Labour Court Database __________________________________________________________________________________ File Number: EED9217 Case Number: EEO934 Section / Act: S27EE Parties: ALLIED IRISH BANKS - and - A WORKER;EAMONN LEAHY B.L. INSTRUCTED;BY GORE AND GRIMES SOLICITORS |
Alleged discriminatory dismissal of the worker in contravention of Section 3 of the Employment Equality Act, 1977 in terms of Section 2 of that Act.
Recommendation:
This full Order is available in the Database only.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
EED9217 ORDER NO. EEO493
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: ALLIED IRISH BANKS
(REPRESENTED BY TOM MALLON B.L. INSTRUCTED
BY JAMES MCGILLION, SOLICITOR)
and
A WORKER
(REPRESENTED BY EAMONN LEAHY B.L. INSTRUCTED
BY GORE AND GRIMES SOLICITORS)
SUBJECT:
Alleged discriminatory dismissal of the worker in contravention of
Section 3 of the Employment Equality Act, 1977 in terms of Section
2 of that Act.
BACKGROUND:
1. The worker concerned commenced employment at a South County
Dublin branch of the Bank on the 2nd March, 1992. She was on a
nine month temporary contract of employment. She resigned from
her position on the 5th June, 1992. She claims that during the
period of her employment she was subjected to constant verbal
sexual harassment by an assistant manager (on secondment from the
A.I.B. training centre) who was working at the branch during the
period of an industrial dispute. She claims that she was forced
to resign because of the manner in which she was treated by this
official. The Bank rejected the allegations of sexual harassment
and constructive dismissal.
2. On the 8th June, 1992 the worker's legal representatives
referred the complaint to the Labour Court under Section 27 of the
Employment Equality Act, 1977. The Court investigated the
complaint at hearings which were held on the 13th and 19th
January, 1993, during the course of which submissions were read
and evidence, including oral evidence was presented on behalf of
the respondent and claimant.
WORKER'S ARGUMENTS:
3. 1. The assistant manager (training) arrived at the branch on
the 13th March, 1992. Shortly after his arrival he began
subjecting the claimant to lewd and suggestive remarks and
gestures culminating in sustained verbal abuse which occurred
on the 1st April, 1992 (details supplied to the Court). On
this occasion the claimant was attending to a customer and was
calling up account details at a terminal counter. He asked
her to obtain a file and she responded by saying that she was
unable to obtain the file and that the branch assistant
manager could be of assistance. When the customer left he
subjected the claimant to a barrage of verbal abuse within
earshot of other staff. She was taken aback, shocked,
humiliated and reduce to tears. Subsequently she made a
formal complaint to the Bank by letter dated 8th April, 1992.
2. Prior to this incident the claimant had been subjected to
constant verbal sexual harassment by the assistant manager
(training). He passed innumerable comments of a sexual nature
on numerous occasions during normal working time and at lunch
hour. The branch assistant manager heard some of these
comments but took no action. The claimant agreed that she
partook in normal good natured banter but she was most upset
by the sexual innuendo comments constantly coming from the
assistant manager (training). She was confused and did not
know how to handle a situation instigated by a member of
management against a junior temporary worker. At different
times she tried to laugh the comments off, ignore them, and on
two occasions she responded with retorts of a similar sexual
content. The claimant had worked in a permanent capacity in
the Bank for some years, she had also completed numerous
temporary contracts, but had never before been subjected to
this type of treatment by a member of management.
3. The incident of the 1st April brought matters to a head.
The claimant did participate in the Bank's subsequent
investigation but was completely dissatisfied with the outcome
as there was no acknowledgement by the Bank of sexual
harassment and no apology given to the claimant on this issue.
The worker had no alternative but to resign as the bond of
trust with the Bank was broken. She has suffered severe
trauma through no fault of her own, and is seeking appropriate
compensation for loss of earnings arising from the premature
termination of her nine month contract of employment.
BANK'S ARGUMENTS:
4. 1. The letter of complaint dated 8th April, 1992 submitted by
the worker concerned to management was the first time that the
Bank became aware of the sexual harassment claim. The
incidents complained of were fully investigated in accordance
with the Bank's disciplinary procedure. It was clearly shown
that the assistant manager (training) acted improperly by his
outburst on 1st April and he admitted that his language was
unacceptable. He strenuously rejected the allegation of
sexual harassment but confirmed that he had engaged in a 'bit
of banter' with the claimant which contained sexual innuendoes
but that the conversation was willingly participated in by the
claimant. Following a comprehensive investigation the Bank
took action as follows:
(1) The assistant manager (training) was instructed to
formally apologise in writing to the claimant for his
unacceptable conduct.
(2) A formal written warning was issued to the assistant
manager and placed on his personnel file and he was
spoken to in appropriate terms by his line executive.
(3) The claimant was advised of the Bank's decision by letter
dated 25th May, 1992. She was requested not to
participate in such 'banter' in future.
