SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
A BOYS' SECONDARY SCHOOL
(REPRESENTED BY ARTHUR O'HAGAN SOLICITORS)
- AND -
TWO FEMALE TEACHERS
(REPRESENTED BY BCM HANBY WALLACE)
THE EQUALITY AUTHORITY
(REPRESENTED BY O'MARA GERAGHTY MC COURT)
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Appeal against Equality Officer's Recommendation DEC - E - 2001/5
2. The workers/claimants claim that they were subjected to sexual harassment by pupils in the College over a protracted period of time. They claim that they complained of the harassment to the Board of Management of the College but that it failed to take any action to protect them. The Board rejects the claim. The workers referred their cases to the Labour Court in April and July, 1998 respectively and the Court referred the cases to the an Equality Officer for investigation. The Equality Officer issued recommendation DEC - E - 2001/05 in January 2001. The full background to the case is contained in it. The Equality Officer found "that the Respondent did not discriminate against the Claimants on the basis of their sex in terms of Section 2(a) and in contravention of the provisions of Section 3 of the Employment Equality Act, 1977," but found "that the Respondent did discriminate against the Claimants in terms of Section 2(d) and in contravention of the provisions of Section 3 of the Employment Equality Act, 1977." The first named worker was awarded £7,000, (euro 8,888.17) and the second named worker £12,000 (euro 15,236.86).
The Board appealed the recommendation to the Labour Court on the 9th of March, 2001, in accordance with Section 21 of the Employment Equality Act, 1977, on the following grounds:
"That the Equality Officer erred in fact and in law in finding that the Appellant discriminated against the respondents in terms of Section 2(d) and in contravention of the provisions of Section 3 of the Employment Equality Act, 1977. " Labour Court hearings took place on the 29th of June, and the 20th and 21st of September, 2001. The following is the Court's determination:
The first named claimant is a Remedial and Irish Teacher and the second named claimant is a Teacher of Religion. The respondents are the Principal and Board of Management of a boys' secondary school. It is the claimants’ case that they were discriminated against in terms of Section 2 and contrary to Section 3 of the Employment Equality Act 1977 (The Act) by being subjected to sexual harassment in the course of their employment by students at the respondent’s school. They claim that the respondents are vicariously liable for the harassment. In the alternative they claim that the respondents are directly liable by reason of having failed to prevent the harassment from taking place.
Itisfurther alleged by the claimants that they were penalised by the respondentswithin the meaning of Section 2(d) of the Actfor having sought to prevent the harassment and for having taken the proceedings herein.
The third complainant is the Equality Authority, formally the Employment Equality Agency (the Authority). The Authority referred a complaint pursuant to Section 20(a) of the Act, alleging that discrimination is being generally practised against persons at the school.
The respondents contend that as a matter of law they cannot be vicariously liable for the alleged wrongful acts of the students. They further contend that they acted appropriately in response to any complaints made by the claimants and are not liable for any harassment suffered bythem.The respondents also deny thattheypenalised the claimants in any way.
With regard to the Authority’s complaint, the respondents deny that they allowed discrimination to be practised. They also contend that in the circumstances of this case the Authority does not have standing to bring the complaint.
All of the complaints herein were investigated together by an Equality Officer. In his Recommendation, the Equality Officer found that the respondents were not liable for the sexual harassment suffered by the claimants. He did find that the respondents had penalised the claimants for taking these proceedings and recommended that the first named claimant be paid compensation in the amount of £7,000 (euro 8,888.17) and the second named claimant be paid £12,000 (euro 15,236.86).
The Equality Officer found that the Authority’s claim was not well founded
The first named claimant appealed for a declaration that the Recommendation of the Equality Officer had not been implemented. The second named claimant appealed against so much of the Equality Officer's Recommendation as found that the respondents were not liable for the sexual harassment to which she was subjected. The respondents appealed against so much of the Recommendation as found them liable for penalisation. The Authority appealed against the finding that their complaint was not well founded.
