DEC-E2008-048 - Full Case Report

Decision in accordance with the

Employment Equality Acts 1998-2008

DEC – E2008 – 048

A Construction Worker

(Represented by SIPTU)

V

A Construction Company

(Represented by Construction Industry Federation)

1         Introduction

This dispute involves a claim by the complainant of discriminatory treatment on the sexual orientation ground, sexual harassment and victimization, Sections 6, 8, 14A and 74, to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004. 

2         Background

The complainant worked with the respondent from 10^th June 1996 until April 2006 as a general operative and banksman on various building sites.  He alleges that he was sexually harassed, most recently in May 2005.  He alleges that the respondent treated him in a discriminatory manner and victimised him when it changed his conditions of employment, placed him on sick leave and ultimately made him redundant.  The respondent accepts that the recent incidents took place but denies that the sick leave or redundancy represent either less favourable treatment based on the complainant’s sexual orientation or that he was treated adversely because of his complaints.

The complainant referred a complaint under the Employment Equality Acts 1998-2004 to the Equality Tribunal on 31^st July 2006.  In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, 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.  Following the receipt of submissions from both parties a hearing of the matter took place on 10^th June 2008.  Subsequent correspondence relating to earnings, and issues arising at the hearing on the disability ground were received and copied to both sides ending on 18^th August 2008.

3         The Complainant’s case

The complainant worked as a general operator and banksman in construction.  He asserts that circa 2000/2001 he made complaints of sexual harassment to his foreman who took written statements from the complainant and the alleged harasser.  The only result of the complaint was that the complainant was moved to another site.  The complainant is satisfied that as a result of that early incident his employers were aware of his sexual orientation 

A number of incidents occurred in early May 2005 involving workers employed by another contractor that led the complainant on 5^th May 2005 to make an oral complaint of sexual harassment to their foreman.  He did not make his allegations directly to his employer because he did not want to be moved again.  The men who were the subject of the complaint approached the complainant later that day and apologised.  On the following Monday, as he was dreading the return to work after the weekend, he again went to the other contractor and this time spoke to one of the owners who was unaware of the complaint.  After these complaints incidents which the complainant perceived as sexual harassment continued to take place. 

On 21^st May 2005 the complainant’s own foreman sent for him and, as he had been told about the complaints by the other contractor, asked the complainant what was going on.  The complainant gave a full report of the situation.  On Tuesday 24^th a director of the respondent company arrived on site and spoke to the complainant with the foreman.  He was not told that it was part of an investigation nor that he could have someone accompany him.  The complainant perceived this meeting as an interrogation and even allowed the respondent to photocopy his own personal notes when requested.  He stated at the Hearing that he would not have done this had he had advice.  During this meeting the complainant also mentioned his earlier suicidal thoughts which arose as a result of the incidents, and the respondent stated that perhaps it would be better if the complainant did not work as banksman for a while.  He was not given a report of the result of the investigation.  The following day his foreman was told that the complainant should not work at heights, i.e. as banksman.  The complainant was asked to consent to the respondent’s doctor speaking to his doctor, which he granted.  He was requested to attend the respondent’s doctor and subsequently arrangements were made by the respondent for the complainant to see a psychologist.  At all times the complainant thought that the assessment process related to when he would return to his role as banksman.  During the period between May and November 2005 the complainant was sent up as banksman many times by his foreman despite the instructions and this took place once or twice a week.  The complainant believes that the Director was aware of this as they passed each other on the stairs when the complainant was coming down from the roof.  Incidents perceived as sexual harassment continued to occur occasionally but these were not reported because of the earlier responses to his complaints. 

