DEE9210

Labour Court Database __________________________________________________________________________________ File Number: AEE9116 Case Number: DEE9210 Section / Act: S21EE Parties: AN EMPLOYER - and - ONE FEMALE EMPLOYEE;A UNION

Subject:
Appeal by the Employer against Equality Officer's Recommendation No. EE22/1991 concerning alleged discrimination against a female employee in terms of Section 2(a) of the Employment Equality Act, 1977 and contrary to Section 3 of the Act.

Recommendation:
This Determination is to long for the Add Field.

Division: Ms Owens Mr Brennan Mr Rorke

Text of Document__________________________________________________________________

AEE9116 DETERMINATION NO. DEE1092

EMPLOYMENT EQUALITY ACT, 1977
SECTION 21

PARTIES: AN EMPLOYER
(Represented by a Solicitor)
and
ONE FEMALE EMPLOYEE
(Represented by a Union)

SUBJECT:

1. Appeal by the Employer against Equality Officer's
Recommendation No. EE22/1991 concerning alleged discrimination
against a female employee in terms of Section 2(a) of the
Employment Equality Act, 1977 and contrary to Section 3 of the
Act.

BACKGROUND:

2. 1. The background to the case is outlined in the Equality
Officer's Recommendation and is attached at Appendix 1.

2. The Employer appealed the above recommendation on 5th
December, 1991 on the following grounds:-

(1) The Employment Equality Officer erred in fact and
in law in concluding that the Claimant was
discriminated against by the Respondent under the
terms of the Employment Equality Act, 1977.

(2) The Employment Equality Officer erred in fact and
in law in holding that the Respondent was
vicariously liable for the actions of its employees
complained of by the Claimant in her complaint to
the Employment Equality officer both at common law
and under the terms of the Employment Equalilty
Act, 1977.

(3) That the complaint of the Claimant did not
constitute a valid claim under nor indicate any
breach of the Employment Equality Act, 1977 by the
Respondent.

(4) The Equality officer erred in law in placing an
onus of disproving the Claimant's claim on the
Respondent or alternatively applied too heavy an
onus of proof as is required in law on the
Respondent.

(5) The Employment Equality Officer erred in fact and
in law in holding that the Respondent has not taken
any or any sufficient steps to protect the Claimant
while in its employment and further erred in
holding that the employer had taken inadequate
steps to prevent the actions complained of by the
Claimant.

(6) The Employment Equality Officer erred in law and in
excess of her jurisdiction under the employment
Equality Act, 1977 in recommending that the
Claimant be paid the sum of £7,000.00 in
compensation for financial loss including distress.

3. The Court heard the appeal in Portlaoise on 14th May, 1992.
The Union made a written submission which it expanded on
orally. The Employer made an oral submission and quoted
legal precedence cases (details supplied to the Court).

UNION'S CASE:

4. 1. The incident concerned constituted discrimination
against the claimant on the basis of her sex. She was
treated less favourably than a person of the other sex. This
discriminatory treatment is contrary to Section (2)a of the
Act, and in breach of Section 3 of the Act. The Employer
contravened Section 3(4) because the employer has
responsibility for the working conditions of the claimant and
the incident occurred in the course of the claimant's
employment.

2. The Union is aware that the Employer issued guidelines
in relation to sexual harassment to supervisory staff.
However, ordinary staff members were not given copies, were
not spoken to, and were not made aware of such guidelines.
Staff were unaware of the procedures to follow if they were
victims of sexual harassment. The onus is on the Employer to
make its employees aware of what is acceptable in the working
environment. The Employer failed to take pro-active steps to
avert sexual harassment in the work place.

3. The Equality Officer recommended an amount of £7,000
compensation in respect of loss of wages, medical and legal
costs, and for distress suffered as a result of the
discriminations. The ordeal suffered as a result of the
incident concerned and its repressive effects demand a higher
level of compensation. The Union requests the Court to
consider compensation in excess of £10,000 as an appropriate
remedy in the circumstances.

EMPLOYER'S CASE:

5. 1. The Employer did not discriminate against the worker
contrary to the provisions of the Employment Equality Act,
1977. The incident which occurred was not the responsibility
of the Employer. The perpetrators of the incident acted
outside of their duties. In circumstances where employees do
something which they are not employed to do then the employer
is not liable.

