FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : A COMPANY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY DOYLE HANLON SOLICITORS) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal by both parties against Equality Officer's Recommendation No. EE47/99 concerning an allegation by the worker that the Company discriminated against her in terms of Section 2 (a), 2 (b), 2 (c) and 2 (d) of the Employment Equality Act, 1977 (The Act ) and contrary to the provisions of Section 3 of that Act.
BACKGROUND:
2. The claimant has been employed by the Company since November, 1983. She alleges that she has been subjected to sexual harassment by male colleagues for a number of years. This ultimately had an adverse affect on her health and she has been on sick leave since March, 1997. The claimant also alleges that, as a senior staff member, she was allocated work which was more appropriate to junior employees. On making a formal complaint to management about the alleged harassment the claimant contends that she was victimised. The Company rejected the claims of sexual harassment and discrimination. On the 7th August, 1997 the complainant submitted a claim to the Labour Court. It was the subject of a time limit hearing under Section 19 (5) of the Act. The Court found that reasonable cause was shown as to why the complaint was not referred within the six months time limit. The Court referred the claim to an Equality Officer for investigation. At the hearing of this claim the claimant's representative withdrew the claim of discrimination under Section 2 (c ) of the Act.
On the 16th December, 1999 the Equality Officer issued her recommendation as follows;
"...............I find that the respondent organisation did discriminate against the claimant in terms of Section 2 (a) of the Employment Equality Act, 1977 when she was subjected to verbal sexual harassment at her place of work. She withdrew her claim under Section 2 (c) of the 1977 Act and I am satisfied that there was no evidence of discrimination in terms of Section 2 (b) and Section 2 (d) of the Employment Equality Act, 1977.
I recommend that the respondent organisation pay the claimant the sum of £4000 in respect of the distress she suffered as a result of the sexual harassment. The claimant could have availed of the respondent's Income Continuance Plan to offset her loss of earnings as a result of her sick leave and failed to do so. On that basis, I do not intend to make any award to her in respect of loss of earnings as a result of sick leave "
On the 24th January, 2000 the claimant appealed the recommendation to the Labour Court on the following grounds;
1. The compensation for the distress suffered was inadequate.
2. Due consideration was not given to the fact that the claimant was on sick leave for three years as a direct result of the harassment .
On the 25 th January, 2000 the Company appealed the recommendation on the following grounds;
1. That the Equality Officer erred in law and in fact in concluding that the Company had discriminated against the complainant under Section 2 (a) of the Act.
2. Any other grounds which arise in the course of the appeal.
The Court heard the appeals, and took evidence under Oath, on the 29th June, 2001 and the 28th August, 2001. Both parties made written submissions to the Court and expanded orally on their submissions at the hearing.
DETERMINATION:
The Equality Officer found that the respondent organisation had discriminated against the claimant in terms of Section 2(a) of the Employment Equality Act, 1977, when she was subjected to verbal sexual harassment at her place of work.
The Equality Officer recommended that the respondent organisation pay £4000 in respect of the stress suffered by the claimant, as a result of the sexual harassment.
However the Equality Officer found that the claimant could have availed of the Company Income Continuance Plan to offset her loss of earnings but as she had failed to do so, she did not make any award in respect of loss of earnings.Both parties appealed the Equality Officer’s recommendation. The claimant based her appeal on the grounds that (a) Compensation for distress suffered was inadequate and (b) Consideration was not given to the fact that as a result of the harassment and discrimination the claimant was on sick leave for over three years, and was in fact still seeking treatment for the distress caused.
The respondent appealed the recommendation on the grounds that the Equality Officer erred in law and in fact when she concluded that the claimant was subjected to sexual harassment of a verbal nature.
The Equality Officer investigated the claimant’s allegations that she had been subjected to sexual harassment by male colleagues for a number of years, and had been, as a senior staff member allocated work more appropriate to a junior employee. She further claimed that she was victimised as a result of making a formal complaint to Management.
Background:
The claimant and another female employee originally made a complaint of harassment in 1995. A senior official of the Company told the Court that the claimant and another female employee had made complaints to him in 1995. It is clear from the evidence presented that no real investigation took place in relation to this particular complaint; in fact the official told the Court “he had difficulty in believing the claim, given what he knew about the people being accused”. This official also told the Court that he saw no reason why he should have made his Superior aware that this complaint had been made.
The official concerned surprised the Court by saying he did not feel that the allegations rang true because the person complaining had not spoken in a harassed tone, and he had no feeling of her being intimidated.
The same official informed the Court that the 1995 investigation was more of a fact finding operation to see if there was any harassment or bullying. He did not conduct a reasonable investigation or produce a report.
When the complaint was made in 1997 it is clear that again no proper investigation took place into the allegations. It would appear that the Chief Executive merely got together those who where alleged to have committed the offence and requested they put together a defence to the charges. While Management argued that the basis of this was to show that the claimant was a willing participant in sexual banter, it seems extraordinary that the individuals alleged to have committed the harassment should be requested by the Company to prepare the Company response.
