EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-146
(Represented by Advokat)
Board of Management, Secondary School in the South of Ireland
(Represented by Mason, Hayes and Curran Solicitors)
File reference: EE/2013/669
Date of issue: 9 December 2015
1.1. The case concerns a claim by Ms A that her employer, a Boys Secondary school, discriminated against her on the ground of gender contrary to Section 6(2)(a) and Section 8 of the Employment Equality Acts 1998 to 2011 in relation to her conditions of employment as she submits that she was sexually harassed and harassed in the workplace. The complainant also alleges that she has been victimised within the meaning of Section 74(2) of the Acts. It is the policy of the Workplace Relations that decisions are anonymised in complaints of sexual harassment unless the complainant specifically requests otherwise.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 11 December 2013. On 12 August 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, Adjudication/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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on August 27th 2015.Both parties submitted comprehensive written submissions The last piece of correspondence relating to the complaint was received on September 15 2015.
1.3 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.
List of Witnesses
Ms A – Secondary school teacher and complainant
Mr B Supervisor/Special Needs Assistant
Mr C Principal
Mr D- Vice Principal and Acting Principal – now retired
Mr E- School manager / Current Principal
Ms F – witness on behalf of complainant
2 Summary of Complainant’s case:
2.1 The complainant, Ms A commenced work for the respondent on 1 September 2004 and she became permanent on 13 October 2008. She loved her job and understood that she was highly regarded at the school where she taught Maths and Science.
2.2 On March 20/21 2010, Ms A attended a colleagues wedding. During the course of the reception she was the subject of an unwelcome sexual approach by Mr B, who, while not an employee of the school had a sports connection with the school. Ms A gave evidence of this serious sexual approach at the hearing and the facts are not in dispute by either party. This episode has served as the precursor for a long line of events which led to the December 2013 complaint to the Equality Tribunal.
2.3 In April, 2010, the incident was discussed informally by Ms A at a staff party where Mr D was in attendance. Ms A did not make a complaint at that time as she felt that some of her friends were also friends with Mr B and she was in fear of reprisal .
2.4 On 17 June, 2010,Mr B sent a text of apology to Ms A for his behaviour on March 20/21. Ms A accepted this apology .
2.5 On June 28th, 2010, Ms A heard informally that Mr B had attended the school to sign a contract of employment in the Principals office. She immediately contacted the Principal and reported the traumatic experience at the wedding in March. The Tribunal heard that the Principal denied appointing Mr B to the school. On June 29th, Ms A told the Tribunal that she had a meeting with the Principal where she again registered her fear of Mr B. As she could not establish whether Mr B was actually employed or not at the school, she followed this up on four further occasions with the Principal, to no avail.
2.6 On August 20, 2010, Ms A was informed by Mr C that Mr B was to be employed at the school as a supervisor on a permanent basis . The school , while cogniscant of the unwelcome sexual approach in March 2010, had decided to park the matter .Ms A had difficulty with this approach and on August 23rd outlined her concerns in writing to Mr C who assured her something would be done. On September 22nd Mr C stated on behalf of the Board of Management and his office
“I note your comments with respect to an incident on the 20th March 2010 which incident was not in any manner associated with the College …….. I wish to assure you that it is my intention and that of the Board of Management to maintain the College as a healthy and safe place to work at all times in the future “
2.7 Life changed for Ms A following the appointment of Mr B in August, 2010 , she told the Hearing that she had been immediately intimidated by Mr B . He stared at her excessively and smirked when he saw her, she had flashbacks, she took sick leave in September, and she began to avoid school events if she knew he would be there .
Her representative recounted that Ms A had been approached by the school to give an annual talk to new staff. When she learned that Mr B was on the list she sought to excuse herself. The Chaplain assured her that Mr B would not be there, however he attended and this upset Ms A. She asked him why he attended only to be told that nobody told him not to go .This confused Ms A as Mr C had also told her that Mr B would not attend the talk.
2.8 On 3 November, Ms A reported the events of March 20/21 to the Gardaí. On 4 November, Ms A raised a grievance with the Board of Management, she detailed the events of March 20/21 and the effect Mr B had on her working life since his employment as a Supervisor.
“The principal merely reminds me that he is happy with Mr B’s assurances ,and that this man is entitled to his job and his place in the staff room………My career, health and happiness are on the line “
Mr C responded on behalf of the Board, stating that the events of March 20/21 2010 were not capable of being investigated by the school and instead offered a course of counselling.
2.9 On 18 January 2011, the claimant’s representative wrote to the Board of Management. In this letter, the link between Mr B and the school prior to his appointment was re-affirmed. In addition, he placed the school on notice that in the event that an amicable resolution could not be reached the matter would proceed to the Equality Tribunal. The complainant recalled receiving a personal guarantee from Mr C that the matter would be dealt with
2.10 Ms A did not secure a resolution and instead she described a chronology of events from March 2011 to October 2011
· Mr D told Ms A that he had not supported the appointment of Mr B.
· In March 2011, Mr B entered her classroom without notice and handed out flyers for a soccer blitz, whilst ignoring her presence. Ms F reported the unwelcome effect this had on Ms A to Mr C.
· The school did not provide the anticipated funding to Ms A to complete a Master’s programme.
