Case Number: ADJ-00008465. Workplace Relations Commission

• Docket Number: ADJ-00008465
• Date: 11 December 2019
• Court: Workplace Relations Commission
• Parties: A Security Worker An Employer

Procedure:

In accordance with 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 final correspondences/submissions were received on 9 February 2019. During the course of the investigation and hearings it became clear that much of the evidence adduced related to sensitive security information which is of a nature that I have determined is not suitable to be placed in the public domain in the interest of both the Complainant and the Respondent. Accordingly, I have decided to anonymise the parties and to make general statements as to functions and roles within the Respondent, also in relation to their practices and processes, rather than give specific information as was presented to me during the course of the investigation.

Background:

The Complainant’s case is that four male staff with less service than her were placed ahead of her on the roster for annual leave purposes. The Complainant claims that this amounts to gender discrimination. The Complainant also claims that she was subjected to harassment and victimisation in relation to an incident regarding an inspection of her mobile phone, and a ‘snapchat’ social media issue. The Respondent denies the same. It claims that there was no gender discrimination, victimisation or harassment as per the Employment Equality Act 1998. It said that the Complainant was placed on its roster for annual leave on the day she joined that roster as per its practice.

Summary of Complainant’s Case:

A substantial amount of oral, written and documentary evidence was presented in this case. The following is a brief summary of the Complainant’s case. Preliminary matter The Complainant made the following submission in response to a preliminary application made by the Respondent arguing that the complaints were statute barred. As regards the primary claim of gender discrimination, the Complainant said that the discrimination in relation to the annual leave roster constitutes a continuum as per Section 77 (5) of the Act. The Complainant referred to the Decision of the Labour Court in the case of Brothers of Charity Services, Galway – v – Kieran O’Toole, [2017] EDA177, in particular where the Labour Court quoted, with approval, a previous decision of the Labour Court in the case of County Cork VEC – v - Anne Hurley, [2017] EDA1124 where it held:- “Sub-Section (5) and Sub-Section 6 (A) of S.77 deal with different forms of continuing discrimination or victimisation. Under Sub-Section 6 (A) an Act will be regarded as extending over a period, and so treated as done at the end of that period, if an Employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the Complainant (Barclays Bank Plc – v – Kapur) [1989] IRLR387). This Sub-Section would apply where, for example, an Employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an Employer pursues a Policy or Practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the Policy or Practise is discontinued. Hence an aggrieved party could maintain a claim in respect of Acts or omissions which occurred in pursuance of the Policy or Practice regardless of which the Act or omission occurred”. The Complainant said that the complaint in relation to one of the incidents referred to as the Snap Chat issue is still ongoing and is subject to a formal external investigation. The same applies in relation to another incident referred to as the mobile phone incident. Therefore, the Complainant claims that this is an ongoing situation. The Complainant also referred to the Labour Court decision of Mary Dempsey – v – NUIG, where the Tribunal held: - “Having regard to my findings below, I find that this was a related Act of discriminatory treatment in relation to her conditions. I am also satisfied that the Complainant has established a satisfactory link between all incidents, and they can be considered as separate manifestations of the same disposition to discriminate and constitute an ongoing Act or a continuum of discrimination within the meaning of Section 77. I find therefore that the complaints were referred to within the 6-month time limits provided for in Section 77 (5) (a) of the Acts and that I have jurisdiction in the matter.” The Complainant said that her situation is similar to the case in Dempsey and therefore can be considered by the Adjudication Officer. The Substantive matter The Complainant commenced working with the Respondent on 26 April 2011. On 20 November 2011, she said that she started on Roster 1. She said on 12 February 2012, the Complainant was threatened by a male colleague and whilst trying to avoid subsequently coming into contact with him, he, as a supervisor, continued to undermine her and was constantly trying to find fault with her work. In September 2013, the team of supervisors indicated that she needed to improve her performance. Notwithstanding, she was offered a fixed-term contract with an extension until 28 February 2014. She took a formal grievance in relation to the comment on her performance review and in relation to the terms on offer of a fixed-term contract extension. In November 2013, a Collective Agreement was entered into between the Union and her employer regarding issues including those arising out of the assessment process that should be pursued, through the Company's grievance procedures. It was agreed that staff members were also to have access to these records upon request and any future major changes regarding rosters will involve consultation with the Union and staff. On 27 March 2014, the Complainant was offered a permanent contract with effect from 1 April 2014 with her service dating back to the 26 April 2011. The Complainant said that the rosters were re-organised in 2014 and on 1 April 2014, Mr. A, head of security, issued a document with respect to roster changes, and he made a reference to a mirror line. The Complainant said that Mr. A acknowledged to her that the procedure was not correctly followed, when she and another work colleague, Ms. X, were removed from Roster 1, when the rosters were reorganised in 2014. She said that it is acknowledged and uncontroverted, that when the mirror line was created both the Complainant and Ms. X would be offered the next available positions on the permanent Roster 1, in addition to the creation of the mirror line arrangement. The Complainant said that it is clear from the evidence, that interviews were performed when one line became available. The only interviewees were the Complainant and Ms. X., where Ms. X obtained the position on Roster 1 at that stage. It is submitted that this is further evidence of the error made by Mr. A, when the Rosters were drawn up in 2014, and an acknowledgement of same. The Complainant said he promised the Complainant and Ms. X the next available positions on the permanent Roster 1. On 15 October 2014, the Complainant said that HR sent an email to Mr. B, a supervisor, suggesting that the note, regarding her past performance, referring to an incident between Mr. B and the Complainant from a few years previously, should be removed from the 2014 performance review. On 20 November 2014, the Complainant’s performance review reports states that the Complainant is inconsistent in her work, that she can be a distraction to others in that she is very talkative and that she needs to improve her ‘observation’ score. The overall rating is three. The review is carried out by another supervisor Mr. C. On 16 December 2014, an amendment is agreed on the rosters in the company and it describes the permanent Roster 1 as being “X” lines plus one shadowing line (the mirror line). On 1 June 2015, a line became available in Roster 1. The line was not advertised, and the only people interviewed were the Complainant and Ms. X, both from the shadowing line. On 29 June 2015, Mr. D, deputy head of security, confirmed that the...