(Represented by Pagraig O’Connell Solicitors)
(Represented by Pierse McCarthy Lucey Solicitors)
The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004. The claim relates to discriminatory treatment, discriminatory dismissal and harassment on the gender ground, sexual harassment, and victimisation.
The complainant worked with the respondent for the summer of 2006 as a commis chef. She alleges that she was sexually harassed during that time. She alleges that the respondent treated her in a discriminatory manner and victimised her subsequent to her complaints. The respondent undertook an investigation and found that the complaints were unfounded.
The complainant referred a complaint under the Employment Equality Acts 1998-2004 to the Equality Tribunal on 17th October 2006. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, 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. Following the receipt of submissions from both parties a hearing of the matter took place on 11th June 2008. Subsequent correspondence from the respondent was copied to the complainant on 19th June 2008.
The complainant’s submission to the Tribunal comprised three different statements describing the alleged incidents in support of her claim. She worked in the hotel for the summer of 2006 beginning on 19th June 2006 as a commis chef. She maintains that almost immediately a male chef employed at the same hotel began behaving inappropriately towards her. The complainant described various comments, inappropriate gestures and touches. The complainant has no record of the dates for these events except those on 10th and 11th September 2006. On 10th September the complainant was in the dry goods store of the kitchen when the male chef made a comment about a jacket she was wearing which had a logo over her left breast. He grabbed her breast and said “lovely breast”. She told him to stop and left to go home. On 11th September 2006 he came up behind her while she was preparing salads, wrapped his arms around her and asked her to go for a smoke. She told him no and to go away. The complainant maintains that she reported many of the alleged incidents to the head chef more than once but her statements vary in relation to the number of times she reported it and the responses she received. She was unhappy with the response she received. She understood that the hotel’s general manager had been informed of the matter and when she approached the manager who was collecting her lunch in the kitchen at the time, the manager merely picked up her lunch and walked away. She contends that this happened in late August. The complainant heard nothing further on the matter. On 13th September 2006 she arrived at work and told the head chef that she was not prepared to be alone in the kitchen with the male chef in question. An argument ensued and the complainant left the hotel and did not return.
At the Hearing the complainant stated that seven or eight incidents were reported during the whole period and she is content that they were understood as complaints. The complainant states that one suggestion to her was a change in the alleged harasser’s hours but this only made a difference of one hour. She refused the offer as this meant she would still work with him for a substantial time including two hours alone without other kitchen staff. She denies that she was offered a change in her own hours. She was not informed of any investigation and was aware of the conversation between the head chef and the general manager only. She maintains that nothing was done while she was there. The complainant’s representative clarified at the hearing that victimisation arose as the policy relating to bullying and harassment was introduced after she left, as her allegations were not taken seriously and as the steps taken were not reasonable. The incidents of harassment were all of a sexual nature. She feels she made every attempt to draw its attention to the situation and when they failed to do anything she felt compelled to leave. She has not returned to work as a chef and is currently pursuing a course in an entirely different field.
The respondent maintains that it investigated the allegations as soon as practicable after the incidents were brought to its attention. The report of their investigation is dated 18th October 2006. The investigation found that the allegations of harassment were without foundation. The report and copies of the statements from various members of staff were submitted to the Tribunal without further comment. The alleged harasser in question denied the allegations and the many witnesses interviewed indicated that they had seen nothing untoward in what all described as a busy and often hectic environment. Many of the statements indicated some difficulties the individual had had while working with the complainant including her use of bad language, which was worse than the norm in the industry, her inclination to discuss intimate body parts and sexual exploits, and her tendency to react to stress and difficult situations aggressively, with tears or abusive outbursts and sometimes walking out. These statements were repeated at the hearing.
