MMs A (Represented by IMPACT) AND A Health Board
- DISPUTE
- 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. She also claimed that she had suffered discriminatory treatment and harassment, and subsequently claimed victimisation by the respondent. In accordance with the Equality Tribunal’s normal practice in claims of sexual harassment, no names have been given in this decision.
- IMPACT, on behalf of the complainant, referred a claim to the Director of the Equality Tribunal on 18 July 2002 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director delegated the case on 9 September 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 23 July 2004. Subsequent correspondence with the parties concluded on 19 August 2004.
- SUMMARY OF THE COMPLAINANT’S CASE
- The complainant commenced employment with the respondent as a general operative in May 1998. She said that she was initially subjected to groping and inappropriate physical contact by a work colleague, Mr B. She said that these acts were witnessed on a number of occasions by her supervisor, Mr C, and could be corroborated by colleagues, Mr D and Mr E. From February 2001 onwards, the complainant alleged that she was subjected to ongoing discriminatory treatment and sexual harassment which included continuous verbal abuse involving sexual swear words by Mr B.
- The complainant said that she asked Mr B to desist from his behaviour on a number of occasions, but she was unsuccessful in achieving any changed behavioural patterns from him. She contended that Mr C, her supervisor, witnessed this behaviour on a number of occasions and failed to intervene. Arising from this, the complainant said that she felt powerless to remedy the situation and did not make a formal complaint until January 2002.
- The complainant said that during this timeframe she had separately and successfully pursued a complaint of bullying against Mr C, initially raised with the respondent in November 2000. This complaint was initially dealt with by way of a facilitation process but became the subject of a formal and independent investigation on 5 December 2001. The complainant contended that her experience of that investigation equipped her with the confidence in January 2002 to make a written complaint about Mr B's behaviour to the local assistant manager, Mr F.
- The complainant provided a list of incidents which allegedly occurred during the period summer 1998 to November 2002. She said that the behaviour complained of constituted sexual harassment in accordance with the provisions of section 23 of the 1998 Act, as it was unwelcome and could reasonably be regarded as sexually, or otherwise on gender grounds, offensive, humiliating and intimidating to her. She contended that the harassment to which she was subjected was contrary to the Equal Treatment Directive 76/207 which provided the application of the principal of equal treatment with regard to working conditions shall mean that men and women are to be guaranteed the same conditions without discrimination on grounds of sex.
- The complainant also sought to invoke section 15 of the 1998 Act, which made express provision for vicarious liability. She said local management's response to her complaint was to refer it to the Staff Relations Officer at the respondent's headquarters. When her union representative enquired about progress, the Staff Relations Officer advised that the complaint had been returned to local management to deal with in accordance with policy. Being frustrated at the apparent unwillingness to address her complaint, the complainant said that on 23 April 2002 she asked the independent investigator dealing with her bullying complaint to include her sexual harassment complaint. His response was that it did not come within his terms of reference and that it would have to be dealt with separately. In May 2002, the complainant's union representative was advised by the Staff Relations Officer that the complaint had been forwarded to headquarters again by local management, and had once again been returned for appropriate action.
- The independent investigator reported on the bullying complaint on 19 June 2002, and he concluded that, however unintentional, the behaviour of Mr C towards the complainant fell within the definition of bullying. Among the recommendations of his report were the provision of training in relation to the respondent's bullying policy, the provision of a job description to the complainant, an offer of counselling to all parties, an offer of permanency to the complainant and an endeavour to ensure the complainant not work directly with Mr C again.
- On 16 July 2002, the complainant's union representative telephoned the local manager, Mr G, to enquire about progress on the implementation of the independent investigator's recommendation. His response was that the respondent was only now considering the report and the complainant would have to await the outcome of that process. He then allegedly said "I now have another complaint from her against someone else, can she work with anybody?"
- The complainant said this response was totally inappropriate given the vindication by the independent investigator of her bullying claim against Mr C and the serious nature of the complaints she had made against Mr B. She contended that the respondent's position was symptomatic of its inability to handle or process bullying or harassment complaints from staff. She said it was worth noting that the decision to refer this claim to the Equality Tribunal was taken following the conversation with Mr G.
