A Complainant (Represented by O'Mara Geraghty McCourt, Solicitors v A Financial Institution (Represented by McKeever Rowan, Solicitors)
1.1 This dispute concerns a claim by a complainant that she was discriminated against by her employer on the ground of gender, contrary to the provisions of section 6 and section 23 of the Employment Equality Act, 1998, when she was subjected to sexual harassment by a colleague. She claimed further that she was subjected to victimisation following her complaint to management. In accordance with the Equality Tribunal's normal practice when dealing with allegations of sexual harassment, no individuals or institutions are identified in this decision.
1.2 The complainant referred a claim to the Director of Equality Investigations on 4 March 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case on 23 July 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 8 May 2003. Subsequent correspondence with the parties concluded on 19 May 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant commenced work as a Mortgage Advances Clerk in the respondent's head office on 25 September 2000. From August 2001, she said she began to experience demeaning treatment from a temporary Mortgage Advances Manager, which included aggressive behaviour and obscene gestures. Among the incidents she alleged were: an occasion when his response to her request for help with a customer query was abusive language and a masturbatory gesture; an abrupt dismissal of a constructive suggestion she had put forward during her annual review; ongoing shouting and sneering, as well as threatening to kill her if she raised her review suggestion again. The complainant said this treatment frequently occurred in front of other members of staff, and she alleged that she was both humiliated and upset by it.
2.2 The complainant said she told her Supervisor in confidence about this behaviour. She claimed she was unnerved by what she thought was a developing pattern of behaviour from the Manager, and wanted someone to know about it, but felt her Supervisor was not the person who could do something about the situation. Following the incident of the masturbatory gesture, the complainant arranged a meeting with the Operations Officer for 4 October 2001 to discuss the problem. The Operations Officer told the complainant that the Manager would be moving to different position in a short time and the complainant decided not to make any further complaint on that basis.
2.3 On Monday 8 October 2001, the complainant was given permission by the Manager to leave work at 4pm each day that week, as long as she made up the time. She had a minor accident that evening and was absent on sick leave on the following day. On her return to work on Wednesday 10 October, she discovered an email had issued from Personnel stating that normal hours were to be worked. When the complainant attempted to clarify if the permission she had been given was still valid, the Manager behaved very angrily and shouted at her across the open plan office. The complainant was so upset by this that she went to the Personnel Manager to complain about the ongoing situation, describing all of the incidents that had occurred.
2.4 When the complainant went to work on Thursday 11 October, her Supervisor told her that the Manager had instructed she was to be removed from the second floor, where the Mortgage Advances department was located. The complainant returned to Personnel, where she was told by the Personnel Manager and the Operations Officer not to discuss the matter with anyone else. She then spent the remainder of the day on the third floor, without duties or computer access. As a result, she did not go to work on Friday 12 October, but contacted the Operations Officer by telephone and arranged a meeting for Monday 15 October.
2.5 On arrival at work on that date, the complainant met the Operations Manager and the Operations Officer and was advised to return to her desk. She was escorted there by the Operations Officer, but as soon as she had left the floor the Manager approached the complainant and told her to leave. When she protested, the Manager told her to stay away until he had spoken with the Operations Manager. The complainant arranged another meeting with the Operations Manager for the following day. At this meeting, it was suggested that the complainant should move to another area temporarily to allow the situation to calm down. The Operations Manager suggested that the complainant could be assigned for a three-month period to one of the respondent's branches near her home. The complainant said she was reluctant to move as she had not done anything wrong, but the Operations Manager said that she had been considering the development of the mortgage business in the proposed branch, and suggested that the move would be an opportunity for the complainant. Reluctantly, the complainant agreed to the temporary transfer. The meeting concluded on the basis that the complainant would take holidays for the remainder of the week and the transfer would take effect from Monday 22 October.
