An Employee(Represented by The Equality Authority) -v- An Employer (Represented by Doyle Lowney & Co. Solicitors)
1. CLAIM
1.1 This case concerns a claim by a female employee that her employer discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 23 of the Act in relation to her conditions of employment. She also claims that she was victimised within the meaning of section 74(2) of the Act when she complained of the harassment.
2. BACKGROUND
2.1 The employer was formed approximately ten years ago and was originally operated on a voluntary basis. It is presently operated by means of a FAS sponsored Community Employment Scheme and provides day care facilities for the elderly and those living alone. An Executive Committee acting on a voluntary basis oversees the running of the centre. The complainant was employed on a community employment scheme with approximately fourteen other employees. She alleges that she was discriminated against on the grounds of gender and was sexually harassed by her supervisor contrary to section 23 of the Employment Equality Act, 1998. When she complained of the mistreatment, she was victimised by the Management Committee of the respondent in that no proper investigation took place and she was left with no option but to resign.
2.2 The complainant referred a claim under the Employment Equality Act 1998 to the Director of Equality Investigations on 29 November 2001. On 14 January 2002, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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.
2.3 A submission was received from the complainant on 24 July 2002 and from the respondent on 5 September 2002. The respondent rejected the allegation of sexual harassment and submitted that the complainant and alleged harasser were engaged in a consensual relationship. A joint hearing of the claim was held on 2 December 2002 and on 4 February 2003.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant submits that she was discriminated against on the grounds of gender and was sexually harassed by her supervisor contrary to section 23 of the Employment Equality Act, 1998. When she complained of the mistreatment, she was victimised by the Management Committee in that no proper investigation took place and she was left with no option but to resign.
3.2 The complainant commenced employment as a Secretary and Administrator on 18 May 2000. Mr. A was employed as a Supervisor and the complainant reported directly to him and shared a small and confined office with him. Mr. A started behaving inappropriately very early on but from October 2000, matters got progressively worse. Mr. A consistently attempted to grope the complainant, pull her towards him and kiss her. He verbally harassed her, asking for kisses and making personal remarks of a sexual nature to her. The complainant asked Mr. A to stop, she physically pushed him away on many occasions and continually rebuffed him. She made it clear that she was extremely scared and unhappy with his behaviour. She also tried to avoid being alone with him as much as possible. When he was asked to stop, Mr. A became abusive and aggressive to the complainant and she found him very intimidating.
3.3 His sexually abusive behaviour escalated in or around May 2001 when he cornered the complainant in the office and rubbed his private parts against her. In late May 2001, he exposed himself to her. On 5 June 2001, the complainant videoed some of Mr. A's behaviour. On the advice of her solicitors, the complainant brought the video to the attention of the Chairperson of the Committee of Management. At a meeting on 6 June, the committee member responded that the complainant take a week off. On 9 June 2001, the complainant and her partner met with the committee and were told that Mr. A admitted his behaviour but refused to resign. The complainant was told that she could work from the home of the Chairperson of the Committee. The complainant was asked to take another week off work while the committee attempted to sort something out.
3.4 When the complainant was off work, Mr. A told other employees that he had been having an affair with the complainant. Additionally, the Chairperson of the committee of Management informed some employees that if the complainant sued the centre, it would be closed down. The complainant was upset by these remarks and her efforts to keep the matter confidential failed.
3.5 On 14 June 2001, the complainant received a letter advising her that she could return to work. As there was no mention in the letter of her complaint of sexual harassment being properly addressed or of any reference to her harasser being reprimanded in any way, the complainant could not return to work. She continued to send in medical certificates from her doctor but received no sick pay. In the beginning of August, she sought her P45 which was sent to her.
3.6 The complainant applied for a second year on the scheme as she enjoyed the work and wanted to work locally for personal reasons. When the complainant accepted the offer of another year, she initially thought she was being kept on as a bus driver. When she found out that it was office work, Mr. A assured her that his behaviour would change and he would not harass her again.
3.7 When the chairperson of the committee viewed the video, she stated she would bring it to the attention of the committee. The next day when the complainant and her partner met with the chairperson, she had only informed one member of the committee.
