EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-145
PARTIES
A Worker
(represented by Daly, Derham and Donnelly Solicitors)
-V-
A Restaurant
( unrepresented at Hearing, later represented by Doodys’ Solicitors)
File reference: EE/2013/591
Date of issue: December 2015
1 The Dispute
This dispute involves a claim by Ms AB that she was discriminated against by CD restaurant on grounds of gender in terms of section 6(2) and contrary to sections 8 and 14 of the Employment Equality Acts, 1998-2011 by being harassed, sexually harassed, victimised and by dismissal due to her opposition to discrimination .
2 Background
2.1 The complainant referred a complaint against the above respondent to the Equality Tribunal on 21 October 2013.
2.2 In accordance with his powers under Section 75 of the Employment Equality Acts 1998 -2008, The Director delegated the case on July 1, 2015 to me, Patsy Doyle, ,an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts . I received a written statement in advance from the complainant.
The respondent did not avail of this opportunity and instead appeared in person, unrepresented at the hearing arranged for July 24th, 2015. On the morning of the hearing, the respondent sought an adjournment as the company representative had come off notice in the days immediately preceding the hearing and he had experienced a difficulty securing a replacement representative .I heard and considered submissions from both parties on the topic of the requested adjournment. I refused the application on the basis of:
1 The respondent had already secured two adjournments in this case before July 24th
2 The complainant had already endured a long wait for her hearing date from 21/10/2013. It was her express wish to proceed with the hearing.
3.As the respondent had been on notice of the hearing, I do not consider that he was prejudiced by the hearing proceeding as scheduled.
As required by section 79(1) of the Acts and as part of my investigation. I proceeded with the hearing on that day ,July 24th, 2015.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3 Summary of complainant’s case
3.1The Complainant is of Slovakian origin . She came to Ireland in 2011 with her young daughter from Egypt. She commenced work as a waitress with the respondent on 12/3/2012 and her employment ended on 15/6/2013 .At that time she had previous experience as a waitress. She had also undertaken a course in Beauty Therapy and was a qualified Masseuse.
3.2 Her evidence was that she commenced domestic work in a private house when she came to Ireland. This had not worked out and she was compelled to live in a Refuge for a three week period .She then applied for a job as waitress in the respondents restaurant .She secured the job following an interview and a two day unpaid trial period .At the interview, the owner commented on her background in massage.
3.3 Very early on in her employment, the complainant was approached by the owner saying he liked massage and asked her to perform a massage on him “for fun”. The complainant stated that she was scared but felt obliged to complete the massage as requested. She stated that she felt vulnerable but she knew the owner was serious. His insistence caused her to fear for her job and future employment if she refused.
3.4 At the beginning, she worked the afternoon/evening shift at the restaurant on 20 hrs. per week and after 8-9 months , she did other shifts . She stated that she felt embarrassed when , the owner called on her to go upstairs to his office between 3 pm and 5 pm to do massage for him as her position had to be replaced on the floor and she felt that everyone knew about this .This happened on several occasions and the door of the office was locked. The complainant told the Tribunal that the owner threatened her job security, if she refused him a massage. Her representative told the Tribunal that she felt that she had “ very little option in the matter “ At the same time, the owner took issue with her work performance and criticised her capacity to keep up with phone duties and managing the cash associated with drinks sales. He also commented negatively on her English .
3.5 The complainant admitted that the restaurant was very busy and it took her a while to become proficient in the position of waitress but that she felt very bad that the owner had continued to pursue her for massage and that his mood changed if she hesitated, while his mood was ok if she agreed. She gave evidence to the Tribunal of serious sexual advances made by the restaurant owner towards her. She said they were unwelcome and entirely inappropriate.
3.6 She also gave evidence that the owner began to call her incessantly and follow her after work, while walking to school with her daughter and when she was coming home from the Gym. She described being physically threatened by his actual height and by his placing a finger in front of her nose. She told the Tribunal that he didn’t treat the men who worked at the restaurant in that manner and it was hard to take as she understood that “she was in Europe now and not Egypt” She detailed that 18 men and three women worked for the respondent and that he treated her differently to the other employees.
3.7The complainant told the Tribunal that the owner wanted her to leave her house and move to live with a friend of his as he judged her rent to be too expensive .She refused .
She stated that she was discouraged from bringing friends /family to the restaurant and that this upset her. She recalled her father advising her to leave the employment. She became ill from her experiences at the restaurant and understood that the respondent’s manager, Mr EF refused to accept her medical certificate.
