Complainant

Respondent

Anonymised Parties

A female complainant

The Health Service Executive

Representatives

  Self-represented

 Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00067986-001

10/12/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness for the respondent undertook to give evidence under affirmation.  Although offered, the parties chose not to cross examine the witnesses.

I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

The complainant lodged an employment equality case with the WRC on 10 December 2024. The case was lodged on the basis of gender and is a sexual harassment complaint. The complainant works as a pharmacist in hospital setting and noted that the Senior Pharmacist was involved in series of incidents that she considers to be sexual harassment.  She submitted that these culminated in a situation where he showed her a picture of naked male genitalia while they were alone in the pharmacy office together. This took place on 20 June 2024 said she lodged a complaint of sexual harassment the following Monday when her line manager returned.

The complainant submitted that the harasser admitted to showing the photograph to her in writing subsequently and apologised for his behaviour. The complainant submitted that the harasser was left working in the workplace for the intervening period of more than a year while she has had to move elsewhere to continue working and has had to work around the Senior Pharmacist. She stated that she feels ostracised as she is not in a position to take part in office meetings, as the Senior Pharmacist remains in place and for 70% of her working week, she is not able to use the dispensary facilities where he works.

The complainant submitted that originally, she had no difficulties with the Senior Pharmacist but stated that in May 2023 she was in the process of viewing or purchasing house.  She was discussing the location of the house with colleagues, and he showed her in Google Maps where his house was and remarked that “he would be able to see her in the shower from his house”. She also submitted that in January 2024, he showed her a picture of two similar women and asked her which one she thought was prettier.  He then zoomed in on the one with larger breasts and said he preferred this one because of them. She also submitted that later in January 2024 she was attempting to leave the dispensary through the main pharmacy door, but he allowed a colleague to pass and then would not permit her to pass through.

Further incidents occurred in February March and April 2024. She submitted that she did not make a complaint until the incident of June 2024.

When giving further evidence the complainant stated that the Senior Pharmacist was a man in his late 40’s and has worked in the hospital since 2007.  She noted that she sent an email to HR seeking a formal process of investigation and outlined seven separate incidents.  She stated that the interview around her complaint took place over eight months late in February 2025.  She stated that she has had to continually deal with this man coming into her office, even he was told not to by HR.  She stated that she went off on stress leave on two occasions as she encountered the Senior Pharmacist too many times.

The complainant stated that although she submitted a complaint of sexual harassment to the respondent, nothing was done about her abuser’s behaviour for more than a year.  She confirmed that although she was moved location several times, the Senior Pharmacist continued in the workplace as he had previously done with no action taken against him in respect of the complaints.

The respondent noted that it must give the Senior Pharmacist due process and that he was entitled to natural justice and fairness.  It was submitted that an investigation took place and that a report recently issued in respect of the complaint.

The respondent submitted that safety measures were put in place to limit the interactions between the Senior Pharmacist and the complainant.  The respondent also noted that the investigation found in favour of the complainant and that the matter had been recently referred under a stage 4 disciplinary matter.  It was accepted that the respondent did not do enough to protect the complainant.

The witness for the respondent was the Pharmacy Executive Manager.  She stated that the complainant made a verbal complaint which was followed up with a written complaint.  She offered to meet with both parties but his was declined by the complainant.  She stated that HR was in a state of flux and her understanding was that the complaint was forwarded to central screening on 2 July.

The witness stated that the Senior Pharmacist was given 10 days up to 19 July to respond to the allegations.  However, the witness was on holidays until 23 July and informed the General Manager on the complaint upon her return on 25 July.  It was agreed that greater protective measures were needed and although the complainant felt that the measures were punitive towards her, they were well intentioned.

The Senior Pharmacist was advised of his rights and the two were never rostered together.  She stated that she met with the Senior Pharmacist a number of times arising from his repeated breaches of the complainant’s personal space.  When asked whether consideration was given to putting the Senior Pharmacist on suspension on full pay, she respondent “not that I’m aware of”.

The complainant came across as credible at all stages.  She responded to what were difficult questions of fact put to her by the adjudicator in a comprehensive and informative manner, even when the detail may have been upsetting. No cross examination took place and the respondent representative stated that there were not questioning the complainant’s credibility or version of events. 

Although neither party submitted the report of the investigation into these matters, the complainant outlined that the report upheld two of her complaints, the two which the Senior Pharmacist accepted occurred.  The other incidents were not upheld as the investigation was not able to corroborate her version of events.  As I have found the complainant to be credible, and in the absence of any evidence to the contrary, I find that that all the incidents described by the complainant took place.  These included, but are not limited to, the showing of graphic images of male genitalia to the complainant, the comment about being able to see her in the shower from his house, the comment by the Senior Pharmacist that her “lips looked nice today, what did you do?”.  Additional incidents and behaviours were detailed by the complainant in the comprehensive timeline document that she submitted in December 2024 along with the WRC complaint form.  This was furnished to the respondent in December 2024 in accordance with WRC policy.

 I also find that the Senior Pharmacist repeatedly broke the safeguarding direction put in place by the respondent.  This was confirmed by the respondent’s witness who confirmed that she had to speak to the man repeatedly.   Accordingly, there is no dispute that the Senior Pharmacist repeatedly breached the safeguarding  measures put in place

The complainant stated that the Senior Pharmacist admitted to two of the incidents after about two weeks and submitted an email from him to the Chief Pharmacist wherein he accepts that the incidents happened.  In that email the Senior Pharmacist, noting that it was just “office banter”, noting that it “fell well wide of the mark and would be entirely substandard of workplace etiquette expected of a HSE employee”.  He then formally apologised for the “intimidating and offensive behaviour”.