2. The Employer regrets that the incident took place and
has endeavoured to be supportive of the worker. After the
incident took place the Employer took action which resulted
in the dismissal of one worker and the suspension of the
other worker invovled. This indicates that the Employer took
a very serious view of the incident and that it does not
tolerate or condone incidents of this nature.

3. The Employer has policy guidelines for dealing with
sexual harassment which were issued to supervisors. The
Employer cannot deal with complaints of sexual harassment
unless the matter is brought to the Employer's attention or
to the attention of supervisory staff. In this case no
complaint was made to the superviosory staff until the
incident concerned occurred. The Employer cannot be blamed
for something it was not aware of and did not condone.

4. The Employment Equality Officer erred in fact and in law
in finding that the Employer was vicariously liable for the
actions of its employees who sexually harassed the worker
concerned. The discrimination by the two male workers did
not constitute a contravention by the Employer of Section 3
of the Act.

5. The Equality officer erred in recommending £7,000
compensation for financial loss and for distress. It is not
within the powere of an Equality Officer to award
compensation for mental distress suffered by a worker.
*DETERMINATION:

6. The Court was asked to consider 6 points of appeal made by
the Board against the recommendation of the Equality Officer.

These 6 points can in fact be condensed into two points:-

(1) Whether the Employer is responsible for the action of
its employees under the provisions of Sections 3(1) &
3(4) of the Act of 1977.

(2) The jurisdiction of an Equality Officer in relation to
rewarding compensation for distress under the terms of
the said Act.
The Court gave careful consideration to the submissions, written
and oral made by the parties to the dispute.

It was accepted on both sides that the claimant had been the
victim of a most serious case of sexual harassment, the persons
responsible being two male employees.

The main issue in this appeal was whether the Board shold be held
responsible for the actions of these employees under the
provisions of Section 3(1) & (4) of the Employment Equality At
1977. On the basis of the submissions made, that issue in turn
revolved around the question of whether the Board had taken all
reasonable steps to prevent the actions on which the complaint was
based.

The Board submitted that they had taken such steps in that they
had acquainted supervisory staff with the Board's policy and that
guidelines concerning discrimination had been communicated to top
management. However, it was agreed by the parties that the Board
did not take any steps to inform ordinary members of staff of
these guidelines.

Thus the claimant was not informed of the Board's policy and was
not aware of what action or procedures she could pursue when the
first acts of harassment took place. The final act was of such a
serious nature, and so obviously outside the bounds of any decent
behaviour, that she was shocked into taking action.

The Court appreciates that the Board's behaviour, once the
incidents were reported, was exemplary.

The Court wishes to state that, in dealing with cases of sexual
harassment, it does and will take into account steps taken by
employers to eliminate and prevent sexual harassment in the work
place. Whilst accepting that an employer cannot guarantee total
prevention of harassment, the Court will look for and take note of
what steps have been taken. The adoption of a Code of Practice,
the adoption of a policy statement on the prevention of sexual
harassment, the existence of guidelines as to how all staff should
behave, and theestablishment of clear grievance procedures, all
constitute the kind of "reasonable steps" which employers should
adopt and which will be accepted by the Court as evidence of teh
employer's bona fides in this type of dispute. Clearly,
information about steps must be widely circulated in the place of
work and information on the Employer's attitude to acts of sexual
harassment made available to all staff.

In this case the Court does not consider that the action of the
Board in instructuing supervisors and top management as to how
complaints of this nature should be dealt with constituted
"reasonable steps".

The Court agrees with the findings of the Equality Officer that
the claimant was mistreated by the two male employees; that this
treatment was sexually offensive and was a form of harassment
directly related to the claimant's sex and constituted less
favourable treatement of her because of her sex. In accordnce
with previous Labour Court decisions (Order No. 2 of 1985) the
Court finds that the claimant was discriminated against in terms
of Section 2(a) of the Act of 1977.

In Order No. 2/1988 the Court stated that it considered that
Employers have a duty to ensure that employees enjoy working
conditions free from sexual harassment.

