Labour Court Database __________________________________________________________________________________ File Number: EED883 Case Number: EEO882 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY |
Claim alleging sexual discrimination under Sections 2(a), 3(1) and 3(4) of the Employment Equality Act, 1977.
Recommendation:
ORDER:
6. The Court wishes to draw attention to the fact that in
response to a request from the employer side in this dispute all
the oral evidence was taken on oath. Notwithstanding that, the
Court was presented with directly contradictory evidence which
gave considerable difficulty and concern to the Court in arriving
at its conclusions.
The Court was asked on behalf of the claimant to find:
(a) that her dismissal was directly due to sexual harassment and
was therefore discriminatory in terms of Section 2(a) of the
Act of 1977 and in breach of Sections 3(1) and 3(4) of the
Act,
(b) that the claimant was sexually harassed at work and that this
harassment was sex discrimination within the meaning of the
Act,
(c) to award suitable compensation, and
(d) to direct this employer and all employers that steps should
be taken to prevent sexual harassment from occurring in the
workplace.
(A) No evidence was produced by the claimant to show that the
employer was aware of the alleged sexual harassment or that
this was the reason the claimant was dismissed. The claimant
admitted that she did not at any stage inform her employer or
any other member of the staff of the alleged incidents.
Whilst the Court understands the vulnerability of any
employee who is in a situation such as that alleged by the
claimant the Court nevertheless would have to be satisfied by
the evidence presented that the employer's reason for
dismissing the claimant was the knowledge that the alleged
incidents of harassment took place.
(B) Considerable detail of alleged incidents of sexual harassment
were presented to the Court. These spread over the total
period of the claimant's employment culminating on the day of
the 28th September, 1987. All the incidents were categorically
denied. In the face of completely contradictory evidence,
which on balance did not support the allegations made, the
Court does not find the complainant's claim sustainable.
(C) In view of its findings at A and B the matter of compensation
does not arise.
(D) With regard to the further points raised by the EEA, the
Court reiterates its previous finding in Order No 2 of 1985,
in which it ruled that sexual harassment at work constituted
unlawful discrimination on grounds of sex under the
Employment Equality Act, 1977 and that "freedom from sexual
harassment is a condition of work which an employee of either
sex is entitled to expect". The Court considers that
employers have a duty to ensure their employees enjoy such
working conditions.
(E) With regard to the Company's claim for costs incurred in
attending the hearing, the Court wishes to point out that it
is not empowered to award costs to any party attending Court
hearings.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
EED883 ORDER NO. EEO288
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: A COMPANY
(Represented by the Federated Union of Employers)
and
A WORKER
(Represented by the Employment Equality Agency)
SUBJECT:
1. Claim alleging sexual discrimination under Sections 2(a), 3(1)
and 3(4) of the Employment Equality Act, 1977.
BACKGROUND:
2. The worker concerned was employed in the Company from the 2nd
December, 1986, until the 2nd October, 1987.
The worker claims that during the period of her employment she was
subjected to continuous sexual harassment by the husband of the
Company's managing director who is engaged by the Company to act
as an independent contractor and that her dismissal was directly
attributable to this sexual harassment. These allegations are
vehemently denied by the Company which claims that no sexual
harassment ever took place and that her dismissal was attributable
to the Company's financial and economic circumstances.
3. On the 12th February, 1988, the Employment Equality Agency, on
behalf of the worker, referred her case to the Labour Court under
Section 27 of the Employment Equality Act, 1977. A Court hearing
was held on the 8th April, 1988. The Court acceded to a request
from the Company that all evidence be taken under oath.
WORKER'S ARGUMENTS:
4 1. Sexual harassment at work can be broadly defined as
behaviour of a sexual nature which is unwanted and
unreciprocated and which adversely affects the victim of the
harassment at work. Such behaviour would include repeated,
unwanted and unreciprocated comments, looks, jokes,
suggestions and physical contact of a sexual nature which
creates a stressful or intimidating working environment for
the victim or undermines her job security. In EEO-2-85, the
Labour Court ruled that sexual harassment at work constituted
unlawful discrimination on grounds of sex under the
Employment Equality Act, 1977.
2. During her term of employment, the claimant was
constantly subjected to unwanted verbal and sexual advances
and sexually explicit derogatory statements (details supplied
to the Court).
3. At no time did the worker indicate to the respondent that
she welcomed or approved of his behaviour. On the contrary
she did all in her power to prevent the harassment. At first
she ignored him and then asked him to stop behaving as he
was, and when this failed she threatened to tell his wife who
was the managing director of the Company. His response to
this was that it would be his word against hers and that his
wife would believe him and dismiss her.
