Complainant

Respondent

Parties

Lenianastasia  Shanahan

Roots Health Food

Representatives

Fiona O'Connor TSA Consultants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00066698-001

15/10/2024

The complainant gave her evidence on affirmation.

She said she experienced sexual harassment involving comments by a co-worker (hereafter MR) which involved him asking her to go out with him. She says that these were ignored by her manager who was the owner of the respondent.

This was followed by other incidents.

Detail was provided in evidence about an incident in April 2024, when MR initiated a conversation with her in terms that she found unacceptable.

He asked her what her reaction would be if he asked her out for a drink during the week and she said that she did not feel comfortable with that. He mentioned it again at the end of her shift.

During her next shift with him, he asked her again to ‘go out’ with him. At this point she said “no” again and had to make up an excuse. He proceeded to discuss issues of a sexual nature.

In late May or early June 2024, he made comments about her physical appearance and said that he found her attractive and asked her if she found him attractive and the following month, he suggested that they should visit some of the museums in Dublin.

The confined space of the kitchen in the basement and the fact that it had no working CCTV cameras in the establishment fed her feeling of fear.

Later that month, on a separate shift, when she politely replied to a request he made about getting something from a local shop his response was “you really need to stop saying no to me “.

On July 20th, her last shift in Roots, she was working front of house and when the co-worker’s shift was finished, he usually came up and hugged a few of the employees. She told him she was taking time off work for a holiday, he said “I hope the next time I see you won’t be in here “and he winked at her. Her co-worker made her aware of a conversation between her boss and owner, Dave, and Martin, which he witnessed.

MR (the perpetrator) told Dave, a manager of an explicit sexual response when interacting with her. No further steps were taken about this.

The complainant said that she had not made her complaint earlier as she had not been aware of the policy or procedure under which to do so.

Under cross examination, she repeated that she had not known what steps to take and in particular did not wish to tell one of the owners as he was close to the alleged perpetrator.

In relation to another owner, she said that she did not tell him because she was scared. She repeated that she was not aware of the policy or how she would be protected if she made a complaint.

In response to a question as to what made her think she would be penalised she stated that there was nothing to make her feel that.

The complainant was also asked why she had not cooperated with the investigation in declining to be interviewed she confirmed that her interaction had all been by email. She said that she had not wanted to interact with the investigator.

She also stated that she was very upset by the alleged perpetrator’s flat denials of the allegations but accepted that there had been no witnesses to the actual events.

She also confirmed that she refused the offer of counselling from the respondent as she did not think that the three sessions proposed would be adequate. Also, the suggested venue for the counselling was too close to the respondent’s business premises. However, she stated that she had no reason for declining the counselling.

Ms Fia Cusack, a friend of the complainant also gave evidence on affirmation.

She said that she noticed the complainant appearing to be stressed around September 15th and asked her what was wrong the complainant told her she was not aware of what legal remedies might be available to her and asked the witness for assistance. (The witness was a law student)

The witness confirmed in cross examination that she advised the complainant to make a complaint to the company and, in due course the witness also assisted her with her complaint to the WRC.

In her summing up, the complainant submitted that she had established a prima facie case, Section 15(3) of the Act had been breached; there was no policy, training etc and finally, the steps taken by the respondent after the event were inadequate.

Roots/Spilt Milk opened in March 2024, selling homemade ice cream and speciality coffee. The team is made up of approximately ten employees, with a mix of full and mainly part- time employees.  The complainant commenced employment in March 2024 as a Server/ Assistant Production and was one of the first team members recruited when Spilt Milk began trading and worked for 16 weeks with the Respondent, until July 20th, 2024, working on average approx. 14 hours per week .

During her time with the company, she was considered as a capable and creative colleague and worked closely in recipe development for new products, and she was paid an hourly rate of €13.

 KeyIncidents:

When she commenced employment, she received a contract of employment  and, as the business was opening for the first time, a copy of the ‘Roots Guidelines and Training booklet’ was discussed with all employees to ensure they had the required knowledge of the new products. This booklet also contains a clear ‘Workplace Behaviour’ & ‘Grievance Procedure’.

While the respondent genuinely sympathises with the complainant, and engaged in good faith with her, the allegations were not made known to the respondent until after the alleged perpetrator had left its employment. The company had no knowledge of the alleged harassment and could not act on something that had not been reported.

