ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020991
Clodagh Gill Sherwin O'Riordan
Graham Bailey IBEC
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: 17/09/2019
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant commenced employment with the Respondent as an Accounts Executive in September 2016. She worked 37.5 hours per week and was paid a gross monthly salary of €2916.66. Her employment ended on 10th December 2018. This complaint was received by the WRC on 11th April 2019, with the most recent date of discrimination entered as 9th April 2019. This case is related to Adj-00019185 (CA-00025051-001) and should be read in conjunction with it.
Respondent’s Arguments on Preliminary Issue
The Respondent submits that this complaint cannot be considered as the Complainant was not an employee of the Respondent’s when the matters raised in the complaint occurred. The Complainant’s employment ended on 10th December 2018 and these complaints relate to matters that happened after her resignation, when she was no longer an employee of the Respondent’s and therefore outside the scope of the Acts.
Complainant’s argument’s on Preliminary Issue
Regarding the liability in respect of alleged discrimination or victimisation that occurred after the termination of the Complainant’s employment, the Complainant submits that the protections provided under the Employment Equality Acts are expressly intended to cover not only present but also former employees and that this is clear from section 2 of the Acts.
Section 2 of the Acts (as amended). defines an “employee” as follows:
“ ‘employee ’ , subject to subsection (3) , means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person ’ s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons”
The Complainant also cites paragraph 32 of the recitals in the EU Equal Treatment Directive (2006/54/EC) which the Complainant contends places an obligation on member states to provide protection to former employees. Paragraph 32 of the recitals states:
“Having regard to the fundamental nature of the right to effective legal protection, it is appropriate to ensure that workers continue to enjoy such protection even after the relationship giving rise to an alleged breach of the principle of equal treatment has ended. An employee defending or giving evidence on behalf of a person protected under this Directive should be entitled to the same protection.”
The Complainant also cites the CJEU case, Minister of Justice and Equality and the Commissioner of An Garda Siochana v Workplace Relations Commission (C-378/17) which, the Complainant submits, has established that, in the event of a conflict between Irish legislation and EU law, the Workplace Relations Commission is under an obligation to give full effect to the EU law (in this case the Equal Treatment Directive) and must disapply any provision of national legislation that may be contrary to EU law. The Complainant submits that the Directive is clear in its requirement that protections must be provided to former employees in the same way as apply to employees in an ongoing employment relationship.
The Complainant contends that protections for former employees was expressly upheld in the long-established jurisprudence of the European Court of Justice, in particular in the case of Coote v Granada Hospitality ltd  ICR 00 in which the ECJ decided a preliminary reference from the UK EAT in a case of alleged discrimination (in that case in the form of victimisation) of a former employee who had brought a claim of sex discrimination. The Court held that the “principle of effectiveness” meant that member states were required to ensure that employees making claims of sex discrimination were protected against being victimised on that account. More pertinently for present purposes, it held that that was the case whether the victimisation occurred during employment or subsequently.
The Complainant submits that the “principle of effectiveness” as required under European law requires that such protections remain even after the cessation of the employment relationship.
The Complainant submits that she has continued to be subjected to a persistent and calculated campaign of harassment of Mr A. the Complainant has through her solicitor, brought each of these incidents to the attention of the Respondent who has utterly failed in taking any effective steps whatsoever to prevent this ongoing harassment. The Respondent’s refusal to take steps to protect the Complainant post-termination constitutes an ongoing campaign of victimisation which persists to this day.
Regarding the Respondent’s liability for the conduct of Mr A outside of the workplace and on social media the Complainant submits that the Respondent has been made aware on multiple occasions of the ongoing acts of harassment being carried out by Mr A and that these are matters that plainly fall within the responsibility of the Respondent. To support this contention the Complainant cites the Labour Court case of McCamley v Dublin Bus, in which the Court stated, inter alia, that “it matters not that the harasser was off duty or at home when he posted the offending material…..”
Findings and Conclusions on Preliminary Issue
This complaint was lodged on 11th April 2019, stating that the most recent date of discrimination had taken place on 9th April 2019, some four months after the Complainant had resigned from her employment with the Respondent.
The Complainant has argued that the Respondent, her former employer, has a responsibility to her for (alleged) acts of harassment which took place after her employment with the Respondent had ended. The Complainant cites section 2 of the Act and the Directive to support this argument.
The Coote case makes it clear that an employer must ensure that an employee does not suffer victimisation after the employment relationship has ended for having brought a claim under the Equality Legislation, while they were still an employee of that employer. In Coote, the ECJ found, inter alia:
- The principle of effective judicial control laid down in Article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.
- In those circumstances, it is not possible to accept the United Kingdom Government's argument that measures taken by an employer against an employee as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment do not fall within the scope of the Directive if they are taken after the employment relationship has ended.
Decision on the Preliminary Issue
Having considered the above arguments, I find it behoves me to investigate the allegations made by the Complainant in her Complaint Form even though these allegations relate to a time when she was no longer the Respondent’s employee.
Summary of Complainant’s Case:
The background to this case is covered in Adj-00019185 (CA-00025051-001). In brief the events prior to this complaint being lodged with the WRC are as follows.
