Ms. CL (Represented by the Communications Workers Union) vs CRM (Represented by McMahon O'Brien Downes Solicitors)
1. DISPUTE
1.1 The dispute concerns a claim by the Communications Workers Union, on behalf of Ms. L, that she was subjected to sexual harassment and harassment on the grounds of religion in the course of her employment with the respondent organisation (CRM) in terms of Sections 6, 23 and 32 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
2. BACKGROUND
2.1 The complainant commenced employment as a junior sales adviser on 13th August, 2001. She alleges that she was subjected to sexual harassment by another member of staff (Mr. A) and that she was subjected to harassment by the Sales Manager on the grounds of religion on a regular basis. The respondent denies the allegations. Consequently the complainant referred a complaint to the Director of Equality Investigations on 10th January, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 14th February, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing took place on 11th March, 2004. Further additional information was received from the respondent on 29th March, 2004.
3. SUMMARY OF THE CLAIMANT'S SUBMISSION
3.1 The complainant commenced employment with the respondent organisation on 13th August, 2001 as a junior sales adviser and she was awarded Sales Advisor of the month in September, 2001. As part of her job the complainant had at times to deliver and collect cars. In June, 2002 after delivering a car she was brought back to her workplace by a colleague (Mr. A). According to the complainant this colleague grabbed her and sexually harassed her. She alleges that he said "come on ... how about we pull over for a quickie" to which she replied "I don't think so". The complainant states that he then put his hand on her leg and squeezed it and held her leg for some time. She further alleges that he put his hand on her breast and said "give me a go" but she told him that "this was her space and that was his".
3.2 The complainant states that she informed the Sales Manager about this incident and was assured that she would be not be left alone with Mr. A. According to the complainant he also stated that a list of rules would be posted in the workplace and given to each employee alerting them to any sexual harassment. The complainant states that this action never took place and she felt that her complaint was not being treated seriously. The complainant further alleges that Mr. A sent her text messages of a sexual nature on a number of occasions which caused her serious concern. It is the complainant's contention that she did not receive adequate guidance from the Sales Manager or the company with regard to the sexual harassment and as a result she believes that the respondent was irresponsible and negligent in its handling of the issue.
3.3 The complainant states that she is English and was brought up a Protestant. According to the complainant the Sales Manager regularly made comments about her religion in the nature of "left footer" and "fucking jaffa". The complainant says that she felt these comments were uncalled for but she could not react as she was determined to hold onto her job. It is the complainant's contention that these comments were made on numerous occasions (approximately two or three times a week) in the workplace. The complainant states that the Sales Manager also commented that "my Dad was able to buy me a car because all us left footers had all the money". According to the complainant this was heard by two of her colleagues. The complainant notes that she recorded some of these comments in a diary she used to record matters proper to her job and when she sought this diary after her employment ceased she was told that it had been thrown in the bin.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent categorically denies any discrimination on grounds of gender, religion, harassment or sexual harassment at any time. The respondent also denies the serious allegations made against Mr. A and says that Mr. A feels that he was the person who was sexually harassed by the complainant. The respondent furnished statements by the following staff members and a summary of these are set out below:
General Manager
Two Senior Sales Executives
Commercial Sales Executive from another organisation
Sales Manager
Administrative Officer
Mr. A
General Manager
4.2 The General Manager states that, while he was aware that the complainant was Protestant, he denies that he made any discriminatory comments to her on the grounds of her religion and he states that he never heard any other member of staff do so either. The General Manager denies any knowledge of the complainant's allegation of harassment by himself or other staff members. In relation to the allegation of sexual harassment by Mr. A the General Manager states that he was aware that the complainant always called Mr. A "big boy". According to the General Manager he was asked by the Sales Manager to deal with a complaint by the complainant against Mr. A, which to his recollection, was that Mr. A had grabbed the complainant's hand. The General Manager states that he asked that Mr. A be called to a meeting so that the allegation could be put to him. It is the General Manager's submission that the complainant begged him not to do this and it was agreed that the complainant would never be in a position where she would have to travel with Mr. A again.
Senior Sales Executive (Mr. B)
4.3 Mr. B has worked with the respondent since September, 2001 and says that he was aware from the complainant herself that she was a Protestant. According to Mr. B he cannot recall any member of staff or customer ever using discriminatory words against the complainant. Mr. B states that his desk was located behind the complainant's and he considers that if discriminatory comments had been made to her he would have heard them. It is Mr. B's submission that he has no knowledge of any harassment against the complainant. Mr. B states that he himself felt sexually harassed by the complainant and he outlined one specific incident in his statement. In relation to the complainant's allegation of sexual harassment against Mr. A it is Mr. B's submission that the complainant called Mr. A "big boy". According to Mr. B the complainant used a ruler on the hand of male members of staff (including himself) and made comments of a sexual nature to them. Mr. B states that the complainant was constantly flirting and would brag about sexual encounters.