· A negative change in the allocation of supervisory duties to the complainant.
· In June, 2011, at a school related party, Mr C informed the claimant that the school did not have work for Mr B for school year 2011/2012. Mr B was then employed as a Special Needs Assistant at the school.
· She was excluded from the all night soccer fundraiser by the organiser who was a friend and sports colleague of Mr B.
2.11 On 25th May2012, Ms A made another complaint to Mr C regarding Mr B’s behaviour towards her under schools recently commissioned the Dignity at work policy (2011) . This encompassed complaints from March 2010 to May 2012
“ I do not feel safe in my workplace due to Mr B’s presence. I avoid the staff room and the dining hall when Mr B is present because of non-verbal intimidation by him (staring, dirty looks etc.) The intimidation creates a climate of fear for me. His associates regularly taunt me that he has a secure job at the school. I experience social isolation in the staff room, instigated by these associates, because I reported my concerns to you. …. I have endured two years of hell and I do not wish for this to continue. I fear that I will have to leave my job because of Mr B’s unacceptable behaviour”
In August, 2012, the school commissioned an external investigator to conduct an investigation .This was a retired Principal from outside the county .The conclusions were vague. The investigator referred to Mr B as a teacher and not an SNA.
The recommendations on 20 August, 2012 centred on:
(1) support and guidance for the two parties Ms A and Mr B.
(2) The introduction of a written protocol on operational interface rules to steer a path forward .
(3) The importance of cohesion at senior management level in dealing with the matter.
(4) The provision of a mechanism for monitoring compliance as well as a facility for intervention if problems arose .Mr C was commended in the recommendations.
This culminated in Ms A lodging an appeal on Sept 11, 2012. Mr E, acting in the capacity as school manager, commenced a Disciplinary Hearing against Mr B on Oct 1, 2012 on behalf of the school. Ms A attended this extended hearing.
On 9th October, Mr E informed Ms A that her complaints had been upheld and that “ an appropriate disciplinary sanction “ was imposed on Mr B. This was to be followed by a tripartite agreement on interpersonal interaction between Ms A and Mr B and overseen by Mr C.
“Mr B has conceded that his behaviour in the hotel incident in March 2010 was grossly inappropriate. He gave assurances to the Principal in August of 2010 that he would, in effect keep out of your way and would not interfere in your performance of your duties and your enjoyment of your position as a teacher. Mr B’s acceptance of responsibility for what occurred in March 2010 created an obligation on his part to demonstrate great sensitivity in all of his interactions or possible interactions with you…
I find your allegation that you were subjected to ongoing non-verbal intimidation amounting to harassment in the manner set out in your complaint to be substantiated. I consider the behaviour as described to amount to serious misconduct”
The protocol was signed by Mr B and witnessed by Mr E on 5, November, 2012.
Mr C conducted a review of the protocol on December 24th and found it to have failed.
“It is in my opinion that all of the issues raised by Ms A should have been avoided altogether by Mr B …… I refer the matter to Mr E for his consideration “
2.12 A further Disciplinary process, chaired by Mr E commenced against Mr B on January 17th, 2013. This time the outcome centred on
· A revised and fortified protocol was implemented in January 2013
· A second final written warning was imposed on Mr B
At the hearing, Ms A’s representative submitted that there was no provision for a “final final” written warning in the respondent’s policy for SNA.
2.13 Mr C was placed on administrative leave at this time and Mr D took over the Principal position on an acting basis. Ms A reported further breaches of the revised protocol in March and June and reported these to Mr D .
“The protocol has been given a year to improve my position in this school …..I am surviving since 2010 in a hell not of my making “
Around this time, the complainant submitted that she was overlooked for a vacancy as a permanent teacher in her chosen subjects of Maths and science at the school .
On June 20th , a further Disciplinary process was convened on behalf of the school by Mr E . It was a cause of some concern to the complainant that another Deputy Principal who had attended earlier disciplinary hearings as note taker came to this meeting as a supporter of Mr B .
No evidence was given on the outcome of this meeting as the Complainant told the hearing that Mr B resigned his position on June 26, 2013.The school supported him in further employment as SNA.
2.14 On September 30th ,2013, Mr B visited the school for no apparent reason. The complainant did not see him but found reports of his visit to be very unsettling. She raised this with Mr E, who replied
“ I have instructed our solicitors to write to Mr B informing him that he is not to enter onto the school premises other than in the event that he has legitimate business with the school “
The complainant wanted the Tribunal to consider that it took the ultimate resignation from Mr B to alleviate the harassment and victimisation which the complainant suffered at the respondent school . The case law relied on
1. Marvelle Dornheckler v Malibu Grand Prix Corp ( US , Court of Appeal , 1987) 
2. A Boys ‘Secondary School and Two Female Teachers , 2002
3. A Boys’ Secondary School and a female Teacher of Religion 
The complainant also wished the Tribunal to take account of her analysis of the supremacy which the respondent afforded to Mr B which she felt was directly attributable to his “sporting cultural connection” to the school, this caused her to experience alienation and humiliation in a school she loved. She gave evidence of a myriad of roles held by Mr B in that regard as trainer, mentor and coach, all were intrinsically linked to the sporting ethos of the school and the county .She contended that she was treated less favourably because she was female .