Upon being notified of the complaint, we immediately engaged with the complainant and conducted two formal investigations, in line with the company’s Bullying and Harassment Policy and offered supportive measures, including counselling, and acted promptly, reasonably and in good faith in regard to the handling of the complaint.

Once notified of the complaint, the allegations were investigated; however, there was not enough evidence to corroborate them.  Therefore, a prima facie case of discrimination was not established.

We took such steps as were reasonably practicable for the size and structure of the business to prevent sexual harassment in the workplace and had a clear ‘Bullying and Harassment Policy’ in place at the time of the alleged incidents, as well as a ‘Workplace Behaviour’ & ‘Grievance Procedure’ (both submitted) as outlined in the Roots Guidelines and Training booklet.

The complainant raised her complaint, having left her employment and submitted this claim to the WRC prior to the internal investigation being completed.

While the complainant has claimed that she was not aware of the Bullying and Harassment Policy, a written Bullying and Harassment Policy was in place at the time of the alleged incidents. This Policy was stored under the till in the shop and sets out the policy on providing a working environment free of all forms of bullying and harassment.

It contains a clear statement that any proven inappropriate behaviour will be treated as a disciplinary offence and subject to disciplinary sanctions up to and including dismissal and outlines the complaint mechanisms available to employees.

No formal or informal complaint of harassment or inappropriate conduct was raised by the Complainant during her employment and the respondent first became aware of the allegations through correspondence from the Complainant on September 25th, 2024.

This email outlined her complaint for the first time and noted that she intended to submit a claim to the WRC which she did on October 15th, 2024. Upon receipt of the complaint, the respondent acted immediately, and engaged with her, and conducting a formal investigation, and offering professional counselling to support the complainant from the outset.

She was sent a copy of our Bullying and Harassment Policy, along with a summary of the investigation process and the possible outcomes and two formal internal investigations were launched. All relevant employees were interviewed, and statements were taken.

A full and fair investigation was conducted; however, no corroborating evidence was established to support the complaint. The Investigation reports were shared with her.

As MR had left the business, no corrective action could be taken, however, the company met with DM in line with the company’s Disciplinary Policy. Since being notified of the complaint, the respondent has taken all reasonably practicable steps to resolve the matter and prevent any form of inappropriate behaviour from occurring.

The complainant raised two complaints, the first against MR in which she alleged nine incidents of sexual harassment which she claimed occurred across seven shifts during her sixteen week employment. They related to discussions about open relationships and sexual experiences, sexualised comments about her appearance and "chemistry" and he requested twice to go on dates or visit museums.

The investigation report was submitted and reflects conflicting accounts of what transpired between the parties. There are no direct witnesses to the alleged incidents.

The complainant confided in one colleague after one of the alleged incidents (MR allegedly asked her to go on a date); however, that colleague did not witness the alleged conduct but confirmed that the complainant told her MR made her uncomfortable. The complainant confided in another colleague (after one of the alleged incidents however, he did not witness the alleged conduct. Sean was not an employee at the time the Complainant submitted their complaint.

MR categorically denied the allegations and stated that any conversations were respectful and misinterpreted.

Based on the evidence provided, seven of the complaints do not meet the criteria to substantiate sexual harassment, as defined in the legislation, as there was insufficient evidence. One of the incidents (Incident 7) concluded that unprofessional and inappropriate behaviour had occurred in the workplace and that there was a ‘need for improved professionalism and clearer boundaries. Others were not. 

Incident 8 was upheld. While she was not present when the comment was made, alleging that the Complainant was flirtatious with another colleague, the report found that the comment was unwanted and did undermine the complainant’s dignity when it was relayed to her at a later time, and this caused her to feel humiliated.

(There was a second set of allegations against a director of the company which did not form part of the complaint to the WRC).

The report expressed disappointment that the complainant felt she could not raise her concerns with DM, it was regrettable that she did not raise her complaint with the other members of the management team before she left the business.

DM confirmed that he repeated an inappropriate comment (flirtatious) to Sean during a separate workplace discussion and expressed regret and apologised. 

Legal Submission

Section 85A of the Employment Equality Act places the burden of establishing the primary facts on a complainant and the language of this provision admits no exception to that evidential rule. The WRC has repeatedly stated that the person alleging harassment must meet the prima facie test. They must establish, on the balance of probabilities, that the harassment did in fact take place.

No prima facie case has been made out by the complainant.

