The Equality Tribunal
Employment Equality Acts
(Represented by Oisín Clarke B.L, instructed by Ferrys Solicitors)
- V -
A Contract Logistics company
(Represented by IBEC)
File reference: EE/2008/385
Date of issue: 23 December 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Sexual Harassment - Victimisation - Gender - Sexual Orientation - Prima facie case
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment, sexual harassment and victimisation by the respondent on the grounds of gender and sexual orientation in terms of section 6(2) and 14A of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 19 June 2008 under the Acts. On 6 October 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 28 April 2011. Additional documentary evidence was requested and received by the Tribunal on 13 June 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that he was employed by the respondent for a period of 9 years up until his resignation in 2008 and that over the course of his employment he was subjected to harassment of a sexual nature, discriminatory treatment and was victimised for making a complaint to his supervisor.
2.2 The complainant (Mr A) submitted that he made a complaint to his supervisor (Mr B) in June 2006 alleging that he was being sexually harassed by a colleague (Mr C). The complainant submitted that when Mr B did nothing about the matter, he referred a complaint in writing to his manager, Mr D.
2.3 The complainant submitted that Mr C repeatedly caressed and touched him in a sexually suggestive manner and on one occasion pushed his groin into the complainant's face. The complainant submitted that once it became known that he had made a complaint, he was treated differently, that items would be left in a hazardous manner to trip him up, that Mr C led a campaign to badmouth him and shout at him, all the while giving him the silent treatment.
2.4 The complainant submitted that the respondent did not have adequate procedures in place to deal with this matter and that that ultimately he only wanted to be left alone and therefore following the victimisation, decided not to prosecute his grievance. The complainant submitted that the respondent just seemed happy to let the matter go and did not, as they should have done, look behind the complainant's withdrawal of his complaint of sexual harassment.
2.5 The complainant submitted that the respondent was on notice that was an issue between Mr A and Mr C and that it took no positive steps to monitor the situation over the proceeding two years. In addition, the complainant submits that Mr A was victimised by Mr C for having made his complaint of sexual harassment against him.
2.6 The complainant submitted that at the Christmas party, Mr C asked the complainant in a loud voice and in front of his work colleagues "how does it feel to be gay?" The complainant submitted that he made it known to at least three of his co-workers that he was upset over the way he had been harassed.
2.7 The complainant submitted that immediate action should have been taken, that workers with an appropriate level of equality awareness and procedural training would have reported the incident and that allowing this kind of behaviour to go unchallenged turns a serious incident of sexual harassment into a systemic failure which victimised him.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent rejected the allegations of discrimination raised by the complainant and responded to the specific incidents raised by the complainant. In relation to the first complaint lodged by the complainant, the respondent indicated that the matter was one of a verbal complaint and that it was investigated, found to be inconclusive and therefore no disciplinary action was taken. The respondent submitted that the parties met and agreed to work together. The supervisor noted that the behaviour of the two men, Mr A and Mr C was inappropriate and the supervisor noted that they should desist.
3.2 In relation to the withdrawal of the complaint the respondent submitted that the complainant did provide a reason for not pursuing the matter but did not wish to proceed with the complaint. The respondent also submitted that Mr A and Mr C argued a lot, generally over mundane work matters and also that the allegation of the 'wall of silence' was not substantiated.
3.3 The respondent submitted that in relation to the incident that took place at the Christmas Party, the complainant did not raise any issues with it following the party. Statements in relation to the events that occurred during the party were taken after the complainant's resignation following receipt of the complaint under the Acts.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant claims that he was subjected to sexual harassment. Section 14A (7) (a) of the Acts, inter alia, defines sexual harassment as
"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.
