EMPLOYMENT EQUALITY ACT, 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 14/1996
P A R T I E S
(Represented by Fawsitt & Co., Solicitors)
(Represented by I.B.E.C.)
1.1 This dispute concerns a claim of sexual harassment of a
female employee by a male employee contrary to Section
2(a) of the Employment Equality Act, 1977. It is
alleged that, over a period of time, the female employee
was subjected to both physical and verbal sexual
2.1 This is a manufacturing Company with a total staff of 39
employees, 26 of whom are based full-time in
headquarters. The female employee (claimant) is the
Office Manager and reports directly to the Financial
Controller. The male employee is employed as the
Marketing and Sales Director in the Company.
2.2 Both employees are known to each other since 1980 when
they worked in another Company which ceased business in
File No. EE 17/1995
1982. At that stage the male employee was offered a job
in the present Company. He recommended the claimant to
the Managing Director and she was recruited to the
Company around the same time as the male employee. The
female employee says that from about August, 1991 the
male employee subjected her to physical and verbal
sexual harassment. She states that she gave the Company
a number of opportunities to deal with the situation and
the Company, who has no grievance procedure relating to
sexual harassment, failed to do anything about it. On
this basis the claimant, represented by Fawsitt &
Company Solicitors submitted a claim to the Labour Court
on 22nd June, 1994. The Labour Court then referred the
case to an Equality Officer for investigation and
2.3 Due to the nature of this case the parties expressed a
wish to remain anonymous in the interests of
confidentiality. Accordingly, I will not be referring
to the claimant or respondent by name. Hence, for the
purpose of this recommendation the claimant will be
referred to as either the claimant or the female
employee, the person alleged to have harassed will be
referred to as Mr. A and the respondent will be referred
to as the Company.
3. SUMMARY OF CLAIMANT'S CASE
3.1 The claimant states that she worked with Mr. A in the
Respondent Company since 5th April, 1989. She says that
Mr. A regularly made sexually suggestive remarks about
her body and her underwear and frequently touched her
body without any invitation to do so. According to the
claimant a serious incident occurred in August, 1991 but
there were no witnesses to it. She claims that since
then Mr. A has subjected her to both physical and verbal
sexual harassment and it usually took place in the
privacy of his office.
3.2 The claimant says that in February, 1993 she informed
the Company, through her immediate supervisor that Mr. A
was being abusive to her. Then in January, 1994 she
informed her immediate supervisor of the sexual nature
of the harassment to which she was being subjected. The
reaction of her immediate supervisor was that "there was
nothing that he could do, that she should try to make
the best of it and that Mr. A would never change". The
claimant made a further complaint to her immediate
supervisor on 21st April, 1994 but he repeated that
there was nothing that he could do.
3.3 The claimant contends that a man would not have been
subjected to the treatment to which she was subjected by
Mr. A. She further contends that she suffered serious
adverse consequences as a result of such treatment,
including depression for which she has received
counselling and continues to do so. According to the
claimant she was afforded less favourable treatment by
the Company than her male colleagues on the grounds of
3.4 The claimant says that the Company had no complaints or
grievance procedures relating to sexual harassment.
This made it difficult for her to bring the problem to
the attention of the Company. However, despite this the
Company had every opportunity of dealing with her
situation but failed to do so. On this basis the
claimant contends that the Company should be held liable
for the sexual harassment by the male employee (Mr. A)
to whom authority over her had been given. The claimant
further says that the harassment created a
discriminatory working environment for her with adverse
consequences for her health, happiness and general
3.5 The claimant states that she was subjected to continuous
physical and verbal sexual harassment from August, 1991
to June, 1994.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The Company states that the claimant is an Office
Manager and from a work perspective reports to the
Financial Controller. However, she has daily contact
with the Managing Director who is responsible for
reviewing her performance. The person against whom the
allegation is made, Mr. A is the Marketing and Sales
Director with 14 staff in this Division, two of whom are
4.2 Mr. A met the claimant in 1980 when he commenced
employment in another company which ceased business in
1982. Mr. A was then offered a job in the Respondent
Company. He recommended the claimant to the Managing
Director and she too was offered a job. Both commenced
work around the same time and they were both assigned to
the same Division in the Company. In 1984 they were
both transferred to different sectors in the same Unit.
The claimant was unhappy with her transfer and left the
Company only to return after a number of months.
