DEC-E2005-025 Full Case Report

Ms. A vs AB

1. DISPUTE
   1. The dispute concerns a claim by Ms. A against the AB that she has been subjected to discriminatory treatment on the grounds of gender and family status in terms of Sections 6(1), 6(2)(a) and 6(2)(c) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act. The complainant also alleges that she was subjected to sexual harassment and harassment in terms of Sections 23 and 32 respectively of the Employment Equality Act, 1998. She further alleges that she was subjected to victimisation in accordance with the provisions of Section 74(2) of the Employment Equality Act, 1998.
      
2. BACKGROUND
   1. The complainant was employed in the respondent organisation from June to December, 2002. She alleges that she was subjected to sexual harassment by Mr. A during that time. It is her contention that the sexual harassment commenced when they both attended a training course and continued thereafter. The complainant further alleges that she was harassed by Mr. B when he made a derogatory comment to her about her son. Mr. B was a manager in the respondent organisation at the time. The complainant alleges that she was subjected to victimisation by Ms. B because she complained about the behaviour of Mr. A. It is the complainant’s contention that she was required to clean cabinets and the front door and that no other member of staff was required to carry out these tasks. The respondent denies the allegations.
   2. Consequently the complainant referred her complaints of discriminatory treatment, harassment, sexual harassment and victimisation to the Director of Equality Investigations on 2nd April, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 26th January, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A joint preliminary hearing took place on 18th March, 2004 following which submissions were received from both parties. A joint hearing took place on 6th April, 2005. Additional information was received from the parties and the final information was received on 28th April, 2005.
      
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
   1. The complainant states that she has responsibility as a parent for two children aged 6 and 10 years. She commenced employment with the respondent on 4th June, 2002 working in the Bar. During the course of her employment she alleges that she was subjected to sexual harassment, harassment and discriminatory treatment. According to the complainant her complaints to management were ignored and following her complaints she was victimised to such an extent that she could no longer continue in employment. The complainant resigned from her employment in or about 13th December, 2002. It is the complainant’s contention that the respondent failed to act on her complaints in accordance with its own policy on harassment, bullying and sexual harassment as set out in its Employee Handbook.
   2. The complainant contends that she was subjected to sexual harassment by Mr. A. In or about October, 2002 the complainant attended a training course, during the course of her employment. At the course she was seated between Mr. A and the Manager of the Bar. According to the complainant Mr. A put his hands above her right knee and rubbed and squeezed it. While she told him to back off on a number of occasions he placed his finger in her ear and caressed it at the same time. The complainant says that once again told him to ‘back off’ but a couple of minutes later he rested his head on her shoulder and smelled her neck. According to the complainant she was angry and upset and moved away. The complainant states that, at the conclusion of the training session, she complained to the Manager of the Bar but he told her to ‘get over it’. It is the complainant’s submission that the Manager of the Bar did not, then or subsequently, implement the respondent’s policy on harassment. The complainant notes that a week or two later Mr. A was promoted to the position of head barman.
   3. The complainant states that when she was on duty with Mr. A he harassed her by touching her, smelling her neck and feeling her ears. Each time he came near her she told him to go away. In or about October/November, 2002 the complainant was using the till when Mr. A came behind her and started to feel her ear. According to the complainant she was so upset that she shouted at him to leave her alone in front of customers. The complainant says that she then complained to Ms. A, her supervisor who said that Mr. A was only messing. It is the complainant’s submission that Ms. A did not, at that time or subsequently, implement the respondent’s policy on harassment. The complainant states that she then complained to Ms. B (supervisor) and Ms. A also on numerous occasions over the course of her employment from the start of the harassment by Mr. A but no action was taken on foot of these complaints.
   4. The complainant says that she was required to make childcare arrangements during her work hours. Mr. B (Manager) asked the complainant “Why didn’t you drown the sprog at birth or dump him when he was born?” The complainant states that she became very upset, particularly given that her son nearly died at 13 months. It is the complainant’s contention that she was degraded, humiliated and upset by the harassment which she suffered and by the attitude adopted by management. Following her complaints regarding Mr. A’s behaviour the complainant noticed that she was subjected to less favourable treatment which arose out of her objection to Mr. A’s behaviour.