The head chef explained that while he had discussed some of these issues with her he had not reprimanded her as he put it down to her youth and inexperience in a very stressful environment. He indicated that she approached him twice mentioning issues with the alleged harasser. The first time was on Wednesday 23rd August 2006 when she started her shift at 12 noon. Between 7pm and 8pm he was in the car park having a smoke and the complainant was on the phone. She returned inside before him where two male chefs were on duty. When he returned inside she was complaining about one chef who was prepping for her saying he was a lazy b……. She also said that the other chef had been annoying her and mentioned her breasts. The head chef’s impression was that she was amused but she kept suggesting that she would leave the hotel because of poor wages and because of difficulties in having time off to see her boyfriend. He added that she gave out about everyone repeatedly. He offered to speak to the alleged harasser if she wanted him to but she said she would do it. However, on 25th August he spoke to the chef who was surprised but said he had not said or done anything inappropriate to the complainant. The head chef also mentioned the issue to the general manager. When she asked him if he thought it was true he stated that nobody had witnessed anything but that he would keep an eye on things. There were no more complaints from the complainant until 13th September 2006. When the complainant arrived for work she immediately gave out about her hours and said she wanted extra money because of her drive to work. When he responded “Chance would be a fine thing” she flew into a rage, used a lot of profanity saying that they were picking on her and that she was sick of it. She walked out. She returned immediately and said that the male chef had previously pinched her breast, accused the head chef of doing nothing about it and said she was going to sue the hotel. Then, according to the head chef, she left. He stated that she was a serial complainer and that he felt that she was not happy in her chosen career.
The bookkeeper for the respondent undertakes some functions normally handled by HR managers. He became aware of this matter through the general manager. There was a suggestion that the time the two parties had to work together should be minimized. As they each had two days off per week these could be rostered for different days. In addition, their shifts could be changed so that there would only be a cross over of two hours. Both parties would have had to change their shifts. However, this was not acceptable to the complainant who said that the changes would leave the hotel short staffed. The bookkeeper did not accept that the proposed changes would have meant a difference of only one hour. The changes were not imposed as the complainant had disagreed and the hotel tries to work the rosters around their staff and accommodate them where possible.
5.1 Burden of Proof
The burden of proof is defined in Section 85A as follows:
85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
In this case the core of the complainant’s case is that she was subjected to a regime of sexual harassment and other discriminatory acts on the gender ground while in the employment of the respondent. In advancing that claim she relies upon a number of alleged occurrences including offensive utterances, gestures and physical contacts. The complainant also claims that the termination of her employment with the respondent amounted to a discriminatory dismissal and that she was victimised because of her actions. These alleged occurrences, dismissal and victimisation are the primary facts that the complainant relies on in support of her claim of discrimination. If she can prove one or more of these assertions as a fact the burden of proof shifts to the respondent.
5.2 Discriminatory Treatment
The complainant has claimed discriminatory treatment in relation to her conditions of employment on the gender ground. The complainant’s representative suggested that by not responding appropriately to her complaints of sexual harassment the respondent undervalued her in comparison to the male alleged harasser and that this constitutes less favourable treatment. Section 14A, relating to Harassment and Sexual Harassment states that where such harassment is found to have occurred it shall constitute discrimination in relation to the victim’s conditions of employment. While the complainant’s intention in including this may have been for the purposes of certainty in relation to the additional claim of harassment and sexual harassment I shall address it as a separate matter and address the issues around harassment below.
The treatment of an alleged victim of harassment or sexual harassment subsequent to a complaint appears more relevant to a potential defence in accordance with Section 14A (2) (see below).
As no other evidence was presented in support of a claim that the complainant was less favourably treated because she is female in relation to her conditions of employment, I find that she has failed to discharge the evidential burden in relation to a prima facie case of discrimination in relation to her conditions of employment on the gender ground.
5.3 Harassment and Sexual Harassment
Most of the complainant’s evidence relates to descriptions of the alleged incidents of sexual harassment and subsequent events. It was clarified at the hearing that all harassment complained of was sexual in nature. Section 14A (7), describes harassment and sexual harassment as follows:
(7) (a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
I am satisfied that the incidents described by the complainant would constitute sexual harassment if proven.
