Gabriele Piazza -v- The Clarion Hotel
1. CLAIM
The case concerns a claim by Mr. Gabriele Piazza that the Clarion Hotel (IFSC) directly discriminated against him on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 and in contravention of section 8 and 2 of the Act in relation to his conditions of employment.
2. BACKGROUND
2.1 The complainant claimed that he was harassed on the sexual orientation ground in relation to his conditions of employment, in particular on three occasions. The respondent did not dispute that an incident in relation to e-mails as alleged by the complainant occurred or that a reference was made to the complainant's sexual orientation on 14 October 2001. It disputed that a third comment was made in relation to the complainant and submitted that it was made in relation to other persons. The respondent carried out an internal investigation into complaints made by the complainant before he left employment with the respondent. The complainant was subsequently informed that it was the respondent's belief that there was no intent, desire or deliberate attempt by any member of the respondent's team to offend him or the nature of his sexual orientation.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 25 April 2002. On 29 November 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. A submission was received from the complainant on 23 January 2004 and from the respondent on 23 February 2004. A joint hearing of the claim was held on 26 May 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant submits that there were a number of incidents when reference was made to his sexual orientation in a degrading manner. The incidents happened in front of various members of staff who found the situation funny but the complainant did not.
3.2 On 4 October 2001, the complainant submitted that it came to his attention that emails from his manager were being sent to the HR Manager which he found personally offensive and degrading. In one e-mail, he was referred to as "just a bloody woman and a spoilt child". When he challenged the HR Manager about the e-mail, she ripped them up dismissively in front of him.
3.3 On 14 October 2001, an employee called him "bastard, gay bastard" to his face. The incident was witnessed by several members of staff including the Assistant Restaurant Manager. On 26 October 2001, an employee made a comment of a sexual nature which he found offensive and degrading. He asked the person in question to stop making the comments but he increased the level of harassment. The incident was witnessed by another member of staff.
3.4 On 15 October 2001, the complainant wrote to the General Manager outlining concerns he had regarding his increasing discomfort with the ongoing series of comments, gestures and direct discrimination from members of staff and his direct manager during the course of his employment. He submits that he followed the correct procedures at all times and reported each of the occasions in an effort to resolve the ongoing situation. On 28 November 2001, he received a response from the General Manager stating "I have now satisfied myself in having established the facts surrounding this matter and would wish to advise you that I now believe that there was not any intent, desire or deliberate attempt to offend you or the nature of your sexual orientation by any member of the Clarion Team" The complainant submits that in the six months of his employment, he received no help or assistance from his manager or any other member of the management team.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant wrote to the General Manager and as a consequence of the complaint, the General Manager arranged for the matter to be dealt with through meetings and investigations under the provisions of the grievance procedure. A meeting was held on 24 October 2001 to address the complainant's complaint and concerns. The complainant stated that he had raised the matter informally with the restaurant manager relating to colleagues laughing at him and saying he was gay. The restaurant manager confirmed at a subsequent interview that the complainant had casually mentioned to him that he was having some interpersonal squabbles but did not raise formally any allegation of harassment.
4.2 When the restaurant manager investigated the complainant's concerns, he discovered that his colleagues had serious counter complaints regarding the complainant's conduct, behaviour and attitude. Each person maintained that the complainant had by his actions been the instigator of the negative reaction from colleagues. The employees did not complain individually or collectively to their Manager or the Human Resources Manager at the time of the events. The information only came to light during the course of the complainant's grievance procedure when the employees were being interviewed and also as a result of a letter of petition received on 18 October 2001 by the Food and Beverage Manager.
4.3 Regarding the internal e-mails, three e-mails were sent to the Human Resources Manager by the Restaurant Manager in frustration regarding the complainant and another member of staff whose absence was creating major operational difficulties with the Restaurant Manager and the rest of the team. Both the Restaurant Manager and the Human Resources Manager accepted that the e-mails were disingenuous but were written in haste and frustration without malice.
4.4 The Human Resources Manager agrees that she discarded the hard copy of the e-mails maintaining that she viewed them as incidental and was fully aware as to the misguided motivation in which they were written. She maintains that discarding the emails was effectively an effort to demonstrate the disregard she held for the Restaurant Manager's words. She was also aware that the e-mails were stored on the system and could be retrievable.
