MS. A - COMPLAINANT (REPRESENTED BY THE EQUALITY AUTHORITY) AND A CONTRACT CLEANING COMPANY - RESPONDENT
ROLES OF PEOPLE REFERRED TO IN THIS DECISION
Ms. A The Complainant
Mr. B The Alleged Harasser
Mr. C The Shopping Centre Manager
Ms. D The Complainant's Supervisor
Mr. M The Respondent's Regional Manager
Mr. L The Alleged Harasser's Supervisor
Mr. P The Security Company's Operation's Manager
This dispute involves a claim by Ms. A that she was discriminated against by her employer on the ground of gender contrary to section 23 of the Employment Equality Act, 1998, when she was sexually harassed by an employee of a security firm in the course of her employment. The complainant also claims that she was penalised in circumstances amounting to victimisation within the meaning of section 74(2) of the Employment Equality Act, 1998 when she complained to her employer about the alleged treatment of her. In accordance with the Equality Tribunal's normal practice in claims of sexual harassment the names of the parties involved have been withheld.
2.1 The complainant worked as a cleaner with the respondent and was assigned cleaning duties at a shopping centre in a midland's town. The alleged harasser (Mr. B) was a security guard at the shopping centre and was employed by a company which was contracted to provide security services there. The complainant alleges that from early in her employment Mr. B made crude and sexually offensive remarks to her and her female colleagues. This behaviour culminated in Mr. B striking her a number of times on the bottom on the evening of 18 December, 2000. The complainant further contends that as a result of reporting the incident to both her and Mr. B's employers she was penalised in circumstances amounting to victimisation contrary to the Act. The respondent rejects the allegations and notwithstanding this argues that the complainant referred her complaint outside of the six month period required under the Act.
2.2 The Equality Authority referred a complaint on the complainant's behalf to the Equality Tribunal on 6 July, 2001. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer on 23 July, 2002, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties and a hearing took place on 11 November, 2003. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence subsequent to the hearing. In addition, attempts were made by the parties following the hearing to resolve the matter themselves but these proved unsuccessful. The final piece of correspondence in respect of the case was issued by the Equality Officer on 27 October, 2004.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced work with the respondent as a cleaner in early February, 2000. The alleged harasser (Mr. B) was a security guard at the shopping centre and was employed by a company contracted to provide security services there. The complainant contends that from early in her employment Mr. B made crude and sexually offensive remarks to her and her female colleagues. She adds that in mid-November, 2000 he approached her as she was cleaning, pulled the waistband of her trousers and commented on her wearing "flowery knickers". She adds that she had told her on several occasions to leave her alone and when she reported the matter to Mr. C (the shopping centre manager) she was told to report them to Ms. D, her immediate supervisor, which she did.
3.2 The complainant states that on the evening of 18 December, 2000 she was working in the centre after it had closed when Mr. B approached her. She adds that he pinned her arms up her back and pushed her into the staff canteen, where Ms. D was sitting. The complainant states that Mr. B then pulled down her trousers and underwear and smacked her a number of times on the bare bottom, laughed loudly and left the room. She states that she was extremely upset and shocked at the incident and when she raised it with Ms. D she replied that Mr. B was "messing" and "it was only a joke". She remained in the canteen for a number of minutes before returning to her duties. Shortly afterwards Mr. B approached her again and she was forced to fend him off by swinging a mop at him.
3.3 The complainant states that she reported the incident to the Gardaí after she returned home on the night of 18 December and had discussed the matter with her husband. On the
morning of 19 December, 2000 she spoke with Mr. M, the respondent's Regional Manager, who told her that the matter had nothing to do with the respondent and to take the matter up with Mr. B's employer. She did so and spoke with Mr. L. Later that day Mr. B was removed from the centre, although he returned in early January, 2001 and resumed duty. The complainant states that she was never asked to provide a written statement of events in respect of her complaint by either staff of the respondent or Mr. B's employers, although other people were interviewed. The vast majority of the liaison between the respondent and Mr. B's employer - in the context of that company's investigation - was carried out by Ms. D (the complainant's supervisor) who was a witness to the behaviour and fundamentally disagreed with the complainant's version of events. The complainant contends that the outcome of any investigations conducted by the respondent or Mr. B's employers were flawed in that they reached conclusions based on the views of other people and took little if any account of her views. Consequently, the complainant submits that the respondent cannot reply on the defence provided at section 23(5) of the Act.
