Ms B.H. (represented by Mr. Pat McCann, B.L., instructed by F.H. O'Reilly & Company, Solicitors)
A Named Company t/a a cab company, Dublin
Employment Equality Act 1998 - discrimination - sexual harassment and harassment on the gender ground - correct name of respondent company -
1.1 Ms B.H. claimed that in 2002 and 2003 she had been subject to discrimination on the gender ground and in particular that she was sexually harassed and harassed otherwise on the gender ground in her employment.
1.2 The claim was referred to the Equality Tribunal on 6 February 2004. The case was assigned to an Equality Officer in October 2004 and submissions were sought and received from both parties. However the Equality Officer concerned had to withdraw from the case due to absence on extended leave. In January 2006 I decided to investigate the case myself and a joint hearing was held on 3 April. Subsequent to the hearing a further submission was received from the complainant's representative on 2 May 2006. The deadline for receipt of any observations from the respondent expired on 7 June 2006.
2. Name of respondent
2.1 In the two days prior to the hearing, the respondent had telephoned the Tribunal to raise the issue of the correct identification of the company. They had not however made a submission in writing and so the complainant's representative had no advance knowledge of this issue. At the hearing it was decided to address this as a preliminary issue but to give the complainant's representative an opportunity to make a subsequent submission in writing.
2.2 The respondent's representative produced evidence that the company had been dissolved in 1999, stating that it had been struck off for not making appropriate returns, and therefore the respondent as named by the complainant did not exist as a legal entity. The exact ownership of the respondent undertaking was now a matter before the High Court and the persons who had been running the operation at the time of the alleged discrimination were no longer involved.
2.3 The complainant's representative pointed out that a company search in 2004 had confirmed the continued ownership of the business name by the named company and that there was no doubt that at all material times the complainant had been employed by the cab operation. The legal owners had vicarious liability for the actions of their employees. They also pointed out that there had been no indication in previous correspondence from the respondent of any dispute as to the identity of the respondent.
2.4 In a subsequent submission the complainant's representatives accepted that the named entity was struck off the Register of Companies. However they contended that striking a company off for failure to make annual returns or failure to deliver particulars required by the Revenue is a mere administrative act. It is not equivalent to a High Court winding up and the assets of the company are not distributed among creditors but rather vested in the State. Under section 12(6) of the Companies (Amendment) Act 1982 (No. 10 of 1982), the complainant's representatives point out that, if a company is restored to the register of companies, the company is deemed to have continued in existence as if its name had not been struck off. They contended that the Equality Tribunal should follow the Judgment of the English Court of Appeal in Top Creative Ltd v St Albans District Council  BCC 999 which held:
"Whereas the Appellants accept that if a company is wound up by a liquidator that company ceases to have any existence, and existing actions by or against the company when the winding up is complete and the company dissolved, cease to exist, the position is not the same when all that has occurred is that the company's name has been removed from the Register by the administrative act of the Registrar".
2.5 I have carefully considered the arguments outlined above. I have of course no jurisdiction to amend the name of the respondent as initially cited by the complainant. I note that section 12(4) of the 1982 Act cited above provides that the liability of any director, officer and member of the company shall continue and may be enforced as if the company had not been dissolved. I further note that under subsection (6) a company, or any member or creditor thereof, who is aggrieved by the company having been struck off the register may apply to the court for an order that the name of the company be restored to the register and the company shall then be deemed to have continued in existence as if its name had not been struck off.
2.6 In the circumstances, I consider that it is appropriate for me to issue a decision in this case addressed to the entity as named in the complainant's original submission.
3 Complainant's case as presented in submission and at hearing
3.1 The complainant's representative worked in the base office of the respondent company from March 2002, working approximately three 12-hour shifts a week, at €40 per shift. She had taken the job on finishing a Community Employment scheme job and, with the management's agreement, she had taken over from her daughter-in-law (present at the hearing).
3.2 She outlined the history of 4 incidents which arose in the course of her employment with the respondent company.
3.3 On two occasions in September and October 2002, dead fish had been thrown onto the internal roof of the base office of the respondent company, which directly affected the complainant's work area. There was no evidence as to who had thrown them and it was only subsequently, when the complainant overheard a particular remark (quoted at hearing), that she realised that there was an underlying intention of sexual harassment. On each occasion the respondent company had been slow to remove the fish, resulting in noxious smells.
3.4 In July 2003 laxative tablets and steroids had been placed in an office kettle used by the complainant (and others). She stated that this had been done by two identified drivers, and that she had been told by Ms M, the then manager, that one driver had admitted to doing so, as a joke. In her view this was aimed at her because of her gender and weight. She complained to Ms M but no action was taken.
3.5 In September 2004 grossly offensive and humiliating pictures had been displayed in the base office, one of which had her name on it and the others had the names of the other women working in the office. These pictures were produced in evidence at the Tribunal. The general public was not allowed into the base office and the complainant considered one or more cab drivers had been responsible. The pictures were also shown in another office of the respondent company. She considered that these pictures were directed at her not merely because of her gender but also because she had a gay relationship.
3.6 She complained first to a named individual Mr. E who said he was too busy to deal with the issue. She then complained to Ms M who said it was nothing to do with her.
