EMPLOYMENT EQUALITY ACT, 1998
EMPLOYMENT EQUALITY ACT, 1998-2004
EQUALITY OFFICER'S DECISION NO: DEC-E2006-025
Ms. S (Represented by Mr. O'Sullivan, B.L. instructed by W & E Bradshaw Solicitors)
A Named Organisation (Represented by Mr. Mallon, B.L. instructed by Arthur Cox Solicitors)
Ms. S (complainant) Represented by Mr. O'Sullivan, B.L. instructed by W & E Bradshaw Solicitors vs A Named Organisation (respondent) Represented by Mr. Mallon, B.L. instructed by Arthur Cox Solicitors:
Equality Officer Decision DEC-E2006-025 (Coyle G.) 1st June, 2006
Employment Equality Act, 1998 Sections 6, 8 and 23 - Employment - Sexual Harassment
Employment Equality Acts, 1998-2004 Section 74(2) - Employment - Victimisation
The complainant commenced employment with the respondent organisation in September, 1996. She alleges that she was subjected to systematic sexual harassment by a senior colleague over a period of six years from 1998 to 2003. It is her submission that the last act occurred on 2nd April, 2003. The complainant further alleges that she was subjected to victimisation within the meaning of Section 74(2) of the Employment Equality Act, 1998-2004. The respondent denies all the allegations.
Conclusions and Decision:
The Equality Officer held that on the balance of probabilities the respondent's version of events were more credible than the complainant's version of events. The Equality Officer found that the complainant has failed to establish a prima facie claim of discrimination in relation to sexual harassment within the meaning of Section 23 of the Employment Equality Act, 1998. It is the Equality Officer's finding that the complainant was not subjected to victimisation in terms of Section 74(2) of the Employment Equality Act, 1998-2004. The Equality Officer recommended that the respondent provides training to personnel in the provisions of the Employment Equality legislation and in the event of internal investigations of claims of alleged sexual harassment or of other allegations under the Equality legislation an appeals body should be established so that the findings of an internal investigation can be appealed to this body.
1.1 The dispute concerns a claim by Ms. S that she was subjected to sexual harassment in terms of Sections 6 and 23 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. The complainant further alleges that she was subjected to victimisation within the meaning of Section 74(2) of the Employment Equality Acts, 1998-2004.
1.2 The complainant commenced employment with the respondent organisation in September, 1996. She alleges that she was subjected to systematic sexual harassment by a senior colleague over a period of six years from 1998 to 2003. It is her submission that the last act occurred on 2nd April, 2003. The respondent denies the allegations. Consequently the complainant referred a complaint to the Director of Equality Investigations on 3rd September, 2003 under the Employment Equality Act, 1998. A further claim of victimisation was referred on 9th March, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of the Act(s) the Director then delegated the cases to Gerardine Coyle, Equality Officer on 22nd October, 2004 and 20th April, 2005 respectively for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing of these claims took place on 25th November, 2005. Further additional information in these claims was received from both parties with the final information being received on 12th December, 2005. Clarification was sought from the respondent on 20th April, 2006 and this was received 5th and 10th May, 2006.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
Allegation of Sexual Harassment
2.1 According to the complainant she has been subjected to repeated sexual harassment by a colleague, hereinafter to be referred to as Mr. A. The complainant states that these actions of a sexual nature have happened in her office, in his office and have always been against her will and despite her attempts at physical resistance and dissuasion. It is the complainant's submission that the sexual harassment took the form of:
(a) embraces often lingeringly;
(b) kissing on the face often lingeringly;
(c) an attempt to kiss on the mouth;
(d) caressing the knee or the area immediately above it;
(e) grabbing and holding her hand.
2.2 The complainant states that in September, 2000 she was in Mr. A's office and he was showing her a book that he had edited. He then suddenly put his arms around her and kissed her on the side of her face and according to the complainant the embrace lasted an inappropriate length of time. The complainant states that later that month she sought his advice regarding a particular matter with which she had difficulties. It is her contention that she approached him about this matter because of his position in the organisation. According to the complainant Mr. A put his arm around her presumably to comfort her as she was crying. He then proceeded to kiss her on the face and she considered this to be inappropriate. The complainant says that she left his office shortly afterwards.
