Ms X (Represented by Mary Honan BL, on the instructions of the Equality Authority) AND A Property Company (Represented by Cliona Kimber BL, on the instructions of Adams Corporate 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 23 of the Employment Equality Act 1998 when she was sexually harassed by the Chairman of the company. She also claimed that she had suffered victimisation by the respondent in terms of section 74 (2) of the Act. Claims of discrimination on the grounds of family status and marital status were withdrawn at the hearing. In accordance with the Equality Tribunal’s normal practice in claims of sexual harassment, parties have not been identified in this decision.
1.2 The Equality Authority, on behalf of the complainant, referred a claim to the Director of the Equality Tribunal on 11 February 2002 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director delegated the case on 25 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. Delays in forwarding submissions and bereavements suffered by some parties to the complaint resulted in the first joint hearing being held on 11 June 2004. A second hearing took place on 21 January 2005.
2. SUMMARY OF THE COMPLAINANT’S CASE
2.1 The complainant started employment as a Personal Assistant in the respondent company in December 2000. She said that she was sexually harassed by Mr A, Chairman of the company, from her first day. She alleged the sexual harassment involved invasion of her personal space, inappropriate conversation and inappropriate and unwelcome touching. She also asserted that Mr A said he could be her "sugar daddy" and offered her money and a car. The company had four directors: Mr A, Mr B (his son), Mr C and Ms D, who was also company secretary. It was Ms D's imminent departure on sabbatical that resulted in the complainant's employment in a secretarial capacity.
2.2 The complainant alleged that she had informed Mr C of the problem, and had consistently asked him when he was going to do something about it. He allegedly said that he had told Mr A she "was not that type of girl". The complainant said that Mr E, who was in partnership with Mr B although not himself connected with the respondent company, was frequently at the work location. She said she discussed the matter with Mr E on several occasions. 2.3 The complainant said she confronted Mr A on 29 March 2001about his behaviour, in the presence of Mr B and Mr C. She said she had shouted at Mr A, and insisted that she would not put up with his actions. The complainant said she then went home and attended her doctor that evening in a distressed state. Because of her distress, the doctor prescribed anxiolyics (medication to treat anxiety).
2.4 The complainant said that, following the confrontation, Mr A became increasingly sarcastic. She said that he victimised her by constantly commenting on her timekeeping. She claimed that he began to behave familiarly again, after some weeks, despite the fact that her distress and stress were apparent to him. She said she required psychotherapy, and eventually was prescribed sleeping pills in August 2001.
2.5 The complainant asserted that she was forced to resign from her employment on 15 August 2001 because of the way she had been treated and the debilitating effect it had on her health. She said that the final straw was that Mr A had signed a letter confirming the end of her probationary period and he approached her with his arms outstretched. She said this seemed to indicate he thought they could have a relationship and she panicked. She forwarded a letter of resignation on 20 August, wherein she claimed she had been subjected to sexual harassment.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denied that the complainant had been sexually harassed or that she ever made a complaint of sexual harassment. It also denied that she had been victimised. The respondent described Mr A as an elderly man in poor health, who had little day-to-day contact with the business. It claimed that the complainant had complained on a number of occasions that she "was no [Ms D]" and suggested that any stress she may have experienced may have resulted from her difficulty in settling into her new job.
3.2 The respondent claimed there were discrepancies in the complainant's submissions regarding the matter. It pointed out that her referral form claimed she had complained about Mr A's behaviour to the other directors on 29 March 2001, and made no reference to a confrontation with Mr A. Her subsequent written submission said she had confronted Mr A on that date, and did not refer to the other directors. The respondent also pointed out that the complainant had brought her child to the work location on several occasions, and it submitted this was unusual behaviour in an employee claiming sexual harassment.
3.3 The respondent acknowledged that a meeting took place on 29 March 2001, but said that this meeting was instigated by Mr B. It said the complainant had appeared upset and frustrated in getting to grips with her new job and in replacing Ms D, who had acted as secretary/personal assistant to Mr A for over 30 years. It was the respondent's contention that this was the only subject matter of the meeting and that the subject of sexual harassment was not mentioned. The respondent claimed that the first occasion on which anyone in the company heard of the allegations was when the complainant tendered her letter of resignation in August 2001.
3.4 The respondent pointed out that the complainant had been seeking a letter confirming her permanency and a salary increase immediately prior to her resignation. It said that she had received that letter on 15 August, which was the day she left the company. The respondent submitted an email dated 10 April 2001 wherein the complainant indicated her choice of company car. It suggested that her credibility was put at issue by her actions in seeking to improve her terms and conditions at one moment, and then alleging a matter of days later that she was forced to resign from the respondent company.
3.5 The respondent contended that the complainant had drafted a letter confirming her permanency for signature by Mr A. It said she presented it to Mr A on the morning of 15 August in the presence of Mr B. Mr A signed the letter, and he and Mr B both left the premises to travel down the country. Mr C was also absent at a meeting during the afternoon. Both he and Mr B made unanswered telephone calls to the office after lunch. On his return, Mr C discovered a note from the complainant saying she would be out for the afternoon. She did not return to work, and submitted a letter of resignation. The respondent expressed surprise that she would resign having had her permanency confirmed.