According to the Company a good relationship existed
between Mr. A and the claimant. It was described as one
of "one-up-manship". The Company says that they both
tried to embarrass one another by playing various types
of jokes and tricks on the other forcing one party to
concede that the other party had scored. The Company
gave the Equality Officer a number of examples of
incidences to show the nature of the relationship
between Mr. A and the claimant.
4.3 The Company considers that the claimant has made four
specific allegations of sexual harassment against Mr. A.
It spoke to Mr. A about these allegations, all of which
are denied by him. According to the Company Mr. A said
that he never made sexually suggestive remarks about the
claimant's body or her underwear. He admitted that he
did comment on her clothing, but not her underwear.
These comments were made in the context of being
humorous and were made in the presence of other people
including customers. For example, Mr. A might make the
remark that the claimant was not dressed very well and
she would respond by saying that "the Company don't pay
me enough to dress well". According to the Company
everyone, including the claimant, would laugh at this
and the whole matter would be regarded as humorous and
not offensive. The Company says that, according to Mr.
A, he never touched the claimant's body without
invitation and the serious incident, which the claimant
alleges happened in August, 1991, did not happen.
Finally the Company states that Mr. A rejects the
allegation that he subjected the claimant to verbal
sexual harassment in the period from August, 1991 to
June, 1994. Any verbal comments of a sexual nature
which were made by him to the claimant were participated
in by both parties and at no stage did the claimant make
it clear that they were unwelcome.
4.4 The Company cites the case of the Health Board and BC
and the Labour Court in which Mr. Justice Costello used
a definition of sexual harassment as developed by the
European Commission which is as follows:
"Sexual harassment means unwanted conduct of a
sexual nature, or other conduct based on sex
affecting dignity of women and men at work. This
can include unwelcome physical, verbal or
"A range of behaviour may be considered to
constitute sexual harassment. The essential
characteristic of sexual harassment is that it is
unwanted by the recipient, that it is for each
individual to determine what behaviour is
acceptable to them and what they regard as
The Company also highlights a further point made by Mr.
Justice Costello in his decision in this case as
"an employer is vicariously liable where the act is
committed by his employee within the scope of his
4.5 Based on Mr. Justice Costello's judgement in this case
the Company says that Mr. A was not acting within the
scope of his employment even if the alleged incidences
had occurred. The Company says that some of the
allegations are by their nature criminal offenses in
which case a defendant is entitled to a trial by judge
and jury and the burden of proof is one of beyond all
4.6 The Company states that, as the alleged incidences are
denied by Mr. A, the onus of proof is on the claimant to
substantiate the allegations she has made against him.
The Company further argues that, even if the alleged
incidences had happened, it has no liability as Mr. A
was not acting within the scope of his employment.
4.7 The Company states that, prior to June, 1993, both Mr. A
and the claimant were managers in the Company. However,
they both worked in different Departments. Consequently
Mr. A was not in a position of power over the claimant.
In June, 1993 Mr. A was appointed a Director and in this
position had no authority over the claimant who reported
to the Financial Controller who in turn reported to the
Managing Director. On the basis of the foregoing the
Company says that the claimant is incorrect in saying
that Mr. A "was an employee to whom authority over the
claimant had been given".
4.8 The Company contends that the allegations of sexual
harassment against Mr. A are not supported by the
evidence it collected in the form of statements from a
number of employees and ex-employees of the Company.
These statements say that the claimant willingly partook
of all the jokes and tricks of a sexual nature over the
years. The Company also says that the claimant did not,
at any stage, make it clear to Mr. A that she found
these jokes and tricks offensive nor did she ask him to
cease such activity in her presence. The Company are of
the view that the claimant was as much a leader of these
comments and tricks as Mr. A.
4.9 The Company claims that the absence of precise details
from the claimant on the various allegations, despite
the fact that the Company asked for greater detail,
raises a serious doubt as to their occurrence.
4.10 The Company also says that when the claimant had a
grievance in the past (see Appendix A) she referred it
to the Managing Director and it was dealt with
immediately. The Company asks why these incidents of
sexual harassment had not been reported to the Managing
Director given that incidences of a less serious nature
were reported to him. Because these incidences were not
reported the Company says that this raises a doubt as to
whether they did in fact occur. The Company points out
that it is the Managing Director who reviews the
claimant's performance (not the Financial Controller)
thus affording her ample opportunity of reporting the
alleged incidences to him.
