ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013554
A Catering Assistant
A Facilities Company
Terry Gorry, Solicitor
John Barry, Management Support Services (Ireland) Ltd
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 26/11/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 79 of the Employment Equality Acts 1998 - 2015, this complaint was assigned to me by the Director General. A hearing was conducted over two days on September 21st and November 26th 2018 at which the parties were given an opportunity to be heard and to present evidence relevant to the complaint.
The complainant was represented by Mr Terry Gorry, of Terry Gorry and Company, Solicitors. The complainant is Polish and she was assisted at the hearing by an interpreter and her husband also attended and gave evidence. The respondent was represented by Mr John Barry, of Management Support Services (Ireland) Limited. The Operations Manager, the Director of Catering Services and the Human Resources Manager attended the hearing on September 21st. The Human Resources Director attended and gave evidence on November 26th, as did the chef/manager who was the subject of the complainant’s allegations of sexual harassment.
In complaints under the Employment Equality Acts, parties are generally named in the published decisions. However, to protect the identity of the complainant in this case, I have decided that the decision should be anonymised. To protect the identities of employees who gave evidence, they will be referred to as follows:
The complainant’s husband, “Pavel”
The Chef/Manager, “Patrick”
The Operations Manager, “OM”
The Human Resources Director, “the HRD”
Two catering assistants, “Gosia” and “Susan”
I acknowledge the delay in issuing this decision and I apologise to both parties for the inconvenience that this has caused.
The respondent is a facilities company that provides a catering service at the offices of a government department. In August 2008, the complainant started work there as a kitchen porter and after about four years, she progressed to the role of catering assistant, earning €391 per week. In July 2016, a new chef/manager, “Patrick,” joined the unit. The complainant alleges that on February 1st 2018, Patrick pinched her bottom as she took a trolley from him to collect items from the restaurant service area. She said that this pinch was the most recent incident in a pattern of behaviour that involved Patrick inappropriately touching her, making remarks about her to her husband, “Pavel.”
The four employees reporting to Patrick had family connections. Aside from the complainant and her husband, the other two employees, “Gosia” and “Susan,” are married to two brothers. Apart from working together, they were also friends outside work.
Before Patrick joined the company, the person in the role of chef/manager left because of financial irregularities uncovered by Pavel. In his evidence, Pavel said that reporting this matter caused considerable stress for him and made him anxious about dealing with Patrick’s behaviour towards his wife.
It was apparent at the hearing that the complainant also suffered from stress and anxiety. She said that this was because of something that happened about 10 years ago and she has been taking anti-anxiety medication ever since.
Summary of Complainant’s Case:
Evidence of the Complainant
In her evidence at the hearing, the complainant said that on Thursday, February 1st, around 11.45am, she was clearing the service area of the restaurant and she needed a trolley to take items back to the kitchen. She said that Patrick had a trolley with soup containers on it and she asked him if she could use it. He replied, “no problem.” As well as the soup, on the trolley was a bottle of surface cleaner that the complainant didn’t need and she asked Patrick to take it. When Patrick didn’t remove the cleaner, the complainant said that she handed it to him. As the space was narrow, the complainant had to squeeze between the trolley and Patrick. She said that at first, she felt a tea towel brush against her bottom, and then “a strong pinch.” She said that she stopped and pointed her finger at Patrick and said, “I don’t want that.” The complainant said that Patrick laughed and said, “sorry.” The complainant said that she did her best to try to stay calm. As she continued with her work, she realised what had happened and she got upset.
The complainant said that when she finished clearing the service area she went to the kitchen and asked her husband where Patrick was. She found him and asked him if she could speak to him and they went outside. She told him, “don’t do this, keep your hands to yourself.” The complainant said that Patrick became aggressive and red in the face. He moved close to her and pointed his finger saying, “you’re very dangerous.” He said that he would report the complainant to the human resources department and he said, “everything will change.”
When she told Pavel that Patrick pinched her bottom, he said he would “take care of it.” She responded however, that she would manage. At the hearing, the complainant said that she didn’t want any complications and that she thought Patrick would apologise. She said that she took an anti-anxiety tablet and continued with her duties. She said that Patrick was walking nervously around the kitchen holding his hands up for her to see. He said to Pavel, “your wife is a trouble-maker.” The complainant said that, as it was lunchtime, she went on the cash register, but she had to keep taking breaks because she was upset.
That evening, the complainant said that she sent an e-mail to the human resources department, making a formal complaint about what happened with Patrick earlier in the day. She also went to her doctor and, while he was prepared to certify her off work for longer, she said she needed one day off.
On the second day of the hearing, having heard Patrick’s evidence, Mr Gorry asked the complainant some further questions. Patrick had said that he rubbed against the complainant when he had the bottle of cleaner
in his hand. Mr Gorry asked the complainant if Patrick could have rubbed against her as they were passing each other in a narrow space. The complainant said, “I was definitely pinched.” She said that she felt a cloth brushing her bottom and then a pinch.
In Patrick’s evidence, he said that, when the complainant spoke with him afterwards about the pinch, she suggested that it was an accident. The complainant denied saying this. She said that she told him not to do it again. She said that at the time, she didn’t want to make a fuss, and then she was thinking about it all the time and couldn’t cope. At first the thing that upset her was the pinch, and then when she challenged Patrick, he became aggressive. She said, “I thought if he had said ‘sorry,’ it would have been fine.” When he got angry, “I realised it was a bigger issue for me.”
Cross-examining of the Complainant
For the respondent, Mr Barry asked the complainant how she would have responded if Patrick had apologised and said “it was a bad joke.” He asked her if she would have left the matter there. The complainant replied, “probably yes, if he apologised and said it would never happen again.”
Mr Barry suggested then that the complainant submitted a formal complaint about Patrick because he was aggressive and intimidating and he asked her if he was ever aggressive to anyone else. The complainant said that Patrick was “a very unbalanced person, one moment nice and the next unpleasant.” She agreed with Mr Barry that he was also unpleasant towards her husband.