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. I wish to note here that Mr A died on 3 August 2003, but evidence was given by Mr B and Mr C that he had emphatically denied the allegations made against him.
4.2 The complainant alleged that the respondent discriminated against her on the ground of gender contrary to the provisions of the Employment Equality Act 1998 in that she was sexually harassed within the meaning of the Act and the respondent failed to take the necessary steps to establish a defence. Section 18 (1) of the Act provides that “A” and “B” represent two persons of opposite sex, and Section 23 provides that
(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 constitutesdiscrimination 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) 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 adefence for the Employer to prove that the Employer took such steps as are reasonably practicable...
(b) to prevent B from sexually harassing A...
4.3 The procedural rule applied in the case of gender discrimination is that prescribed by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI No 337 of 2000). The Labour Court, in applying this rule in a recent case said this meant that “…where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities." (Customer Perception Ltd and Leydon [EED0317]).
4.4 The first matter to be addressed, therefore, is whether the complainant has established the relevant facts. As will be clear from the summaries above, there are several contradictions in the assertions of the parties. The only matters agreed upon are that the complainant started work on 4 December 2000, that a meeting took place on29 March 2001and that she left the company on 15 August 2001.
4.5 Obviously, the tenor of the meeting of 29 March is in dispute. The respondent pointed out discrepancies in the complainant's submissions, but in its own submission said that the complainant appeared upset and that the meeting was attended by the complainant, Mr A, Mr B and Mr C. Accordingly, I am satisfied that this is the case. Mr B and Mr C denied that sexual harassment was referred to at any stage. Mr E, with whom the complainant said she discussed Mr A's behaviour on several occasions, was present at the work location when the meeting was called. He gave evidence that he had been in the boardroom with Mr B and Mr C when the complainant entered the room and burst into tears. He denied that any reference was made to sexual harassment and further denied that the complainant had ever made allegations of that nature to him.
4.6 Since the witnesses proposed by the complainant flatly deny she ever complained of sexual harassment to them, it is necessary to decide which version of events is more persuasive on the balance of probabilities. The complainant attended her doctor on the evening of 29 March, apparently in some distress. However, she attended work as normal the next day, and did not take any sick leave even though she said she was suffering from anxiety. In the absence of any corroborating evidence, I must conclude that the complainant has not shown that she made a complaint of sexual harassment
4.7 I note from the email dated 10 April that the complainant had decided on her choice of company car. There is nothing in the email to indicate anything untoward had happened or was happening. It is not in dispute that the complainant sought confirmation that her position was permanent. On balance, choosing a company car and seeking permanency do not support a contention that the complainant was being subjected to unwelcome attentions by Mr A.
4.8 It was the complainant's evidence that her only problem with her employment was Mr A. She said that she had a good working relationship with the other directors. However, she also claimed that she had complained to Mr C about Mr A's behaviour on an ongoing basis but he did nothing about it. I do not find these statements to be consistent.
4.9 As previously noted, the complainant alleged Mr A offered her a car and money. She was unable to offer any evidence of this. I note, however, that provision of a company car was part of the complainant's terms and conditions of employment. An offer of a further car would appear to be illogical. The complainant agreed that she had brought her child to the work location on a few occasions, at the suggestion of Mr B, when she had difficulties with childcare arrangements. Whatever the personal circumstances, it is difficult to envisage bringing a child into a situation where sexual harassment is a constant feature.
4.10 The complainant asserted that her resignation was based on Mr A's reaction after he had signed her letter of permanency. However, according to her own evidence, Mr A's behaviour had constantly been of this nature except for a brief period after the meeting of 29 March. While she was seeking permanency, for which she said she "almost had to beg", the complainant also requested a salary increase. The first letter of permanency she drafted for Mr A's signature included a salary increase, but he declined to sign this. On the basis of the information available to me, I must conclude that the complainant decided to resign because, while she had been made permanent, she had been refused a salary increase.
4.11 Taking all of the evidence into account, I do not find that the complainant has established a prima facie case that sexual harassment occurred or that she made a complaint of sexual harassment, on the balance of probabilities.
4.12 The complainant's allegation of victimisation is based on a claim that Mr A became sarcastic to her for a period after her complaint on 29 March, and as an instance she said he commented on her timekeeping. As I am not satisfied that the complainant made a complaint of sexual harassment on 29 March, I cannot find that alleged behaviour after that date was as a result of such a complaint. Accordingly, I do not find that the complainant was victimised by the respondent.
5.1 Based on the foregoing, I find that respondent
(i) did not discriminate against the complainant on the ground of gender, contrary to the provisions of the Employment Equality Acts 1998 - 2004; and
(ii) did not victimise the complainant, contrary to the provisions of the Acts.
14 October 2005