3.8 The complainant's supervisor was in a management position and when the complainant complained to him, she was complaining to management. The complaint received by the management committee was not the first complaint that management received about Mr. A. The complainant submits that two other employees had made complaints to management about his behaviour. The complainant contends that no proper investigation took place nor were the results of any investigation made known to her. No attempt was made to suspend Mr. A. It was the complainant who was victimised by being asked to stay at home. None of the other staff were questioned about Mr. A's behaviour until the end of June when he went on holidays. At that point, the complainant had not been paid for two weeks.
3.9 The complainant denies that there was a consensual relationship and submits that she did co-operate with Mr. A as she was in a work situation. Even if the complainant had consented, as is alleged by the respondent, to the bantering of Mr. A, she certainly never consented to the continuous groping, rubbing and particularly his exposing his private parts to her.
3.10 The complainant submits that Mr. A's behaviour falls within the definition of section 23 of the Employment Equality Act, 1998. The complainant submits that Mr. A attempted physical intimacy with the complainant by groping and fondling. He regularly requested sexual favours from the complainant. He also generally conducted himself in a manner which was unwelcome to the complainant and could reasonably be regarded as sexually offensive, humiliating and intimidating to her. She submits that Mr. A abused his position as supervisor and used his position of power as an opportunity to abuse and sexually harass the complainant. The complainant refers to A Company -v- A Worker (EEO/4/92) and A Company -v- A Worker (EO/2/90).
3.11 The complainant submits that the respondent cannot avail of the defence in section 15(3) and 23(5). The onus is on the respondent to prove that it took such steps as were reasonably practicable to prevent sexual harassment. It is submitted that the respondent failed to take any effective steps at all and it failed to report the matter to the Gardai. She submits that this is particularly important in the light of the fact that the respondent was aware of Mr. A's behaviour with other employees in that he sexually harassed a previous employee who complained to the committee about his behaviour towards her.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that the complainant was not discriminated against on the grounds of gender and was not sexually harassed by her supervisor. The complainant was engaged in and encouraged the consensual relationship that she had with her supervisor. The complainant was employed by the respondent in May 2000 under the Community Employment Scheme. The complainant was allocated a secretarial post and was responsible for administrative and other office duties in the running of the centre.
4.2 Mr. A submits that it was the complainant who initiated their relationship and at all times consented to the behaviour that they engaged in. The first attempt at physical intimacy was instigated by the complainant when she sat on Mr. A's desk after being employed in the centre stating that she could make life "very comfortable for him" thereby inviting his advances. She constantly engaged in sexual innuendo with Mr. A and indeed discussed matters of a sexual nature with all members of staff. She referred to Mr. A as 'babe' or 'darling' and very rarely addressed him by name. The respondent submits that this was not the behaviour of a woman who was allegedly intimidated by Mr. A.
4.3 The complainant did not ask Mr. A to desist from his behaviour and did not try to avoid being alone with him. She actively sought his company and in particular sought to accompany him on his visits to the local town to purchase goods for the day care centre and on many occasions had breakfast with him on these excursions. The complainant also relied on Mr. A's goodwill at the time of the birth of her second child trusting him enough to collect her Lone Parent's allowance. Mr. A submits that the complainant was not frightened of him and considered him a close friend disclosing facts of a personal nature such as her financial affairs and even explicit details of her sexual relationship with her partner. The complainant's statement that she was intimidated by Mr. A is not consistent with the fact that she applied to participate in the scheme a few weeks before making her complaint in which she states she is willing to work in any position. She also recommended the post of Secretary to a current employee of the respondent. Additionally, a few days before the video tape was made, she accompanied Mr. A to the local town and had breakfast with him and purchased items of clothing of a personal nature whilst in his company.
4.4 Mr. A categorically denies that he ever fondled the complainant's breasts or pressed his penis against her. The office in which the complainant and Mr. A worked was located just off the stage in the hall and there were frequently people coming in and out of the office as it was used for other activities being run in the community and such behaviour would have been impossible.