Mr Barry also suggested that the basis of the complaint was about aggressive behaviour and therefore, not about being female. The complainant said she complained because “nobody can touch my body,” because of Patrick’s aggression and because of “behaviour going back.” My Barry asked her why, if there were problems before February 2018, she didn’t make a complaint sooner. The complainant said that she spoke to her friends at work, she tried to find out what to do and she discovered that her friends were having the same problem. She said that she hadn’t got a company handbook and she didn’t know what to do and she didn’t speak to anyone in charge. Mr Barry referred to a visit by the Operations Manager, “OM,” and the complainant agreed that she had seen her in the unit and that OM had been friendly. She said that she didn’t know why she didn’t speak to her. When Mr Barry asked the complainant why she didn’t speak to the General Manager of the site, the complainant said that she heard that he wasn’t responsible for the unit any longer and that OM was the person in charge.
The complainant agreed that she participated in induction training in January 2016, when the respondent took over the unit. She agreed that the HR Manager ran the induction training. However, she said that she first realised that the HR Department got involved in problems when Patrick threatened to report her. She said that she knew that “something like that existed to deal with contracts” but that she didn’t know who to talk to about her problem with Patrick.
When she returned from holidays in the summer of 2017, the complainant said that “all the sniffing and following me stopped for a month and then it started again.” When Mr Barry put it to the complainant that she did nothing about it, she said she was constantly telling Patrick to “stop, don’t touch me” and she said her co-workers heard her saying this. She said that only one or two weeks after Patrick started in the unit, “the conversation was about sex.” She said he asked her husband questions about their sex life. She said that she and her husband both told him to “stop talking shit.” She said that her husband didn’t know that Patrick was touching her and that she was afraid to tell him about everything because she was afraid of his reaction. The kitchen is divided by ovens and the complainant said that there is enough space for three people to pass freely, but Patrick would touch off her as he passed, sniffing her and saying she smelled beautiful. She said that she asked Patrick to “stop, please, no more.” Mr Barry asked the complainant again, if Patrick had apologised, if that would have been “the end of it” and she replied, “most probably,” but she said that on February 1st, “since he started to be aggressive, I didn’t know what he would do next.”
Asked about the outcome of the investigation into her complaint, the complainant said that she felt that “only Patrick’s account was accepted.”
Concluding the cross-examination, Mr Barry asked the complainant if Patrick had introduced changes in the unit and she said that he hadn’t. She said that everyone worked well together, covering for each other and that they all knew what they had to do. She said that she generally did food preparation in the mornings and then she went on the cash register. She needed help with lifting because she has a bad back. Shortly before the incident, Patrick appointed her as the “green ambassador” to control waste. Although on February 1st, Patrick had threatened that “everything will change from now on,” she said that nothing had changed.
Evidence of Pavel, the Complainant’s Husband
Pavel said that he has worked in the unit since 2007. His responsibilities are that of a catering assistant, preparing salads and assisting the chef/manager. In response to a question from Mr Gorry, Pavel said that Patrick would ask him “how do you make love?” He said that he tried to ignore him and he described the atmosphere as “heavy.” He described Patrick’s mood as “some days good, some days bad.” One day he would call him “sexy Pavel” and the next day a “faggot.”
In response to a question about the meeting he attended as part of the investigation into his wife’s complaint, Pavel said that when he read the notes, he thought he was at a different meeting.
On the second day of the hearing, Mr Gorry asked Pavel some additional questions about his relationship with Patrick. Pavel agreed that he sold items like perfume and watches at work and that he sold some stuff to Patrick. In his evidence, he said that he doesn’t want to say that Patrick is “so bad.” He said that he tried to be friendly with him, and then Patrick would call him fat, or gay, and then he would be friendly again. He said, “there was a lot of stress at work” and, referring to the problem with the previous manager, he said, “I got used to it.”
Cross-examining of Pavel
For the respondent, Mr Barry asked Pavel when he told Patrick that his comments were not acceptable. Pavel said that at first, he pretended that he didn’t hear. He said that he tried to tell himself that he wasn’t affected. Then he said, “I told him many times to focus on his wife, not my wife.” He said that he didn’t know that Patrick was sniffing at his wife, although he saw him smelling other women and he had witnessed him calling Susan “sexy.” He said, “we thought his behaviour was strange, not right and I told him myself that it wasn’t right.”
When he was asked by Mr Barry why he didn’t do anything about it, he said that he had previously made a complaint about the previous chef/manager and he had to leave the company. Patrick said to him “a rat will always be a rat.” In respect of the previous chef/manager, Pavel had observed what was going on for three years before he brought it to the attention of the management. He said it is very difficult to make a complaint when you work in a small environment. He said that for several days, the atmosphere would be nice and you would forget what was going on. He said that when he observed Patrick being disrespectful towards his wife, he told him, “don’t do it.”
On the second day of the hearing, Mr Barry, for the respondent, asked Pavel some further questions. Referring to the fact that Pavel reported the previous chef/manager for stealing, Pavel said that he knew this for years, but “I tried not to see.” Finally, he reported what was happening. Mr Barry asked Pavel why he didn’t report Patrick’s conduct. Pavel said that Patrick’s behaviour was “close to my limit” but he said, “I can’t say he’s bad all the way.” He said that he liked working with him, the food quality had improved and he felt that the unit was progressing in the right direction. On one occasion, he said that Patrick abused him in the presence of a customer on the site and that the customer sent him a message on Facebook and said that he would support him and give evidence if he made a complaint.
Mr Barry asked Pavel about a highly offensive sexual remark that Patrick is alleged to have made about his wife and he asked Pavel, if, when he didn’t complain about this, how could Patrick think he would be upset by his comments. Pavel said, “it hurt me, but I wasn’t ready to go and report it.”
