Background

The Complainant in A Worker v A Charity  commenced employment with the Charity in question (the “Respondent”) in May 2016. The Complainant is of Jewish faith and alleged that the CEO of the Respondent, together with a number of other colleagues, made anti-Semitic remarks towards her on numerous occasions in 2019. The Complainant also alleges that she was victimised when her engagement with the Respondent was terminated after she made a complaint with the Workplace Relations Commission (the “WRC”).

Anonymisation

At the outset, the parties were advised of the recent Supreme Court case Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021][1]. The Respondent’s representative requested that the names of each party be anonymised given the sensitivity of the allegations raised. Both parties provided written submissions in this regard, following which the Adjudication Officer (the “AO”) indicated that he intended to anonymise the parties’ names, despite the Complainant’s request to publicise same. 

The Complainant’s case 

The Complainant commenced employment with the Respondent in 2016 under a fixed term contract and thereafter, under a series of further fixed term contracts. The Complainant alleges that on 11 and 18 April 2019 she was subjected to degrading, humiliating and offensive behaviour which impacted negatively on her health, causing her to take certified sick leave. On 15 July 2019, the Complainant made a formal Complaint to the Respondent. An independent investigation was carried out by a barrister instructed by the Respondent. The investigation report was issued in November 2020 which did not uphold the allegations made by the Complainant. The Complainant appealed the decision. The appeal was conducted by members of the Respondent’s Board of Directors. The Appeal upheld the findings of the independent investigator.

The Complainant asserted to the WRC that the independent investigator failed to demonstrate sufficient knowledge of antisemitism and that she did not agree with her analysis of same. The investigator declined her requests to clarify the basis for her understanding of antisemitism. The Complainant argues that an objective standard should have been applied.

The Respondent’s case

The Respondent maintains that it is committed to equality and diversity in the workplace and is an equal. The Respondent asserted that an exhaustive investigation was thoroughly conducted by the independent investigator and that the Complainant was also given the opportunity to appeal the findings of the investigator.

The Respondent also stated that the complainant failed to establish the requisite legal nexus between the alleged less favourable treatment and her religion. It further stated that the Complainant’s case rests on speculation and unsupported assertion, a submission which is entirely consistent with the position as found in the Investigation Report.

The Respondent refuted the allegation of victimisation relating to the termination of the Complainant’s employment. The Respondent stated that if anything, the Complainant was treated more favourably by being provided with a lengthy redundancy consultation of nine weeks as compared to the standard four weeks set out in the staff handbook. The Complainant was also afforded right to appeal against the decision to terminate her employment by reason of redundancy.

Proving a prima facie case

In an employment equality case, the Complainant bears burden of proving a prima facie case of discrimination. The Complainant requested that the AO re-examine the investigation to assess whether or not the findings of the Investigator were valid.

The AO commented that the independent investigator was a renowned barrister and that she is an expert in employment law. The AO noted that the Complainant was given an opportunity following the completion of the draft report, but before the finalised report was released, to explain to the investigator why she did not agree with her analysis of antisemitism and challenge her alleged lack of knowledge of the issue.

The AO was satisfied that the terms of reference were adhered to and that the investigator was guided by and applied the appropriate definitions of discrimination and harassment in her consideration of the allegations. The AO upheld the findings of the investigator in full.

Continuum of discrimination 

Complainant highlighted that CEO of the Respondent made a remark in her presence which she considered to be anti-Semitic, but that it was

• outside of the terms of reference of investigation;
• she had not raised it in her formal complaint; and
• it happened more than 6 months before the complaint was made.

However, the complainant asserted that it should be investigated by the WRC in the context of this complaint as it could be considered as part of a continuum of the discrimination that she was subjected to and was indicative of the anti-Semitic culture of the Respondent.

The AO referred to the Labour Court decision in Cork County VEC v Hurley (EDA 24/2011) which stated that a discriminatory act had to have occurred within the cognisable period so that any event occurring outside of that period could be considered as part of a continuum or regime of discrimination and consequently, would fall within the jurisdiction of the Court under the Act. The AO was of the opinion that this allegation was warranted in the investigation for the purposes of completeness, given the serious nature of it and the fact that it was not addressed previously.

The Complainant alleged that the Respondent said in very annoyed and derogatory tone in her presence that he had been bumped off the panel of a radio show because they “wanted a Jew.” This was emphatically denied by the CEO in evidence who stated that he never made such a comment. He further stated that it was not unusual for him to be bumped off a radio panel for a wide variety of reasons. The CEO highlighted that in the Terms of Reference, any appeal of the Investigator’s findings were to be conducted by him and that the Complainant did not object to this at any point before, during or after the investigation or appeal process. It should be noted that the CEO ultimately did not conduct the appeal as he gave evidence during the investigation.

The AO found it incomprehensible that the Complainant did not object to him conducting the appeal if he had indeed made the aforementioned antisemitic remark. The AO found on the balance of probabilities and having considered the above, that the CEO did not make the remark.

Findings 

The AO found that the Complainant did not establish a prima facie case of discrimination and was therefore not discriminated against.

The AO further found that the Complainant was subjected to adverse treatment by the Respondent when they failed to renew her fixed term contract following its expiry on 31 December 2019, given her uncontradicted evidence that was she was informed in early 2019 by her line manager that it would be renewed. However, the AO found that the failure to renew her contract was solely attributable to the conclusion of work she had been employed by the Respondent to do and was not in reaction to the complaint made by the Complainant to the WRC in 2019.

Key Takeaways for Employers

Whilst the employers in this case were successful, it is a useful reminder that employers ought to take claims of discrimination in the workplace seriously. To cast a blind eye in such instances could lead to a negative workplace culture and leave the employer vulnerable to an employment equality claim. Employer should act proactively in not only reviewing and updating its policies and procedures in this regard, but also in providing training to staff on preventative measures which can be implemented to create an all-inclusive and accepting work environment for all staff.

Employers should also consider Zalewski decision and be aware that party names may not always be anonymised.

For further information on any of the above points, or assistance in drafting or updating policies and procedures, please contact Bláthnaid Evans or Marianne Norton of our Employment and Corporate Immigration team on 01 639 3000.

[1] Read our article on the Zalewski case here.