EVIDENCE OF Ms F.
2.15Ms F, a fellow teacher, confirmed that she had been a moral support for Ms A since Mr B was employed at the school and she had attended the external investigation . She was not party to any of the Interpersonal agreements and they were not disclosed to staff. The complainant had confided in her that rules of behaviour were agreed but Ms F told the Tribunal that she was certain they were not followed by Mr B. She cited instances where she found Ms A very shaken after Ms B entered her classroom and ignored the agreement. She also stated that Mr B stayed in the staffroom when he wasn’t meant to. She told the Tribunal that she could not believe it when Mr B was hired as an SNA . She recalled the initiation of the revised Dignity at Work Policy in June 2011 via the JMB. She wanted the Tribunal to know that she felt that Ms A was an excellent teacher.
3 Summary of the Respondent’s Case
3.1 The respondent refuted all claims of discrimination against the school. The respondent accepted that the events of March 20/21, 2010 happened in the manner described by Ms A. This was also affirmed by the witnesses. The school contended that they could not be held responsible for this as :
· It was not a school related or sponsored event.
· It was not an event under the authority of the Board of Management.
· Mr B was not employed by the school.
The respondent contended that the school could not be held liable for the actions of Mr B as he was not directly employed at the time of the incident. They emphasised that once he became employed and the complaints flowed, they gave their full attention to the matter from that point on.
The respondent held a very strong viewpoint that there was insufficient proximity or connection with the events of March 2010 and what followed from June 2010 to September 2013. They pointed the Tribunal’s attention to acceptance of the apology of June 17th by Ms A.
The respondent contested the date of June 28th, being the date on which Ms A first learned of the possibility of Mr B’s employment at the school .Relying on the notes of Disciplinary meeting 1, the respondent referred to June 29th and June 30Th as the agreed dates on which Ms A and Mr C engaged on the topics of
· The reportage of events of March 2010 and the complainants concerns in the face of Mr B’s appointment at the school.
I accept the correct chronological dates from the respondent.
EVIDENCE OF MR D (Deputy and acting Principal)
3.2 Mr D made a contemporaneous note available to the Tribunal from June 22/6/2010, which purported to be a record of a phone conversation between Mr C and Mr D on the consideration of Mr B for employment at the school given Mr B’s past involvement with the Hurling Teams.
“I didn’t think that he would be suitable. I explained.
1) It was a completely different thing to train 20 lads for Hurling and to come into a school as a Supervisor.
2) I felt that he didn’t have the presence required since he would have to be on the corridors and in classes maybe on average of 5 hrs. a day .
3) He wasn’t’ in any way qualified.
4/He wouldn’t have the necessary control or respect.
I explained that while I would be happy for anybody to secure employment, I again reiterated that I didn’t think he was suitable.”
Mr D told the Tribunal that he did not draw the attention of Mr C to his knowledge of the events at the wedding in March as these discussions were shared with him in confidence .Mr D went on to tell the Tribunal that Mr C called him again at 5.15pm on 29/6/2010. He stated that Mr C tried to admonish him for failing to inform him as Principal about the events at the wedding in March. Mr D argued with Mr C on his failure to take account of his misgivings about Mr B on 22/6/2010. He was very clear that Mr C did not tell him that he had already appointed Mr B to the school earlier that day.
Mr D wanted the Tribunal to know that he had never endorsed Mr B’s appointment and his willingness to participate in the hearing post his retirement and his clear contemporaneous notes were clear testament to this. He told the Tribunal that the school went through a very challenging time during this period.
Mr D described his knowledge of a cohort amongst the school staff who recommended Mr B for appointment to Mr C. Mr D was clear that at the time of recommendation, these staff were aware of the events at the wedding as he himself had singled out and discussed the matter with a staff member, who was very friendly with Mr B in early April 2010.
“I let my feelings on the matter be known very strongly. I indicated that it was a very serious issue and as the staff member was a friend of the Offender, then the responsibility was on him to go back to the individual involved, point out that this was totally unacceptable behaviour and that an apology should be forthcoming”
Mr D told the Tribunal that he himself as Deputy Principal had no idea of the employment status of Mr B until he spoke with Ms A on 20/8/2010. He understood from Ms A that Mr B “would keep out of her space”.
3.3This referred to the letter of 23 August to Mr C. The respondent replied by distinguishing the “Wedding episode” from the domain of responsibility held by the school. The respondent committed to providing a safe place of work to the complainant.
3.4 The respondent confirmed that they accepted that a formal statement was made by Ms A to the Gardaí on 3 November, 2010.
3.5 They were not asked to participate in an investigation at the time or since by the Gardaí.
3.6 They recalled the letter of complaint to the Board of Management which followed on November 4, 2010 and the legal opinion issued independently to Mr C as Secretary to the Board of Management by a separate firm of Solicitors to the respondents current firm.
“If the College commenced an investigation of the alleged incident I would expect Mr B to seek legal advice and I would expect that advice to recommend to him to seek an injunction to prevent the college pursuing any investigation of the alleged incident. I see no defence to any such application “
This advice was interpreted as the school would have no standing to investigate an incident which occurred between two adults in a private capacity .The respondents representative was clear that the school responded to Ms A by offering to pay for counselling, but she did not avail of same .The respondent was clear that they acted to manage the complaints in a timely manner.