2.3 On one occasion which the complainant believes was in 2000 when Mr. A was in her office he suddenly produced a wallet of photographs and he insisted on showing them to her. According to the complainant Mr. A stated that these were photographs of women he had been involved with. The complainant says that she was highly embarrassed and threatened by the sexual nature of this discourse. On one occasion between 2000 and 2002 the complainant says that Mr. A came to her office. At the time she was sitting on one of the chairs reserved for visitors. Mr. A came and sat next to her and suddenly he put his hand on her thigh and started to rub it up and down.
2.4 The complainant states that in late September, 2002 Mr. A came to her office and said "you look gorgeous". She claims that he then grabbed her and held her against him and kissed her lingeringly on the face. He then inclined his head as if he intended to kiss her on the mouth. The complainant alleges that in December, 2002 Mr. A came to her office and they were discussing business issues when he grabbed hold of her hands and held them in his. It is the complainant's contention that she felt alarmed as she did not know what he was going to do with them. She says that she felt disabled but after a few seconds he released her hands. According to the complainant the last incident occurred on 2nd April, 2003 between 12.45p.m. and 1.00p.m. in her office when he put his arm around her shoulders and pulled her towards him. The complainant states that she pulled away.
2.5 It is the complainant's submission that on each occasion, although she had resisted his advances physically by pushing him away, she felt unable to state bluntly that she found his physical behaviour unacceptable because she felt frightened that he would use his position against her. The complainant states that, on two occasions in particular, he has implied that he would be able to do so. According to the complainant the first occasion (in early 1998?) [it should be noted that this question mark was in the complainant's submission] Mr. A suggested that she hand over to a colleague the running of a particular Centre which she headed. The reason for this was because he considered her position in the respondent organisation was not secure as she had not been before the committee which confirms probation. At the time the complainant told Mr. A that she had been appointed to a permanent position in 1996 with one year's probation to end September, 1997. According to the complainant Mr. A shortly after confirmed that her contract did indeed stipulate that her probationary period was of one year's duration. The complainant states that she felt threatened by this incident as Mr. A was responsible for this area and should have known the terms of her contract and should have organised for her to appear before the probationary committee at the appropriate time which eventually happened in 1999.
2.6 It is the complainant's submission that the second occasion was in January, 2003 when she asked colleagues involved in the Centre to email her about her proposal to go to Padua in February, 2003 to attend a workshop. On 23rd January, 2003 the complainant states that she was on the street outside the respondent organisation when Mr. A came up behind her and asked her what she would do if he disapproved of her proposal to travel to Padua or if he were to respond by email saying that she could go if he could come too. The complainant says that he then said "but I suppose you would circulate the email to everyone wouldn't you?" The complainant says that she found both questions, which were not asked in a humorous tone, sinister and intimidating.
2.7 The complainant states that on a number of occasions she has encountered Mr. A while she is on her way to the crèche (which is located in the grounds of the respondent organisation) to deposit or collect her son. According to the complainant he has insisted on accompanying her, often into the crèche, despite her clear verbal indications that she does not find this convenient. It is the complainant's submission that this is an unwanted invasion of her private life and an extension of his harassment of her. The complainant states that she has found that harassment most harrowing, offensive, degrading and above all threatening on a personal and professional basis.
Allegation of Victimisation
2.8 The complainant alleges that she has suffered victimisation and/or penalisation in the course of her employment with the respondent organisation as a result of having opposed conduct that is unlawful under the Employment Equality Act, 1998 and/or having complained about discriminatory treatment and/or having made a complaint of sexual harassment to the respondent and/or having lodged a claim of discrimination before the Equality Tribunal on the grounds of gender against the respondent.
2.9 It is the complainant's contention that the respondent has not made any or any reasonable effort to ensure that she does not come in contact with Mr. A in the course of her employment even though it was suggested by the respondent that "as much as possible, efforts would be made to prevent both parties attending the same meetings or events ...". According to the complainant she frequently comes into contact with Mr. A at meetings and in a particular building in the respondent organisation. The complainant states that she sought to have her office moved to another building but this request was refused. It is the complainant's belief that other women in the respondent organisation (who have made complaints of physical intimidation and harassment) have been provided with protection during and after the investigation even when the alleged perpetrator was not found guilty. The complainant submits that no such protection has been afforded to her despite repeated statements to the respondent regarding her sense of vulnerability.