   5. The complainant states that Ms. B required her to carry out difficult work namely to clean cabinets in the bar which she did not require other staff to carry out. These cabinets are from the counter height to ceiling and run the length of the bar. The complainant says that she had to clean the cabinets herself and a number of weeks later Ms. B asked her to clean the cabinets again. When the complainant asked if her colleague could clean the cabinets she was told that she had to clean them. According the complainant when she was finished her work Ms. B required her to stay until the end of her shift whereas if her colleague had finished her work she was permitted to leave before the end of her shift. The complainant says that if she asked Ms. B for assistance during a busy shift Ms. B would criticise her by saying “why can you not handle it”. According to the complainant this was in contrast to the attitude towards her prior to her complaints when she was praised by management.
   6. In summary the complainant submits that Mr. A’s behaviour amounted to sexual harassment and discriminatory treatment with regard to conditions of employment. She further alleges that Mr. B’s behaviour amounted to harassment on the grounds of family status and discriminatory treatment with regard to her conditions of employment. By summarily dismissing her complaints and failing to implement the respondent’s policy on harassment, the complainant states that, the Manager of the bar, Ms. A and Ms. B effectively endorsed Mr. A’s behaviour towards her and themselves engaged in discriminatory treatment with regards to her conditions of employment. The complainant says that Ms. B’s behaviour amounted to victimisation for her objection to Mr. A’s behaviour. According to the complainant the respondent is vicariously liable for the acts of Mr. A, Mr. B, the Manager of the bar, Ms. A and Ms. B. It is the complainant’s contention that she was subjected to sexual harassment, harassment, discriminatory treatment and victimisation in the course of her employment and that she suffered distress and humiliation as a result and that she was ultimately obliged to resign from her employment.
      
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
   1. As part of its submission the respondent provided witness statements from Mr. A, a person from Human Resources (hereinafter referred to as Ms. C), the Manager of the bar, the course trainer and Ms. B. According to the respondent Mr. A sat beside the complainant at the training course as referred to by her. It is the respondent’s contention that when the complainant began to fall asleep Mr. A tipped her on the knee to wake her up. The respondent says that Mr. A denies that he put his finger into the complainant’s ear and caressed it. He further denies that he placed his head on her shoulder or that he smelt her neck. According to the respondent the complainant did not complain to Mr. A at the training session as alleged. The respondent submits that these allegations are difficult to perceive given the close proximity of the participants at the training. The respondent denies in full the incidents that are alleged to have taken place behind the bar in front of customers. According to the respondent Mr. A is a professional barman and he would not jeopardise his position or reputation.
   2. The respondent confirms that the Manager of the bar, who also attended the training course, sat on the other side of the complainant. It is the respondent’s contention that the Manager of the bar did not witness anything untoward between the complainant and Mr. A during the training course. The respondent says that the complainant did not complain to the Manager of the bar about Mr. A’s alleged behaviour after the course or at any other time. Furthermore the respondent states that the Manager of the bar is not aware of the complainant ever having complained about other members of staff or supervisors mistreating her. The Manager of the bar points out that the complainant’s work hours were reduced at her request in an effort to facilitate her childminding arrangements.
   3. The person giving the training course which staff members attended stated in her witness statement that course participants were seated near each other in a semi-circle. Generally speaking the respondent says that this person found the course participants to be attentive and receptive. She has no recollection of any interaction between the participants and did not notice anything untoward between participants.
   4. The respondent states that it cannot confirm or deny that the statement attributed to Mr. B (see paragraph 3.4 above) was made. If it was, and without condoning it, the respondent states that it does not believe that it was meant to be vindictive or malicious and the respondent notes that the complainant herself in her original statement to the Equality Tribunal recognised that Mr. B may have “said these comments in jest”. According to the respondent the complainant cited this one incident in relation to Mr. B and notes that she deems it to be harassment. It is the respondent’s submission that a once-off incident does not come under the definition of harassment as contained in the Company’s policy where it is clearly stated that “Harassment and Bullying is repeated or continual attempts to annoy, irritate or offend on a persistent basis”.