3.4 The complainant contends that after she reported the incident to management in both the respondent and Mr. B's employer pressure was brought to bear on her by Ms. D in particular to drop her complaint and withdraw her statement from the Gardaí or she would lose her job - she refers in particular to a meeting attended by herself, Mr. P (Operations Manager - Security Company), Mr. C and Ms. D. The complainant states that she subsequently withdrew her statement to the Gardaí (because she was afraid she would lose her job) and was accompanied to the station by Ms. D, at the latter's insistence. In addition, she experienced the "cold shoulder" from some of her colleagues and her working relationship with them, which had previously been good, deteriorated. The complainant adds that she was subjected to the respondent's internal disciplinary procedure which culminated in a meeting on 15 February, 2001 during which the alleged incidents of 18 December, 2000 were discussed. The complainant states that Ms. D inferred to those in attendance that she (the complainant) was lying by saying "who'd believe Ms. A anyway". The complainant submits that this treatment of her was as a direct consequence of her having made a complaint of sexual harassment against Mr. B and constitutes victimisation of her in terms of section 74(2) of the Act.
3.5 The complainant states that the complaint form referred to the Equality Tribunal on 6 July, 2001 indicates that the most recent occurrence of the alleged acts of discrimination took place on 15 February, 2001 - the date of the meeting referred to in the previous paragraph of this decision. The complainant accepts that the alleged incident of sexual harassment took place on 18 December, 2000 and refers to section 23(2) of the Act, arguing that she was treated differently from 18 December, 2000 onwards as a direct consequence of her having made a complaint of sexual harassment against Mr. B and that this treatment constitutes discrimination of her on the gender ground in terms of that provision of the Act. She further submits that the complaint form only requires a brief outline of the complaint which can subsequently be elaborated upon as the investigation proceeds and that there is no statutory requirement on her to specify the particular sections or subsections of the Act on which she intends to rely in that form. She adds that this information was furnished in her submission to the Equality Officer (which was subsequently copied to the respondent) and was also communicated separately to the respondent by letter from the Equality Authority dated 6 July, 2001 and that it was clear from this documentation she was alleging the discrimination of her was continuing. She argues therefore that the most recent occurrence of the alleged discrimination took place on 15 February, 2001 and as her complaint was referred on 6 July, 2001 it complies with the time limit requirements under section 77(5) of the Act
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts that Ms. D witnessed Mr. B strike the complainant on her bottom as he passed her in the canteen on the 18 December, 2004, adding that his actions were in no way intended as an act of any intimacy, and rejects that he pulled down her trousers or underwear. It further rejects that the complainant was pushed into the room by Mr. B and that the complainant appeared distressed by the incident, in fact it submits the opposite applied in that the complainant appeared amused by his actions and she left the canteen in good form, resumed her duties and completed her shift. The respondent states that Ms. D reported that matter to the respondent's Regional Manager (Mr. M) the next morning, that he subsequently spoke with the complainant and offered her time off with pay pending an investigation of the matter and this offer was declined. The respondent states that Mr. M informed the complainant she should pursue the matter with Mr. B's employers and that he spoke with the security company's Operations Manager (Mr. P) on 20 December, 2000 and was aware from that conversation that it had transferred Mr. B from the centre, it had commenced an investigation into the complaint and he (Mr. M) was happy with this. The respondent (Mr. M) states that it co-operated fully with that investigation, acknowledges that Ms. D was its main liaison person in the matter, accepts the Ms. D disagreed with the complainant's version of events, confirms that it never received confirmation of the outcome of the investigation process and was under the impression (from discussions with Ms. D and others) that the matter was concluded to the complainant's satisfaction. The respondent's accepts that Ms. D accompanied the complainant when she withdrew her statement from the Gardaí and adds that this was at the complainant's request.
