Ms. B(Represented by Rory Mac Cabe S.C. and Alan Toal B.L. instructed by Binchys Solicitors) -v- An Employee(Represented by Peter O' Boyle & Company) and A Prison Governor, The Minister for Justice, Equality and Law Reform and the Attorney General(Represented by Tony Kerr B.L. instructed by the Chief State Solicitor's Officer)
1. DISPUTE
1.1 This dispute concerns a claim by ACO B that ACO X, A Prison Governor, The Minister for Justice, Equality and Law Reform and the Attorney General discriminated against her on the gender ground within the meaning of Section 2(a) of the Employment Equality Act, 1977 and in contravention of section 3 of that Act in relation to her conditions of employment.
2. BACKGROUND
2.1 The complainant is an Assistant Chief Officer within the Prison Service. She submits that over the last number of years, she has had to contend with a continuum of discriminatory conduct by a colleague which culminated in an incident of unnecessary physical contact on 8 March 1999. She alleges that she has been discriminated against on the ground of gender. The Chief State Solicitor's office submitted on behalf of the Governor and the Prison Service that ACO B has an absolute right to work in an atmosphere free from sexual harassment or bullying and that the Governor set in train an investigative and disciplinary process designed to protect that right. ACO B's situation was treated within the framework of the disciplinary code with the promptest and most serious response.
2.2 On 30 March 2000, the claimant referred a claim of discrimination from 8 March 1999 to the Labour Court in accordance with section 19 of the Employment Equality Act, 1977. As the claim was not referred within six months of the first occurrence of the act alleged to constitute the discrimination, the Labour Court investigated the matter of the time limit for referring the claim. On 3 July 2000, it issued a decision that it was satisfied that reasonable grounds had been shown by the employee as to why a reference of the dispute was not lodged within the time limit stipulated in Section 19(5) of the Employment Equality Act, 1977.
2.3 The Labour Court referred the claim to the Director of Equality Investigations on 19 July 2000. On 1 August 2000, in accordance with her powers under section 75 of the Employment Equality Act 1998 (which repealed the Employment Equality Act 1977), the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the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. A written submission on the substantive issue of discrimination was received from the claimant on 6 October 2000 and a submission on behalf of the second, third and fourth named respondents was received on 11 December 2000. A submission from the first named respondent requesting that his name be struck out of the proceedings was received on 26 March 2001. On 5 July 2001, the Equality Officer proposed a hearing on 6 September 2001. An adjournment of that date was sought and a number of other adjournments ensued. A hearing of the discrimination claim was held on 12 December 2002. The claimant's submission on the issue of vicarious liability was received post the hearing of the substantive matter and a supplementary hearing on the issue of vicarious liability was held on 7 January 2004.
3. SUMMARY OF THE CLAIMANT'S SUBMISSION ON THE SUBSTANTIVE ISSUE
3.1 The complainant is an Assistant Chief Officer within the Prison Service. She submits that since July 1995, she has had to contend with a continuum of discriminatory conduct by a colleague in the form of unsolicited physical conduct on the one hand to more subtle and assiduous forms of conduct on the other such as sex based insults and taunting. On 8 March 1999, the complainant alleges that she was physically assaulted by ACO X. The claimant submits that the treatment she received was unwanted, unwelcome, unjustified, persistent, intimidating and offensive to her and her working environment was made intolerable as a consequence.
3.2 The attitude adopted by the second named respondent in defence of the claimant's case is that because she failed to comply with the seven day rule set out in the Prison (Disciplinary Code for Officers) Rules 1996 for making an allegation against an officer for a breach of prison discipline, she is now precluded from obtaining substantive relief by means of the internal mechanism.
3.3 Section 7(2) of the Prison (Disciplinary Code for Officers) Rules , 1996 (S.I. No. 289 of 1996) provides that:
"An allegation against an Officer of a breach of discipline shall be made to the Governor as soon as practicable, but not later than 7 working days, after the coming to the notice of a relevant superior officer of the information which gave rise to the allegation."
Paragraph 22 of the First Schedule which is entitled "Acts or Omissions by an Officer constituting breaches of discipline" provides that a breach of discipline occurs where a person engages in behaviour of a sexual nature while on duty towards another person to which that person objects or could not reasonably be expected to consent including -
(a) unnecessary physical contact,
(b) lewd or suggestive behaviour, whether verbal or physical,
(c) sexually derogatory statements or sexually discriminatory remarks, and
(d) displaying pornographic or sexually explicit material.
The claimant submits that the Prison Authorities and specifically ACO X breached paragraphs (a) to (c) above in relation to sexual harassment for which no effective or realistic action or sanction has either been taken or imposed. He did and continued to do the acts in question without sanction at a time when the prison authorities knew or ought reasonably to have known of his conduct.
