(REPRESENTED BY A FIRM OF SOLICITORS)
(REPRESENTED BY A FIRM OF SOLICITORS)
This dispute involves a claim by Ms. Z that she was (i) sexually harassed by the respondent contrary to section 14A of the Employment Equality Acts, 1998 and 2004 and (ii) treated adversely by the respondent for having rejected that harassment which constitute discrimination of her on grounds of gender contrary to the same section of those Acts when she was not re-engaged by the respondent after a period of lay-off in January, 2005.
2.1 The complainant commenced work with the respondent in October, 2004 as a waitress on a part-time casual basis. She alleges that in the course of the respondent's Christmas party on 7 December, 2004 she was sexually harassed by the respondent's General Manager. She further alleges that she was not re-engaged by the respondent in February, 2005 following a period of lay-off whilst the hotel was closed and that this constitutes discrimination of her on grounds of gender contrary to the Acts. The respondent rejects that the complainant was sexually harassed in the first instance and states that she was not re-employed because there was no work available for her and the respondent also had concerns over her attitude and performance during her previous period of employment.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 9 February, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 30 November, 2006 and 7 March, 2007.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent as a waitress on a part-time casual basis on 9 October, 2004. She states that she felt uncomfortable in the presence of Mr. A, the General Manager of the hotel, from early in her employment, although nothing untoward happened. She adds that she attended the respondent's Christmas party on 7 December, 2004 in the company of a friend and work colleague Ms. X. The complainant alleges that around 3am Mr. A, who was sitting alone at the time, beckoned her to sit beside him. She adds that he then told her she looked gorgeous that evening, that he wanted to go home with her and that they should get a taxi together. She contends that he repeated this phrase a number of times, although he did not touch her in an inappropriate manner. She submits that this behaviour constitutes sexual harassment of her contrary to the Acts.
3.2 The complainant states that she panicked and rushed to the bathroom where she spoke with Ms. X. The complainant adds that she stayed in the bathroom for 10/15 minutes and Ms. X went back to the party telling people that the complainant had gone home. The complainant adds that when she eventually left the bathroom she saw Mr. A being assisted from the hotel by two men, one of whom was Mr. D, the respondent's bar manager. She states that she subsequently stayed in the hotel that night with Ms. X and returned home the next morning. The complainant adds that she did not tell Mr. A his behaviour was unacceptable as he was the General Manager and she did not know what to do or where to go to. She adds that as far as she was aware there was no policy on harassment in the hotel.
3.3 The complainant states that she had been rostered regularly by the respondent during the period 9 October, 2004-15 January, 2006, the last occasion she worked for the respondent. She alleges that after work that night she was told by both Ms. X and the Function's Supervisor (Ms. F) that they had heard she was fired. The complainant accepts that both she and Ms. X reported for duty one morning with a smell of drink on their breath, although she was not drunk and that Ms. F cautioned her as a friend to freshen up. The complainant adds that she did not view this comment as a warning, rather she saw it as advice from a colleague and she denies that she was ever reprimanded by a supervisor for any reason. The complainant alleges that she received a phone call from the Restaurant Supervisor (Ms. G) on 4 February, 2005 during which she told the complainant that she was being "let go" because she used abusive language to Mr. A on 15 January, an assertion which is rejected by the complainant. The complainant further alleges that Ms. G was sympathetic toward her, stating the she knew the allegations against her were untrue, that had she been there longer she would have handled the matter better and that she would furnish her with a reference, which the complainant received shortly afterward. The complainant contends that all other casual staff were re-engaged after the hotel closure and she was not. She submits that this adverse treatment of her was directly linked to her rejection of the harassment and that this treatment constitutes discrimination of her on grounds of gender contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that she was sexually harassed by Mr. A in the first instance. The respondent states that Mr. A spent most of the evening in the company of senior hotel staff but mingled with all staff, offering drinks to a number of them. It states that Mr. A paid no special attention to the complainant and that after the music etc. had finished she sat down beside him and proceeded to put her arm around the back of his chair. It contends that she then asked Mr. A if he wanted "to go back to her place" - a comment which was overheard by Mr. D and two other employees, Ms. M and Ms. N. The respondent states that Mr. A rejected the complainant's advances and Mr. D subsequently instructed her to leave him (Mr. A) alone and although she got up from the seat she loitered around the table winking at Mr. A for a while. The respondent adds that Mr. D brought Mr. A home some time later. The respondent therefore rejects the allegation that Mr. A sexually harassed the complainant and submits that it was the complainant's behaviour that was inappropriate.
