FULL RECOMMENDATION
SECTION 27, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : NEW ERA PACKAGING (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MS MARY HONAN B.L. O'MARA GERAGHTY MCCOURT, SOLICITORS & GRAPHICAL MEDIA & PRINTING UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Alleged constructive dismissal under Sections 26(1) & 27 of the Employment Equality Act, 1977.
BACKGROUND:
2. The claimant commenced work with the Company on the 27th November, 1989. She was employed as an invoice clerk. Her employment ceased on the 19th December, 1997. The worker claims that she was the focus of sexual harassment by various male members of staff. She alleges that she was obliged to work in an abusive environment characterised by sexually offensive remarks and innuendo on a daily basis. The worker claims that she was constructively dismissed.
The Company rejects the allegations that the complainant was subjected to continuous sexual harassment or that she was left with no option but to resign her post.
On the 27th April, 1998, the claimant, through her representatives, referred the complaint to the Labour Court under Section 27 of the Employment Equality Act, 1977. The Court investigated the complaint on the 24th of November, 2000 and the 1st December, 2000.
WORKER'S ARGUMENTS:
3. 1. The worker had to endure conditions of employment which were hostile to women.
2. Despite a number of complaints to management concerning her working environment, management failed to take any action to remedy the situation.
3. The hostile environment in the company flourished because of the failure of management to take effective action.
4. There was no sexual harassment policy in place to protect workers.
5. The situation in the workplace was exacerbated by the active contribution of management to that environment.
COMPANY'S ARGUMENTS:
4. 1. The Company rejects the allegation that the complainant was subjected to continuous sexual harassment or that she was left with no option but to resign.
2. The employee could have made her complaints to senior management at any time but she chose not to do so.
3. Some of the incidents referred to did not occur in the manner as alleged by the complainant.
4. No complaint was made to management by the complainant's trade union that she was being subjected to sexual harassment at work.
ORDER:
Prelimnary point - jurisdiction
It is the claimant's case that she suffered ongoing sexual harassment at work as a result of which she had no reasonable alternative but to leave her employment. She claims that in these circumstances her resignation on 19thDecember 1997 amounted to a discriminatory constructive dismissal in contravention of Section 3(4) of the Employment Equality Act 1977. The Claimant seeks redress pursuant to Section 26/ 27 of the Act.
The claimant had previously referred a complaint to the Court pursuant to Section 19(1) of the Act alleging that she was subjected to discriminatory working conditions by reason of the same incidents of sexual harassment upon which she relies in the instant claim. That complaint was investigated by an Equality Officer who issued Recommendation EE 45/1999, dated 8thDecember 1999.
In the earlier case, as in the present claim, the claimant relied on nine specific incidents which allegedly constituted sexual harassment. The Equality Officer found that in respect of all but one of the incidents alleged the claimant's case had not been made out. In respect of the one incident proved the Equality Officer recommended that the claimant receive compensation in the amount of £3,000. That incident occurred in November 1994. The Respondent subsequently entered an appeal against the Recommendation of the Equality Officer. The claimant cross appealed for a determination that the Recommendation had not been implemented. The Respondent's appeal was then withdrawn prior to the hearing in the present case.
The Respondent claimed that in appealing for implementation of the Equality Officer's Recommendation the claimant had accepted the veracity of the findings of fact on which the Recommendation was based. It was submitted that the claimant is bound by the findings of fact made by the Equality Officer and should not be entitled to adduce evidence in her present claim which contradicts those findings. Thus the respondent submitted that since the only incident of sexual harassment which the claimant can assert occurred some three years before her resignation, it cannot avail her claim of constructive dismissal.
Council for the Claimant accepted that the evidence upon which she relies in the present case is the same as that adduced before the Equality Officer. She submitted, however, that the claimant is not estopped from relying on the incidents to which this evidence relates by the doctrine of res judicata because (a) the findings of the Equality Officer have no binding legal effect and (b) the complaint in the present case is different in substance to that investigated by the Equality Officer. In support of that submission the Court was referred to the Judgement of the High Court inRe. National Irish Bank PLC No. 2 [1999] IR 3.
The Court accepts that the claimant's submission on this point is correct and that no issue of estoppel arises in this case. Firstly, while the claimant may have indicated her acceptance of the findings of the Equality Officer by seeking its implementation, this did not prejudice the Respondent in any way. Secondly, even if the Recommendation of the Equality Officer had binding legal effect, which it does not, the previous complaint was in respect of discriminatory working conditions whereas the present complaint is in respect of dismissal. In these circumstances the Court is satisfied that the Claimant is not bound in the present case by the findings of fact made by the Equality Officer.
The Evidence.
In evidence the Claimant told the Court that throughout her period of employment with the respondent she was obliged to work in an environment which was hostile to women. She described a series of incidents in which male employees engaged in inappropriate conduct of a sexual nature in the course of their employment. In some instances this involved unwanted physical contact with her. More frequently it took the form of sexually explicit comment and expression. The Claimant said that she found this conduct demeaning and offensive. In consequence she suffered from stress for which she was treated by her doctor. She said that she was finally advised by the doctor to seek alternative employment so as to remove herself from the source of the stress. The Claimant named the individuals who, she claimed, had engaged in the conduct complained of, some of whom held positions in management.