3.4 By letter dated 8 June 1999, the second named respondent appointed Chief Officer P to investigate the complaint made by the complainant in her letter dated 19 March 1999 wherein she detailed multiple allegations of sexual harassment since 1995 culminating in the incident on 8 March 1999. Chief Officer P investigated the complainant's complaints fully and fairly and presented fifteen charges to a formal hearing on 5 November 1999. The oral hearing dealt with one allegation only relating to an incident on 8 March 1999. The claimant submits that the formal oral hearing of the charges against ACO X was fundamentally flawed by the respondents' oversight in appointing ACO X's brother-in-law as the person entrusted with recording the transcript. The claimant subsequently sought clarification of the reasons why:
1. all charges prepared and investigated by Chief Officer P were not brought against ACO X;
2. there had been selected editing of the transcript;
3. was ACO X's brother-in-law appointed to record the transcript.
3.5 The claimant submits that when she raised these issues with the Governor, she was advised by him that:
1. "You're the cheekiest of the cheekiest";
2. "Little Miss Perfect who makes no mistakes";
3. That he would not deal with the sexual harassment issues;
4. That she was devious and vindictive;
5. That she has only formally complained because of what had happened in the Keys Office on the 8th of March 1999.
3.6 The claimant submits that her confidence in what was supposed to represent her formal internal grievance procedure was nullified by what she perceived as a perpetuation of the mistreatments being suffered and ultimately instructed solicitors to pursue the matter further on her behalf. Due to the passage of time, the claimant applied to the Labour Court for an extension of time within which to refer her claim and the application succeeded without limitation as to the date on which the cause of action accrued. The claimant submits that the totality of the evidence in this case must be considered all of which culminated in the assault of the complainant on 8 March 1999.
3.7 The complainant submits that it was envisaged by section 2 of the Employment Equality Act, 1977 that it would be sufficiently broad in its import to encompass a situation within the workplace where an employee subjected to unsolicited and unwelcome sexual conduct by a person or persons who stand in a position of power in relation to an aggrieved employee constitutes discrimination within the meaning of the section. The claimant submits that she has been treated less favourably contrary to section 2(a) of the Employment Equality Act, 1977 and the conduct in question amounted to less favourable treatment by reason of sex.
4. SUMMARY OF THE CLAIMANT'S SUBMISSION ON THE ISSUE OF VICARIOUS LIABILITY
4.1 The claimant refers to the persuasive nature of Walters v. The Commissioner of the Metropolitan Police (2000) AER 934 as authority for the proposition that:
1. Where an employer knew that acts done by employees during their employment might cause physical or mental harm to a particular fellow employee and he did nothing to supervise or prevent such acts when he had the power to do so, it was clearly arguable that he might be in breach of his duties to that employee.
2. Additionally, he might also be in breach if he could foresee that such acts might happen and that, if they did, physical or mental harm might be caused to an individual.
4.2 The complainant also refers to the case of Coppen v. Moore (No. 2) (1898) 2.QB.306 which relates to the determination of vicarious liability within the context of and consideration of criminal matters. Further and in the alternative, in those classifications where a duty is thrown on a particular category of persons e.g. Licence holders, it has been held that if that person has delegated his responsibility to another, the mens rea of the delegation will be imputed to the principal so as to make the latter liable - Linnett v. Metropolitan Police Commissioner (1946) KB.290.
4.3 It is submitted that the respective respondents are estopped in law from relying on the defence of vicarious liability. The respondents' contention that an employer is only liable for acts which he or she has not authorised, where those acts are so connected with acts which he or she has authorised that they may be rightly regarded as modes, albeit improper modes is a proposition which the respondents cannot in fact or in law rely. The preponderance of evidence in this case supports the proposition that the respondents and particularly those in a management capacity had full knowledge of the conduct being engaged in by the first named respondent. Their silence and failure to act must be viewed as acquiescence imputing to them full and actual knowledge of the state of affairs as they subsisted.
5. SUMMARY OF THE FIRST NAMED RESPONDENT'S SUBMISSION
5.1 On 20 March 2001, the first named respondent's legal representative requested that ACO X' name be removed from the proceedings. He submitted that the claim is made under the Employment Equality Act, 1977 which imposed a number of obligations on employers and that ACO X was not an employer and more particularly, he was not ACO B's employer. The 1977 Act inserted an equality clause into every contract of employment. Contracts of employment are entered into between employers and employees and are not entered into between employees. ACO B cannot therefore enforce that clause against ACO X.
5.2 The first named respondent submitted that the powers enjoyed by Equality Officers are incapable of being exercised against persons other than employers save where expressly provided by statute. ACO X submits that in his capacity as an employee, he is not subject to any duty to ACO B derived from or arising out of the Employment Equality Act, 1977. He submitted that an Equality Officer investigating a complaint has no power to make a recommendation directed to him.
6. SUMMARY OF THE SECOND, THIRD AND FOURTH NAMED RESPONDENTS' SUBMISSION ON THE SUBSTANTIVE ISSUE OF DISCRIMINATION
6.1 The second named respondent submits that the incident on 8 March 1999 first came to his attention on 10 March 1999 when ACO X reported to him that the claimant had on that date jumped away from him shouting:
"Stop rubbing yourself against me or I will land you up in front of the Governor again."
