A Female Employee
(represented by Siobhan Gallagher B.L. instructed by Casey & Co.)
-v-
A Building Products Company
(represented by H.C. Browne Solicitors)
1. CLAIM
1.1 The case concerns a claim by a female employee that a building products distribution company in County Limerick, discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act 1998 in contravention of section 8 of the Act in relation to her conditions of employment. She also claims that she was victimised within the meaning of section 74(2) of the Act following her complaint.
2. BACKGROUND
2.1 The complainant submits that she was discriminated against in that she was subjected to various incidents of sexual harassment in the course of her employment. She submits that when she complained of the sexual harassment, she was victimised by her employer as it dismissed her from her job. The respondent denied that the complainant was sexually harassed and submitted that the complaint was not referred to the Tribunal within the statutory time period.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of the Equality Tribunal on 23 September 2004 (Form ODEI.2). On 6 March 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 24 April 2006. A submission was received from the respondent in relation to the time limit issue on 2 June 2006 and on 7 March 2007 denying the complainant's allegations and submitting that the complaint was not referred in time. A hearing of the claim was held on 14 May 2007. There was no appearance by or on behalf of the respondent at the hearing.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant states that she commenced working for the respondent on 29 September 2003 as a clerical office worker. She worked in a pleasant atmosphere until January 2004 when matters began to deteriorate. She submits that she was out on Easter Saturday night on 10 April 2004 with her sister when she met Mr. C of the respondent and another employee, Mr. O' F. Mr. C passed a comment on her clothing which she found very upsetting. He stated that if Mr. R was there, he would tell her to cover herself up.
3.2 On 23 April 2004, she submits that another incident arose at work. The rear window of her car had been broken and she was obliged to try to get it fixed. As a result, she was late for work that morning but made her apologies. She was called into the office of Mr. A by Mr. C and he closed the door. With a smirk on his face, he asked what had she been up to in the back seat of the car that she drove her two legs out the window. She submits that both the comment and the atmosphere in which it was made were exceedingly derogatory and upsetting and it was a further embarrassment that it was in the presence of another employee.
3.3 The complainant submits that on another occasion, Mr. C, Mr. O' F and Mr. R were discussing in detail a film with graphic sexual content which they had seen. Mr. C asked her whether she had seen the movie and when she replied that she had not, Mr. C's response was that she was probably up to it every night of the week. She submits that she found the comment extremely upsetting particularly in view of the earlier incidents.
3.4 The complainant submits that on the morning of 23 July 2007, she went with Mr. R's permission to the local Social Welfare Office. When she returned, Mr. R approached her to say that she had not got permission from Mr. C to go. The complainant then indicated to Mr. R that she had got permission from him as her supervisor and he agreed that she could go.
3.5 She submits that later that day on 23 July 2004, she was at work. She was very upset by the various comments that had been made and Mr. C's wife approached her to know what was wrong. She said that she did not want to discuss it with her but Mr. C's wife insisted. Mr. C's wife also worked in the company. She wished to know what the problem was between Mr. C and the complainant. When the complainant told her about the comments he had made, she denied that her husband would make such a statement. The complainant said that she had a witness, Mr. R. Mr. R threw his eyes to heaven and told her that she had better pack her bags. She submits that happened at 3.20pm and by 3.30pm she had left. She submits that when she got home, she phoned Mr. C to tell him that she had not walked out on the job but that she had been asked to leave by Mr. R. Mr. C said that it was better that she was gone.
3.6 The complainant submits that she commenced employment with the respondent when she was twenty years old. She submits that she was happy in her job until the acts of discriminatory treatment occurred. She submits that she found the comments made by Mr. C, a mature married male, in the presence of other male colleagues to be embarrassing and degrading. She submits that the comments were discriminatory and totally inappropriate in the workplace when she was young and vulnerable and as a result she was ashamed, lost confidence and was depressed. She submits that she is now employed elsewhere and her confidence has been restored.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that the allegations made by the complainant are completely denied. It submits that the complaint was made outside the 6 month time period for referring a complaint. It submits that it wrote to the solicitors for the complainant on 30 August 2004 and suggested that they contact the people named in their letter of 10 August 2004 for their account, however, this was never done.
