Labour Court Database
File Number: EED915
Case Number: EEO928
Section / Act: S27EE
Parties: A COMPANY - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY
A dispute in relation to alleged discrimination against the worker in terms of Section 2(a) and constructive dismissal of the worker in contravention of Sections 3(1) and 3(4) of the Employment Equality Act, 1977.
The full Determination document is not available in the Add Field
Division: Ms Owens Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
EED915 DETERMINATION NO. EEO892
EMPLOYMENT EQUALITY ACT, 1977
PARTIES: A COMPANY
(REPRESENTED BY ERCUS STEWART S.C. INSTRUCTED BY
WHITNEY, MOORE AND KELLER, SOLICITORS)
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
1. A dispute in relation to alleged discrimination against the
worker in terms of Section 2(a) and constructive dismissal of the
worker in contravention of Sections 3(1) and 3(4) of the
Employment Equality Act, 1977.
2. The worker concerned commenced employment with the Company on
the 17th October, 1990 as secretary to the financial director.
Her starting salary was £190 p.w. She ceased employment with the
Company on the 2nd January, 1991. She claims that during her
period of employment she was sexually harassed by the financial
director. The worker further claims that she was forced to resign
from her employment because of sexual harassment.
3. The employer rejected the allegations of sexual harassment and
4. On the 28th June, 1991 the Agency on behalf of the worker
referred the complaint to the Labour Court under Section 27 of the
Employment Equality Act, 1977. The Court investigated the
complaint at hearings held on the 24th October, 1991 and the 21st
November, 1991 during the course of which submissions were read
and evidence, including oral evidence, was presented on behalf of
both the respondent and the claimant.
4. 1. From the commencement of the claimant's employment she
found the financial director to be unduly familiar with her:
this made her feel uncomfortable with him. It is alleged
that his physical familiarity was particularly upsetting. On
Thursday 15th November, 1990 the claimant was working at a
computer when the financial director walked behind her and
began rubbing her shoulders. He then placed his hands around
her breasts. She was shocked and upset; she left the office.
She explained what had happened to two other employees of the
Company and also to her family and a friend. The following
day November, 16th 1990 the claimant spoke to the financial
director and made it clear that she found his behaviour
unacceptable. He stated that it would not happen again.
2. From this point on the claimant's working environment
deteriorated further. The financial director constantly
complained about the claimant's work (details supplied to the
Court). He was aggressive towards her and frequently shouted
at her. Subsequently the claimant began to feel unwell,
experiencing headaches, tiredness and depression. She
attended her doctor and spoke to him about the sexual
harassment she had experienced in her employment. She
attended a specialist regarding the headaches and high blood
pressure in December, 1990. When she was reviewed by him in
January, 1991, at which time she was no longer working for the
Company, her blood pressure had fallen significantly.
3. Following discussions with her family and friends over the
Christmas holiday period the claimant decided that, given the
nature of her work environment and the effect she felt it was
having on her mental and physical health, she could no longer
continue in her employment with the Company. She submitted
her resignation by letter dated 2nd January, 1991, stating
that she found it impossible to continue working for the
Company given the pressure she was under from the financial
4. Section 2(a) states that for the purposes of the 1977 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".
It is submitted that the financial director did not and would
not treat a man in the same way that he allegedly treated the
claimant. No male member of staff was subjected to the
alleged abusive treatment; no man was placed in the difficult
position of having to deal with this inappropriate behaviour;
no man had to face the consequences of a negative response to
this behaviour. Thus the claimant was treated less favourably
than a man.
5. It is submitted that the discrimination outlined above
constituted a contravention of Sections 3(1) and 3(4) of the
1977 Act. The claimant was subjected to abusive working
conditions and this discriminatory treatment of her ultimately
resulted in her constructive dismissal from the employment.
During the period she worked for the Company she found the
attitude of the financial director and, consequently, her
working environment, humiliating, intimidating and demeaning.
It is submitted that the culmination of the claimants less
favourable treatment was her constructive dismissal on 2nd
6. The Agency, on behalf of the claimant, is seeking the
1. an unreserved apology from the respondent to the
2. the payment to the claimant of such compensation as the
Court considers reasonable in respect of her
discriminatory dismissal and consequent loss of earnings
and career opportunity,
3. the award of a sum of money to the claimant in respect
of the humiliation, anxiety and distress caused by the
alleged behaviour, by the offensive working environment
in which she worked, and her discriminatory dismissal.
6. 1. In late October, 1990 the claimant stated to the financial
director that she did not like him to touch her as she had a
problem with a previous employer and had to leave her job.
The respondent did not understand what she was talking about
and on requesting an explanation it appeared that during work
the previous day he may have placed his hand on her shoulder,
but at no stage did he place his hand on any other part of her
anatomy. He apologised to the claimant for any
misunderstanding which had arisen in her mind. He does not
accept that at any stage he did anything improper. In his
dealings with her he was most sympathetic. From that time
onward he did not come into physical contact of any
description with the claimant. He gave her every help and
encouragement to become an efficient secretary. Her working
conditions did not deteriorate in any way.
2. After approximately three weeks in employment, the
claimant stated to the office manager that she did not like
her duties and did not think that she would stay long with the
Company. Subsequently she appeared not to be getting on with
other members of staff and her work deteriorated. During
December she began to miss days off work due to illness. She
did not explain what the problem was. She did not say at any
stage that anything or anybody at work was responsible for her
condition. Prior to the Christmas break she confided in the
office manager that she did not like her job and would be
interested in another job on the continent.
3. Each year the Company hosts a Christmas Party for all
staff members their spouses and partners. This was held on
Friday 21st December, 1990. This was the last working day in
the firm before Christmas. It is alleged bythe Company that
it was an incident which occurred following the party which
led to her terminating her employment.