ACO X denied that he had made physical contact with the claimant. The claimant responded with her own report of 15 April 1999 in which she alleged that ACO X had made physical contact with her on 8 March 1999 and that the incident formed part of a pattern of behaviour towards her which went back to 1995. On 7 April and 22 April 1999, ACO X responded and denied the claimant's allegations. The claimant then responded to ACO X's report by report dated 30 April 1999 in which she made a formal complaint against ACO X.
6.2 The second named respondent submits that on 8 June 1999, he notified both parties that he had instructed Chief Officer P to carry out an investigation into the claimant's complaints as set out in her letter of 30 April 1999. On 12 July 1999, Chief Officer P reported to the Governor that of a total of 15 allegations outlined in the claimant's complaint of 30 April 1999, there was evidence to support ten of them. ACO X was charged with sexual harassment pursuant to section 22 (a), (b) and (c) of the Prison (Disciplinary Code for Officers) Rules, 1996 in relation to his behaviour towards the claimant on 8 March 1999.
6.3 The second named respondent submits that an oral hearing was held on 5 November 1999. A copy of the draft minutes of the meeting was given to the claimant who was asked to approve them in order that the Governor could finalise the matter. On 24 November 1999, the complainant wrote to the Governor and raised three issues in relation to the oral hearing. On 25 February 2000, the Governor again requested the claimant to return the draft minutes to enable him to finalise the case. In the absence of the claimant's approval of the minutes of the oral hearing, the Governor made a decision to conclude the case. As a result of the charge made against him under section 22(a), (b) and (c) of the Prison (Disciplinary Code for Officers) Rules 1996, ACO X was found guilty and awarded a reprimand. He was further instructed to have no contact with the claimant save for official purposes and only then in the interest of the smooth running of the prison. A copy of the Governor's finding was given to the claimant.
6.4 The second named respondent submits that the claimant's letter to the Governor dated 24 November 1999 inquired why:
(a) all the charges as set out in Chief Officer P's report were not made against ACO X;
(b) the transcript of the oral hearing was selectively edited;
(c) ACO X's brother in law was detailed to take the minutes of the meeting.
6.5 The second named respondent submits that in relation to the claimant's inquiries regarding ACO X's brother-in-law taking the minutes of the meeting, the Officer who was originally detailed to be the stenographer on that occasion was unavoidably absent on the date in question and Acting Assistant Governor S was asked to take his place. It was not known at any stage prior to or during the oral hearing that the stenographer was in any way related to ACO X. In relation to the claimant's inquiry regarding the transcript, it is submitted that the claimant has not clarified the selective editing which she alleges occurred.
6.6 In relation to the claimant's query why all of the ten items of behaviour set out in Chief Officer P's report and dating back to 1995 were not charged against ACO X, it is submitted that disciplinary complaints against officers must be processedunder the Prisons Disciplinary Code where it is provided at section 7(2) that:
"An allegation against an officer of a breach of discipline shall be made to the 'Governor as soon as practicable, but not later than 7 working days, after the coming to the notice of a relevant superior officer of the information which gave rise to the allegation."
6.7 None of the allegations made by the claimant were made within the prescribed 7 day limit. Notwithstanding this, the Governor made it possible by relying on the "in time" notification of ACO X dated 10 March 1999 (not the claimant's complaint which is out of time) to commence the investigation and subsequent oral hearing. The claimant has not at any stage since 1995 ever formally complained of any behaviour against her within such time frame or in such format as complies with the Disciplinary Rules and time limits set out therein such as would have enabled the respondent to act within the context and constraints of the Rules. With regard to the other matters found by Chief Officer P to have been proven during the course of his investigation, the Governor was constrained by the provisions of section 7(2) of the Rules in proceeding to formally charge ACO X.
6.8 Assistant Governor D had spoken to the claimant on 26 July 1995 and had invited her to make a complaint against ACO X and two years later as recounted by the claimant in her statement of 30 April 1999, she approached the Governor informally about the problem and arising from her approach, the Governor warned ACO X. At that time, the Governor apprised the claimant that he was constrained in taking any formal action against ACO X in the absence of an official complaint by her under the Disciplinary Code. The claimant declined to make such a complaint and she was advised and was at all times aware of the procedure available to her should she decide to place the matter on the formal footing necessary in order for the Governor to take action.
6.9 The second named respondent submits that ACO B's situation was treated within the framework of the disciplinary code with the promptest and most serious response - the holding of an oral disciplinary hearing at which she was afforded an opportunity to complain, produce evidence and have the matter determined impartially. The offending officer was found guilty and reprimanded.
7. SUMMARY OF THE SECOND, THIRD AND FOURTH NAMED RESPONDENTS SUBMISSION ON THE ISSUE OF VICARIOUS LIABILITY
7.1 The second, third and fourth named respondents point out that the relationship of employee and employer does not exist between the first named respondent and any of the remaining respondents. They are all fellow employees of the State: see Carolan v. Minister for Defence [1927] IR 62. These respondents could only be liable in tort in respect of wrongs actually authorised by them. They cannot be held vicariously liable for any of the actions of the first named respondent.
