A Female Employee
(represented by the Equality Authority)
A Candle Production Company
1.1 The case concerns a claim by a female employee that a candle production company in Dublin, discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act 1998 in contravention of section 8 of the Act in relation to her conditions of employment. She also claims that she was victimised within the meaning of section 74(2) of the Act following her complaint to management.
2.1 The complainant submits that she was discriminated against in that she was subjected to sexual harassment in the course of her employment. She submits that when she complained of the sexual harassment, she was victimised by her employer as it treated her less favourably at work and dismissed her from her job. The respondent denied that the complainant was sexually harassed.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 31 January 2003. On 8 October 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 25 November 2004. Notwithstanding numerous requests, a submission was not received from the respondent prior to the hearing. A hearing of the claim was held on 15 June 2006. There was no appearance by or on behalf of the respondent at the hearing. A written submission from the respondent was received on 19 June 2006.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant commenced employment with the respondent in February 2002. Her direct supervisor was Mr. D . Mr. D spent most of his time in his office but would often come down to the factory floor to give instructions to staff. While Mr. D was on the factory floor giving instructions, he would often touch the complainant in a way that made her feel uncomfortable. He behaved in such a way with some of the younger women but did not attempt to touch the older women or the men. The complainant protested at the unwelcome conduct on a number of occasions but he only laughed at her.
3.2 Mr. D also made crude, inappropriate and offensive remarks of a sexual nature on a number of occasions. For example, one morning when she was late for work because of a power-cut which had activated her alarm, he said that if he had been there, he would have jumped into bed with her. He then put his arms around her waist, grabbing her bare flesh. One of the older women said that the complainant would have to wear a coat because of the way Mr. D was looking at her. On another occasion, when the complainant missed her bus because it was full, Mr. D advised her to carry a sign offering sexual favours to the bus drivers and that would solve her problems. He also passed comments abut her clothes saying that she "even looked sexy in a polo neck." He frequently called her his girlfriend and his "Barbie" and said that if she would go out with him, it would do wonders for his image.
3.3 The complainant became very stressed by the situation with her manager and was dreading coming to work. She sought advice from a solicitor who advised her to make a complaint directly to her employer. On or around 7 July 2002, the complainant telephoned the owner of the company, Mr. Mc G who was not generally on the premises. She asked to meet him to discuss a complaint of sexual harassment against Mr. D and he agreed to meet her to discuss the matter. On the next working day, Mr. Mc G came into the factory and called the complainant to the office. Although, the complainant found it extremely embarrassing, she told Mr. Mc G what was happening and said that the other girls on the floor could corroborate what was said. Mr. Mc G said that the complainant had better be sure of her allegations as he would have to call in the Gardai. The complainant hoped that he would deal with the problem and get Mr. D to stop the harassment. He said he would speak to Mr. D and other employees about the complaint. He then said that if she wanted him to take her allegations seriously, she would have to take her timekeeping and sick leave seriously and he produced a printout of her timesheet.
3.4 The complainant saw Mr. Mc G come in the following day and call Mr. D to his office. They were in the office for about half an hour and Mr. Mc G then left without speaking to anyone else. Mr. D was away on leave for the following few days and when he returned, he was quite abrupt with the complainant and very critical of her work. Some days later, he handed her a letter which he said was a "love letter". This was a hand-written formal warning about her punctuality, signed by both men and threatening her with unspecified "disciplinary action". The complainant states that following receipt of the warning, she made enormous efforts to improve her timekeeping and she came to work each morning twenty minutes before starting time. The complainant subsequently sent written details of her complaint to Mr. Mc G as she had been advised by her solicitor. As she heard no more about her complaint, she telephoned Mr. Mc G to ask what was being done about it. She states that Mr Mc G was quite aggressive towards her and told her that he had spoken with Mr. D and was satisfied with his version of events and that he saw no necessity to speak to any other employees about it. He said that if she wanted anything else done, she should contact the Gardai herself.
