Ms. G (Represented by Donal Taaffe & Co. – Solicitors) And An Employer (Represented by IBEC)
This dispute involves a claim by Ms. A that she was (i) discriminated against by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 23 of that Act, insofar as she was sexually harassed by a work colleague at the respondent’s plant on 8 January, 2003 and (ii) victimised in terms of section 75(2) of the Act when she reported the matter to the respondent’s General Manager. 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 works as a Quality Assurance Manager with the respondent at its poultry plant. On8 January, 2003 she was inspecting carcasses on the killing line. She alleges that a male work colleague (Mr. A) touched her inappropriately as he passed her. She contends that this behaviour constitutes sexual harassment of her contrary to section 23 of the Employment Equality Act, 1998. The complainant further contends that when she reported the matter to Management it did not investigate her complaint in a manner which permits it to rely on the defence available at section 23(5) of the Act and in fact the actions of its General Manager constitute victimisation of her in terms of section 75(2) of the Act.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on4 July, 2003. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Written submissions were received from both parties and a hearing of the complaint took place on 28 January, 2005. A number of issues emerged at the hearing which gave rise to further correspondence with the parties subsequent to the hearing. This process concluded on 11 July, 2005.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant works as a Quality Assurance Manager with the respondent at its poultry plant. She states that on 8 January, 2003she was inspecting carcasses on the killing line when the Line Manager summoned two of her male colleagues from the far end of the work area. She alleges that as one of them (Mr. A- who is a foreign national) passed behind her, he put his arm around her waist and touched her in an inappropriate manner on her genital area. She states that she turned, yelled at him and struck him on the shoulder. She immediately spoke with her Line Manager about the incident and he accompanied her to the Production Manager’s Office. She states that she recounted the incident to the Production Manager (Mr. B), that he took some notes of what she said but did not take a statement from her and that he subsequently summoned Mr. A to his office. The complainant alleges that during this discussion Mr. B told her what had happened was a “sackable offence”, that Mr. A would not be allowed to work until the General Manager (Mr. C) who was absent that day, returned the following Monday and that Mr. A apologised to her for his behaviour saying it was “meant as a joke”. The complainant states that she returned to Mr. B’s office later that day and he told her that Mr. A was not to be suspended due to the “language barrier”, that the matter would be handled by the General Manager (who was fluent in Mr. A’s language) on his return and that if she did not wish to work with Mr. A she could remain at home. The complainant stayed off work the next day and states that she was deducted a days’ wages the following week.
3.2 The complainant states that she was called to Mr. C’s office the following Monday and he took a statement from her. She contends that Mr. C told her he had spoken to Mr. A and his colleague (Mr. D) and that they had given identical statements in terms that there was little space to get past the complainant and Mr. A had put his arm around her waist in order to do so. She adds that Mr. C told her he had taken statements from other employees in the area and they had not seen the incident. She adds that Mr. C told her he was prepared to accept this explanation and in light of the circumstances he could not take any disciplinary action against Mr. A. His (Mr. A’s) contract was due to expire in a few weeks and he would not renew it, although she was aware that it was not to be renewed in any event.
3.3 The complainant states that she met with Mr. C the next day (14 January, 2003) and he told her Mr. A was of the view that what had happened was normal behaviour, that he had accused her of touching him in an intimate manner and that he could produce more than thirty witnesses to support his allegation. The complainant adds that at this stage she felt she was being threatened so that she would not pursue the matter further and she gave Mr. C a weeks’ notice, which would expire on 21 January, 2003. She states that Mr. C spoke with her on 16 January and asked her to stay until 22 January, the day of an important audit, offering her two weeks’ paid leave if she agreed to do so, by which time Mr. A would have left the respondent’s employment. The complainant states she told Mr. C the audit was not her responsibility he told her “to get out of her sight and not to be wasting his time”. The complainant adds that she initially accepted the respondent’s offer but as the date she was due to return to work approached she found she was unable to do so as she was so traumatised by the events of the alleged harassment and the failure of the respondent to deal with her complaint. She was certified as unfit for work by her doctor and never resumed her duties. The complainant states that the respondent subsequently withheld payment of the last three days of the agreed two weeks’ leave. She states that she met with the respondent, with her trades union official, on 14 March, 2003 but the discussions were unsuccessful.