7.2 In relation to the Judgement of Costello J. in The Health Board v. BC and the Labour Court [1994] E.L. R. 27, the Equality Officer is bound by that decision to consider whether the first named respondent was acting within the scope of his employment. That would be so only where the act complained of was either (1) a wrongful act authorised by the employer or (ii) a wrongful and unauthorised mode of doing some act authorised by the employer: see Reilly v. Ryan [1991] ILRM 449.
7.3 An employer is only liable for acts which he or she has not authorised where those acts are so connected with acts which he or she has authorised, that they may be rightly regarded as modes - albeit improper modes of doing them. The respondents submit that the act complained of falls into neither of these two categories and accordingly, no question of vicarious liability can arise. If the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the employer is not liable; in such a case the employee has gone outside the scope or course of his employment.
7.4 The cases referred to by the claimant, in particular, Coppen v. Moore [1898] 2 QB 306 and Linnett v. Metropolitan Police Commissioner [1946] KB 290 do not impact on the correctness of Costello J in the BC case. The two aforementioned decisions are concerned with the doctrine of "strict liability" in the criminal context not with the doctrine of "vicarious liability" in the civil context.
8. CONCLUSIONS OF THE EQUALITY OFFICER
8.1 In the claim referred, I must consider whether or not the respondents discriminated against the claimant on the gender ground in terms of section 2(a) of the Employment Equality Act, 1977 and in contravention of section 3 of the Act in relation to her conditions of employment.
8.2 A number of preliminary issues were raised in this case and I will refer briefly to them.
(i) Request to amend the claim to include events prior to 8 March 1999
By letter dated 26 September 2000, the claimant sought to amend the claim to include incidents beginning on 26 July 1995. The Chief State Solicitor's Office objected to the claimant's request in its written submission received on 11 December 2000. The claimant had referred a complaint to the Labour Court in respect of alleged sexual harassment from "8th March 1999 to date." As mentioned at paragraph 2.2 above, the Labour Court on 3 July 2000, issued a decision that it was satisfied that reasonable grounds had been shown by the employee as to why the complaint was not referred in time and it granted an extension of time in respect of a claim of discrimination from 8 March 1999. The complaint was subsequently referred by the Labour Court to this office for investigation. The Equality Officer by letter dated 20 December 2000 advised the parties that she did not have the power to amend the claim which was referred by the Labour Court and that she would not therefore investigate a claim of discrimination in relation to any incidents occurring before 8 March 1999. By letters dated 17 October 2001 and 12 February 2002, the Equality Officer asked the complainant's representative to confirm that she had full details of sexual harassment allegations being made. By letter dated 26 March 2002, the complainant's representative confirmed to the Equality Officer that she had "full details of all allegations that are to be considered by you at this hearing." This claim therefore deals with one incident of alleged sexual harassment on 8 March 1999.
8.3 (ii) Issue of the correct respondent
By letter dated 16 October 2000, the Chief State Solicitor's office queried the title of the proceedings. It submitted that it had authority to accept proceedings on behalf of the Governor, the Prison, the Minister for Justice, Equality and Law Reform and the Attorney General. It submitted that it did not have jurisdiction to accept service on behalf of ACO X, the first named respondent. ACO X was then put on notice of the proceedings. On 23 October 2000, the Equality Officer requested the claimant's representative to clarify why the alleged harasser, ACO X, the Minister for Justice, Equality and Law Reform and the Attorney General had been named as respondents. The first written submission from the Chief State Solicitor's office received on 11 December 2000 also referred to the matter and the Equality Officer again raised the matter with the claimant. The matter was not addressed notwithstanding various reminders from the Equality Officer. The Equality Officer raised the issue of the correct respondent at the hearing of the claim. Counsel instructed by the Chief State Solicitor's office submitted that none of the respondents named are the correct respondents and that the appropriate respondent is the State.
8.4 I have considered section 3(1) of the Employment Equality Act, 1977 which provides:
"A person who is an employer or who obtains under a contract with another person the services of employees of that other person shall not discriminate..........."
Section 3(1) clearly obliges two categories of person not to discriminate in employment. Section 1(1) provides that employer in relation to an employee:
"means the person by whom the employee is employed under a contract of employment, and for the purposes of this definition a civil servant of the State or of the Government shall be deemed to be employed by the State or the Government........"
8.5 The claimant in this case being a prison officer is a civil servant of the State. It appears that the Governor has been named as a respondent on the basis that he is the representative of the prison authorities and the person who has the direction and general control of the Prison Officers in the prison. I am not satisfied as to the correctness of naming the Governor as a respondent in the within proceedings under the Employment Equality Act, 1977 on the basis that he is a fellow civil servant of the claimant and is not the claimant's employer. The Minister for Justice, Equality and Law Reform has also been named as a respondent. The issue of the correct respondent was considered in a Labour Court case concerning a discrimination claim brought by a Garda against The Commissioner, An Garda Siochana and the Minister for Justice, Equality and Law Reform.1 In that case, the Court stated:
"A preliminary issue arose in this case, namely whether the Minister for Justice, Equality and Law Reform was properly cited as a Respondent in the case. The Court is satisfied that it was unnecessary but not improper to cite the Minister as employer along with the Commissioner of An Garda Siochana. The Commissioner clearly has the general direction and control of the Gardai, but members of the Gardai are state employees under the Department of Justice, Equality and Law Reform. The State is thus ultimately responsible to the claimant, and the latter Department is the appropriate arm of the State."