Section 14A (1) and (2) are as follows:
14A.—(1) For the purposes of this Act, where—
( a ) an employee (in this section referred to as‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—
(i) employed at that place or by the same employer,
(ii) the victim’s employer, or
(iii) a client, customer or other business contact of the victim’s employer and
the circumstances of the harassment are such that the employer ought
reasonably to have taken steps to prevent it,
( b ) without prejudice to the generality of paragraph ( a )—
(i) such harassment has occurred, and
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated,
the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
The complainant submitted three statements dated 13th September 2006, 14th September 2006 (to the Gardai) and 17th August 2007 and these contain a number of contradictions. The major incidents described in these statements are generally similar. The evidence is extremely vague in relation to when the various incidents happened and dates are available for only two, those on the 10th and 11th September 2006. No dates were presented by the complainant in relation to when complaints were made other than on the day she left. At the hearing it was clear that the complainant actively pursued the matter in late August.
The contradictions in the statements include the reference to the number of times the complainant complained about the alleged behaviour. It ranges from “On many occasions” to “several occasions”. At the hearing the complainant states that she complained seven or eight times but she was unable to present details of her complaints except in relation to the final incident on 13th September 2006. The respondent’s evidence is explicit, in contrast, stating that complaints were made on 23rd August 2006 and 13th September 2006. A further discrepancy relates to the complainant’s description of her interaction with the general manager which is confused as to whether she approached the general manager or the general manager approached her. These ranged from “To my knowledge [the general manager] was told about the situation. She asked me about the complaints but walked away and never approached me again”, (written contemporaneously on 13/9/06) to “ I again approached the head chef who informed me that [the general manager] had said she would handle the situation. I decided to approach her and during my telling her my grievances she picked up her lunch and left the kitchen”, (written 17/8/07). The general manager stated in relation to this incident that she has walked into the kitchen to collect her lunch. The chef was serving her and there were bar staff about leaving and collecting orders. It was very public. The complainant approached her in an aggressive manner asking her what she was going to do about it. While the general manager stated that she was not annoyed by this she felt it was the wrong time and place to discuss the matter. It appears that while the parties ultimately agreed that the complainant approached the general manager in the kitchen, it is noteworthy that it is the contemporaneous note that is out of kilter.
A further issue relates not to a discrepancy but to timing. The complainant was very clear that the incidents began almost immediately when she started to work in the hotel in 2006. However, she did not raise any difficulties with the head chef until almost two months after the alleged behaviour started. On the two occasions when she did raise the issue, according to the head chef, she had been complaining about other matters at first.
Two other issues are of interest. First, the complainant stated that the only roster change put to her would have resulted in a change of only one hour per day. The respondent stated that they suggested changes that would have reduced the number of days the parties would work together to three per week and that the rosters would be changed to minimize the number of hours they would work together during those three days. This would have required rosters being changed for both parties. I find the respondent’s evidence in this regard more credible. However, it is agreed that the complainant refused whatever change(s) were offered. Even assuming it was only an hour’s difference that was offered it seems odd that she would refuse a change to the alleged harasser’s hours that would have provided some relief to her. It seems odd that she did not accept this while continuing to look for greater change. Second, it became clear at the hearing during the presentation of the respondent’s evidence that the complainant had worked in the hotel during the summer of 2005 on a work placement scheme. She stayed in the hotel’s staff house along with the alleged harasser. All parties were agreed that there had been no difficulties arising in 2005. The complainant’s evidence was that difficulties began almost immediately in 2006. The complainant had no explanation to offer as to why this situation had changed. The alleged harasser, who denies the allegations, was asked why, in his opinion, the complainant would suddenly begin to allege inappropriate behaviour on his part in 2006. He also had no explanation to offer.
Finally, it is difficult to accept that incidents could have occurred with the frequency alleged in an area normally busy with staff coming in and out with orders, particularly when it is considered that these alleged incidents took place during the high season in Kerry.
