August 01, 2022
This case is a prime example of the importance of understanding the legal requirements when taking a claim under the Employment Equality Acts. The Complainant did not establish a prima facie case in establishing facts from which discrimination or less favourable treatment may be inferred. The Complainant raised no complaint of sexual harassment to the Respondent and no detail of such alleged harassment was submitted by the Complainant in clear terms with names of alleged perpetrators. Consequently, the Adjudicator found the complaint to be not well founded.
The Complainant, who was employed by the Respondent – a Sales Company - for four days at the time of the issue, contends that he was discriminated against by the Respondent on the ground of gender and that he was sexually harassed by a Specialist Trainer in a training course he undertook. The claim is taken under the Employment Equality Act 1998 alleging discrimination based on Family Status and Sexual Harassment. The contention of discrimination on the ground of Family Status was withdrawn by the Complainant at the hearing.
Summary of Complainant’s Case
The Complainant put forward that the Respondent failed to provide him with a safe place to work, that his right to dignity in the workplace was breached, and that he was harassed and bullied by a Specialist Trainer and discriminated against by the Regional Sales Manager who was his line manager, after he made a protected disclosure.
The Complainant also claimed that the Respondent’s Management failed to act reasonably and fairly in their roles, and that they did not follow company procedures and the law, in relation to protected disclosures and the termination of employment, leading to his unfair dismissal. The Complainant further stated that the Respondent failed to live up to their Vision - expressed in the Employee Handbook - of staying true to their values of Teamwork, Inspiring, and Excellence, and thereby failed to honour the employment contract.
The Complainant outlined that he wanted to speak with his line manager, about what he was experiencing in training. As a new hire and having never met any of the Employees in person, he wanted to make his report in person with a written copy to back-up his claims of wrongdoing in relation to the Specialist Trainer. On Thursday October 1st 2020, he reached out and wrote an email to his line manager, from his Company email account. It was 10:54 in the morning, on the final training day, when he wrote “I’d appreciate if you could find some time to speak with me by phone tomorrow while I am travelling to collect the company vehicle.” The line manager replied, and for 20 minutes, they emailed about him visiting with her the next day, Friday 02nd October 2020.
Things had gotten so bad in training that morning, that he had decided to email a report of the Specialist Trainer’s wrongdoings to his line manager that evening and then speak to her by phone while travelling up to collect his company car. The Specialist Trainer was particularly aggressive on the last day of training, and he was chastised in front of the other new hires for the information he used during the Sales Presentations exams. The Complainant said his research was very thorough, and he was using the latest information and that this appeared to annoy the Specialist Trainer greatly. The Complainant noted that they also got into a heated discussion where the Specialist Trainer attacked his views during one of the exercises relating to colour.
During a break all the new hires watched the Specialist Trainer writing to the Complainant’s line manager about him. The Specialist Trainer had continued throughout the week to share her screen inappropriately, and the Complainant phoned her to tell her everybody could see her screen. At all times throughout his employment, the Complainant said he followed the rules for Personal, Appearance and Etiquette, as laid down in the Employee Handbook, attributes of a professional image. It was clearly expressed in the Employee Handbook along with the Health and Safety Policy, that all employees are responsible for ensuring and maintain the Company’s Vision.
An hour later, 12:14, the Complainant wrote to his line manager with the subject line: Incidence in Training and stating “I would like to draw your attention to the fact that there was an incident between (the Specialist Trainer) and myself in training today before lunch.”
That afternoon, October 1st 2020, he received a phone call from his line manager, a few hours after sending his email regarding the incident in work. The Complainant noted that his line manager was very agitated, forceful and rude on the phone-call.
She asked what had happened in the training between the Specialist Trainer and the Complainant. The Complainant responded that there was much he needed to share and that he was preparing a document for her that he would have ready as soon as possible. The Complainant explained that he was concerned about a cover up due to management friendships and that he would prefer to write an account first.
The line manager demanded to know what happened and the Complainant told her he would prefer to do so tomorrow when they met. The line manager insisted that the Complainant told her immediately, so he began to tell her of all that he had experienced in the four days since he had started working for the Respondent.
The Complainant said he sought to do his best to share his experiences in training to his line manager, by phone, as she’d strongly insisted, but that she cut him off from speaking and she stopped him from sharing all of what had happened, saying she didn’t want to hear it. The Complainant raised as many issues as possible, a protected disclosure, including bullying, sexual harassment, and the breaking of a non-disclosure agreement, but that his line manager raised her voice, shouting over him, saying that the Specialist Trainer was working at the Organisation for 15 years, and the line manager told the Complainant that she refused to listen to anymore from him. The line manager, who appeared very agitated, told the Complainant that he was terminated, that he no longer worked for the Organisation and that he would receive four days’ pay. When the Complainant told her that he would take legal proceedings, contact senior management, and the Irish media, the line manager made a dismissive sound and said “yeah, you do that” and then cut off the call.
The Complainant gave sworn evidence following the administration of an oath. He stated that he had had over a hundred questions he wished to put to the Respondent’s managers and/or agents some of whom were not present at the hearing. He put questions to the management who went into evidence at the hearing. Many of the questions concerned morals, questions of understanding what was morally right and wrong. The Representative of the Respondent questioned the Complainant and objected to some of the questions posed by him.
Summary of Respondent’s Case
The Respondent denies all allegations. Following over three hours into the hearing, when being cross examined by the Complainant, the Respondent’s Management stated that they still did not know what the Specialist Trainer was accused of by the Complainant.
Findings and Conclusions
In this case, the Adjudicator noted that they must consider the Complainant's claim that the Respondent directly discriminated against him on the gender ground and whether he was sexually harassed in terms of the Employment Equality Acts.
It is contained in the Employment Equality Acts, that the burden of proof lies first with the Complainant to establish facts from which discrimination or less favourable treatment may be inferred and if those facts are established, then the burden of proof shifts to the Respondent to prove that discrimination did not occur.
Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.
First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.
Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.
Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed. However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.
In this instant case, the Adjudicator noted that the evidence shows:
The Complainant did not submit any evidence of a comparator within which it could be inferred that he was treated less favourably on the gender ground. In his written and oral submissions and evidence, the Complainant submitted that the Respondent had acted in a manner that failed to provide him with a safe place to work, that his right to dignity in the workplace was breached, and that he was harassed and discriminated against and that he had made a protected disclosure. He also contended that the Respondent did not follow company procedures and the law, in relation to protected disclosures and the termination of employment, leading to his unfair dismissal.
In this instant case, the Adjudicator finds that the Complainant has not met the burden of proof of establishing primary facts that he could seek to rely upon to raise a presumption of unlawful discrimination. The Complainant has not established a prima facie case and the Adjudicator finds his complaint that he was discriminated against on the ground of gender to be not well founded.
In this instant case, the Complainant raised no complaint of sexual harassment to the Respondent and no detail of such alleged harassment in clear terms with names of alleged perpetrators. The Complainant gave some general evidence of alleged unsavoury comments made during the course of his four-day training course by some one or two persons. The Adjudicator finds that this cannot substantiate such a serious allegation of sexual harassment as levelled at the Respondent. The Adjudicator does not find his complaint to be well founded.
The Complainant has not established a prima facie case and the Adjudicator finds his complaint to be not well founded.