On 8^th November 2005 the complainant was called to the site office without warning.  He was told to leave the site immediately and placed on sick leave.  The complainant found this hugely distressing as it would have been obvious to all on site that he had been told to leave.  He had to leave with his lunch box in hand in front of all.  This took place at 4:30 and the complainant felt it could have waited until the normal finishing time of 5pm.  The complainant continued on compulsory sick leave until he was made redundant in May 2006.  He was not allowed to work out his notice.  The complainant’s doctor sent a letter, dated 20^th February 2006, to the respondent frankly disagreeing with their psychologist’s assessment stating “It is my opinion that he is healthy both mentally and physically, and was at all times quite fit to continue his employment.”  He also stated that he had agreed to send the complainant to a psychologist in order to comply with the employer’s requirement to do so.  The complainant’s psychologist’s recommendation was that the complainant should return to work and the doctor stated “I entirely agree with her view.”  In a letter dated 9^th March 2006 the complainant’s psychologist set out her assessment of him stating “Having worked with [the complainant] over a number of sessions and taking a detailed history of events I am satisfied that he is not now nor has be ever been in any way suicidal. ……. He is clearly fit for work and expresses a keen interest in returning as soon as possible. …… It is recommended that [the complainant] be allowed to resume his employment.  He presents no threat to his work, himself or indeed any other person.”  The respondent again referred him to its psychologist who agreed that the complainant could return to work.  The complainant was not taken back to work and was ultimately made redundant.

4         The Respondent’s Case

The respondent director believes he has an open relationship with employees and that at all times the company tried to support the complainant.  The complainant was employed as general operative/banksman involving working at heights.  On 23^rd May 2005 the respondent was made aware of serious allegations of harassment made by the complainant against employees of another contractor working on the site.  The foreman and the director discussed the matter and the director sought advice from the Construction Industry Federation, (CIF).  There was an immediate investigation during which the complainant and alleged harassers were interviewed.  During his interview the complainant expressed earlier suicidal thoughts as a result of the alleged incidents.  The alleged harassers denied even knowing about the complainant’s sexual orientation, apologised for any offence caused and promised to refrain from using any language that might cause offence.  They also indicated concern at the complainant’s statements relating to suicide.  The Director was genuinely alarmed at this and decided to restrict the complainant to ground level work. 

Having sought advice on how best to proceed, toolbox talks were conducted onsite during the days following the interviews including reference to the company’s policy document on bullying and harassment.  The complainant continued to work onsite without any further reports of incidents.  The director discussed all developments with the complainant including the result of the investigation and was satisfied that there was no repetition of the incidents.  Following discussions with a clinical and occupational psychologist the company first had the complainant’s physical ability to perform his duties assessed by their GP and then he was sent for counseling with the psychologist.  The company complied with her recommendation that the complainant should not continue work.  On 8^th November the complainant was informed of the reasons why they could not allow him to continue working and why they were asking him to attend counseling while he was off.  The company was concerned, not only for the complainant’s welfare, but also for the welfare of other employees on site.  Having received the letters from the complainant’s doctor and psychologist the company decided to refer him once more to their psychologist who ultimately recommended that he return to work.  However, at that time the company was experiencing reduced contract work in the region and 36 employees, including the complainant on 11^th April 2006, were made redundant and these positions have not been refilled.

5         Conclusions of the Equality Officer

5.1       Decision to be made

The issues before me for decision are whether or not:

• the complainant was sexually harassed in terms of Section 14A, subsections (1) and (7) of the Employment Equality Act 1998-2004,
• The respondent can avail of the potential defence contained in Section 14A (2),
• He received discriminatory treatment based on his sexual orientation in terms of Sections 6 and 8 of the Act, and
• He was victimised in terms of Section 74(2) of the Act. 

In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by witnesses at the Hearing.

5.2       Burden of Proof

The apportionment of the burden of proof in cases of discrimination is governed by Section 85A of the Employment Equality Acts, 1998 - 2004.  It requires the complainant to establish, in the first instance, facts from which it may be presumed that he suffered unlawful discrimination on the basis of her gender. It is only where such a prima facie case of discrimination has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

5.3       Sexual Harassment

5.3.1        Prima Facie Case

In the first place I am satisfied, based on the evidence before me, that the incidents took place.  This is confirmed by the respondent’s report of the meeting with the complainant dated 8^th November 2006 where they state that the company had pointed out to the alleged harassers “that this behaviour was unacceptable and there should be no repeat”.

