
Findings and Conclusions:
The Act at Section 85A provides as follows:
85A. — (1) Where in any proceedings, facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
(4) In this section ‘discrimination’ includes —
(a) indirect discrimination,
(c) harassment or sexual harassment,
(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
Section 6 of the Act in relevant part provides
6.— (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 —
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person —
(i)is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),
Harassment and sexual harassment.
14A. — (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,
(ii) the victim’s employer, or
(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,
(b) without prejudice to the generality ofparagraph (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 undersubsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —
(a) in a case wheresubsection (1)(a)applies (whether or notsubsection (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 wheresubsection (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.
(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.
Section 85A of the Act provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming within its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.
As was pointed out by the Labour Court in Determination EDA0821, Kieran McCarthy v Cork City Council, at the initial stage, the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
The Complainant made a series of allegations against a number of her work colleagues surrounding events which allegedly occurred on a range of dates and highlighted a number of incidents of harassment which she asserted constituted discriminatory treatment. While it was acknowledged that a full and extensive investigation was carried out into a number of these allegations that occurred in the cognisable period, the Complainant was not satisfied with the outcome of the investigation because in the first instance she considered that the Investigator failed to demonstrate sufficient knowledge of anti-semitism and she also did not agree with the Investigator’s analysis of anti-semitism. She further stated that the Investigator did not clarify the basis for her understanding of anti-semitism despite having been requested to do so. She also claimed that although the Investigator identified comments directed at her (the Complainant) as being intrinsically anti-semitic, she did not make a finding of anti-semitism. The Complainant therefore requested that I re-examine the investigation to assess whether or not the findings of the Investigator were valid.
I note in the first instance that the Investigator is a renowned barrister and it was not disputed that she is an expert in employment law. I also note that a very thorough investigation was carried out and that the Complainant was given the opportunity to verbally set out her account on a number of occasions, provide any documentation that she wished, make submissions in writing and that she was given the opportunity to appeal the findings of the Investigator. In addition, I noted that that the Complainant was given the opportunity, following completion of the draft report but prior to the investigation being finalised, to explain to the Investigator both why she did not agree with her analysis of anti-semitism and challenge her alleged lack of knowledge of the issue. The Complainant further explained in her direct evidence at the hearing how the Investigator’s knowledge and analysis of anti-semitism had been deficient.
Having listened to all of the evidence and reviewed the findings of the various investigation reports, I am satisfied both that the terms of reference were adhered to and that the Investigator was guided by and applied the appropriate definitions of discrimination and harassment in her consideration of the allegations. While I noted the Complainant’s assertion that an objective standard, such as the UN definition, should have been referenced for a more transparent determination to have been made, I find from my review of the investigation reports that the knowledge the Investigator demonstrated of anti-semitism, evident from her analysis, was sufficient for the purposes of reaching her findings and also note that no evidence was presented by the Complainant to suggest that there is a universally accepted standard, had the Investigator chosen to use one.
I should also highlight that in the matter of Icon Clinical Research Limited v Djemma Tsourava (ED/04/2), the Labour Court stated:
It is not the Court’s role to reconstruct the internal enquiry or to seek to substitute its assessment of the evidence before that enquiry for that of the appointed investigators.
In light of the foregoing, I uphold the findings of the Investigator in full.
While the Complainant also highlighted that the CEO of the Respondent made a remark in her presence which she considered to be anti-semitic but that it was outside of the terms of reference of the investigation because she had not raised it in her formal complaint and it had happened more than six months before the complaint was made, she asserted that it should be investigated by the WRC in the context of this complaint because it could be considered as part of a continuum of the discrimination that she was subjected to and was indicative of the anti-semitic culture of the Respondent.
While I noted that the Labour Court found, in the case of Cork County VEC v Hurley (EDA 24/2011), that a discriminatory act had to have occurred within the cognisable period so that any event occurring outside of that period could be considered as part of a continuum or regime of discrimination and consequently within the jurisdiction of the Court under the Act, I believe it necessary to investigate this allegation for the purposes of completeness given the serious nature of it and the fact that it was not addressed, understandably it must be said, in the context of the investigation. Specifically, the Complainant alleged that she was discriminated against, on an unspecified date outside of the cognisable period, when the CEO said in a very annoyed and derogatory tone in her presence that he had been bumped off the panel of a radio show because they “wanted a Jew”. This was emphatically denied by the CEO in evidence who stated that he never made such a comment and further stated that it was not unusual for him to be bumped off a radio panel for a wide variety of reasons.
