FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : TESCO IRE LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Equality Officer's Recommendation Dec - E - 2001/3.
BACKGROUND:
2. The Labour Court investigated the matter on the 6th May, 2005. The Court's Determination is as follows:-
DETERMINATION:
Appeal against Equality Officers Recommendation No. DEC-E2001-003, which concerned a claim by a named female employee that the respondent had discriminated against her on the basis of her sex in terms of Section 2(a) of the Employment Equality Act, 1977, and contrary to the provisions of Section 3 of the Act by allowing her to remain in a stressful and uncomfortable working environment caused by alleged ongoing sexual harassment of her by a male work colleague.
Background:
The appellant began part-time work (approx 18 hours per week Thursday, Friday and Saturday) in a North Dublin Branch of the respondent Company in October 1998, while still at school. She worked as a sales assistant in the Delicatessen Department Within weeks, it is alleged that she became the subject of unwelcome sexual harassment, both of a physical and an explicitly suggestive verbal nature from a male co-worker, who was also a part-time charge hand, in an adjoining area.
According to the appellant and her Union, she made a number of complaints during November 1998, initially of an unofficial nature, but then on a more official basis. She was, it was claimed, not encouraged in these complaints. Eventually she spoke to the Store Manager, who agreed to investigate the matter. This was around the end of November 1998. In January 1999, with the matter still unresolved, the appellant contacted her Union, which in turn, took the matter up with management in the respondent Company. Following a Company investigation, the respondent informed the Union in March of 1999 that there was not sufficient evidence to support the appellant’s allegations.
Note: The appellant left the respondent’s employment in April 1999.
The Union was not satisfied with the response and, on the 10th March 1999, lodged a formal complaint with the Labour Court under Section 2(a) of the Act. The Court referred the matter to an Equality Officer for investigation and recommendation.
In Recommendation No.DEC-E2001-003, issued on 16th January 2001, the Equality Officer concluded that –
- - the fact that there was no witnesses to the alleged incidents despite their alleged frequency must leave a question as to whether they happened at all (paragraph 5.4)
- - the two-month gap between her initial complaint and her contacting the Union suggest that the appellant was satisfied after speaking to the Store Manager in November 1998 but later decided to approach the Union (paragraph 5.5).
- - the Company acted on the complaint and in an acceptable manner (paragraph 5.6).
- - the alleged harasser was not in a position of direct and/or regular authority over the appellant so the Respondent could not be held liable (paragraph 5.7).
- the existence of a previous, unsubstantiated allegation against the accused of the same type in another of the respondent’s stores could not be held in any way to give credence to the instant allegations (paragraph 5.8).
- the Union failed to substantiate the claim of sexual harassment; on the balance of probabilities, the Company version of events is the more credible (paragraph 5.9).
Given the foregoing, the Equality Officer found that the respondent did not discriminate against the appellant in terms of Section 2(a) and contrary to the provisions of Section 3 of the Act.
On the 1st February, 2001, the Union appealed the Recommendation to the Labour Court. A Court hearing took place on 6th May, 2005, the earliest possible date suitable to both parties.
Appellant’s Case:
Within a matter of weeks of starting part-time work as a 17-year-old schoolgirl, the appellant was subjected to a stream of verbal and physical sexual harassment. The verbal harassment progressed from mild comment to suggestive, double-meaning and downright explicit remarks. The physical harassment became more serious also as time went on and involved unwanted bodily contact. The appellant objected and resisted, pointing out her age, and the proposition that she could be the same age as a daughter of the alleged harasser, to which the alleged harasser replied that she "did not have the physical attributes of a 17-year old". She claims that on at least one occasion she had to leave her position and go to the ladies toilet to compose herself, because she was upset and in tears.
In mid November she raised the problem unofficially with a named Trainee Manager, while out for a drink. He advised her to drop the matter as the alleged harasser was well thought of and a long-term employee – she would not be taken seriously and she would be the one leaving.