In the second place I am satisfied that the incidents described to me in submissions and oral evidence constitute sexual harassment in terms of Section 14A (7).  The incidents described were of a very serious and offensive nature.

Section 14A (1) provides that where an employee is sexually harassed at his place of employment by another person employed at that place the sexual harassment shall constitute discrimination by the person’s employer in terms of the complainant’s conditions of employment in accordance with Section 14A (1). 

Taking these facts into account I find that the complainant has established a prima facie case of discrimination and the burden of proof shifts to the respondent to rebut it.

5.3.2        Rebuttal

When the allegations finally came to the attention of the respondent they immediately sought advice from the Construction Industry Federation on how to proceed.  They adapted a generic policy document on bullying and harassment to suit their own organization and implemented toolbox talks on site relating to the issues arising.  However, there was no policy in place at the time of the incident.  Given the earlier allegations in 2000/2001 the continued lack of a living policy in relation to harassment is difficult to understand.  The complainant stated that he had no confidence in reporting incidents to his employer after these earlier incidents when he was moved and this is entirely understandable.  The respondent did not deny that the earlier allegations were made.

Section 14A (2) states

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

(a)   in a case where subsection (1)( a ) applies (whether or not subsection (1)( b ) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)( b ) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

In DEC-E2007-014 the Equality Officer addressed a similar situation.

5.6 At the time of the incident the respondent had no policy, written or verbal, in operation. I am also satisfied that in the course of new employees' familiarisation discussions with the Restaurant Supervisor no reference to how one might report such issues was mentioned by Ms. G. The harasser in this instance is the General Manager of the hotel, the most senior employee. The complainant stated that after the incident she did not know what to do or who to go to. This is entirely understandable in the circumstances. The respondent's absolute failure to have any procedures in place to handle complaints of harassment/ sexual harassment means that it cannot rely on the statutory defence available.

In this case, I find that the respondent’s absolute failure to have procedures in place to handle such complaints of sexual harassment and to protect employees from such harassment means that it cannot rely on the statutory defence.

In addition, the fact that the complainant was moved from his site when he previously made allegations appears to justify his contention that he had no faith in reporting the matter to his employer this time and further shows that they had absolutely failed to address the issue appropriately, both in relation to its reporting and to the protection of potential victims, prior to the complaint in 2005.

I find that the respondent has failed to rebut the prima facie case of discrimination in relation to the complainant’s conditions of employment in accordance with S14A2.

5.4       Victimisation

5.4.1        The Claim

As a result of making his allegations of sexual harassment the complainant was subject to changes in his conditions of employment, some immediate and some delayed.  The day after he met with his foreman and the company director he was instructed not to work at heights as a banksman.  In addition, on 8^th November he was asked to leave the site immediately and placed on what the respondent expected to be long term sick leave.  Finally, in April/May 2006 he was made redundant [1].  The complainant’s representative argued that the treatment the complainant received in relation to his assessment and sick leave constitutes victimisation since he would never have gotten onto the ‘merry-go-round’ of doctors and assessments if he had not made his allegations of sexual harassment in the first place.  Also in the first place, the complainant was temporarily suicidal because of the sexual harassment.  This is to suggest that the entire process was tainted by the discrimination in the first place.

5.4.2        Working at Ground Level

During his interview on 24^th May 2005 relating to his allegations of sexual harassment with his own employer the complainant mentioned earlier suicidal thoughts.  While it may be the case that these were exaggerated in order to secure the appropriate attention and action from the respondent, as suggested by some medical reports, it remains the case that they were mentioned and I accept that the respondent could not ignore them given the complainant’s role as banksman.  Its immediate response to ensure the safety of the complainant and other workers on the site was to restrict the complainant to working at ground level.  I am satisfied that this does not constitute victimisation in terms of the Act and that it was, in fact, a reasonable response to the information presented to it.  I also find as a fact that this move was apparently sufficient to allay the respondent’s fears in relation to safety, both that of the complainant and that of others.

