Labour Court Database __________________________________________________________________________________ File Number: EED9115 Case Number: EEO929 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY |
Section 27 of the Employment Equality Act, 1977 in respect of the dismissal of a worker.
Recommendation:
The Court, having heard the submissions of the parties and
considered the evidence of witnesses for the complainant and the
respondents, has concluded that the termination of employment
contravened section 3(4) of the Employment Equality Act, 1977.
The respondents had argued that the dismissal was based in part
on work performance and the Court considered the evidence
related to this argument.
The Court accepts that the complainant's performance was poor.
The incidents outlined together with the evidence of fellow
workers leads to the conclusion that the employment would
probably have ended within a short time.
It is a fact that the complainant was sent home as a form of
suspension, that he failed to pass on a letter to his parents
expressing the Employers concern about his work, and that he was
counselled by the F.A.S. representative.
However, whilst the respondent's Managing Director submitted
that he had cause to dismiss the complainant and had, considered
dismissal, he did not actually set upon that course of action
until other events overtook the situation.
In evidence, the Managing Director stated that prior to the
allegation surrounding this case being made on the 28th March,
1991, he had expected the complainant to be at work on the
following day. The Court concludes, therefore, that the
dismissal - at the time it occurred - was not performance
related.
The Court is satisfied that the dismissal of the complainant
arose because of the allegations he made through his parents to
the Managing Director on the 28th March, 1991.
In considering the allegations the Court has noted that the
complainant was introverted by nature, quiet, and had difficulty
in expressing himself to authority, be it parents or management.
He was unable to settle into a working atmosphere which was
deliberately open in style. The management fostered a working
pattern which was interactive and in which lines of authority
were deliberately softened. A certain amount of coarseness and
leg pulling was tolerated.
It is clear that the complainant was not able to cope with jokes
against himself and was highly embarrassed in such situations.
Unfortunately this signalled him out for more attention.
The Court is satisfied that the third-named respondent
participated in these jokes and, probably without realising the
consequences of her actions, subjected the complainant to
situations which discriminated against him.
In particular, the "sex survey" and threats to send him on
errands for condoms would point up the fact of discrimination.
No other employee was exposed to the joke "test" or threatened
in the same way.
Having regard to all the circumstances of the case, the Court is
satisfied that the complaint is well-founded and that the
complainant was discriminated against in contravention of
Section 3(4) of the Employment Equality Act, 1977 and that this
discrimination led to his parents' intervention and his
consequent dismissal from his employment.
The Court will therefore make an order directing the respondent
company to pay to the complainant the sum of £1,000
compensation.
Signed of behalf of the Labour Court
Evelyn Owens
22nd July, 1992 ____________________
A.O'S/M.H.
Deputy Chairman
Division: Ms Owens Mr Keogh Mr Devine
Text of Document__________________________________________________________________
EED9115 ORDER NO. EEO992
EMPLOYMENT EQUALITY ACT, 1977 SECTION 27
PARTIES: A COMPANY
(REPRESENTED BY SHANE MURPHY B.L. INSTRUCTED BY COLLINS, CROWLEY
& CO.
SOLICITORS
AND
A WORKER
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. Section 27 of the Employment Equality Act, 1977 in respect
of the dismissal of a worker.
BACKGROUND:
2. 1. The worker was employed as an apprentice graphic
reproducer with the Company from August, 1990 until his
employment terminated in March, 1991. The worker alleges
that during his employment he was sexually harassed by a
Company Director (name supplied to the Court). The
instances alleged included crude language, and offensive
comments and actions of a sexual nature. The worker claims
that these discriminatory working conditions were both
demeaning and distressing to him and ultimately resulted in
his dismissal.
2. 2. The Company denies the allegations and claims that the
worker was dismissed for his poor working performance.
2. 3. On 23rd September, 1991 the complaint was referred to
the Labour Court by the Employment Equality Agency on
behalf of the worker, under Section 27 of the Employment
Equality Act, 1977. The Labour Court investigated the
complaint on 2nd April, 1992. Written submissions were
presented to the Court on behalf of both the worker and the
Company. In the course of its investigation the Court also
heard the evidence of seven witnesses.
EVIDENCE:
3. 1. The worker gave evidence that throughout his
employment with the Company he was subjected to crude
language and offensive comments of a sexual nature.
Initially these incidences seemed to be part of the general
working environment and though the worker felt
uncomfortable he was willing to accept them as such.
However, the worker claims that from October , 1990 things
changed in that the behaviour and comments of the Director
became specifically directed towards him. He stated that
this behaviour greatly embarrassed him and that the
Director was aware of this, often even laughing at his
embarrassment.