4.5 The chairperson of the committee submits that the video does not in her view contain any evidence of sexual harassment and is quite innocent in content. She also submits that the complainant's reaction in the video is not natural and in her view, the whole sequence of the video was stage managed and choreographed by the complainant. She also submits that she never asked the complainant to keep the allegation of sexual harassment quiet and would admit that she did say that the day care centre could possibly close as a result of the allegation as it is a non-profit making voluntary organisation and a complaint of the nature alleged would preclude people from volunteering their services.
4.6 It is not disputed that Mr. A told the other employees of the day care centre that he was having an affair with the complainant but this was only done after he was approached by the complainant's partner who informed him that he and some friends had viewed the video. It was in response to this that Mr. A informed the other employees of the centre of the allegation of sexual harassment that had been levied against him.
4.7 The respondent rejects the complainant's contention that she could not return to work. The letter from the chairperson of the committee stated that every effort would be made and every facility offered to agree suitable working arrangements and schedule with her and that there was an invitation to meet to discuss the complainant's return and working facilities in greater depth.
4.8 The complainant was not automatically entitled to sick pay as there is no statutory entitlement to sick pay. It was in accordance with the FAS regulations that the complainant was entitled to seven days paid sick leave.
4.9 The respondent rejects the complainant's allegations that they received any complaint about Mr. A's behaviour prior to that made by the complainant and that an investigation of the complainant's complaint did not take place. The committee on receiving the complainant's complaint on 5 June 2001 interviewed Mr. A the following day. They were informed by Mr. A that he and the complainant were having a relationship which was of a consensual nature. They obtained statements from other employees of the day care centre to ascertain whether in fact the complainant had been subjected to unwanted advances by Mr. A. Their initial investigations were with people who had left the centre but who knew both parties and had worked with them as it was felt they would give a more impartial view. All of their investigations revealed that no one had recalled any complaint from the complainant in respect of Mr. A, the majority of whom referred to their happy working relationship. The statements were taken after the chairperson's invitation to the complainant to meet and discuss her working conditions had been rejected and indeed every effort to contact the complainant to discuss the situation was thwarted by her partner. It is rejected by the committee that the complainant did not receive pay for the two weeks she was out of work in June. She was paid for those two weeks.
4.10 The complaint was investigated and the video evidence to which the complainant seeks to rely is and was in the view of the committee not conclusive enough to warrant a suspension of Mr. A. They would have been greatly assisted in their investigation had the video tape the benefit of an audio mechanism. The committee did not report the incident to the gardai as early in their investigations, Mr. A informed them that he had been formally interviewed and that they had decided not to proceed with any investigation or procure charges against him. Mr. A received a verbal warning at his initial interview after the allegation was brought to the attention of the committee and received a written reprimand on the 16 August 2001.
4.11 The respondent categorically denies that it ever received any complaint of a sexual nature in respect of Mr. A's behaviour.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The claimant in this case alleges that the respondent discriminated against her on the gender ground in that she was sexually harassed by her supervisor during the period of her employment from May 2000 to June 2001 and that she was victimised following her complaint to the committee of the respondent. The respondent denies that the complainant was sexually harassed and contends that the complainant and her Supervisor had a consensual relationship. I must therefore firstly consider (i) whether the complainant has established on the balance of probability that she was sexually harassed. If I find that the complainant has established that she was sexually harassed, I must then consider (ii) whether the complainant's employer is vicariously liable for the harassment. If I find that the complainant's employer is vicariously liable, I must consider as a defence (iii) whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace and whether the respondent dealt adequately with the complainant's complaint of sexual harassment.
5.2 Section 23(1) of the Employment Equality Act, 1998 provides that where a male harasses a female colleague or vice versa, the sexual harassment constitutes discrimination by the employer on the gender ground in relation to the victim's conditions of employment. Section 23(3) (where A and B represent two persons of the opposite sex) provides that:
'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.'