Investigation on February 6th 2018
The incident that the complainant referred to the HR department occurred on Thursday, February 1st and an investigation meeting took place on Tuesday, February 6th. A note of the meeting was submitted in evidence. OM and the HR Manager attended for the company and the complainant was accompanied by a Polish friend who translated for her. She described what happened the previous Thursday which, she said, started off with Patrick threatening to move her from her front of house role because she refused to answer the phone. The complainant had been working for a long time in the restaurant area and on the cash register. Then the pinching incident occurred as described above. At the end of the day, the complainant went to the kitchen with the cash and receipts. She said that Patrick kept his distance and took the money from her and said again, “everything will change from now on.”
The notes of the investigation meeting show that the complainant informed the managers that the incident of February 1st was not the first time that Patrick harassed her. She said that when she was filling out paperwork, he brushed off her, taking time to enjoy the moment. He would walk close to her in the corridor. He would make comments about “how I smelled that day.” The complainant said that she mentioned his behaviour to her colleague, Gosia, who said that he behaves the same way towards Susan. On one occasion, during an altercation, the complainant said that Patrick slapped her lightly on the face. Another time, he punched her in the ribs and kicked her on the knee. When this occurred, Gosia saw what happened and she went to kick Patrick but she missed and he responded by kicking Gosia on the foot.
At the meeting on February 6th, responding to a question from the HR Manager, the complainant said that Patrick jokes with everyone. She gave an example; he said, “if you were beaten regularly you wouldn’t be talking so much.” She said that if she was bending down to pick something up, she would hear her husband say, “stop looking at her arse.” She referred to a remark Patrick made to her husband about what he would like to do to her. She described an incident about a year previously when she went to Patrick’s office and he was there with a manager. She said that as she was printing labels, Patrick brushed his hands against her and she told him not to touch her and they both laughed.
As part of the investigation on February 6th, the Operations Manager and the HR Manager took statements from Pavel, Gosia and Susan, and they also had a meeting with Patrick. Notes of the meeting with the complainant and with these four witnesses were submitted in evidence; however, as Gosia and Susan did not attend the hearing, I will not take any account of their statements.
At the meeting with Patrick, he was asked about what happened the previous Thursday. He said that he was in the kitchen area passing the trolley to the complainant and he accidentally brushed against her with the bottle of surface cleaner. He claimed that the complainant “doesn’t like to be managed” and he said that the behaviour of the four catering assistants is “authoritative” and that “they feel like they are the managers.”
Outcome of the Investigation
After the investigation meeting, the complainant went out sick, suffering from work-related stress. On the date of this hearing in November 2018, she had not returned to work.
On February 12th, the HR Manager wrote to the complainant setting out her findings regarding her allegations about Patrick’s conduct. In her letter, she said,
“We accept Patrick’s explanation that he had a sanitiser bottle in his hand and that the bottle brushed against you. In addition, we also accept Patrick’s explanations regarding other issues raised by you and by the extended team to be reasonably credible.”
The letter concluded that certain actions would be taken including consultation with Patrick about acceptable behaviour, the installation of surveillance cameras in the unit, a talk for staff on harassment, bullying and dealing with grievances and additional support in the kitchen.
Appeal Against the Outcome of the Investigation
At a meeting on March 7th 2018, the complainant appealed against the findings of the report on the basis that not all the issues that she complained about were considered and that none of the staff who were interviewed were allowed to sign off on the notes of the meetings conducted with them. The appeal meeting was chaired by the Director of Facility Services and the complainant attended alone, but she was provided with a head-office employee to assist with translation.
At the meeting, the complainant corrected some of the details of what occurred on February 1st and she referred to behaviour that was not recorded in the notes of the meeting on February 6th, such as Patrick following her around and sniffing at her. However, her concern about the outcome of the investigation was that Patrick did not take responsibility for what happened and that there were no consequences for him.
During the appeal meeting, the Director of Facility Services offered the complainant a transfer to another unit, but she rejected this. In the end, on March 9th, she received a letter confirming that her appeal was not upheld. The letter repeated the offer of a transfer and suggested that, when the complainant was fit to return to work, that a “mediated meeting” would be arranged with Patrick and the staff in the unit “to ensure support for all concerned.”
The Law on Sexual Harassment
In a comprehensive written submission, Mr Gorry outlined the law on sexual harassment, as set out at section 17(7) of the Employment Equality Acts 1998 – 2015, (“the Act”). The legislation describes sexual harassment 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 dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
Mr Gorry also referred to section 15 of the Act which deals with the issue of vicarious liability of employers in cases of sexual harassment. He also referred to section 85A of the Act which sets out the principle that the burden of proof falls on the complainant, in the first instance, to show that, based on the primary facts, she was discriminated against on the ground of gender. Finally, Mr Gorry referred to section 14A(2) of the Act which provides a defence for employers in circumstances of sexual harassment. I will consider the impact of these provisions of the Act in the section below headed “Findings and Conclusions.”
The Application of the Law to the Complainant’s Case
It is the complainant’s case that the respondent’s decision to accept Patrick’s explanation and to reject the statements of the complainant and three other witnesses is perverse and irrational. The complainant’s evidence is that Patrick pinched her bottom on February 1st 2018 and that this was part of a continuum of comments and gestures of a sexual and unwelcome nature over several months. It is the complainant’s case that the respondent’s own investigation established facts that would lead any reasonable observer to conclude that the “hurdle by way of burden of proof placed on the complainant in the first instance was comfortably cleared.” Mr Gorry argued that the respondent cannot rely on the defence provided at section 14A(2) of the Act, because, even if it is accepted that the respondent had a policy in place to manage sexual harassment and an investigation was carried out, it failed to reverse the effects of the discrimination.
