Maguire v North Eastern Health Board

 
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ODEI -THE EQUALITY TRIBUNAL

DEC-E2002-039

File No. EE 2002/019

Employment Equality Act, 1998

Maguire (Represented by the Equality Authority)
v.
North Eastern Health Board (Represented by HSEA)
Abstract:

Equality – Discrimination – Traveller community – Complaint of discrimination not investigated by respondent –Equality Act, 1998 section 32

Employment Equality Act, 1998 Sections 6, 8, 15, 32, 56, 74, 77 - Employment - Traveller - Prima Faciecase - Burden of Proof - Harassment - Victimisation - Dismissal

The complainant started employment with the respondent organisation in November, 2001 as a Care Attendant in a temporary capacity. He claimed that three weeks after commencing employment it was discovered that he was a member of the Traveller Community and as a result attitudes towards him changed. At the Christmas Party he alleges that he was called a “knacker”. According to the complainant he asked the Director of Nursing to intervene to ensure that this did not happen again but she refused. Subsequent to this incident the complainant was dismissed.

Held The Equality Officer found that the complainant established a prima facie case of discrimination. The Equality Officer was not satisfied that the respondent had discharged the onus on it to rebut the allegations. The Equality Officer found that the respondent discriminated against the complainant in terms of Section 32 of the Employment Equality Act, 1998 and it failed in its obligations to investigate the complaint and awarded €€5,000 for stress.

SUMMARY (1)
Equality Officer Decision DEC-E 2002/039 (Coyle G.) 22nd August, 2002
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Background:

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The complainant alleges that he was discriminated against by the respondent on the Traveller ground when his complaint following harassment at the Christmas Party was not investigated. The complainant also alleges that he was treated differently by both management and colleagues when they became aware that he was a Traveller. The respondent denies the allegations that the complainant was treated less favourably on the Traveller ground. The respondent accepts that the complainant made a complaint about harassment at the Christmas Party but it did not consider that it was appropriate to get involved in an incident which occurred outside the workplace.

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Conclusions:

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The Equality Officer found that the complainant established aprima faciecase of discrimination. The Equality Officer was not satisfied that the respondent had discharged the onus on it to rebut the allegations. The Equality Officer found that the respondent discriminated against the complainant in terms of Section 32 of the Employment Equality Act, 1998 and it failed in its obligations to investigate the complaint. The Equality Officer noted that the respondent reduced the working hours allocated to the complainant after he made the complaint.

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Decision:

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The Equality Officer found that the respondent did discriminate against the complainant and ordered the respondent to implement a Harassment Policy, a Code of Practice on staff treatment of members of the Traveller Community, a fair and transparent disciplinary procedure and the respondent was ordered to pay the complainant the sum of €€,000 for the stress suffered.

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Cases Cited:

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Equality Officer Decision - Freeman v Superquinn (DEE-E2002-013) of 5th March, 2002

2
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Equality Officer Decision - Eng v St. James Hospital (DEE-E2001-041) of 20th December, 2001

3
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Equality Officer Decision - Nevin v The Plaza Hotel (DEE-E2001-033) of 7th November, 2001

4
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Equality Officer Decision - Gorry v Manpower (DEE-E2001-017) of 8th June, 2001

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Labour Court Determination - Teresa Mitchell v Southern Health Board (Cork University Hospital) (DEE 011) 15th February, 2001

1. DISPUTE
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1.1 This dispute concerns a claim by Mr. Francis Maguire who was employed by the North Eastern Health Board that he was discriminated against in terms of Sections 6(1) and 6(2)(i) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when he was treated differently by management and staff after they discovered he was a Traveller and when he was harassed at a Christmas Party.

2. BACKGROUND
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2.1 The complainant commenced employment with the respondent organisation in November, 2001 as a Care Attendant in a temporary capacity. He says that three week after commencing employment it was discovered that he was a member of the Traveller Community and as a result attitudes towards him changed. At the Christmas Party he alleges that he was called a “knacker”. According to the compalainant he asked the Director of Nursing to intervene to ensure that this did not happen again but she refused. Subsequent to this incident the complainant was dismissed.

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2.2 Consequently the complainant lodged a formal complaint with the Director of Equality Investigations on 30th January, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 20th February, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received from both parties and a joint hearing took place on 23rd July, 2002 and the complainant submitted further information on 26th July, 2002.

3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
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3.1 According to the complainant he commenced employment on 20th November, 2001 with the respondent organisation as a care attendant in the Service for the Elderly, Drogheda. The complainant states that he got on well with the staff and the patients. He enjoyed work and was very dedicated to it. The complainant says that the Clinical Nurse Manager told him that he was a good worker and that he was good at his job. He worked for six consecutive days and he also worked his day off.

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3.2 The complainant says that he was approached three weeks later by a fellow worker who indicated to him that she recognised him from somewhere and it was established that they knew each other from school. According to the complainant this fellow worker knew that he was a Traveller. It is the complainant’s contention that, in the days following this, the atmosphere changed. His fellow workers did not talk to him as much as before and they started bossing him around, telling him what to do and also telling him to do their work. According to the complainant this continued until January, 2002. The complainant says that he felt intimidated and upset by his colleagues.

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3.3 Two weeks into December the complainant handed out Christmas Cards to his fellow workers. He attempted to give a card to the Clinical Nurse Manager but she refused it in a rude manner. The complainant says that he was shocked and embarrassed by her manner. According to the complainant she took the card and then informed him that there had been a complaint made about him. When the complainant attempted to establish the nature of the complaint he was told to ‘forget about it’. The complainant notes that when he was on a work break the Clinical Nurse Manager would interrupt him and ask him to carry out some task. According to the complainant she would never disturb any of the other staff on their breaks.

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3.4 The complainant says that, on 19th December Geraldine Mattis (Assistant Director of Nursing) asked him to sign a three month contract and he notes that this was not mentioned in his job interview. It is the complainant’s contention that this was all to do with the fact that he is a Traveller.

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3.5 On 20th December, 2001 the complainant attended the staff Christmas party in the Bridgeford Hotel. He says that everything was going well until the end of the night when the fellow worker he had known from school (see paragraph 3.2 above) mentioned that she was having a party in her house after the function in the hotel and she was inviting all her fellow workers. The complainant alleges that he heard her say to them “the knacker is not coming”. According to the complainant he told her that he did not want to go and he asked her not to call him a knacker to which she replied “you are a knacker”. The complainant says that he walked away to go home when this fellow worker’s boyfriend called him a knacker, kicked him to the ground and with the assistance of a friend proceeded to attack him.

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3.6 The following day the complainant called to see the Director of Nursing (Matron) to inform her that he would be unable to work as he had injured his finger and he explained about the incident at the party the previous evening. The complainant asked the Director of Nursing to intervene and to ask the female in question not to call him names but the Director of Nursing stated that it had nothing to do with her. According to the complainant it was then that the Director of Nursing and the Assistant Director of Nursing told him that they did not consider him suitable for the job. The complainant says that he was told that he was too familiar with staff and slow at his work and he was informed that his work would be reduced to two days a week. He was told that the matter would be discussed again after the New Year.

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3.7 The following day (24th December, 2001) at work there was a little party for the patients and the complainant along with a nurse was on duty giving out drinks and generally enjoying the party. The...

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