The Employment Equality Acts 1998 - 2007
Decision No:
DEC-E2008- 015
A Female Employee
(represented by Aaron Shearer B.L. instructed by Doyle Associates Solicitors)
-v-
A Recruitment Company
(represented by Conor Bowman B.L. instructed by Ahern O’ Shea Solicitors)
1. CLAIM
1.1 The case concerns a claim by a female employee that a recruitment company in Dublin, discriminated against her in terms of section 14(A)(1) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts in relation to her conditions of employment. She also claims that she was victimised within the meaning of section 74(2) of the Acts as she was dismissed following her complaint.
2. BACKGROUND
2.1 The complainant submits that she was discriminated against in that she was subjected to sexual harassment on a night out with work colleagues. 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 accepts that messages were sent from the complainant’s manager’s phone, however, the manager denies that he sent them.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of the Equality Tribunal on 10 November 2005. A submission was received from the complainant on 10 November 2005. A submission was received from the respondent on 20 December 2005. On 16 March 2007, 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 hearing of the claim was held on 28 November 2007. The complainant subsequently addressed the issue of victimisatory dismissal and a submission on the matter was received on 21 December 2007. The respondent provided a replying submission on 14 February 2008 and final submissions were received on 10 March 2008.
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
3.1 The complainant commenced employment with the respondent company on 2 August 2005. On the evening of Monday, 12 September 2005, the complainant together with a number of colleagues from the respondent company went for drinks after work. The group included the complainant’s manager, Mr. C. After a period, a number of people left the group. The persons who remained were the complainant, Mr. C, Mr. B and Mr. S. The group continued together until about 1am, at which point, Mr. C and Mr. B took their leave of the complainant and Mr. S. Mr. C and Mr. B at that point adjourned to another pub.
3.2 Following his departure, Mr. C sent a number of text messages to the complainant’s mobile phone including one of a sexual nature at 2.06am. Later when Mr. S took his leave of the complainant, she was invited to join Mr. B and Mr. C in the pub. The invitation was extended by text message to the complainant from the phone of Mr. C. The complainant duly joined Mr. B and Mr C in the pub. Also there at the time was a friend of Mr. B’s and the complainant began conversing with him.
3.3 Mr. C left the pub shortly after the complainant’s arrival there. Following his departure, a number of offensive text messages of a sexual nature were sent to the complainant’s mobile. The first message was received at 3.31am and the last was received at 4.10am. The complainant did not reply to the text messages. She had done nothing to encourage the messages and she was shocked and upset. She was extremenly concerned about going to work the next day and she showed the text messages to Mr. B and his friend.
3.4 The complainant did not sleep that night and was extremely upset. The next day, she decided not to go to work. She received a phone call from Ms. B, an employee of the respondent. She explained to the complainant that Mr. C had explained to her what had happened. She told her that Mr. C had gone to a party after he left the pub and had passed out. She says that the text messages had been sent by friends of his in jest whilst he was passed out.
3.5 Later that day, Mr. B sent a number of text messages to the complainant’s mobile telling her that the text messages sent to her the previous night had in fact been sent by a friend of Mr. C’s. Mr. B recommended that she should return to work and put the matter behind her. Mr B also suggested that he had sent a few text messages much earlier in the evening from Mr. C’s phone. Later in the day, the complainant received a text message from Ms. B advising the complainant that Mr. C had sent her an e-mail explaining exactly what had happened.
3.6 The complainant considered her options. The complainant was at a loss as to what to do as a complaint under the Grievance procedure would be to her immediate supervisor who was Mr. C. She considered that from the comments of Mr. B, it appeared that he was in some way attempting to corroborate Mr. C’s version of events. She felt that no realistic means of airing her grievance existed at work. The best solution offered to the complainant was to take a few days off and put the matter behind her.
3.7 The complainant received a further phone call from Ms. B on 15 September. In the course of the conversation, the complainant was advised that as far as Mr. C was concerned, he had done all that he could and that he needed to know whether the complainant intended to return to work. She submits that this was further evidence of the respondent’s failure and refusal to even contemplate investigating any complaint that the complainant might choose to make.
3.8 The complainant decided that for the time being she was unable to return to work. She was still deeply upset. She felt that her professional relationship with Mr. C had been substantially though not critically undermined and she felt deeply upset by the manner in which the matter had been dealt with by the respondent.
3.9 She contacted a solicitor and an initial letter of complaint dated 16 September 2005 was written by the complainant’s solicitor to the respondent company advising that it was the complainant’s intention to refer the matter to the Equality Tribunal. A reply was received on 21 September 2005. The letter suggests that a reference to the Equality Tribunal was inappropriate until the full internal complaints procedures and investigations had been exhausted.