3.8 The complainant commenced sick leave in June 2013 and she said that her employment was terminated on 15/6/2013. The Complainant presented a medical report to the Tribunal, which referred to a consultation from 18th June 2013. The report confirmed that the complainant was having difficulties at work through reported sexual harassment which resulted in her leaving her employment on 14 June, 2013.She presented with illness and reported that her Boss was pursuing her for sex. She also reported financial difficulties. The Medical Officer certified her unfit to work due to stress and remarked on her potential recovery which he stated “ may take some time”.
3.9 The complainant told the Tribunal that she had got another job since leaving the employment. She held a strong view that the owner’s behaviour towards her was different to the other employees and that she was scared. On 11.8.2014, a Rights Commissioner awarded the complainant compensation for unfair dismissal and this is currently under appeal by the respondent to the Employment Appeals Tribunal. A transfer of undertakings took place on 22/4/2013 where the company was renamed but still owned and managed by the same respondent.
3.10 The complainant’s representatives contended that their client had been placed under considerable pressure for physical intimacy from her Manager. The employment was bereft of any systems or procedures to combat this and the ratio of 18:3 male staff to female staff caused her to feel marginalised. They asked the Tribunal to look behind the “smokescreen “depicted by the employer and submitted that the acts described by the complainant were in the moderate to severe category of sexual harassment and compensation was the requested remedy .
4 Summary of Respondents case
4.1 The respondent initially denied all claims against the company by saying that the complaint was “Full of lies” and “95% Lies”.
4.2 Throughout the course of the hearing, the respondent continued to comment on his continued wish for an adjournment. It was clear that he had not prepared a response of any detail to the claims and he had a difficulty accepting my reasoned decision on the refusal to grant a third adjournment in the case .
However, I afforded the respondent and his witnesses sufficient time and a full explanation of the process of an Equality Hearing to comply with fair procedures. Mr CD , indicated that he understood the process, however, he expended considerable energy throughout the day long hearing on his disappointment at being refused an adjournment and this caused the Tribunal to take a number of recesses to seek to prompt an improved focus from the respondent on the case at hand .It was clear that the respondent showed considerable disregard for the Tribunal process. Mr CD presented three witnesses to the hearing, Mr EF, Mr GH and Mr IJ.
4.3 Mr CD told the Tribunal that he had been successful in the restaurant business for over twenty years. He said that this was the first time anyone had made a complaint about him or his business and that it had caused him stress and insomnia .
4.4 He recounted interviewing the complainant and that her story “touched his heart” He wanted to give her work to help her out . He told the Tribunal that he had a very good track record in helping refugees and that he was proud of that work.
He said that Ms AB did a good job and he recalled on one occasion giving her cash to purchase shoes for her child and at her request ,he allowed her to increase her hours. He admitted that the complainant had difficulty in settling into the role of waitress but denied that he harassed her.
4.5 Around 8 weeks into the employment Mr EF approached him saying that Ms AB had a business proposal to incorporate a massage business into the restaurant business. She wanted Mr ABs financial support to make this happen. He recounted being approached by the complainant to try her massage during August .September or October 2012. He described that the complainant made advances towards him and that he was seduced by her. He told the Tribunal that he permitted the claimant to perform a head, neck and shoulders massage after hours at the restaurant but that it was a “ one and only” occasion .
4.6 As restaurant owner, he told of his concern when a night manager approached him to tell him Ms AB was distributing business cards for her massage business amongst the male customers in the restaurant. He approached the claimant and told her to stop this practice.
4.7 Mr CD told the Tribunal that he had given the complainants parents a free meal at the restaurant but had told Ms AB not to bring her friends to the restaurant. He said he kept a distance away from the complainant after that.
4.7 When asked, under cross examination, he recounted the staffing of the restaurant in the afternoons ( 2pm to 5pm and 3 pm to 5 pm ) as
Chef
Manager
Floor and Bar Staff.
At first , he told the Tribunal that the claimants reference to the period of time referred to in her submission as between 3pm and 5pm and early evening was impossible , but latterly during the course of the hearing , he acknowledged that there was a crossover of staff on the rosters during that period of time . I requested sight of the rosters and the company submitted them via Doodys Solicitors a number of weeks post the hearing .