5.3 The respondent denies that the complainant was sexually harassed by her Supervisor and submits that at all times, the complainant consented to the behaviour they engaged in. The complainant denies that she ever had a consensual relationship with her Supervisor. In accordance with section 95 of the Act, the alleged harasser (Mr. A) was required to attend before the Equality Officer to answer questions put to him. He gave evidence that the complainant initiated the relationship which began very shortly after the complainant started work. He stated that approximately three to four weeks after the commencement of the complainant's employment, they were discussing a particular matter, possibly a social matter and she asked him to elaborate. She said she would make life very comfortable for him and he stood up and put his arms around her and gave her a kiss on the cheek. He submitted that conduct of that nature continued between them during the complainant's employment and there was nothing sexual about it. Mr. A was asked to clarify how the complainant made her consent known to him and he submitted that it was difficult to answer that question as the conduct carried on from the first day. The complainant would point to her cheek and he would give her a kiss and that continued practically every day for the length of time that she was there. He submitted that the type of conduct to which the complainant consented was pecks on the cheek, not fondling and absolutely no sexual relationship and that she never told him to stop and encouraged "that type of behaviour".
5.4 Mr. A described his relationship with the complainant as extremely friendly, far closer than with any other female he worked with and that she told him about her social life, financial affairs and intimate details of her sex life. In response to the question as to when the relationship was conducted, he submitted that the relationship did not carry through to evenings or weekends and he never met the complainant outside of work by arrangement. He submitted that the relationship was conducted solely in work and was non-sexual and that the relationship finished when he was confronted by two members of the committee who came to him and informed him of a video which had been made by the complainant. When confronted, he stated that he admitted to a bit of hugging and caressing which was consensual and apologised because of his role as supervisor as he knew from experience that it was inappropriate to have an office relationship and that it was inappropriate to be kissing and hugging in any office environment. The committee member who gave evidence in relation to that meeting submitted that Mr. A's response was that there was a close relationship and anything that went on was with full consent. Mr. A submitted that later that morning, he went back to the office to get the complainant's phone number as he personally did not have it but as Supervisor had contact details for all employees.
5.5 The complainant submitted that she accompanied Mr. A to the local town to do some shopping for the centre but that she felt pressurised to do so and used to go to work late to avoid going with him. Mr. A agreed that the complainant accompanied him to town but stated that she would usually ask if could she join him as she had personal business to conduct. The day of the week on which they went to town was disputed. Both parties agreed that they usually had something to eat but disagreed on the proportion that each paid for their meals. Mr. A stated that on two occasions (disputed by the complainant who submitted that they stopped on one occasion only), they stopped and entered his house but denied any advances to the complainant whilst they were there. It was in agreement between the parties that Mr. A visited the complainant at the hospital whilst her daughter had pneumonia, though the number of times he visited her was in dispute. It was not in dispute that during that time, he brought her the Lone Parents Allowance, though the parties were not in agreement as to how he came to do so. On the occasion that he brought the Lone Parents Allowance to the complainant in hospital, he submitted that he was embarrassed as she was breast feeding her child. A witness on behalf of the respondent gave evidence that Mr. A told her of his visit to the hospital and that he saw the complainant breast feeding her baby. The complainant denied that she was breast feeding her child.
5.6 A number of witness statements were submitted in evidence on behalf of both parties and some of the witnesses were called to give evidence. Two witnesses, neither of whom are currently employed by the respondent and who were called on behalf of the complainant gave evidence of inappropriate advances by Mr. A. One of the witnesses, Ms. S who also made a written statement at the request of the committee stated that on a staff outing, Mr. A insisted on giving her a lift home and on the way home, he put his arms around her and tried to kiss her. At the hearing, when called on behalf of the complainant, she stated that Mr. A "lunged" at her on that particular occasion. The second witness, Ms. T submitted that on an occasion when she was looking for some references, Mr. A invited her to his house to collect them and when she was leaving, he asked her for a kiss. When she refused, he held her in a tight grip and attempted to kiss her. In relation to these two particular witnesses, Mr. A on cross-examination by the complainant's counsel submitted that in relation to Ms. S, he was drunk and the day after the incident, he apologised to her. In relation to Ms. T, he submitted that it was 5 years since the alleged incident occurred and he could not remember the incident clearly, but admitted that it was quite possible that he asked her for a goodbye kiss.