4.5 On investigation of the incident which happened on 14 October 2001, the Chief Kitchen Steward's response to the complainant's allegation was that the complainant who was off duty entered the kitchen wash up area, picked up a tray and threw it at them saying "Clean them now". This incited an unacceptable response from the Chief Kitchen Steward when he said "Get back and clean the trays you queer bastard". The Chief Kitchen Steward maintained that his response which he was sorry for was made in temper but maintained that his comment was a figure of speech rather than a sexually degrading comment. The Chief Kitchen Steward accepted that what he had said should not have been said and he made a counter complaint against the complainant regarding a comment made by him.
4.6 In relation to the incident which occurred on 26 October 2001, the comments made had not been directed at the complainant and were made regarding other individuals who were not employees of the hotel and were not connected with the hotel.
4.7 During a meeting organised by the Food and Beverage Manager to discuss reorganisations due to impending redundancies, several members of staff made complaints regarding the complainant's conduct and behaviour. As the Food and Beverage Manager did not feel that the complaints should be dealt with at that forum, he advised the employees that if they so wished, they could avail of the hotel grievance procedure. The restaurant employees made a written complaint on 18 October 2001.
4.8 The complainant states that during his six months employment, he received no help or assistance from his manager or any other member of his team. However, as soon as the complainant wrote to the General Manager on 15 October 2001, immediate action was taken to set up an extensive and exhaustive investigation under the auspices of the grievance procedure. The investigations were attended by the General Manager and the Group Human Resource Director. Much time and effort was afforded to the serious matter which at its completion resulted in an informed decision being made by the General Manger. Essentially, he felt that in fact it was the complainant who had generated by his conduct, behaviour and pervasive, negative and hostile attitude towards his colleagues and the Department Manager, a destructive and malicious "tug of war". It is also fair to say that it was the General Manager's view at the end of the investigation that much could be learnt by the hotel management as a result of the unfortunate and distasteful series of incidents.
4.9 On 19 November 2001, the General Manager requested the complainant to attend a final meeting where he wished to present his findings and decision in response to the complainant's original letter of complaint. The General Manager was left with no option but to arrive at a final decision without the benefit of the complainant's response as he had been advised by Human Resources Department that the complainant did not wish to attend the meeting. On 28 November 2001, the General Manager wrote to the complainant and advised him that after an extensive investigation, he had now satisfied himself that establishing the facts surrounding the matter; it was his informed view that there was no intent to offend the complainant or the nature of his sexual orientation by any member of the team.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the sexual orientation ground. I will consider whether the respondent directly discriminated against the complainant on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 and in contravention of section 8 and 32 of the Act in relation to his conditions of employment. I must consider (i) whether the complainant was harassed on the sexual orientation ground. If I find that the complainant was so harassed, I must then consider (ii) whether the complainant's employer is vicariously liable for the harassment and in the event that it is liable, consider as a defence (iii) whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace. In this case, I will also consider the manner in which the respondent dealt with the complainant's complaint of harassment. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Establishing a prima facie case
5.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.3 More recently, the Labour Court has stated in relation to the burden of proof:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. 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 these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."2
5.4 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the sexual orientation ground. Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(d) that they are of different sexual orientation (in this Act referred to as "the sexual orientation ground"),
5.5 Part IV of the Employment Equality Act, 1998 deals, inter alia, with harassment on eight different grounds. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. Section 32(1) provides, inter alia, that where an employee (E) harasses another employee (C) by reference to the relevant characteristic of C, i.e. on one of the grounds, at the place of employment or otherwise in the course of the employment of the person harassed, the harassment constitutes discrimination by the victim's employer in relation to the employee's conditions of employment. Section 32(5) provides that:
"For the purposes of this Act, any act or conduct of E (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitutes harassment of C by E if the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as offensive, humiliating or intimidating to C."
It is clearly the effect and intention of the Employment Equality Act, 1998 that employees are entitled to expect freedom from being harassed at work on the sexual orientation ground by gestures, words and written material.
