Labour Court Database __________________________________________________________________________________ File Number: EED914 Case Number: DEE9211 Section / Act: S27EE Parties: A HOSPITAL - and - A WORKER;MS. ELLIS BARRY B.L. INSTRUCTED;BY THE EMPLOYMENT EQUALITY AGENCY |
1977
Recommendation:
6. The first point the Court wishes to note in making a decision
in this case relates to the persons whom it is alleged sexually
harassed the complainant. These were mentally ill people in a
Psychiatric Hospital and termed long term patients. They do not
therefore fall into the usual category of persons who are accused
of sexual harassment i.e. an Employer or another employee.
It is doubtful that they could have the "mens rea" required to
discriminate against the complainant by sexually harassing her.
They certainly were not in any position of power over her, the
reverse being the more likely case.
The case therefore falls to be dealt with on the question of
whether or not the N.E.H.B. provided a working environment free
from discrimination, and whether in fact a dismissal or
constructive dismissal took place which was in contravention of
Section 3(4) of the Act.
The Court notes that the Board had not adopted any Code of
Practice or issued guidelines to staff as to what the Board's
attitude would be and what action it would take in reported
incidents of sexual harassment. The Court wishes to state that
the existence or absence of such policy statements is a factor
which the Court takes into account in coming to conclusions on
complaints of this nature referred to it for determination. The
Board whilst submitting that there was a reporting procedure in
place agreed that no guidelines etc. had been issued to staff.
The Court has considered the evidence submitted with regard to the
alleged incidents. There were five in all, one in particular
being of a sexual nature whilst the others could be described as
physical or violent in nature. In dealing with these incidents
the Court, as already mentioned, had to take into account the
condition of those alleged to have carried out the assaults. The
Court took evidence from eighteen witnesses in the course of a 3
day hearing and was also given photographic evidence. The Board
did not deny that the incidents may have taken place but disputes
their seriousness.
The complainant gave evidence of reporting early incidents to a
senior officer but this was refuted by witnesses on behalf of the
Board. Overall the Court was presented with conflicting evidence
from the parties. The Court is of the view that on the balance of
probability the incidents did take place. However, the Court is
satisfied that the complainant was never alone in the Ward, a
nursing officer always being present and that the seriousness of
the incidents has been exaggerated.
The Court next examined the evidence as to the final two days when
the complainant was an employee of the Board. It is agreed that
when she applied for a transfer the Supervisor then on duty agreed
to her request. The difficulty arose when she resumed duty on the
Monday and was returned to the "long term" stay ward. On
reporting to the then Supervisor that she had been moved from that
ward (change of roster meant it was a different supervisor) she
was instructed to return to the ward and to renew her complaint
later when the Supervisor had finished her rounds. The evidence
as to what then took place is critical to the claim for
constructive dismissal. The test for constructive dismissal to
succeed is whether or not the employer behaved in a manner towards
an employee or altered a contract between the parties to such an
extent that the employee had no alternative but to terminate
his/her employment. A constructive dismissal under the Employment
Equality Act must have breached Section 3(4) of same. In this
instance it is a matter of an employee finding herself working in an
environment which was not to her satisfaction. While as stated
earlier, there are contradictory statements regarding that
environment, the critical point is the fact that having eventually
conveyed her anxieties to the appropriate personnel the claimant
was not prepared to afford to that personnel any reasonable
opportunity to review the situation or deal with the complaint.
In fact an offer by the respondent to deal with the issue within a
particular time was countered by an explicit statement by the
appellant as to her attitude towards continuing in the employment.
Therefore, even if the Court had considered that the Health Board
had discriminated, which it did not, the complaint of constructive
dismissal must fall.
The Court accordingly does not find that the N.E.H.B. contravened
the Employment Act of 1977 as alleged by the complainant.
Division: Ms Owens Mr Collins Mr Walsh
Text of Document__________________________________________________________________
EED914 DETERMINATION NO. DEE1192
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27,
Parties: A HOSPITAL
(REPRESENTED BY BYRNE COLLINS & MORAN SOLICITORS)
and
A WORKER
(REPRESENTED BY MS. ELLIS BARRY B.L. INSTRUCTED
BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. Alleged dismissal of a worker under Section 27 of the
Employment Equality Act, 1977.