2.10 It is the complainant's contention that a female colleague (hereinafter to be referred to as Ms. X) resented the fact that she (the complainant) had made a complaint and sought to undermine her as a result. According to the complainant Ms. X referred to her complaint as 'irrational' behaviour. The complainant says that on the 21st November, 2003 she received two emails sent by Ms. X to a number of other colleagues in response to an email about a meeting with an individual. According to the complainant Ms. X referred to being able to go to the meeting "and have no contact with those whom I wish to exclude from my life". Then on 27th September, 2003 the complainant attended a meeting which was also attended by Mr. A. At this meeting the complainant alleges that Ms. X proposed that the position held by the complainant be taken over by someone else. It is the complainant's submission that this was done without consultation with her and was extremely embarrassing. The complainant contends that there was no justification for the actions of Ms. X and she believes that it resulted from Ms. X's attitude towards her complaint against Mr. A.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
Response to allegation of Sexual Harassment
3.1 The respondent states that the complainant lodged a formal written complaint with the respondent organisation in August, 2003 alleging sexual harassment by Mr. A over a period of six years. As a result of this complaint a person at a senior level in the organisation (hereinafter referred to as the investigator) was appointed to carry out an investigation. The respondent states that the investigation was carried out under its Policy and Procedures for Dealing with complaints of Bullying in the Workplace including Sexual Harassment and other forms of Harassment. According to the respondent the following formal process was approved by all the parties:
(i) Staff members were entitled to representation at any meeting regarding the complaint;
(ii) A formal written complaint involves the provision of a written statement to be addressed to the investigator;
(iii) The contents of the written statement to be communicated to Mr. A with a request for a response;
(iv) The investigator to meet the complainant to ensure that he understands the details of her complaint;
(v) The investigator to meet Mr. A to ensure that he understands the details of the response;
(vi) The investigator to consider both the allegation and the response and to decide whether there is a case to answer;
(vii) If it is considered that there is a case to answer then a disciplinary procedure will be initiated. Any disciplinary procedure to be dealt with under the procedures as laid out in the respondent organisation documentation;
(viii) The outcome to be communicated to all parties.
The investigator met with the complainant on 8th September, 2003 at which he requested her to provide him with a written statement detailing the exact nature of her complaint. This statement was received on 10th September, 2003 along with a list of named individuals whom the complainant asserted could verify her claims. According to the respondent the investigator contacted three of the named individuals. The complainant's statement was passed to Mr. A for a response and a copy of this response was provided to the complainant. The respondent says that two further meetings took place with the complainant on 15th September and 31st October, 2003. Following that on 17th January, 2004 the investigator issued a report outlining the findings of his investigation.
3.2 The details of the complaint by the complainant are set out in the summary of her submission above. In considering each of her allegations the respondent says that the investigator took direction from the definition of Sexual Harassment as set out in the Employment Equality Act, 1998. At the conclusion of his investigation the investigator found that there was no satisfactory evidence that Mr. A conducted himself in a way which was unwelcome or could reasonably be regarded by the complainant as offensive, humiliating or threatening. The respondent says that the investigator found that none of his actions constituted sexual harassment or intimidation in the normal meaning of the terms and consequently the complaints were not upheld. In reaching this conclusion the investigator took the following into account:
(a) The significant delay in coming forward with these complaints. (Almost all of the incidents took place more than six months before they were reported and the earliest event dates back to 1998 - six years ago).
(b) The lack of independent evidence. (Almost all of the incidents took place in private offices. Also none of the third parties contacted by the investigator could state that they had knowledge of the allegations prior to 2003).
(c) Mr. A's explanation of events as set out in his written response to the allegations.
The respondent notes that the investigator went on to suggest that should the complainant remain of the view that she is threatened by the presence of Mr. A, a process of mediation might be the best method of allaying these concerns.
3.3 The respondent says that on 4th February, 2004 the investigator along with a person from Human Resources met with the complainant to present the findings of the investigation. At this meeting discussions took place on how direct contact between the two parties could be minimised. It was explained that, as there was no finding against Mr. A, he could not be excluded or separated from this area of the organisation. The respondent says that a suggestion was made that, as much as possible, efforts would be made to prevent both parties attending the same meetings or events. It was made clear that this would also mean that there might be occasions when the complainant might not be in attendance at events where Mr. A would be present. The respondent notes that the complainant was not happy with this suggestion. The investigator agreed to act as a conduit for correspondence between the two parties and this arrangement continues to the present day.