3.10 In the letter dated 21 September 2005 from the respondent’s solicitors, it is suggested on behalf of the respondent that appropriate investigations into the complainant’s complaints would be instigated. It is not stipulated in the letter what the nature of the investigations might be. The complainant submits that what is purported in the complainant’s contract of employment to be a grievance policy is wholly inadequate and inappropriate.
3.11 The complainant through her solicitor wrote to the respondent’s solicitor by letter dated 6 October 2005. The complainant made certain proposals to the respondent in respect of the proper investigation of her complaint and in the hope and expectation that her proposals would be accepted by the respondent, indicated that she felt it possible that she might be able to return to work. The respondent through its solicitor wrote to the complainant by letter dated 12 October 2005 advising the complainant that her proposals in relation to an investigation had been rejected and that her employment had been terminated. Whilst that letter suggests that the complainant’s P45 had been sent to her, the complainant had not received it and only became aware of her dismissal after the letter dated 12 October 2005 was received by her solicitor.
3.12 The complainant also claims that her dismissal by the respondent was effected because she had given the company notice by letter dated 23 September 2005 of her intention to seek redress pursuant to the Equality legislation.
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
4.1 Mr. C admits that he left the pub shortly after the complainant arrived there. The respondent denies that Mr. C sent the complainant a number of text messages after his departure from the first pub.
4.2 Mr. C admits that messages were sent from his mobile phone to the complainant during the course of the evening, however he denies that he sent the messages. Mr. C alleges that a number of messages were sent by a work colleague of his during the earlier part of the evening. In respect of the later messages, he says that he went to a party at a friend’s house and at the party, he explained to a number of people that his phone had been used by a work colleague earlier in the evening to send text messages to the complainant and shortly afterwards when he fell asleep at the said party, a friend took his phone from his possession and sent further messages to the complainant.
4.3 Mr. C submits that on 13 September 2005, he sent the complainant an e-mail which detailed the circumstances surrounding the sending of the text messages. Following the sending of the e-mail, a response was received from a firm of solicitors acting on behalf of the complainant. The respondent responded on 21 September 2005 stating that no formal complaint had been made to the respondent and that it was inappropriate to refer the matter to the Equality Tribunal until an internal complaint had been made and the procedure within the company concluded. That letter also sought a return to work date from the complainant and suggested that she should return the following Monday. A response was received to that letter on 6 October 2005 wherein certain demands were made on the complainant’s behalf. As a consequence of the failure of the complainant to indicate that she would return to work on the agreed date, the respondent terminated her employment and posted her P45 to her.
4.4 The respondent submits that the complainant is someone who has engaged in explicit sexual banter with other employees in the respondent company and has had a casual sexual relationship with at least one employee during her time in the respondent’s company. As such the complainant’s reaction to the texts is inconsistent with her character and demeanour.
4.5 The respondent submits that the complainant has failed to mitigate her loss in respect of the within complaint. The respondent contends that the complainant refused to return to work and refused to enable the internal complaints procedure or an investigation to be carried out within the respondent company. The complainant was specifically requested on 21 September to return to work to enable the complaints procedure or an investigation to be carried out and this did not occur.
4.6 The respondent denies that the complainant was dismissed following receipt by the respondent of a letter dated 23 September 2005 which stated that she would seek redress under the Employment Equality legislation. The respondent submits that it has always maintained that the complainant was dismissed following her refusal to return to work and it was the respondent’s entitlement to dismiss the complainant on these grounds.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The claimant in this case alleges that the respondent discriminated against her in relation to her conditions of employment when she was sexually harassed by her manager on a night out from work on 12/13 September 2005. She claims that she was sent a number of explicit and suggestive text messages by her manager. Her manager accepts that messages were sent from his mobile phone but denies that he sent them. The complainant also claims that she was dismissed following her complaint to the respondent. I must firstly consider (i) whether the complainant has established on the balance of probability 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. I will consider whether the respondent dealt adequately with the complainant’s complaint of sexual harassment and I will also consider the complainant’s claim of victimisatory dismissal. 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 respondent. Whilst the complainant was subjected to rigorous cross examination during the hearing, Mr. C, the complainant’s manager chose not to give evidence in relation to the events and I have not therefore, had the opportunity to hear any oral evidence from him and he was not cross examined.
5.2 The complainant alleges that the respondent discriminated against her in relation to her conditions of employment when she was sexually harassed by her manager on a night out from work on 12/13 September 2005. Section 14A(1) of the Employment Equality Acts 1998 and 2004 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.