2.6 On Friday 19 October, the complainant received a letter from the Personnel Manager confirming her transfer to the branch, in the capacity of cashier. She was very unhappy with this as she felt it represented a demotion. She wrote a formal letter of complaint to the Company Secretary in which she criticised the nature of the transfer being offered and described the incidents which had led to it. She described the conduct of the Manager towards her as "bullying, intimidation and general unprofessional behaviour" and referred to the fact that she had been "systematically and deliberately subjected to gross verbal abuse and intimidation, including foul language and obscene gestures by [the Manager], and as most of the documented instances were perpetrated in front of my colleagues, it was most humiliating and degrading." The complainant delivered her letter in person at 4.55pm to the respondent's head office. She met briefly with the Personnel Officer, who said she should report for duty at the branch as arranged and the matter could be discussed further.
2.7 The complainant accordingly commenced work on Monday 22 October, saying that she felt that working in the branch would allow her to maintain contact with head office. On Thursday 25 October the Operation Manager issued a letter to the complainant confirming that the matters raised in her letter of 19 October were being investigated by the Operations Officer. The letter further confirmed the complainant's position in head office as a Mortgage Advances Clerk and said that she would retain that position following her move to the branch. The letter continued "You will, of course, be involved in the day to day operations of the Branch." However, the complainant said another cashier had transferred to head office and she filled that vacancy. In accordance with the Operations Manager's suggestion, the complainant tried to pursue mortgage work but said that she found it impossible. She contacted the Operations Officer to change her business cards and personal email address, but was told that she was not entitled to either in her capacity as cashier in a branch.
2.8 During her time at the branch the complainant felt isolated and found it difficult to get any information about her situation. She felt that her personal and professional integrity had been put in question, that her working relationships with colleagues had been prejudiced and that she was not getting any support from the respondent. She ultimately attended her doctor and was certified unfit for work because of "acute work related stress" with effect from 12 November.
2.9 On 27 November, a note issued from the Company Secretary to the complainant which stated "I have investigated the matter as set out in your letter of the 19th of October 2001. I enclose a copy response from [the Manager] who wishes to apologise, and invite you to return to your original position with immediate effect." The attached letter from the Manager, addressed to the Company Secretary, said that he had been shocked and upset when he was told that a complaint of bullying and harassment had been made against him, and he had wanted the complainant moved from the floor to prevent further difficult situations arising. The Manager accepted that he may have handled the situation badly and had not followed proper procedures. The letter concluded "It was never my intention to harass or bully the complainant. If I appeared to do so I unreservedly apologise for any upset or hurt caused. I am willing to have [the complainant] back in her original position and hope that this unfortunate incident can be put behind us and restore a good working relationship."
2.10 In preparation for her eventual return to work, the complainant had a number of meetings with representatives of the respondent. Following one such meeting on 21 January 2002, the complainant wrote to the Company Secretary requesting clarification of certain matters. Among other issues, she requested a copy of the written conclusion to the investigation, asked if the Manager had been reprimanded and sought the addition of a note to her personnel file explaining her absence and indicating that her name had been cleared. She also pointed out that the letter of apology from the Manager had not been addressed to her, but said that she was now looking forward to putting the past few months behind her.
2.11 In response, the Company Secretary wrote to the complainant on 31 January, stating that the complaint received from the complainant had been investigated. He said all of the issues raised were carefully considered and that the respondent's submissions had also been considered. Regarding a reprimand to the Manager, the Secretary declined to respond on the grounds that matters relating to individual employees' records were private and confidential. The addition of a note to the complainant's file was agreed, and her forthcoming return to her position was welcomed.
2.12 Following further correspondence, the complainant returned to work in her original department and position on 16 May. She had been told that she would not have to deal with the Manager, who had been transferred to a position overseeing branches. For the first few days of her return, he was out of the office. However, she walked into the department one morning to find him sitting at a desk on the same floor. She immediately contacted the Operations Officer, and it was arranged that he would transfer to another floor.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that the complainant had been discriminated against contrary to the provisions of the 1998 Act. It said that the assertions made by her did not fairly or accurately reflect the facts as understood and recorded by it. In particular, the respondent denied that the complainant was subjected to discriminatory treatment, sexual harassment or victimisation.
3.2 The respondent said that the first notice it had of any grievance on the part of the complainant was a letter she wrote to the Personnel Manager dated 21 September 2001 in which she complained that her salary increase, awarded following her annual review, was inadequate. The respondent pointed out that no reference was made to any other issues.