4.2 Mr. P states that the matter was brought to his attention by Mr. B's supervisor (Mr. L) on 19 December, 2000. He immediately visited the centre and was given a copy of statements taken from Mr. B and Ms. D - no statement was taken from the complainant but her version of events was on tape. He confirms that neither the complainant nor Mr. B were interviewed by him in the course of his investigation of the complaint. Mr. P states that he met with the complainant, Ms. D and Mr. L in the Security Room at the shopping centre. There was disagreement on the facts between the complainant and Ms. D and he informed the complainant he would investigate the matter further. He states that about a week later the complainant telephoned him and requested a meeting. This meeting was attended by the complainant, Mr. P, Mr. C and Ms. D during which the complainant stated she would withdraw her complaint if an apology was forthcoming. Mr. P states that he apologised on Mr. B's behalf and assumed that the matter was concluded. He rejected the complainant's assertion that pressure was brought to bear on her at that meeting to drop her complaint.
4.3 The respondent rejects the complainant's assertion that she was victimised contrary to the Act. It denies that Ms. D told her she would lose her job if she did not drop her complaint. It states that the complainant had received a verbal warning (October, 2000) and a written warning (November, 2000) in respect of her attendance and standard of work. It adds that the meeting of 15 February, 2001 was convened as part of the respondent's disciplinary procedures to discuss these matters and issues around non-completion of spillage sheets - an essential health and safety issue on site. It is accepted by Ms. D that she inferred to those in attendance that the complainant could not be believed although she rejects that she told the complainant she would lose her job if she did not drop her complaint, that she insisted on accompanying her to the Garda Station to withdraw her statement or that she penalised her in any way contrary to the Act.
4.4 The respondent submits that whilst the complainant form states the date of the last occurrence of alleged sexual harassment as 15 February, 2001, neither her submission to the Equality Officer nor her letter to the respondent of 6 July, 2001 makes reference to any alleged sexual harassment after 18 December, 2000 and consequently the complaint is out of time. It also argues that the complainant did not refer to section 23(2) of the Act until the hearing of the complaint and submits that section 23(2)(a) and 23(2)(b) of the Employment Equality Act, 1998 must be read together. Consequently, any behaviour complained under section 23(2) must occur within six months of the referral of the complaint. The respondent contends that as the alleged incident of sexual harassment took place on 18 December, 2000 the complaint is out of time.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the complaint was referred to this Tribunal in accordance with the time limits set out at section 77(5) of the Employment Equality Act, 1998, (ii) whether or not Ms. A was discriminated against by her employer on the ground of gender, in terms of section 6(2)(a) of the Employment Equality Act, 1998 and contrary to section 23 of that Act, in that she was sexually harassed by an employee of a security firm in the course of her employment and (iii) whether or not she was penalised in circumstances amounting to victimisation within the meaning of section 74(2) of the Employment Equality Act, 1998 when she complained to her employer about the alleged treatment of her. In reaching my decision on these issues I have taken into account all of the submission, both oral and written, made to me by the parties.
5.2 I will deal first with the issue of whether or not the complaint was referred in time or not. Section 77(5) of the Act provides:
".... a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.".
The complainant's referral form (which was received in this Tribunal on 6 July, 2001) states that the most recent occurrence of the alleged acts of discrimination was 15 February, 2001, the date on which she attended a disciplinary meeting. It also states that she was victimised for having complained to her employer about the alleged sexual harassment. These assertions were subsequently elaborated upon by the complainant in her submission to the Equality Officer (which was copied to the respondent) and a letter from the Equality Authority to the respondent on 6 July, 2000. It is clear from these documents that the complaint covered a specific incident on 18 December, 2000 and continuing discriminatory treatment and victimisation of the complainant up to and including 15 February, 2001 and the respondent was on notice of same. These issues were subsequently discussed at some length in the course of the hearing of the complaint. I would point out that the format or content of the complaint form is not prescribed by the statute and requests, inter alia, only a brief outline of the complaint. In my view the respondent was on adequate notice of the extent of the allegations and the fact that a specific provision of the Act (Section 23(2)) was not mentioned by the complainant until the hearing has no bearing on whether or not the complaint was out of time. It is accepted by the respondent that Ms. A's complaint of sexual harassment was mentioned at the meeting of 15 February, 2001 and that during the course of the meeting her immediate supervisor (Ms. D) inferred that the complainant could not be believed. The respondent states that the meeting was arranged to deal with issues around the complainant's attendance, standard of work and failure to comply with health and safety. Whilst I agree that it can legitimately convene a meeting for such a purpose, it was at the very least inappropriate for the complainant's allegation of sexual harassment to be raised at the meeting and the fact that it was, in my view supports the complainant's contention that she was treated differently in the workplace as a consequence of her having made a complaint against Mr. B. Section 23(2) of the Act provides:
"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.".