5.3 The respondent denies in its written submission that the complainant was sexually harassed by her manager, Mr. C and he denies that he personally sent text messages to the complainant. I note that particular statement is contradictory to the contents of an e-mail sent by Mr. C to the complainant on 13 September 2005 stating “Firstly, purely for fun [Mr. B] and myself sent you a few texts for fun as I was made aware that [J] and yourself have had a snog or two last Friday, harmless fun and quite frankly none of my business.” Although the respondent denies that Mr. C sent the texts to the complainant, it accepts that messages were sent by a work colleague from Mr. C’s phone during the earlier part of the evening. Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature at the workplace or in the course of an employee’s employment being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment constitutes sexual harassment of the complainant – 14A(7)(a). Section 14A(7)(b) provides that such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. I have considered the contents of the e-mail from the complainant’s manager dated 13 September 2005 and I have heard the complainant’s direct evidence in the matter and on the balance of probability, I find that the complainant was sexually harassed by the text messages sent to her from Mr. C’s phone.
5.4 In the Labour Court Determination in the case of A Company -v- A Worker [1], 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. In that case, whilst the Labour Court accepted that there was some element of the complainant being a willing participant in sexual banter, it found that the treatment the claimant received and the atmosphere that was directed towards her to be totally unacceptable. The Labour Court went on to find in favour of the claimant that she was sexually harassed and discriminated against on the gender ground. In the light of that case, the question whether thecomplainant in the instant case engaged in sexual banter is irrelevant in deciding whether she was sexually harassed. However, I consider that the Labour Court case should not be interpreted as a finding that sexual banter is permissible in any workplace and I consider that in certain circumstances, it could in itself constitute sexual harassment within the meaning of section 14A of the Employment Equality Acts 1998 and 2007.
Vicarious liability
5.5 Section 15(1) of the Employment Equality Acts 1998 and 2004 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 with the employer’s knowledge or approval.’
I refer to section 56(4) of the Employment Equality Acts 1998 and 2007 which provides that an approved code of practice shall be admissible in evidence and if any provision of the code appears to be relevant to any question arising in any criminal or other proceedings including proceedings before the Director, it shall be taken into account in determining that question. The Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002 S.I. No. 78 of 2002 refers to non workplace sexual harassment and harassment. It states that the scope of the sexual harassment and harassment provisions extend beyond the workplace for example to conferences and training that occur outside the workplace. It further states that it may also extend to work-related social events. In this regard, I refer to a decision by one of my colleagues that harassment which occurred at a Christmas party was discrimination by the employer in that case.[2] In the present case, the manager, the complainant and other employees from the respondent company were on a social night out after work. Indeed the complainant would not have been present had she not been employed in the respondent body. I therefore find that the actions of Mr. C and Mr. B, the complainant’s manager and work colleague were carried out in the course of their employment and notwithstanding that the actions may have been carried out without the employer’s knowledge or approval, the respondent is vicariously liable for the actions of Mr. C and Mr. B.
Section 15(3) Defence
5.6 Sections 15(3) of the Employment Equality Acts 1998 and 2004 provides that:
‘In proceedings bought 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 respondent submitted at the hearing that at the time of the harassment whilst there was a reference to sexual harassment as part of employees’ contracts, the respondent did not have a policy on the prevention of sexual harassment in place. I note that there is a reference in the complainant’s contract to sexual harassment and racial discrimination in the context of constituting acts of gross misconduct warranting summary dismissal. In the instant 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
5.7 The complainant through her legal representatives by letter dated 16 September 2005 wrote to the respondent stating “We are informed by our client that she has been subjected to harassment of a sexual nature by you in the form of e-mails to her mobile telephone.” That letter goes on to refer to the complainant’s entitlement to initiate a claim before the Equality Tribunal in respect of the sexual harassment perpetrated on her. In its response dated 21 September 2005, the respondent did not refer the complainant to any policy detailing how her complaint might be progressed and it stated “Firstly, we must point out that no formal complaint has been made to our clients. We would submit that it is not appropriate for you to refer this matter to the equality tribunal until the full internal complaints procedures and investigations have been exhausted.” It appeared that the respondent was not treating the letter of 16 September 2005 as a letter of formal complaint, however, it did not advise the complainant of the manner in which a formal complaint could be made from its perspective. The letter proceeded to call upon the complainant to return to work on 26 September stating that would enable the respondent to make the appropriate investigations.
5.8 It appears to me that the respondent was unclear on how to handle the complaint of sexual harassment. 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 may also have had implications for the complainant in the situation that she found herself in that she could have been unsure where to direct her 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 complainant stated that whilst her contract referred to a grievance procedure, it provided that employees shall have the right to a hearing by their immediate superiors which in the complainant’s case was Mr. C and she was therefore at a loss as to what to do.