4.2 The respondent states that the complainant's status as an employee would be best described as "part-time casual". It adds that the work is seasonal in nature and priority in allocation of shifts to casual employees is based on necessity and seniority within that number. The complainant would only be required to work when other more senior staff were not available or when the hotel was busy. It adds that the hotel closed down for short period during January/February, 2005 and that this was a usual occurrence. It submits that the complainant was not re-engaged due to unavailability of work and notwithstanding this states that there were issues with her performance and attitude. It adds that the Functions Supervisor (Ms. F) reprimanded her on several occasions as did the Restaurant Supervisor (Ms. G), one of which was for reporting for duty under the influence of alcohol. The respondent contends that the complainant asked for her P45 and was removed from the roster. It submits therefore that the complainant was not discriminated against on grounds of gender.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) sexually harassed the complainant contrary to section 14A of the Employment Equality Acts, 1998 and 2004 and (ii) treated her adversely for having rejected that harassment in circumstances constituting discrimination of her on grounds of gender contrary to the same section of those Acts when she was not re-engaged by the respondent after a period of lay-off in January, 2005. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.
5.2 Section 85A of the Employment Equality Acts, 1998 and 2004 sets out the burden of proof necessary in claims of discrimination. It requires the complainant to establish, in the first instance, facts from which it can be inferred that she was sexually harassed and treated less favourably on the ground cited. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 Section 14A of the Acts defines sexual harassment as "any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.". It goes on to set out some examples of unwanted conduct which includes "requests and spoken words". The complainant contends that Mr. A propositioned her in an inappropriate fashion in the early hours of the morning of 8 December, 2005 following the respondent's Christmas party. There is contradictory evidence about this alleged incident and I must therefore decide on balance, which version of events I find more credible. Evidence was given at the Hearing by Mr. D, Ms. M and Ms. N (all of whom were employees of the respondent at the relevant time) that they heard the complainant proposition Mr. A rather than the other way round and they also gave their account of what they saw that night. In keeping with normal procedure by this Tribunal a witness was not present in the Hearing Room until they had to give evidence and remained there until the conclusion of the Hearing. The evidence given by these three employees was inconsistent and conflicting to such an extent that I consider it to have no probative value whatever other than it confirmed the complainant and Mr. A were engaged in conversation at the time alleged. The complainant stated that after Mr. A made the comments to her she left the table and went to the bathroom where she spoke with a friend and colleague Ms. X about the incident. This witness was compelled by the Equality Officer to attend the reconvened Hearing on 7 March, 2007. In the course of her evidence she stated that she did not speak with the complainant about this matter nor did she observe her in a distressed state on the night in question. However, the witness contradicted herself on two occasions and resiled from her previous evidence on one of those occasions. In the circumstances I cannot accept her evidence as credible and I have reservations as to its veracity. In this regard I believe it is noteworthy that Ms. X's mother is a current employee of the respondent. In contrast the complainant was an impressive witness. She gave her evidence with clarity and conviction and had, in my opinion, a clear recollection of the disputed events to which she averred and I prefer, on balance, her version of events. I find therefore that Mr. A made the comments attributed to him and that these comments fall within the definition of sexual harassment set out above.
5.4 For the alleged behaviour to constitute sexual harassment under the Acts it much occur in the workplace or in the course of the complainant's employment. As the incident took place at the respondent's Christmas party it follows that I must be satisfied that the harassment occur in the course of the complainant's employment. I note that the Christmas party was organised by Ms. M, who at that time was a member of senior/middle management in the hotel. It was also attended by Mr. A the General Manager, the most senior member of staff in the hotel as well as other senior personnel. The Employment Equality Act, 1998 (Code of Practice)(Harassment) Order, 2002 states as follows "The scope of sexual harassment provisions extend beyond the workplace for example to conferences and training that occur outside the workplace. It may also extend to work related events.". Section 56(4) of the Employment Equality Acts, 1998 and 2004 permits me to take this Code into account in reaching my decision on this claim. I am satisfied that the Christmas party was work related insofar as the complainant would not have been present if she had not been employed by the respondent. In reaching this conclusion I am guided by the decision of the Equality Officer in Maguire v North Eastern Health Board . On the basis of the foregoing I am satisfied that the complainant has established a prima facie case of sexual harassment contrary to section 14A of the Employment Equality Acts, 1998 and 2004.
5.5 Section 14A(2) of the Employment Equality Acts, 1998 and 2004 provides a defence for the respondent in cases of sexual harassment. This provision states:
"If .... sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable -
(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from sexually harassing the victim ...... and
(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.