The worker gave details of specific incidents which
occurred between October, 1990 and March, 1991. These
incidents included being asked by the Director to go to the
chemist for condoms or menstrual pads. He was also
subjected to a 'sex survey' by the Director in which she
asked him intimate and embarrassing questions (details
supplied to the Court). All these incidents created a
hostile and discriminatory working environment for the
worker.
2. The worker agreed that he met his FAS Training Adviser
on two occasions and that he never complained to him about
the alleged sexual harassment. The worker stated that he
was afraid to complain for fear of losing his job. He felt
that anything he said would be reported back to the
Company.
On 21st March, 1991 the worker received a letter from the
Company issuing him with a final warning (copy furnished to
the Court). He was requested to show this letter to his
parents but did not. Eventually on 26th March he showed
them and on the 28th his parents visited both the FAS
Training Adviser and the Company. On the evening of the
28th the worker's P45 and a letter terminating his
apprenticeship were delivered to his home. It is claimed
that the worker's dismissal was directly related to the
sexual harassment suffered by him and his parents
intervention.
3. Section 2(a) of the Employment Equality Act, 1977
states that for the purposes of the Act discrimination
shall be taken to occur.
"where by reason of his sex a person is treated less
favourably than a person of the other sex".
The worker was treated less favourably in his employment
than any female colleague was or would be treated. The
Company imposed less favourable conditions on the worker
finally culminating in his unfair dismissal.
COMPANY'S ARGUMENTS:
4. 1. The Company denies all allegations of sexual
harassment made by the worker. The worker was dismissed
because of his poor work performance. The worker was not
discriminated against in any way and the Company's
treatment of him was in no way less favourable than that of
other employees.
It was because of his poor performance that the Company
contacted the FAS Training Adviser in the hope that the
worker could be encouraged to improve. When no improvement
was made,the Company had no option but to terminate the
worker's employment. The dismissal was solely work related
and was in on way connected with allegations of sexual
harassment by the worker.
DETERMINATION:
The Court, having heard the submissions of the parties and
considered the evidence of witnesses for the complainant and the
respondents, has concluded that the termination of employment
contravened section 3(4) of the Employment Equality Act, 1977.
The respondents had argued that the dismissal was based in part
on work performance and the Court considered the evidence
related to this argument.
The Court accepts that the complainant's performance was poor.
The incidents outlined together with the evidence of fellow
workers leads to the conclusion that the employment would
probably have ended within a short time.
It is a fact that the complainant was sent home as a form of
suspension, that he failed to pass on a letter to his parents
expressing the Employers concern about his work, and that he was
counselled by the F.A.S. representative.
However, whilst the respondent's Managing Director submitted
that he had cause to dismiss the complainant and had, considered
dismissal, he did not actually set upon that course of action
until other events overtook the situation.
In evidence, the Managing Director stated that prior to the
allegation surrounding this case being made on the 28th March,
1991, he had expected the complainant to be at work on the
following day. The Court concludes, therefore, that the
dismissal - at the time it occurred - was not performance
related.
The Court is satisfied that the dismissal of the complainant
arose because of the allegations he made through his parents to
the Managing Director on the 28th March, 1991.
In considering the allegations the Court has noted that the
complainant was introverted by nature, quiet, and had difficulty
in expressing himself to authority, be it parents or management.
He was unable to settle into a working atmosphere which was
deliberately open in style. The management fostered a working
pattern which was interactive and in which lines of authority
were deliberately softened. A certain amount of coarseness and
leg pulling was tolerated.
It is clear that the complainant was not able to cope with jokes
against himself and was highly embarrassed in such situations.
Unfortunately this signalled him out for more attention.
The Court is satisfied that the third-named respondent
participated in these jokes and, probably without realising the
consequences of her actions, subjected the complainant to
situations which discriminated against him.
In particular, the "sex survey" and threats to send him on
errands for condoms would point up the fact of discrimination.
No other employee was exposed to the joke "test" or threatened
in the same way.
Having regard to all the circumstances of the case, the Court is
satisfied that the complaint is well-founded and that the
complainant was discriminated against in contravention of
Section 3(4) of the Employment Equality Act, 1977 and that this
discrimination led to his parents' intervention and his
consequent dismissal from his employment.
The Court will therefore make an order directing the respondent
company to pay to the complainant the sum of £1,000
compensation.
Signed of behalf of the Labour Court
Evelyn Owens
22nd July, 1992 ____________________
A.O'S/M.H.
Deputy Chairman