Mr Gorry referred to a case at the Equality Tribunal of Ms C v A Grocery Retailer, DEC-E2015-079. While the Equality Officer found that the respondent’s Dignity at work Policy was excellent, it was not effectively implemented in the case of Ms C’s complaint. The respondent also sought proof of harassment, up to the criminal standard of proof, rather than a standard based on reasonable belief that was set out in their own policy.
The Equality Officer in the case of Ms C commented that the reality of sexual harassment is that it is “nearly always surreptitious;” however, in the case under consideration here, the conduct complained about was witnessed by the complainant’s colleagues.
The Complainant’s Position Regarding the Company’s Response to her Complaint
Mr Gorry submitted that the actions proposed by the company following its investigation “is not a suitable or adequate response to such serious allegations and evidence of widespread inappropriate behaviour” towards the complainant and her colleagues. Mr Gorry said that the respondent’s suggestion, following the complainant’s appeal against the outcome of the investigation, that mediation could be arranged between Patrick and the complainant is “a trivialisation of sexual harassment in the workplace.”
Regarding the offer of a transfer to another site, Mr Gorry submitted that, apart from the inconvenience that this would mean for the complainant, as a victim of sexual harassment, she should not be obliged to move from her workplace.
Summing up of the Complainant’s Case
It is the complainant’s case that she suffered sexual harassment in the workplace and that the respondent is vicariously liable for that harassment and for the effect it had on her. Having conducted an investigation, Mr Gorry argued that the decision not to uphold her complaint “is perverse and flies in the face of the evidence and of logic and common sense.” Mr Gorry described the investigation carried out by the respondent as “a box ticking exercise” with “no serious attempt to get at the truth of the matter.” Mr Gorry also submitted that the evidence put forward by the alleged harasser was “fanciful, far-fetched and not credible” and he said that the explanation that what the complainant felt was a bottle of cleaning product as opposed to a pinch was “absurd.” He claimed that “any reasonable, sentient person can tell the difference between these two actions.”
Summary of Respondent’s Case:
Evidence of Patrick, the Chef/Manager
In his evidence, Patrick described his duties which included hiring staff, developing menus, training, cooking and supervising the cleaning and food preparation. He said that the four employees reporting to him are all catering assistants. He described the kitchen as small compared to the size of the unit and the food produced. Patrick said that when he joined the unit in July 2016, he felt like he was “walking into their kitchen.” He described his relationship with the complainant as “strained” and he said he found communicating with her difficult, “like walking on eggshells.”
Patrick said that his relationship with the complainant’s husband was “good,” with “lots of banter.” He said that he couldn’t recall referring to Pavel as “a faggot.” He also couldn’t recall making any sexually offensive remarks about his wife.
Mr Barry asked Patrick about items that he purchased from Pavel, such as perfume, watches and an iPad. He said that Pavel sold stuff to others also. In his evidence, he gave the impression that perfume was a regular topic of interest in the unit, with him and the staff asking each other about various scents.
Asked about referring to one of the catering assistants, “Susan,” as “sexy,” he agreed that, as part of the banter in the workplace, he may have said something along the lines of “sexy Susan.” Patrick said that Susan used to call him “sexy Patrick,” and “there was nothing in it.”
Mr Barry asked Patrick to give an account of the incident that happened on Thursday, February 1st 2018. Patrick said that he was in the unit and the phone rang. The complainant shouted, “someone answer the phone” and Patrick told her, “you need to answer the phone,” to which she replied, “I’m not a secretary.” He described what when on between them as “a power struggle” and he said that the complainant just wanted to work exclusively on the cash register.
Shortly after the altercation over the telephone, Patrick said that he was putting out soup and the complainant asked him for the trolley he was using. Removing a bottle of surface cleaner from the trolley, Patrick recalled that the complainant said to him, “here, take this.” He said that the space they were in was about a metre wide and that they were both going in the same direction. He said that the complainant stopped abruptly, but that he doesn’t recall “bumping in to her” with the bottle.
Around 12.00 midday, Patrick said that the complainant asked him if she could have a word with him. She said something like, “I know that contact was accidental, but don’t touch me. Keep your hands off me.” Patrick said that he got angry and told the complainant that she should “go to HR.” During lunch, Patrick said that everything was normal. He said that Pavel whispered in his ear, “I don’t want anything to do with this.” When the lunch service was over, Patrick said that he spoke to the employee who reports to the Accounts Director and he told her about the complainant’s accusation.
In his evidence, Patrick said that he feels that the complaint was pre-meditated and that “they wanted me out.” He described the situation he was working in as “four against one,” with the four being friends and relations. He said that when he realised what was going on, he started to keep notes and he brought his notes to the second part of the investigation meeting on February 6th. He said that, contrary to the evidence given by Pavel on the first day of the hearing, Pavel never spoke to him about how he treated the female employees and he never remarked that his comments were inappropriate.
At the hearing on November 26th 2018, we were informed that Patrick left his job with the respondent at the end of September.
Cross-examining of Patrick
For the complainant, Mr Gorry asked Patrick if he could tell the difference between a pinch and being prodded by a bottle of cleaning fluid. He said that he would “have had to have that happen” and that he was not sure if there was a difference. In the end of his cross-examining, he agreed that there was a difference.
Mr Gorry referred to Patrick’s evidence that he couldn’t remember calling Pavel “a faggot” and he asked him why he couldn’t simply deny this allegation. Patrick said that there was a lot of banter in the unit and that it could have been possible that he referred to Pavel as “a faggot.” He agreed that he referred to Susan as “sexy Susan” but he said that he couldn’t recall brushing up against her. He said that one day, she arrived at work with vivid red lipstick, and he may have then called her “sexy Susan.”
In response to Mr Gorry, Patrick said that the “staff were making up stories to make me not look good” and he said that his weakness was that he didn’t do anything about their behaviour.