I am satisfied that the complainant's assertion she was treated differently in the workplace or otherwise in the course of her employment (in terms of section 23(2) of the Act) for having made the complaint is reasonable in the circumstances and that the most recent occurrence of any alleged act of discrimination could be 15 February, 2001. As her complaint was received by this Tribunal on 6 July, 2001 it is within the time limit prescribed by section 77(5) of the Act.
5.3 Before leaving this point I wish to address an issue which was not argued by either party in the course of my investigation but for avoidance of doubt I feel necessary to touch upon. The alleged harasser in this case (Mr. B) was not an employee of the respondent but was employed by a security company which was contracted to provide security services at the shopping centre. Section 23 (1) of the Act provides:
"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 either -- .......
(c) B is a client, customer or other business contact of A's employer and the circumstances of the harassment are such that A's employer ought reasonably to have taken steps to prevent it, 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.
Section 23(4) of the Act provides:
"According to the nature of the business of A's employer, the reference in subsection (1)(c) to a client, customer or other business contact includes a reference to any other person with whom A's employer might reasonably expect A to come into contact in the workplace or otherwise in the course of A's employment.".
Both the complainant and Mr. B worked in the same location for several months and knew each other. They were required to work in that environment on a regular basis and had frequent contact in the course of their employment - Mr. B was responsible for the safe keeping of keys etc for a numbers of rooms etc. in the centre. The complainant's supervisor was aware of the extent and frequency of contact between them in the context of their duties. I am satisfied therefore that Mr. B was a person with whom the complainant's employer might reasonably expect her to come into contact with in the workplace or in the course of her employment. Consequently, any behaviour perpetrated by Mr. B against the complainant which is found to be sexual harassment may constitute discrimination of her by the respondent on the gender ground in terms of section 23(1) of the Act.
5.4 I shall now deal with the question of whether or not the complainant was discriminated against by her employer on the ground of gender, in terms of section 6(2)(a) of the Employment Equality Act, 1998 and contrary to section 23 of that Act, in that she was sexually harassed by Mr. B. The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 20011 sets out the procedural rule to be applied in cases of gender discrimination. This rule has been consistently applied by this Tribunal2 and the Labour Court3 as requiring the complainant in the first instance to establish facts from which discrimination may be inferred and where such facts are established it is for the respondent to prove the contrary on the balance of probabilities.
5.5 Section 23(1) of the Act (set out at paragraph 5.3 above) provides that sexual harassment of an employee constitutes discrimination of that person by his/her employer on grounds of gender. Section 23(3) of the Act defines sexual harassment as follows:
"(3) For the purposes of this Act --
(a) any act of physical intimacy by B towards A, .....
(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.
It is not in dispute that Mr. A struck the complainant on the bottom. What is contested by the respondent is the number of times this happened and whether the complainant's trousers and underwear were pulled down - Ms. D who was the complainant's supervisor at the time witnessed the incident and disputes the complainant's version of events. Where there is direct conflict of evidence an Equality Officer must decide, on balance of probabilities, which person's evidence s/he finds more compelling. I note that the complainant reported the matter to the Gardaí early in the morning of 19 December, 2000 - a response which I believe would not normally occur unless there were serious difficulties or concerns for the complainant. I have examined a copy of her statement to the Gardaí and it is consistent with her version of events as outlined above. In the course of the hearing I found the complainant to be clear and forceful in her evidence. I set out at paragraph 5.8 below my concerns about the veracity of Ms. D's evidence in the course of this investigation and I am satisfied, on balance, that the incident on 18 December occurred as the complainant described. I would point out however that if I had preferred Ms. D's version of events I believe that even a single slap on the bottom is sufficient to constitute an act of sexual harassment. Such an approach is consistent with the decisions of the Equality Officer in A Complainant v A Health Board4 and A v A Gym.5. I note the respondent's comment, whilst accepting Mr. B struck the complainant on the bottom that his actions were in no way intended as an act of any intimacy. The question of intent on Mr. B's part is not relevant as section 23(3) of the Act clearly leaves the decision as to whether or not the behaviour is unwelcome with the complainant. I am satisfied that she found the behaviour unwelcome as she spoke with her husband about it on her return home (he confirmed this at the hearing), she reported the incident to the Gardaí later that night (19 December) and also reported the matter to both her employer and Mr. B's employer the next morning (the first opportunity for her to do so).