3.3 The respondent's personnel records indicated that the complainant told the Operations Officer on 4 October that she was having problems with the Manager and that she was advised that he would be transferring in the near future. The respondent said that on 10 October the complainant made a verbal complaint that the Manager would not allow her to leave early. A further meeting was arranged for the following day, when the complainant reported that she had been told to remove herself from her work station on the instructions of the Manager. The respondent said that the complainant was asked to put her complaint in writing for a formal investigation to take place, but that she declined to do so.
3.4 The respondent acknowledged that the complainant telephoned the Operations Officer on 12 October and said she was not in the office because she had been told not to return. At this stage, even though a formal complaint had not been received, the respondent said it commenced an investigation. As the Manager was the complainant's superior, the respondent said she was offered the choice of moving to another department until the investigation was complete, and that the complainant had chosen to transfer to the branch.
3.5 The respondent did not dispute the reminder of the complainant's assertions regarding the chronology of incidents and correspondence, including the fact that she provided a written letter of complaint in 19 October, that she started work in the branch on 22 October and that she went on sick leave on 12 November.
3.6 The respondent said that it carried out a detailed investigation of the complaint in accordance with its written procedure. The terms of reference of the investigation were as in the complainant's letter of 19 October. No written decision issued, as the respondent's legal advice was that there was no provision for one in the disciplinary procedures. The Operations Officer needed no more information to substantiate the complaint as the facts were not in dispute. A finding of fact was made that the Manager had breached proper procedure but that he had not intentionally or deliberately bullied or harassed the complainant. The Manager acknowledged this and tendered an apology which was forwarded to the complainant on 27 November.
3.7 The respondent said that thereafter it took further steps to ensure such a problem would not recur. The Manager was removed from his position and transferred to an alternative area so that the complainant would no longer be answerable to him. She was then invited to return to her original position. The respondent said she did not return until 16 May 2002. On 22 May she complained that she was uncomfortable working on the same floor as the Manager. The respondent said that in response, he was transferred to a different floor and no further complaints were received.
3.8 The respondent said that the complaint was carefully and fully considered in accordance with its grievance procedures. The respondent said that the complainant had failed to substantiate her claims of discrimination, sexual harassment or victimisation within the terms of the 1998 Act, and submitted that the Equality Officer should decline jurisdiction accordingly.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The establishment of a prima facie case in complaints of gender discrimination in employment is governed by Council Directive 97/80/EC, transposed into Irish law on 18 July 2001 by means of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001). In applying the same rule to a claim of age discrimination in the case of Flexco Computer Stationery Ltd and Kevin Coulter (EED0313), the Labour Court said "The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board  ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If those two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."
4.3 Section 18 of the Act deals with specific provisions as to equality between women and men, and states that "A" and "B" represent two persons of the opposite sex so that where "A" is a woman, "B" is a man and vice versa. Section 23 provides (1) If, at a place where A is employed (in this section referred to as "the workplace"), or otherwise in the course of A's employment, B sexually harasses A and...
(a) A and B are both employed at that place or by the same employer... then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.
(2) Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of A's employment, if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled- (a) B sexually harasses A, whether or not in the workplace or in the course of A's employment, and
(b) A is treated differently in the workplace or otherwise in the course of A's employment by reason of A's rejection or acceptance of the sexual harassment or it could reasonably be anticipated that A would be so treated, then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.
(3) For the purposes of this Act-
(a) any act of physical intimacy by B towards A,
(b) any request by B for sexual favours from A, or
(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A.
(5) If, as a result of any act or conduct of B, another person ("the Employer") who is A's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against A, it shall be a defence for the Employer to prove that the Employer took such steps as are reasonably practicable
(a) in a case where subsection (2) applies, to prevent A being treated differently in the workplace or otherwise in the course of A's employment and, if and so far as any such treatment has occurred, to reverse the effects of it, and
(b) in a case where subsection (1) applies (whether or not subsection
(2) also applies) to prevent B from sexually harassing A (or any class of persons of whom A is one).