8.6 I note that the Ministers and Secretaries Act, 1924 provides at section 1 that:
'each Department and the powers, duties and functions thereof shall be assigned to and administered by the Minister'
If I follow the reasoning of the Labour Court in the above mentioned case, I would consider that the State is ultimately responsible to the claimant and the Department of Justice, Equality and Law Reform is the appropriate arm of the State and that the Minister has been named in the within proceedings as head of the relevant Department. I will return to this issue later when dealing with the issue of liability.
(iii) First named respondent's request to have his name struck out
8.7 As referred to at paragraphs 5.1 and 5.2 above, the first named respondent's legal representative requested by letter dated 20 March 2001 that his name be removed from the proceedings. ACO X's representative was advised by the Equality Officer that she would take the contents of the letter of 20 March 2001 into account when drafting a recommendation in the matter. As Equality Officer, I have no power to strike out the first named respondent from the current proceedings, however, I consider that he is not an appropriate respondent as he is not an employer and I have no power to recommend redress against him in the event that I find in favour of the complainant.
The complaint of discrimination
8.8 I will now address the substantive issue of discrimination. It is well settled that sexual harassment constitutes discrimination on the gender ground. The Labour Court has stated that:
"... freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect. The court will, accordingly, treat any denial of that freedom as discrimination within the meaning of the Employment Equality Act, 1977."2
In the High Court case of the Health Board v. B.C. and the Labour Court, Costello J clarified that sexual harassment was discrimination within the meaning of section 2 of the Employment Equality Act, 1977. He stated:
"The acts of the claimant's fellow employees were not only acts amounting to sexual harassment but they also amounted to acts of "discrimination" within the meaning of section 2 of the 1977 Act because, by reason of her sex, the claimant was treated less favourably than persons of the other sex were treated."
8.9 The claimant in this case alleged that an act of discrimination in the form of sexual harassment occurred on 8 March 1999. I must therefore firstly consider (i) whether the claimant has established on the balance of probability that she was sexually harassed on that date. If I find that the claimant has established that she was sexually harassed, I must then consider (ii) whether the claimant's employer is liable for the harassment. If I find that the claimant's employer is liable, I must consider as a defence (iii) whether the employer took reasonable action to prevent sexual harassment occurring in the workplace and whether the employer dealt adequately with the claimant's complaint of sexual harassment.
Was the claimant sexually harassed?
8.10 The submission on behalf of the second, third and fourth named respondent states that ACO X was found guilty by the Governor of the charge made against him under section 22 of the Prison Rules 1996 (which, inter alia, deal with sexual harassment) in relation to the incident on 8 March 1999. In an affidavit filed in the High Court by the second named respondent in a Judicial Review case brought by ACO X, the alleged perpetrator in this case, he submitted:
"I say that as a result of the oral hearing and the evidence adduced therein I found the applicant [ACO X] guilty of the charge made against him under Section 22 of the 1996 Rules in relation to the incident of 8 March 1999. ........In taking such a decision I was satisfied both on the written and oral submissions that the events took place as described by [ACO B] and that they constituted sexual harassment, in particular unnecessary physical contact. I found as a fact that the applicant [ACO X] had, without good reason, rubbed up against [ACO B] and that this behaviour constituted sexual harassment."
In the Judicial Review application by ACO X, a copy of Senior Counsel's agreed note of the ex-tempore judgement of Mr. Justice Murphy dated 21 December 2001 indicates that Mr. Justice Murphy considered that there was evidence of contact. He also considered that there was enough evidence before the Governor to sustain the charge of unnecessary physical contact. Under section 22 of the Prison (Disciplinary Code for Officers) Rules, 1996 (S.I. 289 of 1996), sexual harassment includes unnecessary physical contact. Therefore, once a finding of sexual harassment was made, it fell to be dealt with under the Code. Taking all of the evidence into account, it is not in dispute that the claimant was sexually harassed on 8 March 1999.
Direct liability
8.11 The claimant is a servant of the State and in actions against the State, Ireland is normally named as the defendant. However, in this case, the Minister for Justice has been named as a respondent. I will now deal with the liability of the Minister for the harassment which occurred. Section 2(1) of the Ministers and Secretaries Act, 1924 provides:
"Each of the Ministers, heads of the respective departments of State shall be a corporation sole under his style or name aforesaid and shall have perpetual succession and an official seal and may sue and be sued."