3.5 On Friday 2 August 2002, the complainant attended the doctor with a viral illness and was on certified sick leave from 2-6 August 2002. On Monday, 5 August 2002 which was a bank holiday, the complainant received a phone call from Mr. Mc G stating that she was being dismissed and that her employment had effectively ended the previous Friday. She tried to tell him about the doctor's cert and asked him why she was being fired. He said that he was not obliged to give her a reason, she received no notice, pay in lieu or holiday pay. The complainant's representative wrote to the respondent on 19 February 2003. Mr. Mc G replied by letter dated 31 March 2003. He submits that when he met with the complainant on 8 July 2002 to discuss her complaint, he said that it would be a matter for the Gardai. He said that when he asked her what she wanted done, she said that she did not want anything done but that she wanted the harassment to stop. He asked her to put the details of her complaint in writing and send it to him. He also stated that at the meeting, he raised the issue of her time-keeping and gave her a warning about it. He also states in his letter that after four further working days, "we decided to give notice to terminate her employment."
3.6 In his letter of 31 March, Mr. Mc G also stated that at his meeting with Mr. D, Mr. D denied the allegation and said that on occasion, there was a need to touch employees so as to get their attention as it was a noisy factory and they wore ear protectors. He submits that he did not speak to anyone else regarding the complaint and awaited the complainant's written account of events. He further submits that he received the complainant's written details regarding the sexual harassment claim on Monday 22 July 2002 and that the only witness named by the complainant was her cousin and that he could not therefore get an independent version of events. He stated that he believed the complaint to be fictitious and that the complainant's refusal to allow him to contact the Gardai "reinforces this belief".
3.7 The complainant submits that there were a number of inaccuracies in the respondent's letter. She submits that she never received a warning prior to the one issued to her on 8 July 2002 after she made her complaint. She submits that she only took three days annual leave and not the five referred to in Mr. Mc G's letter and that one "absent without reason" day was in fact annual leave for which she never received payment. She stated that she always gave explanations in full if she was late for work and that her manager always appeared to accept these without difficulty. In relation to the ear protectors, the complainant submits that they were not generally worn by the women and that she in particular could not wear them as she had to be able to hear calls to operate the 'stop' button on the machines.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant was dismissed due to extremely poor time keeping in a job that required all operatives to be in attendance for a production process to start. The claim of sexual harassment was made against her Production Manager only after she was warned that she would be dismissed unless her time keeping was to improve substantially.
4.2 The respondent submits that at his meeting with the complainant, she did not name any witnesses to the claimed harassment. In fact, she asked that nothing further be done. The respondent insisted that the complainant provide a written account of her complaint. Despite the complainant's request to do nothing, the respondent submits that it did in fact interview her Production Manager. The written account requested by the respondent was not received for some time. When it arrived, the only corroboration witness was Ms. R who is a cousin of the complainant and shared accommodation with her and there was no independent witness for the respondent to interview.
4.3 Following the meeting about poor time keeping and the complainant's claim of sexual harassment on 8 July 2002, the complainant's timekeeping continued to be extremely poor. She was given notice of dismissal on grounds of poor timekeeping on 19 July 2002. On Monday 22 July 2002, she submitted a written complaint. The complainant was not sexually harassed during her employment. She had a record of very poor timekeeping. Her late appearances and no shows caused a major production problem for a very small company and as a result she was dismissed.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The claimant in this case alleges that the respondent discriminated against her on the gender ground in that she was sexually harassed by her manager during the period of her employment from February 2002 to August 2002 and that she was victimised following her complaint to the respondent. The respondent submits that the complainant had issues with her timekeeping and denies that the complainant was sexually harassed and victimised after her complaint. I must therefore firstly consider (i) whether the complainant has established on the balance of probability that she was sexually harassed. If I find that the complainant has established that she was sexually harassed, I must then consider (ii) whether the complainant's employer is vicariously liable for the harassment. If I find that the complainant's employer is vicariously liable, I must consider as a defence (iii) whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace and whether the respondent dealt adequately with the complainant's complaint of sexual harassment. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the complainant. As there was no appearance by the respondent at the hearing, (although there was an attendance at the offices of the Tribunal after the hearing had concluded), I have not had the opportunity to hear any direct evidence from the respondent in defence of the complainant's claim.
