EMPLOYMENT EQUALITY ACT 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 07/1996
P A R T I E S
A Worker
A N D
1 SUMMARY OF RECOMMENDATION
1.1 I find that the employer did not discriminate against
the claimant contrary to the provisions of the
Employment Equality Act, 1977.
An Employer
File No. EE 32/92
2 DISPUTE
2.1 This case concerns allegations that:
(i) the claimant was subjected to sexual harassment by a male worker in breach of the
Employment Equality Act, 1977 and that
(ii) the employer, in re-assigning the alleged harasser to the same physical area of work as
the claimant following a period of suspension, further discriminated against the
claimant.
2.2 The claimant, accordingly, alleges discrimination by her employer contrary to Sections 2(a)
and 2(c) of the Employment Equality Act, 1977.
3. BACKGROUND
3.1 As outlined at Paragraph 2.1 above, there are two separate allegations in this case. The
background to the allegations at 2.1 (i) is as follows:
3.2 The claimant, who is female, is employed in a clerical capacity and shared an office with
another male worker. She alleges that the male worker maintained a file comprising circa fifty
pornographic pictures over which photographs of her head had been superimposed together
with other drawings and additions. This file was discovered by the claimant in the drawer of
3
the alleged harasser's desk in April, 1992 and resulted in the suspension of the male worker
pending investigation.
3.3 The background to the allegations at 2.1 (ii) above is that, on his return to work following
suspension, the alleged harasser was reassigned to his previous work area despite objections
from the claimant. While his post was no longer situated in the same physical office as the
claimant, it was within the same building. It was possible, therefore, that the claimant and the
alleged harasser would meet in the course of carrying out their duties. The employer in
question has other buildings within the complex.
3.4 On 20th October, 1992 the claim was submitted to the Labour Court which subsequently
referred the case to an Equality Officer for investigation and recommendation.
3.5 Due to the nature of this case the parties expressed a wish to remain anonymous in the interest
of confidentiality. As I will not be referring to either party by name or providing any specific
information or Appendices which would leave no doubt as to the identity of either party, the
detail of this Recommendation may, therefore, appear vague in some areas.
4 SUMMARY OF CLAIMANT'S CASE
4
4.1 The claimant submits that she suffered discrimination contrary to Section 3 of the Employment
Equality Act, 1977 in terms of Sections 2 {a} and 2 {c} of that Act.
Section 2 {a} prohibits discrimination:
"where by reason of his sex a person is treated less favourably then a person of
the other sex."
Section 2 {c} deals with indirect discrimination and states that discrimination shall be taken to
have occurred:
"where because of his sex or marital status a person is obliged to comply with a
requirement.....which is not an essential requirement for such employment...and
in respect of which the proportion of persons of the other sex or (as the case
may be) of a different marital status but of the same sex able to comply is
substantially higher."
4.2 The claimant furnished a detailed statement of the history to this complaint. I do not consider it
necessary for the purpose of this recommendation to append the statement in full. The fact
remains, however, that the file in question was discovered by the claimant in April, 1992
leading to the suspension of the alleged harasser. The discovery of this file caused the claimant
extreme distress proving detrimental to her health on an on-going basis. She has furnished
5
detailed medical evidence of the deterioration in her physical and mental condition since the
incident.
4.3 The claimant submits that the discovery of the file also caused her to reassess previous events
such as:
(i) ever increasing aggressive behaviour by the alleged harasser, i.e. on one occasion she
alleges that he flung the contents of his desk around the room because she had left the
imprint of a coffee cup on what he considered to be an important document; on
another occasion she alleges that he asked her to put a bag over her head as he did
not want to look at her face;
(ii) comments which she alleges the male employee had made previously such as
- "it must be the time of the month"
- "I have just the thing between my legs that will do you good, a whole nine
inches" and
- "I'm feeling horney to-day".
6
4.4 With regard to the second complaint [see Paragraph 2.1 (ii) previous] the claimant maintains
that she requested that the alleged harasser should not be reassigned to his previous work area
because of the physical proximity to her and because of the fact that she was continuing to
suffer from the original incident; this request was refused. The claimant, therefore, alleges that
her employer failed to provide her with a working environment free from sexual harassment.
4.5 In essence, the claimant's complaint is that she suffered sexual harassment at the hands of a
fellow employee in the first instance and that she suffered further sexual harassment through her
employer's failure to reassign the alleged harasser to another post following his suspension.
She feels, therefore, that she has been subjected to a condition of employment (i.e. a working
environment not free of sexual harassment) which is not essential for the performance of the
duties associated with her post and which affects women to a far greater degree than men.
4.6 The claimant, accordingly, is seeking compensation in respect of both complaints outlined
above.
5 SUMMARY OF RESPONDENT'S CASE
5.1 The Employer states that it took the complaint made by the claimant very seriously and,
considering her distress, immediately granted her paid leave of absence from work. On the
same day, April 7, after the claimant's supervisor alerted senior management, a full
investigation was called into the matter.