5.6 The complainant in his letter of 13 April 2004 clarified that there were three incidents of harassment and I shall deal with them in chronological order. The first relates to the three e-mails, which were sent from Mr. S (the Restaurant Manager) to Ms. H (the Human Resources Manager). One of the e-mails is dated 30 September 2001 and refers to the complainant as "just a bloody woman ......". I consider that the e-mail constituted harassment of the complainant, as it was unwelcome to him and could reasonably be regarded, in relation to his sexual orientation as offensive, humiliating or intimidating to him. I find that the complainant has established a prima facie case of discrimination on the sexual orientation ground in relation to that allegation. I do not find that the complainant has established a prima facie case of discrimination on the sexual orientation ground in relation to the other two e-mails which refer to making the complainant redundant and the complainant's back injury.
5.7 The next incident referred to was on 14 October 2001. The complainant alleges that on that date, the Kitchen Steward called him a "bastard, gay bastard". It is not disputed by the respondent that a variation of the comment ("queer bastard") was made to the complainant on that date. I consider that the comment made constituted harassment of the complainant as it was unwelcome to him and could reasonably be regarded, in relation to his sexual orientation as offensive, humiliating or intimidating to him. I therefore, find that the complainant has established a prima facie case of discrimination on the sexual orientation ground in relation to that allegation. The next incident referred to by the complainant was on 26 October 2001. He alleges that Mr. MS made a comment of a sexual nature about him which he found offensive and degrading. He alleges that Mr. MS stated to a colleague Mr. SC "You want to fuck Gabriele". It is unclear whether the comment was in the nature of a question.
5.8 The respondent provided minutes of the various meetings it held with members of staff following the complainant's complaint. I am conscious of the amount of weight that can be attached to such notes given that they are the respondent's minutes and are not agreed minutes. At the hearing, the complainant stated that he agreed with the minutes of the meetings held with him. I note that in the minutes of the interview conducted with Mr. MS who was the person alleged to have made the comment, he stated that he was having a conversation with Mr. SC about three females who were staying with Mr. SC and he asked Mr. SC was he going to "fuck them". On reading the notes further, it appears to me that Mr. SC was hesitant in his response when questioned about the incident and did not specifically support Mr. MS's explanation of the conversation. His statement was that he was talking with Mr. MS and another person and he did not specifically confirm that they were talking about three females who were staying with him. Attempts to secure the attendance of Mr. MS and Mr. SC at the hearing were not successful due to the fact that both persons have since left the employment of the respondent. The complainant has been shown to be truthful in relation to the other allegations made by him and on that basis appears to be reliable and credible in his evidence. The respondent has failed to provide any evidence specifically to disprove the complainant's allegation in relation to the incident. On the balance of probability, I, find that the complainant has established a prima facie case of discrimination on the sexual orientation ground in relation to the incident on 26 October 2001.
Action taken by the respondent
5.9 The complainant by letter dated 15 October 2001 wrote to the respondent regarding the e-mails stating that he found them offensive. He also stated that he had on previous occasions complained to the Restaurant Manager (Mr. OS) of numerous derogatory comments by other members of staff regarding his sexual orientation. It must be noted that that letter only refers to the incident in relation to the e-mails and does not make a specific complaint in relation to the incident of 14 October 2001 or any other incidents. On 18 October 2001, the respondent acknowledged receipt of the complainant's letter of 15 October and informed him that they were dealing with the matter "through the appropriate route as outlined in our grievance policy/procedure, page 31 section 21 of the employee handbook." The complainant was invited to contact the respondent to arrange a mutually convenient time to meet. On 24 October 2001, the respondent held an investigative meeting with the complainant. In its written submission, it submitted that it had the meeting in accordance with its grievance procedure as set out in the Employee Handbook. Section 21 states in relation to the grievance procedure:
"In the first instance, any work-related grievance should be raised with your immediate manager, preferably in writing, where reasonably practicable. Your manager will arrange to meet with you to discuss the matter within 5 working days. If having discussed the matter with your immediate manager you are dissatisfied with the outcome you may pursue the matter to the next level of management, whose decision will be final. Any grievance will be discussed where practical, within 10 days receipt. In cases that involve your immediate manager personally, your grievance should be raised in the first instance with the next level of management or the Human Resources Manager."