The Court investigated all of the complaints in the original application de novo.
Complaint of Sexual Harassment.
The claimants contend that various incidents involving sexual harassment of teachers by students occurred from 1996 onwards. The first incident referred to involved a student being particularly abusive to the second named claimant in a sexually inappropriate fashion on a number of occasions in September, 1996. It is also alleged that the student would stand up close to the second named claimant in the corridors. She reported this to the Principal using the standard form for complaints involving serious breaches of discipline ("the blue form"). The School Principal claimed that the complaint recorded on the blue form had no sexual connotations and related only to an incident on 26th September, 1996.
A further serious incident occurred on 29th September, 1996, when a student gave the second named claimant a page containing sexually explicit written material. This incident was investigated and dealt with by the respondent with the result that the student in question was required to transfer to another school.
On 18th December, 1996, there was a further incident. On that occasion, a page containing numerous sexually offensive and explicit references was included in a Religion test answer paper given to the second named claimant. This incident was reported using the blue form. An investigation ensued but the Principal concluded that no disciplinary action should be taken since the offending student could not be positively identified.
A further incident occurred in January, 1997, which appeared less serious, in which a student, alleged to have been involved in the 18th December incident, made a comment to the second named claimant in relation to what had been written in the offending document. This was again reported but no action was taken.
The problem reoccurred in the on 29th September, 1997. On that date, a student made a sexually offensive remark to the second named claimant. She reported this to the Principal using the blue form. This incident was investigated and dealt with by the School Principal and the student in question was required to transfer to another school.
On 8th October, 1997, an incident occurred in whichasticker was attached to the first named claimant’s back and on which an expression of anexplicitsexual nature had been written. This was also reported on the blue form. Again the matter was investigated and a sanction imposed on the student responsible. This consisted of a period of suspension, part of which ran concurrently with the school's mid term break.
Apart from completing the blue form, the first named claimant wrote to the School Principalin his capacity as Secretary of the Board of Management, by letter dated 20th October, 1997, setting out a detailed account of the offending incident. At that time the Board was due to consider the questionof asanction against the students responsible, and the first named claimant asked that her letter be brought to the attention of the Board. The first named claimant concluded her letter in the following terms:
- "I am very concerned about this matter as this form of sexual intimidation is slowly creeping into the school where female teachers are concerned. I am also aware that it is not the first incident of gross misconduct towards female members of the teaching staff"
On 19th November, another incident occurred in which a student is alleged to have made a sexually explicit remark to a female teacher who is not party to these proceedings. This incident was reported using the blue form procedure and the matter was investigated. The Principal sent for the student’s father to discuss the matter and, it is claimed, the matter was resolved as a misunderstanding on the part of the teacher.
On an unspecified date in November, 1997, thesecondnamed claimant was subjected to crude remarks of a sexual nature by an unidentified student. The second named claimant again used the blue form procedure to report this incident. It is accepted that the school’s Disciplinary Committee refused to accept this complaint because the claimant was unable to identify the student who made the offending comment.
On 7th December, 1997, the Board of Management replied to the letter of the School Steward of the 15th November 1997. In the first of two letters the Board of Management said that it wished to express its disappointmentatthestaff’sdissatisfactionwiththe disciplinary action taken in response to the first named claimants claim of sexual harassment. It went on to say that the decision had not been taken lightly and would not be revisited.
In its second letter, the Board of Management dealt with the request for a meeting between it and staff representatives to discuss matters relating to the sexual harassment of staff by students. The Board replied as follows:
- "In order that the Board be in a position to fully address the issues raised in your letter, you are requested to furnish full details relating to same
When the facts are established, the Board will consider the possibility of a meeting to discuss the broad question of discipline in the school".