Dissatisfied with this, she approached a named Assistant Manager some days later and asked for a move to another area to get away from the harassment. Having listened to her complaint, he said he “would get back to her”. She did not hear back and this man left the Company a few weeks later.
Later in November, the appellant was approached by a Staff Manager (named), and the question of alleged physical and verbal harassment was raised by the appellant. The Staff Manager apparently told the Store Manager, who spoke to the appellant and promised to look into the matter. This was on or about the 29th November 1998.
When the appellant heard nothing by early January 1999, she contacted her shop steward, who involved the Union for the first time (14th January 1999). The Human Resources Manager became involved, and an investigation took place in February 1999.
In a letter to the Union dated 3rd March 1999, the Company reported on its investigation into the allegations of sexual harassment. Its conclusions included: -
- no conclusive evidence to support the appellant’s allegations.
- total denial of the allegations by the alleged harasser.
- there was a level of banter in the area, in which everyone participated, including the appellant.
- no independent witnesses in support of the claims.
- a working relationship problem existed between the appellant and the alleged harasser.
A rescheduling of the appellant’s hours or a transfer to another part of the store were suggested.
This was unacceptable to the appellant and her Union and a case was taken under the Act.
A number of witnesses gave evidence to the Court of a circumstantial nature for the appellant and/or against the alleged harasser. The appellant also testified.
Respondent’s Arguments:
The first formal complaint to the Company was made on January 15th, 1999 when the Regional Development Manager was contacted by the Store Manager and the allegations were raised. The Regional Development Manager wished to meet the appellant, but she wanted her Union official present, which was not possible until 5th February 1999. At this meeting the allegations of physical and verbal sexual harassment were outlined.
Management then met the accused and his Union representative. At this meeting the allegations were denied. It was agreed that he would limit contact with the appellant to work related issues, as agreed with the Staff Manager in November 1998,
The investigators spoke to 15 other individuals. The Trainee Manager had no recollection of the incidents or any complaint. The Assistant Manager confirmed that he had a casual conversation with the appellant by phone where she said she was unhappy about alleged unsavoury advances, and would prefer to move. He mentioned this to the Staff Manager.
The Staff Manager confirmed that “unethical behaviour had been brought to her attention by the appellant in November 1998. She brought this to the attention of the Store Manager.
The Store Manager asked the appellant (November 1998) if she wished to bring an official complaint but she said she did not want to get anyone into trouble – she just wanted it to stop. The Store Manager advised the accused to be careful about his use of language around the counter. The accused seemed surprised.
The Deli Manager told the accused to restrict contact with the appellant to work related issues only.
The Company contended that a Bakery worker had alleged that the appellant had made a sexual comment to her, concerning her blouse and how tight it was, on her first day of employment. A Bakery sales assistant corroborated this.
However, a number of other people interviewed by the Company in the course of its investigation saw no inappropriate behaviour. One female sales assistant said that the language of the appellant and a colleague of hers was deplorable, rude and loud.
Another shop floor assistant told the investigators that the appellant was trying unsuccessfully to involve her and to “coach” her into joining in the allegations.
The Appellant’s (former) colleague largely corroborated her evidence.
At the end of the process, the investigating team concluded that there was insufficient evidence to prove the case (as set out in the appellant’s arguments)
The Company argued that-
- it took a long time to raise the allegations – mid November till January. If the complainant was that unhappy she would have raised the matter with the Union sooner.
- she is vague about specific dates, times and locations of incidents.
- The Store manager did not wait until January 1999 to deal with the matter – he thought he had satisfactorily dealt with it in November, 1998, in accordance with the appellant’s wishes.
- it was never established that sexual harassment took place. The conclusions of the investigation team are reasonable.
- The Company had and has a procedure in place to deal with complaints of sexual harassment.
- There was no more the Company could do.