- The complainant asked that she be compensated for the four year period of sexual harassment to which she had been subjected and which had caused her considerable anxiety, distress and chronic ill-health problems. She asked further that the respondent be compelled to educate all staff with respect to harassment and sexual harassment in the workplace, with particular attention being drawn to its unwillingness to tolerate such behaviour in the workplace.
- The victimisation claim was referred on 3 November 2003, while the sexual harassment claim was being investigated. The complainant's representative union said that another union representative had approached local manager Mr G regarding negotiations concerning Mr D and Mr E, the complainant's witnesses. Mr G had written to that union representative, referring to the complainant's claim, and saying that "We therefore consider it prudent to await the outcome of this case, before conducting the review." The complainant's union representative contended that this represented an attempt to interfere with and potentially prejudice the investigation and the contributions of the complainant's witnesses. She said that, furthermore, it represented an attempt to isolate the complainant from her colleagues and constituted victimisation in terms of section 74 (2) of the Act.
- SUMMARY OF THE RESPONDENT’S CASE
- The respondent denied that there was any failure, act or omission on its part in providing the complainant with a safe working environment or that it knowingly allowed a regime of sexual harassment to exist and continue unabated in her place of employment. It said it found it incredible that she or any of her alleged witnesses failed to report the matter to anyone in authority for over three years. It pointed out that the complainant had pursued her bullying complaint against Mr C and noted that at no point in the independent investigator's report was any reference made to sexual harassment. The respondent claimed that the complainant had requested Mr B to support her bullying complaint, but he had declined involvement.
Mr B had denied absolutely the conduct attributed to him, and Mr C denied the claim that he had witnessed such conduct. - The respondent said that the complainant had endeavoured to explain the delay by contending that the experience of the bullying investigation equipped the complainant with the confidence to formally complain of the alleged sexual harassment. The respondent said it had some difficulty in accepting this contention as management found the complainant at all times to be quite vociferous, forceful and pro-active in putting forward any complaint regarding her employment and in no way reticent.
- The respondent said that it was committed to maintaining a work environment which promoted the dignity of women and men at work and was free from sexual harassment. In this regard, it referred to its Policies and Procedures: Anti-Bullying, Disciplinary, Grievance, Sexual Harassment document introduced in May 2000 by way of a Roundtable Partnership initiative involving collaboration between the respondent and all staff unions. The respondent emphasised that it had had similar policies in place prior to 2000, and referred to its Staff Handbook and Personnel Management Policies and Procedures documents. It said all of these policy documents were widely distributed and all aspects of the policies were pro-actively disseminated and implemented.
- Regarding the charges made by the complainant against Mr B, the respondent noted that the list of alleged incidents is in fact the same list of incidents used in her bullying complaint against Mr C, with the addition of a few specific references to Mr B, and suggested this was an attempt to confuse the two complaints in an effort to apply all complaints to Mr B as well as Mr C. The respondent claimed that the assertion the complainant had been sexually harassed by Mr B would appear to be contradicted by several of the bullying complaints. In this regard, the respondent cited an incident alleged to have occurred on 6 April 2001. Following a disagreement with Mr B, the complainant noted "[Mr B] got really angry and called in [Mr C] to say 'She won't do what I ask her. She stops all production. She does F*** All.' This was never the case before. [Mr B] and I always got on very well working together. [Mr C] just said 'Sort it out between ye.' I feel he enjoyed that fact that [Mr B] was challenging me."
- The respondent claimed that if the complainant had suffered to the extent she alleged by virtue of the impugned conduct of Mr B since she started work in May 1998, it was rather inconceivable that she would have made that statement. It said it was totally at variance with the serious claims made against Mr B and created an issue of credibility.
- The respondent noted that the complainant sought to adduce the independent investigator's report into the bullying complainant against Mr C to support the sexual harassment complaint against Mr B. It said that this constituted a serious breach of confidentiality. Assurances were given in the course of the earlier investigation that the report would be kept confidential to the parties involved and their representatives. Mr C, the subject of the bullying complaint, had objected strongly to the report being used in this way. Apart from ethical issues, the respondent considered that it was contrary to due process and natural justice for the complainant to adduce a report on allegations against a third party to support a claim against Mr B.