Following on from this correspondence, the matter was referred to the teacher’s Trade Union, the ASTI. The Assistant General Secretary of the Union then wrote to the School Principal advising that he would be meeting with the staff of the school to discuss the Board's response to the School Steward's letter. This meeting was held on 11th December 1997.
In the interim, the first named claimant had contacted the then Employment Equality Agency for advice and this had become known to the School Principal. On that account he wrote to the ASTI advising that no further discussion should take place in relation to the incident involving the first named claimant. However, the meeting of staff proceeded and discussed the experience of the first named claimant. At this meeting, two other teachers, including the second named claimant, indicated that they had also experienced incidents of alleged sexual harassment by students. The School Principal attended this meeting as a member of the Union.
Following this meeting, the Assistant General Secretary of the Union formally asked the Principal for a meeting with the Board to discuss the issue of sexual harassment at the school. No such meeting was arranged and on 22nd January, 1998, the Assistant General Secretary again wrote to the Board requesting a meeting to discuss to discuss the issue of sexual harassment. In this letter the Union Official stated the view of some female members of staff that a culture existed amongst students of the school which resulted in numerous incidents of sexual harassment of teachers.
This letter detailed the type of behaviour complained of and went on to state as follows:
- "In view of the serious nature of these incidents and the Boards responsibility to protect its employees from harassment of the nature described, I wish to formally request that the Board would meet with the School Steward and me. I will at that meeting offer more specific information on the nature of the incidents described above. The Purpose of the meeting would be to place on the record with the Board the distress being experienced by some employees of the Board because of sexual harassment they have experienced; to identify the role of the Board in regard to this matter and to explore options open to the Board and staff to ensure a safe working environment for all teachers".
The Board replied to this letter on 2nd March, 1998, stating that the request for a meeting with the Board was prematuresincethe School Steward had not provided details of the matters complained of in her letter of 15th November, 1997. The Board went on toadvisethat the School Steward and the Union official should meet with the Principal. The Union replied on 16th March expressing its dissatisfaction at the stance adopted by the Board but agreeing to meet with the Principal.
A meeting did take place between the School Steward, the Union Official and the Principal on 24th March. This meeting was unproductive. The Principal insisted that the Union Official substantiate each of the complaints which he made on behalf of his members. For his part the Union Official insisted that each and every complaint had been detailed and reported through the blue form procedure. The meeting apparently ended with the Principal inviting the Union Official"to put up or shut up".
Following this meeting, by letter dated 26th March 1998, the Union again requested a meeting with the Board. On 27th March, 1998, the Principal wrote to the Union Official effectively demanding that the allegations of sexual harassment made on behalf of his members be substantiated or withdrawn within seven days of that letter.
In the meantime, a further incident occurred on 9th March, 1998, involving a student making a sexually offensive comment to the second named claimant. This was reported through the blue book procedure, and the offending student was suspended for five weeks.
On 1st April two further incidents occurred. One involved students wolf-whistling and cat calling at the second claimant. The second incident involved a student handing a sexually explicit drawing to the second named claimant. This incident was again reported on a blue form.
Following this latest incident, the Union Official telephoned the Board Chairman directly on 2nd April, 1998, and requested an urgent meeting. The Board Chairman agreed to meet the Union Official and the second named claimant on that night. It is accepted on behalf of the second named claimant that the Chairman listened to her presentation and responded in a kind and concerned fashion.
Following that meeting, the Union again formally sought to meet with the Board of Management. On 20th April the staff were notified that a staff delegation was invited to meet with the Board on 23rd April. The Union chose a delegation to meet with the Board but difficulties arose when the Principal objected to the make up of this delegation and the Board refused to meet them. A compromise was agreed subsequently whereby a representative group of the Board met the delegation.
The matters remained unresolved and the present complaints proceeded to investigation.
Conduct Constituting Sexual Harassment.