As defined in Murdoch and Hunt (2021 Edition Bloomsbury) “A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.”

In Mitchell v Southern Health Board, [(2001) ELR 201] the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’

In the case of Arturs Valpeters V Melbury Developments Ltd EDA 0917[2010] 21 E.L.R, whilst examining the circumstances in which the probative burden of proof operates, the Labour Court held as follows:

Section 85Aof theAct provides for the allocation of theprobate of burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts and credible evidence. Mere speculation or assertions, unsupported by evidence, cannotbeelevatedtoafactualbasis uponwhichaninferenceofdiscrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The respondent submits that following an investigation, sufficient evidence was not established to corroborate the Complainant’s allegations, with the exception of the Complainant telling a colleague that she felt uncomfortable around MR. Therefore, there was insufficient factual evidence to establish that the Complainant was sexually harassed or discriminated against on the gender grounds.

It is well settled law that a complainant is required to establish, in the first instance, a prima facie case of discrimination, that is, clear facts from which it can be established that she was sexually harassed and discriminated against on the gender ground. It is only when the Complainant has discharged this burden that the burden shifts to the Respondent to rebut the prima facie case of discrimination raised.

Once notified of the complaint, the respondent took all such steps as are reasonably practical to prevent such acts, and therefore relies on the defence available under Section 14A (2) of the Employment Equality Acts, which provides that an employer is not liable where it took reasonably practicable steps to prevent the harassment.

The respondent was not aware of any alleged harassment during the  and it could not have taken preventative or corrective action in the absence of a complaint. A written Bullying and Harassment Policy was in place at the time of the alleged incidents and was stored under the till.

The Bullying and Harassment Policy sets out our stance on providing a working environment free of all forms of bullying and harassment. It contains a clear statement that any proven inappropriate behaviour will be considered to be a disciplinary offence and subject to disciplinary sanctions up to and including dismissal. The Policy outlines the complaints procedure in line with best practice.

A copy of this Policy was shared with the Complainant once they notified the Respondent of their complaint, and the Respondent provided an overview of the investigation process, along with the potential outcomes, by email dated October 3rd, 2024 .

The message throughout the Roots Guidelines and Training booklet is that “The Roots environment is an open space for communication, your managers/supervisors are always hear to listen”

The Workplace Behaviour Policy within this booklet uses language that young colleagues will relate to and will remember. The Grievance Procedure in the Roots Guidelines and Training booklet outlines both the informal and formal steps to resolve any grievance.

Furthermore, the contract of employment also contains a clause relating to the Grievance Procedure and states:

“It is important that if you feel dissatisfied with any matter relating to your workyou should have an immediate means by which such a grievance can be aired and resolved. If you feel aggrieved at any such matter during the course of your employment you should raise the grievance with a director or a nominated independent person either verbally or in writing”.

We note the Complainant has stated that she did not receive a copy of the Bullying and Harassment Policy, and it is accepted that, as the business had just started trading, this Policy was not regularly communicated to employees, unlike the above Roots Guidelines and Training booklet.

The Respondent submits that poor communication of the Bullying and Harassment Policy to employees at that Time is not conclusive evidence that the Respondent failed to take reasonably practicable steps.

The Roots Guidelines and Training booklet contained the Workplace Behaviour Policy and a Grievance Procedure, both of which were accessible, in plain English to ensure they were easy to understand and clearly set out the company expectations in this regard. Throughout the booklet, employees were advised of the genuine open-door policy in place and encouraged to speak to management about any problem experienced.

The Respondent refers to the defence available under Section 14A(2) of the Employment Equality Acts, which provides that an employer is not liable where it took reasonably practicable steps to prevent the harassment. Section 14A(2) of the Act states that “it is a defence for the employer to prove that the employer took such steps as are reasonably practical”

There is no legal definition of “reasonablypractical”,but guidance is sought from case law and the Code of Practice.

The Code applies to all employers but states that “Employers are encouraged to follow the recommendations in a way appropriate to the size and structure of the organisation”

The Courts reaffirmed this position and stated in A Worker v A Restaurant (DEC-E2015- 145) “she accepts that the code does not specifically compel an employer to adopt the code. It does stipulate, that "it is essential that employers have in place successful and efficient policies and procedures to deal with sexual harassment and harassment.”