- The respondent denied that there was any failure, act or omission on its part in providing the complainant with a safe working environment or that it knowingly allowed a regime of sexual harassment to exist and continue unabated in her place of employment. It said it found it incredible that she or any of her alleged witnesses failed to report the matter to anyone in authority for over three years. It pointed out that the complainant had pursued her bullying complaint against Mr C and noted that at no point in the independent investigator's report was any reference made to sexual harassment. The respondent claimed that the complainant had requested Mr B to support her bullying complaint, but he had declined involvement.
- INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
- 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.
- 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... - 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]).
- The first matter to be addressed, therefore, is whether the complainant has established the relevant facts. As will be clear from the summaries above, there are several contradictions in the assertions of the parties. The only matters agreed upon are that the complainant made a bullying complainant against Mr C on 15 November 2000, that a formal investigation of this complaint began on 5 December 2001, that she made a complaint of sexual harassment against Mr B on 22 January 2002, that an independent investigator upheld her bullying complaint in a report dated 19 June 2002 and that she referred the claim of sexual harassment to the Director of the Equality Tribunal on 18 July 2002.
- The complainant claimed that she was subjected to inappropriate physical contact by Mr B from May 1998 until February 2001. From that point, she asserted that she was subjected to verbal sexual harassment. She suggested the alleged change in behaviour coincided with her formalising of her bullying complaint. She also claimed that the behaviour complained of was witnessed on several occasions by Mr C, her supervisor, who took no action. Two witnesses, Mr D and Mr E, confirmed that they had witnessed the sexual harassment and also confirmed that Mr C had witnessed it.
- In denying the allegations, the respondent cited the policies it had in place to deal with such matters, and referred to the obligation of employees to make appropriate complaints. It suggested that it was extraordinary that neither the complainant nor her witnesses ever referred to sexual harassment by Mr B until her written complaint of January 2002, and pointed out that this was in the context of the investigation of the bullying complaint against Mr C from November 2000 onwards. Mr C attended the hearing as a witness for the respondent, and confirmed his written statement that he had never witnessed the behaviour complained of. Mr B attended the hearing for the purpose of formally denying the allegations against him.
- In situations such as this, it is necessary to decide which version of events is more persuasive on the balance of probabilities. The basic foundation of the complainant's case is her list of incidents alleged to have occurred between summer 1998 and November 2002. As pointed out by the respondent, this was in essence the same list as supported her complaint of bullying against Mr C.
- Having examined the list of alleged incidents, I am satisfied that the original list does not support an allegation of sexual harassment by Mr B. Indeed, references to Mr B on that list are generally designed to emphasise that a previously positive working relationship had been rendered difficult by the actions of Mr C. As an example, in relation to an incident alleged to have occurred on 5 April 2001, the complainant said "Following my letting my problems be known to Management, it appeared [Mr C] was turning [Mr B] against me. [Mr B] got less friendly with me. He began challenging me." Another allegation centered around an incident on 12 July 2001. Following another disagreement, the complainant's statement noted "I feel [Mr C] has caused [Mr B] to feel this way about me because before I complained about [Mr C], [Mr B] used to say to me 'I look forward to the Wednesday that you're here, [complainant's name]. I love to see you coming in here.' Now his attitude has changed completely."
- The timeframe encompassed by these incidents is that timeframe during which the complainant alleges she was subjected to verbal sexual harassment. In the context of some disagreements with Mr B, the complainant asserts that he said to her "You made a f**k of that! (4 May 2001), called her a "F***ing B***h" (21 June 2001) and said "I'm f***ed up of you lately." I do not consider that such language, however vulgar and inappropriate to the workplace, of itself constitutes sexual harassment, particularly when it occurred in the context of a series of disagreements between the individuals involved.
- The incidents that are related to the complainant's physical sexual harassment claim are those alleged to have occurred between May 1998 and February 2001. In this context, her statement in total says "During the summer of 1998 and 1999 [Mr B] was making sexual advances towards me in front of others on numerous occasions. I know [Mr C] was aware of this behaviour because a survey form was given to all staff members with reference to bullying and sexual harassment. When [Mr C] was giving me this form, in early 1999, he said 'Make sure you write about [Mr B] in that form.' On one occasion [Mr B] was manhandling me. He was told to stop by a staff member. [Mr B] said to the staff member 'You're only jealous.' In February 2001 I told [Mr B] not to be making sexual advances towards me. [Mr B] said 'Sure I didn't take Charlie out.'"