5.10 From the notes provided by the respondent of the investigative meeting with the complainant on 24 October 2001, it appears the complainant raised the incident regarding the e-mails which occurred at the end of September and the incident with the Kitchen Steward on 14 October 2001. On 5 November 2001, the General Manager and Group Human Resources Manager held a meeting with the Restaurant Manager who the complainant stated he had complained to previously. The minutes of the meeting indicate that the Restaurant Manager stated that the complainant never approached him regarding "people saying things about his sexuality". The respondent then proceeded to interview others in relation to the complainant's allegations. On 26 October 2001, the complainant brought to the attention of the respondent (verbally) that he overheard Mr. MS say to Mr. SC "You want to fuck Gabriele" On the same date, the respondent interviewed the two people in question and again on 30 October interviewed Mr. MS. On 6 November, another meeting took place with the complainant at which the allegations made by the complainant were discussed again. On 19 November 2001, the respondent wrote to the complainant requesting him to meet with them to discuss the outcome of the enquiry. On 28 November 2001, the respondent wrote again to the complainant stating:
"Gabrielle, as I mentioned to you during our subsequent telephone conversation it would be more appropriate for me to discuss the outcome of my extensive investigation with you in person. However, I do respect and understand that it is not your wish to attend such a meeting. I therefore wish to advise you that I now believe that there was not any intent, desire or deliberate attempt to offend you or the nature of your sexual orientation by any member of the Clarion Team. However, we have learned from this unfortunate matter with regard to enhancing and improving our internal communication procedures and I can assure you I will now be initiating these improvements without delay."
5.11 When the complainant complained internally, the respondent used its grievance procedure to deal with the matter rather than either the informal or formal procedures outlined in its Respect and Dignity document. The grievance procedure was used notwithstanding that the employee handbook provides at section 19.1 that an employee who believes s/he has been the subject of harassment "will need to use the Grievance Procedure (outlined in Respect and Dignity document) to file an official complaint and have it investigated.". The respondent stated in evidence at the hearing that it used the grievance procedure as set out in the Employee handbook as the Respect and Dignity Document was not actually in existence at the time. By letter dated 27 May 2004, it confirmed that the Research and Dignity document was introduced in early 2002, approximately February/March 2002. The grievance procedure as outlined at section 21 provides for an informal discussion with the employee's immediate manager with an appeal to the next level of management if dissatisfied. There is no reference to a formal investigation procedure. At the hearing, I sought clarification of the operation of the grievance procedure and I was informed that it took the form of a discussion at first and there may be an investigation if the matter is not resolved by discussion.
5.12 At the hearing, I also sought clarification of the type of issues that would be dealt with through the grievance procedure and I was informed that general grievances would be dealt with such as work practice issues and employees having inter personal problems. I do not consider that a serious issue such as an allegation of harassment should be dealt with by means of the grievance procedure. Additionally, I consider that the grievance procedure referred to in the handbook is not sufficiently detailed for an employee to understand fully how the matter will proceed and that the process is informal. Indeed, in this particular case, it appears that the respondent was unsure how to proceed and it used a combination of the informal process and the formal investigative process which is not actually referred to at all in section 21. It also used the formal investigative process notwithstanding that it did not have a written complaint in relation to the incidents of 14 October 2001 and 26 October 2001. This uncertainty is again obvious in the respondent's letter of 19 November 2001 to the complainant which lacks clarity as to whether the respondent has in fact arrived at a decision following the investigation. The letter invites the complainant to attend a meeting "to discuss the outcome of the enquiry." and in another sentence in the same letter states "Should this be the case, that you no longer wish to meet, this will leave me with no further alternative but to arrive at my decision without the benefit of your response." The letter of 28 November which informed the complainant of the outcome states that "I now believe that there was not any intent, desire or deliberate attempt to offend you or the nature of your sexual orientation by any member of the Clarion team."