Mr Gorry put it to Patrick that his “you smell nice” comments to the complainant occurred before Pavel ever brought in perfume for sale. Mr Gorry asked Patrick about calling Pavel “a rat” and he agreed that he called him a rat because he reported about the previous chef/manager’s cash-handling issue. He agreed that, a few times, he sent Pavel porn on WhatsApp, but he said that Pavel sent him porn also. He agreed that this conduct went beyond the boundaries of a manager and an employee.
While he referred to the complainant as “difficult,” Mr Gorry reminded Patrick that he gave her the responsibility of the unit’s green ambassador. Patrick said that this was simply another task as part of her job and that it was not a promotion.
Evidence of the Operations Manager
In direct evidence, OM, said that Patrick reported to her on operational matters and that on a day to day basis, he reported to the executive chef. She said that she visited the site every three weeks and that the client was very happy with the service and the staff appeared to be happy. Generally, during her visits, the complainant was working on the cash register. There were no issues with her during the previous nine years of her employment.
Asked about the investigation meeting on February 6th 2018, OM said that the complainant was crying a lot, and that she took an anti-anxiety tablet during the meeting. OM said that prior to this, she was unaware of the complainant’s medical condition. Having met the complainant and the other employees, she and the HR Manager met Patrick and asked him about the specific incident on February 1st. She said that she thought that Patrick gave a reasonable explanation of what occurred. She sent the notes of her meeting to the HR Director and another meeting was arranged with Patrick.
Cross-examining of the Operations Manager
For the complainant, Mr Gorry asked OM about her reaction to hearing that, during one altercation, Patrick had slapped the complainant lightly on her face and punched her in the stomach. OM said that she was uncomfortable with Patrick’s behaviour. She also recalled that, at the meeting on February 6th, the complainant told her and the HR Manager about being kicked on the foot. She said that she was informed about Patrick calling Susan as “sexy Susan” and she agreed that this wasn’t appropriate, but she said, “it depends on the context.” At the hearing, it emerged that Susan has since left the company.
When she was asked by Mr Gorry if she saw a difference between being brushed against by a bottle of cleaning fluid and a pinch on the bottom, OM said that “it depends on the person it happens to.”
OM said that she and the HR Manager wrote up the notes of the meetings on February 6th and passed them to the HR Director. She said her involvement after that was in “reaching a conclusion on how to resolve the issue of behaviour.”
Mr Gorry put it to OM that she had decided that the evidence of four witnesses about the behaviour of the chef/manager was not believable and the chef/manager’s explanation was credible. OM said that they were dealing with the allegations of one person and three people supporting that individual. She said that, “on the balance of probabilities, I was satisfied with our conclusion.”
Evidence of the Human Resources Director
Mr Barry asked the HRD about her meeting with Patrick on February 6th as part of the investigation into the complainant’s report of sexual harassment. In response to a question about her understanding of Patrick’s response to the complaints about inappropriate touching and comments such as “you smell nice,” and “sexy lips,” the HRD said that, before her meeting with Patrick, she was very shocked at the allegations and she didn’t expect plausible answers. However, she found Patrick’s responses reasonable and credible. She said that the statements about smelling nice were in the context of a regular topic of conversation about perfume and the reference to sexy lips was a reference to Susan’s unusual make-up. The HRD said, “if we hadn’t got a plausible explanation, we would have made a different decision.” She also said that they took account of the fact that the complainant’s husband didn’t react to what she alleged was occurring. She said that the complainant’s allegation that Patrick pinched her bottom was a case of one word against another and she said that she decided that the explanation about the bottle of cleaning product was plausible. She said, “it depends on the pinch.” Because there were no other witnesses to this incident, the HRD said that she couldn’t make a decision. She said that she felt sorry for Patrick. He was upset and angry and in a “no-win” situation. She said that he couldn’t manage the people in the unit.
The HRD said that she spoke to Patrick about the banter at work and told him to be more mindful in future. “To protect everybody,” they decided to install surveillance cameras.
Cross-examining of the Human Resources Director
In cross-examining, the HRD said that when she met Patrick on February 6th 2018, she hadn’t got the notes of the meetings with the other witnesses and she wasn’t aware of the specific incidents that the staff had reported. She said that, in her mind, “alarm bells did go off” and she considered the “possibility that four people were ganging up on a manager.” When Mr Gorry suggested to the HRD that she “had more than enough evidence to conclude that harassment was going on,” the HRD said that they concluded that Patrick’s response was “plausible and very reasonable.” On the day in question, the complainant had disregarded his authority. He had taken notes about the difficulties he was having managing the team. Mr Gorry asked if the HRD had considered the fact that Patrick had never raised any problems about managing the team before the investigation of February 6th. Mr Gorry suggested that Patrick’s notes were written in preparation for the investigation. The HRD described Patrick’s demeanour as “upset and traumatised” and she said that they “found it acceptable for him to bring the notes as part of his explanation.”
Investigation into the Complainant’s Allegations
The respondent submitted a comprehensive written statement setting out the background to the investigation meetings that took place on February 6th 2018. At the meeting with the complainant, she outlined the behaviours that she found unacceptable, up to the incident of the previous Thursday when she alleged that Patrick pinched her bottom. She described the behaviours of the previous 18 months which have already been described above under the heading, “Evidence of the Complainant.” At the meetings with the complainant’s husband and the two female employees, they confirmed that Patrick made comments to them also. They did not complain about these comments to Patrick or to any other manager.
The respondent’s submission notes that, at their meeting with Patrick on February 6th, he suggested that the reason that the four catering assistants were making allegations about him was because he was trying to introduce changes so that the employees would be multi-skilled and not confined to doing the same work every day. He believed that the complainant was resisting this initiative and he regarded her and the “prime opposer” in relation to the changes. He said that he believed that the other three employees were intimidated by the complainant because she had “a strong personality and was a major influencing factor” in the unit. The respondent’s written submission notes that the investigators concluded that there was no evidence to show that Patrick pinched the complainant’s bottom and that his explanation of what occurred was reasonable. Patrick denied the allegations regarding touching, smelling and making sexual comments and he said that any physical contact was accidental. The investigators believed that there was “a level of mutual banter / behaviour taking place in the workplace which could, on occasion lead to misinterpretations because of language difficulties.”