In making a finding on this allegation, I noted that the CEO highlighted in his evidence that the Terms of Reference of the investigation, dated 14 August 2019, provided that any appeal of the Investigator’s findings should be conducted by him and that the Complainant did not object to this. While the CEO did not ultimately conduct the appeal, because he gave evidence during the investigation, it is incomprehensible to me that the Complainant did not object to him conducting it in the observations she submitted on the Terms of Reference, if he had indeed made the aforementioned anti-semitic remark. Given the clear conflict of evidence between the CEO and the Complainant in relation to this remark, and recognising her failure to object to him conducting the appeal, I prefer the evidence of the CEO and find that, on the balance of probabilities, he did not make the remark.
In light of the foregoing, I find that the Complainant has not established a prima facie case of discrimination and that she was therefore not discriminated against.
Victimisation is defined in section 74(2) of the Employment Equality Act as follows:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or employer occurs as 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,
(d) The work of an employee having been compared with that of another employee
for any of the purposes of this Act or any enactment repealed by this Act,
(e) An employee having been a witness in any proceedings under this Act or the
Equal Status Act 2000 or any such repealed enactment,
(f) An employee having opposed by lawful means an act which is unlawful under
this Act or the said Act of 2000 or which was unlawful or any such repealed
(g) An employee having given notice of an intention to take any of the actions
mentioned in the preceding paragraphs”.
The Complainant alleges that she was victimised when the Respondent dismissed her on the grounds of redundancy in 2020 following a complaint of discrimination she made to the WRC in October 2019.
The Respondent said that the Complainant was not victimised and that she was dismissed on the grounds of redundancy after an elongated consultation period following the expiry of her fixed term contract on 31 December 2019.
I must therefore establish if the Complainant was subjected to adverse treatment as a result of making a complaint of discrimination pursuant to Section 74(2) of the EE Act.
The Labour Court in the case of Department of Defence v Barrett EDA 1017 stated in relation to victimisation:
“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”
That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -
1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.
Having regard to the Labour Court decision above, I am satisfied firstly that the Complainant brought proceedings on a protected ground under the Act, namely that she made a complaint to the WRC October 2019 as a result of discrimination she was allegedly subjected to in the workplace.
I am also satisfied that the Complainant was subjected to adverse treatment by the Respondent when they failed to renew her fixed term contract following its expiry on 31 December 2019 given her uncontradicted evidence that she was informed in early 2019 by her line manager that it would be renewed.
I find however that the failure to renew her fixed term contract was solely attributable to the conclusion of work she had been employed by the Respondent to do and that it was not therefore in reaction to her having made a complaint to the WRC in November 2019. Specifically, in the first instance, I noted that the Complainant was engaged on a series of fixed term contracts by the Respondent and that the basis for the initial contract and the subsequent renewals was that there was work available and the finances to pay her. Although I did accept the Complainant’s uncontradicted evidence that she was informed in early 2019 that her contract would be renewed, I am satisfied on the basis of the evidence presented to me that neither the future work requirements or the consequent funding position were sufficiently clarified until later in the year, sometime after the promise was made to her by her line manager. I find therefore that, in the absence of such clarity on the prospect of future work, such a promise should not have been made so far in advance of the end of the contract. I also noted that there was no evidence provided by the Complainant to suggest that she was replaced in the Respondent’s organisation following the termination of her employment on the grounds of redundancy. In addition, I noted that the Respondent engaged in an extensive and lengthy redundancy consultation process with the Complainant and that the possibility of working internationally was highlighted but that she declined this option. Finally, and perhaps crucially, I also noted that the CEO stated in cross examination that the Respondent regularly hired fixed term contract employees for the purposes of working on specific projects and that no employee who was engaged on such a basis was ever subsequently retained to do other work.
In light of the foregoing, I find that the complainant has not established a prima facie case of victimisation.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
As I have found that the Complainant has not established a prima facie case of discrimination on the grounds of religion, I find that she was not discriminated against.
CA-00035846-001: As I have found that the Complainant has not established a prima facie case of victimisation, I find that she was not victimised.
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Discrimination; victimisation; religion;