4.2 The complainant's complaint lacks all bona fides and is vexatious. The complainant was at all material times treated with appropriate respect and consideration by the respondent. The complainant's first assertion of the matter now complained off was on the day of her proper and reasonable summary dismissal some three months after the alleged occurrence of the matter.
4.3 The respondent submits that the complaint could have been made in time and there was nothing to prevent the complaint being made in time. The complainant had attended at her solicitor and had the benefit of legal advice. The respondent submits that the issue of compliance with statutory time limits should be dealt with by way of a preliminary issue and the Tribunal is acting outside its jurisdiction to hear the complaint.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant in this case alleges that the respondent discriminated against her on the gender ground in that she was sexually harassed by her boss at various times during the period from April 2004 to her dismissal on 23 July 2004. The respondent denied the complainant's allegations and submitted that the complaint was made outside the six month time period for referring a complaint. I must consider firstly whether the complaint was referred to the Tribunal in time and in the event that I find that it was, I must proceed to consider (i) whether the complainant has established on the balance of probabilities that she was sexually harassed. If I find that the complainant has established that she was sexually harassed, I must then consider (ii) whether the complainant's employer is vicariously liable for the harassment. If I find that the complainant's employer is vicariously liable, I must consider as a defence (iii) whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace and whether the respondent dealt adequately with the complainant's complaint of sexual harassment. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the complainant and I have also taken into account the respondent's written evidence. As there was no appearance by the respondent at the hearing, I have not had the opportunity to hear any direct evidence from the respondent in defence of the complainant's claim.
Time limit issue
5.2 The complainant referred a claim of discrimination in relation to her employment to the Equality Tribunal on 23 September 2004. However, she provided details of her complaint on the form for referring a complaint of discrimination under the Equal Status Act, 2000 (Form ODEI.2). The form refers to notifying the respondent of her complaint on 10 August 2004 and of receiving a reply from them on 30 August 2004. The form refers to the first act of discrimination having occurred in April 2004 and the last one on 23 July 2004. In relation to providing details of the complaint, the complainant stated "See attached statement". No statement was attached to the complainant's referral form and the complainant was so advised by the Tribunal on 29 September 2004 and the respondent was advised on the same date that a complaint against it had been referred under the Equal Status Act, 2000 and that a query had arisen as a description of the complaint had not been provided. The complainant's statement on the matter was received by the Tribunal on 7 October 2004. On 10 November 2004, the complainant was advised that it appeared that the matter complained off related to employment and clarification was sought of the precise nature of the complainant's claim. On 20 December 2004, the complainant forwarded a complaint on the correct form, i.e. the form for referring a complaint under the Employment Equality Act, 1998 (Form ODEI.1). On that date, receipt of the complainant's complaint form was acknowledged and a query was raised with regard to compliance with statutory time limits. On the same date on 20 December 2004, the respondent was advised that a complaint against it under the Employment Equality Acts 1998 and 2004 was referred to the Tribunal and that a query had arisen with regard to compliance with statutory time limits.
5.3 On 5 January 2005, the complainant's representative advised that the claim was made under the incorrect legislation albeit within the six month time limit and submits that the respondent was made aware of the claim by letter dated 10 August 2004. On 20 January 2005, the complainant was advised that the Equal Status complaint was being deemed inadmissible and that the file was being closed. She was further informed that her claim was being processed under the Employment Equality Acts 1998 and 2004. By letter dated 20 January 2005, the respondent was asked for its comments in relation to the complainant's letter of 5 January regarding compliance with time limits. The respondent responded by letter dated 16 February 2005 stating that the complaint was made outside the 6 month time limit. Following further queries from the office in relation to the date of the last act of alleged discrimination, (different dates provided on the two forms referred) the complainant's representative stated in relation to relevant dates by letter dated 22 March 2005:
"I was advised that the last act of discrimination in fact occurred on 23rd of April 2004. It appears that matters merely came to a head in July 2004, but no act of discrimination occurred on that date ......"