The Company’s Position Regarding the Complainant’s Allegations
Referring to section 85A of the Act and the burden of proof on a complainant to show that, on the basis of the primary facts, she has demonstrated that discrimination has occurred, Mr Barry referred to the Labour Court cases of the Southern Health Board v Mitchell, , ELR 201 and to the case of Cork County Council v McCarthy, EDA 21/2008 which I will examine in my consideration of the “Findings and Conclusions” in the next section of this document.
Like the complainant’s submission, the respondent’s booklet refers to section 6 of the Act which sets out the definition of discrimination and section 14A which defines harassment.
The respondent’s position is that one must consider the fact that the complainant said that the incidents she described of “unwanted behaviour” took place over a period of 18 months and that they took place with the knowledge of her husband, who worked in the same kitchen. A question arises about why she did not report what was happening sooner. Patrick maintains that the complaint was a reaction to him trying to introduce changes in the workplace.
The staff were working in a confined space and “so brushing against others would not have been uncommon.” The respondent’s submission notes that “some staff perceived some of these instances as intentional, without any real basis for forming this view.” The submission notes that the complainant only made a complaint about Patrick pinching her bottom as a result of his protestations regarding the allegation and that this is indicative of the environment in the workplace at the time. There were also suggestions that there was banter between Patrick and the complainant’s husband, and there is no suggestion that anyone objected to this.
It is the company’s position that the complainant’s allegations were fully investigated and that none of the other three employees made a complaint about how they were treated, nor have they suggested that “the acts that they referred to were done in any other way except horseplay.” Even if the behaviour complained about fell within the definition of sexual harassment, the respondent contends that there is an expectation that the complaint would be brought to the attention of the alleged harasser so that he could appreciate that his actions are not acceptable.
Mr Barry referred to the case at the Labour Court in January 2016 of A Store and A Worker, EDA 163. In his findings on this case, the chairman, Mr Duffy, quoted from Article 2 of the European Commission Recommendation of November 1991 on the protection of the dignity of men and women at work. Mr Barry referred to one of the three paragraphs from this recommendation that was included in the Labour Court determination on the case:
“The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. Sexual attention becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious. It is the unwanted nature of the condition which distinguishes sexual harassment from friendly behaviour, which is welcome and mutual.”
Mr Barry said that there is an obligation on an employee who, in circumstances where their dignity is being compromised, to ensure that the offensive behaviour is identified as being unwanted. The respondent’s position is that the complainant began to make her objections known when, on February 1st, she said to Patrick, “I know it was an accident, but keep your hands to yourself.” The respondent’s submission concludes that if the matter had ended there, Patrick would have been on notice that his behaviour was unwanted.
The final part of the respondent’s book of papers refers to section 14A(2) of the Act which provides that it is a defence for an employer who, when confronted with a complaint of sexual harassment, to have been seen to put in place appropriate measures to provide protection for employees. The respondent said that it had a clear and understandable policy on dignity at work and also, the employees could have consulted the trade union which is recognised to represent them.
Concluding their position, the respondent’s submission makes the following points:
§ Appropriate preventative measures were in place to address sexual harassment;
§ The respondent’s managers responded quickly to the complainant’s allegations in her e-mail of February 1st 2018;
§ The company took pro-active steps to address what was now identified as unacceptable behaviour which could result in staff feeling they were harassed, including additional training, and a proposal to install CCTV cameras “to provide additional comfort to the staff involved.”
On this basis, the respondent submitted that the complainant was not subjected to sexual harassment and that this complaint of discrimination should be rejected.
Findings and Conclusions:
This hearing is about a complaint of gender discrimination arising from the alleged sexual harassment of the complainant by the respondent’s chef/manager. The complainant claims that the respondent failed to take reasonable steps to prevent the chef/manager from sexually harassing her and that they took no action to reverse the effects of the harassment.
The Law on Sexual Harassment
As a complaint of sexual harassment, this complaint falls to be adjudicated upon under section 14A of the Employment Equality Act 1998, a new section inserted by the Equality Act 2004, specifically addressing the issue of harassment and sexual harassment at work:
14A - (1) For the purposes of this Act, where —
(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is -
(i) employed at that place or by the same employer,
(ii) the victim’s employer, or
(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,
(b) without prejudice to the generality of paragraph (a) -
(i) such harassment has occurred, and
(ii) either -
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated,
the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
At sub-section (1)(a) above, the legislation provides that where an employee is sexually harassed by another employee, by their employer or a by client or associate of their employer, this constitutes discrimination by the employer. Sub-section (1)(b) is not relevant because the complainant made no allegation about how she was treated after she made her complaint, and, in any event, within a few days, she was absent due to illness and she has remained absent up to the date of this hearing.
An employer against whom such a complaint is made has a defence, as set out at section 14A(2):
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable -
(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim,
(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
Sub-section (2)(b) is not relevant here, because, as we have discussed above, sub-section (1)(b) does not apply to this complaint.
In summary, from the perspective of the complaint under consideration, section 14A(2) of the Act provides that, where sexual harassment of an employee by another employee has been found to have taken place, it is a defence for an employer to prove that they took steps to prevent it.
Establishing a “Prima Facie” Case that Discrimination has Occurred
The Equality Act 2004 inserts a new section, 85A, into the 1998 Act.
85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been discriminated against and that her conditions of employment were blighted by sexual harassment.
Mr Barry referred to the following legal precedents, to support his contention that, based on the primary facts, the complainant has not shown that she was sexually harassed:
Mitchell v Southern Health Board, DEE 11,  ELR 201
Describing the evidential burden on the complainant, the Labour Court held that,
The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.
