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In a decision reported in the media today namely An Employee v A Credit Union, an employee was awarded €16,000 in respect of victimisation and €8,000 for discrimination whereby it was alleged he was discriminated against on the grounds of sexual orientation and that he was further victimised in this regard.

Despite an initial claim that the complaints were out of time, the Equality Officer ruled that each incident was a manifestation of the Respondent’s propensity to discriminate against the Complainant and therefore the Complainant’s claim related to a series of linked events and was within time in that context.

Background

In essence the Complainant submitted that the Respondent discriminated against him on the sexual orientation ground with respect to conditions of employment and harassment and that it victimised him.

The Complainant gave evidence that in July/August 2008, a named colleague told him that the only reason why he had been employed by the Respondent was because his family had a long association with the Respondent and that his father was then a member of the Board. The Complainant stated that these comments made the atmosphere unwelcoming for him and that the principal reason for his treatment was because he was gay. He further submitted that, in August, 2008, he overheard conversations between board members of the Respondent in which one of those board members stated “and what’s with (the complainant), is he gay?” He submitted that laughter followed this comment and it was then said: “I had better not be left alone in a room with him; I hope it’s not contagious.” The complainant further submitted that another colleague told him that on more than occasion he was referred to in the presence of female staff members as “queer” and other comments were  made including “he’s one of them, a queer, like.”

The Complainant was subsequently out on sick leave and stated that such leave was certified however a letter was subsequently sent by courier to his home which stated that his absence was unauthorised. He submitted that the excessive nature of this letter was a further attempt to undermine and harass him and was motivated by his sexual orientation in that respect. Upon attending a meeting on the 18th January, 2010 concerning a claim of bullying and harassment made by him, the Complainant stated it was alleged that he had misappropriated a laptop from the Respondent. Despite making a series of complaints no investigation took place in relation to his concerns. The complainant also submitted minutes of a meeting on 20th October, 2009, whereby the Board wanted to make him “redundant” upon his return from sick leave and referred to the following statement “After an open discussion on the matter whereby various board members expressed their concerns and disgust with the behaviour of (the complainant) towards the management and board the following proposal (to make (the complainant) redundant) was put to the Board that a commercial decision is taken to make the position of administrator redundant”. The Complainant stated that such evidence provided further examples of victimisation.

The Complainant submitted that he was asked to attend for a medical appointment following his period of sick leave but was not told in advance that this appointment was with a Forensic Psychiatrist and that this was a further example of intimidating treatment of him by the Respondent. He noted that he was constantly referred to as “one of the girls” and that other named colleagues made derogatory comments about his attire and his manner.

The Complainant also submitted that he was aware from early on in his employment that there were unfounded and hurtful rumours being circulated in relation to a homosexual relationship between him and the treasurer and that over time, he began to feel isolated, humiliated and self-conscious.

The Respondent denied that there was a homophobic working environment or that any comments were made in respect of the Complainant’s sexual orientation.

Conclusions of the Equality Officer

Harassment Claim

The Equality Officer noted that harassment was a matter the Tribunal took very seriously but noted that the Complainant was happy to be referred to as a “lady” in the workplace and that he “positively encouraged” his colleagues to do so hence not accepting that the treatment of him had either the purpose or effect of harassing him in that context. The Tribunal noted that the Respondent should have dealt with the rumours that the Complainant was in a relationship with the treasurer but stated it was not satisfied that the Complainant found these rumours to be upsetting in any way and was not satisfied that they met the criteria for harassment.

The Tribunal noted that comments made, although not directly to the Complainant while he was still employed by the Respondent was sufficient for him to establish a prima facie case of harassment. The Equality Officer was satisfied that both the reference to suspending the Complainant’s pay and the reference to making him redundant were examples of adverse treatment of him.

Victimisation

The Equality Officer noted that the ‘investigation’ undertook by the Respondent was flawed from the beginning and that it did not make any real attempt to investigate the claims. Further correspondence from the Respondent to the Complainant in this regard stated “if these allegations are unfounded we may have to consider what next course of action to take” was a clear indication that the Respondent had already prejudged the outcome of the ‘investigation’ but it was a clear and unambiguous threat against the Complainant that was motivated by the fact that he had made a claim to the Tribunal. The issue of ownership of the Complainant’s laptop and the Respondent’s behaviour at the subsequent meeting was intimidating and threatening and ultimately was a further act of victimisation.

Summary

  • The Complainant failed to establish a prima facie case that the Respondent discriminated against him on the sexual orientation ground in terms of his conditions of employment.
  • The Respondent discriminated against the Complainant on the sexual orientation ground pursuant in terms of harassment.
  • The Respondent victimised the Complainant.

In conclusion the Equality Officer ordered the Respondent to pay to the Complainant the sum of €8,000 in respect of discrimination and €16,000 in respect of victimisation.

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