7
5.2 In relation to the incident itself the claimant told her manager that she had found the folder/file
in the male employee's desk drawer which was locked on the occasion in question. The
reason she gave for going to the desk drawer was that she had telephoned the male employee
on Friday, April 3 at home in connection with a query and during the course of the
conversation he asked whether there was "any gossip, scandal" etc. and then said "make sure
that everything is locked up and closed". The employer states that the claimant said she wasn't
sure what was meant by this reference but thought it may have been a reference to a
confidential fax concerning an Employment Appeals Tribunal decision in another case in which
her manager had been involved. The respondent states that this fax is apparently what the
claimant thought she would find in the desk drawer. Instead of finding a fax, however, she
found a collection of documents, papers and photographs contained in a folder. In particular,
contained in the file were photographs of the claimant's head/face superimposed over
pornographic pictures.
5.3 The employer points out that during its investigation of the incident the alleged harasser said
that the key to his office desk was readily available but that the photographs on file were
normally kept at home; he also wanted to stress that the claimant was the innocent party and
that he bore her no ill will.
5.4 On May 8, 1992 the employer received a letter from the male employee's solicitors requesting
8
reasons for his suspension and calling for his reinstatement. On June 3 the male employee's
solicitors acceded to the College's request that he should see a psychiatrist so as to expedite
the matter and a consultation was set up with a consultant psychiatrist. The alleged harasser
was seen by the consultant psychiatrist on July 15 (the earliest possible appointment) and
subsequently on September 30. The employer eventually received a medical report in early
October.
5.5 On August 5 the male employee's solicitors again wrote to the employer and at that stage the
preliminary views of the consultant psychiatrist were that he could see no reason why the
alleged harasser should not be reinstated in his former occupation; likewise a similar report
came from his G.P.
5.6 The employer stresses that it resisted these pressures to reinstate the alleged harasser as its
own investigation had not been completed but that it simply wishes to demonstrate the
pressure it was under to do so.
5.7 At a meeting on October 27 the employer states that it outlined the facts of the case to the
alleged harasser and his solicitor indicating that the matter was very serious with potential
disciplinary/dismissal consequences. It considered, however, that the appropriate sanction in
this case was a final written warning. While the employer submits that it had considered
dismissal, it decided that such action was not appropriate in the circumstances. The employer
9
states that on November 16 it wrote to the claimant indicating that the alleged harasser would
be returning to his previous position following verbal and written commitments given by him.
5.8 The employer argues that, at that time, it was not in a position to move the male employee into
a different position; it was faced with a very delicate and difficult case and had to deal with
both parties fairly and reasonably in the circumstances. The respondent feels that it took the
appropriate action by carrying out a full and thorough investigation at very senior level to
maintain confidentiality and the whole process took a considerable length of time.
5.9 The employer submits that it did consider dismissal of the alleged harasser; however, in the
final analysis it felt that the circumstances did not necessitate such action given that dismissal is
the option of last resort; a number of factors influenced this decision as follows:
- the fact that the alleged harasser had been suspended for several months, which in
itself is a form of punishment,
- the claimant's stated wish that she would not want to see him dismissed,
- the psychiatric report which advised that he did not pose a threat to the claimant and
was fit to return to work, and finally
10
- the fact that his office drawer was locked at the time that the claimant opened it and
discovered the material in question.
5.10 With regard to the second allegation the employer submits that when the alleged harasser
returned to work on November 16 he continued to work on the second floor of the building.
At that time the claimant was working on the ground floor; this move was made in August at
her request. The employer states that in January 1992 the claimant indicated that she wanted
to move, but not until after exams for which she was preparing were completed in May/June;
this was because she felt her office location at that time was conducive to study. The
respondent points out, therefore, that when the alleged harasser returned to work he was not
placed working beside, or near, the claimant. In August 1993, however, the employer was
given approval for an additional post at an equivalent level to the alleged harasser and this
provided the opportunity to rearrange the professional staffing complement.
5.11 The respondent denies any liability in this matter and specifically denies any question that it was
responsible for any alleged sexual harassment or that further sexual harassment was caused by
assigning the alleged harasser to the same physical area as the claimant, or that it failed to
make its employees aware of the seriousness with which it would treat matters of sexual
harassment. The employer argues that it did, and feels rightly to have done so, assist and help
the claimant but by doing so it is not accepting any level of responsibility, culpability or guilt in
the matter. The employer points out that the first time it knew of this incident was when the
11
claimant made her complaint and that it immediately took the appropriate action in the
circumstances as it had no prior knowledge of harassment or indeed sexual harassment of any
kind. The employer argues therefore, that in all the circumstances of the case, what it did was
more than reasonable and fair to both parties involved.
5.12 For all the above reasons the respondent contends that it acted reasonably and practically in
the circumstances and that it has no liability, either vicariously or otherwise, for the behaviour
of the alleged harasser in this case and, accordingly, neither does the respondent consider that
it has any liability under the 1977 Act.