BACKGROUND:
2. The worker concerned commenced employment with the Health
board as a domestic in a hospital which caters for patients with a
range of, psychiatric problems including acute and long stay
patients, and psycho-geriatric patients. Her duties included
general cleaning work (wards toilets, etc.), serving of meals and
some cooking. She ceased employment with the Health board on 11th
December, 1990. The worker claims that during the period of her
employment she was sexually harassed by patients in ward 9. She
further claims that these discriminatory working conditions were
demeaning and distressing to her, leaving her with no option but
to leave her employment.
The Health Board rejected the allegations of sexual harassment and
constructive dismissal and claims that the claimant terminated her
own employment and that it was the second time in a matter of
months that the worker walked out of a job with the Health Board.
On 7th June, 1991 the Employment Equality Agency, (Agency) on
behalf of the worker, referred the complaint to the Labour Court
under Section 27 of the Employment Equality Act, 1977. The Court
investigated the complaint at hearings held on 11th February,
1992, and 25th February, 1992 and 15th April, 1992, during the
course of which submissions on behalf of the worker and the
Hospital were read. In the course of the investigation the Court
also heard the evidence of eighteen witnesses and was also given
photographic evidence.
AGENCY'S ALLEGATIONS:
3. 1. From the commencement of the claimant's employment she
found her working environment an intimidating one. She
experienced it as threatening in a physical and, further, in a
specifically sexual way; this was a consequence of the
behaviour she encountered from patients in ward 9. The sexual
content of much of this behaviour was expressed verbally in
comments made to her, and physically. The claimant also found
her work environment offensive and demeaning.
2. Examples of this type of behaviour encountered include
comments about her physical appearance; abusive language;
patients touching her; physical/sexual aggression. From the
beginning of her employment, for example, a patient, stared at
the claimant throughout the time she spent working in the
ward; he would also frequently stand very close to her or
block her way. The claimant found this all the more
intimidating when she learned that this patient had assaulted
women in the past; she also learned that he had beaten up a
female nurse in the Hospital. Early in her employment, a
nurse said to the claimant that he had noticed the patient
staring at her and warned her to be careful.
3. Another behaviour that the claimant found distressing was
patients masturbating; she experienced this as sexually
threatening, given the generally abusive and aggressive
environment in ward 9. She also found it demeaning to work in
such an environment.
4. In this environment in which she worked, particularly
given the sexual connotation in the behaviour of certain
patients toward her, she felt the physical aggression towards
her to have a sexual aspect even though such aggression may
not have been explicitly sexual at all times.
5. On Monday 10th December, 1990 the claimant spoke to the
assistant chief nursing officer (A.C.N.O.). The claimant
explained to the A.C.N.O. how distressing she found working on
ward 9 and the reasons for this. She also explained that she
was afraid to return to ward 9 because she feared further
sexual agression. The A.C.N.O. was sympathetic, she said she
would discuss the situation with the assistant executive
officer (A.E.O.). Later in the day it was agreed that the
claimant would be re-assigned to ward 1. The A.N.C.O. asked
the claimant to inform the A.N.C.O. on duty the following day
of the changes. On 11th December, 1991, the claimant advised
the A.N.C.O. on duty of the changes. The A.N.C.O. stated
that the A.C.N.O. on duty the previous day had no authority to
re-allocate her. The A.C.N.O. told the claimant to shut-up
and go back to work; that she was 'lucky to have a job'.
When the claimant started to cry the A.C.N.O. told her to go
back to ward 9 or go home. The claimant then spoke to the
A.E.O. and explained she could not go back to ward 9 and did
not want to leave. The A.E.O. allegedly told the claimant
that the A.C.N.O. had the authority to assign her and that
there was nothing he could do. The claimant again spoke to
the A.C.N.O. The A.C.N.O. repeated that the claimant could go
to ward 9 or go home.
(Details of specific incidents of physical/sexual aggression
experienced by the claimant were supplied to the Court).