3.4 The respondent states that, at all material times, its policy prohibited sexual harassment and other forms of harassment in the workplace. According to the respondent it introduced policies and procedures for dealing with complaints and following receipt of the complaint from the complainant an investigator was appointed to investigate the complaint in accordance with these policies and procedures. It is the respondent's contention that the complainant's submission does not disclose any cause of action against the respondent organisation that may be reviewed pursuant to the provisions of the Employment Equality Act, 1998. The respondent states that it did not discriminate against the complainant nor did it ignore or contravene in any way its statutory obligations to employees regarding equality in the workplace. According to the respondent much of what the complainant submits is irrelevant and constitutes very little, if anything, more than a grievance about the investigator's conclusions and the fact that he did not uphold her complaints. The respondent states that there is no basis for the complaints by the complainant against the respondent organisation pursuant to the Employment Equality Act, 1998.
Response to the allegation of Victimisation
3.5 The respondent denies that the complainant was subjected to victimisation and/or penalisation in the course of her employment with the respondent organisation, whether by reason of her having made a complaint or lodged a claim with the Equality Tribunal pursuant to equality legislation or otherwise.
3.6 In her written submission the respondent notes that the complainant, as an example of this victimisation, alleged that the respondent has not made "any or any reasonable efforts to ensure that the complainant does not come into contact with Mr. A in the course of her employment" and she held that the respondent failed to comply with commitments made in its own written submission (i.e. the respondent's previous submission on the alleged sexual harassment claim). The respondent states that the relevant paragraph in its previous submission read as follows:
"At this meeting, discussions took place on how direct contact between the two parties could be minimised. It was explained that as there was no finding against Mr. A, that he could not be excluded or separated from the Department. A suggestion was made that, as much as possible, efforts would be made to prevent both parties attending the same meetings or events. It was made clear that this would also mean there might be occasions when the complainant might not be in attendance at events where Mr. A would be present. However the complainant was not happy with this suggestion. The investigator agreed to act as a conduit for correspondence between the two parties. This arrangement has continued to the present day."
The respondent says that at the meeting referred to above (held on 4th February, 2004) the investigator presented his report to the complainant and in the light of the findings contained in that report the parties entered into discussions on how the complainant and Mr. A could work together in the future. According to the respondent the complainant asked that Mr. A be removed but the respondent could not accept this suggestion as there was no finding against Mr. A and, therefore, there was no reason to exclude him from the Department. It was on this basis, the respondent says, that the suggestion was made that "as much as possible, efforts would be made to prevent both parties attending the same meetings or events". The respondent states that it was also suggested that if such arrangements were to be put in place then a particular superior officer would need to be informed. It is the respondent's submission that the complainant was unhappy with this and as a result no definitive decision was reached. The respondent says that the investigator did agree to continue to act as a conduit for correspondence between the two parties, an arrangement which was put in place during the investigation and which is still in place.
3.7 The respondent notes that the complainant alleges that her request to move offices was refused. According to the respondent the possibility of alternative offers of accommodation for the complainant was considered during the investigation but the only viable option was moving to a different location. The respondent says that the complainant did not raise the issue again and therefore the suggestion was not pursued further. It is the respondent's contention that it is entirely wrong for the complainant to suggest that her request was refused by the respondent organisation.
3.8 In response to the allegation that the respondent did not provide protection to the complainant the respondent submits that at the very beginning of the investigation Mr. A was told not to have any contact with the complainant and the arrangement was put in place whereby the investigator acted as a conduit for correspondence between the two parties. The respondent notes that the complainant herself confirmed, during the course of the investigation, that on both occasions she came in contact with Mr. A he made no attempt to approach her or enter into conversation with her. In relation to the specific situation at the meeting on 27th September, 2003 at which Mr. A was present the respondent's position is that it would be very difficult to conduct the appropriate and necessary business of the respondent organisation if someone associated with a specific Department were to be excluded from a relevant meeting particularly when the person concerned had not been found guilty of any wrongdoing. Furthermore given that many other staff members were present at the meeting the respondent does not accept that the complainant had any legitimate cause for concern on that occasion.
3.9 The respondent notes the complainant's suggestion that a proposal made by Ms. X at the meeting of 27th September, 2003 was motivated by an alleged attitude towards the complainant's complaint against Mr. A and the respondent says that it is satisfied that Ms. X was motivated to act in the bests interests of the respondent organisation. According to the respondent her proposal was made in the course of discussions regarding the allocation of additional resources to the area. The respondent notes that minutes were made of this discussion which indicated that there was broad agreement for her proposal. In relation to the comments and emails attributed to Ms. X the respondent says that Ms. X does not recall the context of these but accepts that she may have made the alleged remarks. It is the respondent's submission that, while these remarks represent an expression of a personally held opinion, they could not reasonably be interpreted as victimisation and/or penalisation.