4.4 The matters complained of included allegations of foul language and obscene gestures. I am satisfied that such allegations constitute a complaint of sexual harassment in accordance with the provisions of section 23 of the Act. The respondent was not represented at the hearing by any persons involved in the matters complained of, such as the alleged harasser, the Operations Officer, the Operations Manager or the Personnel Manager, and I was unable to obtain any evidence from them. The only course available to me therefore is to consider whether the respondent can demonstrate it has a defence against the allegation of discrimination as provided for by section 23 (5) of the Act.
The investigation of the complaint of sexual harassment
4.5 When questioned at the hearing regarding the terms of reference of the investigation, the respondent said that those terms were as stated in the complainant's letter of complaint. Since no formal written decision issued, the conclusion of the investigation was effectively as stated in the Company Secretary's letter of 31 January which attached a letter of apology from the Manager for unintentional bullying and harassment. Aspects of the complaint not referred to, such as foul language and obscene gestures, were matters which were not upheld by the investigation. The mechanism of investigation was consideration of the complainant's letter of complaint and the Manager's response to it. No interviews were carried out, with either of the parties or with potential witnesses, and no further evidence was obtained.
4.6 Sexual harassment, bullying, intimidation and unprofessional behaviour are accusations that should be of serious concern to any management. The respondent's actions in this regard do not display that the matters were taken seriously. The respondent's reaction to the initial complaint was to advise the complainant that the Manager would be moving shortly, and suggest that she wait for a period. On receipt of her formal complaint, and following the Manager's insistence that she move from her work station, the respondent supported his action by arranging that the complainant transfer temporarily to "allow things to cool down".
4.7 Following the complainant's transfer, the respondent proceeded to carry out an investigation. From the evidence provided to me, the investigation consisted of copying the complainant's letter to the Manager and inviting him to make a written response, which was not copied to the complainant. The Company Secretary's letter to the complainant, which represented the conclusion of the investigation, is quoted at 2.9 above. No findings are declared, the only such information being contained in the Manager's apology. Such an investigation is contrary to the respondent's own Harassment and Bullying Policy, which provides inter alia that a copy of the alleged harasser's response be forwarded to the complainant and that the outcome of an investigation be conveyed in writing to both parties. I cannot consider that this constituted an adequate investigation of the complaint.
4.8 Section 74 of the Act provides that
(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith --
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
4.9 The Manager's insistence that the complainant be removed from her work station because she had made a complaint against him may be understandable as an immediate and perhaps unthinking reaction to a difficult situation, but he continued to insist on her removal when she attempted to resume her duties some five days later. This constituted clear victimisation of complainant in the context of section 74. The respondent made no attempt to resolve this particular problem, and certainly did not insist that the complainant be allowed to resume work. Instead, it tacitly accepted that the complainant performed no work on the first day of her exclusion, it suggested she take leave the following day, and it again complied with the complainant's second banishment. Its ultimate solution to the problem was to transfer the complainant, albeit in a temporary capacity.
4.10 Dealing with complaints of sexual harassment involving employees who work together will always create difficulties for employers, and it may be considered that the immediate necessity is to separate the complainant and the alleged harasser. However, it is important that the employer in such cases ensure that neither party suffers detriment. In this case, I am satisfied that the complainant's transfer to a branch in the capacity of cashier constituted an unfavourable alteration in her conditions of employment. She lost her client caseload, her business cards and her email access.
5.1 Based on the foregoing, I find that the respondent discriminated against the complainant on the ground of gender, contrary to the provisions of the Employment Equality Act, 1998, when she was sexually harassed by her Manager. I further find that she was victimised by the respondent in that it permitted her to be arbitrarily removed by the Manager, effectively demoted and isolated her and failed to carry out an adequate investigation into her complaint.
5.2 I hereby order that the respondent
(i) pay the complainant the sum of €15,000 in compensation for the effects of the discrimination;
(ii) pay the complainant a further sum of €15,000 in compensation for the effects of the victimisation;
(iii) ensure that the complainant is protected from unnecessary contact with the Manager, and that she suffer no professional detriment from any measures in this regard;
(iv) review its policy in dealing with complaints of sexual harassment, with particular reference to the provisions of the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (SI No 78 of 2002).
20 November 2003