4.11 The Company states that, as the alleged behaviour of Mr.
A does not lie within the scope of his employment, it
has no liability in this case. Because of this the
Company asks the Equality Officer to reject the
claimant's allegations of sexual harassment or to rule
that the Company has no liability in this case.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The case referred to me for investigation by the Labour
Court was that since August, 1991 the Company
discriminated against the claimant in terms of Section
2(a) of the Employment Equality Act, 1977 and contrary
to Section 3 of that Act. In making my recommendation I
have taken into account all the submissions, both
written and oral, made to me by the parties.
5.2 In her initial submission the claimant made some very
general allegations of sexual harassment. In order to
respond to the allegations the Company asked that the
claimant be more specific about her allegations. While
the claimant did respond to this request she failed to
outline in detail the nature of the alleged incidents
and when they took place. The Company, in contrast,
made a very detailed submission giving examples of
incidents between the claimant and Mr. A which it claims
shows the nature of the relationship between the two
persons. The Company described the relationship between
the claimant and Mr. A as one of "one-up-manship",
embarrassing one another by playing various jokes and
forcing one party to concede that the other had scored.
The Company also gave examples of disputes which arose
over work and which would result in temporary cessations
of the banter between the claimant and Mr. A, although
communications on a work level did continue. The
Company said that Mr. A denied the allegations.
5.3 At the first joint hearing in this case the claimant
outlined in greater detail the alleged incidents of
sexual harassment. However, she could not say when
these incidents occurred. She did, however, say that
she had entered codes into her work diary and that she
had written out a detailed account of the incident when
she went home. The claimant was not in a position to
present this information at the hearing. The Company
defended its position and said that Mr. A denied the
allegations. It also argued that it was not vicariously
liable given that Mr. A was not in a position of
authority over the claimant.
5.4 Prior to the second joint hearing the claimant submitted
a photocopy of written notes which she claims were
maintained at the time the alleged incidents had taken
place. The written notes failed to describe any of the
alleged incidents of sexual harassment as had been
described by the claimant at the first hearing. She
gave a detailed account of an incident in February, 1993
outlining a disagreement between herself and Mr. A about
work and she claims that Mr. A called her "a cheat and a
liar". She also briefly mentioned a serious incident
which she said had taken place in August, 1991, but it
was clear that this was not a contemporaneous note.
5.5 At the second joint hearing of this case the claimant
presented her work diary. She only had her 1991 work
diary as she was unable to locate her work diaries for
subsequent years. Three dates were marked with an "X"
in the diary and there were no written notes against
these dates. At the hearing the claimant outlined the
significance of these dates as follows:
30th August, 1991 - The alleged serious
incident took place;
9th September, 1991 - Mr. A returned to the
office following a week's
10th September, 1991 - A dispute arose over work
resulting in Mr. A calling
the claimant a "liar".
The numbers 9, 10 and 11 were also marked in the diary.
The claimant was very vague as to the significance of
these numbers. I was told that they possibly denoted
the number of weeks that Mr. A and the claimant had not
5.6 The claimant also said that she was subjected to working
in a hostile environment and this was in breach of her
contract of employment. The Company accepted that there
is an onus on it to provide a workplace free from
harassment. However, it argued that it must first be
proved that the claimant was sexually harassed before
the issue of a workplace free from harassment becomes
5.7 The evidence presented by both parties contained serious
conflicts regarding the facts for example:
- The Company mentioned that the claimant's fortieth
Birthday party was in 1989; but, according to the
claimant, it was in 1990.
- The Company said that the claimant produced a milk
jug in the shape of a woman's breast at the 40th
birthday party whereas a witness for the claimant
argued that he found the milk jug.
- The Company said that Mr. A would sit in a seat
behind the claimant while she was working on the
computer and he would hold her and say that they
were both travelling forward into the future. The
Company also said that this happened in the
Financial Controller's office when the Financial
Controller was present. The claimant denied that
this happened and the Financial Controller said
that he never saw this happening.
- At the first hearing the claimant described a row
between herself and Mr. A relating to work which
happened in September, 1993. When asked about it
again at the second hearing the claimant denied
that a row had taken place in September, 1993.
- At the first hearing the claimant said that the
first person she confided in about the sexual
harassment was her friend, then she told the
Financial Controller and then she told the Doctor.
At the second hearing she said that she told the
Financial Controller first, her friend next and
then the doctor. The claimant said that, when she
told her friend of the sexual harassment, her
friend advised her to seek professional help. The
friend, in a statement she submitted, said that she
advised the claimant to report the incident to her
superiors at work.