The Company put forward a number of witnesses, as well as the alleged harasser. These were: -
- The Deli Manager
- A Bakery Worker
- A Bakery Sales Assistant
- A Sales Assistant / Relief Supervisor
- A Shop Floor Sales Assistant.
The Evidence Given:
There is clear contradiction in almost every detail between the appellant and her alleged harasser, leading to a conflict of evidence under oath.
The Appellant’s witnesses and some of management’s added little to the case as their evidence was largely circumstantial and did not relate directly to the facts in issue.
The Bakery worker’s version of the “tight / gaping blouse” incident was not as presented by management. He simply asked that more blouses be ordered as the one worn by the appellant was clearly too tight. He did not place a sexual connotation on the encounter.
The evidence of one of the sales assistants / checkout supervisor was also not as presented by the Company. She confirmed to the Court that she was aware that the appellant and a colleague were upset and advised them that a complaint should be made against the accused to the Store Manager. She herself mentioned this to him but did not know what happened.
Unfortunately, some of the most crucial witnesses were not available to the Court on the day of the hearing including
- The H.R Manager at the time of the incident
- The then Regional Development Manager
- The then Assistant Manager
- The then Staff Supervisor
- The then Trainee Manager
This was unhelpful, bearing in mind that others who had left the Company’s employment were provided by both sides to give evidence.
Subsequent to the hearing, the Court received copies of the investigating team’s notes along with comment on these from the Union.
1. Complaints of harassment were made by the complainant to the Company as early as mid November 1998.
2. The Company had an anti-bullying and harassment policy at the time.
- The Company did not deal with the complaints in accordance with that policy until the Union became involved.
3. A sexual connotation was placed by the respondent on a number of remarks made by the appellant during a conversation in the canteen with a Bakery worker.
- This worker, in his evidence, did not confirm any sexual connotations in this conversation.
4. The appellant raised the matter of her allegations with the Store Manager on 28th or 29th November 1998. He did not immediately act as per the anti-bullying /harassment policy. The Company had a duty of care towards its employee and was deficient in the manner of its exercise of this duty.
On the basis of the above the Court finds that the complainant has established facts from which discrimination may be inferred and accordingly, the Burden of Proof shifts to the respondent, to prove on the balance of probabilities that discrimination did not occur.
Determination
It is difficult enough to deal with a case now over seven years old, without also having to deal with directly conflicting evidence. The Court, therefore, will deal, on the basis of the submissions and evidence placed before it, with the balance of probabilities.
(1) On the basis of the evidence given and also in the absence of crucial witnesses, as well as the fact that the alleged harasser was spoken to in November, 1998, by at least two members of management, the Court’s view is that some incident or incidents must have taken place.
(2) It was suggested that the two-month gap between her initial complaint and her contacting the Union suggested that the appellant was satisfied after speaking to the Store Manager in November, 1998, but later decided to approach the Union.
- The absence of the Store Manager was unhelpful here, but it is common cause that he spoke to the appellant on 29th November, 1998. She raised the matter with the Union on 14th January, 1999. It would, in the Court’s view, not be unusual for a 17-year-old part-time worker, in her first job to wait and see what was being done. Christmas also intervened, so, although the period was 5-6 weeks, Christmas and the New Year break would have accounted for 2-3 weeks of this period where everyone was very busy. (It should also be noted that the appellant only normally worked on 3 days each week.
This notwithstanding, it is the view of the Court that the respondent had a duty of care towards the appellant, and failed in this.
Given the foregoing, the Court finds, on the basis of the oral and written submissions and the evidence put before it, as well as on the balance of probabilities, that: -
- the respondent failed to properly exercise a duty of care towards the appellant and allowed discrimination in the form of Section 2(a) of the Act, and contrary to Section 3 of the Act to take place.
The Court therefore allows the appeal and determines that the appellant be granted an apology for her treatment and be paid the sum of €8000 in redress. The Court so orders.
Signed on behalf of the Labour Court
Raymond McGee
30th August, 2005______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.