AGENCY'S ARGUMENTS:
4. 1. Section 2(a) states that for the purposes of the 1977 Act,
discrimination shall be taken to occur:
"Where by reason of his sex a person is treated less
favourably than a person of the other sex".
It is submitted that a man was not and would not be treated in
the same way the claimant was treated. The sexual content of
the physical aggression and generally abusive treatment
directed at the claimant distinguishes it from any aggression
experienced by male staff. The claimant was vulnerable to
abusive treatment in her place of work to which men are not
and would not be vulnerable; further she was sexually
vulnerable in a way men are not and would not be vulnerable.
2. It is submitted that the claimant would not have
experienced the abusive treatment but for her sex. The nature
of the less favourable treatment, as outlined in the Agency's
allegations, suggests that this is so. In Strathclyde
Regional Council v Porcelli (1986 IRLR 134) the Court of
Session held:
"If the form of the unfavourable treatment or any
material part of it which is meted out included a
significant element of a sexual character to which a man
would not be vulnerable, the treatment is on grounds of
the woman's sex..."
Alleged contravention of Section 3
3. The claimant was subjected to abusive and discriminatory
working conditions and this discriminatory treatment of her
ultimately resulted in her dismissal from employment. It is
submitted that the discrimination constituted a contravention
of sections 3(1) and 3(4) of the 1977 Act.
4. The claimant could not work in Ward 9, a working
environment she experienced as demeaning and offensive, and
where she was frightened of further physical/sexual abuse.
Therefore she had no option but to leave her employment on
11th December, 1990.
5. In relation to any compensation which may be awarded, the
Court is asked to consider the level of compensation not only
in relation to what could be meaningful for the claimant but
also in relation to what could constitute a penalty and
deterrent to the employer.
6. The claimant applies to the Court for a remedy in the
following terms:
1. an apology to the claimant
2. the payment to the claimant of such compensation as
the Court considers reasonable in respect of her
discriminatory dismissal and consequent loss of
earnings in respect of the humiliation anxiety and
distress caused to her by her discriminatory working
environment and by her discriminatory dismissal.
3. The award of a sum of money to the claimant.
HEALTH BOARD'S REPLIES:
5. 1. It is specifically denied by the Health Board that the
environment in ward 9 is as described by the claimant. The
claimant was not denied an opportunity to move from ward 9.
The assistant chief nursing officer agreed to facilitate the
claimant when appropriate. What was denied was her strident
demand that she be moved forthwith. The claimant applied for
a job in the Hospital. She was accommodated and placed on a
panel of temporary domestics. These domestics, in turn cover
for permanent domestics who are off work for various reasons,
making it difficult for the employer to transfer the claimant
out of an area were her presence was needed. Where she has a
genuine grievance it would be processed in a reasonable manner
taking into account the restrictions on the employer in
operating the Hospital. This was not done by the claimant.
The manner in which the claimant sought to solve her
difficulty, and the language adopted by her was such as to
remove any merit from this claim. It is submitted that the
environment at the Hospital is the same for both male and
female staff. It is submitted that this environment is not
threatening or sexual in any way. The Court is referred to
Section 13 of the Employment Equality Act, 1977.
2. The claimant's allegations that a patient stared at her
throughout the time she spent working in ward 9 and that this
patient had assaulted women in the past are not accepted,
psychiatrically ill patients such as the patient concerned
will stare at people. This should not be a cause of concern
to the claimant and does not amount to a breach of the 1977
Act. The allegations made about this patient assaulting women
in the past are false.
3. The allegation that the claimant found ward 9 demeaning,
abusive, aggressive and threatening in a physical and sexual
way is specifically denied. An assistant chief nursing
officer with 30 years experience has never experience such
allegations, has never been assaulted and never seen patients
masturbating. This purely subjective comment should not be
entertained by the Court. A claimant with a prediction
towards sensitivity of this nature cannot submit that because
they feel in a certain way their employer is in breach of the
1977 Act and this is specifically recognised in Section 13 of
the Act.