5.13 Although the respondent carried out an investigation and established that at least some of the alleged comments had in fact been made, the employer did not at any stage:
(i) clearly indicate any findings to the complainant in respect of his allegations;
(ii) clearly indicate to other employees that such behaviour was unlawful and was regarded by it as serious misconduct;
(iii) acknowledge to the complainant that unacceptable comments had been made to him, or provide him with an apology either on his own behalf or from the employees concerned;
(iv) take any apparent steps to ensure that conduct of that nature did not recur.
On the contrary, it could be considered that by the terms of its letter to the complainant and its failure to impose any sanctions for the conduct which occurred, that a clear message was being sent to employees that harassment based on sexual orientation was considered at worst a minor annoyance to management which would continue to be tolerated and indeed perpetrated by members of management. The respondent had an obligation to ensure that conduct of such nature as occurred did not happen in the workplace by putting in place appropriate policies, staff training, and effective human resource management. It also had a responsibility to investigate allegations fairly and thoroughly and if the allegations proved to be substantiated, to clearly re-affirm that such conduct was unacceptable including if necessary, taking disciplinary measures against the persons involved, taking appropriate measures to prevent recurrence and reassuring the complainant that his rights would be protected in the future. Although the respondent in this case investigated the allegations, it did not comply with any of its other responsibilities under the Act.
5.14 I consider that the manner in which the investigation was concluded was totally unsatisfactory for the reasons outlined in the preceding paragraph. Regarding the respondent's statement in its letter to the complainant advising him of the outcome of the investigation and stating that there was no intention to offend the complainant, I must point out that intention is totally irrelevant in relation to the question of whether discrimination occurred. The respondent also stated that it learned from the "unfortunate matter with regard to enhancing and improving our internal communication procedures...." I am concerned that the respondent appears to consider that the only issue arising from the complainant's complaint was a deficiency in internal communication procedures and it does not appear to have considered its obligations under the Employment Equality Act, 1998. I must also refer to the respondent's statement in its written submission to the Tribunal dated 20 February 2004 that the General Manager "felt that in fact it was Mr. Piazza who had generated by his conduct, behaviour and pervasive, negative and hostile attitude towards his colleagues and Department Manager a destructive and malicious 'tug of war'." I am concerned that the respondent appears to be blaming the complainant for the harassment that occurred which of course, is completely unacceptable. In any harassment claim, it is irrelevant who is to blame for interpersonal difficulties between employees and any interpersonal difficulties between the complainant and his colleagues does not excuse them from harassing him on a ground protected by the Act. The respondent emphasised the complainant's non-attendance at the final meeting to discuss the outcome of the investigation. A person who has been harassed might be at fault for failing to make themselves available for the purposes of an investigation, particularly, where there are clear procedures for such investigations. However, in this particular case, in the absence of any clear procedures for dealing with such complaints, the complainant would not have been aware of the procedures that were being followed and it may have influenced his decision to withdraw from the process.
Vicarious liability
5.15 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 the various employees were carried out in the course of their 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 its employees.
Section 32(6) Defence
5.16 In accordance with section 32(6), it is a defence for an employer to show that he took such steps as are reasonably practicable to prevent the harassment taking place. Section 32(6) provides that:
"If, as a result of any act or conduct of E another person ("F") who is C's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against C, it shall be a defence for F to prove that F took such steps as are reasonably practicable-
(b) in a case where subsection (1) applies ....... to prevent E from harassing C (or any class of persons of whom C is one)."
5.17 Section 19 of the Employee Handbook deals briefly with harassment and sexual harassment and at section 19.1 provides that any employee who believes he or she has been the subject of harassment should immediately report the matter to the Department Manager or Human Resources Manager. As mentioned at paragraph 5.11 above, it also specifies that the employee needs to use the Grievance Procedure outlined in the Respect and Dignity document to file an official complaint and have it investigated. The Respect and Dignity document refers to a complaints procedure at section 8 which appears to be an informal procedure. That section provides, inter alia:
"* If you proceed with the complaint, you may seek assistance from staff in the HR Department, who depending on the nature of the complaint will try to find a solution acceptable to both parties. Senior Management may also be involved at this stage, but not necessarily. ..............
* If the problem is not resolved under the above Complaints Procedure, the Formal Procedures outlined in (9) will apply."