4. The worker contends that her working environment was
adversely affected by the continuous sexual harassment she
was subjected to and that this treatment arose because she
was a woman. A man is not subjected to this treatment. She
maintains that she suffered humiliation and loss of
self-esteem as a result of the harassment and that her
working environment became stressful and intimidating. She
therefore contends that she was afforded less favourable
working conditions than her male colleague (named) on the
basis of her sex within the meaning of Section 2(a) and in
contravention of Sections 3(1) and 3(4) of the Employment
Equality Act, 1977. It is submitted that the respondent
Company should therefore be held liable for actions which
created an offensive working environment for its employee and
it is further submitted that the harassed employee in this
case suffered tangible adverse consequences over a period of
months in employment and was finally dismissed due to the
harassment.
5. The worker was given as reason for her dismissal her "bad
attitude" and was told that some of her colleagues had
complained about her. However, she was refused details of
these allegations. The worker does not accept that this was
why she lost her job. She contends that her dismissal from
the Company was directly attributable to the fact that she
was being sexually harassed at work by the husband of the
managing director. She maintains that the managing director
became aware of the harassment and that the obvious
embarrassment and difficulty this situation posed for her led
her to dismiss the claimant as a solution to the problem.
She contends therefore that the dismissal was a
discriminatory one on the grounds of sex within the meaning
of Section 2(a) of the Act and in contravention of Sections
3(1) and 3(4) of the Act.
6. The Company did not operate fair selection procedures.
The claimant never received any complaints regarding her work
and could work on all the machines and yet was let go while a
worker with only three weeks' service was kept on.
7. In the circumstances, the Court is asked for a remedy in
the following terms:-
(a) that her dismissal was directly attributable to the
sexual harassment to which she was subjected and was
therefore a discriminatory dismissal on grounds of sex
in terms of Section 2(a) of the 1977 Act and in breach
of Sections 3(1) and 3(4) of the same Act.
(b) that she was sexually harassed at work at the respondent
Company and that this harassment was sex discrimination
within the meaning of Section 2(a) of the Employment
Equality Act, 1977, in contravention of Sections 3(i)
and 3(ii) of the Act.
(c) to award a sum of money to the claimant in respect of
her injured feelings, stress and loss of self-esteem and
as adequate compensation for the months of distress,
anger, anxiety and humiliation caused by the
respondent's behaviour and by the hostile working
environment afforded to her by the Company.
(d) the Agency, on behalf of the claimant, respectfully
requests the Court to direct this employer and all
employers that steps should be taken to prevent sexual
harassment from occurring by affirmatively raising the
subject in the workplace, expressing disapproval,
developing appropriate sanctions, informing employees of
their rights and developing methods to sensitise all
concerned. Procedures for dealing with sexual
harassment complaints should be drawn up in all
employments and these complaints procedures should be
made clear to all employees of either sex. No such
procedures were available to the claimant in the
Company.
COMPANY'S ARGUMENTS:
5 1. The Company totally refutes all the allegations of sexual
harassment which have been made against it by way of
discriminatory dismissal or against the respondent whom the
allegations are directed at. The Company has fully
investigated these allegations and has found absolutely no
grounds for their making.
2. During the worker's employment the Company employed five
people, a production manager, an office clerk and three
machinists. The factory consists of one upstairs room off
which there is an office and toilet. The room consists of
approximately five machines which are one behind the other, a
workbench which is beside the machines and a cutting table
which is beside the bench. On the other side of the machines
there is a small packing and storage area. The office looks
out on to the entire room. Because of the size of the floor
area people can see and hear everything that happens within
the workplace. Nobody in the workplace ever saw or heard
anything said or done by the respondent to the claimant which
would constitute sexual harassment (details supplied to the
Court).
3. The individual against whom the allegations were made is
an independent contractor who has been engaged by the Company
to travel the 32 counties seeking to locate new accounts for
the Company. He is on the road up to four days per week and
would spend only about five hours a week in the Company's
premises. This would be for the sole purpose of reviewing
orders, making advance calls to customers and carrying out
some occasional maintenance on the machines when requested to
do so by the production manager or the machinists themselves.
He therefore has extremely limited contact with the staff and
any contact he does have with them is as a group and not
individually.
4. He was never at any time alone with the claimant. His
only contact with her would have arisen if she requested him
to come and look at her machine. In the event of such a
situation arising he was in full view of and could be
overheard by all the staff.