5.4.3        Information provided to the Complainant

The evidence presented indicates that at no stage was the complainant aware that the process could result in his removal from the site.  At all times during the intervening period it was his belief that the assessment was in relation to his being permitted to work as banksman again and he stated in evidence that he asked about this on a number of occasions.  The complainant also stated in evidence that he was not told the results of the investigation, and therefore the outcome of his complaints, until 8^th November 2005.  While the respondent stated that it informed the complainant prior to this I find the complainant’s version more compelling based on statements in the respondent’s memo of the meeting on 8^th November 2005.

5.4.4        Information to the Psychologist

On 8^th November 2005 the complainant was called to a meeting where he was given reasons why the respondent now needed to remove him from the site entirely.  He was given a letter in support of this which included the statement: “Due to the seriousness of the situation we wish to advise that we cannot allow you to attend work until you have resolved these issues”.  The respondent has argued that it did this on the basis of the advice received from its psychologist who met with the complainant once on 27^th September 2005 before issuing her report.  Although the psychologist stated that the complainant was stable and was not reporting any suicidal thoughts at that time he should not actively continue in his post because they might return.  It was clear from the evidence presented at the Hearing that the consultation between the respondent and its psychologist about the complainant was substantial.  This took place by phone and no record is available.  It is also clear that it consulted with her immediately the issue came to its attention in May 2005.  Remaining unclear, however, is what job description was given to her by the respondent in relation to the complainant.  In her report the psychologist treats his post, including the various roles and risk factors, as a homogenous whole taking no account of the possibility of separating one part from another.  There is no indication that the psychologist was aware of the various roles within the post or the difference, if any, between these roles in terms of safety.  Therefore the lack of clarity around the job description given to the psychologist renders her decision that the complainant should not continue in his post inexact.  This in turn led to the removal of the complainant without any consideration being given to his continuing to work at ground level. 

5.4.5        Delays Accruing

Prior to meeting the complainant the psychologist requested an assessment of the complainant’s physical ability to undertake his duties.  This took place on 8^th July 2005 with the company’s GP and the report, dated 11^th August 2005, was submitted to the respondent indicating that the complainant appeared to be clinically free from depression and was fit to work as banksman.  As stated above, the complainant then saw the psychologist on 27^th September 2005 whose report the respondent received in the first week of November.  In total the process took from 21^st April when the complainant first spoke with his employer about his allegations until 8^th November when they put him on sick leave.  During that time the complainant continued to work on the site.  It is incongruous to assert that the matter was extremely serious and urgent on the one hand while allowing such delays to accrue on the other.  I do not accept that the delay in getting to see a GP and the subsequent delay in getting to see a psychologist reflects any urgency on the part of the respondent in relation to what they described as a very serious matter.  Certainly, there appears to have been no urgency placed on either the GP or the psychologist who each took over a month to present their reports. [2]  I am satisfied that the overall delay was unreasonable given that the complainant was prevented, albeit in a haphazard manner, from performing his normal duties until the visits took place and the matter was resolved one way or another.  I am satisfied that this constitutes adverse treatment in terms of Section 74. 

A further delay arose between the date of the respondent psychologist’s report, 3^rd April 2006, certifying the complainant fit for work and the date of his redundancy.  Three dates for his redundancy have been submitted, 11^th April 2006 in the respondent’s submission, 4^th May 2006 in the reference, and 11^th May 2006 submitted by the complainant.  Although certified fit the complainant was not taken back to work.

