Case Number: DEC-E2012-027- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-027- Full Case Report
• Date: 13 March 2012
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL EMPLOYMENT EQUALITY ACTS 1998 to 2011 Decision DEC - E2012 - 027 PARTIES A Complainant and An Educational Body File Reference: EE/2009/170
Date of Issue: 13th March, 2012

Headnotes: Employment Equality Acts, - Section 6(2)(a), gender ground - Section 6(1)(ii), conditions of employment - out-of-time - Section 14A, harassment - no nexus between alleged harassment and gender - prefer evidence of witness - Section 74(2), victimisation - disciplined for taking case to Tribunal

1. Dispute

1.1. This case concerns complaints by the complainant that she was discriminated against by the respondent on the ground of gender, contrary to section 6(2)(a) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to (i) access to employment, (ii) conditions of employment, (iii) promotion/re-grading and (iv) training contrary to Section 8(1) of the Acts, that she was harassed by the respondent on the Gender ground contrary to Section 14A of the Acts and that she was victimised by the respondent in terms of Section 74(2) of the Acts.

2. Background

2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11th March, 2009, alleging that the respondent had discriminated against her and harassed her on the ground of gender. On 6th September, 2011, the complainant made a further complaint of victimisation.

2.2. Written submissions were received from both parties. On 1st September, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Hearings of the complaint were held on 25th January, 2012 and 7th February, 2012. One further document was sought from the complainant and final correspondence in this respect was received on 9th March, 2012.

3. Summary of the Complainant's case

3.1. The complainant is an Art Teacher in a school, School Z, which is under the control of the respondent. She stated that she was and is a successful productive teacher. She stated that, on 31st August, 2004, she attempted to enter the ladies staff toilet in her school but found it locked. She said that she approached the Principal, Mr. A, about the matter, and followed this up with a written complaint. She stated that the men's staff toilets were not locked. She stated that she was later told that the rest of the female staff had voted on the matter and the majority view was to keep the toilets locked. She said she did not feel there was a vote as people were intimidated into supporting the locking of the toilets and had "words put into their mouths" in that respect.

3.2. The complainant submitted that this was discrimination on the gender ground, as men were able to access their toilet without a key whereas she could not. She provided the Tribunal with substantial correspondence and written submissions to support her allegations in this respect. With respect to the question as to whether this matter had been referred to the Tribunal within the time limits prescribed in the Acts, the complainant submitted that, in the first instance, this incident was the catalyst for the discrimination, harassment and victimisation that was to follow and was a series of linked events in that context. She also submitted that it was ongoing discrimination in any event as she was still required to use a key to enter the toilets.

3.3. The complainant stated that, on 31st August, 2004, in the course of her conversation with Mr. A about this matter, he raised his voice in a threatening manner and that she felt harassed by his treatment of her in this respect. She stated that Mr. A had harassed her since then.

3.4. The complainant gave a very detailed account of this harassment, stating, inter alia, that he would follow her even when she attempted to mislead him. She stated that he would shout and her and constantly 'project' his voice. She stated that he constantly stared at her and was always in close proximity to her. She stated that he was constantly calling her a liar. She also described how he would interfere with her teaching of her class and would "tackle" her in front of her students. She stated that he was always asking her why she was not in class when she never missed a class. She said that "there was no let-up" and his behaviour was "off-the-wall". She said that his behaviour in this respect was designed to make one feel frightened. She said that he did not speak to men the way he spoke to her and that he "inflicted terror" on female members of staff.

3.5. The complainant also gave a detailed account of specific examples of this harassment. In particular, she stated that Mr. A took disciplinary action against her with respect to renovations she undertook in her Art Room. She stated that she had asked him if it would be ok for her to carry out these renovations as she considered that the Art Room layout was dangerous. She said that he laughed in response and she took that as implicit agreement with her proposal in this respect. She described how she removed some of the floor coverings and placed some furniture outside the Art Room (and thus outside the building). She stated that she went off to a class and when she returned she described how she considered that Mr. A and the Deputy Principal harassed her and told her they would be taking disciplinary action against her. She then gave an account of that disciplinary action and its outcome.

3.6. The complainant also described in detail other particular incidents of alleged harassment. She stated that, following the completion of this disciplinary process, a glass case, which had been one of the pieces of furniture which she had left outside her room, was moved outside by Mr. A. She described how she noticed that this glass case "kept moving", in that she could see it through the window of the classroom and, from time to time, it would be in a slightly different position to where it was the day before. In essence, she related how she considered that Mr. A, and/or someone on his behalf, kept deliberately moving the glass case in order to frighten her in the context that her removal of the glass case outside had been the cause of disciplinary action being taken against her.

3.7. The complainant also referred to two occasions in which she stated that Mr. A made physical contact with her, including an incident where he came so close to her that she had to get off the chair she was sitting on at the time. She also stated that Mr. A would watch her through the window of the male staff toilet while he was urinating. She also described one occasion when he went into the ladies staff toilet because he thought she was there. She also stated that Mr. A harassed other female members of staff and gave an account of when she witnessed him doing so.

3.8. The complainant gave a detailed account of the harassment complaint she filed with the respondent against Mr. A in that context. She stated that it took her months to get the matter investigated. She provided the Tribunal with a copy of the very detailed correspondence between herself and Mr. A and/or the respondent in that respect. She also provided the Tribunal with a copy of the report from Ms. B, the investigator who was appointed by the respondent to investigate the matter. She outlined the difficulties she had with this investigation and the harassment policy of the respondent. In particular, she stated that its policy required that a complainant show intent on the part of the alleged harasser and that there must be a series of incidents to constitute harassment whereas the Acts do not require same. She made a number of detailed submissions in that respect.

3.9. The complainant also stated that both Mr. A and the respondent harassed her by placing obstacles in the way of her obtaining a post of responsibility and she gave a detailed account of how they did so. She also stated that the respondent suspended discussion around providing her with this post pending the outcome of her claim of harassment against Mr. A. In that respect, she stated at the hearing that she was not in receipt of a special duties post allowance (having previously 'acted up' a post), contrary to the respondent submissions in this respect. She stated that this was also victimisation. In response to the respondent's contention that she refused meetings in this respect, she stated that she was unable to attend certain meetings for various reasons outlined.

3.10. The complainant also described what she called the "ethos of Miss" that existed in correspondence between the respondent and herself. In essence, she gave a detailed account of instances where she claimed that certain of the respondent's employees used the term "Miss" in correspondence with her in a manner which was designed to be threatening and intimidating. She said that "every time (Mr. A) loses the plot" he would call her "Miss". She stated that this shift in ethos and "bad behaviour" began in November 2009. She stated that this was harassment and was also victimisation as the purpose of the "ethos of Miss" was to force her to withdraw her complaint to the Tribunal. She provided the...