3.10 The respondent concludes that the complainant has made no sustainable allegations of victimisation and/or penalisation whether of the kind alleged by the complainant or otherwise. It is the respondent's submission that the claim of victimisation is not a separate complaint but in fact an addendum to the original complaint and, therefore, a further attempt on the complainant's part to re-open the investigator's conclusions and the fact that he did not uphold her complaint.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision in this claim is whether or not the complainant was subjected to sexual harassment within the meaning of Section 23 of the Employment Equality Act, 1998. I must also decide if the complainant was subjected to victimisation as alleged under Section 74(2) of the Employment Equality Acts, 1998-2004. In making my decisions in these claims I have taken into account all of the information, both written and oral, made to me by the parties.
Allegation of Sexual Harassment
4.2 Section 23 of the Employment Equality Act, 1998 provides:
"(3) For the purposes of this Act -
(a) any act of physical intimacy by B towards A,
(b) any request by B for sexual favours from A, or
(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material),
shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A."
The onus is on the complainant to establish a prima facie case of discrimination. In cases of alleged sexual harassment it is very often the situation that allegations made by the complainant are denied by the respondent. In such situations the Equality Officer must decide on the balance of probabilities which version of events are more credible.
4.3 In her submission in this claim the complainant has alleged that she was subjected to sexual harassment by Mr. A on a number of occasions (as set out in the summary of her submission - paragraphs 2.1 to 2.7 above). It is her contention that the alleged sexual harassment commenced in 1998. However in her submission she has outlined alleged incidents in 2000, 2002 and 2003. The complainant's only reference to 1998 was to the allegation that Mr. A implied that he could use his position in the respondent organisation against her. At the hearing of this claim when asked what alleged incidents of sexual harassment by Mr. A occurred in 1998 and 1999 the complainant said that in 1998 a named female in the respondent organisation told her that he liked her and the complainant said that he gave her a poem he had written. She further stated that Mr. A came to her office on the pre-text of discussing business issues but would raise personal issues and this occurred on a weekly basis. The complainant was not in a position to give specific dates but all these alleged incidents were not witnessed as they occurred mostly in her office and sometimes in his office. The complainant further alleged that Mr. A had suggested that they should go out to see a film and that Mr. A, in the company of his mother, had stood at the gate of her sister's house in the UK. According to the complainant the alleged sexual harassment had a degree of physicality but was essentially discourse. The complainant stated that during much of 1999 she was absent from the respondent organisation due to the birth of her son and as a result did not see much of Mr. A. She was again absent from the respondent organisation from January to May, 2000 on approved leave and did not encounter Mr. A. However during that period she alleges that he rang her about a new car he had acquired and asked if she would like to take a ride in it.
4.4 The respondent denies all the allegations made by the complainant. In a statement by Mr. A to the investigator (who carried out the internal investigation) I note that he had always considered that they (i.e. himself and the complainant) had a cordial and friendly relationship based on shared interests and a desire to advance that shared interest within the respondent organisation. The respondent accepts that Mr. A and the complainant met frequently as a consequence of their shared interest with a view to establishing a structure to promote this interest in the respondent organisation. This involved a lot of drafting and re-drafting of documents. Mr. A in his statement noted two occasions when the complainant sought his assistance. The first was in April, 2000 and related to the complainant having to attend an interview for promotion in the respondent organisation. Mr. A states that the complainant was angry and upset about having to attend for interview as she had thought that the written application would suffice. He states that he may have put his arm around her in sympathy, but he does not remember. The second occasion was in September, 2000 when she had difficulties with her work roster. At the time she was upset and crying and Mr. A accepts that he probably put his arm around her in sympathy but he denies kissing her as alleged. Mr. A in his statement says that the complainant always seemed physically at ease in his presence. He notes that he sometimes kisses his female friends at meeting or at parting. Mr. A says that he does not see this type of gesture as sexual harassment and he had never been reproved for it. While the complainant was a friend she was not a close friend and Mr. A says that he does not think that he kissed her on the cheek as alleged. He denies that he kissed her 'lingeringly', attempted to kiss her on the mouth, held her hands or stroked her knee/thigh as alleged. In his statement Mr. A says that the complainant never pushed him away or told him that his behaviour was inappropriate.