Senior Sales Executive (Mr. C)
4.4 Mr. C returned to take up the position of Senior Sales Executive with the respondent organisation in October/November, 2002 having worked there previously for approximately 2 years leaving in or about November, 2001. According to Mr. C he has no knowledge of any member of staff ever slagging the complainant about being Protestant and Mr. C notes that the complainant never made any mention of alleged offensive statements. Mr. C recalls that he informed the complainant that there was banter between himself (a Protestant) and a colleague (a Catholic) where they slagged each other about their religion. However Mr. C says that they both considered this harmless fun. Mr. C states that he has no knowledge of the sexual harassment allegations against Mr. A.
Commercial Sales Executive
4.5 The Commercial Sales Executive has been employed by the respondent's sister company since September, 2001. She says that she was unaware that the complainant was Protestant but she did know that she was English because of her accent. The Commercial Sales Executive says that while the complainant would speak to her, both on a personal and professional basis, she never stated that she was being ridiculed or discriminated against by other colleagues. According to the Commercial Sales Executive she has no knowledge of the complainant being subjected to any harassment. The Commercial Sales Executive says that, from time to time, the complainant did complain that she was sick of the staff but she never mentioned any incidents of alleged harassment. It is the Commercial Sales Executive's submission that she has no knowledge of any allegation of sexual harassment against Mr. A and she states that, at no time, did the complainant complain about being sexually harassed or physically interfered with by Mr. A. The Commercial Sales Executive states that she had on occasion had lunch with the complainant at which she complained about her job generally and indicated that she wished to leave. According to the Commercial Sales Executive the complainant stated that she did not wish to leave of her own volition but wanted the respondent to fire her so that she could sue.
Sales Manager
4.6 The Sales Manager has been employed by the respondent since October, 1997. He denies the complainant's allegation that he made discriminatory comments in the nature of "fucking jaffa" or "left footer" in relation to her religion. The Sales Manager says that he knew that the complainant was Protestant because she told him and he recalls how she use to say that she did not know the difference between Catholic and Protestant. Furthermore the Sales Manager states that he knew of the complainant's religious persuasion from her CV prior to employment and it did not affect her selection for the job. According to the Sales Manager he would not have allowed derogatory or discriminatory comments to be made to the complainant. In relation to the allegation of sexual harassment against Mr. A the Sales Manager states that he has heard the complainant refer to Mr. A as "big boy" on numerous occasions. He recalls that during the Summer of 2002 the complainant informed him that Mr. A had put his hand on her. He referred the matter to the General Manager who said that Mr. A should be called to a meeting to deal with the allegation. The Sales Manager states that the complainant pleaded not to call Mr. A into the meeting and it was agreed that she would not travel with Mr. A again.
Administrative Officer
4.7 The Administrative Officer has been employed by the respondent since 9th August, 2001. She states that, in relation to the alleged sexual harassment by Mr. A, she frequently heard the complainant refer to Mr. A as "big boy". The reference by the complainant to Mr. A as "big boy" arose out of occasions where she sought to measure the hands of male staff members with a ruler and make comments such as "you are only 4 inches, so you are no use to me". The Administrative Officer states that in relation to the allegation of sexual harassment against Mr. A the complainant confirmed to her in about June, 2002 that she had tried it on with Mr. A and she said that she could "have him" if she wanted. Furthermore the Administrative Officer states that the complainant often texted Mr. A during work and social hours asking him to take her out for lunch/a drink. The Administrative Officer specifically recalls the alleged incident with the Senior Staff Executive (Mr. B). She stated, in her statement, that there were more incidents of this nature. In relation to the issue of religion the Administrative Officer states that the complainant said that she did not know the difference between Protestant and Catholic. Furthermore the Administrative Officer states that the complainant at no time commented to her on being offended by statements allegedly made by staff members. The Administrative Officer notes that she and the complainant socialised together quite frequently and the complainant never made any reference to any of these alleged incidents. It is the Administrative Officer's submission that she had no knowledge of any harassment against the complainant.