In considering this aspect of the appeal, the Court first considered if the acts complained of by the claimants constitutes sexual harassment. An accepted definition of the term is that contained in the Code of Practice annexed to Commission Recommendation 92/131/EEC of 27th November, 1991, on the protection of the dignity of women and men at work. This is set out at Section 2 of the Code of Practice as follows:
- "Sexual harassment means unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct."
Thus, the source of the unwanted conduct is irrelevant if it affects the dignity of the victim at work.
The Code of Practice goes on to State:
- "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 offensive…."
There can be no doubt that the conduct to which the claimants were subjected by the students of the school was sexual harassment in that it was unwanted conduct based on sex which affected their dignity at work. It is also well settled that sexual harassment constitutes discrimination for the purpose of Section 2(a) of the Act.
Section 3 of the Act prohibits discrimination by an employer against an employee. Hence, in order for this aspect of their claim to succeed, the claimants must show that the respondent, as their employer, can be fixed with liability for the sexual harassment which they suffered. This could arise if it could be shown that the respondent is directly liable for the discrimination suffered by the claimants by failing to take appropriate measures to prevent its occurrence. In the alternative, if the school can be held vicariously liable for the conduct of its students, the discrimination complained of can be imputed to the respondent.
The Court first consideredifthe respondent can be held directly liable for what occurred.Duty of an Employer.
Sexual harassment is now generally recognised as constituting an intolerable affront to the dignity of men and woman at work. Since the Determination of this Court inA Garage Proprietor v A Worker EEO2/85it is well settled that freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect. It follows that an employer has a concomitant duty to take such steps as are reasonably practicable and necessary to ensure that every employee is provided with a place of work free of sexual harassment. Practical guidance on the steps which should be taken are set out in the European Code of Practice and its Irish counterpart (Measures to Protect the Dignity of Women and Men at Work (Department of Equality and Law Reform September 1994).
These Codes of Practice provide that employers should have in place effective measures to ensure that sexual harassment does not occur and, if it does occur, to ensure that adequate procedures are readily available to deal with the problem and prevent its re-occurrence. The Code of Practice recommends that these measures should, where appropriate, be adopted in consultation with trade union or employee representatives.
The Recommendation, of which the Code of Practice forms part, is a relevant consideration in cases involving sexual harassment. InGrimaldi v Fonds Des Maladies Proffessionelles  ECR 4407, the European Court of Justice pointed out that national Courts are bound to take Recommendations made pursuant to Article 249 of the EC Treaty into consideration in order to decide disputes submitted to them, in particular where they are capable of casting light on the interpretation of other provisions of national or Community law.
Procedures to combat sexual harassment in the workplace are most frequently designed to deal with inappropriate conduct perpetrated by one employee upon another or by a person in authority upon a subordinate. Yet an employee can be subjected to sexual harassment in the course of their employment from sources other than those with whom they are in common employment.
In such cases it is often difficult to define the scope of an employers duty to protect an employee against sexual harassment or to identify the circumstances in which liability will attach to the employer if it occurs. In England the liability of an employer in such cases is now determined by the application of the test formulated by the Employment Appeals Tribunal in the case ofBurton and Rhule v DeVere Hotels  IRLR 596.
In this case the EAT, in a case involving racial harassment, considered the meaning of the term "subjecting him to any other detriment" contained in Section 4(2) of the Race Relations Act 1976. The wording of the relevant provisions of the Employment Equality Act are different to that in the British legislation. Nonetheless, the approach adopted by the EAT is relevant in the instant case, since an employer who subjects an employee to the detriment of sexual harassment undoubtedly treats that employee less favourably by reason of his or her sex within the meaning of sections 2 of the 1977,Act.
InBurtonthe claimants, who were both black, were employed as waitresses by the respondent hotel. They were required to work at a function at which an entertainer was engaged who used crude and racially offensive material. As a result, the claimants suffered racial and sexual harassment by the entertainer and by the guests at the function.