4.5 In relation to the first time the complainant is alleged to have sought Mr. A's assistance as set out in paragraph 4.4 above I note that the complainant has denied that this happened. At the hearing of this claim the complainant stated that she was absent from the respondent organisation on approved leave from January to May, 2000. The respondent confirmed that the complainant was absent on approved leave from 28th January to 12th May, 2000. However the respondent stated that the complainant could have been present on the respondent's premises during some or all of that period for research purposes. The letter about the interview for promotion was dated 4th April, 2000 and it was addressed to the complainant at her place of work. The complainant was invited to attend for interview on 12th April, 2000. It is clear that the complainant did attend the interview as a letter issued to her on 14th April, 2000 advising her that her promotion was being recommended. While the complainant denies that she approached Mr. A about this matter it is clear that she could have been in attendance on the respondent's premises at the time. Also one has to question how Mr. A was aware of the matter (especially her upset and anger at being called for interview) given that he had no involvement in the promotion process.
4.6 The difficulty with a case such as this is that allegations have been made by one, denied by another and there are no witnesses to any of the incidents. It is the complainant's submission that she confided in a number of persons in relation to the alleged sexual harassment by Mr. A. Some of these persons were within the organisation and others were not. While the complainant is critical of the respondent's investigator for not consulting with all of the persons she named as having been told of the incidents it is not for me, as the Equality Officer in this case, to directly contact these persons to establish their version of events. The onus falls on the complainant in terms of making a prima facie case to have these witnesses available at the hearing of this claim. The complainant named eight persons as witnesses. I note that the complainant in her response to the investigator's report stated that he had failed to speak with two of these witnesses whom she declared were 'particularly significant' to her complaint.
4.7 Out of the eight persons named as witnesses only two were present at the hearing of this claim and will be referred to hereinafter as witness A and witness B. Witness A confirmed that the complainant had informed her of Mr. A's behaviour towards her on 4th and 5th of February, 2003 and on subsequent dates. At the hearing of this claim witness A stated that witness B (the second witness who attended the hearing of this claim) informed her of the alleged sexual harassment perpetrated on the complainant by Mr. A during the period from 1998 to 2003. This witness submitted a statement to the complainant's legal team about the complainant's complaint of sexual harassment and this statement was submitted to the Equality Officer at the hearing of this claim. I note that witness A made no reference in this statement to the fact that from 1998 to 2003 witness B had made her aware of the complainant's allegations of sexual harassment by Mr. A. I note that witness A did not witness any of the alleged incidents. It is also noteworthy that witness A had worked with Mr. A during the period from 1990 to 1994 when Mr. A held a lower ranking position in the respondent organisation. Despite this lower ranking position Mr. A helped a particular area (of which witness A was Acting Director at the time) to get funds and become more independent. Witness A has said that she met with Mr. A on many occasions and that he was warm and flirtatious, the bearer of gifts and the broker of power. According to this witness she was fond of Mr. A and was ambivalent about his behaviour.
4.8 Witness B was the complainant's partner and is the father of her son. While the complainant was critical of the investigator for not having spoken to this witness it was then surprising that the complainant's legal team did not ask this witness to give evidence at the hearing of this claim. In the circumstances at the end of the hearing I asked witness B if he had any evidence to submit in support of this claim. He stated that he has a close relationship with the complainant given that he is the father of her son. He said that she had informed him of the alleged sexual harassment over the years. I asked witness B to outline precisely the nature of this sexual harassment and he said that he was unable to do so as the complainant had spared him from the detail of the alleged sexual harassment, but that she had been very distressed by it. I then asked witness B if he was aware of the alleged incident surrounding the complainant's work roster. He indicated that he was and I asked him when that incident took place. Witness B took some time before answering this question and eventually said that the incident happened in September, 2002. I note that, according to the complainant, this incident happened in September, 2000 and even if witness B was unaware of that date at the start of the hearing he should have known it by the end of the hearing as I had gone through each of the alleged incidents with the complainant and the date each allegedly happened was clearly specified. Witness B did say that he often went to the complainant's office and that, on occasion, Mr. A was present standing close to the complainant or looking over her shoulder.
4.9 I find that the two witnesses who were present at the hearing of this claim for the purpose of providing evidence in support of the complainant's claim of alleged sexual harassment failed to do so. In relation to witness A there is the omission from her statement to the complainant's legal team of the fact that she was aware of these alleged incidents of sexual harassment since 1998. In relation to witness B he is the father of the complainant's son. Furthermore I note that witness B was suspended from the respondent organisation on foot of a written comment he made about Mr. A in February, 2002 and the issue then went to the High Court. It could, therefore, be argued that as a witness he is not impartial. Having said that I am satisfied that witness B provided no meaningful evidence in support of the allegations made by the complainant in this case.