Sullivan J. in the High Court case of Carolan v. The Minister for Defence3 acknowledged that one of the functions of section 2 was to enable the Minister to be sued:
"in his corporate capacity for a wrongful act done by him as such Minister, or by his orders or directions, I cannot think that the Legislature intended to go further, and create by this section a liability in each Minister for all wrongful acts or defaults of all the persons employed in his Department."
If the intention of the claimant in naming the Minister for Justice, Equality and Law Reform was to make him directly liable for the actions of ACO X under section 2 of the Act of 1924, then liability could only attach where the Minister himself committed the act of harassment or ordered or authorised it. The issue of the Minister having committed the act of sexual harassment does not arise in this case and it has not been submitted by the claimant that the Minister authorised or ordered the act. In the circumstances, I do not consider that the Minister can be held to be directly liable.
Vicarious liability
8.12 I must now consider whether the Minister can be held to be vicariously liable. Sullivan J. in the aforementioned Carolan case held that there was no relationship of master and servant between an army driver and the Minister for Defence which would ground a claim of vicarious liability. He stated that:
".... members of the armed forces of the State are servants of the public in the employment of the Government, and, as such, fellow-servants of the Minister for Defence, for whose neglect or default he would not prima facie be liable."
He considered the legislation in relation to enlisting recruits to the Defence Forces and further stated:
"... It is clear from these provisions that in no sense can the private soldier with whom we are concerned in this case be held to be a servant or agent of the Minister for Defence so as to make the latter, as principal or master, or at all, liable for wrongful acts of the soldier done in the course of his duty or service. I am also satisfied that there can be no implication of law from the words of the Ministers and Secretaries Act, 1924, to impose any liability upon him in respect of such acts."
8.13 It would seem therefore that vicarious liability cannot attach to the Minister for the wrongs of civil servants committed within the scope of their employment and if I am to consider the issue of vicarious liability, I must do so in the context of the State as employer of the claimant. As this case was referred for investigation under the Employment Equality Act, 1977, I must have regard to the High Court case of The Health Board v. B.C. and the Labour Court4 which concerned the violent sexual assault of an employee by two fellow employees. The issue of vicarious liability of an employer for the tortious acts (including statutory torts) of his employee was considered in some detail. The High Court accepted that the acts of the claimants fellow employees were not only acts amounting to sexual harassment but they also amounted to acts of discrimination within the meaning of the section 2 of the Employment Equality Act, 1977 because by reason of her sex, the claimant was treated less favourably than persons of the other sex were treated. It noted that section 3 of the Act prohibits acts by employers and the Health Board did not itself commit the acts which were the subject of complaint. The Court stated that the Health Board only infringed the section if it was vicariously liable for what its employees did on the date in question.
8.14 Costello J. went on to state:
"In the absence of express statutory provision the law in this country in relation to the liability of an employee for the tortious acts (including statutory torts) of his employee is perfectly clear - an employer is vicariously liable where the act is committed by his employee within the scope of his employment."
He held that the appropriate test for vicarious liability was "whether the employees were acting within the scope of their employment ......." in relation to the act of sexual harassment which occurred in that case. He concluded that the employees in question were not acting within the scope of their employment and the Health Board was not therefore vicariously liable for their acts.
8.15 In sexual harassment cases since the BC Judgement, the Labour Court has found the employer vicariously liable where the harasser was in a position of power. In this regard, I have considered the Labour Court Determinations in the cases of A Company v. A Worker 1994 ELR 203 and A Worker v. A Company 1996 ELR 85 where a person in authority sexually harassed a more junior employee. The findings of the Labour Court in both cases were similar. In the latter case, the Labour Court held:
"The actions committed by the head chef were clearly committed within the scope of his employment in that he was responsible for the supervision and management of staff, and he chose to exercise those responsibilities in such manner as the court has found amounted to sexual harassment. It was in the performance of his own duties that he harassed the employee and that harassment amounted to discrimination within the meaning of section 3(4) of the Act."
8.16 I must therefore address whether ACO X was acting in the scope of his employment when the sexual harassment of the complainant occurred. The complainant's submission received on 6 October 2000 states that when the 1977 Act was brought into operation, it was envisaged that it would be sufficiently broad in its import to encompass a situation within the workplace where an employee subjected to unwelcome sexual conduct by a person "who stands in a position of power" in relation to the aggrieved employee constitutes discrimination. However, the complainant has not submitted that the perpetrator in this instance stood in a position of power in relation to her. In this case, ACO X was the same grade as the complainant. He had not been given any authority over staff by his employer and he had no responsibility for the supervision and management of the complainant or other staff. The act of sexual harassment was not connected with the functions which ACO X as a prison officer was authorised to perform and it could not be considered to be an unauthorised act so connected with his functions that his employer could be considered to be responsible. I do not therefore consider that ACO X was acting within the scope of his employment in relation to the act of sexual harassment which occurred on 8 March 1999. The State as the employer of ACO X is not therefore vicariously liable for the act of sexual harassment perpetrated by him on 8 March 1999.