2. In her letter of 8th April the claimant made no complaint
about the conduct of the Bank and did not indicate that she
sought compensation. She gave no indication of her intention
to resign or claim constructive dismissal. The Bank acted
properly at all times. It conducted a thorough investigation
of the complaints. At no time did it condone the actions of
the assistant manager (training) either on 1st April, 1992 or
prior to that date. The Bank had no knowledge of the
unacceptable behaviour of the assistant manager (training).
When it became aware of this behaviour it acted properly and
ensured that no such behaviour would re-occur. It is
unreasonable for the claimant to demand some further remedy
more than six weeks after the original complaint. By
remaining in the employment and fully participating in the
investigation conducted she gave a clear indication that she
was willing to accept the Bank's procedure and it seems
unreasonable that she would not accept the outcome. It is
unreasonable for the claimant to retrospectively complain of
conduct when she was an active participant in such conduct.
The matters of which she retrospectively complains were
unacceptable behaviour but they did not go so far as to be
regarded as unlawful sexual harassment and in particular they
were not such as to warrant her constructive dismissal.
*ORDER:
5. This complaint was made under Section 27 of the Employment
Equality Act, 1977 (the Act), and involves a dispute that there
was discrimination by the employer contrary to Section 3(4) of the
Act in relation to the dismissal of a worker.
The employer is a bank. The worker was an employee of the bank
from 2nd March, 1992 on a nine-month contract. (The worker had
had previous terms of employment with the bank).
On 1st April, 1992 the worker was subjected to verbal abuse by an
Assistant Manager of the Bank (Mr. H.) to which she took serious
objection and she made a complaint at branch level. She
subsequently made a formal written complaint dated 8th April to
the Personnel Manager. In the course of her complaint, the worker
alleged that she had also been subjected to sexual harassment by
the same Mr. H. She requested the bank to take 'relevant action'
and to record the alleged 'unacceptable behaviour' on Mr. H's
file.
The bank conducted an investigation which concluded with a written
reprimand to Mr. H. and a requirement that he apologise in writing
to the worker. The investigation also concluded that there had
been 'banter' between Mr. H. and the worker which was unacceptable
and both parties were asked not to participate any more in such
'banter'.
The worker was not satisfied with the outcome of the bank's
investigation and terminated her employment.
The Court is asked to determine whether the termination of her
employment by the worker was a constructive dismissal of her by
the bank arising out of sexual harassment amounting to
discrimination. The Court investigated the complaint on 19th
January, 1993 under the provision of Section 26 of the Act.
Written submissions were made by the bank and by the worker and
oral evidence was given by witnesses on behalf of both parties.
The evidence established that Mr. H. had used language and
behaviour of a sexual nature which could have constituted sexual
harassment and therefore discrimination within the meaning of the
Act. It was also established that the worker herself had
participated to some extent in the same behaviour.
There is an obligation on an employer to ensure a working
environment free from sexual harassment. Whether or not Mr. H's
behaviour was a harassment of the worker, the Court believes that
early intervention by Mr. B., an Assistant Manager, who was aware
of what was happening, could have put and end to it. To that
extent, the employer was lax in ensuring a proper working
environment. However, it should be said that the worker herself
made no complaint until 1st April, 1992. On that date she
complained that she had been mistreated after a severe and abusive
reprimand which she had received from Mr. H.
The response of the bank to her complaint was exemplary. A full
investigation was undertaken which involved the interviewing of
all relevant personnel and consideration of written statements
from the parties directly involved and their superior. The
investigation was carried out promptly, thoroughly, and the
redress which the worker sought was applied. Mr. H. was
reprimanded, required to apologise in writing, and the incident
was recorded on his personnel file.
What the worker did not accept was the request from the employer
that she, as well as Mr. H., should in future desist from the type
of conversation that they had participated in prior to 1st April,
1992.
On 22nd May, 1992, the worker notified her employer that she was
terminating her contract from 5th June and putting the matter in
the hands of her solicitors.
The Court cannot be satisfied that the worker had no option but to
leave her employment as a consequence of discrimination. The
complaint had been taken seriously, there had been a full
investigation, and the offending party had been reprimanded. The
worker did not attempt to pursue any appeals procedure within the
bank's grievance procedures structures, but appears to have been
simply annoyed that her own behaviour was the subject of some
comment at the conclusion of the investigation. Neither did the
worker respond to a request to reconsider her decision to leave.
It is reasonable to assume that the bank would have been willing
to consider an arrangement whereby the worker and Mr. H. would not
have been working in the same branch. However, the worker gave
the bank no opportunity to consider this possibility.
The Court is therefore satisfied that the complaint is not
well-founded and that the worker was not constructively dismissed
from her employment as a result of discrimination.
ORDER:
This full Order is available in the Database only.
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Signed on behalf of the Labour Court
Evelyn Owens
_________________
30th April, 1993. Deputy Chairman
T.O'D./J.C.