FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : A HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - AN APPELLANT (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Equality Officers Recommendation DEC-E2002-009
BACKGROUND:
2. This is an appeal by the appellant against a recommendation of an Equality Officer DCE-E2002-009 in which the Equality Officer rejected a complaint of discrimination by the appellant. The appellant claims that she was discriminated against on the grounds of gender contrary to Sections 6 and 23 of the provisions of the Employment Equality Act, 1998, in that her employer failed to provide her with safe working conditions of employment in accordance with Section 8 of the Act and failed to take such steps as were reasonably practical to prevent her from being sexually harassed contrary to Section 23.The full background to the case is contained in the Equality Officer's recommendation. The Equality Officer's Decision was as follows:
"Based on the foregoing, I find that the respondent did not discriminate against the complainant on the ground of gender, contrary to section 6 in terms of section 23 of the Employment Equality Act, 1998, in the manner in which it dealt with her complaint."
The worker appealed her case to the Labour Court on the 26th of February, 2002. A Labour Court hearing took place on the 14th of June, 2002. The following is the Court's determination:
DETERMINATION:
The facts
•The appellant was employed in the hospital since 1984. In 1997 she commenced working in the catering department as a kitchen porter.
•In October, 1999, and November, 1999, the appellant reported to the assistant catering officer that she had been sexually harassed in her place of work over a period of time. A detailed description was supplied, which included of the following: -
othe harassment consisted of serious sexual abuse
othe dates on which the incidents occurred– a number of incidents were reported
othe locations of the incidents – mostly store rooms
othe times of the incidents – at weekends and during quiet periods
•The appellant did not name the alleged harasser. When asked to do so she replied “I will name him in time but I am not ready to name him yet”. She states that she felt unable to report the harassment because of the ongoing
consequences of her abusive childhood, the facts of which were known to the alleged harasser, and for which she was receiving counselling.
•The assistant catering officer brought the complaint to the attention of the Catering Manager and the Personnel Manager.
•As the appellant was unable to name the alleged harasser, her counsellor organised for the appellant to attend an assertiveness course. This was paid for by the respondent.
•In January, 2000, the alleged harasser went into hospital. He informed his employers of his intention to return to work in early June, 2000.
•On 7th June, 2000, the appellant named her harasser and confirmed this in writing on 9th June, 2000. She alleged that the abuse also took place in the harasser’s rest room. The naming of the alleged harasser was precipitated by his imminent return to work following his illness.
•The named harasser was immediately suspended.
•On 12th June, 2000, a meeting was held between the Catering Manager, the Personnel Manager and the appellant, who was accompanied by a colleague. At that stage the appellant was unsure who should represent her. In view of the seriousness of the complaint, the respondent urged her to secure either Union or legal representation to assist her. She was advised that a full statement with dates, times etc. of all incidents would be required.
•On 13th June, 2000, the appellant was advised that an investigation committee was being set up for the purposes of ascertaining the facts relating to her complaints. This committee comprised of a senior member of the Personnel Department (female), the Director of the Catering Services (female) and the Deputy Chief Executive Officer (female).
•At a meeting on 13th June, the respondent sought and obtained permission to seek statements from certain persons, including counsellors she had attended.
•On 16th June, 2000, the appellant advised the respondent that she wished to be represented by her Union representative.
•Delays occurred in the investigative process due to;
othe appellant's uncertainty regarding her choice of representation, whether to be represented by a solicitor or a trade union representative;
othe Union’s objection to the composition of the investigative committee;
othe appellant’s request to be accompanied by her counsellor;
•At a meeting between the respondent and the Union, held on 27th June, 2000, to discuss the process, the respondent indicated that the investigative committee had already interviewed the alleged harasser and some staff.
•By letter dated 28th June, 2000, the Union detailed its reservations about the respondent’s handling of the investigation, but did agree to co-operate with the process, albeit without having confidence in the procedure.
•Intensive interviews were carried out between 22nd, June, and 17th July, 2000. The appellant was interviewed on 4th and 17th July and was accompanied by her shop steward and Union representative. Statements were taken from the appellant, the alleged harasser, Catering and Kitchen staff, her counsellor, psychiatrist, occupational health physician, social workers, and occupational therapist.
•The investigation committee issued its report on 25th July, 2000, to the Chief Executive Officer, concluding that it had
- “not been in a position to come to any definitive conclusion”
•Due to the seriousness of the matter, the respondent stated that the allegations should be investigated as part of a disciplinary hearing. This approach was as agreed with the Union on 29th June, 2000.
•The Chief Executive Officer reported the findings of the investigation committee to the appellant and the alleged harasser by letter dated 8th August, 2000, and indicated that the disciplinary hearing would now proceed. Attached was a file of documentation containing details of the investigating committee’s report, together with details of all statements made and the notes of the committee.
•On the 20th of September, the appellant was informed that the disciplinary hearing would take place on the 2nd October 2000. On the 3rd October, the Union informed the respondent that the appellant would not be attending the hearing, as it was not satisfied with the appointment of two independent chairs for the hearing and it was unsure as to the purpose of the hearing.
•On 9th October, 2000, the appellant commenced her claim under the Employment Equality Act, 1998.
•By letter dated the 11th October, the respondent outlined the purpose of the hearing – to investigate the allegations and make a determination on it. It stated that any grievance which the appellant had could be dealt with independently of the disciplinary hearing.
•On the 19th of October the respondent indicated that the hearing would go ahead without the appellant.
•The Union objected to this process and referred the matter of the Hospital’s failure to use the agreed procedures to the Labour Court under Section 20 (1) of the Industrial Relations Act, 1969. The Union maintained that there were agreed procedures to deal with grievances and disciplinary disputes, and that under these procedures third party assistance was through the recognised Industrial Relations Bodies and not through the use of external chairs at disciplinary hearing. The Labour Court recommended on 14th of December, 2000, that:
the disagreement between (the parties) as to how to proceed in the present circumstances should be resolved in accordance with the grievance procedure. Accordingly, the parties should meet initially to discuss the situation. Subject to acceptance of this recommendation, this meeting should be held within one week of this date. Should agreement not be reached the parties should proceed to the next stage without delay.
- •The Union wrote to the respondent on 9th of January, 2001 stating that if the if the respondent was prepared to confirm that there was a case of harassment/abuse to be answered by the other party, then it was prepared to participate in the disciplinary procedure. The Union stated that it would enter immediate discussions with a view to agreeing the detail of the procedure to be utilised.
•On 30th January the respondent replied to the Union stating that on legal advice the hearing could not be reopened.
•The CEO reviewed all the documentation available to him, including that made available to the disciplinary committee, and decided on the basis of his own statements and not reliant on proof by the complainant or any third party, that the alleged harasser had a case to answer and consequently imposed a significant disciplinary sanction. He is no longer employed by the Hospital.
The Union’s case
In October 1999, when the appellant made a complaint of serious sexual harassment, management did nothing directly to protect her from the alleged harasser and to provide her with a safe environment free from sexual harassment. The personnel manger made no attempt to see or speak to the appellant. He abdicated his responsibility, knowing that she was receiving Occupational Therapy in the hospital.
The Union further maintains that as soon as the complaint was made in October, 1999, albeit the alleged harasser was not named until June, 2000, there was a general duty on the respondent to monitor the situation during this period, there should have been follow up interviews, and reports from Occupational Therapy should have been sought. The appellant should have been offered a move out of the catering department. Awareness and training in Anti-harassment should have taken place.
The Union claims that the respondent failed in its duty to protect the appellant as provided for under section 23 of the Employment Equality Act, 1998.
The Union objected to the investigative process, as it had not been involved from the outset in selecting the investigating committee. It objected to the selection on the committee of the Head of Catering due to his partiality. It objected to the interview of the alleged harasser and others prior to an interview with the appellant.
The Union objected to the respondent’s setting up of disciplinary hearing committee without consultation with the Union. It also objected to the selection of external personnel being appointed on that committee. The Union maintained that there were agreed procedures to deal with grievances and disciplinary disputes, and that under these procedures third party assistance was through the recognised Industrial Relations bodies.
The Union contended that the respondent failed repeatedly to advise the Union what precisely the charges were and who they were being taken against.
In proceeding with the disciplinary hearing, the respondent was trying to avoid liability under the Act.
The Respondent’s case
When the complaint was made in October, 1999, the Hospital did everything in it’s power to deal with the situation but without knowing the name of the alleged harasser it was hampered in how much it could do.
The Deputy Personnel Manager was delegated to monitor the situation and to keep in close contact with the appellant, and along with Catering management encourage the appellant to substantiate her allegation.
The Hospital did not transfer her from the Catering Department as firstly she did not request such a transfer and secondly, in order to prevent false allegations, rumours and suspicions being raised about staff members, management could not act.
As an exceptional measure, the Hospital agreed to finance assertiveness training for her as recommended by her counsellors to help her to name her alleged harasser.
The hospital held that it was not only entitled but was obliged to investigate the allegation and make a determination on it.
The employer held that it was not open to the appellant or her representative to interfere with the process determined by the respondent. The Union had previously agreed that there would be a two-stage process letter. This is in line with best practice and in line the Hospital's policy on Harassment/Bully and in line with the dismissal procedure set out in the individual’s contract of employment.
In order to discharge its constitutional obligations to the person against whom the allegation had been made, it was necessary for the Hospital to convene a disciplinary hearing and request the appellant to attend in order to give the alleged harasser an opportunity to confront his accuser and cross examine other witness who might be called to give evidence relating to the allegations against the accused person. To do otherwise would have deprived the accused person of fundamental constitutional rights and would have exposed the Hospital to immediate injunction proceedings. The Hospital emphasised that at all material times it sought to act fairly and in conformity with natural and constitutional justice to both the appellant and the alleged harasser. In support of this stance, the Hospital citere Haughey(1971) IR217 as applied in such cases asGallagher v- The Revenue Commissioners, Cassidy –v- Shannon Banquets & Heritage.