The complainant was advised by the Tribunal by letter dated 11 August 2005 that as she had initially referred her complaint within six months of the alleged discrimination that the complaint was being assigned to an Equality Officer. The complainant provided a statement in relation to her claim on 21 April 2006 and the respondent in response by letter dated 2 June 2006 denied the allegations and sought a ruling in relation to compliance with statutory time limits.
5.4 Based on the details contained into the complainant's letter dated 22 March 2005 that the last act of discrimination occurred on 23 April 2004, any complaint in respect of alleged discrimination should have been referred to the Tribunal on or before 22 October 2004. The complainant's original complaint form was referred to the office on 23 September 2004. A copy of the complaint form was provided to the respondent on 29 September 2004. Whilst the form did not have the precise details of the discrimination attached as the statement was not included with the form, the complainant's representative wrote to the respondent on 10 August 2004 referring to the incidents on 10 April 2004 and 23 April 2004 and also the incident in relation to the movie with graphic sexual content. That letter further states:
"Under the Employment Equality Act, 1998 our client is deeming your behaviour to her on these occasions as sexual harassment in the workplace. This letter is to call upon you to formally apologise to our client through our offices and to compensate her for the upset you have caused her.
In the event that we do not hear from you within ten days from the date of this letter we will be obliged to institute proceedings against you and in that regard you may treat this letter as a final notice."
5.5 The respondent responded by letter dated 30 August 2004 stating that the complainant was let go from her job on 23 July 2004 following inappropriate behaviour by her at work and further stating "We suggest before you take any action in this matter that you contact the persons named by you in your letter, for their account of the matter to which you refer." It is clear therefore that even before proceedings were referred to the Equality Tribunal, the respondent was on notice of a claim pending and had details of the claim to be made. The forms for referring complaints to the Tribunal are not statutory forms and are purely administrative in nature. A complaint may therefore be referred in any written format. In the Labour Court case of Kingspan Building Products v. A Worker REE/02/01 Decision No. 024, the Court held that a letter sent by SIPTU dated 24 October 2001 to the Labour Court within the six months period formally making a complaint of dismissal was in time notwithstanding that the complaint form was not received by the Court until 3 January 2002 which was outside the six month statutory time period. In the case in issue, a complaint form, albeit the incorrect form, was received by the Tribunal within the six month period. In the circumstances, I find that the complaint was referred to the Equality Tribunal within the six month statutory time period. It is also the case that the respondent was on notice of the complainant's complaint and that proceedings were being contemplated by her as detailed in her letter dated 10 August 2004.
Sexual harassment claim
5.6 The complainant who was employed as an Accounts Assistant/Administrator refers to incidents of alleged sexual harassment on 10 April 2004 and 23 April 2004 by the Managing Director, Mr. C. She also refers in her written submission to another incident when Mr. C asked her whether she had seen a movie with graphic sexual content which was being discussed between Mr. C, Mr. O'F and Mr. R and submitted at the hearing that she could not be precise in relation to the date of that incident which she submits was around March/ April 2004 and may have been before the incident on 23 April 2004. The various incidents of harassment therefore fall to be considered under Section 23(1) of the Employment Equality Act, 1998. Section 23(1) of the Employment Equality Act, 1998 provides that where a male harasses a female colleague or vice versa, the sexual harassment constitutes discrimination by the employer on the gender ground in relation to the victim's conditions of employment. Section 23(3) (where A and B represent two persons of the opposite sex) 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.'
5.7 The respondent denies that the complainant was sexually harassed by Mr. C and submitted that the complainant was at all material times treated with appropriate respect and consideration. Any act or conduct which was unwelcome to the complainant and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to the complainant constituted sexual harassment within the meaning of the Act. I have heard the complainant's direct evidence in the matter and on the balance of probabilities, I find that the complainant was sexually harassed.
Vicarious liability
5.8 Section 15(1) of the Employment Equality Act, 1998 provides:
'Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done without the employer's knowledge or approval.'