6. CONCLUSIONS OF EQUALITY OFFICER
6.1 I will firstly address the allegation outlined at Paragraph 2.1 (i) i.e. that the claimant was
subjected to sexual harassment by a male employee in breach of the Employment Equality
Act, 1977.
6.2 There is no disagreement between the parties regarding the facts here. Both parties have seen
the file in question and agree that its discovery caused the claimant acute distress. In the
circumstances I did not see a need for examination of the file by me nor do I intend to pursue
12
the question of it having been locked in the alleged harasser's desk drawer when it was
discovered. The fact remains that the file exists and its discovery has caused the claimant
acute distress resulting in a deterioration in her physical and mental health which has affected
her personal and working life.
6.3 What I must consider, however, is whether the act of discrimination referred to constitutes
discrimination within the meaning of Section 3 of the 1977 Act. In this regard I refer to the
High Court judgement in the case of "The Health board and BC and the Labour Court" on the
question of the employer's vicarious liability, where Mr. Justice Costelloe stated:
"In the absence of express statutory provision the law in this country in relation
to the liability of an employer for the tortuous acts (including statutory torts) of
his employee is perfectly clear - an employer is vicariously liable where the act is
committed by his employee within the scope of his employment."
6.4 It is clear from the above judgement, therefore, that the question to be addressed is whether or
not the male employee was acting within the scope of his employment in maintaining the file in
question and, in my opinion, the answer is clearly negative. I do not consider that the
maintenance of a pornographic file in the alleged harasser's locked desk drawer could possibly
be seen in the context of him acting in the course of his employment and, accordingly, I
consider that the claim must fail on this point. In this regard I refer again to the above
13
mentioned judgement of Mr. Justice Costelloe which went on to state that:
"..... it is important to refer to a provision of the British Sex Discrimination Act,
1975 relating to the liability of employers for acts committed by their employees,
a provision which is, most significantly, absent from the Irish Act of 1977."
6.5 Having found that the initial complaint in regard to sexual harassment fails I must now consider
the allegations outlined at 2.1 (ii), i.e. that the employer, in reassigning the alleged harasser to
the same physical area of work as the claimant, further discriminated against her.
6.6 It is a fact that when the alleged harasser returned to work on 16 November, 1992 he was
reassigned to his post on the 2nd floor of the building. At that time, however, the claimant was
working on the ground floor in an open plan office with approximately six other staff. This
move had been made in August, 1992 on the basis of a request made by the claimant in
January, 1992 that she was seeking a transfer after her exams in May/June of that year. She
wished to remain in her previous post while studying for her exams as the quiet office location
there was suitable for lunchtime and after hours study. Therefore, when the alleged harasser
returned to work, while he was not assigned to exactly the same location as the claimant, he
was within the same building.
6.7 I note that the claimant suffered high levels of anxiety following the reinstatement of the alleged
14
harasser which have been certified as having been caused by her working within the same
building as the male employee. The claimant argues that the nature of the work made regular
encounters with him, sometimes several per day, unavoidable. I consider it is vital, therefore,
to examine the respondent's rebuttal of the allegations on this issue.
6.8 The alleged harasser has since been assigned to a post in another building albeit within the
overall complex. However, this move was not made until late 1993 and, therefore, the
claimant was compelled to work in the same building as he for the better part of a year.
6.9 The alleged harasser holds a senior professional post, one of four within the organisation. The
claimant holds a less senior post, one of twenty one such posts. The employer argues that all
of the posts equivalent to that of the alleged harasser were located within the same building
while there was one post equivalent to the claimant's grade situated outside that building to
which she declined a transfer. At the joint hearing the respondent explained that while an
additional post at senior professional level had been sought, this was not established until late
1993 due to financial constraints. The organisation in question points out that it is funded
through public finance and additional posts are subject to Department of Finance sanction.
However, this new post, when established, was used to relocate the alleged harasser to a
separate building through moving, and thereby inconveniencing, another senior professional
postholder. I accept the employer's argument that it went to great lengths to achieve this
outcome although I consider that it would have been preferable to have achieved relocation of
15
the alleged harasser earlier.
6.10 I also accept, as the employer does, that the claimant has suffered extreme anxiety and stress
as a result of the unfortunate events in this case. However, in view of all the evidence and
circumstances, I am of the view that the employer did everything possible, within reason, to
assist the claimant once the matter was brought to attention. In this regard I note that:
- the claimant's absences through illness associated with this incident have not been
reckoned against her sick leave entitlements,
- the employer has paid all of the claimant's associated medical expenses, and
- the employer has made a contribution in kind towards the claimant's post-graduate
fees to which I referred previously at Paragraph 5.10.
6.11 Taking account of all the evidence before me, therefore, I do not consider that the claimant
suffered discrimination by her employer within the meaning of Section 3 of the Employment
Equality Act, 1977.
16
7. RECOMMENDATION
7.1 In view of my findings at Paragraphs 6.4 and 6.11 previous I find that the respondent did not
discriminate against the claimant contrary to the provisions of the Employment Equality Act,
1977.
___________________
Gary Dixon,
Equality Officer.
13th March, 1996
17