5.7 The respondent submitted a number of hand-written statements taken from various employees by two of the committee members, some of which are in the handwriting of one of the committee members and signed by the person to whom the statement is attributed. A number of witnesses gave evidence at the hearing that they also made statements at the request of Mr. A and one of the committee members gave evidence that after she received a letter from the Equality Authority, she went back to a lot of people to ensure that they were satisfied with the original statement they made. Some people revised their initial statements at that point. It would appear therefore that there are at least two and possibly three versions of witness statements in existence. A number of people were called on behalf of the respondent and provided character references for Mr. A and gave evidence of their perception of the relationship between the complainant and Mr. A. I note that some of the witnesses in question worked with the complainant for only one week before she left. I note also that some of the witnesses are currently employed by the respondent and work alongside Mr. A. In the light of these various factors in relation to the statements, I consider that a question arises as to the amount of weight which can be attributed to them.
5.8 Mr. A submitted that the complainant encouraged the type of behaviour which took place and that she regularly engaged in sexual banter in the office. During the hearing, the complainant agreed that she did engage in sexual banter at coffee time and Mr. A was there. She could not remember engaging in sexual banter with Mr. A when they were alone. In the Labour Court Determination in the case of A Company -v- A Worker AEE/00/1 Determination No. 018, the company while refuting 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 workplace. In that case, whilst the Labour Court accepted that there was some element of the complainant being a willing participant in sexual banter, it found that the treatment the claimant received and the atmosphere that was directed towards her to be totally unacceptable. The Labour Court went on to find in favour of the claimant. In the light of that case, the question whether the complainant engaged in sexual banter is irrelevant in deciding whether she was sexually harassed. However, I do not consider that the Labour Court case should be interpreted as a finding that sexual banter is permissible in any workplace and I consider that in certain circumstances, it could in itself constitute sexual harassment within the meaning of section 23(3)(c) of the Employment Equality Act, 1998.
5.9 The complainant alleges that Mr. A constantly attempted to grope her and pull her towards him and kiss her and that on one occasion he cornered her in the office and rubbed his private parts against her and that subsequently he exposed himself. Mr. A admitted to caressing and cuddling the complainant and kissing her on the cheek. He submitted that there was never any touching or fondling and he denied that he exposed himself to the complainant. The complainant was not specific in relation to times and dates of the incidents which she stated was due to the fact that she tried to forget what was happening to her. Mr. A was specific about dates and precisely what happened on each occasion even detailing on one of the occasions that he alleges they visited his house on their way from the local town the food they had to eat and the nature of the tasks that he carried out for his family whilst they were there. During the course of his evidence, Mr. A continuously referred to documentation and he clarified that he records everything and wished he recorded more. The complainant submits that she did not consent and that the conduct of Mr. A which went much further than was admitted by Mr. A was unwelcome to her. Mr. A admitted caressing and cuddling the complainant and kissing her on the cheek. I have considered the evidence given by Mr. A in relation to the limited nature of the relationship, that there was no relationship outside of the office, Mr. A did not have the complainant's contact number other than in his role as supervisor, his statement that he was embarrassed when he saw her breast feeding (notwithstanding the complainant's denial in this regard) and that these factors are inconsistent with a the existence of a normal consensual relationship. It appears to me that Mr. A assumed consent by the complainant to various treatment, that that treatment was unwelcome to her and could reasonably be regarded as sexually offensive, humiliating or intimidating to her. On the balance of probability, I find that the complainant was sexually harassed by Mr. A.
5.10 The complainant submitted a video in evidence which she recorded over a 45 minute period at the beginning of June 2001. The respondent submitted that the video did not contain any evidence of sexual harassment and that the complainant's reaction in the video is not natural and the whole sequence of the video was stage managed and choreographed by the complainant. It also submitted that the lack of an audio mechanism on the video is unhelpful. In the light of Mr. A's evidence at the hearing and my subsequent finding at paragraph 5.9 above, it is unnecessary for me to consider the video evidence submitted in respect of the claim.
Vicarious liability
5.11 Section 15(1) of the Employment Equality Act, 1998 provides:
'Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done without the employer's knowledge or approval.'
In the present case, there is no doubt but that the actions of Mr. A were carried out in the course of his employment and notwithstanding that the actions may have been carried out without the employer's knowledge or approval, the respondent is vicariously liable for the actions of Mr. A.