4.10 The complainant alleges that during 1998 Mr. A, on a weekly basis, raised personal issues with her. Was this sexual harassment? To the complainant it was. In these circumstances I find it difficult to understand why the complainant approached Mr. A in September, 2000 to request his assistance in resolving difficulties she was encountering in relation to her work roster even though he had no role in this regard. This was the function of her direct boss but she did not approach him because she herself said that she did not get on with him. Mr. A says that he offered to speak with her direct boss about her work roster. I note that the outcome of that approach by Mr. A was that the roster she had received was drawn up in the absence of details of her preferred work schedule which she had failed to provide. If this is the case (and I note it was not denied by the complainant) then the work roster issue was of her own making. I note that, at the hearing of this claim, the complainant said that she approached Mr. A because of his position in the respondent organisation and he was senior to her direct boss. I find that it makes no sense to approach a person for assistance where you genuinely feel that this person is subjecting you to sexual harassment as in this case.
4.11 One also has to question the delay in bringing a complaint of alleged sexual harassment against Mr. A. The alleged sexual harassment commenced in 1998 and the last incident allegedly occurred on 2nd April, 2003. The complainant did not make a complaint of alleged sexual harassment until August, 2003 to the respondent and less than a month later to the Equality Tribunal. The respondent has suggested that the complaint of alleged sexual harassment was prompted by the action it was bringing against witness B - the father of her child. The complainant stated that the delay was because it is not easy to make such a complaint against a person in authority in the organisation, the embarrassment she suffered as a result of the alleged sexual harassment did not make her feel readily able to talk about it to the respondent and she says that she was aware of the experience of a colleague who found that the complaint procedure in the respondent organisation was largely ineffective in protecting complainants. I note the respondent's argument that while Mr. A was in a more senior position to the complainant he had no direct involvement in her promotion within the organisation. Having regard to the nature of the organisation in this claim I accept that Mr. A had no direct involvement in the complainant's promotion and she would have been aware of this. However she could reasonably have concerns that Mr. A could indirectly influence her progression in the organisation. I am satisfied that there is no evidence to support any indirect interference by Mr. A in the complainant's career progression within the respondent organisation since bringing her complaint.
4.12 In making her case the complainant referred to four issues which warrant mention as follows:
* Mr. A accompanying her to the crèche
* Photographs shown to her by Mr. A
* Invitation to accompany Mr. A to the cinema
* Mr. A and his mother standing at the gate of her sister's house
I note that Mr. A accepts that he did on occasion accompany the complainant to the crèche. The complainant says that Mr. A was not welcome but persisted in accompanying her. Mr. A insists that the complainant never made it clear to him that he was not welcome. Rather they discussed matters which were of mutual interest in the course of their employment. I note that the complainant has provided no evidence of any inappropriate comments or actions by Mr. A on these occasions. I have no reason but to believe that the discussions on these occasions concerned work-related topics which were of mutual interest. The complainant alleges that Mr. A showed her photographs of females with whom he was involved. It is Mr. A's submission that the complainant was considering travelling to France on a holiday and he suggested she go to the French Pyrenees. He showed her photographs taken when he was there attending a conference. At the hearing of this claim Mr. A produced those photographs and the complainant confirmed that these were the photographs which she had been shown by Mr. A. I also note that the complainant stated that the comment, made by Mr. A when he showed her the photographs, was relevant (i.e. these were photographs of women he was involved with). I am satisfied that these photographs had no sexual connotations whatsoever and Mr. A by showing them to the complainant could not have been accused of sexual harassment. I have no evidence that the alleged comment was made and the alleged comment does not, in my view, fit in with the photographs. In relation to the next two allegations above (i.e. invitation to the cinema and the reference to the complainant's sister's house) I have no evidence to confirm or deny these incidents as alleged by the complainant. However, I note that these allegations were made after Mr. A stated in his response to the complainant's statement of complaint, that he "never sought contact with the complainant outside the respondent organisation, never invited her out socially to the cinema (in which they were both interested)" and after he mentioned that the complainant had invited him over to her sister's house which was not far from where he had bought a house for his mother. Given the nature of the allegations made by the complainant in this case it is surprising that these allegations were being made for the first time by her at the hearing of this claim.
4.13 In relation to the incident alleged to have occurred on 2nd April, 2003 I note that Mr. A says that he was engaged elsewhere at that time. He could not, however, support this with documentary evidence. Having considered all the evidence or lack of it and the discrepancies in the evidence I find, on balance, that the respondent's version of events is more credible and that the complainant has failed to establish a prima facie claim of discrimination.