4. None of the incidents alleged to have taken place by the
claimant were observed by the staff who were present when they
were alleged to have occurred. None of the incidents were
reported to anyone in authority with the Health Board.
Specific named patients are incapable of acting as alleged.
It is submitted that these allegations have been concocted or
are grossly exaggerated versions of minor insignificant
everyday behaviour of psychiatrically ill patients.
5. The claimant has alleged in her complaint that she was
dismissed from service with the Hospital. It is this
complaint of dismissal that gives the Court jurisdiction as
opposed to a referral of the matter to an Equality Officer.
In the summary of complaint at points 1 and 2 of the claimants
submission she does not allege that she was dismissed. It is
submitted on behalf of the Health Board that in these clauses
no case is made that the claimant was dismissed and the Court
is requested by the Board to dismiss the complaint firstly on
the basis that no case has been made against the Board under
the 1977 Act and secondly that the Court has no jurisdiction
to entertain any complaint the claimant might have.
6. The Employment Equality Act, 1977 comfers liability on an
employer for the actions of the employees. Under common law
an employer may also be held vicariously liable for the action
of its agent or servant if such person was acting within the
scope of their employment. Vicarious liability is limited to
specific situations such as employer employee and the
liability of a partner in a firm. For example, parents are
not vicariously liable for the torts of their children. See
Laughan -v- Wellingborough School 101 LJKB 513. The whole
concept of vicarious liability is based on the legal maxim
"respondent superior" - let the principal answer. The nexus
between the Health Board and its patients, it is submitted,
does not create a liability in the Health Board. Central to
the concept of vicarious liability is the idea of control. In
order for an employer to be vicariously liable for any person,
they must have control over that person. Control, it is
submitted, extends to being in a position to influence the
actions of a person and if that persons actions offend the
employer or any rule laid down by the employer, the employer's
control extends to meting out a sanction to prevent a
recurrence. Such is not the case with patients of a Health
Board. Nowhere in common law or under the Employment Equality
Act, 1977 is liability conferred on a Health Board for the
actions of patients under its care. On the question of
control the Court is referred to the case of Balgobin -v-
Tower Hamlets London Borough Council 1988 ICR 829 where an
employer was held not liable for the actions of staff where
the employers had proper and adequate supervision generally
and in a situation where the Court stated that it was "very
difficult to see what steps in practical terms the employers
could reasonably have taken to prevent that which occurred
from occurring". It is submitted that the Health Board cannot
prevent actions on the part of psychiatrically ill patients
such as are complained of by the Claimant, if indeed they
occur. The control test, in certain situations, is deemed to
be too restrictive particularly in relation to the employment
of professionals who do not have the status of employee. In
her paper entitled "The Liability of Hospitals in Common Law
Canada" published in the McGill Law Journal in 1981, Ellen
Picard concludes that a Hospital is only liable for the
actions of any person, employee or otherwise, when that person
is an integral part of the Hospital organisation and is making
it possible for the Hospital to fulfil its duties and
obligations to others. This test is known as the organisation
test and is one that is adopted in addition to the control
test referred to above. The Claimant is invited to put before
the Court any precedent she can find to justify a claim that
the Health Board should be liable for any treatment meted out
to the claimant by patients of the Health Board.
7. The claimant also maintains that the treatment meted out
to her is treatment that would not have been meted out to a
man. This is an unsustainable allegation and there is no
basis in the claimant's submission on fact to justify that
submission. The reference to Strathclyde Regional Council v
Porcelli is misleading and irrelevant. The treatment examined
in Porcelli case was sexual harassment of the claimant by a
male colleague for whom the employer was vicariously liable
and who was mentally capable of acting from a sexual motive.
8. The claim that the Health Board has discriminated against
the claimant by asking her to work in conditions in which
others are not requested to work is not correct. Nowhere does
the claimant state that female employees of the Board in
similar employment to the claimant work in different
conditions. A domestic who commenced employment in the
Hospital in November, 1990 has stated that she finds the staff
and the patients in ward 9 helpful and that she is happy to
work on ward 9 if required to do so.