3.7 The respondent accepts that the school met with Ms A following the January 2011 letter from, Mr Adrian Twomey of Advokat and offered an assurance via Mr C that the matter would be dealt with . There was no detail on an action plan submitted in evidence in this regard. The respondent drew the Tribunals attention to the extended passing of time from January 2011 to May 2012 before the Complainant invoked the school’s Dignity at Work policy.
The respondent emphasised that:
“When the allegation was referred (May 2012) with other allegations against Mr B to the respondent as a complaint it and they were investigated without delay by way of a disciplinary investigation “
3.8 The respondent denied Victimisation or refusing Ms A education support for her Master’s programme and that it was not within its gift to give her funding . It was instead the responsibility of the Dept. of Education and Science. The respondent confirmed that the school paid Ms A’s membership to the Irish Science teachers association and resultant conference costs. From the records submitted Ms A availed of 8 study days during the lifetime of the claim ( a further two were omitted due to sick leave )
Substitution and Study group supplementary pay
3.9 The respondent denied reducing Ms A involvement in substitution payments. The respondent made two submissions on this point. In 2010 and 2011, combined payments were made for
1 After School Study and Substitution and Supervision to Ms A
2012 1689.64 +1664.05= 3,353.69
2013 1131.74 +1683.00= 2,814.74
The respondent stated that
“The Substitution and Supervision spread sheet shows that 31 teachers received payment for volunteering to provide extra substitution and /or supervision cover for at least three of the four years 2010 to 2013.26 of these teachers, including Ms A, received reduced payments over that period. Ms A’s percentage share of the total paid increased from 3% in 2010 to 5.67% in 2013.
The After School Study spread sheet shows that, of 19 who volunteered to supervise after school study for the three years 2012-2014; 11, including Ms A received reduced payments. Ms A ‘s percentage share of the total paid for after school study was 2.68% in 2012, 4.06% in 2013 and 3.52% in 2014.”
All Night Soccer Event
3.10 The respondent confirmed that Ms A and Mr B had prior involvement in this school event up to 2010 .The respondent prevailed on the Tribunal to accept that Mr C had sought to desist Mr B from attending the event but he failed to follow instruction Neither Mr B nor Mr C were available to the Tribunal .
PERMANENT TEACHING JOB
3.11 A permanent job was advertised in June 2013. It was true that the complainant was not informed as she was alreadypermanently appointed. At the hearing Mr E was clear that the school was under pressure following a Dept. review to only appoint registered Maths teachers to the position . He said the complainant was in pursuit of the registration at the time of the advertisement .This was accepted by the complainant.
3.12 In supplementary submission, which I requested , the school drew my attention to a report dated 7 February , 2012 which commended the quality of Maths teaching at the school but pointed to a “ deficit in registered qualified maths teachers “It recommended a core team of Maths teachers “ The requirements for the post were a CV and Teaching Council Registration . The three subjects required were Maths , Biology and Physics .Mr E undertook to check the protocol for advising existing permanent teachers of other vacancies at the school . This confirmation was subsequently received from the HR Dept. for teachers ( JMB) “
“I wish to confirm that there is no requirement for Boards of Management to inform full time permanent members of a schools teaching staff of vacancies that arise for teachers”
FOURTH COMPLAINT, INVESTIGATION AND DISCIPLINARY ACTION
3.13 The respondent submitted the letter of 9 October 2012, which placed a final written warning on Mr B’s file and initiated the Interpersonal protocol. This was not appealed by Mr B. Mr E was clear in his evidence to the Tribunal that he had spoken to Mr B on a number of occasions to reaffirm his responsibility to Ms A. The resultant breach in the protocol as contained in the 24th December review by Mr C was accepted by both parties as undisputed.
3.14 The respondent submitted the letter of 18 February 2013 to the Tribunal. This contained a notification of a fortified Interpersonal protocol and imposed a further “final written warning” on Mr B. This was not appealed. Mr E submitted a note of his meeting with Mr B on 18/2/2013 where he read out the above letter to Mr B and was unequivocal in what was expected of Mr B in the case of the protocol. He also advised Mr B that if there was any repetition of breaches of the protocol, it might be wise to consider his position at the school. Mr E recorded that Mr B felt under pressure from Ms A’s complaints but that he had no intention of leaving. A further Disciplinary Hearing followed on June 20th following the submission of further complaints by Ms A .Mr B resigned around this time.
3.15 The respondent was clear that Ms A had not lodged a complaint of sexual harassment against the school until December 2013.
3.16 The respondent was clear that the school acted in good faith in their management of the four complaints brought to their attention .Mr E attributed the delay from May 2012 to August 2012 to the commencement of the external investigation to the end of the school year .The Board of Management had acted with an “earnestness of purpose” and the respondent rejected the complainants’ contention at the Hearing that “moral cowardice “ had underwritten the management of the entire issue .
3.17 The evidence of both Mr D and Mr E corroborated a climate of chaos and disharmony at the school which coincided with the lifetime of the lodging of the complaints .They both said that the School was “not in a good place”. The respondent representative wanted the Tribunal to appreciate this environmental backdrop and that nobody had lodged a grievance against the Principal. The respondent told the Tribunal that some stability had followed at the school since the appointments of Mr D and E in their respective roles.