Section 85A of the Act deals with burden of proof.  Section 85A(1) states that “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 complainant has amply established the facts from which it may be presumed that there has been discrimination against her.  It falls to the respondent to prove the contrary.

The respondent did not challenge the complainant’s version of events and affirmed many of the details given by her including the timeline that it took to deal with matters.  The complainant noted that there appears to have been no unusual delay in dealing with matters at a local level.  However, the fact remains that the Senior Pharmacist was left in place for more than a year while the complainant was shuffled around in respect of her work environment and the Senior Pharmacist repeatedly sought her out during that period.

When the respondent was asked whether the Senior Pharmacist was suspended with full pay while the matter was investigated, the respondent noted that he was not as he had to be given due process and that he was entitled to natural justice and fairness.  Where, one might ask, was the complainant’s entitlement to due process and natural justice and fairness and the right to a safe working environment?

Section 15 of the Act deals with liability of Employers and Principals and states as follows:

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.

The complainant took a complaint of sexual harassment against the Senior Pharmacist.  Even when he admitted to at least two of the incidents, he was left in place for more than 12 months.  The Act states that 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.  The respondent in this case wholly failed to take steps to prevent the Senior Pharmacist from continuing to sexually harass the complainant.  He repeatedly inserted himself into what should have been a safe environment for the complainant and the response by the employer was to tell him off, even when these repeated actions drove the complainant to take stress related sick leave. 

I note that during her evidence the complainant indicated that it was her understanding that there were other complaints against the Senior Pharmacist.  Although alternative complainants against the alleged harasser are not the subject of this complaint, this assertion was not disputed nor objected to by the respondent.  The complainant noted that the HSE policies do not make reporting sexual harassment easy, noting that she was not able to get a support contact person during the year-long ordeal.  She noted that the policy is difficult on victims but makes it easy for alleged harassers.  Having considered the submissions and oral evidence of both parties, I find it difficult to conclude otherwise.

Up to the date of the hearing, 13 months after reporting sexual harassment against a work colleague, no disciplinary action had been taken against the alleged offender.  The respondent submitted that in his email of 9 July, the Senior Pharmacist said that he offended, but did not admit to showing the photo.  However, he did not deny it either.  Nothing has been presented in the course of the hearing and investigation to call the complainant’s credibility into question. It appears that there is no reason as to why she was not believed.

Having regard to the policy and to the delay in the investigating the sexual harassment complaint, I find that the respondent has failed the complainant.  Having regard to the foregoing I find that the complainant has established that she was sexually harassed by a work colleague.  A reasonable employer would have placed the Manager on paid leave while matters were being investigated, particularly in light of his email of 9 July 2024.  This inaction and delay served to deny the complainant an effective remedy for the sexual harassment she was subjected to.  I find that the employer did not take such steps as were reasonably practicable to safeguard the complainant and therefore the respondent cannot avail of any defence in respect of the harassment.  Accordingly, I find that the complainant was discriminated against, contrary to the Employment Equality Act, 1998.

Although the respondent did initiate an investigation, the investigation took longer than a year to conclude during which time the Senior Pharmacist repeatedly breached the safeguarding measures put in place, seemingly whenever he so wished.  Effectively no action was taken to remove the harasser from the complainant’s work environment.  I do accept however that annual leave and staffing changes did impact upon the investigation, but the fact remains that it took more than a year to conclude the investigation, and no disciplinary sanction was imposed during that time.

Section 82 of the Act deals with the matter of redress and Section 82(1) states as follows:

82.—(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified;

(f) an order for re-instatement or re-engagement, with or without an order for compensation.

Section 82(4) states:

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000. 

This case outlines a series of events that only served to benefit the harasser, the complainant’s rights seem to have been forgotten, and the respondent only seems to have considered the accused harasser’s rights.  The only practical actions taken by the respondent during a more than 12-month period seem to have been to move the complainant repeatedly, the harasser seems not to have been ‘put out’ at all, leading him to infringe repeatedly of the minimal steps taken by the respondent to try to safeguard the complainant.  With that in mind, it is important that any award should serve the purpose of dissuading a potential harasser, of persuading an employer to comply with the legislation and should be proportionate to the infringement and breach of the Act. 

Having regard to the circumstances of this complaint, I award the complainant compensation equivalent to 52 weeks remuneration, that is €86,717 for the effects of the discrimination which I consider to be just and equitable in all the circumstances.

In addition, in accordance with Section 82(1)(e), I also order the respondent to disregard the two periods of sick leave from work related stress taken by the complainant, from 25 July 2024 until 19 August 2024 and the week taken from 3 March 2025, for the purposes of annual and multi-annual sick leave calculation.

Given the nature of this complaint, I am satisfied that it is appropriate to anonymise the name of the complainant in this case.

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was discriminated against and that the Act was contravened.  In the circumstances I award the complainant compensation equivalent to 52 weeks remuneration, that is €86,717 for the effects of the discrimination which I consider to be just and equitable in all the circumstances.

In addition, in accordance with Section 82(1)(e), I also order the respondent to disregard the two periods of sick leave for work related stress taken by the complainant from 25 July 2024 until 19 August 2024 and the week taken from 3 March 2025 for the purposes of annual and multi-annual sick leave calculation.

Employment Equality – Sexual Harassment – discrimination established - respondent cannot rely on defences due to delay and inaction – award of compensation – order to disregard sick leave.