In Tsourova  the Labour Court stated:
Having considered the evidence as a whole the Court has concluded that the uncorroborated evidence of the Complainant does not go far enough to establish as a fact that her work colleagues subjected her to the treatment alleged. In reaching this conclusion the Court has had regard to the fact that the Complainant failed to make the most serious complaints promptly and that many of the complaints appeared to have been made in response to concerns raised by the Respondent at her work performance. The Court also found her evidence somewhat vague and uncertain. In the circumstances, and as a matter of probability, the Court must prefer the evidence given by witnesses called by the Respondent on all material points. Accordingly, the Court is not satisfied that the Complainant was harassed or ostracised by her colleagues at work.
In the instant case the complainant’s evidence in relation to the alleged incidents of sexual harassment, while earnest, is vague, imprecise and on occasion contradictory. It is entirely unsupported by evidence other than her own allegations and is unsupported by all those working in the hotel kitchen during the period. The respondent’s evidence, on the other hand, was clear and credible. Based on the totality of the evidence presented to me I find that the complainant has failed to discharge the evidential burden required under the Act and that she has failed, on the balance of probabilities, to establish a prima facie case of sexual harassment.
5.4 Discriminatory Dismissal
The complainant’s representative argued that the complainant had brought the allegations of sexual harassment to the attention of the respondent, that they had failed to do anything and that on 13th September 2006 she felt she had to walk out. This is an allegation of constructive discriminatory dismissal. Dismissal is defined in the Act as :
‘‘dismissal’’ includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and ‘‘dismissed’’ shall be construed accordingly;
On 13th September 2006, the complainant arrived for work. There is a dispute between the parties in relation to what exactly happened next. The respondent states that the complainant immediately made a number of complaints to the head chef relating to pay and working hours. The discussion escalated into a row and the complainant left. She returned and then mentioned the allegations of sexual harassment and said that she was going to pursue the matter. She left again. The complainant stated that on arrival she immediately stated she was unwilling to work with the alleged harasser again and this is what escalated into a row. I find the respondent’s evidence more credible in this regard.
It is agreed that the complainant never returned to the hotel to work after that date. In order to accept that the complainant was left with no alternative but to leave, I must first accept that she found her situation at work so intolerable as to warrant her unilateral decision to terminate her employment. It is alleged that she had made her complaint and had continued to work while awaiting some action from the respondent in response. However I found above that the complainant has failed to prove facts in support of allegations of sexual harassment. It was agreed that she refused an offer to alleviate the situation by changing rosters and I found above that the respondent’s offer of substantial change was made. It follows that a claim that her situation at work was untenable resulting in her having no alternative but to leave cannot succeed. Therefore I find that it was not reasonable for the complainant to terminate the contract in the circumstances and that she has failed to establish a prima facie case of constructive discriminatory dismissal.
Victimisation is defined in Section 74 of the Act as follows:
‘‘(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
Victimisation is seen to occur when an employee is dismissed or adversely treated because they made a complaint of discrimination or because of other reasons connected with such complaints. The complainant was not dismissed by the respondent in this case and no evidence was adduced in relation to the complainant being adversely treated because she had made a complaint of sexual harassment to the head chef. At the hearing the complainant’s representative clarified what treatment of the complainant, in her opinion, amounted to victimisation. This treatment included the introduction of a policy document dealing with bullying and harassment after the events in this case, the allegation that the steps taken were not reasonable particularly in relation to the chef’s hours changing by one hour, the allegation that the complaints were not taken seriously and that more drastic action should have been taken sooner. It was also alleged that the requirement to continue to work with the alleged harasser amounted to victimisation. These matters are directly related to the complaints of sexual harassment and to the respondent’s response to the complaints in particular. While the respondent’s response may have been poor it does not amount to adverse treatment of the complainant. Indeed these matters could be considered more appropriate to the potential defences described in Section 14A (2). I find that the complainant has not proven facts indicating victimisation in terms of the Act.
Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainant has failed to establish a prima facie of discrimination, discriminatory dismissal, harassment and sexual harassment on the gender ground within the meaning of Sections 6, 8 and14A of the Employment Equality Act 1998-2004. I further find that she has failed to establish a prima facie case of victimisation within the meaning of Section 74 of the Act.
11th September 2008
 Labour court Determination EDA071, Icon Clinical Research and Tsourova, 2007