3.18 In relation to the claim for Victimisation, the respondent stated that no evidence had been adduced :
“As already noted the Complainant had a potential cause of action in civil law against both Mr B and the Hotel in which the events occurred in March 2010. For her own reasons she appears to have decided not to exercise her rights in that regard but rather to proceed against her employer who has already noted investigated her complaints without delay in accordance with agreed procedures, upheld them and imposed appropriate sanctions in compliance with its agreed procedures leading to Mr Bs decision to resign his position on foot of legal advice”.
3.19 The respondent continued to rebut all claims against the school and wished the Tribunal to accept that the actions of the Board of Management, Mr D and Mr E served to do all in their power to support Ms A , whom they all acknowledged as an excellent teacher . There was however no nexus on which which to draw a connection between events of March 2010 and the present complaint . Ms A had not been discriminated against , neither had her career pathway been damaged in any way .A cultural connection to the school could not be confused with an employment connection . Victimisation or discrimination on gender grounds had not occurred
CASES Relied on
1The Rotunda Hospital v Noreen Gleeson 
2 Dr Teresa Mitchell v Southern Health Board 
3 Nathan Bailey v Bailey Gibson
4 WITNESSES TO THE TRIBUNAL
4.1 I have incorporated the contribution of Mr D and Mr E in the respondent summary.
4.2 I have incorporated the evidence of Ms F in the complainant summary
All witnesses were clear in their recall and all acknowledged the teaching skill of Ms A and her long standing contribution and centrality to the school. Mr D asked that his evidence on his rebuttal of support for the appointment of Mr B as Supervisor in June 2010 be accepted by the Tribunal. I can confirm that I accept this evidence in full and I appreciate Mr D returning from retirement to assist the Tribunal.
5 Findings and Conclusions of an Equality Officer
5.1 The issue for decision in this claim is whether or not the complainant was subjected to discriminatory treatment, sexual harassment , harassment and victimisation by the respondent on the grounds of gender within the meaning of Sections 6(1), 6(2) and 14 of the Employment Equality Acts, 1998-2004 and in contravention of Section 8 of those Acts. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties
5.2 I see the primary need to record clarification on the Contract of Employment issued to and accepted by Mr B on 29th June, 2010. At the Hearing , the respondent referred to a dearth of information available to them on this key document . In addition it was unclear just how Mr B was hired in the first place . The respondent was not in a position to submit this detail at the hearing and it followed by way of supplementary submission on 15th September, 2010. I had concerns that there was a dearth of background on Mr B’s employment i.e. details of
1: Job Advertisement
4 Garda Clearance
The school, as a public body was obliged to keep records in this regard. The claimant did not offer further commentary on this submission.
5.3 The copy of the contract received by the Tribunal was signed by Mr B and Mr C and was dated June 29th, 2010.
· It was a contract of employment for a Supervisor dated 29th June 2010.
· The tenure was established as 30/8/2010-3/6/2011 and the contract was described as temporary/fixed term in nature.
· Two clauses were inserted which were “ teacher specific clauses” and not linked to the role of Supervisor .The post was described as accountable to the Principal and the Board of Management of the school .
· The date of first payment of salary was identified as September 6, 2010.
I believe this document to be of cardinal importance in this case. I note the variance between the actual document and what the complainant and indeed some of the respondents agents perceived to be Mr B’s employment status at the school. The facts are now clear, Mr B was hired as a temporary employee and not a permanent employee as perceived by the complainant. I find that this early misrepresentation of employment status, coupled with the clear lack of transparency surrounding the initial appointment of Mr B, whether by accident or design served to confuse the complainant. The omission of reference to a probationary period or performance review in the contract is significant.
5.4 Preliminary Issue: Scope of my investigation :
In addressing the complaint made to the Tribunal on 12/12/2013, I felt it was important to examine the time frame referred to in the complaint and align it with my jurisdiction to investigate . There was significant conflict at the hearing on this core issue.
“Following incidents of serious sexual harassment, I made a complaint to my employers. The complaint was not dealt with promptly or appropriately .This has severely impacted upon me at work. I was victimised for making a complaint “
The Wedding on March 20th was the wedding of a work colleague known to both Mr B and Ms A. It is undisputed that the events as described in the early hours of the morning of March 21st happened, what is disputed is whether the responsibility for the events can be attributable to the Employer?
There is a clear conflict from the complainant and the respondent in this regard. Section 14(1) of the Act requires me to examine these incidents as described. I propose to undertake this.
“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 –
(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,
the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.
5.5 It is not disputed that Ms A and Mr B knew each other in 2010 through mutual school acquaintances and common sporting events at the school. Ms A was a long standing employee, while Mr B had a very strong “sporting cultural connection” with the school but was not an employee.
The wedding of March 2010 was the marriage of a work colleague of Ms A’s who was known to them both. The events that followed the wedding as described by Ms A to Mr C, Mr D, the Board of and the external investigator are accepted as fact by all parties .It is true that the complainant may have had a cause for action/ recourse to both the civil and criminal courts , however, she has brought her complaint to the Tribunal under Equality Employment legislation .I must look in particular at the proximity of the aftermath of the wedding events and Ms A’s workplace .