The Company re-opened on 2nd January, 1991 the day the
claimant resigned without any prior notice. On that morning
the claimant made her first and only complaint of sexual
harassment regarding the financial director. She further
claimed that on numerous occasions he informed her that she
was not as efficient as his previous secretary and she found
this off-putting, leading to a deterioration in her work
performance. She was asked had she any other complaints and
she replied that she had none.
4. The Managing Director contacted the financial director who
was in London and informed him of the complaint made by the
claimant. He denied what had been alleged. Before any
further investigation was possible the claimant stated that
having considered the situation she had come to the conclusion
that she was left with no alternative but to tender her
resignation to the Company effective Friday 4th January, 1991
and she handed her resignation to the Managing Director. It
was agreed that she would leave immediately and be paid up to
date of expiry of her notice. Subsequently the claimant
called to a colleague's office and said that she had handed in
her notice with immediate effect and asked her to say goodbye
to the other girls in the office as she was unable to face
them. This message was passed on to them and the claimant was
wished the very best for the future.
5. The Company denies that the worker was sexually harassed
by the financial director. Her working conditions did not
deteriorate and she was not forced to resign from her
employment as a result of alleged sexual harassment or as a
result of a deterioration in her working conditions. She
resigned voluntarily. Her resignation was not requested by
the employer or by any person acting on its behalf. The
claimant has no cause of action or valid complaint against her
7. The Court, investigating this complaint was asked to consider
and decide two issues, (i) whether the complainant was subjected
to sexual harassment in the course of her employment, and (ii)
whether she could be held to have been constructively dismissed as
a result of that harassment.
Insofar as the first element of the claim is concerned, the Court
had regard to the written and oral evidence put forward at the
hearings and to its own declared policy in relation to sexual
harassment within the context of the Employment Equality Act,
1977, as stated in EE0/2/85.
"Freedom from sexual harassment is a condition of work which
an employee of either sex is entitled to expect. The Court
will accordingly treat any denial of that freedom as
discrimination within the terms of the Employment Equality
The complainant's allegations are as follows:- (1) an
over-familiarity by a superior (the Company is the Respondent)
towards the complainant from the commencement of her employment
(2) one specific incident of physical sexual harassment, and (3)
subsequent hostility on the part of the superior towards the
complainant in relation to her work. It was a combination of all
three allegations which, she claims, left her with no alternative
but to terminate her employment.
The main issue to be decided is whether the behaviour of the
respondent amounted to what is broadly accepted as answering a
definition of sexual harassment - persistent or repeated physical
or verbal advances of a sexual nature which are unwanted,
unsolicited and unreciprocated.
In considering the allegation of over-familiarity the Court has
had regard to the various comments stated to have been made by the
superior to the complainant, commencing with a reference to a
particular perfume on the day of her interview. Likewise, it had
regard to the content of conversations between the parties and in
particular to questions which the superior is said to have asked
in relation to matters divorced from work. The Court did not find
any element of sexual connotation in what was alleged. It may
well be that the claimant felt uncomfortable as a result of
certain comments/conversations; some people might indeed feel
uncomfortable, while others might well feel no discomfort
whatsoever. The Court in this instance is satisfied that the
perceived over-familiarity could not be interpreted as a
fore-runner or build-up to the incident which is the subject of
the complainant's principal allegations.
The only serious allegation is of one incident of physical sexual
harassment. The facts relating to this incident were dealt with
in the respective submissions as follows:
Claimant: "On Thursday 15th November, 1990, the claimant was
working at a computer in Mr...... office when he walked behind her
and began rubbing her shoulders: he then put his hands around her
"(The claimant) spoke to Mr...... the following day, Friday 16th
November; she made it clear to him that she found his behaviour
Respondent: "In late October, 1990, she stated to Mr..... that
she did not like him to touch her.... Mr....... did not know what
she was talking about and asked her what she meant. It appears
that during the previous day he might have placed his hand on her
shoulder, but it is quite clear that at no time did he place his
hand on any other part of her anatomy. He listened to what she
had to say and apologised if there had been any misunderstanding
which had arisen in her mind".
While there is a disparity in the above dates it appears to the
Court that this point is of minor importance in relation to the
established facts - an incident occurred on one day and on the
following day the claimant expressed her attitude regarding it to
The Court noted that up to and during the hearing the superior,
while acknowledging that the claimant had approached him regarding
the incident, contested the allegation that he had behaved
improperly or in the manner described by the complainant.
Likewise, the Court also noted that the complainant admitted that
following her speaking to her superior no further approaches of a
similar nature occurred. She did however state that she continued
to suffer "mental torture".
Having regard to all the evidence concerning this allegation, the
Court is not satisfied that the complainant was sexually harassed,
and finds the claim unsustainable. It appears to the Court, if it
accepts that physical contact was made, and on balance it is
inclined towards acceptance, that it was without sexual
Even if there had been an element of sexual innuendo in the
contact, whether intentional or accidental, it was common case
that the subsequent understanding reached between the parties in
relation to the incident, which amounted to an undertaking, was
The Court then examined the allegation that the complainant's
conditions of employment deteriorated after the incident of
physical contact. On the evidence submitted the Court is not
satisfied that the conditions were such as to sustain a claim for
The Court therefore finds no grounds upon which it could uphold a
claim of sexual harassment as interpreted by it within the meaning
of the Employment Equality Act, 1977.
In conclusion the Court finds that there was no contravention of
Sections 3(1) and 3(4) of the Act of 1977 and that the complainant
was not dismissed from her employment.
The full Determination document is not available in the Add Field
Signed on behalf of the Labour Court
22nd May, 1992. Deputy Chairman.