Ms A(Represented by Benen Fahy Associates, Solicitors on the instructions of the
Equality Authority) AND A Gym(Represented by Sheehan & Company, Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by a complainant that she was discriminated against by her employer on the ground of gender contrary to the provisions of the Employment Equality Act, 1998 when she was sexually harassed by a work colleague. In accordance with the Equality Tribunal's normal practice in claims of sexual harassment, no names have been given in this decision.
1.2 The Equality Authority, on behalf of the complainant, referred a claim to the Director of Equality Investigations on 28 May 2002 under the Employment Equality Act, 1998. The Authority advised that the complainant would be represented by solicitors acting on its instructions, and Benen Fahy Associates, Solicitors subsequently advised that they had been instructed. In accordance with her powers under section 75 of that Act, the Director delegated the case on 23 July 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 11 April 2003. Subsequent correspondence with the parties concluded on 3 September 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant started work as a receptionist with the respondent company, a gym, in March 2001. She said the general perception of one of her male colleagues, Mr B, was that he was particularly fond of women, and that he always wanted to give fitness tests to attractive female clients.
2.2 The complainant said that when she worked out in the gym, Mr B frequently made flattering comments about her body. She said that on one occasion when her boyfriend called to collect her, Mr B said something she didn't hear. When she asked for it to be repeated, another colleague, Mr C, said that Mr B had asked "Is that your jockey?" On another occasion, Mr B referred to the complainant's bottom as "lovely", in speaking to a female colleague, Ms D, and he complimented the complainant as having "lovely legs".
2.3 The complainant said that on 2 January 2002, she was in the Manager's office, working on the computer. The Manager was away, but Mr B and Mr C were both in the office at the time. The complainant said that as she was leaving she walked past Mr B and Mr C and received what she described as a "robust slap" on her bottom from Mr B. She said Mr C must have seen the incident, which she said made her feel shocked and humiliated.
2.4 The complainant said she was absent from work on sick leave on 3 January, and on 4 January she met with her Manager to give her a written complaint about the incident with Mr B. The complainant said the Manager appeared to be genuinely concerned, and undertook to investigate the incident. Later that day, the Manager telephoned the complainant to say that she had spoken to Mr B and it seemed he was admitting the occurrence. The Manager said she was unsure if Mr B was going to contact the complainant, and she asked the complainant if she wished to take the matter further. The complainant asked to think about the matter over the weekend.
2.5 On 7 January, the complainant tried but failed to make contact with the Manager, absent through illness. On 8 January, the complainant had a meeting with the Manager to discuss issues arising from the telephone call on 4 January. In the first place, the complainant said she told the Manager she did not think it right that Mr B should contact her directly. Secondly, the complainant said she was sure there was a procedure for handling such situations and she wanted it followed. The Manager told the complainant that she could not do anything as she had not witnessed the incident herself, but said that Mr B was willing to apologise if he had offended the complainant in any way. The Manager undertook to ensure the complainant did not work the same shift as Mr B, and again asked what the complainant wanted done about the matter. The complainant said that she repeated that she wanted the proper procedure followed.
2.6 The complainant said she met the Manager again on 18 January, when the Manager informed her that she had been instructed by an unnamed agency to obtain written statements from all involved. The agency had allegedly instructed the Manager to show the complainant's letter of complaint to Mr B and Mr C, and to show their replying statements to the complainant. The Manager said that she could take no further action, as there had been no witnesses. The complainant said she ended the meeting by saying she would have to seek advice.
2.7 The complainant said that she understood sexual harassment was "any act
or conduct including spoken words or gestures if the action or conduct is unwelcome
and could reasonably be regarded in relation to my gender to be offensive,
humiliating or intimidating". She said that the comments made to her by Mr B prior
to 2 January were offensive, intimidating, humiliating and unwelcome. She said the
incident on 2 January was likewise humiliating, unwelcome and offensive. She said
it was obviously because she was a woman that she was subjected to this treatment.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent accepted that the complainant made a verbal and written complaint of sexual harassment against Mr B on 4 January 2002. The complainant alleged that Mr B had sexually harassed her before another colleague who had witnessed the incident. Realising the serious nature of the allegation, the Manager agreed to carry out an immediate investigation. She said she contacted the Department of Enterprise, Trade and Employment and was told to contact the Employment Equality Agency for advice.
3.2 Following this advice, the Manager interviewed Mr B and asked him if he had slapped the complainant as alleged. He denied that he had done so, and the Manager said he appeared to be taken aback by the accusation. The Manager asked him to put his response in writing and he did so immediately. The Manager then interviewed Mr C, the witness named by the complainant. He said he had been in the office in the company of the complainant and Mr B, but did not witness the alleged incident. This statement was also put in writing.
3.3 Following these two interviews, the Manager met with the complainant and explained that no further action could be taken by the respondent as Mr B denied that it had taken place and there were no witnesses. The Manager offered to place the complainant on alternative shifts to Mr B, but the complainant asked for further time to think about the matter.