I must therefore consider if the actions of the respondent could be considered "reasonably practicable" to enable it rely on the defence available.
5.6 At the time of the incident the respondent had no policy, written or verbal, in operation. I am also satisfied that in the course of new employees' familiarisation discussions with the Restaurant Supervisor no reference to how one might report such issues was mentioned by Ms. G. The harasser in this instance is the General Manager of the hotel, the most senior employee. The complainant stated that after the incident she did not know what to do or who to go to. This is entirely understandable in the circumstances. The respondent's absolute failure to have any procedures in place to handle complaints of harassment/ sexual harassment means that it cannot rely on the statutory defence available.
5.7 I shall now look at the complainant's allegation of discriminatory treatment- in that she contends she was treated differently for rejecting the sexual harassment when she was not re-engaged after a period of lay-off in January/February, 2005. The complainant was rostered for duty on 15 January, 2005 and states that at the end of her shift she was informed by Ms. F that she had been fired that night, although no such message was formally communicated to her until Ms. G telephoned her on 4 February, 2005. I note the evidence of Ms. X at the Hearing in which she stated that this rumour was circulating among staff that night, including Ms. F - and I am satisfied that she subsequently communicated this to the complainant. The respondent submits that the complainant was not re-engaged because there was no work available and she subsequently asked for her P45. Notwithstanding this it submits there were issues concerning her performance and attitude. Ms. G gave evidence that after the annual period of lay-off she would contact casual staff to ascertain if they were interested in and available for work, although she accepted that she did not inform the complainant of this practice. Rosters for the period in question show that the hotel was effectively closed from Saturday 15 January, 2005 until 5 February, 2005 when staff were rostered for a function. Having evaluated all of the evidence submitted by the parties and witnesses on this issue I am satisfied, on balance, that Ms. G telephoned the complainant on the evening of 4 February, 2005 and informed her she was fired and she has therefore established a prima facie case of discrimination and the burden shifts to the respondent to rebut the inference raised.
5.8 I must now decide whether this termination of the complainant's employment constitutes discrimination or whether it was connected to legitimate factors unconnected to the matter at hand. The respondent's first reason is that there was no work available. I note there was work available on 5 February, 2005 and this was not offered to her. Even if there was sufficient cover for that evening she was never asked by Ms. G (on 4 February) whether or not she was interested and available for work, as was the stated practice in the respondent. I further note that a new person appears on the roster for week commencing 28 March, 2005. In the circumstances I cannot accept the respondent's argument that there was no work available. The second reason proffered by the respondent was that there were problems with the complainant's performance and attitude. Evidence was given at the Hearing by both Ms. F and Ms. G that they each had to reprimand the complainant on about six occasions for issues ranging from non-compliance with uniform to reporting for duty with her breath smelling of alcohol - an act to which the complainant admits. Neither could be specific as to how they administered these reprimands and no record of them exists. I also note that Ms. G stated a new employee would be given a month to come to terms with the demands of the job. This means that the complainant was admonished on 10/12 occasions during a two month period. I find it incredible that the respondent would not have addressed this consistent poor behaviour on a more formal basis in those circumstances. It appears to me that the entire employment process operated by the respondent is unstructured and ad-hoc. This undoubtedly gives rise to uncertainty and results in a lack of transparency and objectivity which clearly hampers the respondent adequate discharging the burden placed on it in the instant case. I therefore find that the respondent failure to re-engage the complainant was as a direct result of her rejection of the sexual harassment and her claim is entitled to succeed.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I find that the complainant was (i) sexually harassed by the respondent contrary to section 14A of the Employment Equality Acts, 1998 and 2004 and (ii) that she was discriminated against by the respondent on grounds of gender contrary to the same section of those Acts when she was not re-engaged by the respondent after a period of lay-off in January, 2005.
6.2 I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 and 2004 -
(i) that the respondent pay the complainant the sum of €12,000 by way of compensation for the distress and effects of the discrimination and harassment. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
(ii) that the respondent develop a code of Practice on Harassment on all of the nine discriminatory grounds covered by the Employment Equality Acts, 1998-2004, which is modelled on the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order, 2002 and that this Code should be in place within 3 months from the date of this decision.
(iii) that a copy of this Code is given to all existing and new staff (on arrival) and that staff are fully acquainted with its contents. In addition, copies of the Code, or a brief synopsis of it, should be displayed in prominent positions in areas of the hotel frequented by staff.
(iv) that all staff who have staff management functions receive appropriate training in the policy and that this training is kept under review in light of developments/best practice in the area.
21 March, 2007