Section 15(3) Defence
5.12 Section 15(3) provides that:
'In proceedings bought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee -
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.'
At the time of the harassment, the respondent did not have any policies in place in relation to the prevention of sexual harassment in the workplace. It submitted at the hearing that it had since put such a policy in place and subsequently made available a copy of its policy. I am not satisfied as to the adequacy of the one page document (which also deals with bullying) in terms of preventing sexual harassment from occurring in the workplace and in the event that it does occur in providing an appropriate procedure for dealing with a complaint. In the present case, the employer had not taken any steps as were reasonably practicable to prevent sexual harassment occurring in the workplace and cannot therefore avail of the section 15(3) defence.
Actions taken by the respondent
5.13 The complainant submits that when she complained of sexual harassment, she was victimised by the management committee in that no proper investigation took place. She submitted that it was her and not Mr. A who was asked to stay away from work and she was left with no option but to resign. The respondent rejected the complainant's allegation that it failed to respond to the complainant's complaint and submits that the complainant was asked to take a week off so that the committee could investigate the complaint. It rejected the contention that it failed to carry out a proper investigation and submitted that the committee commenced an investigation immediately. The respondent submitted that two committee members met Mr. A the day after the complainant's complaint and he said that there was a close relationship and anything that happened was with full consent. Their initial investigations were with people who had left the respondent's employment and who knew both parties and had worked with them. It further submitted that all of their investigations revealed that no one had recalled any complaint from the complainant. They obtained written statements and brought the statements to their legal advisor and did not make any finding in relation to the complainant's allegation. I note that a number of the statements are in the handwriting of one of the committee members and are signed by the person alleged to have made the statement. It has also become clear that a second statement was made by some witnesses who were asked by the respondent whether they wanted to revise anything in their earlier statement. This was done after the Equality Authority contacted the respondent in the matter. The respondent submitted it made numerous attempts to contact the complainant through her partner but were unsuccessful and on 14 June sent her a registered letter.
5.14 It appears to me that the respondent was unclear on how to handle the sexual harassment complaint made. This was exacerbated by the respondent's failure to have policies and procedures in place to deal with complaints made either formally or informally. The failure to have such policies in place would also have had implications for the complainant in the situation that she found herself in that she could have been unsure where to direct her complaint, what she could expect to happen arising from her verbal complaint, whether the matter would remain confidential, what the procedure was for carrying out an investigation and what she could expect when the investigation was completed in circumstances where her complaint was upheld/not upheld. The respondent interviewed numerous persons who worked with the complainant, some of whom only worked with the complainant for a very short period of time. At the hearing, it was submitted by Mr. A that the committee did not caution him about keeping the matter confidential. He spoke individually to each person in employment after the committee approached him and submitted that he did not mention the word 'affair' but told everyone that they had a close personal relationship and he told them about the allegations. He also asked the other employees to make statements on his behalf. It appears that during the course of the respondent's investigation, there was a failure by the respondent to maintain
confidentiality in as far as possible.
5.15 It is not disputed that the complainant was asked to take a week off, however, the number of days for which the complainant was paid was disputed. The respondent submitted that it was hampered in its investigation as each attempt to contact the complainant was either ignored by her or interfered with by her partner. Whilst a sexual harassment complainant could be at fault for failing to make themselves available for the purposes of an investigation, I consider that in the circumstances of the absence of any policy for dealing with such complaints, the complainant would not have been aware of the procedure that was being followed. I have examined the letter of 14 June 2001 which was sent to the complainant and it points out that the complainant's place on the C.E. Scheme was available to her and states:
"Every effort will be made and every facility offered to agree suitable working arrangements and schedule with you, including having all your work carried out in the presents (sic) of female colleagues.
We look forward to meeting you to discuss your return to work and facilities.
Yours, ........ "
I am not satisfied that the letter makes proper provision for the complainant's return to work, for example, she was not provided with the contact details of any particular person to arrange a meeting to discuss her return to work. In any case, she should not have been requested to take time off following the making of her complaint.