8.17 Harvey and Twomey in 'Sexual Harassment in the Workplace' published prior to the enactment of the Employment Equality Act, 1998 refer to this difficulty for claimants under the earlier legislation. They state: "The first question which any court or tribunal must ask itself in considering a sexual harassment case is whether or not the claimant was actually sexually harassed, within the meaning attributed to that term by the law. That is not, however, the only question which the court or tribunal must consider. The second and equally important, question is whether or not the claimant's employer is legally liable for any harassment which occurred. It is as a result of the answer given by the courts to this second question that many otherwise sound claims have fallen."
Defences raised by employers
8.18 Employers often rely on the defence of having taken all reasonable steps to prevent the sexual harassment of employees taking place. The defence involves the employer relying on the fact that they have implemented and enforced an adequate sexual harassment policy and complaints procedure. Whilst strictly speaking, it is not necessary for me to proceed to consider this issue as I have not found the Minister directly liable or the State vicariously liable, in an attempt to be comprehensive, I will briefly consider the matter. I will do this whilst at the same time bearing in mind that Mr. Justice Murphy in his Judgement in the Judicial Review application has referred to a number of issues which are relevant to this case.
Steps taken to prevent sexual harassment
8.19 I will briefly consider the steps taken to prevent sexual harassment in the
workplace. The employer at the time of the incident in March 1999 did not have a policy in relation to the prevention of sexual harassment in the workplace and it was dealt with by means of the Prison (Disciplinary Code for Officers) Rules, 1996. Effectively, this meant that an allegation of sexual harassment against another person was treated as a breach of discipline and fell to be processed in a particular manner in accordance with the Code. In my view, this was totally unsatisfactory and I refer to the statement of Mr. Justice Murphy that 'There is very good reason to avoid sexual harassment by way of a Code of Discipline'. At the hearing, it was submitted that in 1999, the employer tried to introduce a policy document on bullying and harassment, however, problems arose in relation to its implementation. At the time of the incident which is the subject of these proceedings, the employer did not have a policy on sexual harassment and clearly fell short of its obligations. Of course, it is not sufficient for an employer to have a policy on the prevention of sexual harassment in the workplace and the policy should be made available and brought specifically to the attention of every member of staff. If it had been necessary for me to consider as a defence the steps taken to prevent sexual harassment in this case, the claimant's employer would have had a difficulty proving that it took reasonable steps to prevent the occurrence of sexual harassment in the workplace. It appears that appropriate steps have still not been taken to remedy this matter. It is my understanding that the Prison (Disciplinary Code for Officers) Rules, 1996 is still operative and that a draft bullying and harassment policy has been drawn up and that the policy in draft form is being used. I consider that it would be prudent for the Prison Service to take action in relation to these two issues forthwith.
Actions taken following the claimant's formal complaint to management
8.20 I will now consider what happened when the claimant made her complaint. In this case, the claimant indicated in her report to the Governor dated 30 April 1999 that "This situation is way beyond informal resolution, and I wish to lodge a formal complaint against [ACO X.]" The Governor then appointed Chief Officer P to investigate the complaints made by the claimant and the claimant in her submission states that the complaints were investigated fully and fairly. In a report from the investigator dated 12 July 1999, the investigator concluded that ten of the fifteen complaints against ACO X were proven. The Governor submitted that ACO X was then charged with sexual harassment pursuant to section 22(a), (b) and (c) of the Prison (Disciplinary Code for Officers) Rules
1996 on 31 August 1999.
8.21 Subsequently an oral hearing was held in relation to one incident only, that being the incident of 8 March 1999. At the hearing of this claim, the Governor stated that once the investigation was completed by Chief Officer P, the only way to progress the matter further was by way of the Code of Discipline. He submitted that the reason that only one incident was considered at the oral hearing on 5 November 1999 was because the Governor was constrained by the seven day rule for making a complaint under the Disciplinary Code. The Governor submits that as a result of that hearing, ACO X was found guilty of the charge made against him under section 22 of the Disciplinary Rules of having unnecessary physical contact with the complainant and he was awarded a reprimand. In accordance with the Disciplinary Code, the Minister for Justice, Equality and Law Reform
subsequently confirmed the finding of the Governor. By High Court Order dated 21 December 2001, Mr. Justice Murphy quashed the decision of the Minister confirming a finding by the Governor that ACO X was guilty of a charge of sexual harassment contrary to section 22 of the first schedule of the Prison (Disciplinary Code for Officers) Rules 1996 and a recommendation that ACO X receive a reprimand. An Order of Certiorari was granted on the ground that the nature of the complaint giving rise to the said decision was made outside the seven day time limit provided by Regulation 7(2) of the Disciplinary Code and the Memo of Understanding.