The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 confirms that harassment and sexual harassment can occur outside the workplace. The scope of the sexual harassment and harassment provisions extends beyond the workplace for example, to conferences and training that occur outside the workplace. It may also extend to work-related social events. The harassment complained of must, however, occur “in the course of her employment”
5.6 I have considered all the evidence submitted on this issue. The events of March 20/21 2010 formed a contextual backdrop to the case , in essence they constituted an antecedent event .This event changed the complainants life, causing her trauma and fear of Mr B that did not exist prior to that date and did not evaporate in the aftermath. It was common knowledge amongst a large cohort of staff of the school and the attempt at reconciliation and recovery was unsuccessful.
However, I cannot establish that the school can be held responsible for what happened on that isolated night in the context of the overall complaint, when the school did not commission, organise or have a direct control of the event . While I accept that Mr B is readily identifiable as a Business Contact for the purposes of S (14) 1(iii) of the Acts , I find that the unwelcome sexual approach at the wedding as described by Ms A did not happen in the course of her employment on that date , S14(1)A refers .
Case law refers: This case is distinguished from Atkinson v Carty , where the Circuit Court upheld a complaint of sexual harassment against an external accountant. However, the actual proximity of the events to the workplace has exercised many equality officer investigations in complaints of discrimination. In Maguire v NEHB, the Equality Officer found in favour of a complainant where the events referred to occurred at a staff party where the manager herself attended. In an earlier case, O’N v an Insurance Company , the Equality Officer set a high bar for the test for the parameters of “ in the course of her employment “and found against the complainant on that aspect of the case .
” I do not consider that financial sponsorship by an employer at a social event where sexual harassment occurs is sufficient in itself and in the absence of other factors to bring an act of sexual harassment within the course of employment of a potential complainant”
5.7What is distinguished in the instant case is the unfolding of events in the aftermath of the wedding and how Mr B became further relevant in the context of the Complainants employment .The threads of proximity were woven back to the school in April,2010 on an informal footing and from June 29th 2010 on a formal footing .On this date a signed contract of employment was recorded between Mr B and the respondent school . Therefore , I find that the dateline associated with the complaint in my investigation must be stratified into:
1 March 20/21, 2010, (not properly before me).
2 June 29th, 2010 – September 30, 2013.
I find that I can proceed on the second stratum of the complaint and that I hold the jurisdiction to proceed with my investigation from June 29th , 2010 to the date of Hearing of 27th August, 2015 as these events formed a continuum of which the Employer had been placed on sufficient notice Brannigan 
5.8In Whooley v Millipore (2010) .Clarke J. in the High Court set down a useful direction in this regard. It emphasises the core role of the Employer in complaints of harassment .
“For the reasons which I have already sought to analyse, the substantive rights and obligations which are relevant to the case which Ms Whooley wishes to bring are her rights as against her employer and the obligations of that employer. It seems to me that the wording of the 1998 Act is, therefore, clear. The claim of an employee under s. 8 or s. 14A is a claim against that employee's employer not any other person. The fact that the individual acts which may give rise to such a claim will be done by individuals (whether the Board of a Corporate Employer or managers within the management structure of such an employer or, indeed the other persons whose actions can form part of the deemed discrimination by harassment under s. 14A) is neither here nor there. The statutory liability rests on the employer and no one else”.
I will proceed in my investigation from that point.
5.9 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In Arturs Valpeters v Melbury Developments  E.L.R. 64 , as determine by the labour Court, whilst examining the circumstances in which the probative burden of proof operates, the Labour Court held as follows:
“Section 85A of the Acts provides 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. What those facts are will vary from case to case 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.”
The complainant argues that the respondent failed to take such steps as are reasonably practicable to prevent Mr B from sexually harassing the complainant or to do anything to reverse the effects of the harassment and therefore the respondent has no defence in law (under s.14A(2)(a) of the Acts) from a claim of discrimination.
The respondent argues that the complainant has not met the threshold of proving the primary facts on which she relies. The respondent maintains that it took all such steps as were reasonable to prevent any such harassment, which is denied, occurring and in this regard relies on s.14A(2) and s.15(3) of the Acts. The respondent also maintains that it had sufficient policies and guidelines in place to ensure a harassment-free workplace for all its employees.
I have considered these opposing viewpoints carefully and I am mindful that the burden of proof rests with the complainant to prove that gender was a causal factor in her treatment at the school.
5.10 Section 14(7) (a) sets down the statutory definition of sexual harassment. Ms A presented a very credible case to the Tribunal. She was clear on the two conversations that she had with Mr C on June 29th and 30th, this was corroborated in part by Mr D in his contemporaneous records of the interactions he had with Mr C at that time .She told Mr C that she was afraid of Mr B and asked for clarification of his employment status. This was denied to her for a period of 8 weeks. This is remarkable when I consider the clarity contained in the contract offered in evidence to the Tribunal which was inexplicably withheld from the complainant. In A Female v A Company , the Equality Officer held
“I am satisfied that the respondents failure to properly clarify staffs positions within the company contributed to the conflict that arose”
It is not my role to decide who an Employer should hire . However, at that stage, Ms A had been a long term employee and an acknowledged excellent teacher. I find the omission to impart simple information on a prospective employee, especially when this prospective employee had already harmed Ms A (albeit external to the school) and was now due to enter her workspace to be both careless and callous.