Mr. A
4.8 According to Mr. A he is appalled at the allegations of sexual harassment made against him. He states that he was constantly harassed by the complainant. On one occasion when he travelled with the complainant she made the comment that he had missed out as "we could have gone for a quickie". Mr. A further notes that the complainant both texted and phoned him on a regular basis both during and after work asking him to go for lunch, go for a drink, etc. Her text messages were of a sexual nature but Mr. A states that he did not retain these. According to Mr. A the complainant rang him in the past asking him to meet her so that they could do it in the back of the van. According to Mr. A the complainant regularly called him "big boy" in front of other members of staff. Mr. A states that he was aware that the complainant was Protestant and he denies that any person, including himself, made any comments of a discriminatory nature to her in relation to her religion.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was subjected to sexual harassment and harassment on the grounds of religion. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
5.2 The complainant commenced employment with the respondent in August, 2001. In June, 2002 she had reason, in the course of her employment, to get a lift from Mr. A. The complainant alleges that, during that journey, she was subjected to sexual harassment by Mr. A. According to the complainant she made a complaint to her manager (the Sales Manager) and this allegation was reported to the General Manager. The complainant also states that she received a number of text messages from Mr. A, the last of which was received the day after the alleged incident in the car. It is the complainant's contention that, not long after she became pregnant, the respondent let her go in September, 2002. According to the respondent the complainant was performing very poorly and it was decided to make her position redundant. The respondent notes that between July and September, 2002 the complainant was absent on sick leave for 25 of the 47 working days in that period.
5.3 In relation to the allegation of sexual harassment I must first consider if the complainant has established on the balance of probabilities that she was sexually harassed. If I find that she has established that she was sexually harassed I must consider whether the complainant's employer (i.e. the respondent) is vicariously liable. If I deem the respondent to be vicariously liable then I must consider, as a defence, whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace and whether the respondent dealt adequately with the complaint of sexual harassment.
5.4 At the hearing of this claim the complainant alleged that, while in a car with Mr. A in the course of their work:
(a) Mr. A grabbed her leg
(b) Mr. A touched her breast and
(c) Mr. A grabbed her hand and pressed it against his private parts.
According to the complainant Mr. A sent her a sexually explicit text message the following day and she showed this message to the Sales Manager. The respondent denies these allegations. The Sales Manager confirmed that the complainant reported the alleged incident to him but the only thing she told him was that Mr. A had put his hand on her knee. In a diary entry made by the Sales Manager and which he submitted following the hearing I note that he stated in writing that the complainant "has alleged that Mr. A grabbed her by
the leg". The Sales Manager denied that the complainant showed him a sexual explicit text message which she received from Mr. A the following day. At the hearing the Sales Manager confirmed that he, in the company of the complainant, reported the alleged incident to the General Manager. In evidence the General Manager said that the complainant stated that Mr. A had put his hand on her knee and that he had tried to put her hand down his overalls. The General Manager and the Sales Manager both stated that when the complainant was asked what she wanted the respondent to do she requested a guarantee that she would not have to travel with Mr. A again and she was given this guarantee. Both the General Manager and the Sales Manager denied that they had told the complainant that they would post up a list of rules alerting employees to sexual harassment.
5.5 In her submission the complainant stated that Mr. A suggested that he "pull over for a quickie"; he placed his hand on her leg; squeezed it and held it for some time and he put his hand on her breast and said "give me a go". At the hearing the complainant said that Mr. A grabbed her leg, touched her breast and pressed his hand against his private parts. I note that the allegations made by the complainant in her written submission are not fully consistent with those made at the hearing.
5.6 There is also a difference between what the General Manager stated in his statement and what he said at the hearing of this claim. In his statement he stated that the complainant had alleged that, to his recollection, Mr. A had grabbed her hand. In evidence at the hearing the General Manager stated that Mr. A had put his hand on the complainant's knee and that he had tried to put her hand down his overalls. I am satisfied that the evidence given by the General Manager at the hearing of this claim reflects, in all probability, what the complainant actually alleged. If the complainant had not made the allegations the General Manager would not have outlined the two allegations as he did at the hearing.
5.7 At the hearing of this claim the complainant produced a number of sexually explicit text messages which she had received from Mr. A. I am satisfied that these messages could reasonably have been regarded as sexually offensive, humiliating or intimidating to the complainant or indeed to anyone who would have received them. Four of these messages were sent prior to the alleged incident of sexual harassment and one was sent the day after the alleged incident. It was accepted by Mr. A that these messages had been sent from his mobile phone. There was a suggestion by the Administrative Officer, at the hearing, that Mr. A was not allowed to have his phone with him in his work area and that it was always in the office. It was on this basis that she was suggesting that someone else could have used the mobile phone to text the messages to the complainant. According to this witness some of these messages were circulating around the office and were not directed specifically at the complainant. I note that there was no evidence to support this contention. At the hearing Mr. A confirmed to me that he did have his mobile phone with him in his work area and that it was only in the office when it needed to be charged. Mr. A's mobile phone is his own responsibility and when he left it in the office he could have left it turned off. Mr. A has alleged that the complainant sent him text messages of a sexual nature but he was unable to provide any evidence to substantiate this allegation. In terms of the type of messages the complainant is alleged to have sent to Mr. A I am satisfied that they were not sexually explicit. Rather they were invitations to meet for a drink or for lunch.