4.8 Mr CD recalled that the complainant’s behaviour changed at the beginning of 2013, He understood from this that she was acting as if she wanted to lose her job. He told the Tribunal that Ms AB had made sexual advances towards him but that he refused . He said he was unwell and hospitalised around the time of her departure from the restaurant. He denied dismissing or victimising the complainant and stated that she had indicated that she wished to leave in April , but couldn’t get another job and asked to stay on .When asked , he told the Tribunal that when he received notification of the complaint from the Equality Tribunal that he did not take the complaint seriously and that it was not a priority .
Mr CD held a strong view which he communicated to the Tribunal that the complainant had planned this unfair attack on his character and that the whole thing was a “scam” and untrue. He went to considerable lengths to rebut the evidence of the complainant. At my request, the respondent submitted extensive phone records a number of weeks after the hearing .
4.9 In his closing remarks, Mr CD continued to deny the majority of the claims against him and asked the Tribunal to reflect on the seriousness of the issue for his business. He confirmed that the Restaurant had changed policy since the events reported and that an external HR Company had since advised on policy formulation on employment issues.
He told the Tribunal that the events as described by Ms AB “doesn’t happen anymore” and he wanted to impress on the Tribunal his respect for all his employees. He referenced cameras being present in his Office that would have picked up any inappropriate behaviour but he did not seek to submit records in evidence . Mr CD told the Tribunal, when asked that he had never heard of the Code of Practice ( Harassment) Order,2012 ( SI 208/2012) which came into force on May 31, 2012. He did not provide evidence to the Tribunal on the business proposal .
5 Summary of the Witness evidence
5.1 The witnesses who attended the hearing were all called by the respondent . At the commencement of the hearing , Mr EF and Mr GH were present and recorded their names on the attendance record. Mr CD took the unusual approach towards the conclusion of the hearing of seeking to submit the evidence of 11th hour unnamed and unannounced witnesses to the Tribunal .The Complainants representatives objected . I agreed to hear Mr IJ as he had allegedly worked at the restaurant simultaneously with the claimant. The respondent accepted that witnesses should be relevant and material to the case at hand.
5.2 Mr EF (general manager for 15 years)
Mr EF recalled Ms AB commencing employment .He also recalled her proposing to Mr CD that he incorporate a side business in his restaurant , but that this did not come about . He complimented the management practices of Mr CD .He told the Tribunal that Ms AB was quite stressed at work but that he didn’t believe that it was due to “ anything on our side “. He noticed that she was sitting down with customers during work time which caused him to give her two warnings of a verbal nature .He reported that she became more tense during the end of 2012 and the commencement of 2013. He was conscious that Mr CD had never fired anyone. He told the Tribunal that Ms AB wanted to leave the job but needed to find a replacement post and Mr CD agreed to keep her on.
On cross examination, Mr EF told the Tribunal that Ms AB had confirmed to him that she had given Mr CD massage during work time. He didn’t become involved in the detail or who had initiated it. He told the Tribunal that it didn’t occur to him to ask whether it was sexual or serious? He wasn’t a witness to it and his job was to compile the rosters for staff and assist in managing the business. He told the Tribunal that Ms AB did not confide in him or make a complaint, nor did she seem uncomfortable . He was aware that she had been up to clean the Office upstairs on at least one occasion. He did not ask Ms AB why she wanted to leave the job ? As far as he was aware, they were adults and nobody had made a complaint. He did not see the need to become involved. The restaurant was very busy. Mr EF did not refer to any dates in the chronology of his evidence.
5.3 Mr GH (19 years, Night Floor Manager )
Mr GH gave evidence to the Tribunal of Mr CDs support for all staff . He described a good working environment. He spoke of Mr CDs benevolent approach to staff . He did not have a lot of contact with Ms AB .He told the Tribunal that he had received a report that Ms AB was distributing her business card to the customers .She denied the practice, but he found the card and gave it to Mr CD. The card was submitted in evidence.
5.4 Mr IJ (Waiter)
Mr IJ came late to the hearing. He gave evidence that he was on sick leave from the restaurant following an accident. He knew the complainant from the restaurant and they had gone out on a few occasions to parties. He understood that she was close to Mr CD and he told the tribunal that he advised her to be careful. He told the Tribunal that he had visited Ms AB in her capacity as a qualified masseuse at her home as he was stressed.
He detailed the list of staff employed at the restaurant which corresponded with the complainant’s account.
6 Conclusions and Findings of the Equality Officer.
6.1The claims before me refer to discrimination on Gender grounds.
1. Dismissal because of opposition to discrimination.
2. Sexual Harassment
3. Harassment
4. Victimisation
I have given careful consideration to all submissions received in the course of the investigation and hearing . In addition, I have listened carefully to the oral evidence of the complainant, the respondent and the witnesses who attended the hearing. The issue for me now is, whether or not, the respondent discriminated against the complainant on gender grounds?