3.4 The complainant submits that the alleged treatment of her constitutes sexual harassment of her in terms of section 23 of the Act. She further submits that the investigation conducted by Mr. C was flawed and incomplete in that he clearly did not have regard to the statements of Mr. A and his colleague (Mr. D) in particular, in reaching the decisions he did. In conclusion, she submits that the respondent did not act in a manner which could be regarded as “reasonably practicable” in terms of section 23(5) of the Act. Finally, the complainant submits that the threat of a counter claim by Mr. A which was indicated to her by Mr. C when they met on 14 January, 2003constitutes victimisation of her in terms of section 75(2) of the Act.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent states that the complainant reported an incident to her Line Manager on 8 January, 2003. The complainant was upset and he suggested that she should speak with Mr. B, the Production Manager. He took a statement from the complainant and Mr. A however, due to the “language barrier” Mr. B decided to terminate the process and await the return of Mr. C, the General Manager, who spoke Mr. A’s language fluently and it would therefore be more appropriate for him to conduct the investigation. The complainant objected to working in the same location as Mr. A and Mr. B suggested that she should stay at home with full pay the next day and the complainant did not attend work that day.
4.2 The respondent states that the General Manager (Mr. C) returned to work on Monday 13 January, 2003and was briefed by Mr. B of the events surrounding the alleged incident. Mr. C called the complainant to his office around 11am and took a statement from her. He advised her he would conduct a full investigation of her complaint and would keep her fully informed. The respondent states that the complainant demanded that Mr. A be dismissed immediately otherwise she would resign and that Mr. C asked her to wait until his investigation was complete. Later that day Mr. C took statements from five other employees. He decided to consider the matter overnight, review the statements the next day and concluded that he did not have enough evidence to instigate disciplinary proceedings against Mr. A. He informed the complainant of his decision and told her he would talk with her again. The respondent denies Mr. C told the complainant that Mr. A would counter claim that she touched him in an intimate and inappropriate manner or that the complainant tendered her resignation at any time during the course of their discussions.
4.3 The respondent states that Mr. C met with the complainant again on 15 January, 2003 and re-affirmed to her that he was unable to instigate disciplinary proceedings against Mr. A. He informed her that Mr. A’s contract was due to expire on 31 January, 2003 and it was not going to be renewed – the respondent states that this decision had been taken prior to the alleged incident. Mr. C adds he told the complainant that if she worked until 22 January, 2003- the day of an important audit – he would give her paid time off until 3 February, by which time Mr. A would have left the respondent’s employment. The respondent contends that these proposals were acceptable to the complainant and that she never resigned.
4.4 The respondent states that the complainant did not report for work on 3 February, 2003as expected, instead she furnished a medical certificate stating she was unfit for work due to stress. The respondent adds that it met with the complainant on 14 March, 2003 during which the outcome of Mr. C’s investigation was re-emphasised to her and notwithstanding this the respondent requested her to return to work, the respondent would pay her for the period she was absent due to illness and the parties could then address the issues which were problematic to her. These proposals were however, not acceptable to the complainant. In conclusion, the respondent submits that it acted in a manner which enables it to rely on section 23(5) of the Employment Equality Act, 1998.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the complainant was (i) discriminated against by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 23 of that Act, insofar as she was sexually harassed by a work colleague at the respondent’s plant on 8 January, 2003 and (ii) victimised in terms of section 75(2) of the Act when she reported the matter to the respondent’s General Manager. In reaching my decision I have taken into account all of the submission, both oral and written, made to me by the parties.
5.2 The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20011 sets out the procedural rules to be applied in respect of the burden of proof to be discharged by parties in claims of gender discrimination. It requires that the complainant must, in the first instance, establish facts from which it can be inferred that she suffered discriminatory treatment. It is only when the complainant has established those facts to the satisfaction of the Equality Officer and s/he regards them as being of sufficient significance to raise a presumption of discrimination, that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 Section 23 of the Employment Equality Act, 1998 provides, inter alia, as follows:
“(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 either—
(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.
(3) For the purposes of this Act—
(a) any act of physical intimacy by B towards A, ….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.”
5.4 The respondent initially furnished the Equality Officer (in its submission) with the statements Mr. C took from three of the complainant’s colleagues on 13 January, 2003. Photographs of the area where the alleged incident occurred were also furnished. Two of the people who gave statements attended the hearing. The evidence of the first witness was essentially that he saw nothing untoward on the day. The evidence of the second witness (the complainant’s Line Manager) was at variance with the complainant’s version of events insofar as he stated that Mr. A and his colleague passed in front of the complainant and not behind her as she alleged. I note his comment that the complainant was crying and visibly upset that day and that he had never seen her behave in that fashion before. During the course of the hearing the statements taken from Mr. A and his colleague (Mr. D) by the General Manager (Mr. C) were furnished to the Equality Officer. Mr. A’s statement says that he passed behind the complainant on the day in question and that as he brushed passed her he placed his hand on her shoulder to facilitate easy passage. Mr. D’s statement says that he was behind Mr. A and as he (Mr. A) passed by the complainant he (Mr. D) noticed that he touched the complainant on the shoulder and on the waist. It adds that he then saw the complainant strike Mr. A on the shoulder. The photographs of the work area show that there would be a continuous stream of poultry carcasses suspended on hooks moving along a production line at eye level. It seems to me it would be highly unlikely that a person would choose to pass between the complainant and this production line having to avoid the carcasses instead of passing behind the complainant – in my view the easier option. Having regard to the totality of the evidence presented on this issue I am satisfied, on balance, that the incident occurred as described by the complainant i.e. that Mr. A touched her in an intimate and inappropriate manner as he passed her and that this behaviour constitutes a prima facie case of sexual harassment of the complainant in terms of section 23 of the Act.
