ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036160
Deadline Direct Ltd T/a Deadline Couriers
Mary Fay BL instructed by Walter Mee Walter Mee & Co. Solicitors
Sean D. Foley Century Law
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: 03/02/2023
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant, who was accompanied by her mother as well as her legal representative, gave sworn evidence at the hearing and the opportunity for cross examination was afforded.
Mr David Mc Cann, Director, gave sworn evidence on behalf of the Respondent and was accompanied by his legal representative and the opportunity for cross examination was afforded. Mr Austin Bergin, who carried out the investigation into the allegations made by the Complainant, also attended the hearing but left early because he did “not believe it would take so long” and did not give any evidence.
The Complainant did not seek to have the names of the parties anonymised despite having consulted with her legal representative on the matter.
The Complainant was employed as a Telephonist/Administrator by the Respondent since 29th September 2017 and was paid a gross salary of €485.00 per week. She stated that the Respondent discriminated against her on 27 May 2021 because of an instance of sexual harassment when a male colleague placed his hands on her and attempted to pull down her trousers.
Summary of Complainant’s Case:
In the course of work on 27 May 2021, the Complainant, as part of her ordinary duties, went to wrap some items and returned upstairs to her office which was an open office and was occupied by several male employees. She was leaning against the wall while holding a roll of shrink wrap in one hand and Sellotape in the other when a male colleague, Mr X, came up behind her and tried to pull her trousers down. This was done while the Complainant’s two hands were occupied and in front of a room full of male colleagues. Mr. X then proceeded to joke and mimic what he had just done to other female workers. None of the numerous male colleagues who witnessed this said anything or assisted the Complainant.
The Complainant stated in her evidence that Mr X had been commenting on her appearance and weight for several months prior to this and that following the incident, she left the room. She then reported the incident to the Day Manager who didn’t tell her to go home and didn’t do anything as he told her that he had to report it to the CEO. When she went back upstairs, Mr X was still in his seat and had not been told to leave. She subsequently spoke to the CEO by phone on 28 May 2021 and was later advised by letter dated 3 June 2021 that the matter was very "serious", would be fully investigated and that the investigation would be completed by 10 June 2021. However, on 15 June 2021, the Respondent wrote apologising that the matter had not yet been resolved.
The Complainant stated that she was not made aware of, or provided with, any policy documents relating to discrimination, harassment or sexual harassment at work. She attended with her GP and commenced a period of sick leave on 17 June 2021 due to the assault. It wasn't until 2 July 2021 that she was formally interviewed for her account, despite her having made the Respondent aware of the matter on 27 May 2021 and the entire incident occurring in an area covered by CCTV.
She was paid for a few weeks while she was on sick leave but stated that the Respondent then stopped paying her and she received no prior notification of this cessation of pay. When the Complainant emailed on 9 July 2021 about this, she received a reply that day asking when she would come back to work as she had been paid "for the last number of weeks in good faith". The Complainant stated that she was not fit to go back to work and was obliged to use annual leave and then to avail of social welfare. The Complainant reported the matter to the Gardai, was attending a counsellor and remained unfit to work but despite this the Respondent continued to put pressure on her to return to work.
The Complainant was advised that the Respondent was investigating matters and this was being conducted by their accountant, Austin Bergin. The Complainant stated that she was told this was an investigation and not a mediation. The Complainant participated in that investigation, meeting Mr. Bergin on 2 July 2021. Although the Complainant’s solicitor, Walter Mee, was advised by the Respondent's solicitor on 16 July 2021 that stage three of the disciplinary process would be finalised that day, he was subsequently informed on 21 July 2021 that Mr. Bergin had "finalised these proceedings", that Mr. X had tendered his resignation and that this had been accepted.
To date, and despite requests, the Complainant has not been provided with any findings from the alleged investigation and no findings were made. She also stated that the Respondent had done nothing to address the culture in the workplace that allowed the harassment to occur and to be tolerated in the way that it was. The Complainant has never felt in a position to return to the workplace and has not at any stage resigned.
Summary of Respondent’s Case:
The Respondent stated that at no time had the Complainant or any other employee made any allegation against Mr X prior to 27 May 2021 and that such was the unique nature of the incident perpetrated by him on the day that it could not have been reasonably foreseen by the Respondent.
The Respondent also asserted that they had effective policies and procedures in the Employee Handbook which identified sexual harassment as an offence for internal grievance examination/procedures. It was also highlighted that as soon as the Complainant made them aware of the incident of 27 May 2021, a policy statement expressing a commitment to providing a working environment free of every kind of harassment, including sexual harassment, was issued to all employees, which they were required to download on their mobile phones.