   5. The respondent submits that the complainant did not avail of the informal or formal procedure under the company’s policy further to her allegations of sexual harassment against Mr. A and harassment against the Manager of the bar, Ms. A and Ms. B. According to the respondent the formal procedure encourages the individual to ask the person responsible to stop the offensive behaviour. It is the respondent’s contention that Mr. A denies that the complainant asked him to stop his alleged behaviour during the training session. The manager of the bar denies that the complainant brought her complaint about Mr. A to his attention directly after the training session or at any other stage. Ms. A and Ms. B both deny that the complainant ever reported any incident of harassment to them or in the case of Ms. B any unfair treatment. According to the respondent the complainant did not utilise the formal bullying and harassment procedure. Where an official complaint is received the individual making the complaint is asked to put it in writing. It is the respondent’s submission that it received no such complaint, which the respondent says is not surprising, as all the individuals named by the complainant deny that she raised such issues in the first place. Even if the complainant felt that she had not been listened to she could have registered her complaint in writing but she failed to do so.
   6. In relation to the issue of cleaning the glass cabinets the respondent states that Ms. B herself says that this was her responsibility and that in the main she completed this task herself. However she would, on occasion, rotate the allocation of the cleaning on an evenly distributed basis. According to the respondent the cabinets were cleaned during off peak hours approximately every three weeks. The respondent says that the complainant had been known to offer assistance to Ms. B with the cleaning of the cabinets. Outside of these occasions the respondent says that Ms. B does recall asking the complainant to assist her once over the course of a number of months. The respondent says that the complainant was not treated any differently from other employees in the Department. As regards the issue of shift finishing times the respondent says that Ms. B contends that all staff are required to stay until the end of their shift. However the respondent does acknowledge that an informal practice does exist whereby, due to low trade, a staff member may be allowed to finish 15 minutes earlier provided that they make up the time on a busy night by not taking a break. According to the respondent this applied to all staff within the bar and the complainant’s colleague did not receive more favourable treatment to the complainant in this regard. The respondent notes that the complainant does not provide any evidence by way of specific times, dates, etc. in relation to her allegation at paragraph 3.5 above. Furthermore the respondent notes that the complainant does not give any indication of the number of occasions involved.
   7. The respondent rejects the contention that it is vicariously responsible for the allegations of sexual harassment, discriminatory behaviour and victimisation made by the complainant. According to the respondent Mr. A denies the allegation of sexual harassment and the respondent notes that the complainant has adduced no witnesses to support these allegations. The respondent also denies the allegation of discriminatory behaviour as no individual was singled out in the examples given by the complainant. It is the respondent’s submission that the complainant has failed to substantiate the limited examples given which it says only serves to question their probity. The respondent further denies the allegation of victimisation.
   8. In summary therefore the respondent states that the complainant failed to invoke the Harassment, Bullying and Sexual Harassment Procedure. It is the respondent’s contention that it is incumbent on an employee to avail of the procedure if they believe it is warranted. The respondent also notes that the complainant failed to utilise the Grievance Procedure in relation to these claims yet she was not reticent about using this same procedure in relation to her issues about salary and she spoke to several people in this regard. According to the respondent the complainant did not avail of Trade Union representation in relation to these claims whereas she did approach the Union about her pay grievance. The respondent notes that the complainant’s letter of resignation makes no reference to any of the issues contained in this complaint and it specifically accredits the reason for leaving the respondent organisation to returning to her former employer who made her an offer of her job back. Before resignation the complainant attended an exit interview and the respondent notes that her stated reason for leaving was that she was “going back to her old job”. According to the respondent the complainant was given every accommodation in terms of her shifts on account of her husband being abroad and the resultant difficulties with childminding and to this end the respondent says that the complainant largely determined her own working hours. The respondent notes that when the complainant’s husband was leaving to work abroad, it invited her and her family for a meal with the compliments of the respondent organisation and this invitation was accepted.