5.2 Section 23(1) of the Employment Equality Act, 1998 provides that where a male harasses a female colleague or vice versa, the sexual harassment constitutes discrimination by the employer on the gender ground in relation to the victim's conditions of employment. Section 23(3) (where A and B represent two persons of the opposite sex) provides that:
'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.'
5.3 The respondent denies that the complainant was sexually harassed by her manager. I note the respondent's statement that Mr. D acknowledged in a meeting with Mr. Mc G in relation to the complainant's complaint that "there is a need to occasionally touch the shoulder of the operatives but this would only be to get their attention as when they are working in a noisy environment they wear appropriate ear defenders." Any act or conduct which was unwelcome to the complainant and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to the complainant constituted sexual harassment within the meaning of the Act. I have heard the complainant's direct evidence in the matter and on the balance of probability, I find that the complainant was sexually harassed by Mr. D.
5.4 Section 15(1) of the Employment Equality Act, 1998 provides:
'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 without the employer's knowledge or approval.'
In the present case, there is no doubt but that the actions of Mr. D, the Production Manager and the complainant's Supervisor, were carried out in the course of his employment and notwithstanding that the actions may have been carried out without the employer's knowledge or approval, the respondent is vicariously liable for the actions of Mr. D.
Section 15(3) Defence
5.5 Section 15(3) provides that:
'In proceedings bought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee -
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.'
At the time of the harassment, it does not appear that the respondent had any policies in place in relation to the prevention of sexual harassment in the workplace. The respondent did not refer the complainant to any policy detailing how her complaint might be progressed and his reaction was that the Gardai should be involved. In the present case, no evidence has been presented to indicate that the employer had taken any steps that were reasonably practicable to prevent sexual harassment occurring in the workplace and it cannot therefore avail of the section 15(3) defence.
Actions taken by the respondent
5.6 The complainant submits that when she complained of sexual harassment, she was victimised by the respondent in that no proper investigation took place. The respondent rejected the complainant's allegation that it failed to respond to the complainant's complaint. It appears to me that the respondent was unclear on how to handle the sexual harassment complaint. This was exacerbated by the respondent's failure to have policies and procedures in place to deal with complaints made either formally or informally. The failure to have such policies in place could also have had implications for the complainant in the situation that she found herself in that she could have been unsure where to direct her complaint, what she could expect to happen arising from her verbal complaint, what would happen on foot of a written complaint, whether the matter would remain confidential, what the procedure was for carrying out an investigation and what she could expect when the investigation was completed in circumstances where her complaint was upheld/not upheld. Indeed, the complainant submits that she sought advice from a solicitor who advised her to make a complaint directly to her employer.
5.7 There were a number of inadequacies in the manner in which the respondent handled the complainant's complaint in the absence of a policy on sexual harassment. These include the failure to deal properly with the complainant's informal unwritten complaint, failure to undertake a formal investigation when the complainant submitted a written complaint, failure to interview the witness named by the complainant, make any clear findings in relation to whether sexual harassment had occurred and communicate such findings to the complainant, the failure to consider disciplinary action and the failure to make proper provision for a harassment free environment for the complainant. Indeed, the respondent's reaction to the complainant's complaint was to suggest referring the matter to the Gardai and to raise the completely separate issue of the complainant's timekeeping at the meeting in relation to her complaint of harassment. The complainant was also compelled to make a formal complaint as the respondent submits that "I however insisted that she give me a written account of her complaint." When the complainant made her complaint, the respondent considered that it was a "fictitious situation made up by a young lady who was aware of the precarious position that her job was in due to her continual late arrival for work" and submitted that the fact that she absolutely would not allow him to contact the Gardai reinforced that belief. The respondent considered that the matter was one for the Gardai but did not appreciate that it had, as the complainant's employer, responsibility in the matter.