Throughout my investigation, I was continually struck by the “apparent hold” that Mr B had on the school and I probed this. I am satisfied that the “ hold” was prompted by his” sporting cultural connection” to the school which served to overwhelm Ms A , causing her to feel outnumbered and a poor second .It served as a “ sub plot” for the entire case .
5.11 On August 23, 2010, Ms A wrote to Mr C.
“I hope that Mr B’s presence in my workplace will not have the effect of further upsetting me “
This was a clear call for help. The school appeared content to allow the complainant to lead the resistance to Mr B’s behaviour, there was no evidence adduced at the hearing of any school initiated performance reviews or probationary reports for Mr B. There was, however a reference to a probationary period in Ms A’s contracts of employment submitted to the Tribunal. I am struck by this inequity.
The complainant lodged a series of structured complaints aimed at securing a cessation of Mr B’s behaviour towards her. I am satisfied that the school and it’s agents were 100% informed that Mr B’s behaviour towards her was unwanted, unwelcome and was causing her great distress from August 2010 to September 2013.I find that management fell short in developing a management strategy to adequately address these concerns .
Mr C held management authority on this matter up until January /February 2013. During this time , his approach could be described as adopting the path of least resistance where it seemed that Mr B was told to keep out of Ms A’s way and Ms A was not made aware how this was to be managed in a busy school where they had shared student and staff groups in common.
5.12 I find that this approach coupled with the procedural containment around the legal advice to have fallen seriously short of what was reasonable in this instance. It would have been preferable had the Board of Management engaged with Ms A directly following her November 2011 complaint rather than delegating the management of the complaint back to the Principal, Mr C who had not acted on it at first instance.
This was a missed opportunity particularly on foot of the June 2011 introduction of the Dignity At Work policy. The policy prevalent at the time of the August 23rd, complaint in 2010 enshrined “All who work here are expected to respect the right of each individual to dignity in their working lives.” the 2011 policy was an elaborate policy .
5.13 The school gave assurances to Ms A that the school would maintain her safety. This did not happen .Instead ,Ms A perceived that the school rewarded Mr B by appointing him into the more responsible post of SNA in September 2011. The mixed messages from the school were certainly misleading.
5.14 In short, there was no fingerprints of authority on the conduct of Mr B up until Mr E took charge of the outcome of the investigation in August 2012. This was 26 months after the first cause for concern was raised by the complainant and where she had to appeal the internal investigation. It seemed to me, throughout my investigation that the complainant was not taken seriously and insufficient weighting was attached to her complaints up to this point. The evidence of Ms F was very cogent in that regard .I find that the external investigation was very vague and tainted due to lack of gender balance. The outcome of the August 2012 investigation upheld Ms A’s May 2012 complaint .The respondent acknowledged that the complainant had been harassed in their disciplinary action against Mr B. In a recent case from Western Australia,Wilson v Ferguson, the Supreme Court held in favour of a complainant where past conduct gave rise to a reasonable apprehension that the conduct reported might be repeated . The Court found a defined breach of confidence 
5.15The complainant was particularly aggrieved that Mr B managed to avail of a “double final written warning” for which there was no provision in the SNA disciplinary procedure .I also found it difficult to accept just why Ms A was repeatedly compelled to face the source of her distress when the school placed her opposite Mr B in the “role of prosecutor” in all hearings . I find that some sensitivity should have been shown to her in that regard and the school should have led the process from the front.
As the Labour Court stated in A Boys' Secondary School v Two Female Teachers Labour Court Determination AEE/01/9:
“…if an employer controls the situation in which harassment occurs and fails to exercise that control so as to prevent harassment occurring or in reducing the extent of it, he/she will be directly liable for having subjected the employee to the harassment…It also appears to the court that situations can arise in which an employer may adopt a course of action to avoid harassment of an employee but that harassment nonetheless occurs. In such cases, the employer could not be fixed with liability if the action taken, although unsuccessful, was in all the circumstances, as much as the employer could reasonably have been expected to do “
The complainant was subjected to threatening, intimidating and humiliating conduct by a work colleague in the course of her employment. However she can only avail of the protection of the Act if it is found that her gender was a reason for the treatment complained of. It is for the complainant to establish on evidence, to a prima facie standard, that but for her gender she would not have suffered the impugned treatment. If she does not meet that evidential standard she cannot succeed.
5.16 I find that the Complainant was exposed to an extraordinary workplace from June 29,2010 up to September 30, 2013 .The school seemed to have no idea , in the mind of the then Principal and indeed the Board of Management , at least, that the behaviour which Ms A complained of was prohibited. There was an unacceptable delay by this group in acting cohesively to stop the behaviour .The evidence of the behaviour was there for all to see in the catalogue of complaints. I find the delay in effective intervention to be deeply regrettable as it just served to intensify the trauma and prolong the exposure to the unwelcome behaviour, thus enabling the continuum.