The second element - the subjective test - as to what constitutes sexual harassment involves an assessment as to whether or not the behaviour could reasonably be regarded as sexually, or otherwise offensive, humiliating or intimidating to the complainant because she was female. I note that in the course of the hearing both Ms. D and the respondent's HR Manager agreed that it was inappropriate for a man to strike a female colleague on the bottom and that such behaviour could be offensive and humiliating. I concur with such a view and in light of my finding that the incident occurred as the complainant described, I am of the opinion that the second element of the test is satisfied. In light of the foregoing I find that the complainant was sexual harassed contrary to the Act and has established a prima facie case of discrimination on the gender ground.
5.6 Section 23(5) of the Employment Equality Act, 1998 provides a defence for a respondent in cases of sexual harassment. This provision states:
"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,
(b) in a case where subsection (1) applies (whether or not subsection (2) also applies) to prevent B from sexually harassing A ...".
I must therefore consider if the steps taken by the respondent after the complainant reported the incident are such as to be considered "reasonably practicable" to provide it with a defence to the finding of discrimination on the gender ground. The respondent states that when it became aware of the incident on 19 December, 2000 it took prompt action and acted in a professional and compassionate manner, offering the complainant time off work with pay pending the outcome of the investigation. It states that as the alleged harasser was not one of its employees it co-operated fully with the investigation conducted by his employer.
The respondent's Regional Manager (Mr. M) accepts that he spoke with the complainant on the morning of 19 December, 2000 and informed her to pursue the matter with Mr. B's employer. He states that he offered her time off with pay, that this offer was confirmed in writing to her later that day but it was declined. Mr. M did not take any further action on the matter until the next day when he was informed by Mr. P that Mr. B had been transferred from the centre and it had commenced an investigation into the complaint and he (Mr. M) was happy with this. Mr. M confirmed that the vast majority of the liaison between the respondent and Mr. B's employer in connection with the investigation was carried out by Ms. D. I note he confirms he was aware that Ms. D was a witness to the incident and that she fundamentally disagreed with the complainant's version of events. I also note his comments that his impression was the matter was concluded to the parties' satisfaction, although he never sought nor received formal confirmation of this outcome.
5.7 Whilst I accept that there may be added difficulties in controlling an investigation process where one of the parties is not an employee, the Act makes it clear that the respondent is responsible for any discriminatory behaviour of Mr. B. Rather than making sure that aspects of its own policy on sexual harassment at work was complied with (and both Mr. M and Ms. D were aware of that policy) I am of the view that the respondent abdicated full responsibility to Mr. B's employer and took no real action on the complaint. My view in this regard is supported by the fact that it left the matter up to the complainant to pursue. The appointment of Ms. D as its liaison person was totally inappropriate given that she was the complainant's immediate supervisor, she was a witness to the incident, she had commented to the complainant that "it was only a joke" and Mr. B "was just messing" - an opinion she reached in full knowledge of the respondent's policy on sexual harassment - and she fundamentally disagreed with the complainant's version of events. It is impossible to see how she could have been objective in her task. The investigation conducted by Mr. B's employer could at best be described as flawed. Initially it acted swiftly to the complaint and transferred Mr. B pending an investigation of the matter. However, it did not take a formal statement from the complainant (although it did so from others involved) and it provided no evidence which would indicate that it had reached an objective and balanced judgement on the complaint. It assumed that the matter was concluded following an acceptance by the complainant of an apology on behalf of Mr. B during the course of a meeting attended by the complainant, Mr. P, Ms. D and Mr. C. I am satisfied that this meeting occurred - although how it came about is problematic - and that during this meeting the issue of an apology was discussed. Three different versions of how and why this meeting was arranged were furnished to me - two by the respondent in its submission and its letter to the Equality Authority dated 13 September, 2001 and the other by Mr. P in his evidence at the hearing. I also note Mr. P's comment at the hearing that "his impression of the situation was that the matter was resolved", he never actually clarified whether or not the complainant accepted the apology and that the matter was closed. In addition, I find it difficult to accept the respondent's proposition that a second party apology (from Mr. P) on Mr. B's behalf, in circumstances where he (Mr. B) had acted in such a manner to prompt the complainant to report the matter to the Gardaí, would have been acceptable to the complainant in the circumstances. That been said I would accept that there may have been some confusion about the outcome of this meeting and that this confusion was compounded when Mr. M and other senior personnel in the respondent were under the impression that the matter was concluded, although as I stated above, they never sought confirmation of this. In light of the foregoing I cannot find that the respondent took steps as were reasonable practicable, in terms of section 23(5) of the Act to provide it with a defence under that provision.