- It is apparent that the references to physical sexual harassment are much less clear than those used to support the bullying and verbal sexual harassment claims. They are undated and non-specific. Mr D and Mr E, the complainant's two witnesses, were also unable to provide further clarity. Their written statements included such sentences as "Regarding the incident between [Mr B] and [the complainant], I saw it on many occasions" (Mr D) and "I saw [Mr B] at it several times" [Mr E]. At the hearing, neither the complainant nor her witnesses were able to provide further clarification.
- One of the complainant's written statements asserted that she began "making note of the incidents including dates and witnesses after a meeting with Mr F and Mr C in May 2000 so that I wouldn't in my distress forget important incidents and be misrepresented." However, her list of incidents does not include any reference to the period between May 2000 and February 2001.
- I was provided with a copy of the survey form referred to in 4.10 above. It was a questionnaire seeking staff views on the problem of violence in the workplace, and did not deal with bullying and sexual harassment. The complainant agreed at the hearing that she was not asserting that Mr B ever used violence against her and she did not submit a reply to the questionnaire. Mr C denied making the remark attributed to him in relation to the questionnaire, repeating that he had never witnessed the alleged behaviour.
- The complainant attributed her delay in making a claim of sexual harassment to the fact that she was pursuing her bullying claim against Mr C, and felt unable to deal with both matters at the same time. She said further that she had been unaware of the appropriate procedures until she received a copy of the respondent's policy document in November 2000 when she raised the bullying complaint. I acknowledge that pursing two complaints together may cause difficulty in some contexts, but it would appear logical that a supervisor's failure to ensure a safe working environment by dealing with sexual harassment would form a significant element of a complaint of bullying being pursued against that supervisor.
- It is evident from the evidence of all the parties in this claim that relationships in the work location were less than satisfactory. There were several ongoing disputes separate from the investigation of the complainant's bullying allegation. Local management accepted that all matters were referred to headquarters immediately, because the work location was "unmanageable". This was the context in which the complainant's sexual harassment complaint was dealt with, contrary to the respondent's policy. The respondent submitted that this was also the context in which the proposed negotiations referred to in 2.9 above were dealt with, and denied any intent to victimise the complainant. Taking all of the evidence into account, I do not find that the complainant has established a prima facie case that sexual harassment occurred, on the balance of probabilities.
- Recommendation
As I have not upheld the complainant's complaint, I cannot make binding orders in this matter. However, I wish to recommend that the respondent consider very seriously the position in relation to its practice and procedures in dealing with harassment and sexual harassment. As noted by the independent investigator, the respondent had a satisfactory policy in place, and I was provided with evidence of the circulation of copies of the policy to the several work locations under the aegis of the respondent. - However, it is clear that training in relation to the policy has been less than adequate. The fact that local management declined to deal with the complainant's complaint of sexual harassment in accordance with the policy demonstrates a significant failure of procedure. Any member of staff, making a complaint in accordance with the respondent's stated policy, is owed a duty of care that the policy will be adhered to. I acknowledge that local managers felt the ongoing situation at the work location to be outside their control, but nonetheless the first obligation of management must be to manage.
- Senior management at headquarters was on notice of the failure to follow procedure, since the sexual harassment complaint was referred to headquarters on no less than three occasions, and should have taken steps to ensure the matter was dealt with appropriately. It should be pointed out that, had the complaint of sexual harassment been upheld, it is unlikely that the respondent would have been able to avail of the defence provided for in section 23 (5). I strongly recommend that the respondent re-consider dissemination of and training in relation to its policy on harassment and sexual harassment, with a particular emphasis on the duties and obligations of both management and staff in this regard.
- DECISION
- Based on the foregoing, I find that respondent did not discriminate against the complainant on the ground of gender, contrary to the provisions of the Employment Equality Act 1998.
- Based on the foregoing, I find that respondent did not discriminate against the complainant on the ground of gender, contrary to the provisions of the Employment Equality Act 1998.
Anne-Marie Lynch
Equality Officer
14 March 2005