3.4 The Manager said that the complainant made no further contact with her in relation to continuing employment with the respondent, or in relation to the allegation of sexual harassment. The next contact she had in relation to the matter was when she received a letter from the complainant's legal representative in February 2002.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against her on the ground of gender contrary to the provisions of the Employment Equality Act, 1998 in that she was sexually harassed within the meaning of the Act and the respondent failed to take the necessary steps to establish a defence. Section 18 (1) of the Act provides that "A" and "B" represent two persons of opposite sex, and Section 23 provides that:
(1) If, at a place where A is employed (in this section referred to as "the workplace"), or otherwise in the course of A's employment, B sexually harasses A and...
(a) A and B are both employed at that place or by the same employer... then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.
(3) For the purposes of this Act --
(a) any act of physical intimacy by B towards A,... shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A..
(5) If, as a result of any act or conduct of B, another person ("the Employer") who is A's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against A, it shall be a defence for the Employer to prove that the Employer took such steps as are reasonably practicable...
(b) to prevent B from sexually harassing A...
4.3 The procedural rule applied in the case of gender discrimination is that prescribed by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI NO 337 of 2000). The Labour Court, in applying this rule in a recent case said this meant that "...where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities." (Customer Perception Ltd and Leydon [EED0317]).
4.4 Some facts in the claim are not in dispute. The complainant never made a complaint regarding the various comments allegedly made by Mr B. On 4 January 2002, she made a verbal and written complaint to the Manager that she had been slapped by Mr B two days earlier. She alleged the incident had occurred in the Manager's office and had been witnessed by Mr C. Meetings took place between the complainant and the Manager to discuss the complaint, but the complainant never resumed work. The Manager also discussed the allegation with Mr B, who denied it had occurred, and with Mr C, who denied he had witnessed any such incident.
4.5 As an initial point, I should clarify that the complainant's comments about Mr B's reputation are hearsay, so I am confining my investigation to consideration of the incident alleged to have occurred on 2 January 2002 and its consequences. At the hearing, I was provided with the written complaint of the complainant and the responding statements of Mr B and Mr C. The complainant's statement said quite clearly that she had been "shocked and humiliated by a sudden and robust slap to my bottom from [Mr B] in the presence of [Mr C]". Mr B's statement said that he "made no inappropriate remark to offend any male or female colleagues". Mr C's statement said he "did not witness any unprofessional behaviour by [Mr B] to [the complainant]". The discrepancy between the matter actually complained of and the responses is striking.
4.6 Mr B, who was a witness at the hearing, denied emphatically that he had ever slapped the complainant. He also asserted that he had not seen her written complaint and had been under the impression that she had alleged he had made some sort of offensive remark. Mr C, also a witness, said that his statement arose because he had been asked by the Manager if he had seen anything of the nature of sexual harassment, and he also had not seen the written complaint. He said that he had no memory of anything of that nature, and could not recall any tension or anger in the Manager's office that night.
4.7 It is always difficult to make choices between contradictory evidence of witnesses. In the first place, Mr C was not a satisfactory witness, and appeared to equivocate about what he had and had not witnessed. Both the complainant and Mr B, on the other hand, were very clear and emphatic in their evidence. The complainant insisted the incident occurred, and Mr B insisted it did not. On the balance of probabilities, taking into account the fact that the complainant made a contemporaneous written complaint and that her description of events remained consistent throughout, I found her evidence more compelling. I am satisfied therefore that the incident of sexual harassment occurred.
4.8 The respondent at the hearing suggested that both Mr B and Mr C, both of whom were its own witnesses, were confused as to when they had become aware of the specific allegation of the complainant. Even if it were the case that they had been shown the written complaint by the Manager, as she insisted, she was unable to give me any explanation as to why she accepted their non-specific statements as adequate responses to the complainant's very specific complaint.
4.9 What is clear is that the Manager did not know how to deal with an allegation of sexual harassment. There was no internal grievance procedure or code of practice on such a matter, and the respondent had not introduced any procedures to comply with its responsibilities under the Employment Equality Act, 1998. The 1998 Act had commenced on 18 October 1999, which was well over two years prior to the incident complained of. In the circumstances, I cannot find that the respondent took any such steps as were reasonably practicable, in the terms of section 23 (5), to provide it with a defence to the finding of discrimination on the ground of gender, and is therefore vicariously liable for the sexual harassment in accordance with section 23 (1).
5. DECISION
5.1 Based on the foregoing, I find that respondent discriminated against the complainant on the ground of gender, contrary to the provisions of the Employment Equality Act, 1998, when she was sexually harassed by a work colleague.
5.2 I hereby order that the respondent:
(i) pay the complainant the sum of €5,000 in compensation for the effects of the discrimination; and
(ii) introduce a policy to deal with complaints of sexual harassment, with particular reference to the provisions of the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (SI No 78 of 2002).
_____________________
Anne-Marie Lynch
Equality Officer
1 March 2004