   9. In conclusion the respondent states that the complainant did not raise any of the issues contained in her complaint during her employment in the respondent organisation. As she has now raised them it is the respondent’s contention that they are spurious and unfounded. According to the respondent the complainant has not substantiated the allegations in any credible way and where specifics are provided they are denied.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of her gender and her marital status within the meaning of Sections 6(1), 6(2)(a) and 6(2)(c) of the Employment Equality Act, 1998 when she was subjected to discriminatory treatment, harassment, sexual harassment and victimisation. In making my decision in this claim I have taken into account the submissions, both written and oral, from the parties.
   2. At the hearing of this claim the complainant clarified that this is a claim of sexual harassment against Mr. A within the meaning of Section 23 of the Employment Equality Act, 1998, a claim of harassment in relation to Mr. B’s comment in terms of Section 32 of the 1998 Act and a claim of victimisation following the actions of Ms. B under Section 74(2) of the 1998 Act. She confirmed that there is no separate complaint of discriminatory treatment.
   3. The complainant commenced employment with the respondent in June, 2002. She alleges that she was subjected to sexual harassment by Mr. A on a number of occasions. The first occasion was at a training course in October, 2002 when he placed his hand on her knee and squeezed it, smelt her neck and placed his finger in her ear and caressed it at the same time. The complainant alleges that he subjected her to sexual harassment on a number of occasions after that behind the bar. It is the complainant’s contention that she complained about his behaviour to the Manager of the bar on the day of the training course and subsequently to Ms. B and then to Ms. A. According to the complainant the respondent failed to take any action on foot of her complaint and Ms. B subjected her to victimisation as a consequence of making the complaint by requesting her to clean glass cabinets and not asking other staff to do this task. The complainant alleges that she was subjected to harassment by Mr. B when he made a derogatory comment about her son which caused her much upset.
   4. The respondent has denied all the allegations. According to the respondent Mr. A does not accept that he subjected the complainant to sexual harassment or that he acted inappropriately as alleged. The Manager of the bar, Ms. A and Ms. B all deny that the complainant made complaints to them about Mr. A’s behaviour. Ms. B denies that she subjected the complainant to victimisation as alleged. According to Ms. B she herself undertook the task of cleaning the cabinets about every 3 weeks and always at a time when it was quiet. She would ask for assistance from whoever else was on duty at the time. It is her contention that the complainant was asked and did offer to assist her but other staff members carried out the task also. In relation to the allegation against Mr. B the respondent stated that Mr. B has left its employment and it was unable to confirm or deny that the comment was made.
   5. There is a clear conflict of evidence in this case. In cases such as this a decision has to be made on the balance of probabilities i.e. which version of events is more credible.
   6. In this case the complainant stated that the sexual harassment started after her husband went abroad with his work. At the hearing of this claim she was adamant that her husband went abroad during the last week of July, 2002. In an undated statement attached to her referral form (the referral form was dated as received on 2nd April, 2003 and was dated by the complainant on 7th March, 2003) and in her subsequent submission the complainant stated that the training course took place in October, 2002 and that the first incident of sexual harassment had occurred at that training course. At the hearing of this claim it was confirmed by the respondent that the training course had taken place on 18th July, 2002. Subsequent to the hearing the complainant submitted a document from her husband’s employer which stated that her husband had gone abroad on 10th July, 2002. This latter piece of information clearly co-incides with the training course having taken place soon after her husband’s departure but contradicts what the complainant herself stated as absolute in her submissions and at the hearing. While I accept that there was a time gap between the training course, the complainant making her submission and her attendance at the joint hearing of this claim I note that the statement attached to her referral form was made closer to the time when she had worked in the respondent organisation and I would, therefore, have expected that her to be clearer on when her husband had gone abroad and when the training course had taken place especially given the nature of her allegations.
   7. The respondent has denied that the complainant made complaints to management about the behaviour of Mr. A. In a situation where the complainant states that she did complain and all her supervisors in the respondent organisation denies that she made any complaints it is impossible to find one way or the other. However if the complainant did make complaints to her supervisors on the regular basis which she alleges then I would expect that, in the absence of any action being taken by these supervisors, the complainant would have raised the complaints with senior management or the Human Resources Department in the respondent organisation or have put her complaints in writing. It is clear that the complainant did not do this. At the hearing of this claim the respondent noted that the complainant had held meetings with Human Resources on pay issues and yet had not made any complaints on issues of sexual harassment which, according to her own evidence, were occurring on a frequent basis at this time. At the hearing of this claim the respondent alleged that the complainant had given Mr. A a Christmas card on leaving the employment of the respondent organisation even though she alleged that he was sexually harassing her. The complainant has denied this.
