Case Number: DEC-E2012-034- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-034- Full Case Report
• Date: 01 March 2012
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC - E2012 - 034

PARTIES

Ms Karina Potasinska

and

Bank of Ireland Security Services Ltd (represented by Seamus Clarke B.L., instructed by Bank of Ireland in-house legal service)

File References: EE/2008/556
Date of Issue: 21st March 2012

1. Claim

1.1. The case concerns a claim by Ms Karina Potasinska that Bank of Ireland Security Services Ltd discriminated against her on the grounds of gender and race contrary to Sections 6(2) (a) and (g) of the Employment Equality Acts 1998 to 2008, in terms of her conditions of employment, harassment and sexual harassment.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 18 August 2008. A submission was received from the complainant on 9 December 2008. A further submission was received from the complainant on 31 May 2011. A submission was received from the respondent on 26 October 2011. On 19 July 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to Mr Enda Murphy, Equality Officer, for investigation, hearing and decision. When Mr Murphy left the Tribunal and relinquished the case before it had come to hearing, the Director delegated the case to me, Stephen Bonnlander, 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. That was on 31 January 2012. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 28 February 2012.

2. Summary of the Complainant's Written Submission

2.1. The complainant is a Polish national, who commenced working for the respondent in 2007. In her submission of 9 December 2008, received through her then representative, the complainant states that she was not allowed to speak Polish at work. This was a new policy which the respondent introduced after Christmas 2007. The complainant met with various managers in the respondent organisation on this issue. She contends that this policy was not contained in her handbook or terms and conditions of employment. The complainant alleges that she was put through a disciplinary procedure after complaining about the matter, and that the respondent's manager controlled whether she spoke Polish. The complainant states that her work is in fund evaluation and that she has no contact with clients.

2.2. In her submission of 31 May 2011, which the complainant drafted herself without legal representation, she lists a number of other incidents which in her view constitute discrimination.

2.3. The complainant alleges that a black Irish colleague was facilitated with changing teams, but not herself. She further alleges that one of her managers asked her several times in meetings why she was not leaving the respondent, which in the complainant's view constitutes harassment, and that a female manager was telling untruths about her to HR, which she also views as harassment.

2.4. The complainant alleges that she was asked not to contact that female manager, but that a male colleague of hers had no problem contact that same manager via email.

2.5. She further states that a named male manager confronted her with statistics which showed that she was the least effective employee on the floor. In her view, this also constitutes harassment.

2.6. The complainant states that she was asked to produce a doctor's certificate for a sick leave absence whereas a French female colleague was not.

2.7. The complainant did not expand on her complaint of sexual harassment in any way in her written submissions to the Tribunal.

3. Summary of the Respondent's Written Submission

3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that a policy was introduced that only English should be spoken at work in order to facilitate communications in a multi-national workforce. It stresses that employees continued to be free to converse in their native languages during breaks and outside the office. The respondent disputes that this policy is discriminatory in any way.

3.2. With regard to the other issues raised by the complainant, the respondent submits that it is difficult to see how these could possibly ground a claim for discrimination based on gender and/or race, or a complaint of harassment or sexual harassment and that the complainant will not be able to make out a prima facie case of discrimination on these matters.

3.3. The respondent also submitted a copy of a written complaint of discrimination and harassment by the complainant to HR. None of the allegations in that complaint support a claim of these kinds of unlawful conduct within the meaning of the Acts.

4. Conclusions of the Equality Officer

4.1. The issues for decision in this case are whether the complainant was discriminated against, harassed or sexually harassed within the meaning of the Acts.

4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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...