Dismissal
6.2 Ms AB contended that her employment was terminated on 14/6/2013 without notice, while she was on sick leave. The respondent denied this saying that Ms AB left of her own volition. No evidence of the termination of employment was pro offered by either party at the hearing.
The Complainant’s representative placed a copy of a Rights Commissioner recommendation on record during the hearing. This was dated 11/8/14 and found in favour of the complainant in respect of an Unfair Dismissal claim. The respondent confirmed that this was currently under appeal to the Employment Appeals Tribunal .
S.101(4) of the Employment Equality Acts provides that :[1]
An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if –
(b) in exercise of powers under the Unfair Dismissals Acts 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal ,or,
(c) The Employment Appeals Tribunal has begun a hearing into the matter of the dismissal
I accept that the Rights Commissioner recommendation was a recommendation in respect of the dismissal. I accept that the matter is awaiting a hearing date for appeal at EAT under the Unfair Dismissals Acts 1977-1993. Consequently, I find that I lack jurisdiction to investigate this aspect of the claim pursuant to the provisions of S.101(4) (b) of the Acts . I am guided by precedent in DEC –E2014-099, (Thomas Hughes v Dublin and Dun Laoghaire Education and Training Board )[2] in this regard .
7 Sexual Harassment
7.1The issue for decision by me is whether or not the respondent sexually harassed the complainant contrary to Section 14 of the Acts
Section 14(A)1 “ Where an employee is harassed or sexually harassed either at a place where the employee is employed or otherwise in the course of his or her employment by a person who is –
(1) Employed at that place or by the same employer,
(2) The victim’s employer, or
(3) A client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that an employer ought reasonably to have taken steps to prevent it ,
Or
(B) without prejudice to the generality of paragraph( a) –
(1) such harassment has occurred, and
(ii) either-
(1) The victim is treated differently in the workplace or otherwise in the course of her employment by reason of rejecting or accepting the harassment ,or
(2) It could reasonably be anticipated that 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.[3]
Sexual harassment is defined in Section 14A (7) of the Acts as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s s dignity and creating an intimidation, hostile, degrading, humiliating or offensive environment for the person. It may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. it is a defence for the employer if it can prove that it took reasonably practicable steps to prevent the person from sexually harassing the victim or any class of persons which includes the victim and to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and where such treatment has occurred to reverse its effect .
7. 2 Section 85 A of the Acts sets down the parameters attached to establishing a prime facie case of discrimination. The Labour Court interpreted this in Melbury Developments Limited and Valpeters:[4]
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
7.3 The complainant was clear on the sequence, location and context of the matters complained of from March 2012 to June 2013. I found that her oral evidence was consistent with her written statement . She depicted a hostile atmosphere where she was prevailed on against her will to perform intimate acts with her Employer. She was also clear on the negative and degrading impact that these events had on her life. She produced a cogent medical report which affirmed her health had been affected by her experience. On the other hand, the respondent sought to undermine her evidence on a number of occasions by depicting Ms AB as the initiator of the request for sexual favours. In addition, the evidence of his witnesses was long on commendation of Mr BC as a Boss and responsible Employer and short on cogent commentary on the case at hand. In the case of Mr EF, I found it extremely worrying that a Senior Manager of long standing would compartmentalise his role as an administrative manager to the detriment of the statutory obligations governing the Employment in the form of the Employment Equality Legislation . I accept that the complainant told Mr EF about the massage .I accept that Mr CD confirmed that the massage also occurred albeit in his recall on one occasion . For these reasons, I find that the complainant has established a prima facie case of discrimination and the burden of proof now moves to the respondent .
In Ntoka v Citibank [5]The Labour Court held that “This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainants power of procurement. Hence the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to provesomething which is beyond their reach and which may only be in the respondents capacity of proof .”
7.4 The respondent sought to in effect turn the tables on the evidence of the complainant throughout the hearing by seeking to describe her as the initiator and him as the victim. His witnesses adopted the same approach in two out of three instances. He prevailed on the Tribunal to disregard the evidence of the complainant and instead to accept his case that he had been wronged. I have reflected carefully on all aspects of this submission and I have difficulty with the position as articulated by the respondent.