Given the small size of the business, and start-up nature, it is our case that the Respondent followed the recommendations within the code in a way which was appropriate for the size and structure of its business.

As outlined above, in addition to the company Bullying and Harassment Policy stored onsite, a clear ‘Workplace Behaviour’ & ‘Grievance Procedure’ were documented in the Roots Guidelines and Training booklet. These policies contain a clear complaints mechanism for staff, and given the size of the business, employees were encouraged to come talk to the manager if there was any problem at work.

The complainant in this case did not raise her complaint with management during her employment.

In the case of a Female Employee v A Printing Company, (DEC-E2008-022) the court held that while the employer was at fault for not having a policy in place, a claimant who is aware of how other types of complaints are dealt with may have some level of responsibility if they chose not to make any complaint.

The complainant gave no indication whatsoever that she was experiencing any issues with her colleague. The Complainant and DM always had a good working relationship where they worked closely on new products. They regularly engaged via WhatsApp messages about both work and personal matters.

The Complainant told DM about her father being ill, and following this, given their close relationship, DM checked in with her to offer support. WhatsApp Messages clearly depict the close relationship which existed between DM and the complainant. This is not the behaviour that one would expect from someone who was being harassed and/ or sexually harassed.

It is our case that as soon as the complaint of harassment was raised, the respondent did take reasonably practicable and proportionate steps to deal with the matter.

As MR had left the business, no corrective action could be taken, however, the Company met with DM in line with the company Disciplinary Policy. A Letter of Concern was issued setting out the company expectations and DM engaged in additional management training and coaching.

Since being notified of the complaint, the Respondent has taken all reasonably practicable steps to resolve the matter and prevent any form of inappropriate behaviour from occurring.

The original Bullying and Harassment Policy was updated and shared with the team. Training was arranged, and as suggested by the Complainant, CCTV has been installed throughout the business, including the kitchen area.

As held by the WRC in Technical Support Advisor v An International Computer Company (ADJ – 00020527) July 2021, in cases of sexual harassment, the emphasis will not only focus on the degree to which the policy discourages such behaviour but also on how effectively the business responds to any complaints made.

Furthermore, as the Labour Court observed in Limerick City Council V Mannering EDA1210 “The defence will normally succeed or fail on the adequacy of the employer’s response to any complaintmadebythevictim. Hence, where an employer fails to conduct an adequate investigation, or fails to apply adequate sanctions on a harasser, the employer will be fixed for anysubsequentactsofharassment”

The respondent has acted lawfully and appropriately at all times, and that the complaint is unfounded in fact and in law and submits that the complainant has not established, on the balance of probabilities, that the harassment did in fact take place, and therefore has not satisfied the prima facie test.

Without prejudice to this fact, it is our case that a Bullying and Harassment Policy was in place at the time of the alleged behaviour, as well as a Workplace Behaviour Policy and Grievance Procedure. No liability arises under Section 14A of the Act due to the preventative and corrective steps taken. The Respondent could not have prevented harassment that it was unaware of, and once notified of the complaint, it responded appropriately and took reasonably practicable steps. Furthermore, the post-incident actions demonstrate the reasonably practicable steps taken by the Respondent and therefore they can rely on the defence set out in Section 14A(2).

The Respondent submits that it fulfilled its duties under the Employment Equality Acts and respectfully requests that the complaint be dismissed in full, or alternatively, that any award of compensation reflect the absence of timely reporting, that when the complaint was raised the Complainant was not an employee, the limited evidence, and the employer’s proactive post-resignation efforts. 

A Director of the respondent business, Dave Meehan gave evidence on affirmation. His role was Head of Operations and Production.

He said that the business had started trading in March 2024 and the complainant was among the first recruits. He had not known her before she joined the business. However, he described his working relationship with her as ‘great’ Abd said that she was ‘the brightest spark’. He said that he knew he could really trust her and that he had a regular and open line to her.

She never raised the issue about MR at any time and the first he became aware of it was when she  made the complaint in September.

He said that since these events he had actively worked to ensure that all relevant policies were in force and CCTV has been installed.

Steven Murphy, also a director gave evidence on affirmation.

He said he met Mr Meehan (previous witness) when the complaint was received, and as he, Mr Meehan was named he undertook to manage the complaint from there and lead the investigation.

He said that the complainant was offered counselling before the investigation started.

He emailed the complainant and invited her to an investigation meeting. She declined to meet but said she would communicate by email.