Cork City Council v McCarthy, EDA 0821
In his findings in respect of this appeal, the chairman, Mr Duffy referred to the Southern Health Board case above and expanded on the burden of proof requirement:
At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
While the complainant’s version of events was supported by her three colleagues, Patrick denied most of the allegations about his behaviour and the investigating managers accepted his version. To make progress towards a conclusion of this matter, I must consider the facts and, from the evidence given over the two days of the hearing, I understand the undisputed facts to be as follows:
§ On the morning of February 1st 2018, the complainant refused to answer the telephone when Patrick asked her to do so.
§ Shortly afterwards on the same day, as she took a trolley from him, the complainant reacted when she felt what she claims was Patrick pinching her bottom.
§ The complainant’s husband noticed that she was upset and she told him what happened, but she asked him not to intervene.
§ Around 12.00pm, the complainant asked Patrick if she could have a word with him. She made it clear that she was annoyed and upset and she told him not to touch her and to keep his hands to himself. Patrick and the complainant agree that he became angry and he told her that he was going to report her to HR.
§ We know from Patrick’s evidence that he referred to one of the catering assistants as, “sexy Susan.” He said that he may also have referred to Pavel as “a faggot.” He agreed that he commented to Pavel, “a rat is always a rat.”
§ The complainant’s husband bought perfume to work to sell.
§ The complainant suffers from anxiety. The respondent’s notes of their meetings with her record that she was extremely upset when she described Patrick’s treatment of her.
§ Apart from the bottom-pinching episode in February 2018, the complainant didn’t tell her husband about Patrick’s unwanted attention over the previous months.
In relation to the complaints about sniffing at her and telling her that she smelled nice, Patrick said that because Pavel sold perfume, the smell of perfume was a general topic of conversation in the unit. While a discussion about perfume might go on for a few days, unlike politics or football, it’s not that interesting and the conversation couldn’t have lasted very long. In the context of the catering environment where they all worked, any chef/manager would have instructed their staff not to wear noticeable perfume when working with food and Patrick’s explanation about this is implausible. Taking his own evidence at face value, if he had a habit of enquiring about what perfume the complainant wore on any given day, this seems to be a rather intimate question of an employee who he claimed was difficult to manage. I find the complainant’s evidence about this behaviour more credible than Patrick’s and I believe that the sniffing at her and commenting on how she smelled did take place and that this conduct was harassment and sexual in nature.
The issue that resulted in the complainant reporting Patrick’s conduct to HR was her belief that, on February 1st 2018, when she was collecting a trolley from him, Patrick pinched her bottom. I agree with the complainant’s solicitor, Mr Gorry, when he said that “any sentient person can tell the difference between a pinch and a bottle of sanitiser rubbing against them” and I reject Patrick’s explanation about what occurred. If he had rubbed the bottle against her by accident, he would have told her this when she confronted him and said, “I don’t want that.” I believe the complainant when she said that Patrick pinched her bottom.
Of the five people working in the unit, the only person who described the space as small was Patrick. Leaving this aside, anyone with knowledge of the catering industry will know that most chefs, catering assistants and kitchen porters work in confined spaces. While occasional physical contact in a small workspace may be unavoidable, people know the difference between normal contact and unwanted physical contact. The complainant said that, many times, she told Patrick not to touch her. The proper response to a request for no physical contact is no physical contact. In the face of the complainant’s credible evidence that she told Patrick not to touch her, Patrick’s explanation that physical contact was unavoidable doesn’t stand up.
I am not qualified to make a psychological analysis about what happened on February 1st, but I feel qualified to make this simple assessment: Before the “pinch” incident, Patrick was not pleased with the complainant’s response to his request to answer the phone when she said, “I’m not a secretary.” In his evidence, he described her as a “strong personality” and a “major influencing factor” in the unit. Sexual harassment is as much about power as about sex and, I believe that, by pinching her bottom, Patrick’s intention was to humiliate the complainant and to retrieve for himself some of the power that he sensed she possessed.
I am satisfied that the complainant has discharged the burden of proof required at section 85A of the Act and she has demonstrated that she was sexually harassed.
The Employer’s Defence Against an Allegation of Sexual Harassment
As we have noted, section 14A(2) of the Act provides that where sexual harassment has been found to have occurred, the employer has a defence, if they can show that they “took such steps as are reasonably practicable … to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim.”
I am satisfied that the complainant first became acquainted with the respondent’s grievance and dignity at work policies when they were included in the letter inviting her to a meeting to investigate her complaint on February 6th 2018. There was no evidence that the person doing the harassing ever saw these policies or that he had any training concerning dignity at work. Part 7 of the Code of Practice on Sexual Harassment and Harassment at Work (Statutory Instrument 208 of 2012) provides that policies and procedures should be translated so that employees can access and understand them. The complainant is not fluent in English and there is no evidence that the grievance procedure or the dignity at work policy were translated into Polish. The failure of the respondent to provide the complainant with information and guidance that she could understand, and the failure to provide training to the manager who inflicted the harassment on the complainant, neutralises any defence that the respondent may have had that they took “reasonably practicable” steps to prevent the harassment occurring.
The Respondent’s Investigation into the Complaint of Sexual Harassment
Following the investigation on February 6th 2018, the respondent’s managers concluded that Patrick’s explanation about his conduct was credible. Patrick suggested that the complainant was motivated to make a complaint because she and her colleagues wanted to get rid of him. He said this was because he was making changes. It is apparent from the evidence of the witnesses that the problem the employees had with Patrick was his habit of talking about sex and his unwanted touching. From Pavel’s evidence, we know that he tried to get along with Patrick, finding that the food had improved and the client was happy. Pavel had been instrumental in the departure of one chef/manager and it is clear he was going to tread lightly with this one. Despite Patrick’s appalling behaviour, none of the four colleagues complained about him or made any effort to get rid of him. Why the investigating managers placed any credence on this explanation is difficult to comprehend.