5.9 As referred to at paragraph 5.7 above, in the letter of 21 September 2005, the respondent called upon the complainant to return to work on the following week to enable the respondent to make the appropriate investigations. Again, there is no clarification of how any investigation would proceed and it appears that any investigation was contingent on the complainant returning to work. The complainant responded through her advisors by letter dated 23 September 2005 stating that it took issue with the seriousness with which the respondent was dealing with the matter, in particular, in the light of the respondent’s statement that no formal complaint had been made. The complainant proceeded to refer to the letter of 16 September 2005 as a formal complaint. Her letter then proceeded to refer to the respondent’s allegations in relation to the complainant having a sexual relationship with other employees and stated that in that context, it was unrealistic that the complainant should be expected to return to work. The complainant’s representative again wrote to the respondent by letter dated 6 October 2005 stating that it was their opinion that any fair and proper investigation of the complainant’s grievance and complaints against Mr. C and the company was unlikely if the investigation was to be conducted by the company itself. She further stated that she believed that a proper investigation if one were conducted might make it possible for her to resume her job. She requested that her allegations of sexual harassment “now be fully and properly investigated.” and she proceeded to request that the investigation be conducted by an independent third party. The respondent responded by letter dated 12 October 2005 stating that it did not consent to the proposals set out in the complainant’s earlier letter. The letter states that it is noted that the complainant has not returned to work to enable the internal complaints procedure to be carried out and accordingly, the complainant’s employment is terminated. It appears that any investigation of the complainant’s complaint, although the precise nature of such an investigation was not specified, was entirely contingent on the complainant’s return to work. In its first written submission, the respondent states that the complainant’s employment was terminated as a consequence of her failure to indicate that she would return to work on the “agreed date”. The correspondence submitted does not indicate that any date of return to work was agreed.
Victimisation
5.10 Section 74(2) of the Employment Equality Acts 1998 and 2004 provides, inter alia, that victimisation occurs where the dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer.
(b) any proceedings by a complainant;
(f) an employee having opposed by lawful means an act which is unlawful under this Act ……… or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
Sexual harassment is expressly prohibited by section 14A of the Employment Equality Acts 1998 and 2004. The complainant made a complaint of sexual harassment to the respondent by letter dated 16 September 2005. That letter also referred to the complainant’s entitlement to initiate a claim before the Equality Tribunal.
5.11 It is clear that at that stage, the respondent did not treat the complainant as having made a complaint as it submitted in its letter dated 21 September 2005 that “no formal complaint has been made to our clients.” and it proceeded to make an investigation conditional on the complainant’s return to work. The complainant by letter dated 23 September 2005 disputed that no formal complaint had been made by her and stated that as it appeared “that the company never had any intention of investigating the matter and as such the Equality Agency [sic] is the appropriate forum to ensure our client gets a fair hearing in respect of the complaints set out in our letter.” It appears that the complainant did not receive a response and it subsequently wrote to the respondent again on 6 October 2005 requesting that the complainant’s complaint of sexual harassment be fully and properly investigated. The respondent’s response on 12 October 2005 indicated that the complainant had in fact been dismissed on 27 September 2005.
5.12 As stated at paragraph 5.7 above, in its first written submission, the respondent states that the complainant’s employment was terminated as a consequence of her failure to indicate that she would return to work on the agreed date. However, it is the case that on the date of her dismissal, the complainant had at that stage been absent for two weeks (since 13 September 2005) and indeed in the e-mail from Mr. C on that date, she was invited back to work that following Friday or Monday. The complainant also had a call from Ms. B on 15 September enquiring whether she would be returning to work on the Friday. It is the case therefore that there were calls for her to return to work from very early in the absence. However, it was only after the complainant’s correspondence of 23 September 2005 wherein she insisted that she had made a formal complaint on 16 September and also indicated that the Tribunal appeared to be the appropriate forum to ensure that she got a fair hearing in respect of the complaints set out in her letter that she was dismissed. Whilst the respondent in its submission received on 14 February 2008 submits that the date of the complainant’s dismissal is entirely coincidental to the letter dated 23 September 2005, on the balance of probability, I find that the complainant has established a prima facie case of victimisatory dismissal which the respondent has failed to rebut.
5.13 In considering redress for victimisation, I have considered that victimisatory dismissal is totally unacceptable as it has the potential to undermine the effectiveness of the equality legislation. In relation to the issue of compensation, I have had regard to the Judgment of the European Court of Justice in Von Colson & anor v. Land Nordrhein-Westfalen[3] wherein it was stated that for the purpose of imposing a sanction for a breach of the prohibition of discrimination:
........ in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation……..
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant in terms of section 14A of the Employment Equality Acts 1998 and 2004 and in contravention of section 8 of the Acts in relation to her conditions of employment. I also find that the complainant was victimised within the meaning of section 74(2) of the Acts when she was dismissed.
6.2 In accordance with section 82(1) and (5) of the Employment Equality Acts 1998 – 2007, 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 the sum of €15,000.00 compensation for the effects of the victimisation;
3. the respondent pay the complainant interest at the Courts Act rate on the amount awarded for compensation in relation to discrimination on the gender ground in respect of the period beginning on 10 November 2005 (being the date of the reference of the claim) 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
11 April 2008