The employer was held directly liable for the harassment suffered because, it was held, the manager on duty had subjected the claimants to racial harassment by failing to immediately remove them from the function hall as soon as the nature of the material being used by the entertainer became known.
In its judgment, the Tribunal firstly pointed out that an employer would readily be held liable where he /she is shown to have actual knowledge that harassment of an employee is taking place and does not act reasonably to prevent it, or where the employer deliberately or recklessly closes his/her eyes to the fact that it is taking place.
Secondly, in applying a lower threshold for liability, the Tribunal took the view that an employer subjects an employee to the detriment of [racial] harassment if he causes or permits harassment serious enough to amount to a detriment to occur in circumstances in which he can control whether it happens or not.
The Tribunal went on to say:
- "In order to show that the employer subjected the employee to the detriment of racial abuse or harassment, where the actual abuser or harasser is a third party and not a servant or agent of the employer for whose actions the employer would be vicariously liable, the Tribunal should ask itself as an industrial jury, whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it. If such is the finding, then the employer has subjected the employee to the harassment".
The principals inBurtonwere subsequently applied by the EAT inBennett v Essex County Council EAT/1447/98.
This case involved a teacher of African-Caribbean ethnic origin who was subjected to racial harassment by students in the school in which she was employed. In 1995, the claimant was subjected to harassment by students on a number of occasions over a four month period. She reported this to the school authorities. The school authorities were held not to have taken these complaints as seriously as they should have been. Letters were prepared to the parents of the students concerned but were not subsequently sent. The response of the school was held to have been muddled and uncertain.
It was held that although the respondents were not vicariously liable for the acts of the students at the school, the applicant could succeed if she could show, adopting the principles inBurton and Rhule, that the racial harassment was sufficiently under the control of the respondents that they could, by the application of good educational practice, have prevented the racial harassment or reduced the extent of it. On the facts of the case the employer was liable.
What emerges from these cases is that if an employer controls the situation in which harassment occurs and fails to exercise that control so as to prevent the harassment from occurring or in reducing the extent of it, he/she will be directly liable for having subjected the employee to the harassment. As the Court understands the principle, liability arises not from the existence of control but from the failure to properly exercise that control so as to protect the employee against harassment. To hold otherwise would be to confuse vicarious liability, which is strict, with direct liability, which depends on a causal link between the harassment complained of and some fault on the part of the employer.
It also appears to the Court that situations can arise in which an employer may adopt a course of action to avoid harassment of an employee but that harassment nonetheless occurs. In such cases, the employer could not be fixed with liability if the action taken, although unsuccessful, was in all the circumstances, as much as the employer could reasonably have been expected to do.
The approach adopted inBurton and Rhuleis persuasive and is adopted by the Court, in considering the instant case.
Applying theseprinciplesto the facts of the present case, the Court has reached the following conclusions:
Turning first to the series of incidents which occurred in the period between June 1996 and January 1997, the school responded to the complaints made by the second named claimantby disciplining the offending student where they could be identified.In relation to the incident which occurred on 29th September 1996, the student involved was required to transfer to another school.
Notwithstanding the severity of the sanction in this case, it did not appear to have had the deterrent effect which might have been expected since other incidents occurred involving the same teacher. In some of these subsequent incidents the disciplinary process could not be applied because theidentityof the offender could not be definitively established. No other action was considered or taken in relation to these incidents.
It should have been apparent at that stage that the use of the imposition of disciplinary sanctions was not in itself sufficient to alleviate or control the developing culture of sexual harassment.In September / October 1997 the problem reoccurred.
It is clear from the correspondence referred to earlier that the Union was concerned that the environment in which its members were required to work had become polluted by sexual harassment. From 15th November, 1997, onwards the School Steward and later the Union official sought to engage with the school authorities in seeking to jointly formulate an appropriate response to this recurring problem.