5.8 Section 74(2) of the Act provides, inter alia, that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith -
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
The first issue for consideration by me is whether the complainant in the present case has established a prima facie case of victimisation. I must therefore consider whether the claimant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. Sexual harassment is expressly prohibited by section 23 of the Employment Equality Act, 1998. In making her complaint, the complainant was seeking to oppose by lawful means something which is clearly unlawful under the 1998 Act. The complainant submits that the warnings about timekeeping and the criticism of her work which followed immediately on the complaint constituted victimisation. She also submits that she was penalised by the respondent's failure to deal adequately with her complaint. The respondent in a letter to the Equality Authority dated 13 March 2003 submits that Mr. Mc G met with the complainant on 8 July 2002. The complainant was given a written warning on 18 July 2002 which referred to the complainant being late for work on three occasions during the past week.
5.9 The respondent submitted that the complainant was given a formal warning in May in relation to her timekeeping and that a verbal warning was given to her by her Production Manager in June. Mr. Mc G himself did not speak to the complainant about her timekeeping until the meeting of 8 July 2002 which she requested in relation to her complaint of sexual harassment. The complainant submitted that she never received a warning in relation to her timekeeping prior to the verbal one issued to her on 8 July 2002 at the meeting with Mr. McG. The respondent presented evidence which shows that the complainant was late on 26 occasions over almost five months prior to the meeting on 8 July in relation to her complaint of sexual harassment. However, the respondent did not adduce any evidence to support its contention that the complainant had in fact been spoken to in relation to her timekeeping prior to 8 July 2002 and she did not receive a written warning until 18 July 2002. Additionally, no evidence was presented that the respondent had or adhered to a Disciplinary Policy when dealing with the issues arising in relation to the complainant. On the balance of probability, I find that the complainant has established a prima facie case of victimisation in relation to her timekeeping becoming an issue after the complainant's complaint of sexual harassment which the respondent has failed to rebut.
5.10 As stated at paragraph 5.8 above, in making her complaint, the complainant was seeking to oppose by lawful means something which is clearly unlawful under the 1998 Act. In the light of the manner in which the investigation was conducted as detailed at paragraphs 5.6 - 5.7 above, I find that the complainant was penalised by the manner in which the investigation was carried out and that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. On the balance of probability, I find that the complainant has established a prima facie case of victimisation which the respondent has failed to rebut.
5.11 In considering redress for victimisation, I have considered that any award must be dissuasive and that victimisation is totally unacceptable as it has the potential to undermine the effectiveness of the equality legislation.
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 23 of the Act in relation to her conditions of employment. I also find that the complainant was victimised within the meaning of section 74(2) of the Act when she complained of the harassment.
6.2 In accordance with section 82(1) and (5) of the Employment Equality Act, 1998, I hereby order that:
1. the respondent pay the complainant the sum of €7,000.00 compensation for the effects of the discrimination;
2. the respondent pay the complainant the sum of €10,000.00 compensation for the effects of the victimisation;
3. the respondent pay the complainant interest at the Courts Act rate on the amounts awarded for compensation in respect of the period beginning on 31 January 2003 (being the date of the reference of the claim) and ending on the date of payment;
4. the respondent draft a policy on the prevention of harassment and sexual harassment in the workplace in accordance with the Equality Authority Code of Practice on Sexual Harassment and Harassment at Work (The Code was given legal effect by Statutory Instrument entitled 'Employment Equality Act, 1998 (Code of Practice) (Harassment) Order 2002' (S.I. No. 78 of 2002)), take appropriate measures to communicate the policy to all its employees and display it permanently in a prominent position in the respondent's premises.
9 August 2006