5.8 There is a lot of conflict in the evidence before me in this matter. Sexual harassment is defined in Section 23(3) of the Employment Equality Act, 1998. Where A and B represent two persons of opposite sex Section 23(3) provides that:
"For the purposes of this Act
(a) any act of physical intimacy by B towards A,
(b) any request by B for sexual favours from A, or
(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), 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".
I am satisfied that an act occurred while the complainant was in the car with Mr. A and that this act was unwelcome to the complainant resulting in her making a complaint about it to management in the respondent organisation. I am also satisfied that the complainant received a number of sexually explicit text messages from Mr. A's mobile phone and one of these was received after the alleged act and after the complaint to the respondent.
5.9 In statements submitted by witnesses for the respondent and in their direct evidence at the hearing of this claim I note that they all, without exception, contend that the complainant regularly instigated sexual banter in the respondent organisation. Mr. B in his written statement outlined one specific incident where he felt sexually harassed by the complainant and another witness, in her statement, indicated that she was present when this incident occurred. I note that the witness (Mr. B) has now left the respondent organisation but felt so strongly about this claim that he attended the hearing on behalf of the respondent to give direct evidence in support of his written statement. The complainant has denied these allegations. In the Labour Court Determination in the case of A Company v A Worker1 the Labour Court noted that the company, while refuting allegations of sexual harassment, relied on a number of counter allegations put together by employees who had been accused by the claimant, alleging that she was a willing participant in sexual banter and conversation in the workplace. This Labour Court Determination can be distinguished from this claim inasmuch as the complainant has not made any allegations of sexual harassment against any, but one, of the witnesses for the respondent. Furthermore the nature of the harassment was not merely sexual banter but included an unwelcome act of a sexual nature. Consequently I find that there is compelling evidence that the complainant herself instigated some of the incidences in the respondent organisation.
5.10 Having established that the complainant was subjected to sexual harassment by Mr. A in relation to the incident in the car and in relation to the text messages I note that Section 15(1) of the Employment Equality Act, 1998 provides that the respondent is vicariously liable where Mr. A's actions were carried out in the course of his employment although, not necessarily, to the knowledge or approval of the respondent.
5.11 Section 15(3) of the Employment Equality Act, 1998 provides the following defence for a respondent:
"In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee -
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description".
According to the respondent the complainant was given a commitment that she would not have to travel with Mr. A in the future and I am satisfied that the complainant did not find herself travelling alone with Mr. A thereafter. The respondent says that the allegations were not put to Mr. A because the complainant had pleaded with management not to call Mr. A into a meeting. I note that the complainant stated, at the hearing of this claim, that she had no objection to these allegations being put to Mr. A but not in her presence. I am satisfied that the complainant's position at the hearing was not made clear to the respondent at the time. The respondent denies that it gave the complainant a commitment that it would put up a set of rules in relation to sexual harassment in the organisation. After the alleged incident the complainant received a further text message from Mr. A which was sexually explicit. Had there been a sexual harassment policy in place at the time one would expect that, in accordance with that policy, the respondent would have undertaken an investigation, informed Mr. A of the allegations and given him an opportunity to respond to them. I note that the respondent did not have a sexual harassment policy in place at the time setting out steps that were reasonably practicable to prevent any of these incidents occurring and the respondent did not take any steps after the complainant made her complaint. The respondent has stated that a sexual harassment policy has since been put in place.
5.12 The complainant has alleged that she was subjected to harassment on the grounds of religion by the Sales Manager. She alleges that he made discriminatory comments to her regularly on an on-going basis. This allegation is denied by the Sales Manager and by all those who made statements on behalf of the respondent. I am, therefore, satisfied that there is no evidence to support this allegation.
6. DECISION
6.1 In view of the foregoing I find that the CRM did subject the complainant to sexual harassment in terms of Sections 6 and 23 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. I further find that the respondent failed to provide the complainant with a safe working environment free from sexual harassment.
6.2 I also find that there is no evidence to support the complainant's allegation of harassment on the grounds of religion in terms of Sections 6 and 32 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
6.3 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the respondent -
- to pay the complainant the sum of €1,000 by way of compensation for the stress suffered as a result of the sexual harassment;
- to provide training for all staff on the provisions of the Employment Equality Act, 1998.
______________________
Gerardine Coyle
Equality Officer
17th May, 2004
1Labour Court Determination - DEE018