Some basis for the respondent’s acceptance of Patrick’s version of events is contained in the notes of the two meetings that the managers had with him on February 6th. The notes show that he was upset and angry and that he said that he was thinking about getting legal advice and suing the complainant and her colleagues for defamation of character. It appears that the managers became more concerned about the effect of the complaint on Patrick than about its effect on the complainant.
Another reason for preferring the evidence of Patrick over that of the complainant was because the investigating mangers found that “her husband didn’t react” to what was going on. I find this conclusion unreasonable, unfair and damaging to the complainant. At the investigation meeting, she said that she didn’t tell her husband what was going on, so he could only react to what he saw. In his evidence, Pavel said that he told Patrick to stop looking at his wife’s bottom and to pay attention to his own wife. At the meeting with the investigating managers on February 6th, Pavel said that although, “he (Patrick) kept saying stupid things to me, I pretend I don’t know. I don’t want trouble. In the past I was involved in catching a thief before here.” Branded by Patrick as a “rat,” Pavel was in a difficult position. It is my view that Pavel reacted to the degree that he could in a very constrained situation. There was no merit in any consideration by the managers of the reaction of the complainant’s husband and what was required was an independent assessment of what occurred.
A meeting took place on February 9th 2018 to explain the outcome of the investigation to the complainant and a note of this meeting was submitted in evidence. The note records the findings of one of the managers in response to the allegations about Patrick’s conduct: “I think the difficulty here is there is no evidence of this….It is a he says / she says situation and that’s the difficulty.” The manager went on: “We can only make a decision based on evidence so from the information we have we can only say that there isn’t sufficient evidence.”
The problem with this finding is that there was evidence to demonstrate that Patrick’s behaviour amounted to sexual harassment. In his own evidence he said that he referred to one staff member as “sexy Susan,” he called the complainant’s husband a “faggot” and he went about smelling people. Explaining the unwanted physical contact, he said that accidental touching was unavoidable. Explaining the pinch, he said that he must have bumped into the complainant with the bottle of cleaning fluid. To quote Mr Gorry, “any sentient person” would know the difference between a pinch and a prod with a bottle of cleaner and it is unfair that the managers who conducted this investigation used the “beyond reasonable doubt” standard to reach a conclusion when, what was required was reasonable belief.
Despite their finding that sexual harassment did not take place, the investigating managers said that they would arrange a consultation with Patrick “regarding what is considered to be acceptable and not acceptable behaviour” and they said that they explained to Patrick that he “must be more mindful going forward.” They proposed to install surveillance cameras on the site and they said they would have a “tool box talk” with all the staff on harassment in the workplace and other policies. All this gives the impression that, despite the apparent lack of evidence, the investigating managers believed that there was substance to the complainant’s allegations.
The context of this complaint was complicated, as the complainant suffered from anxiety, is a non-native speaker of English and she was harassed by her manager. Added to this was the fact that she worked alongside her husband, who reported to the same manager. Under the heading, “Investigation of the complaint,” Part 5 of the Code of Practice on Sexual Harassment and Harassment at Work recommends that “external assistance may be necessary to deal with complaints in some circumstances.” This was a difficult investigation for the managers involved and I find the conclusion they reached that harassment did not occur to be contrived and evasive. I am also concerned that the investigation was started and finished in three days, between February 6th and 9th 2018. It is my view that, if an external investigator had been appointed to investigate the complainant’s allegations, the outcome may have been more balanced and reasonable.
As an instance of sexual harassment, a pinch on the bottom may not be at the extreme end of the scale, but it is well within the definition of unwanted behaviour of a sexual nature. It was also at the end of a continuum of incidents including a punch in the ribs, being sniffed at, constant unwanted touching and making offensive sexual remarks about the complainant to her husband.
In his submission for the respondent, Mr Barry referred to the European Commission Recommendation of November 1991 on the protection of the dignity of men and women at work. The commission described the essential characteristic of sexual harassment as behaviour that “is unwanted by the recipient.” Mr Barry suggested that the complainant never informed Patrick that his behaviour was unwanted. Having considered the evidence, I am satisfied that, at all times, the complainant was unequivocal in her objection to Patrick’s unwanted and unacceptable behaviour. I am further satisfied that, when he observed Patrick’s disrespectful attitude to his wife, the complainant’s husband also let him know that his attention was unwanted.
The respondent’s side was critical of the fact that the complainant didn’t inform the HR Department early on that she was having a difficulty with Patrick. The suggestion here is that, because she didn’t complain at the start, his conduct may not have been all that bad. I reject this defence entirely. Disrespect and humiliation have a stifling effect and it is well-known that victims of sexual harassment can wait a very long time to let anyone know they are being mistreated. The fact that the complainant waited until February 2018 to complain does not lessen the unacceptable nature of the harassment and does not diminish its effect over the previous months.
At their first meeting with her on February 6th, the complainant said that, if Patrick had apologised, that might have been the end of it. If a final written warning had been issued, the complainant would have been satisfied that the respondent had taken her complaint seriously and that Patrick had been held accountable for his actions. I find the actions proposed by the employer, such as the installation of CCTV, “for the protection of everybody” avoided the responsibility to take the right action and to deal with Patrick’s behaviour.
In conclusion, for the reasons set out above, I am satisfied that the complainant has shown that she was sexually harassed at work and that this harassment constituted discrimination on the gender ground in relation to her conditions of employment.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
It is my view that the effect of the sexual harassment suffered by the complainant was compounded by the failure of the respondent to give any credence to her evidence and I find that, of itself, this demonstrated a lack of respect for her. To compensate for this treatment, I decide that the respondent is to pay the complainant compensation of €30,000, which is equivalent to 18 months’ wages. As this award does not constitute any element of pay, it is not subject to statutory deductions.
Dated: 30th September 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne