A Complainant (Represented by a union) AND A Health Board
1. DISPUTE
1.1 This dispute concerns a claim by a complainant that she was discriminated against by her employer on the ground of gender, contrary to the provisions of section 6 and section 23 of the Employment Equality Act, 1998, when she was subjected to sexual harassment by a colleague. In accordance with the Equality Tribunal's normal practice when dealing with allegations of sexual harassment, no individuals or institutions are identified in this decision.
1.2 The complainant referred a claim to the Director of Equality Investigations on 25 July 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case on 9 September 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 5 June 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant is employed as a theatre attendant in a hospital in the health board area. She claimed that on 14 October 2001 she suffered sexual harassment and bullying by a male colleague. She was cleaning equipment in the theatre when he purposely broke wind and swore. When she objected to his behaviour, he retorted by referring to enduring women once a month, a comment that the complainant and a male witness understood to refer to menstruation.
2.2 The complainant informed her Supervisor of the incident on the following day. The Supervisor attempted to deal with the issue, but the alleged harasser declined to discuss it or to offer an apology, and insisted in a heated public exchange that he refused to work with the complainant. On 23 October, the Supervisor made a written report to the Administrator describing the incidents, and referring to previous occasions when the alleged harasser had refused to work with or talk to other colleagues. The Supervisor suggested the alleged harasser be relocated within the hospital, either until he had a change of attitude, or permanently. The complainant also made a written complaint to the Administrator. She claimed that the actions of the alleged harasser continued after the complaint had been made, and said that he approached her in a bullying fashion demanding that she withdraw the complaint.
2.3 Some two weeks later, the complainant was asked by her Supervisor if she would replace a colleague in another department for two weeks. She was assured that the transfer had no connection with her complaint, which was being treated seriously, but was because she had previous experience of the particular work involved. In the event, the absent colleague suffered an injury and the transfer lasted for approximately three months. During this period, the complainant said she made several enquiries about the progress of her complaint. When she was ultimately informed of her return to the theatre, she made an appointment to see the Assistant Manager, as she was reluctant to return without assurances that she would be protected from further harassment. The complainant formed the impression that the Assistant Manager had not read the detailed complaints, but when she described the incidents he assured her he would do his utmost to help her. The Assistant Manager subsequently telephoned the complainant to assure her that an apology from the alleged harasser would be waiting for her on her return to the theatre. This did not materialise, and the complainant said that the alleged harasser continued to bully and abuse her, as well as subjecting her to sexual innuendo and sneering. She made verbal complaints of these incidents.
2.4 Following further discussions, the Assistant Manager advised the complainant in a letter dated 5 March 2002 that since the alleged harasser had refused to offer an apology, he was being transferred from the theatre within the week. Coincidentally, the Assistant Manager started a career break during that period and the alleged harasser lodged an appeal against the transfer decision, which was heard by the Manager. By letter of 2 April, the Manager informed the complainant that he had decided not to proceed with the transfer, because the alleged harasser accepted his actions were inappropriate, had offered verbal and written apologies, had given assurances that that there would be no recurrence, and the Manager noted that there had never been any other complaints of this nature against the alleged harasser.
2.5 The complainant protested against the reversal of the transfer decision by letter of 12 April, in the course of which she pointed out that no apology had been offered to her, and she also criticised the actions of her union, which had supported the alleged harasser's appeal. The complainant made a further written complaint on 31 May to the Administrator concerning an incident which she said occurred on the previous day. She received no response to this complaint. Following the referral of her claim to the Equality Tribunal on 25 July 2002, the complainant made further complainants on 4 February 2003, regarding incidents on 29 and 31 January, and on 13 February, regarding an incident on 11 February. At this point, the hospital began an independent investigation into the matter, which was ongoing at the time of thehearing in this claim.
2.6 At the hearing, the complainant said that she believed at least one other staff member had made complaints against the alleged harasser, which were forming part of the investigation being carried out, together with counter-claims of bullying made by the alleged harasser against both the complainant and the Supervisor. She pointed out that the respondent had never discussed the appointment of an independent investigator with her or her representatives. She said that the respondent had failed to protect her by exercising its duty of care to her in accordance with its own procedures, despite a finding that the alleged harasser had behaved in an inappropriate and unacceptable way, and she claimed that its inactivity had contributed to her demoralisation and feelings of work-related stress.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent said that the incident of 14 October 2001 was investigated by the Assistant Manager, who found that the alleged harasser had behaved in an inappropriate and unacceptable manner, and decided to transfer the alleged harasser from the theatre with effect from 11 March 2002. On 8 March, a letter of appeal was received from the alleged harasser's union representative, and an appeal hearing washeld by the Manager on 19 March.
3.2 The Manager decided to uphold the appeal for several reasons, among them the fact that there were no other such complaints against the alleged harasser and the complaint referred to a once-off incident and as such did not constitute bullying or harassment. The Manager also noted the alleged harasser's commitment that there would be no recurrence, the union's commitment that it would make no further representations on his behalf if there was a recurrence, and the union's confirmation that the alleged harasser had attempted to offer an apology, albeit belatedly, which was refused by the complainant. Despite the reversal of the transfer decision, the alleged harasser was issued with a written warning concerning the complaint and his future conduct.
3.3 Regarding the Supervisor's recommendation that the alleged harasser be transferred because of his difficulties with other people, the respondent said that these were unsubstantiated comments. No previous complaints had been made by the Supervisor, nor had she ever taken any action against the alleged harasser's behaviour. It indicated, however, that a review of procedures had been established to prevent future occurrences of this nature.