The failure of the appellant to attend at the disciplinary inquiry on the recommendation of her Union meant in law that no sanction could be imposed against the alleged harasser. However, arising out of the investigation, and in particular based on his own statements, the hospital was determined that he should face disciplinary charges, which he subsequently did.
The Law
The Employment Equality Act, 1998, provides various protections for employees against being both discriminated against and being sexually harassed.
Section 8 (1) (b) provides that employers should not discriminate against an employee in respect of the employees conditions of employment.
Section 15 provides that an employer shall be vicariously liable for any act done by any person in the course of his or her employment subject to the defence that the employer took such steps as were reasonably practicable to prevent the employee from doing that Act.
Section 23 (1) provides that "if at a place where A is employed (in this section referred to as the work place), or otherwise in the course of A's employment, B sexually harasses A and A and B are both employed at that place or by the same employer, then for the purposes of the Act the sexual harassment constitutes discrimination by his employer, on the gender ground, in relation to A’s condition of employment".
Section 23 (5) provides a Defence to the employer to the effect that he will not be rendered liable if he took such steps as were reasonably practicable to prevent B from sexually harassing A.
Thus in Section 23 the common law concept of the employers’ vicarious liability is given statutory effect and the employer is rendered directly liable for the acts of his employees. The only defence is for the employer to prove that he took such steps as were reasonably practicable to prevent harassment.
Conclusion and Court Findings
The Court is of the view that there are three periods in this case which deserve separate examination by the Court: -
- (i) The period before October, 1999, when sexual harassment was alleged to have taken place.
- (iii) The period post 7th June, 2000, when the appellant named the alleged harasser.
Period (ii): The situation during this period was different. The Court accepts that Section 23 does not appear to apply to a situation where the harassment has occurred and been reported, save insofar as there is a duty on the employer, if the employee has been treated differently as a result of reporting the harassment, to do all that is reasonable to reverse the effects of such treatment. The Court accepts therefore that the appellant cannot rely on the provisions of section 23 in bringing a claim in respect of this period.
This however is not sufficient to dispose of the matter. There still remains a general duty on the employer under section 8 (1) (b) to provide conditions of employment free from discrimination. It is the opinion of the Court that the employer, during this period did not provide conditions of employment to the employee, which was free from discrimination.
In the opinion of the Court, during this period i.e. between October, 1999, and 7th June, 2000, the employer had a duty, on being informed of the harassment, to put in place such procedures as would enable the appellant to avail of working conditions free from discrimination. The Court is of the view that the employer, in the circumstances of this particular case, in particular the very serious nature of the allegations and the appellant's history, should have taken proactive measures including the following : -
•contacted the gardai
•contacted the appellant's Union official
•spoken to co-workers to seek to establish the truth or otherwise of the allegations
•transferred the appellant to another working area
•explained its Anti-Bullying/Harassment Policy to her and provided her with a copy of the policy.
By its failure to take these steps, the employer failed to provide the employee with working conditions free from discrimination and accordingly was in breach of its duty to the appellant under section 8 (1) of the Act.
The Court wishes to emphasise that it is not suggesting that any or all of these steps should be taken in every case of sexual harassment. The appropriate response to each case must be studied by the employer who should then put in place procedures proportionate with the gravity of the offence.
Period (iii): Once the complainant named the harasser on 7th June, 2000, and made a formal complaint, the respondent acted promptly by taking the immediate step of suspending the alleged harasser and setting an investigation in motion. At this point the Court is satisfied that the respondent took all necessary steps to deal with the complaint.
During this process, the Court is satisfied that the respondent acted in conformity with natural and constitutional justice in relation to both the appellant and the respondent. However, the respondent was incapable of proceeding with the investigation into the allegations due to the failure of the appellant and her representative to co-operate in the procedures for investigation and in the disciplinary inquiry.
The Court confirms that the process from the 7th of June onwards was not only appropriate but was in conformity with the legal standards imposed on employers by the High Court when investigating allegations of serious wrongdoing.
The Court is satisfied that if the Union had participated in the disciplinary process it would have enabled the respondent to address the conflict of evidence and thereby complete the investigation in accordance with fair procedures and natural justice.
In this particular case, the procedures to be adopted in relation to having the matter dealt with appear to have taken precedence over any actual steps being taken in the matter. The appellant was, given her background, particularly vulnerable, and both the Union representing her and the employer should have concentrated on what could be done to alleviate the extremely distressing circumstances in which she found herself.
Determination
The Court finds that the employer was in breach of its duty under section 8(1) of the Act and discriminated against the employee in contravention of this section. Accordingly, the Court is satisfied that the appropriate form of redress is an award of compensation to the appellant, and measures the amount of compensation which is fair and reasonable in all the circumstances at €10,000.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th October, 2002______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.