3.7 At that stage the complainant was so upset and disturbed by the offensive and humiliating nature of the pictures that she felt she could no longer continue working there. She was under medical care for stress for a couple of months before being able to work again. She regarded herself as on sick leave during this period. She said she was still upset and annoyed by the pictures. For some time her social life was deeply affected by it as she felt people were talking about her. Even now she was unable to use the respondent company, which caused her significant difficulty as it was a major cab company in the area where she lived.
4 Respondent's evidence:
4.1 A written submission was made in April 2005 by Mr. P.M, on behalf of the respondents. This submission denied that the complainant was employed officially by the company. While accepting that the pictures were displayed, the submission stated that they had immediately been removed by management. It further contended that there were no names on the pictures and stated that the staff or management of the company would not have put them up.
4.2 Subsequent correspondence indicated that Mr. P.M. would not be dealing with the matter further. Mr. P.M. did not attend the hearing, despite the issue of a witness request by me in accordance with my powers under section 95 of the Employment Equality Act 1998. I cannot therefore give any weight to his written submission.
4.3 At the hearing the persons attending on behalf of the respondent stated that Mr. P. M. had no further involvement with the company.
4.4 The respondent at hearing (who was assisted by Mr. Doyle, a forensic accountant) said they had no involvement with the management of the company at the time. The respondent condemned the display of the pictures and acknowledged the hurt and upset felt by the complainant. He said that he accepted that it happened and he could not defend it. He said that he would have expected Ms M, the then manager, to have taken immediate disciplinary action, and he condemned the fact that this had not been done. He accepted that there was no real complaints procedure in place and stated that, under the then management, everything had been done on an informal ad hoc basis, including paying staff.
4.5 He did however deny that there was an anti-female bias in the cab company and said it would be unfair to claim the company was discriminatory on the basis of the actions of a very small minority of the drivers.
5. Conclusions of the Director
5.1 Section 23 of the Employment Equality Act 1998 provides that, where an employee is sexually harassed by another employee, an employer or (subject to certain conditions) a business contact, it constitutes discrimination by the employer on the gender ground in relation to the employee's conditions of employment. Sexual harassment of A is defined (s.23(3)) as including:
"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) [which] shall constitute sexual harassment of A by B if the at, 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".
5.2 The respondent's representative acknowledged that the incidents took place. I am satisfied that each of the various incidents, and in particular the display of grossly offensive pictures, were unwelcome and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive and humiliating. I am therefore satisfied that sexual harassment did occur.
5.3 The respondent's representative did not put forward any evidence as to whether the cab drivers were employed by the respondent company or whether they were self-employed. However, they clearly come within the scope of the Act, either as employees or as business contacts with whom the employer might reasonably expect the complainant to come into contact in the workplace or otherwise in the course of her employment (section 23(4)).
5.4 I therefore consider that the complainant has established a prima facie case of discrimination. The onus therefore passes to the respondent to rebut the case, as is the Tribunal's standard practice and in accordance with the "Burden of Proof" Directive as implemented in Irish law1.
5.5 The respondent's representative accepted that the conduct took place and condemned it, although they pointed out that this had taken place under the previous management. They claimed that the actions of a handful of drivers did not mean that the company generally discriminated against women. They acknowledged however that there was no policy in place to protect against harassment and they accepted that the then management had not taken steps to address the issue.
5.6 Section 23(5) of the Employment Equality Act 1998 provides that it is a defence for the employer to prove that the employer took such steps as are reasonably practicable to prevent sexual harassment. The Code of Practice on Sexual Harassment and Harassment at Work2 indicates that:
"an employer shall be legally responsible for the sexual harassment and harassment suffered by employees in the course of their work unless the employer took reasonably practicable steps to prevent sexual harassment and harassment from occurring and to reverse the effects of it and to prevent its recurrence".
I am not satisfied that the employer took any steps at all to prevent sexual harassment. I therefore find that the employer has failed to rebut the prima facie case of discrimination.
6. Decision of the Director
6.1 I find that the complainant was subject to discrimination by the respondent company when she was subjected to a working environment which was not free of sexual harassment.
6.2 I am therefore required to award redress. The complainant earned approximately €120 per week. The maximum I can award under the Employment Equality Act 1998 is equivalent to 104 weeks' remuneration, i.e. €12,480.
6.3 In the light of the grossly offensive nature of the sexual harassment to which the complainant was subjected and the complete failure of the respondent to address it, I consider that it is appropriate to make the maximum award. I hereby direct that the complainant be paid an award of €12,480 as redress for sexual harassment.
6.4 In accordance with section 82(5) of the Act, I also award the payment of interest, at the rate which is applicable under section 22(1) of the Courts Act 1981 in respect of the whole of the compensation and in respect of the period beginning on the date of reference of the complaint under section 77(1) of the Act, i.e. 6 February 2004.
6.5 This award in its totality does not contain any element of pay and is consequently not liable for income tax.
6.6 I also direct that the respondent company, within three months of this decision, put in place a policy to prevent sexual harassment and harassment, in accordance with the Code of Practice.
9 June 2006
1 Council Directive 97/80 as implemented by S.I. no.337 of 2001.
2 This Code of Practice was given legal effect in S.I. 78 of 2002