5.4.6        Other Information Available and Right of Reply

When the respondent received the psychologist’s report it took until 8^th November 2007 to take action.  No explanation was presented as to why they took a number of days to act on it when the complainant was required to leave the site immediately at 4:30pm on that day.  However, I note that on receipt of the report the respondent decided to act on the letter of it without taking account of the other information available to it.  While I am not suggesting that an employer should second guess expert opinion, it is incumbent on an employer to ensure that any such opinion received is considered in the light of all information, requesting clarification if necessary.  No consideration was given to the respondent’s own assessment of safety by assigning the complainant to work at ground level.  Nor was there any consideration given to his satisfactory performance at ground level for the intervening period.  In addition, the complainant was not given any right of reply at this meeting but was presented with a fait accompli. 

In the interest of fairness certain procedures should have been followed such as those set in the Labour Court Recommendation A Health and Fitness Club and a Worker [3].

“Such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

While the case above relates directly to disability it indicates what should be considered best practice in similar circumstances.

5.4.7        Summary

Having considered

• The failure to inform the complainant of the results of his complaints,
• The failure to inform the complainant of the possible consequences of the process set in train,
• The time delay in getting an assessment,
• The time delay between the final assessment and his redundancy,
• The lack of clarity surrounding the information given to the psychologist,
• The failure to consider other information including
• • the fact that they had previously considered it safe once the complainant was operating at ground level and
  • that he had performed satisfactorily in the interim,
• The failure to allow the complainant to respond to the respondent’s removal of him from the site and the presentation to the complainant of an absolute requirement,

I am satisfied that these constitute adverse treatment within the meaning of Section 74 of the Acts and that in the absence of any reasonable justification an inference of victimisation arises.  The complainant has therefore established a prima facie case of victimisation and since no justification of this was presented the respondent has failed to rebut it.

5.4.8        Redundancy

The complainant was also made redundant.  Neither the complainant nor his representative have indicated that this was anything other than a real redundancy situation and although the respondent presented a list of those made redundant around the same period as the complainant, no issue has been made in relation to those general operatives junior to the complainant who were made redundant after him.  Therefore I do not intend to address that matter further.

5.5       Discriminatory Treatment

The complainant did not present any evidence in respect of less favourable treatment that was based on his sexual orientation.  Therefore I find that he has failed to establish a prima facie case of discrimination on the sexual orientation ground.

5.6       Respondent’s Actions

I am satisfied that the respondent was well meaning in its actions and attempted to balance the needs of the complainant with those of other employees and that there was no intention to discriminate.  However, I am mindful that such intentions are insufficient of themselves as a defence.  In Portroe Stevedores and Nevins, Murphy, Flood [4] the Labour Court stated:

Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).

6         Decision DEC-E2008-049

Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.  I find that the complainant was sexually harassed by the respondent amounting to discrimination in relation to his conditions of employment in terms of Section 14A of the Act.  I also find that the complainant was victimised by the respondent in terms of Section 74 of the Act.

I hereby make the following order in accordance with my powers under Section 82 of the Employment Equality Acts, 1998-2008:

·        That the respondent pay the complainant the sum of €14,700 by way of compensation for lost earnings as a result of the discrimination.  This amount is based on an average income from the last 10 weeks worked minus welfare payments and reflects the complainant’s actual loss of earnings.

·        That the respondent pay the complainant the sum of €10,000 by way of compensation for the distress and effects of the sexual harassment and the sum of €25,000 by way of compensation for the distress and effects of the victimisation.  This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.

·        That the respondent ensures its current policies relating to harassment and sexual harassment are in accordance with the Code of Practice on Sexual Harassment and Harassment issued by the Equality Authority.

·        That the respondent ensures that all existing and new staff are fully acquainted with the policy and that it is raised with staff at regular intervals.

·        The respondent appoint a specified contact person as a first point of contact for employees making initial enquiries or complaints, in line with best practice included in the HSA publication entitled Code of practice for Employers and Employees on the Prevention and Resolution of Bullying at Work

Bernadette Treanor

Equality Officer

11^th September 2008