The respondents appeared to regard the representations made by the Union as an attempt to usurp the role of thePrincipalwith respect to matters of discipline within the school. Ratherthanagreeing to engage constructively with the teaching staff and their union, the Principal, supported by the Board of Management, appeared to believe that some teachers and the ASTI were involved in some form of campaign directed at undermining his professional standing.
From the submissions,and taking the evidence as a whole, it is clear to the Court that the School Management did not fully accept the plain fact that teachers were beingsexually harassedat the school. This is evident from the tone and content of the correspondence passing between the parties at the material time. Of particular significance is the principal’s insistence that the Union Official "put up or shut up", and his later demand that the complaints of sexual harassment be withdrawn.
After these proceedings hadcommenced,the school authority did move to take some measures to address the issue of sexual harassment in the school. In May, 1998, the Principal consulted with the Employment Equality Agency and requested the name of a suitable person to address the staff on this topic in the following academic year. Significantly, in writing to the person nominated on 28th July, 1998, the Principal referred to the incident involving the first named claimant and stated that the EEA had investigated the matter and found no cause of complaint. He went on to say that the matter had been referred to the Labour Court and that the Courtsawno grounds for complaint. Both statements wereincorrect. Notwithstanding the incidents of 1996, in the same letter the Principal stated that prior to October 1997 sexual harassment did not appear to have been a problem at the school.It may have been the perception of the Principal that the incidents which occurred in 1996 did not constitute sexual harassment of the claimants, but the Court cannot accept this contention.
The School Authorities should have recognised what was happening in late 1996 and taken measures to control the situation. They might have sought to involve the parents of students in trying to control their children’s conduct. They should have sought to involve the staff and their trade Union in putting in place a code of practice in line with the European Code and its Irish counterpart and in line with good employment practice. The Court is satisfied as a matter of probability that had such measures been taken they could have at least have prevented the harassment which occurred from September, 1997 onwards, or reduced the extent to which it occurred.
The respondents claim that they took some initiatives to address the complaints of sexual harassment in December, 1997. These involved an attempt to review discipline within the school but that the staff refused to cooperate with these initiatives. Given that at that time the Board of Management and the Principal appeared not to accept that a problem of sexual harassment existed, any such initiatives would have been of little value.
Certain further unilateral efforts were made by the school to devise some policy on sexual harassment, with an involvement by staff, after the present proceedings had commenced. Regrettably, by that stage the relationship between the claimants and the Principal and between the Union Official and the Principal had become so blighted that no real progress was possible. The Court believes that had such an initiative been pursued in response to the initial series of complaints in 1996 or in response to the initial representations by the Union, these complaints might never have come before the Court.
The Court is satisfied that by December1996it should have been clear to the respondents that themeasures being taken to prevent the sexual harassment of the teachers were insufficient.By failing to take any additional initiative, the respondent failed to take control of the situation and thus failed in their duty to act reasonably so as to protect the claimants from further incidents of sexual harassment. The Court is, therefore, satisfied that the respondent is liable to the claimants for the harassment to which they were subjected from September, 1997, onward.
Vicarious Liability of the Respondent.
Having found that the respondent is directly liable for the harassment to which the claimants were subjected, it is unnecessary to consider the submissions made by the parties on the applicability of the doctrine of vicarious liability in the present case
Victimisation of the Claimants.
Both claimants complain that they were penalised by the respondent within the meaning of Section 2 (d) of the Act. They rely on a number of incidents which are referred to at paragraph 6.11 of the Equality Officer's Report.
It is clearfromall of the evidence that the respondents were deeply aggrieved by the decision of the claimants to involve their trade union in preference to the internal procedures oftheschool in addressing their complaints. They were also aggrieved bythedecisionof the claimantsto institute these proceedings. In his submission to the Equality Officer, the Principal states that it is the view of the Board of Management that all internal channels should be fully explored before seeking help from outside.