9. To offer any remedy to the claimant would be, to hold that
psychiatrically ill patients are offensive, that it is
insulting and demeaning to ask a person to work with them,
that the Health Board is liable for the actions of
psychiatrically ill patients, that the Health Board is liable
for something about which it knew nothing and that the
claimant was entitled to resign from her employment with the
Health Board in a situation where colleagues of the same sex
firstly have no complaint and secondly are quite happy to do
the same work. It would be flying in the face of reason and
established law for the Court to uphold the complaint of the
claimants herein.
DETERMINATION:
6. The first point the Court wishes to note in making a decision
in this case relates to the persons whom it is alleged sexually
harassed the complainant. These were mentally ill people in a
Psychiatric Hospital and termed long term patients. They do not
therefore fall into the usual category of persons who are accused
of sexual harassment i.e. an Employer or another employee.
It is doubtful that they could have the "mens rea" required to
discriminate against the complainant by sexually harassing her.
They certainly were not in any position of power over her, the
reverse being the more likely case.
The case therefore falls to be dealt with on the question of
whether or not the N.E.H.B. provided a working environment free
from discrimination, and whether in fact a dismissal or
constructive dismissal took place which was in contravention of
Section 3(4) of the Act.
The Court notes that the Board had not adopted any Code of
Practice or issued guidelines to staff as to what the Board's
attitude would be and what action it would take in reported
incidents of sexual harassment. The Court wishes to state that
the existence or absence of such policy statements is a factor
which the Court takes into account in coming to conclusions on
complaints of this nature referred to it for determination. The
Board whilst submitting that there was a reporting procedure in
place agreed that no guidelines etc. had been issued to staff.
The Court has considered the evidence submitted with regard to the
alleged incidents. There were five in all, one in particular
being of a sexual nature whilst the others could be described as
physical or violent in nature. In dealing with these incidents
the Court, as already mentioned, had to take into account the
condition of those alleged to have carried out the assaults. The
Court took evidence from eighteen witnesses in the course of a 3
day hearing and was also given photographic evidence. The Board
did not deny that the incidents may have taken place but disputes
their seriousness.
The complainant gave evidence of reporting early incidents to a
senior officer but this was refuted by witnesses on behalf of the
Board. Overall the Court was presented with conflicting evidence
from the parties. The Court is of the view that on the balance of
probability the incidents did take place. However, the Court is
satisfied that the complainant was never alone in the Ward, a
nursing officer always being present and that the seriousness of
the incidents has been exaggerated.
The Court next examined the evidence as to the final two days when
the complainant was an employee of the Board. It is agreed that
when she applied for a transfer the Supervisor then on duty agreed
to her request. The difficulty arose when she resumed duty on the
Monday and was returned to the "long term" stay ward. On
reporting to the then Supervisor that she had been moved from that
ward (change of roster meant it was a different supervisor) she
was instructed to return to the ward and to renew her complaint
later when the Supervisor had finished her rounds. The evidence
as to what then took place is critical to the claim for
constructive dismissal. The test for constructive dismissal to
succeed is whether or not the employer behaved in a manner towards
an employee or altered a contract between the parties to such an
extent that the employee had no alternative but to terminate
his/her employment. A constructive dismissal under the Employment
Equality Act must have breached Section 3(4) of same. In this
instance it is a matter of an employee finding herself working in an
environment which was not to her satisfaction. While as stated
earlier, there are contradictory statements regarding that
environment, the critical point is the fact that having eventually
conveyed her anxieties to the appropriate personnel the claimant
was not prepared to afford to that personnel any reasonable
opportunity to review the situation or deal with the complaint.
In fact an offer by the respondent to deal with the issue within a
particular time was countered by an explicit statement by the
appellant as to her attitude towards continuing in the employment.
Therefore, even if the Court had considered that the Health Board
had discriminated, which it did not, the complaint of constructive
dismissal must fall.
The Court accordingly does not find that the N.E.H.B. contravened
the Employment Act of 1977 as alleged by the complainant.
~
Signed on behalf of the Labour Court
Evelyn Owens
____________________
4th August, 1992. Deputy Chairman
F.B./J.C.