   8. At the hearing of this claim the complainant stated that she complained twice to Ms. B about Mr. A’s behaviour and that there were no witnesses to her complaints. She stated that she did not know when exactly she went to Ms. B but that she went to her before Ms. A joined the respondent organisation and after Ms. A joined she made her complaints to Ms. A and not Ms. B. I note that Ms. A commenced employment with the respondent organisation on 22nd July, 2002 as the complainant’s supervisor. Hence between 4th June, 2002 (when the complainant commenced employment) and 22nd July, 2002 the complainant is alleged to have made two complaints to Ms. B. It must be borne in mind that, on the basis of the complainant’s own evidence, no incident of sexual harassment took place before the training course which she alleged was held in October, 2002, but which actually took place on 18th July, 2002. It is alleged by the complainant that Ms. B subjected her to victimisation because of her complaints by always assigning her the task of cleaning cabinets and, at the hearing of this claim, she also mentioned the cleaning of the front door. I note that these tasks were undertaken every three weeks and that the complainant herself stated that she cleaned the cabinets twice and the door once. Between 22nd July, 2002 and when the complainant left the employment in December, 2002 these areas would have been cleaned at least six times. It is clear that the complainant did not assist on all of these occasions and I note that the complainant acknowledged at the hearing of this claim that she did not see others carry out this task. As this task was undertaken at a quiet time of the day it is conceivable that the complainant was not always present when the task was being undertaken. There is no evidence that the complainant was the only person, apart from the supervisor (Ms. B) who cleaned the front door and the cabinets and I therefore find that the complainant has failed to make out a claim of victimisation.
   9. In relation to the allegation of harassment against Mr. B as a result of his alleged comment I note that there are no witnesses to this comment. The respondent is unable to confirm or deny that the alleged comment was made. In the absence of evidence I find that the complainant has failed to establish a prima facie claim of harassment in this regard. I note that the complainant, in her statement which accompanied her referral form, considered that the alleged comment by Mr. B may have been made in jest. If the alleged comment was made it was inappropriate whether it was made in jest or not.
   10. The complainant resigned from employment in the respondent organisation in December, 2002. In her letter of resignation addressed to the Manager she stated that the reason she was leaving was because she had been offered a position in an organisation where she had previously worked. She also thanked him for everything. I note that this letter was addressed to the Manager whom the complainant had allegedly complained to about Mr. A’s behaviour at the training course and who had allegedly told her to ‘get over it’. If as the complainant alleges she was leaving the respondent organisation because of the alleged sexual harassment it is unclear why she did not state this in her letter of resignation. Furthermore it is strange that the complainant would thank the Manager where he had failed to act on her complaint.
   11. The respondent submitted the details of an exit interview which was held with the complainant on her leaving the respondent organisation. I note from this exit interview that the complainant made no complaint of sexual harassment, harassment or victimisation. The complainant denied that she had attended an exit interview. I note that the exit interview is unsigned by the complainant. There is no date as to when this exit interview form was completed. It could be the case that this exit interview form was completed following an informal chat between the complainant and Ms. C. In the absence of this form being signed by the complainant I cannot give any weight to its contents. Therefore I would suggest that, in future, the respondent set up formal exit interviews with departing staff and ensure that the person leaving signs the exit interview form as an indication that they are satisfied that this accurately reflects why they have decided to leave and how they felt about the respondent organisation.
   12. At the hearing of this claim the complainant stated that she reduced her hours of work to avoid working at the same time as Mr. A because of the alleged sexual harassment. I have examined the work rosters submitted by the respondent and I find that details of the work rosters did not reflect that contention.
   13. In conclusion, therefore, I find that the complainant has lacked credibility in her evidence in this claim.
       
6. DECISION
   1. In view of the foregoing I find that DAH did not subject Ms. H to sexual harassment, harassment and victimisation within the meaning of Sections 23, 32 and 74(2) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.