Following an incident during a work-related party in July 2018, the Complainant brought a number of complaints against a male colleague, Mr A, on grounds of harassment and sexual harassment. Mr A was suspended with pay during August and September while the complaints made were investigated. Following the investigation, disciplinary action was instigated against Mr A and he was issued with a written warning. Mr A returned to work on 2nd October 2018.
On Mr A’s return to work the Complainant sought a number of accommodations from the Respondent to alleviate the stress she was experiencing, caused by having to work with Mr A. Unhappy with the response of her employer and due to the distress caused by Mr A’s return to the workplace the Complainant became sick and was certified as such by her doctor. The Complainant’s solicitor wrote to the Respondent in the period October to December seeking reassurance on how the Complainant and Mr A were going to work together in the future. Unhappy with the Respondent’s response the Complainant felt she had no option other than to resign from her job which she did in writing by letter dated 10th December 2018. The Complainant took up work with another employer in January 2019. On 16th January 2018, the Complainant lodged a complaint with the WRC (see Adj-00019185).
The Complainant submitted that she had hoped that by taking up employment elsewhere, she would not be subjected to any further harassment by Mr A. However, the Complainant submits that around the week commencing 4th March 2019, she received daily notifications from a social network that Mr A was viewing her profile on a persistent basis. The Complainant blocked Mr A from viewing her profile. The Complainant submits that Mr A made several more attempts to communicate with her by way of social media in April and May. The Complainant blocked Mr A’s account on LinkedIn, but he subsequently sent her a friend request on Instagram, compounding the situation for the Complainant.
The Complainant’s solicitor wrote to the Respondent on 11th April 2019, alerting the Respondent to the Mr A’s activities vis-à-vis social media and the Complainant. The Complainant’s solicitor did not receive any response from the Respondent. The Complainant’s solicitor again wrote to the Respondent on 6th June 2019, advising them that Mr A had again attempted to follow the Complainant on a second social media platform, re-iterating the upset and worry being caused to the client by Mr A’s actions and calling on the Respondent to deal with the matter. The Complainant’s solicitor did not receive a response from the Respondent to this second letter. The Complainant’s solicitor wrote to the Respondent on 7th August 2019, alerting them to the behaviour of Mr A, who had, on 24th July 2019, attempted to add the Complainant as a “friend” on another social network platform. The letter again criticised the Respondent for not taking the necessary actions to prevent this “continuous harassment of our client…”
The Complainant submits that the Respondent took absolutely no action to protect her from Mr A and ensure that she would not be subjected to any further acts of intimidation and harassment at the hands of Mr A. after her departure from the Respondent’s workplace.
The Complainant gave direct evidence at the hearing stating the sequence of attempts made by Mr A to contact her on social media. The Complainant stated that in her view if someone keeps contacting you on social media it is harassment.
Summary of Respondent’s Case:
The Respondent submitted that all employee social media accounts are personal to employees and posts created by employee are personal and do not occur in the course of employment. Where an individual wishes to connect or “friend” another individual on a social media platform, this is done in their own time, and is not work-related. Therefore, the Respondent is not and cannot be deemed responsible for these actions. All social media platforms have the option to ignore or “block” unwelcome or unwanted connections. Furthermore, the Respondent is at a loss to understand how viewing a person’s profile or adding them as a social media contact could, in any way, be considered “sexual” in nature as to construe sexual harassment.
Findings and Conclusions:
Findings and Conclusions
The first question to be answered is whether the Complainant victimised by Mr A, through social media after she had resigned?
Addressing the complaint of victimisation, I refer to the Department of Defence v Barrett (EDA 1017), where the Labour Court held as follows in respect of victimisation:
“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”
That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -
Are the ingredients present in this case?
1.The Complainant did take action as referred to in s. 74 (2).
2. I am satisfied, from Complainant’s direct evidence, that Mr A checked the Complainant’s social media profile on LinkedIn in March and asked her to follow him on Instagram in April, which could be considered and was considered by the Complainant as adverse treatment. I do not disagree with her.
3.Was this adverse treatment a reaction to the protected action having been taken by the Complainant?
I do not think it is plausible to link the two things. The first complaint under the Equality Legislation (Adj-00019185 /CA-00025051-001) was received by the WRC on 16th January 2019, yet Mr A only started checking the Complainant’s social media profiles on 4th March 2019, close to two months after the complaint was received by the WRC. The next time he contacted her was on 9th April 2019. I do not believe there is sufficient evidence to reach the point where one could say, on the balance of probabilities, that the two are linked. The leap from one to the other is too wide. That being the case I find the Complainant has not achieved the burden of proof required under the Act.
For completeness, I find that the Complainant has not provided enough evidence to establish a prima facie case to uphold the allegations selected in her complaint form. The complaints listed on the complaint form are set out below and the required decision is given on each:
Discrimination on the Ground of Gender – no prima facie has been case established.
Discrimination on the Ground of Sexual Orientation – no prima facie case has been established.
That the Respondent treated the Complainant unlawfully by discriminating against her in victimising her – no prima facie case has been established.
That the Respondent treated the Complainant unlawfully by discriminating against her in harassing her – no prima facie case has been established.
That the Respondent treated the Complainant unlawfully by discriminating against her in sexual harassing her – no prima facie case has been established.
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.
The complaint is not well founded.
Dated: 23rd March 2020
Workplace Relations Commission Adjudication Officer: Roger McGrath