5.16 This was the response of the committee to the situation which it found itself in and the complainant's response of 21 June 2001 was to state "I am currently under the supervision of my doctor. I am enclosing a doctor's certificate and will be unable to attend work at this time." The respondent submitted that Mr. A received a verbal warning at his initial interview with the committee and received a written reprimand on 16 August 2001. The letter of 16 August 2001 refers to the respondent's meeting with the complainant and her partner on 7 June 2001 and the Equality Authority letter regarding sexual harassment. It goes on to state:
"It is not sufficient to have spoken to you verbally on this matter we must also state in writing that the committee will not under any circumstances condone this type of behaviour.
We trust that any future working relationship will not be sulled (sic) by any instances of this matter. Yours sincerely,"
At the hearing, a committee member submitted that they issued the letter because their solicitor advised them to do so to show that they were aware of the complaint being made and to put it on the record. At the hearing, the respondent acknowledged that there were no implications for Mr. A as a result of being given the letter. It appears that there was an acknowledgement of some type of wrongdoing by Mr. A but that there was a failure to correlate that with any disciplinary proceedings against him. At the beginning of August 2001, the complainant wrote to the respondent requesting her P45 which was sent to her.
5.17 There were serious flaws in the manner in which the respondent handled the complainant's complaint in the absence of a policy on sexual harassment. These include requesting the complainant rather than the alleged harasser to remain at home whilst they carried out an investigation, the manner in which the investigation was carried out in relation to interviewing people, the taking of statements, the failure to maintain confidentiality in as far as possible, the failure to make any clear findings in relation to whether sexual harassment had occurred and communicate such findings to the complainant, the failure to take any disciplinary action against Mr. A in respect of his behaviour and the failure to make proper provision for the complainant's return to work. It would appear that in such circumstances, the complainant found herself unable to return to work and she alleges that she was victimised by the respondent within the meaning of the Employment Equality Act, 1998 and she was left with no option but to resign.
Victimisation
5.18 Section 74(2) of the Act provides, inter alia, that victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith -
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
5.19 The first issue for consideration by me is whether the complainant in the present case has established a prima facie case of victimisation. I must therefore consider whether the claimant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. Sexual harassment is expressly prohibited by section 23 of the Employment Equality Act, 1998. In making her complaint, the complainant was seeking to oppose by lawful means something which is clearly unlawful under the 1998 Act. In the light of the manner in which the investigation was conducted as detailed at paragraphs 5.13 - 5.17 above, I find that the complainant was penalised by the manner in which the investigation was carried out and that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. On the balance of probability, I find that the complainant has established a prima facie case of victimisation which the respondent has failed to rebut.
Code of practice on Sexual Harassment and Harassment at Work
5.20 The complainant referred to the Equality Authority Code of Practice on Sexual Harassment and Harassment at Work and submitted that it should be submitted in evidence in accordance with section 56(4) of the Employment Equality Act, 1998 as amended by paragraph (g) of the Schedule to the Equal Status Act, 2000. The Code was given legal effect by Statutory Instrument entitled 'Employment Equality Act, 1998 (Code of Practice) (Harassment) Order 2002' (S.I. No. 78 of 2002). As the Code of Practice was given legal effect post the events in issue in this case, I am not considering the Code in evidence in this particular case.
5.21 I consider that this case merits an order for the maximum amount of compensation. In making such an order, I am constrained by the amount paid per week to the complainant and the statutory ceiling on compensation.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 23 of the Act in relation to her conditions of employment. I also find that the complainant was victimised within the meaning of section 74(2) of the Act when she complained of the harassment.
6.2 In accordance with section 82(1) and (5) of the Employment Equality Act, 1998, I hereby order that:
1. the respondent pay the complainant the sum of €13000.00 compensation for the effects of the discrimination and victimisation;
2. the respondent pay the complainant interest at the Courts Act rate in respect of the whole amount of the compensation in respect of the period beginning on 29 November 2001 (being the date of the reference of the claim) and ending on the date of payment;
3. The respondent draft an Equal Opportunities Policy to take account of the provisions of the Employment Equality Act, 1998, if necessary, by liaising with the Equality Authority in relation to the matter and the policy to be displayed permanently in a prominent position in the respondent's premises.
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Mary Rogerson
Equality Officer
30 June 2003