5. In her allegations the claimant makes reference to an
alleged incident which took place in or around the 28th
September, 1987. The Court can be provided with evidence
that the person concerned was not in the Company's premises
at any time on that date and was not in fact in the premises
at any time for the remainder of the week.
6. The allegations made are of such an extremely serious and
disturbing nature that the Company can only assume that they
have been brought about through her intense bitterness and
spite arising out of the termination of her employment and
her need to get her own back at the Company. This must
surely be evidenced by the fact that the claimant is only
able to provide the Court with one vague date on which this
alleged sexual harassment occurred and even this date and the
time preceding it and following it can be clearly accounted
for by the respondent.
7. The Company finds it strange that at no time did the
claimant mention or discuss any of the allegations to her
employer or her fellow colleagues, one of whom she confided
in regularly about work and problems she was having at home.
Furthermore, if this alleged harassment was so adversely
affecting her environment, why did she not leave the Company?
8. At the time of recruiting the claimant, the Company was
in a serious loss making situation and had incurred a lot of
bad debts. The situation took on a very optimistic outlook
when in July/August, 1987, the Company secured large orders
from a customer and for a short period the Company was
keeping its head above water. However, in September, the
customer went into receivership which represented a loss in
excess of £6,000 to the Company. This, for a Company with a
turnover of only £11,000 per month, had very serious knock on
effects. On foot of this development, the Company had to
take immediate action in an effort to meet its existing
costs. This involved a number of cutbacks, one of which
regrettably involved reducing the general workforce. The
Company felt that in a more rationalised situation it would
have to have the most efficient and committed employees to
turn the operation around once more and, bearing this in
mind, the criteria adopted by the Company for selection had
particular regard to attitude, performance, flexibility,
quality of work and attendance. On the basis of this
procedure, the claimant was selected for redundancy.
9. The Court is respectfully asked to recommend that:
(a) the claimant's dismissal was fair and reasonable in all
of the circumstances and was without discrimination,
(b) her allegations of sexual harassment against the
respondent are completely without truth or foundation,
(c) that the names of the respondent and his wife be
cleared,
(d) because the Company was forced to close completely to
allow the staff to attend the Court as witnesses, it
should be awarded costs of £2,000 to compensate for lost
orders and sales, etc.
RECOMMENDATION:
ORDER:
6. The Court wishes to draw attention to the fact that in
response to a request from the employer side in this dispute all
the oral evidence was taken on oath. Notwithstanding that, the
Court was presented with directly contradictory evidence which
gave considerable difficulty and concern to the Court in arriving
at its conclusions.
The Court was asked on behalf of the claimant to find:
(a) that her dismissal was directly due to sexual harassment and
was therefore discriminatory in terms of Section 2(a) of the
Act of 1977 and in breach of Sections 3(1) and 3(4) of the
Act,
(b) that the claimant was sexually harassed at work and that this
harassment was sex discrimination within the meaning of the
Act,
(c) to award suitable compensation, and
(d) to direct this employer and all employers that steps should
be taken to prevent sexual harassment from occurring in the
workplace.
(A) No evidence was produced by the claimant to show that the
employer was aware of the alleged sexual harassment or that
this was the reason the claimant was dismissed. The claimant
admitted that she did not at any stage inform her employer or
any other member of the staff of the alleged incidents.
Whilst the Court understands the vulnerability of any
employee who is in a situation such as that alleged by the
claimant the Court nevertheless would have to be satisfied by
the evidence presented that the employer's reason for
dismissing the claimant was the knowledge that the alleged
incidents of harassment took place.
(B) Considerable detail of alleged incidents of sexual harassment
were presented to the Court. These spread over the total
period of the claimant's employment culminating on the day of
the 28th September, 1987. All the incidents were categorically
denied. In the face of completely contradictory evidence,
which on balance did not support the allegations made, the
Court does not find the complainant's claim sustainable.
(C) In view of its findings at A and B the matter of compensation
does not arise.
(D) With regard to the further points raised by the EEA, the
Court reiterates its previous finding in Order No 2 of 1985,
in which it ruled that sexual harassment at work constituted
unlawful discrimination on grounds of sex under the
Employment Equality Act, 1977 and that "freedom from sexual
harassment is a condition of work which an employee of either
sex is entitled to expect". The Court considers that
employers have a duty to ensure their employees enjoy such
working conditions.
(E) With regard to the Company's claim for costs incurred in
attending the hearing, the Court wishes to point out that it
is not empowered to award costs to any party attending Court
hearings.
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Signed on behalf of the Labour Court
May, 1988 _______________
DH/PG Evelyn Owens
Deputy Chairman