Section 9 states "For serious complaints, individual preference or where the problem is not resolved under the procedures outlined in (8) above, the following Formal Procedures will apply:"
The procedure then specifies that the person making the complaint will be required to put it in writing, that the alleged harasser will be given a copy of the written complaint and given three days to respond, that there will be a formal investigation and that the outcome will be advised to both parties.
5.18 At the hearing, the complainant confirmed that when he commenced employment, he was given a copy of the employee handbook and he subsequently signed that he had read it and handed it back. He also confirmed that he did not see a copy of the Respect and Dignity document during his employment. The respondent confirmed at the hearing that the Employee Handbook was in use from the commencement date of the respondent's business. It subsequently clarified that the Respect and Dignity document was not actually introduced until February/March 2002 (after the complainant ceased employment on 2 November 2001). As stated at paragraph 5.12 above, I do not consider that the Grievance Procedure as outlined at paragraph 21 of the Employee Handbook is sufficient to deal with harassment in the workplace. The 1998 Act clearly expects that employers will take particular measures to ensure that employees are not harassed at work based on any of the protected grounds, along the lines of the measures clearly set out in existing case law of Equality Officers, the Labour Court and in the statutory Code of Practice. At the relevant time, the respondent had no policy on the prevention of harassment in the workplace. This had implications for the manner in which the respondent dealt with the complainant's allegations and it also had implications for the complainant in that he would have been unsure what to expect arising from his letter of complaint. In the present case, I consider that the employer had not taken such steps as were reasonably practicable to prevent harassment occurring in the workplace and cannot therefore avail of the section 32(6) defence. I, therefore find that the respondent has failed to rebut the complainant's claim of discrimination on the sexual orientation ground.
5.19 Of course, the existence of a policy on harassment in itself is not sufficient to prevent harassment in the workplace and the policy should include a commitment to effective communication. At the hearing, the respondent confirmed that it brings the Respect and Dignity document to the attention of employees at induction training. I note that the Deputy General Manager was interviewed on 5 November 2001 as part of the investigation into the complainant's allegations. The minutes of that meeting indicate that when he was asked how he would interpret the comments "Bloody Woman" and "Spoilt Child", his response was:
"I would not look at them regarding his sexual orientation. I would look at it as a Nag, somebody who cannot stand on their own two feet. I would not look at that line and think he was gay. Spoilt child the same" I am very concerned by the attitude of the senior manager in question and his view that the complainant was an annoyance and indeed the attitude of management in general in relation to the complainant's allegations. It is therefore vitally important that any policy on harassment is communicated to all staff including all levels of management. In this regard, I refer to the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order 2002 S.I. No. 78 of 2002 which provides that:
"The policy should be communicated effectively to all those potentially affected by it including management, employees, customers, clients and other business contacts including those who supply and receive goods and services."
I must also point out that I am not satisfied as to the adequacy of the Respect and Dignity document which for example, does not refer to membership of the Traveller Community as a ground of discrimination and I shall refer to this issue later.
5.20 The respondent emphasised that at the time of the incidents, the hotel had only been in operation six months (since March 2001) and whilst it had made efforts to have practices in place to underpin and provide for a progressive, inclusive and harmonious working environment, it was not operating at its most effective. However, the relative newness of the operation is not a defence to the discrimination claim.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the sexual orientation ground in terms of section 6(2)(d) of the Employment Equality Act, 1998 contrary to section 8 and 32 of the Act in relation to his conditions of employment.
6.2 In accordance with section 82 of the Act, I hereby order that the respondent:
(i) pay to the complainant the sum of €10,000.00 compensation in respect of the acts of discrimination (This award relates to compensation for harassment, distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(ii) revise and redraft its Respect and Dignity document to take account of the provisions of the Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002 (S.I No. 78 of 2002) and effectively communicate the document to all relevant persons including management and all those referred to at paragraph 5.17 above;
(iii) provide an equality training seminar within three months for all staff including management to brief them on the provisions of the Employment Equality Act, 1998.
__________________
Mary Rogerson
Equality Officer
11 June 2004
1 DEE011 15 February 2001
2 Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003