This definition differs from that of harassment in that the conduct need not be "related to any of the discriminatory grounds" but is related to the conduct itself. Therefore, the issue for decision by me is whether or not the complainant on was subjected to sexual harassment and victimisation by the respondent in terms of Sections 14A and 74 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.4 I have considered the testimony given by the witnesses at the hearing and the documentation submitted to me and having regard to the foregoing paragraphs, I am satisfied that the following facts have been established:
- The complainant made a complaint of sexual harassment to his supervisor, Mr B, in or around Autumn 2006
- The complaint was investigated by the respondent in an informal manner
- Ultimately, the complaint was withdrawn
- Arising from his making the complaint, the complainant was treated in a less favourable manner for a time towards the end of 2006
- The two protagonists Mr A and Mr C had a difficult working relationship and Mr B, their supervisor, was aware that were ongoing difficulties
- Mr B and Mr C were on friendly terms throughout the period comprehended by this complaint
- The complainant had confided in Mr B and he was therefore aware of the relevant facts and the full impact that any sexual harassment would have upon the complainant
- There was an incident at the Christmas party in or around 17 December 2007 where Mr C asked Mr A in a loud voice "what's it like to be gay" or words to that effect, followed by grossly offensive remarks of a more graphic nature
- That Mr B, the two co-workers supervisor was present at the time these remarks were directed toward the complainant and advised the complainant to go home
- No action was pursued against Mr C at that time
4.6 The complainant stated that the Christmas party incident was witnessed by Mr B, his supervisor. I found the complainant to be a credible witness who gave his testimony in a cogent manner and who provided additional detail, even when such detail did not support his case or made him appear in a 'bad light'. The complainant stated that Mr C shouted at him "what's it like to be gay" or words to that effect, followed by grossly offensive remarks of a more graphic nature (which were detailed to the Equality Officer, but which are not appropriate to repeat in this decision). The complainant's supervisor, Mr B, witnessed this behaviour. Mr B was aware of the context of the comments, was aware of the prior history of contact between the parties, and was aware of the impact that such comments would have upon the complainant.
4.7 I consider that the comments made on the night of the Christmas party, particularly when Mr B's knowledge is taken into account, can be considered to constitute sexual harassment as defined by the Acts. In that regard, I consider that Mr B knew, or ought to have known, that they would have the purpose or effect of violating the complainant's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant constitute sexual harassment as defined by the Acts.
4.8 Mr B, as the complainant's supervisor did nothing about this issue, other than to tell the complainant to leave the Christmas Party if he found it so upsetting. He does not appear to have followed up on this incident in any way whatsoever. From evidence given to the Tribunal, it appears that at least one other member of the management became aware of the comments that were made shortly after the fact, however that Manager did not attempt to ascertain the truth or otherwise of the account related to her. Having regard to the foregoing, I am satisfied that the complainant has established facts from which sexual harassment may be inferred. Under the provisions of Section 14A of the Acts that sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment. I am also satisfied that the respondent has not rebutted the inference of discrimination raised and, given that it did not have an equality policy in place at that time, can not rely upon any defence. Therefore, the complainant is entitled to succeed.
4.9 Regarding the earlier incidents dating from 2006, as the complainant only lodged his complaint on 19 June 2008, these incidents appear to be outside the 6 month period envisaged by the provisions of Section 77. However the incident from the Christmas party took place within the timeframe outlined in Section 77 and accordingly it is appropriate for me to decide on these matters. In addition, in the circumstances of this case where the harasser is the same person, the victim made earlier attempts to raise a complaint and the management structure remained largely unchanged, I consider that these events form a chain of events and come within the provisions of Section 77 of the Acts.
4.10 The respondent gave evidence that it carried out an investigation in the aftermath of receiving the complaint from the Equality Tribunal. The respondent produced notes of interviews taken with staff members who were present at the party. However when asked as to what happened to this enquiry, the respondent stated that nothing happened as the complainant had left the company.
4.11 The complainant complained that he was subjected to victimisation as laid down in the Acts. However, I have taken these incidents into account when considering the 'chain of events' referred to above and in the alternative, if considered as a standalone element, would be put beyond the timeframe envisaged by Section 77 of the Acts.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of sexual harassment has been established and this complaint succeeds.
5.2 Having considered all the written and oral evidence presented to me, I find that the issues put forward in relation to victimisation can not be considered by the Tribunal and this element of the complaint fails.
5.3 In accordance with section 82 of the Acts I award the complainant €40,000 in compensation (approximately 66 weeks remuneration) for the discriminatory treatment suffered. As this does not include any element of remuneration, it is not subject to income tax.
23 December 2011