In the present case, there is no doubt but that the actions of Mr. C, the Managing Director were carried out in the course of his employment and the respondent is vicariously liable for the actions of Mr. C.
Section 15(3) Defence
5.9 Section 15(3) provides that:
'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.'
The complainant submitted at the hearing that she never saw any policy on the prevention of sexual harassment in the workplace. The respondent's written submission makes no reference to such a policy. From the evidence presented, it does not appear that the respondent had any policies in place in relation to the prevention of sexual harassment in the workplace at the time that the harassment occurred. The respondent did not refer the complainant to any policy detailing how her complaint might be progressed when she complained in relation to her treatment to Mr. C's wife who was also an employee. The only response by the respondent when the complainant made a complaint to someone other than the harasser was to deny that it ever happened. In this case, the harasser was a Managing Director and therefore not having a policy made an attempt at a complaint even more difficult. In the present case, no evidence has been presented to indicate that the employer had taken any steps that were reasonably practicable to prevent sexual harassment occurring in the workplace and it cannot therefore avail of the section 15(3) defence.
Actions taken by the respondent
5.10 The complainant submits that when she complained of sexual harassment, she was victimised by the respondent in that no proper investigation took place and she was dismissed. It appears to me that the respondent was unclear on how to handle the sexual harassment complaint. This was exacerbated by the respondent's failure to have policies and procedures in place to deal with complaints made either formally or informally. The failure to have such policies in place could also have had implications for the complainant in the situation that she found herself in and she could have been unsure as to whom she should direct a complaint, what she could expect to happen arising from a verbal complaint, what would happen on foot of a written complaint, whether the matter would remain confidential, what the procedure was for carrying out an investigation and what she could expect when the investigation was completed in circumstances where her complaint was upheld/not upheld. Indeed, the respondent's reaction to the complainant's complaint appears to have been to dismiss the complainant.
Claim of victimisation in relation to dismissal
5.12 In relation to the dismissal, the respondent's statement in its submission dated 7 March 2007 refers to the complainant's summary dismissal and states that any upset to her was caused by her own inappropriate, insubordinate and intolerable behaviour. The complainant stated at the hearing that her performance had never been raised as an issue except when she was given one month's probation to the end of January 2004 as she was told that her work was not satisfactory but she was not provided with specifics. She submitted that she was then given an increase at the end of January 2004. The complainant sought to pursue a claim of victimisation in relation to her dismissal at the hearing. The complainant's representative advised by letter dated 19 April 2007 that "proceedings in respect of dismissal were not instituted in this case as my client was successful in securing alternative employment." The complainant's referral forms do not make reference to a claim of victimisation in relation to the dismissal and there is no reference to victimisation in the complainant's submission. As the complainant only sought to raise the issue of victimisation in relation to her dismissal at the hearing having made no claim in respect thereof prior to then, the respondent has not been afforded an opportunity to respond to the allegation. Notwithstanding that the respondent may in any case have decided not to respond to the allegation, in seeking to accord with natural justice principles, I am not making a finding in relation to a claim of victimisatory dismissal.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 23 of the Act in relation to her conditions of employment.
6.2 In accordance with section 82(1) and (5) of the Employment Equality Act, 1998, I hereby order that:
1. the respondent pay the complainant the sum of €10,000.00 compensation for the effects of the discrimination;
2. the respondent pay the complainant interest at the Courts Act rate on the amounts awarded for compensation in respect of the period beginning on 10 April 2004 and ending on the date of payment;
4. the respondent draft a policy on the prevention of harassment and sexual harassment in the workplace in accordance with the Equality Authority Code of Practice on Sexual Harassment and Harassment at Work (The Code was given legal effect by Statutory Instrument entitled 'Employment Equality Act, 1998 (Code of Practice) (Harassment) Order 2002' (S.I. No. 78 of 2002)), take appropriate measures to communicate the policy to all its employees and display it permanently in a prominent position in the respondent's premises.
_______________________
Mary Rogerson
Equality Officer
3 July 2004