In considering this contention, I am drawn to the earlier Australian case of O Callaghan v Loder for its persuasive value : [6] “Where the pattern of sexual harassment inflicted on the employee resulted in her being subjected to a hostile or demeaning work environment either the unwelcome conduct itself , or the hostile or demeaning environment created by it , can become such a feature of the employment that it can constitute a term or condition of it . In such a situation, the employee need not prove that there were any tangible employment consequences, the intangible effects are sufficient to invoke the section “
7.5 The complainant told the Tribunal that she felt powerless to stop the actions of Mr CD as she was new in Ireland and needed the job . She also stated that she feared for her job security and she did not complain as he was the Boss and she was felt that it wouldn’t change things .She did however tell another Manager but she did not actually ask him to intervene.
It was undisputed by both parties that the employment was bereft of any policies or procedures which would be reasonable to expect in a similar sized small business of 20 plus employees.
The Employment Equality Act 1998( Code of Practice ) Harassment) Order 2012 [7]came into force during the lifetime of the complainants employment on May 31. 2012. The respondent told the Tribunal that he had not heard of it , neither did he have any policies to address the potential for claims of harassment or sexual harassment during the course of the complainants employment .I find that incredible.
It seemed to me that the respondent held a strong belief that he should be permitted to manage his business the way he saw fit as he repeatedly referred to the primacy of his “ good reputation “ and the while , I accept that the code does not specifically compel an employer to adopt the code, It does stipulate that “ It is essential that employers have in place accessible and effective policies and procedures to deal with sexual harassment and harassment “ Mr CD did reassure the Tribunal that things had now changed at his company and they had now adopted new policies since receiving the complaint.
The code of practice sets down a clear pointer in :“ Some specific groups are particularly vulnerable to sexual harassment and harassment as there may be a link between the risk of sexual harassment or harassment and an employee’s perceived vulnerability – such as might be the case with new entrants to the Labour market, those with irregular or precarious employment contracts and employees in non-traditional jobs”
While the claimant was 40 by the time she came to Ireland, her evidence to the Tribunal confirmed a certain vulnerability as a new entrant to the labour market with familial responsibilities . There are some insightful overlaps in the case of Company v a worker [8] and this case . The Equality Officer there found that the Company had failed to provide a safe place of work free from sexual harassment .
In this case , the Company , through Mr CD and his witnesses told the Tribunal that Ms AB showed no visible signs of distress while in employment and neither did she make a complaint .The Company displayed a blatant disregard for her description of events at the hearing .
7.6.In Atkinson v Carty [9], the Circuit Court held: “It is not sufficient for the Defendants to plead that no amount of paper compliance would have helped in the case of the plaintiff. The failure of the Defendant to have in place adequate procedures renders them liable and by reason of their failure to fulfil their statutory obligations they are responsible and cannot plead immunity from same simply because the plaintiff failed to make a complaint “
7.7 I have found that the complainant registered her unease and humiliation with a number of parties in this case: Mr CD, Mr EF and latterly the Medical Officer in June 2013, with the exception of the medical officer, her concerns went unheeded .I found the evidence of the witnesses to be of limited value, outside a collateral for a total absence of policies or procedures at the employment and the high regard in which all three held Mr CD .It is true however, that Mr EF re affirmed the complainants statement on the massage.
7.8 I will take a moment to comment on the evidence of Mr IJ, the 11th hour witness in the case for the sake of completeness. Mr IJ gave an account of his recollection of the time he spent working with the complainant, which was unremarkable . Mr CD then sought to press the witness to discredit the complainant . I cannot accept the validity or relevance of this witness account due to his late and unannounced entry to the case and his lack of proximity to the core complaint .
In Campbell catering ltd v Rasaq [10] The Labour Court held that “ It would offend against the standard of fairness which this Court is obliged to observe in its procedures if it was to allow hearsay evidence in rebuttal of testimony given on affirmation or oath which was tested by cross examination and questioning from the Court “
I feel that it is important in the interest of natural justice that I quote this authority . I realise that the Tribunal is meant to be a quasi judicial forum as I explained repeatedly to Mr CD throughout the hearing, however, it is vital to preserve the integrity of a fair hearing .
There was a considerable amount of conflict in the evidence in this case. I have decided that, on the balance of probabilities, I prefer the complainant’s version of events over the respondent’s. I reviewed the rosters submitted by the respondent and I identified a pattern of overlap of shift patterns which placed more than 1 person on the floor of the restaurant between the hours of 3 pm and 5pm and early evening , which corresponded with the times given by the complainant in her evidence to the Tribunal .