- The Company, in its submission, referred to an
incident which happened in March, 1993. At the
first hearing the claimant said that this could not
have happened as she and Mr. A were not on speaking
terms following a row in February, 1993. However,
at the second hearing the claimant said that Mr. A
and herself had not been speaking for one day as a
result of the row in February, 1993.
- The claimant said that Mr. A subjected her to
physical sexual harassment and at the hearings she
said that these incidents happened in the privacy
of either his or her office. I note that, in her
submission, the claimant said that these incidents
usually happened in Mr. A's office. However, when
describing the incidents the claimant indicated
that they all happened in her office.
5.8 A number of the incidents described by the claimant
related to rows between herself and Mr. A regarding work
and the claimant alleged that Mr. A called her "a cheat
and a liar". The claimant argues that this was verbal
sexual harassment given the nature of the serious
incident in August, 1991. I note that Mr. A denies ever
calling the claimant "a cheat and a liar". However,
even if Mr. A did call the claimant "a cheat and a liar"
I fail to see how this can be described as verbal sexual
5.9 In the records that the claimant kept she outlined in
detail the events surrounding the incident on 24th
February, 1993. She mentioned that a colleague was
waiting for her while a row was in progress with Mr. A.
This colleague attended the second hearing and said that
he could not recall the incident. I am, however,
satisfied that an incident did take place because the
Financial Controller indicated that the claimant's
record of his role in the incident was accurate. This
incident arose through work and had no sexual
connotation to it at all. The claimant was upset
because, as she said herself, Mr. A had questioned her
integrity. I am, therefore, satisfied that the incident
in itself is not relevant to the alleged claim of sexual
5.10 Because of all this conflicting evidence it is
impossible to say that these alleged incidents did or
did not occur. In my opinion the claimant has failed to
substantiate the allegations that she has made against
Mr. A. Her records of alleged incidents were poor with
a work-related incident as opposed to an incident of a
sexual nature being described in full.
5.11 As I have found that the claimant has been unable to
support her contention that she was sexually harassed
the issue of vicarious liability is no longer relevant
to this case and therefore need not be examined.
5.12 I note that the claimant said that she told the
Financial Controller about the sexual harassment in
January, 1994 and again in April, 1994. The Financial
Controller said that the claimant had not lodged a
formal complaint to him about having been sexually
harassed by Mr. A but it had come up in the course of a
conversation with the claimant at a time when she
appeared to be very troubled. He said that his
recollection was that this conversation had taken place
before Christmas 1993. However as he was not sure he
said that he would not dispute the date of January, 1994
given by the claimant. The Financial Controller said
that he felt that the claimant had told him about the
sexual harassment in confidence and as she had not asked
him to do anything about it he felt that he was not in a
position to pursue the matter. I consider that the
manner in which the Financial Controller became aware of
the alleged sexual harassment is irrelevant. The fact
is that he was aware of the allegation. He was the
claimant's boss and he held a senior position in the
Company. He should have brought it to the attention of
the Managing Director who could have undertaken an
5.13 I note that the Company had no sexual harassment
complaints procedure. However I consider that had such
a procedure existed, the allegation would have been
investigated and possibly dealt with satisfactorily
without recourse to the present action. I recommend
that the Company puts in place a sexual harassment
complaints procedure in accordance with the Employment
Equality Agency's Code of Practice.
6.1 Based on the foregoing I find that the Company did not
discriminate against the claimant contrary to the
provisions of the Employment Equality Act, 1977.
10th July, 1996
Details of Grievances
brought to the attention of the
In September 1993, a dispute arose over work and Mr. A
referred to the claimant at a business meeting as having
"a convenient memory". She immediately reported the
episode to the Managing Director, who, having
investigated the complaint, ordered Mr. A to apologise
to the claimant.
The previous relationship between the claimant and Mr. A
resumed but was not as good as it had been before.
Another disagreement occurred at a business meeting in
October 1993. This disagreement was heated and Mr. A
made the comment
"here comes the convenient memory again".
The claimant was upset and in fact cried at the meeting.
Again, the claimant referred the matter to the Managing
Director who ordered Mr. A to apologise to the claimant
for this second incident. Again, Mr. A apologised.
After this disagreement the friendship between Mr. A and
the claimant ceased. There was no longer any banter
between them although they did have contact through