4.14 I am satisfied that the internal investigation carried out by the investigator appointed by the respondent was conducted in an appropriate manner. The formal process was agreed by the parties to the complaint and the investigator conducted his investigation to the best of his ability thereafter. In terms of a complaint of this nature the respondent organisation should have personnel who are trained in the Employment Equality legislation and in the process to be followed in carrying out such an investigation. Ideally two persons should conduct the investigation. There should be a formally agreed procedure for the investigation and a timeframe by which the investigation should be completed. Where possible witnesses should be consulted but the onus should be on the parties to the complaint to have these witnesses make a written statement and/or be available for questioning by the investigators at an agreed time and venue. This would form part of the agreed process. In this case the investigator opted not to speak with witness B and I can understand why he decided against doing so. As it transpired witness B did not prove reliable and had very little evidence to give in support of the complainant's allegations. In this case the investigator could have made this finding (as I have done) and avoided the criticism of failing to speak with what the complainant considered to be an important witness. There should also be a mechanism for appealing the findings of an internal investigation to a more senior level appeal body in the respondent organisation.
Allegation of Victimisation
4.15 The complainant alleges that she was subjected to victimisation by the respondent (see paragraphs 2.8 - 2.10 above). I note that the respondent has denied these allegations. It is the complainant's contention that the respondent has not made any or any reasonable efforts to ensure that she does not come in contact with Mr. A at meetings or in buildings within the grounds of the respondent organisation. The respondent has stated that Mr. A has been told to have no direct contact with the complainant and documentation from one to the other passes through the investigator. I note from her written documentation that the complainant cites an occasion when she was going from one building to another and she saw Mr. A talking to someone and on her return some fifteen minutes later Mr. A was still talking to this person. I am satisfied that Mr. A did not pose any threat to the complainant on this occasion or on others like it. I note that the complainant was seeking an assurance that Mr. A would be stopped from attending meetings that she wished or needed to attend. The respondent has pointed out that there are a number of persons in attendance at meetings she and Mr. A would be attending and as such Mr. A could pose no threat to the complainant. It is clear, given their positions in the respondent organisation that they both attend meetings for the purpose of making their own specific contributions. It is not a case that if the complainant attends she provides feedback to Mr. A or vice versa. In the circumstances I fail to see how the respondent could give the complainant an assurance that Mr. A would not attend meetings she wished to attend given that there are others in attendance. I am also satisfied that the respondent is not subjecting the complainant to victimisation when it does not order Mr. A not to attend these meetings.
4.16 The complainant submits that she offered to move her office to another building so that she would not encounter Mr. A. There is no evidence that Mr. A is frequenting the complainant's office and by moving her office it is not going to change the fact that the complainant will still encounter Mr. A in the grounds of the respondent organisation as she has done since making her claim.
4.17 The complainant alleges that Ms. X resented her for making a complaint against Mr. A and described her complaint as 'irrational' behaviour to witness A. The complainant also says that Ms. X stated, in an email responding to an invitation to meet someone, that she would be able to go "and have no contact with those whom I wish to exclude from my life". It is the complainant's contention that Ms. X proposed the handing over of a specific task being carried out by the complainant to someone else. My understanding is that the comment about the complainant's complaint as 'irrational' behaviour relates to a conversation between Ms. X and witness A but I note that witness A has made no reference to it in her statement to the complainant's legal team. The statement in the email "and have no contact with those whom I wish to exclude from my life" could be a reference to one or a number of people and there is no indication that it is a reference to the complainant. The proposal put by Ms. X at the meeting regarding the handing over to someone else of specific tasks which the complainant had been doing arose in the context of the use to be put to additional resources which had been acquired. I note, from the minutes of that discussion, that the proposal put by Ms. X received the support of a number of participants at this meeting including Mr. A and witness B. There is no evidence to suggest that the proposal put by Ms. X was a penalisation of the complainant under the Equality legislation.
5.1 In view of the foregoing I find that the respondent did not discriminate against the complainant as alleged in relation to sexual harassment within the meaning of Sections 6(1) and 6(2)(b) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. I further find that the respondent did not subject the complainant to victimisation as alleged within the meaning of Section 74(2) of the Employment Equality Acts, 1998-2004.
1st June, 2006
1 This Summary is provided for convenience only and is not part of the Decision for legal purposes.