The respondent admitted to a complete vacuum of any policies which might either raise awareness of sexual harassment or serve as a deterrent constituted a regrettable omission and an unacceptable departure from the company’s obligations under statute in this jurisdiction to maintain an employment free from sexual harassment.
The complainant was entitled to work in an environment free from sexual harassment. I find that there were no steps taken by the Employer to secure this environment, therefore the company cannot rely on the defences permitted in section 14(7) of the Act . I find, therefore, that the respondent sexually harassed the complainant contrary to section 14(A)(7) of the Act over a continuing period of her employment and the Employer cannot rely on a defence in this instance .
8 Harassment
8.1 Harassment is defined in section 14A(7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds 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.
I have considered the complaint of harassment and I find that the complainant has failed to satisfy the burden of proof based on the threshold for submission of “significant facts” required in this regard. I asked the respondent to furnish his phone records at the conclusion of the hearing I wanted to ascertain whether the repeated phone calls were evidenced in these records. In fairness, the respondent did furnish extensive records which were copied to the complainant who did not respond to these records until November. There were some references to dates where the complainant received calls from the respondent when she was not rostered for work, but nothing broader than that . I could not, therefore advance on this matter as multiple phone numbers were referenced without me being able to link them in a meaningful way to actual people relevant to the investigation.
9 Victimisation
9.1 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
I find that the claimant has not established a prima facie case to satisfy the burden of proof necessary in this case as the complaint was first lodged with the Tribunal on 21/10/2013, at which time Ms AB no longer worked for the respondent and this was the first occasion that the Employer had notice of the complaint, or any other complaint of discrimination. I accept his evidence in this regard.
10 DECISION
10.1. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that
(i) I do not have the jurisdiction to address the claim for dismissal.
(ii) The respondent did discriminate against Ms AB through the conduct of the Employer and by not taking reasonable and practicable steps to prevent her sexual harassment contrary to Section 14A(7) of the Acts
(iii) The claimant did not establish a prima facie case for Harassment, therefore this claim cannot succeed .
(iv) The claimant did not establish a prima facie case for Victimisation, therefore, this claim cannot succeed.
I am concerned at the highly paternalistic employment described by all parties in this case . The employment appeared to be dominated by Mr CD and no one understood that they may have or ought to have the capacity or entitlement to question that authority. This is a cause for extreme concern and needs external oversight . I would like to see an improved understanding of the company’s obligations under employment equality legislation as well as a higher threshold of compliance.
10.2 In Von Colson v Land Nordheim- Westfalen[11] “ The judicial redress provided should not only compensate for economic loss sustained but must provide a real deterent against future infractions “.
This has been set down in Article 25 of the recast Directive[12] “penalties must be effective, proportionate and dissuasive”
In making the following award, I seek to address those aims.
10.2 In accordance with Section 82 of the Act, I order the respondent pay the complainant:
(a) €23,965 (the approximate equivalent of 18 month’s salary) in compensation for the sexual harassment and the employers failure to reverse the effect
(c) pursuant to Section 82(5)(b) of the Acts, pay the complainant interest at the Courts Act rate in respect of the amounts above in respect of the period beginning on 21st October 2013 (being the date of the reference of the complaint) and ending on the date of payment.
The total award of €23,965 (plus interest) is redress for the infringement of Ms AB's statutory rights and the impact on her health and wellbeing and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
(d) I further order, as per Section 82(1)(e) of the Acts, that the respondent conduct a review of its policies and procedures in relation to its employment practices to ensure that they are in compliance with these Acts with particular reference to sexual harassment on any of the nine grounds. All managers should be trained accordingly. Unless this decision is overturned on appeal, a report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year of the date of this decision. If this is not done, the Irish Human Rights and Equality Commission may (with the consent of the complainant) apply to the Circuit Court for enforcement of this order under Section 91(4)(b) of the Acts.
________________________
Patsy Doyle
Adjudication Officer/ Equality Officer
December 2015
[1] Employment Equality Acts 1998-2011
[2] DEC-E2014-099
[3] Section 14 Employment Equality Acts
[4] Valpeters v Melbury Developments [2010]21 ELR 64
[5] Ntoko v Citibank [2004]ELR 3 116
[6] O Callaghan v Loder EOC 92.024 ( NSW EOT)
[7] Supra 1
[8] CL v CRM [2004] ELR 265
[9] Atkinson v Carty 2005 ELR.1
[10] EED048 , 2004
[11] Von Colson and Kamann v Land Nordheim – Westfalen ( case 14/83) [1984] ECR 1891.
[12] Recast directive 2006/54/EC