Their representative also stated that they engaged an external party to carry out an investigation but that the Complainant did not fully engage with the grievance process, namely both the mediation as well as the investigation into her complaint of sexual harassment and asserted that this constituted a breach of her contract of employment. As a result of her failure to fully invoke the Respondent’s Grievance Procedure, the Respondent stated that they were prevented from taking steps to address the matter in accordance with their legislative requirements arising from the Complainant’s refusal to do so.
Findings and Conclusions:
Section 14A of the Employment Equality Act states:
“(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, …
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.
(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, and
(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.
(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.
(7) (a) In this section —
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
This is a complaint of sexual harassment by the Complainant pursuant to the Employment Equality Act. As set out above, section 14A of the Employment Equality Act addresses sexual harassment and harassment on the discriminatory grounds and provides a defence for the employer who takes reasonably practicable steps to prevent the employee from being harassed. Specifically, where an employee has been discriminated against in the workplace because of harassment, it is a defence for an employer to show that they took reasonable and practicable steps to prevent this differential treatment or to reverse its effect.
In examining this case, I noted firstly the Complainant’s direct evidence of a sexual assault by Mr X, namely his placing of his hands on her and his attempt to pull her trousers down, which I also witnessed on the CCTV. I further note that sexual assault falls under the definition of sexual harassment as set out in section 14 (7)(a) (ii) of the Act above and, at sub-section 14(1)(a) above, the legislation provides that where an employee is sexually harassed by another employee, which in this case was a sexual assault, this constitutes discrimination by the Respondent.
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 was sexual harassed and discriminated against.
In Mitchell v Southern Health Board, DEE 11,  ELR 201, 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
Given that the Complainant gave uncontradicted and wholly credible evidence of the sexual assault she was subjected to by Mr X, as outlined above, in conjunction with the evidence I saw on CCTV, also outlined above, I find both that she was sexually harassed and that she has discharged the burden of proof required at section 85A of the Act.
Having decided that she has established a prima facie case of discrimination, I must now examine the way in which the Complainant’s allegation of sexual harassment by Mr X was dealt with by the Respondent and whether they can avail of the defences provided for in Section 14A of the Act.
While the Respondent did not explicitly dispute that the harassment took place, it was stated in their legal submission that, that they could not reasonably “have taken steps to prevent it” (section 14A (1)(i))given that Mr X had never acted in this way with the Complainant or any other colleague prior to the alleged sexual assault and that the incident itself was so unique that it could not possibly have been foreseen. The Respondent also sought to avail of the defence set out in Section 14A (2) (a) which provides 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 included the victim”.Specifically, it was asserted that prior to the incident, the Respondent had effective policies and procedures in the Employee Handbook which identified sexual harassment as an offence for internal grievance examination/procedures. It was also highlighted by the Respondent that, as soon as the Complainant made them aware of the assault, a Dignity at Work policy statement expressing a commitment to providing a working environment free of every kind of harassment, including sexual harassment, was issued to all employees. Their representative also stated that they engaged an external party to carry out an investigation but that the Complainant did not fully engage with the process, namely both the mediation as well as the investigation into her complaint of sexual harassment and asserted that this constituted a breach of her contract of employment.
In examining if the steps allegedly taken by the Respondent prior to 27 May 2021 were sufficient to protect the Complainant from the sexual harassment she was subjected to, I note firstly the Respondent’s witness’s, Mr McCann’s, assertion that they had effective policies and procedures in the Employee Handbook issued to the Complainant which identified sexual harassment as an offence for internal grievance examination/procedures. I also noted however that the Complainant disputed she received this handbook, and find, in the absence of any supporting written acknowledgement or any other evidence that she had been provided with it, that she did not receive a copy of same. Even if I accept that she was provided with a copy of the Handbook, which, as I have stated, I do not, it was also notable that the grievance policy included therein, a copy of which was provided by the Respondent at the hearing, referred to a grievance being dealt with at the Advisory, Conciliation and Arbitration Services (ACAS) which is a UK and not an Irish body. In addition, I noted that the handbook simply provided a grievance procedure for her to address her complaint and there was no evidence presented of a clear and distinct policy on sexual harassment having been provided to her, which defined sexual harassment, and explained how the Complainant could have processed her complaint, which is typically handled in a different manner to a standard grievance, given the sensitivities involved.