Evidence:
There was a conflict of evidence on many issues between the witnesses for the claimant and for the respondent as often happens in these cases. It is the Courts view that the claimant’s witnesses and the evidence presented on her behalf were more credible than that presented by the Company. Witnesses on the Company’s side who where alleged to have been involved in the harassment, denied knowledge of issues that were generally accepted as being factual, even by the Company. On the balance of probability the Court believes that the evidence supplied on behalf of the claimant was more credible.
Atmosphere in the Company:
It would appear from the evidence presented that an atmosphere conducive to harassment prevailed towards the claimant in the workplace. While this was denied by Management, particularly those accused of the harassment, the Court is satisfied from the evidence presented that it did in fact exist. While there may have been interpersonal problems and a background history that could have influenced people’s attitude, employees are entitled to work in an environment free of harassment and not to have their lives made miserable on a day-to-day basis.
The Court was further concerned that serious allegations that had been made about the claimant originally by those alleged to have harassed the claimant, and subsequently withdrawn before the Equality Officer, were nevertheless still included in the submission to the Court.
It is clear from the evidence presented and the discussion in the Courtroom that the Company failed to have any sense of responsibility for protecting its employees or for ensuring that their working environment was one conducive to employees working free of fear and intimidation. Indeed the approach of the Company in the Court was quite confrontational and aggressive when questioned in relation to actions that could have or might have been taken in order to ease the situation. It would appear that Senior Management of the Company had a detached view of what was going on in the working area, and took no direct responsibility for the actions of supervisory management.
The Company while refuting any allegations of sexual harassment relied on a number of counter allegations put together by employees who had been accused by the claimant, alleging that she was a willing participant in sexual banter and conversation in the work place. While the Court accepts that there was some element of this, the Court finds that the treatment she received and the atmosphere that was directed towards her to be totally unacceptable.
Income Continuance:
The Equality Officer decided that as the claimant had failed to apply for Income Continuance, thereby mitigating her loss of earnings, she would not make an award for loss of earnings. While the Court understands the Equality Officers rationale, it was clear from the hearing that the claimant was very fearful of making her claim through the Company, and believed that the claim had to go through Management in order for it to be processed by the Insurance Company. She was not prepared to give the information on her medical condition to the Company, as she believed it had allowed her harassment to take place over many years and was now further adding to her distress by not taking her complaint seriously.
The Court clarified that an application for Income Continuance can go direct to the Insurance Company, even though the Company has to make its own submission. At the hearing the Company indicated it was prepared to give the claimant every assistance in making her application and accepted that it could go direct to the Insurance Company. The Court recommends that the Company honour its commitment to minimise any difficulties for her in this respect and to assist her in every way possible to make the application.
Summary:
In relation to the complaints of sexual harassment, which were covered in the Equality Officer's Recommendation, it is clear to the Court that no meaningful investigation took place in either 1995 or 1997. There is no evidence that individuals against whom allegations were made were ever questioned by Management individually or that a report was produced in relation to either complaint.
The Court also noted that the group, known as the Clique that has been referred to on several occasions in the hearing was, to quote the Chief Executive, “broken up” subsequent to the second complaint. This would seem to contradict the Management position that there were no problems or difficulties with this grouping. It would also indicate that the evidence by some of the management team that they did not know of its existence was to say the least disingenuous.
The behaviour of the claimant, as outlined by colleagues in statements, was produced as a main argument by the Company to justify that she had engaged in jokes and comments of a sexual nature. The basis on which this list was put together is questionable to say the least, and in addition a number of the allegations were withdrawn by various people. The Court is concerned that one of the more serious accusations made against the claimant, although left in the Company submission, had been withdrawn before the Equality Officer.
The Company argued that the Equality Officer never concluded that the alleged incidents outlined by the claimant occurred. The Court is satisfied, based on the evidence and questioning of the Company witnesses, that the incidents did take place at various times and that the atmosphere that prevailed in relation to the claimant was totally unacceptable.
The Court having considered all the written and oral submissions made by the parties upholds the Equality Officer's finding that the respondent organisation did discriminate against the claimant in terms of Section 2(a) of the Employment Equality Act 1997. The Court therefore rejects the Company’s appeal.
In relation to the claimants appeal the Court finds the award of £4000 (5078.95 Euro) in respect of distress to be inadequate.
The Court accepts the reasons given by the claimant as to why she did not apply for the Income Continuance Plan, given background history to the case. The Court therefore upholds the claimant's appeal and awards her the sum of £15,000 (19,046.07 Euro) in respect of the distress she suffered as a result of sexual harassment.
In addition the Court recommends that the respondent, as indicated in Court, facilitate the claimant in making her application for Income Continuance.
Signed on behalf of the Labour Court
Finbarr Flood
13th November,2001______________________
TOD/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.