He told her he would ensure that the alleged perpetrator would respond and that she would be given the opportunity to comment on that response.

He met three named witnesses but could not get any independent corroboration of the allegations.

The law on sexual harassment, is 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.”

In this case, part of the respondent’s reply to the complaint is that had no knowledge of the incidents giving rise to the complaint nor was it aware of the complaint or the facts giving rise to it until after the complainant had left its employment.

Section 14A(2) of the Act provides a defence for employers in respect of a complaint of sexual harassment.

Section 15 of the Employment Equality Act sets out the principle of vicarious liability for acts carried out by employees. There is a defence where the employer has taken steps as are reasonably practicable, to prevent harassment in the workplace:

“Liability of employers and principals.

15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.”

Underlining added.

Section 85A of the Act 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. On the facts of this case she quite easily does so.

The respondent gave an account of the steps it has taken since this complaint arose to comply with the obligations placed on it by the legislation. While it is to be commended for this, that part of Section 15 of the Act underlined above makes it clear that the only defence that can make any difference is that it had such measures in place as would ‘prevent the employee’ from carrying out the impugned acts; in other words, at the time the alleged breaches occurred.

The Labour Court in An Employer v. A Hotel [2010] ELR 72 said an employer is obliged to take such steps as are reasonably practicable to prevent harassment in the workplace.

This requires the employer to show at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. It was clear from the evidence that no such policy was in place, not any other preventive measures at the time.

It is of no consequence to the complainant (from the point of view of her right to a remedy under the Act) that steps were taken which, had they been in place, might have protected her.  As they were not in place that argument is irrelevant.

Although the respondent has stated in its summing up that it had ‘acted lawfully and reasonably’, I find that not only had no ‘reasonable and practicable steps’ been put in place, but there were also no measures of any sort and therefore it cannot rely on the defence. Steps taken subsequent to any alleged breaches of the Act do not provide a defence, contrary to the respondent’s assertion to that effect.

Turning to the investigation carried out by the respondent, on two occasions there was reference to the lack of ‘corroborating evidence’, thus.

A full and fair investigation was conducted;however, no corroborating evidence was established to support the complaint. The Investigation reports were shared with her.

The respondent also stated.

Once notified of the complaint, the allegations were investigated; however, there was not enough evidencetocorroboratethem.  Therefore, a prima facie case of discrimination was not established.

This is a profoundly erroneous misunderstanding of the law in respect both of the requirements of establishing a prima facie case, and the duty of an investigator to reach conclusions.

The standard required to establish a prima facie case is relatively low. The burden of proof falls on the complainant who must obviously set out some facts from which an inference of discriminatory treatment may be drawn.

However, that is not the same as having to establish that the complaint is likely to or does succeed; as is suggested by the respondent, merely that facts have been presented that are of sufficient significance to raise a presumption of an act of discrimination, or as in this case, sexual harassment.

 The respondent has conflated this preliminary requirement to establish a prima facie case, and the successful grounding of that case, which is an entirely different standard.

Then, turning to the investigation, of course when it gets underway on the basis of a prima facie case having been made out, an investigator may find facts which contradict the allegations or discover that they are unreliable for some very specific reason. Or they may find that complained of comments are not sexual in nature, as happened in this case in respect of one complaint only.

And,  while corroboration of such allegations will add weight to them, the absence of corroboration is not determinative.

The investigator has a duty to evaluate the submissions of the complainant and the other parties.

If the investigator is satisfied as to the veracity and credibility of the complaint, then they may on the basis of whatever submissions that have actually been made conclude that the complaint has been made out if the other circumstances related to the complaint support it.

Obviously, the same principles apply to the alleged perpetrator; will a simple (and predictable) denial be sufficient to persuade the investigator that the complaint is not well founded?

The investigator has a duty to make a decision in that regard; not abdicate responsibility to do so, simply and solely because there is no independent corroboration. Part of the duty of the investigators is to evaluate these submissions.

It is obviously one of the options open to an investigator to say that they cannot reach a decision on the balance of probability; and they may well decide to do so, but their reasons should be fully explained for reaching even that conclusion. In this case, what the respondent refers to as a ‘conflict’ in the evidence was simply that the alleged perpetrator denied the complainant’s allegations.

In particular, sexual harassment involves, in two respects a subjective test. The first is that the conduct be ‘unwanted’, which is a matter exclusively for the victim of the conduct to decide. The intention or motives of the alleged perpetrator are entirely irrelevant.