The Equality Officer took this reference to mean that any referral of a complaint of unequal treatment on grounds of gender by a member of staff to the statutory bodies charged with investigating such complaints, prior to the board being satisfied that all "internal channels" have been fully explored to their satisfaction,metwith management’s disapproval. The Court concurs with the Equality Officers interpretation of those comments.
With regard to the particular events relied upon in support of the claim of penalisation, one involved both claimants and a number of others involved the second named claimant. In relation to these incidents, the Equality Officer was satisfied that penalisation of the claimants had occurred. The Court concurs with that conclusion.
Incident Involving Both Claimants.
On the day prior to the first hearing before the Equality Officer, the Principal posted a notice in the school staff room stating as follows:
- "An equality officer from the Labour Court will conduct a hearing into the alleged sexual harassment claim on Tuesday 14th December 1999 at 2.30 PM. In [named] Hotel.
Since it would not be possible to provide adequate cover for all the classes, I have decided to close the School at 2.15 PM.
In my view, all members of staff should be afforded the opportunity to attend the hearing, since the decision to authorise the Union to initiate the proceedings against the Board of Management was taken by the teachers at an [named Union] meeting"
The Equality Officer found that the only purpose in posting of this notice prior to the hearing was to expose and embarrass the claimants in the eyes of their colleagues as being the female teachers who were bringing complaints of sexual harassment against the school and to add to their trauma on the day.
Alleged Penalisation of the Second Named Claimant.
The second named claimant’s complaints of penalisation relate to a number of interactions with the Principal in which she claims to have been intimidated or humiliated by him. These incidents are particularised in the Report of the Equality Office. While there is considerable conflict between the parties on the details of these encounters, the Equality Officer found that a number of incidents amounting to penalisation did occur.
Having reviewed the evidence, the Court has come to the same conclusion as the Equality officer in relation to these incidents. The second named claimant was employed by the schoolfrom1995 and appears to have performed her duties satisfactorily. However, following the commencement of these proceedings, she appears to have been singled out for special attention by the Principal and reprimanded on minor matters often within the hearing of her students. In the Court's view, this attitude toward the second named claimant was in consequence of her having taken these proceedings and does constitute penalisation within the meaning of section 2(d) of the Act.
Complaint Under Section 20(a) of the Act.
It was submitted by the Respondents that The Authoritydoesnot have standing to bring a claim pursuant to Section 20(a) of the Act in circumstances in which particular persons who claim to have been discriminated against have made complaints pursuant to section 19 of the Act. The Court can not accept this submission. Each of the paragraphs of Section 20 provide separate grounds on which a complaint can be referred to the Court. While paragraph (b) is limited to situations in which a particular person alleged to have suffered discrimination has not made a reference under Section 19, no such restriction applies in the case of paragraph (a).
In the instant case, the Court has held that the respondent failed to exercise adequate control over the situation in which two female teachers were being subjected to sexual harassment. It follows that in failing to exercise adequate control the respondent exposed all female teachers to the possibility of discrimination involving sexual harassment. In the Court's view, this comes within the scope of Section 20(a) of the Act.
The Court finds that the complaint made by the Authority is well founded.
The Court determines that the respondent did discriminate against the first and second named claimants within the meaning of Section 2(a) of the Act by reason of their sex in failing to provide them with a place of work free of sexual harassment. The Court further determines that the first and second named claimants were discriminated against within the meaning of Section 2(d)(i) and (ii) in being penalised for having in good faith made a reference under Section 19 of the Act, and having opposed by lawful means acts which are unlawful under the Act.
The Court is satisfied that the appropriate form of redress is a composite award of compensation to each of the claimants. The Court measures the amount of compensation which is fair and reasonable in all the circumstances at euro 10,000 in the case of the first named claimant, and euro 20,000 in the case of the second named claimant.
The Court determines that the complaint made by the Authority pursuant to Section 20(a) of the Act is well founded but does not propose to make any other award or recommendation pursuant to Section 22 of the Act.
Signed on behalf of the Labour Court
29th January, 2002______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.