The Claimant recalled one incident in 1994 in which she complained to the Company Secretary about what she regarded as a particularly offensive sexually explicit comment made to her by an office manager. While the individual concerned did apologise in writing, in terms which she found inadequate, the claimant demanded a written apology from her employer concerning the remark. The Company Secretary told her that the matter was personal between her and the office manager and he declined to provide the apology requested. The claimant said that she was not aware of any action having been taken by the Respondent in response to her complaint. She recounted a number of further objectionable incidents of a sexual nature perpetrated on her by other named male members of staff which occurred after she had made this complaint. She said that apart from the meeting with the company Secretary in 1994, she made it clear on several occasions that the conduct to which she was being subjected was unacceptable.
The Complainant told the Court that as her complaints went unheeded, she formed the view that the work environment was unlikely to change and that she would have no alternative but to resign. She said that she had become completely demoralised and had lost confidence in her own abilities. It took her several months to make the effort to find another job. She eventually obtained alternative employment with a hair and beauty salon, in December 1997 and resigned her employment with the Respondent. Her pay in the new employment was £44 per week less that with the Respondent.
Three female former colleagues of the Claimant and her husband, who also worked for the Respondent, gave evidence which supported her account of the material events. The Claimant's doctor also gave evidence of having treated her for stress over a number of years. He said that this was exacerbating a pre-existing medical condition from which the Claimant suffered. The doctor said that in the course of professional consultations the Claimant had told him of various incidents of sexual harassment which she had experienced at work and he attributed her stress to these occurrences. He confirmed that he had professionally advised the Claimant to obtain alternative employment and remove herself from the source of the stress.
A total of seven witnesses gave evidence on behalf of the Respondent in rebuttal of that given on behalf of the claimant, both as regard the working environment and the specific incidents to which the claimant had referred. These witnesses characterised the work environment as intense and pressurised. While they accepted that some employees may at times have responded to this atmosphere by using loud and robust language, they emphatically denied that the use of sexually explicit comment or expression was a regular feature of the workplace. With regard to the particular incidents alleged to constitute sexual harassment, the import of the evidence given by these witnesses was either that the incidents never happened or that they were innocent occurrences which were misrepresented by the claimant.
There was however some inconsistency in the evidence of these witnesses. One witness, Mr D., said that employees frequently engaged in “banter”. The witness clarified this expression as referring to sexually explicit comment.
The Joint Managing Director (who was then Secretary of the Company) gave evidence in relation to the incident of November 1994 as did the then Office Manager. The Joint Managing Director confirmed that the claimant had asked for a written apology in relation to the incident involving the Office Manager. He said that he then took the view that the incident was a private matter between the individuals concerned and the question of an apology by the company did not arise, a position which he now accepts was erroneous. Nonetheless he subsequently interviewed the Office Manager in relation to the matter and instructed him to apologise to the Claimant. He also gave the Office Manager a formal warning in relation to the incident.
In his evidence the Office Manager said that the remark in question was an innocent one, which had been misconstrued by the claimant. While he felt aggrieved at having received a formal warning in relation to the incident he did not take the mater further.
Conclusions of the Court.
There is a sharp conflict in the evidence adduced by and on behalf of the Claimant and that adduced on behalf of the Respondent in relation to the material aspects of this case. Having considered the evidence as a whole, the Court has concluded, on the balance of probabilities, that the recollections of the Claimant and those witnesses who gave evidence on her behalf is to be preferred.
Accordingly, the Court is satisfied as a matter of fact that the Claimant was recurrently subjected by her male colleagues to inappropriate conduct, including comments and expressions, of a sexually explicit nature amounting to sexual harassment. This offended against the Claimant's dignity as a woman and caused her anxiety and stress. The Court is further satisfied that the Respondent knew or ought to have known that this was occurring and failed to take any or adequate action to protect the Claimant.
In that regard the response of the then Company Secretary to the one incident admitted (that of November 1994) is instructive. As is evident from the terms of the letter sent to the Office Manager, the Company Secretary fully appreciated the gravity of what had occurred. Nonetheless he informed the claimant that the matter was between her and the Office Manager and was not the responsibility of the respondent. While he now accepts that this approach was wrong, if he revised his belief during the continuance of the Claimant's employment, this was never communicated to her. Moreover, while some action was taken in relation to the incident, of which the Claimant was never informed, the Company Secretary failed to monitor the situation thereafter or put in place a policy against sexual harassment.
Since the Determination of this Court inA Garage Proprietor v A Worker EEO2/85, it is well established that freedom from sexual harassment is a condition of employment which an employee of either sex is entitled to expect. It follows that every employer has a duty to take all reasonable steps to ensure that that employees are protected from sexual harassment in the course of their employment. In the present case, the Respondent had manifestly and persistently failed to discharge that duty to the Claimant as a result of which she was unable to continue in her employment without suffering continued indignity and putting her health and welfare at risk. In the Court's view she was reasonably entitled to treat her contract of employment as having been repudiated by her employer.
Determination:
The Court holds that the claimant's employment was terminated by dismissal as defined by Section 1 of the Act. The circumstances in which the dismissal occurred arose because the claimant is a woman and was a discriminatory dismissal prohibited by Section 3(4) of the Act.
The Court considers that the appropriate redress in this case is an award of compensation. In measuring the amount to be awarded the Court notes that that the sexual harassment itself has been the subject of a separate claim and an award of compensation and should not be taken into account again in the present case. In respect of the dismissal, the Court has taken account of the loss suffered by the claimant and awards compensation in the amount of £5000.
Signed on behalf of the Labour Court
Kevin Duffy
2nd January, 2001______________________
LW/CCDeputy Chairman
NOTE
Enquiries concerning this Order should be addressed to Larry Wisely, Court Secretary.