The other aspect of the test has two elements, that it has ‘the purpose or effect’ of violating the right to dignity at work, but the latter of these is sufficient to ground the complaint, i.e. again it is not necessary to establish the motivation of the perpetrator and the effect on the victim will suffice.

This creates a somewhat different context for an investigator than that which arises in other grievances, where facts are contested or, for example in bullying complaints where the legal tests are much more demanding.

For example, the investigator concluded in relation to one allegation that he had ‘no evidence’ that the action complained of created an ‘intimidating or offensive environment’ when this was demonstrably untrue. He had the complainant’s statement and as already noted the criterion for determining harassment is a subjective one and not one for him to decide.

Accordingly, the respondent erred in whatever instructions (if any) it gave to the investigator and failed to take account of the distinctive nature of the tests in relation to sexual harassment. Specifically, there was a profound misunderstanding of the criteria used to determine a prima facie case.

It was open to the investigator to reach a conclusion on the basis of the available information, if they were satisfied that it was credible.

The investigator concluded as follows.

Based on the evidence provided, 7 of the complaints do not meet the criteria to substantiate

sexual harassment as defined in the legislation, however, one of the incidents (7) found that

unprofessional and inappropriate behaviour had occurred in the workplace.

As already noted, this is only true if no weight is attached to the statements of the complainant, or less weight than is attached to an alleged perpetrator’s denial of the allegations.

In my opinion, the complainant had established a clear prima facie case, taking the complaints jointly and severally, and the investigator provided no explanation as to why he did not regard her evidence as persuasive, why he preferred the evidence of the alleged perpetrator, or why he could not reach any conclusion.

The latter would have been a perfectly valid outcome if he had diligently reviewed the evidence and had not been able to make a decision.

In fairness to the investigator, and in mitigation of this criticism, the refusal of the complainant to engage with the investigation is a factor to which I return. It was unhelpful. In due course she appears to have disengaged from the process altogether, referring the matter to the WRC before it had concluded.

However, all that appears on the face of the report is that he would not make a finding either way because of the lack of corroboration; no reference that I can see was made to the fact that the investigator was relying on documents only.

Further, the investigator seems to have completely overlooked the significance of the repeated nature of the alleged incidents, which clearly adds weight to the complainant’s assertions.

The complainant quit her employment on July 20th, 2024 and made her complaint for the first time on September 25th, some two months later. Quite why she did not raise any aspect of what became her complaint was explored in the course of the hearing.

Under cross examination the complainant stated that she had not known what steps to take, that she had no idea of the policy, etc.

While it is accepted that there was no policy, (and therefore no defence on this point) this explanation is not convincing. She presented well as an articulate complainant, and she had recently finished a third level degree. It was a small business with a young workforce and Mr Meehan in particular painted a picture of a vibrant and friendly relationship and close working relations with the complainant in particular which was not contradicted by her.

And yet, despite a series of incidents running from April to July the complainant at no time thought that she should or could even mention any aspect of this to her employers with whom, according to them, she had this good working relationship.

This is certainly difficult to understand and her defence that she did not do so until over two months after she left because she was not aware of the policy, and more particularly did not know the procedure for doing so is not convincing.

Taking account of the very important element in the legislation directed at prevention, the failure of a party to take appropriate steps is a matter which has to be considered on its merits.

It may well be, in the nature of the activity, that there would be very good reasons why a victim of sexual harassment would not report it. There did not appear to be in this case.

While that does not affect the fact that a breach of the Act has taken place, it is reasonable to consider it in making an award of compensation, as provided for in Section 82 of the Act where reference is made to any award having regard to the circumstances of the case.

Also, while I have been critical above of the conduct of the investigation, the complainant’s initial refusal to attend for interview and then her withdrawal from the process, was not acceptable. (Her refusal of the respondent’s offer of counselling while less relevant on this point was also rather odd.

These factors provide no comfort for the respondent whose liability is not diminished by them, but I propose to take them into account in making my award of compensation. I do not accept the complainant’s reasons for not bringing the conduct of the perpetrator to her employers’ attention and she had an obligation to do so.

The complaint is well founded and I award the complainant €5,000.00.

Complaint CA-00066698-001 is well founded and I award the complainant €5,000.00.

Sexual Harassment.