The workplace changed from one where Ms A was respected to one where she was compelled to make a myriad of verbal and formal complaints to be heard by her employer. I do not accept that the events of March 20/21, 2010 gave the Employer a right to keep the complainant at arm’s length from addressing her concerns once Mr B became a direct employee and began to exhibit the unwelcome behaviour cited in evidence .The Code of Practice on Sexual Harassment provides that employees can expect that :
The policy should make it clear that employees may contribute to achieving a harassment-free environment through co-operating with management and trade union strategies to eliminate sexual harassment and harassment, and that sexual harassment and harassment by employees constitutes misconduct and may lead to disciplinary action. The policy should also emphasise that employees must conduct themselves so as to respect the rights of others to dignity in the workplace.
5.17 It is my view that the respondent failed the complainant in this regard and while I appreciate that the school was beset with toxic staff relations at that time, It is regrettable that Ms A ended up as a casualty in that process.
I find that the complainant has established a prima facie case of discrimination on gender grounds for sexual harassment and harassment against the respondent and that the Employer cannot avail of sec 14(2 ) or 15(3) defence in this case . The respondent did eventually act to resolve the matter, however, the lack of timeliness and early intervention failed to satisfy the test laid down in Sec14(2) or 15(3)(a)(b) of the Acts , therefore the complainant must succeed.
In A Worker v A Hotel, The Labour Court held that
“Any form of offensive humiliating or intimidating conduct on grounds of the victims gender amounts to sexual harassment within the Acts. In that regard, the Court noted the absence of any evidence to show that the alleged harasser behaved similarly to a Male employee”
5.18 I find that there are overlaps in both cases. No evidence has been adduced that Mr B behaved in a similar manner to a Male employee. The evidence from the investigation pointed to a certain deference from Mr B towards the sports team and the then Principal, Mr C which I could not find reciprocated in his reported interface with Ms A.
6.1Section 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 have looked carefully at the case made in this matter, in particular, I am guided by the respondents supplementary submission of September 15th, 2015. I find that the complainant has not established a prima facie case in this regard as no adverse treatment took place. I am clear that the overarching and enduring response from the school at the Hearing was that they wished to move forward with Ms A continuing to practice teaching at the school as the expert teacher that she always had been.
7.1. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that
(1) The respondent did discriminate against Ms A on gender grounds in the case of harassment on gender grounds contrary to section 14A( 1) and Section 8 of the Acts .
(2) The respondent did discriminate against Ms A through the conduct of the Employer and by not taking reasonable and practicable steps to prevent or reverse her sexual harassment contrary to Section 14A(7) of the Acts.
(3)The respondent did not victimise the complainant under Section 74(2) Of The Acts .
7.2 In Von Colson v Land Nordheim- Westfalen “The judicial redress provided should not only compensate for economic loss sustained but must provide a real deterent against future infractions “
.This has been echoed in Article 25 of the recast Directive “penalties must be effective, proportionate and dissuasive”
In making the following award, I seek to address those aims.
In accordance with Section 82 of the Act, I order the respondent pay the complainant:
(a) €39,204 (the approximate equivalent of 9 month’s salary) in compensation for the sexual harassment and the employer’s failure to reverse the effect.
(b) I award €26,136 (approximate equivalent to 6 months’ salary) in compensation for the harassment on gender grounds.
(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 13 December 2013 (being the date of the reference of the complaint) and ending on the date of payment.
(d) Ms A should not be disadvantaged in any future promotional prospect at the school .
(e) Ms A should be awarded an honorary confirmation of her permanent appointment in accordance with her stated wishes at the hearing .I appreciate that she already holds a contract of indefinite duration under law . It is important that the JMB issue papers confirming an honorary permanent appointment for Ms A as a mark of closure in this case .
(f)The total award of €65,340 (plus interest) is redress for the infringement of Ms A'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).
(g) All employees should be subjected to a probationary period on employment at the school. In addition, the school should retain all records associated with all employees at the school . It was a cause of considerable concern to me that Ms A and Mr B were treated with marked differences in this area. I order the respondent to follow good practice in relation to the recruitment of staff; by following the procedures laid down, by keeping adequate records of all interviews and decisions by the interview board. Also, that all decisions of the Board of Management are properly recorded in their minutes.
(h) 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 .Particular attention should be applied to monitoring all future complaints of sexual harassment and harassment at the school . 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.
Adjudicator/ Equality Officer
 Marvelle Dornhecker v Malibu Grand Prix Corporation( No 87 1009) 828F.2d 307
 DEE 021-22-23 , AEE/01/9 .labour Court .Appeal of Dec E 2001/5
 EED022, ED/01/7 Labour Court ,2002.
 2 I.R.162
 Employment Equality Acts 2008 -2011
 Atkinson v Carty , Circuit Court ,  16 ELR 1
 Maguire v NEHB 2003 ELR 340 , DEC E 2002/39
 Dec E2004-052
 Co Louth VEC v Equality Tribunal . Unreported High Court , 24/7/09
 Whooley v Millipore IEHC 314
2001. ELR 64.
 Dec-E 2002/14
2015] Wilson v Ferguson WASC 15
 S.I 208/2012
 A Worker v A Hotel, EDA 0915, 21 ELR 72
 Von Colson and Kamann v Land Nordheim – Westfalen ( case 14/83)  ECR 1891.
 Recast directive 2006/54/EC