The claim relates to victimisation of the complainant by the respondent for previous allegations of harassment on the sexual orientation ground. The complainant described these earlier events and the respondent argued that the majority of the claim was based on out of time incidents.

The Equality Officer considered the earlier incidents and decided that various incidents “all established a link. I took the view that the burden of proof to demonstrate that these matters were not linked was too heavy and accordingly I allowed the linkage”.

The purpose of establishing this linkage is unclear as these earlier incidents do not appear to be included in the description of the claim at the outset of the Decision and no finding is made at the conclusion of the Decision as to whether harassment is or is not upheld. In other words the Equality Officer does not explicitly extend the basis of the complaint from victimisation to include harassment also.

The Equality Officer would have been entitled to consider them on an evidential basis to consider whether the complainant had complied with the normal test for victimisation (see below) by establishing that a protected act had occurred without establishing connections between the earlier incidents and the later ones or to make findings on those earlier findings. Such consideration is normally undertaken when time extension is requested in order to bring an older, apparently out of time, incident within time in order to reach a conclusion on it and make a finding.

Having said that, the Equality Officer considers the various earlier incidents and appears to reach conclusions. The cartoon incident, where a Simpsons cartoon was displayed on a colleague’s door is an example. The complainant stated that the cartoon was deeply offensive to him. The Equality Officer found that it was not anti-homosexual or directed at the complainant directly.

Once the complaint was raised the cartoon was removed and an apology issued to the complainant. The Equality Officer found that the respondent had a policy in place since 2003 and that this was clear and communicated to staff. He went on to find “An average episode of the series which is carried on almost all TV channels is potentially equally or more offensive to an individual who does not personally appreciate, on a wide variety of grounds, the style of humour it contains”.

However, it appears that the Equality Officer implicitly found that the respondent was entitled to rely on the defence of having measures in place to prevent the harassment. As mentioned above, no finding in respect of this or any of the other harassment matters is included at the close of the Decision. It is therefore unclear whether these are conclusions/findings or obiter comments.

Why this case is of interest:

* The cases normally relied upon in respect of victimisation and chains of incidents being in time are Barrett v Department of Justice EDA1017 and Hurley v Cork VEC. Normally the Hurley test requires that the last or most recent incident in time must be found to be discriminatory before the others are considered.

Full Case Decision:

https://www.workplacerelations.ie/en/Cases/2015/July/DEC-E2015-051.html