8.22 In order to clarify the time limit for bringing a complaint, the Disciplinary Code had to be read in conjunction with the Memo of Understanding agreed under the Conciliation and Arbitration Scheme. The Memo of Understanding clarified that a complaint against another officer must be brought within seven working days. Mr. Justice Murphy considered that the Memo of Understanding clearly had a contractual effect. The fact that the complaint of sexual harassment had to be dealt with by means of the Code was restrictive in terms of how the complaint could be processed and in terms of the time frame for making a complaint. I have serious concerns about a 7 day time limit for making complaints in terms of providing adequate protection to a victim of sexual harassment. In the instant case, I consider that the second named respondent was somewhat constrained by the operation of the 7 day rule under the Disciplinary Code once it was satisfied that
it was dealing with an allegation of sexual harassment and I again refer to Mr. Justice Murphy's statement that 'There is very good reason to avoid sexual harassment by way of a Code of Discipline'
8.23 Finally, I will now deal with the three specific issues raised by the complainant concerning the manner in which the oral hearing was conducted and in particular, that:
(a) all the charges as set out in Chief Officer P's report were not made against ACO X;
(b) the transcript of the oral hearing was selectively edited; (c) ACO X's brother in law [Acting Assistant Governor S] was detailed to take the minutes of the meeting.
The Governor submitted that the reason that all of the complaints proven against ACO X were not brought against him was that the allegations made by the claimant were not referred within the time limit prescribed by section 7(2) of the Prison (Disciplinary Code for Officers) Rules, 1996. He stated at the hearing of this claim that in having an oral hearing under the Code of Discipline, he was constrained by the 7 day rule for making a complaint and could therefore only have a hearing in relation to the incident on 8 March 1999. In order to treat the complaint as made in time, the Governor treated the report of the incident dated 10 March 1999 made by ACO X as the complaint. The matter of the other charges which were not dealt with at the hearing was referred to in Mr. Justice Murphy's judgement in the Judicial Review case and he accepted that the other charges
were clearly out of time.
8.24 In relation to the notes of the hearing, the Governor indicated that every word and statement is not recorded and the notes only record important issues at the hearing and the Code makes that clear. He also submitted that his secretary normally takes the notes of disciplinary hearings and on that particular day, she was out sick. He then went to Assistant Governor C's office to ascertain if she was available and her office was closed. He revisited her office at 2pm and Acting Assistant Governor S whose office was next door to Assistant Governor C asked him if he could help and that was how Acting Assistant Governor S became involved in the hearing. He submitted that he was not aware of the relationship between ACO X and Acting Assistant Governor S at that time and only became aware subsequently when informed by the complainant. As the complainant did not offer any further evidence to contradict the second named respondent's statement, I accept his statement in the matter. The claimant submitted that when she approached the Governor in relation to the three issues, he called her names.
At the hearing of this claim, the Governor submitted that he found offensive the claimant's letter of 24 November 1999 which raised the issues as he worked on an impartial basis and had to contend with the claimant's innuendo that he planted Acting Assistant Governor S. He submitted that he had no recollection of the words used but that the meeting was uncomfortable and unpleasant.
8.25 I note that the claimant in her letter to the Governor dated 15 April 1999 stated that she spoke to Assistant Governor D some time after ACO X's first verbal attack on her in 1995. She submits that Assistant Governor D was very supportive and sympathetic but that she "declined to make a formal complaint" as she did not wish to be seen as a troublemaker and she hoped it would all blow over. In the letter of the same date, she submits that she spoke informally to the Governor in 1997 and that he cautioned ACO X. She stated that subsequently, he enquired about the situation and she assured him that all was well. The claimant's statement was accepted by the Governor and his submission in relation to the matter states that he apprised ACO B at the time that he was constrained in taking any formal action against ACO X in the absence of an official complaint by her under the Disciplinary Code. Whilst the Disciplinary Code specified that a breach of discipline (including a complaint of sexual harassment) against another officer must be made within seven days, neither the Memorandum of Understanding or section 7(2) of the Disciplinary Code specify the exact form a complaint must take and I note that Mr. Justice Murphy stated 'Rule 7(2) does not require it to be in writing.' The claimant in her letter of 30 April 1999 to the Governor reiterated her statements in relation to speaking to him and Assistant Governor D and she also stated that she wanted to lodge a formal complaint against ACO X as the situation was way beyond informal resolution. It is questionable therefore whether the respondent was on notice of any allegations of sexual harassment prior to her formal complaint of 30 April 1999. In the present case, in the absence of the State being vicariously liable for the actions of ACO X, it is unnecessary for me to decide this point.
7. RECOMMENDATION
7.1 On the basis of the foregoing evidence in this claim which was referred under the Employment Equality Act, 1977, I find that the claimant was discriminated against on the gender ground in relation to an incident of sexual harassment on 8 March 1999. I find that the Minister for Justice, Equality and Law Reform is not directly liable and the State as the appropriate employer is not vicariously liable in respect of the act of sexual harassment and I cannot therefore recommend any redress in favour of the claimant.
___________________
Mary Rogerson
Equality Officer
30 January 2004
1Garda Mary Flynn v. The Commissioner, An Garda Síochána and the Minister for Justice, Equality and Law Reform DEE989 17 November 1998
2A Worker v. A Garage Proprietor EE 02/1985
3[1927] I.R. 62
4Unreported, High Court, 19 January 1994