5.8 I shall now deal with the complainant's allegation of victimisation. Section 74(2) of the Act defines victimisation as follows:
"...., 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
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, ....."
The central element of the complainant's assertion of victimisation is that she was pressurised by Ms. D to drop her complaint and withdraw her statement from the Gardaí or she would lose her job. These allegations are denied by Ms. D. As I stated previously where there is direct conflict of evidence an Equality Officer must decide, on balance of probabilities, which persons evidence s/he finds more compelling. I have also commented
that I found the complainant to be clear and forceful in her evidence in the course of the hearing. . She was emphatic that Ms. D insisted she accompany her to the Garda Station to withdraw her statement to ensure she did so, whilst Ms. D states that she attended at the complainant's request. I am inclined, on balance, to the complainant's version of events because it appears odd to me that the complainant did not ask Ms. D to accompany her to the Station when she made her statement two days after the incident, an experience one might expect to be more traumatic for the complainant and requiring some form of support. I am also satisfied that Ms. D's attitude towards the complainant from the time she made the complaint could be described as hostile as she openly suggested that she was lying to senior management in the respondent and she trivialised Mr. B's behaviour as a joke and that this hostility emanates from the fact that Ms. A made a complaint of sexual harassment against Mr. B. My views in this regard are re-inforced by my observation of Ms. D's general demeanour towards the complainant in the course of the hearing. I am satisfied, on balance, that the actions of Ms. D constitute victimisation of the complainant in terms of section 74(2) of the Act. Section 15 of the Act provides that "anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval". I find therefore that the respondent victimised the complainant in terms of 74(2) of the Act
6. DECISION OF THE EQUALITY OFFICER
6.1 I find that the respondent (i) discriminated against the complainant on the ground of gender, in terms of section 6(2)(a) of the Employment Equality Act, 1998 and contrary to section 23 of that Act, when she was sexually harassed by an employee of a security firm in the course of her employment and (ii) penalised the complainant in circumstances amounting to victimisation within the meaning of section 74(2) of the Employment Equality Act, 1998 when she complained to her employer about the alleged treatment of her.
6.2 I must therefore decide what the most appropriate quantum of redress is in this case. As I indicated in paragraph 5.5 above, I am of the opinion that a single slap on the bottom is sufficient to constitute an act of sexual harassment. In the instant case the complainant was subjected to the most appalling attack on her personal dignity in that her trousers and underwear were pulled down and she was slapped a number of times on the bare bottom by Mr. B. When she quite correctly reported this matter to the relevant authorities she was threatened with dismissal, an act which compounds the discriminatory treatment and can be regarded only as penalisation of her. Section 82 of the Act provides that the maximum compensation which can be awarded by this Tribunal is 104 weeks' remuneration. In the instant case this would equate to €21,000. It is well settled that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. In light of the foregoing and the fact that the complainant was treated in the most appalling manner, I consider the maximum compensation to be appropriate and I order that the respondent pay the complainant the sum of €21,000 in compensation for the effects of the discrimination and victimisation. The award does not contain any element of lost income. I would point out that I was constrained by the statute in the level of compensation which I could order and had that constraint not been place upon me I would have ordered a significantly higher award given the severity of the treatment to which the complainant was subjected. In addition to the financial compensation I also order the respondent -
(i) to review its policy on harassment/sexual harassment in the workplace to ensure that it accords with the Employment Equality Act, 1998-2004, in particular that it contains a mechanism for addressing complaints involving a client, customer or other business contact;
(ii) given the nature of the employment and working environment in which the respondent's employees operates the review process referred to at (i) above must commence within three months of the date of this decision; and
(iii) all staff in its employment who have responsibility in staff management functions are given appropriate training in the policy.
29 November, 2004
1 S.I. 337 of 2001
2 Ms. A v A Gym DEC-E2004-11
3 Customer Perception Ltd v Leyden EED0317