5.5 Section 23(5) of the Employment Equality Act, 1998 provides a defence for the respondent in cases of sexual harassment. This provision states: (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).”
5.6 I must therefore consider if the steps taken by the respondent after the complainant reported the incident could be considered “reasonably practicable” to enable it rely on the defence at section 23(5) of the Act. The respondent’s immediate response was appropriate in the circumstances and I accept that Mr. B believed the matter was best handled for a number of reasons by the General Manager on his return, given that he offered the complainant a paid day off on the Friday and she would therefore not have to meet with Mr. A, an approved absence for which she was subsequently deducted a day’s pay. I note Mr. C’s comment that he took statements from the complainant and five of her colleagues the day he returned to work – Monday 13 January, 2003. He states that he considered the matter overnight, reviewed the statements the next morning and decided that he did not have enough evidence to instigate disciplinary proceedings against Mr. A. I cannot accept that it was reasonable for Mr. C to reach the conclusions he did based on the contents of the statements in his possession at that time, in that Mr. D’s statement clearly indicated that Mr. A touched the complainant around the waist. In my view he should have probed the matter further with all concerned and he did not do so – his conclusions were therefore premature and incomplete. I note that Mr. C was unable to offer any explanation for this omission at the hearing. In addition, he never at any stage of the internal investigation process informed the complainant of the contents of the statements taken from her colleagues and the first time the statements from Mr. A and Mr. D were made available to her was at the hearing.
5.7 There is a dispute between the parties as to whether or not the complainant resigned around this time. The relevance of this is that the respondent, whist denying she resigned, states that Mr. C asked the complainant to work until 22 January, 2003 to cover an important audit and that he would give her paid time off until 3 February, by which time Mr. A would have left the respondent’s employment. The respondent adds Mr. C was under the impression that the complainant was agreeable to this and that they had agreed a way forward at that meeting. Taking the totality of the evidence presented to me I am of the view that the complainant did resign on 14 January, 2003 – otherwise why would Mr C offer her an inducement to stay until 22 January, 2003 – the day after her notice was due to expire - if he believed she should report for work in any event. It is also odd that the respondent would offer the complainant paid time off work until after Mr. A has ceased his employment with it, in circumstances where Mr. C was adamant that he could not instigate disciplinary proceedings against Mr. A, in what it states was an effort to address the complainant’s concerns about Mr. A’s behaviour. I note the respondent did not have a formal policy on sexual harassment in existence at the time of the incident, rather the investigation was premised on an informal grievance procedure. The Employment Equality Act, 1998 came into force on18 October, 1999, which was over three years prior to the incident. It is essential that employers have in place accessible and effective procedures to deal with sexual harassment and the failure of the respondent to have such a policy in place three years after the Act came into force is a seriously damaging factor to its defence. In light of the foregoing I cannot accept that the respondent took the complainant’s grievance seriously or that the steps it took were reasonably practicable, in terms of section 23(5) of the Act to provide it with a defence under that provision.
5.8 Finally, I am not satisfied, on balance, that the alleged incidents of penalisation cited by the complainant constitute a prima facie case of victimisation of her contrary to the Act.
6. DECISION OF THE EQUALITY OFFICER
6.1 I find that
(i) the respondent discriminated against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 23 of that Act when she was sexually harassed by a male work colleague at the respondent’s plant on 8 January, 2003;
(ii) the complainant has failed to establish a prima facie case of victimisation in terms ofsection 75(2) of the Act.
6.2 I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2004 that the respondent –
(i) pay the complaint €18,000 by way of compensation for the distress suffered by her as a result of the discrimination. This award does not contain any element in respect of loss of income on the part of the complainant;
(ii) introduce, within six months of the date of this decision, a policy on sexual harassment in the workplace with particular reference to the provisions of the Employment Equality Act, 1998 (Code of Practice) (Harassment) Order, 2002 (S.I. 78 of 2002);
(iii) ensure that the policy is kept under review and that all supervisory staff are given appropriate training in the policy.
11 October, 2005
1 S.I. 337 of 2001