The Court agrees with the Equality Officer that it is reasonable
to interpret Section 3 of the Act of 1977 in a manner which is
consistent with the overall purpose of the Act. The Court has
ante set out its views on the reasonable steps employers should
take and has concluded that in this case these steps have not been
taken.

The Court accordingly upholds the Equality Officer's conclusions
as set out in Para 27 of report No. EE22/1991.

The further point of appeal to be addressed refers to the
jurisdiction of the Equality Officer or Court to award
compensation in relation to distress. Section 22 of the Act
states, inter alia,
"A determination of the Court under Section 21 shall do one
or more of the following:-..........

(c) Award compensation in accordance with this Act.
Section 23 of the said Act limits the amount of compensation to a
maximum of 104 weeks' remuneration at the rate the person
concerned was receiving at the date of the discrimination. The
Act makes no further reference to compensation. The question of
awarding compensation was the subject of an appeal to the High
Court by Cork Corporation in th ecase Lord Mayor Aldermen and
Burgesses of Cork and Lucie Cahill and Others. The Hon. Mr.
Justice Murphy delivered judgement on 22nd May 1987. The Court
considers it advisable to quote from this judgement:

"The Labour Court allowed compensation under two headings, namely,

1. Compensation for discriminatory practice between 1977
and the 16th of December 1983 in a sum equalled to 2.64
hours pay per week for each and every of the
Respondents.

2. A sum of £200.00 per Respondent in respect of distress.

The main challenge by the appellants to the amount of the
compensation awarded by the Labour Court related to the extent of
the period in respect of which the same was granted. It was
argued by the Appellants that having regard to the six months'
limitation prescribed by section 19(5) aforesaid for the reference
of a claim alleging discrimination that this should be the
operative period in respect of which compensation, where payable,
should be allowed. Alternatively it was suggested that
compensation calculated by reference to remuneration or
under-payments thereof should be limited to a three-year period by
analogy with the provisions contained in section 8(5) of the
Anti-Discrimination (Pay) Act 1977. Whilst I accept that these
may be useful factors for the Labour Court to bear in mind in
assessing commpensation there is no requirement of law that they
should have regard to those limitations less still any provision
limiting the compensation by reference to either such period. The
power and the duty to assess compensation is dealt with in section
23 of the Employment Equality Act, 1977 which provides as
follows:-

"23 (1) Compensation under section 22 shall
be of such amount as the Court
thinks reasonable having regard to
all the circumstances of the case
but shall not in any case exceed 104
weeks' remuneration at the rate the
person concerned was receiving at
the date of the discrimination or
would have received but for the
discrimination".

Subject to that overriding financial limit the Labour Court is
given a wide discretion to calculate the appropriate amount having
taken into account all the circumstances of the case. Clearly
delay in in referring a dispute - and in particular delay by a
party conscious of his or her rights - would be one relevant
circumstance. The extent to which the discrimination is the
actual cause of financial loss is clearly another. There are many
more. But it does not seem to me that I should attempt in any way
to circumscribe the wide discretion conferred on the Labour Court
by the legislature or to attempt to identify the material
circumstance to which regard should be had. Moreover, in the
adversarial proceedings before the Labour Court the duty will
primarily fall on the parties themselves to adduce evidence with
regard to all relevant matters.

Insofar as the present appeal is concerned it is sufficient to say
that ith has not been shown that the Labour Court erred in law in
computing the amount of the compensation awarded to the
Respondents."

In the light of the above judgement and taking all aspects of this
particular case into account in particular the very serious nature
of the sexual harassment the Court considered that the maximum
compensation allowable (i.e. 104 weeks' remuneration) was
warranted. However, allowing for the responsible manner in which
the Board acted when it became aware of the incident the Court is
of the view that the amount of compensation should be reduced by
50%. The Court accordingly determines that the complainant be
paid a sum equal to 52 times her weekly rate of remuneration at
the time of the incident.

DETERMINATION:
This Determination is to long for the Add Field.
~


Signed on behalf of the Laobur Court

Evelyn Owens
13th August,1992 ------------------------------------
A.S./U.S. Deputy Chairman