3.4 The respondent acknowledged that no action was taken on the complainant's complaint of 31 May 2002. The Assistant Manager had recently left and was not replaced until January 2003. The Assistant Manager subsequently appointed had a specific human resources remit, to allow the respondent focus more attention on issues such as sexual harassment and bullying complaints. At the time of the hearing, the respondent had appointed an independent investigator to look into the complaints of 4 February and 13 February 2003, and it had added the complaint of 31 May 2002 when it had been brought to its attention. The investigation had had to be expanded to incorporate complaints against the alleged harasser from another member of staff as well as the alleged harasser's counter claims of bullying by the complainant and the Supervisor. This investigation was not concluded at the time of the hearing.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY
OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The establishment of a prima facie case in complaints of gender discrimination in employment is governed by Council Directive 97/80/EC, transposed into Irish law on 18 July 2001 by means of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001). In applying the same rule to a claim of age discrimination in the case of Flexco Computer Stationery Ltd and Kevin Coulter (EED0313), the Labour Court said "The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board [2001] ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If those two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed." Sexual harassment
4.3 Section 18 of the Act deals with specific provisions as to equality between women and men, and states that "A" and "B" represent two persons of the opposite sex so that where "A" is a woman, "B" is a man and vice versa. Section 23 provides
(1) If, at a place where A is employed (in this section referred to as "the workplace"), or otherwise in the course of A's employment, B sexually harasses A and... (a) A and B are both employed at that place or by the same employer... then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.
(2) Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of A's employment, if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled- (a) B sexually harasses A, whether or not in the workplace or in the course of A's employment... then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.
(3) For the purposes of this Act-
(a) any act of physical intimacy by B towards A, (b) any request by B for sexual favours from A, or (c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A.
(5) If, as a result of any act or conduct of B, another person ("the Employer") who is A's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against A, it shall be a defence for the Employer to prove that the Employer took such steps as are reasonably practicable- (a) in a case where subsection (2) applies, to prevent A being treated differently in the workplace or otherwise in the course of A's employment and, if and so far as any such treatment has occurred, to reverse the effects of it, and (b) in a case where subsection (1) applies (whether or not subsection (2) also applies) to prevent B from sexually harassing A (or any class of persons of whom A is one). In this claim, many of the incidents complained of by the complainant appear to be more relevant to a claim of bullying, which is outside my jurisdiction to investigate. However, I am satisfied that both the reference to menstruation and the sexual innuendo constitute sexual harassment within the provisions of the 1998 Act.
4.4 There is little dispute of the facts in this claim. The incident of 14 October 2001 was found by the respondent to be inappropriate and unacceptable behaviour, and the consequent decision to transfer him from the theatre was rescinded by the Manager following an appeal supported by the union. The respondent did not investigate the complaint of 31 May 2002, but instigated an independent investigation into the complaints of 4 and 13 February 2003, which was ongoing at the time of the hearing.
4.5 The Manager's reasons for rescinding the transfer decision are listed at 3.2 above. Contrary to his finding in the matter, there is nothing in the 1998 Act which provides that a once-off incident cannot constitute sexual harassment. I note that the respondent's policy defines bullying as particular behaviour "on a regular and persistent basis" which may have led the Manager to mistakenly conclude that the same criterion applied to sexual harassment. Because of this, I cannot give much weight to the Manager's dependence on the alleged harasser's commitment that there would be no recurrence, and on the union's commitment that it would not support him if there were a recurrence.
4.6 I am satisfied that the Manager's statement that the alleged harasser had offered a belated apology is in fact incorrect. He had consistently refused to do so up to the date of the appeal hearing, over five months after the incident, despite pressure being put on him by the Supervisor and the Assistant Manager to do so. What in fact happened was that his union representative produced an undated written apology at the appeal hearing, which was to be passed on to the complainant. At that stage, she had already confirmed to the Assistant Manager that she was happy with the transfer proposal and had withdrawn her previous agreement that an apology would be acceptable. I cannot find that there was any obligation on the complainant to accept an apology which was only offered when the alleged harasser was facing the consequences of his behaviour.
4.7 The final reason given by the Manager - the fact that no such complaint had previously been made against the alleged harasser - I find to be of particular concern in this claim. The Supervisor's letter made it quite clear that the alleged harasser had contentious working relations with several other colleagues, all women, and it stated that another staff member had spoken of being intimidated by him. While the respondent described these as unsubstantiated comments, I feel that it should have taken seriously a proposal by a Supervisor that a member of staff should be moved until he had had a change of attitude. The minimum that should have occurred was that the respondent should have further investigated implications that the alleged harasser was at the very least difficult to work with. I am satisfied that the consequence of the Manager's decision not to proceed with the transfer was to make the alleged harasser feel that his actions would be without consequence, and led to the subsequent negative work environment experienced by the complainant.
5. DECISION
5.1 Based on the foregoing, I find that the respondent discriminated against the complainant on the ground of gender, contrary to the provisions of the Employment Equality Act, 1998, when she was sexually harassed by a colleague.
5.2 I hereby order that the respondent
(i) pay the complainant the sum of €15,000 in compensation for the effects of the discrimination;
(ii) proceed with the transfer of the alleged harasser from the complainant's work area, and ensure that she does not have any unnecessary professional contact with him in future;
(iv) review its policy in dealing with complaints of sexual harassment, with particular reference to the provisions of the Employment Equality Act 1998 (Code ofPractice) (Harassment) Order 2002 (SI No 78 of 2002).
_____________________
Anne-Marie Lynch
Equality Officer
4 December 2003