EMPLOYMENT EQUALITY ACTS 1998-2015
DEC – E2017-042
A Clerical Officer
A State body
(represented by Anthony Kerr B.L.)
File reference: et-157350-ee-15
Date of issue: 3rd June 2017
Keywords: Employment Equality Acts, Sexual harassment, Gender, Victimisation, No prima facie case
1.1 The case concerns a claim by an employee that a fellow employee sexually harassed her as per Section 14A of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’] and that her employer failed to prevent it. She also claims that she was discriminated regarding her conditions of employment and that she was victimised.
1.2 Through her Trade Union, the complainant referred a complaint under the Acts to the Equality Tribunal on 30th June 2015. On 15th November 2015 in accordance with his powers under Section 75 of the Acts the Director delegated the case to me, Orlaith Mannion, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date, my investigation commenced and a joint hearing was held on 30th November 2015 and 26th January 2016 required by Section 79(1) of the Acts. Correspondence continued after the hearing. I have exercised my discretion to anonymise this decision.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
Summary of the complainant’s case
2.1 On 14th August 2013 the complainant made a complaint under her employer’s Dignity at Work policy concerning unwanted behaviours by a male colleague Mr A. She submits that she received unwelcome attention – leering, staring, body scanning and grunting.
2.2 She submits that although there was an investigation done, it was not actually independent as it is was paid for by the State Body. She submits that Mr A was senior to her so the respondent was always going to back him. She submits that her Principal Officer was friendly with Mr A so that was also a factor. The complainant appealed this investigation but the findings of the investigator were upheld. As far as the complainant knows, Mr A was not reprimanded.
2.3 The complainant has not returned to work as she submits that the environment is too stressful.
Summary of the respondent’s case
3.1 The complainant had received a weak PMDS (Performance Management and Development Rating) in a previous role in the same State Body. However, she was taken on as this section needed resources. The Principal Officer gave direct evidence that he was warm and friendly to all his staff: ‘I want a happy ship’. The Principal Officer denies that Mr A was a particular friend of his. He brought him to a radio interview but that is because Mr A was the expert in the area. The Principal Officer is a trained barrister so as soon as the allegations were made he took it seriously: ‘I am very conscious of natural justice. If true, the allegations were terribly serious and had to be dealt with and vice versa’. commenced employment on 2nd February 2015. It was escalated to Human Resources and an expert external investigator was appointed. The complainant’s allegations were not upheld. She appealed the investigation and a review of that investigation was also conducted. Mr A was not reprimanded as, bar one incident where he snapped at the complainant following the allegations and which he admitted to, the Clerical Officer’s complaint against him was not upheld.
The respondent submits that it takes bullying and all forms of harassment very seriously. All employees are made aware of their policy at induction. The investigation was conducted impeccably. The respondent also submits that the complainant’s claim is out of time as her last day in work was 2nd May 2013.
Conclusions of the Equality Officer
4.1. Regarding time limits, I do not accept the respondent’s arguments. The complainant was correct to wait until the investigations were completed before lodging her complaint. Therefore I find her complaint within time.
4.2 In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. 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. There are three things for me to decide:
(i) whether the complainant was sexually harassed and whether the respondent took reasonably practicable steps to prevent or reverse the effects of the harassment.
(ii) whether the complainant was treated less favourably on the grounds of gender regarding her conditions of employment
(iii) whether she was victimised.
4.3 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 intimidating, 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 effects. Section 14A (1) states that harassment constitute discrimination by the victims' employment in relation to the victim's conditions of employment. Therefore I will examine harassment and conditions of employment together (as no other example of less favourable treatment was given.
4.4 First of all both the complainant and Mr A worked in an open plan office. All the alleged incidents supposedly occurred during the working day either in the office and the canteen where there would have had to have been witnesses. The complainant argued people were afraid to speak up. However, most people there were permanent employees and many of the middle managers were women. Therefore, I find an unwillingness to bear witness hard to believe. Previously I have been critical of investigations by respondents (http://www.workplacerelations.ie/en/Cases/2011/February/DEC-E2011-025-Full-Case-Report.html) in that they were whitewashes. However, the respondent in this case is to be complimented on the approach to these allegations. An eminent investigator was appointed. His report was 202 pages. It is clear that the investigation was independent and balanced. A review of the investigation was conducted and it also was comprehensive and fair. Even if I had found sexual harassment (which I did not) in the circumstances of this case the respondent is entitled to avail of the 14A (2) defence.
4.5 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.
4.6 While the complainant has not returned to work, I find this is of her own volition I am satisfied that the complainant has not raised a prima facie case of victimisation.
I have concluded my investigation of the Clerical Officer’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
the complainant was not sexually harassed
the complainant was not treated less favourably on the ground of gender regarding her conditions of employment
the complainant was not victimised within the meaning of Section 74 of the Acts
Equality Officer/Adjudication Officer