As well as finding that the Employee Handbook was not provided to the Complainant, I also noted that there was no evidence of any training having been provided to employees on sexual harassment before 27 May 2021, the date of the Complainant’s sexual assault. This is at odds with the decision of the Labour Court in A Store v. A Worker EDA3/2016, where it was stated that even if an employer has a sexual harassment policy in place, which their representative claimed the grievance procedure in the Employee Handbook represented, it is incumbent on them to ensure that it is properly understood by managers responsible for its implementation, which was not done in this case. While the Respondent highlighted that they issued a Dignity at Work policy statement to all employees after the Complainant made them aware of the sexual harassment that she experienced on 27 May 2021 and ensured that they downloaded a copy of this on their phones, I note that the Labour Court found in A Hotel v. A Worker EDA 0915, that an employer has preventative obligations and cannot rely as a defence on actions taken to prevent the recurrence of harassment after it has occurred. As I have found that prior to the incident of sexual harassment, the Respondent neither provided the Employee Handbook to the Complainant or had a policy on sexual harassment in place or provided any training on sexual harassment, I am satisfied that there were no preventative measures whatsoever taken by the Respondent prior to 27 May 2021.
In terms of the actions taken after the harassment, it was disputed by the Complainant that the Respondent carried out a comprehensive investigation into her allegation of sexual harassment. The Respondent’s legal representative stated however that the investigation process was complicated by the Complainant’s failure to engage with the Investigator, her refusal to engage in a mediation process and by Mr X’s reluctance to provide evidence to the investigation before he had resigned from his position. I noted however the Complainant stated very clearly that there was never any suggestion of a mediation, which, in any event, given the allegation of a serious sexual assault was, in my view, a bizarre suggestion by the Respondent, and her assertion that she participated in the investigation when she met with the Investigator at his offices on 2 July 2021 and gave him her evidence. As the Investigator, Mr Bergin, inexplicably left the WRC hearing early because he did not realise that “it would take so long”, there was no direct evidence presented by the Respondent to support their Representative’s assertion that the Complainant did not engage with the Investigator. I therefore find that the Complainant did attend Mr Bergin’s offices to give evidence as part of the investigation process on 2 July 2021 and note that the fact that this meeting took place was also supported by text messages produced by her. Moreover, I noted that Mr Bergin is the Respondent’s accountant and there was no evidence presented to suggest that he had any expertise in these matters or had carried out similar investigations in the past. If he had, I believe that he would have produced a report with findings, relying on the evidence that the Complainant gave him in their meeting on 2 July 2021, even if Mr X did not give evidence as part of the investigation which the Respondent’s representative used as a justification for him not making findings.
It would have been more appropriate, in my view, if, instead of their accountant, the Respondent had engaged a professional with considerable experience in carrying out investigations into sexual harassment given the very serious nature of the allegations presented. Given the inexperience of Mr Bergin in such matters however, the Complainant was not furnished with an investigation report and I find, in the absence of such a report, that the alleged investigation did not mitigate in any way the absence of any of the Respondent’s protective and preventative procedures outlined above.
Having taken all of the above into account, I find that the Respondent has failed to rebut the prima facie case of discrimination established by the Complainant given the failure to implement any protective or preventative measures prior to the sexual harassment and the wholly inadequate measures taken after the incident.
I must now consider the matter of redress. In the first instance, I should highlight that this complaint of sexual harassment includes a sexual assault and note the Labour Court stated that, when considering the question of compensation in the case of Shauna Quilty v MBCC Foods Ireland Limited T/A Costa Coffee EDA 2128, “the very upper end of seriousness includes situations of sexual assault.”
In addition, as I have highlighted above, the Respondent cannot avail of the provisions set out in s.14 A (2) given their failure to take any credible steps in advance of the instance of sexual harassment to protect the Complainant from the assault that she was subjected to. While I recognise that the Respondent implemented a new Dignity in the Workplace Policy after the incident, which will assist in ensuring their employees are no longer subjected to this type of behaviour in the future, this will be of little benefit to the Complainant as I consider it unlikely that she will return to the workplace in the short to medium term, if ever. Specifically, I noted the extreme distress and trauma that she displayed when giving her direct evidence, almost two years after the assault, as well as the apparent and understandable breakdown of her trust in the Respondent given their actions after she made her complaint. In particular, it is scarcely credible that she has still not received an outcome of the very serious complaint that she made. Such findings may have reversed some of the effects of the discriminatory treatment on her, which I witnessed at the hearing.
In assessing the compensation to be awarded to the Complainant, in accordance with s.82(1)(c) of the Act, I have decided to make the maximum award of two years’ remuneration both for the reasons outlined in the preceding paragraph and having regard to the effects of the discrimination on the Complainant, also outlined above, as well as the findings in Von Colson and Kamann (1984) ECR 1891 that awards should be effective, proportionate and dissuasive.
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.
I find that the Complainant was discriminated against and order the Respondent to make a payment of €50,440 in compensation in respect of the discrimination.
Dated: 20th April 2023
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill