Case Number: DEC-E2012-028- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-028- Full Case Report
• Date: 01 March 2012
• Court: Equality Tribunal

The Equality Tribunal EMPLOYMENT EQUALITY ACTS EQUALITY OFFICER'S DECISION DEC-E2012-028 PARTIES A Worker
(Represented by Claire Bruton BL, instructed by the Equality Authority) AND A Public Body
(Represented by Byrne Wallace) File reference: EE/2009/297
Date of issue: 13 March 2012

HEADNOTE
Employment Equality Acts - Victimisation

1. DISPUTE

1.1 This dispute concerns a claim by A Worker that she was harassed in accordance with section 14A of the Employment Equality Acts and victimised by A Public Body contrary to section 74 (2) of the Acts.

1.2 The complainant referred her claim to the Director of the Equality Tribunal on 7 May 2009 under the Employment Equality Acts. On 29 September 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, 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, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 8 December 2011 and final information was received on 8 February 2012.

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant made two previous complainants to the Equality Tribunal, the first in 2002 and the other in 2003. Arising from these complaints a settlement agreement was reached in September 2005. The agreement included the provision: "The (respondent) acknowledge the claimant is 1st on the transfer list for the ....... Section and will use bona-fide best endeavours to accommodate her with a transfer to a part-time position at that location should such a part-time position become available." The complainant submits that she made several efforts to have that clause implemented and believes that she was deliberately passed over for transfer to the Section identified in the agreement and that this amounts to victimisation within the meaning of the Acts.

2.2 The complainant submits that her earlier complainants were against senior management members working in her area and she still had direct and indirect contact with them until she moved to the section specified in the agreement in September 2009.

2.3 The complainant submits she made her first request for a move in January 2002 in a discussion with her area manager about a claim of sexual harassment. She did transfer out of the section she was working in but remained in the area. In August 2002 she requested a transfer to a specific location but was told but was told that only permanent staff could transfer. In May 2004 the complainant requested a transfer to the section referred to in the agreement that was out of her area. This formed the basis of the provision in the agreement reached in September 2005. Following this agreement the complainant was moved within her own area but still encountered difficulties. Consequently the complainant submits she was placed on stress related sick leave prior to going on maternity leave. On her return she was still required to work in the same area although she was moved to a different section. In November 2007 she enquired about a move to the section designated in the Agreement and was told she was number 39 on a transfer list.

2.4 The complainant submits that because she was still encountering difficulties the Equality Authority wrote to the respondent on her behalf in December 2007 asking what steps they have taken to seek a transfer for the complainant. They also asked for a response regarding recent difficulties the complainant had encountered. The respondent replied they would have difficulty facilitating the complainant's transfer due to a staffing embargo.

2.5 The complainant submits that in April 2008 the Equality Authority spoke to someone in HR who said that the complainant was third on the transfer list and confirmed there was no correspondence on her file requesting that priority be given to the complainant's case. Following further correspondence from the Equality Authority, in November 2008 the respondent offered the complainant a position in the section she requested that was based in Kells, County Meath. The complainant submits the Equality Authority wrote to the respondent on her behalf and turned down the offer because of the geographical location. They also advised the respondent that, because of the three year delay in arranging the transfer, if no immediate attempt was made to transfer her to a part-time position in Dublin outside of her area within the next three weeks then the complainant would have no option but to lodge a complaint of victimisation with the Equality Tribunal. In December 2008 the respondent offered the complainant a position in a local office within the area. The complainant went for a chat to discuss the position with local management but she was interviewed rigorously by one of them and consequently declined the transfer.

2.6 The complainant submitted her claim of victimisation to the Equality Tribunal on 5 May 2009 and was transferred temporarily to another office. In August 2009 the Equality Authority wrote to the respondent asking for an update on the complainant's position and in September 2009 she was transferred to the section that was agreed in the settlement of September 2005.

2.7 The complainant submits that the manner in which her co-workers and local management treated her following the lodgement of her claims in 2002 and 2003 amounts to victimisation in accordance with section 74 (2) of the Acts. It is also submitted that the failure to transfer the complainant in accordance with the agreement of September 2005 amounts to harassment under section 14A (1) of the Acts.

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent submits that the two claims made in 2002 and 2003 were withdrawn when the settlement agreement was reached with no admission of liability on their behalf. The respondent denies that it failed to implement the transfer clause. The transfer took place in September 2009 following the respondent utilising its best endeavours, as stipulated in the agreement. The respondent submits that the complainant has presented no evidence of a deliberate attempt to victimise her.

3.2 The respondent submits that following the September 2005 agreement the complainant was reassigned to a local office at her...