THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009 – 062
PARTIES
A Worker
(represented by Mr Vincent Nolan B.L., instructed by McGarry & Co., Solicitors)
and
A Hotel
(represented by Mr Paul Comiskey O’Keeffe, B.L., instructed by the respondent’s general manager)
File Reference: EE/2006/253
Date of Issue: 29th July 2009
Table of Contents
Claim.............................................................................................................................3
Summary of the Complainant’s Written Submission.......................................3
Summary of the Respondent’s Written Submission........................................5
Conclusions of the Equality Officer......................................................................5
Sexual Harassment...................................................................................................5
Discriminatory Constructive Dismissal..............................................................10
Decision......................................................................................................................15
Claim
The case concerns a claim by a worker that a hotel discriminated against her on the ground of gender contrary to Section(s) 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of not preventing her sexual harassment by an identified male customer, and discriminatorily dismissing her by forcing her resignation due to not responding effectively to her complaints in this matter.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 18 July 2006. On 16 July 2008, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 7 May 2009. A submission was received from the complainant on 4 October 2007. No submission was received from the respondent.
Summary of the Complainant’s Written Submission
The complainant submits that she was subjected to two discrete instances of sexual harassment by a customer of the respondent’s. On the first occasion, which took place in the morning of 13 November 2005, the complainant was approached in the kitchen area of the hotel by a male customer, who appeared to be intoxicated. He approached the applicant, asked her how she was, then positioned himself behind her and wrapped his arms around her. The complainant struggled with the man, and broke free. Approximately half an hour later, the same customer appeared seated in the restaurant whilst the restaurant was empty and the complainant was supposed to wait on customers to serve breakfast. The complainant submits that she was extremely unnerved and requested a colleague to wait on the customer.
Later the same day, the complainant made a complaint to the general manager, Mr. A, and was subsequently summoned to Mr A.s office. When she entered the office, she found the customer and Mr A. waiting for her. The customer denied the earlier incident and offered what the complainant felt was a token apology. He then approached the applicant and put his hand on her shoulder. The complainant submits that in the light of her previous complaint, this conduct in a closed room was sexually offensive, humiliating and extremely intimidating to her.
On 16 November 2005, the complainant gave a formal written complaint of sexual harassment to the secretary of the general manager. In the complaint, she requested that the general manager inform her of the procedures in place at the hotel to deal with such an incident. On 18 November 2005, she had a further meeting with the general manager. According to the complainant, the general manager told her that “the procedures have nothing to do with the hotel”. The complainant interprets this to mean any steps taken by An Garda Síochána in relation to a complaint she made to them about the incident. The complainant submits that the general manager did not propose any action in relation to her written complaint.
On 21 December 2005, while the complainant was serving in the hotel bar, the complainant saw the male customer chatting with the general manager, and became aware that the customer and Mr A. knew each other socially. The complainant advised her immediate manager, Mr. B, of this, who said to her that he would see what he could do. The complainant felt threatened working in the bar and proceeded to work in the restaurant until she left at 3pm the same day, without receiving any assurances from the respondent in the matter. Later the same day, the complainant’s partner called to the respondent premises, talked to Mr B. regarding the complainant’s situation and left a letter for Mr A. regarding her re-appearance in the workplace. The complainant submits that Mr A. phoned her shortly afterwards and expressed contempt and hostility towards her.
From 22 December 2005 to 26 January 2006, the complainant was on certified sick leave for “acute work related stress”. The sick certificates were sent regularly by post to the respondent. The complainant did not receive any further communications from the respondent in relation to the harassment she endured. On 26 January, the complainant resigned from the respondent’s employment in view of what she considered the unacceptable conditions of work imposed on her. The complainant submits that the respondent did not contact her on receipt of her resignation letter, despite the fact that in the letter, she disclosed her reasons for her resignation. The only acknowledgement of the complainant’s letter was the receipt of her P45 form by post.
Summary of the Respondent’s Written Submission
As noted in paragraph 1.2. above, the respondent did not furnish a written submission in this case.
Conclusions of the Equality Officer
The issues for decision in this case are whether the complainant was sexually harassed pursuant to S. 14A(1) of the Acts, and whether her resignation constitutes discriminatory constructive dismissal on the ground of gender pursuant to S. 8(6) of the Acts.
Sexual Harassment
In relation to the complainant’s claim of harassment, I need to consider three different aspects of the evidence:
(a) Whether the complainant has established on the balance of probability that she was sexually harassed in any of the incidents he described in her evidence. This includes an evaluation as to whether the events the complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of sexual harassment.
(b) Whether the respondent is vicariously liable for the harassment pursuant to S. 15 of the Acts.
(c) Whether the respondent took reasonable action to prevent harassment occurring in the workplace. This includes considering the extent to which the respondent was aware of the complainant’s experiences, to enable it to deal with the complainant’s complaint of harassment, and if it was aware, whether it took appropriate action to enable it to rely on the defence.
“Sexual Harassment” is defined in S. 14A(7)(a) of the Acts as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature …which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. S. 14A(7)(b) further states that such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
S.14A(1)(a)(iii) of the Acts specifies that an employer’s liability for harassment and sexual harassment can also extend to clients, customers or other business contacts of the employer, where the circumstances of the harassment are such that the employer ought reasonably have taken steps to prevent it. In the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
In making my decision in this case, I have taken into account all of the evidence, written and oral, submitted to me by the complainant.
The complainant is a Spanish national who came to Ireland in 2002, initially to study English. By the time she entered the respondent’s employment in May 2005, her English was still not very good. While I found the complainant’s English to be generally good during the hearing of the complaint, she still struggled with some of the more complex legal language. I therefore find her evidence about the standard of her English at the material time to be credible. She worked for the respondent as a waitress. She stated that she did not receive an employee handbook, any policy on bullying or harassment, and no training in these matters. The representative of the respondent confirmed that the respondent did not have a policy to prevent harassment or sexual harassment at the material time, and did not train its staff on this matter.
With regard to the actual incident that gave rise to the complaint, the evidence between the parties differs only very slightly, and only in points that are not material to the case. It is the complainant’s evidence that on 13 November 2005, she was working in the complainant’s kitchen preparing breakfast. It was 7am. Present in the kitchen with her were the cook, the night porter, and a waitress colleague. The complainant stated that as she was on her way from the cool room to the work top with a pack of milk, she heard someone speak very loudly and in an agitated way. She saw a man whom she did not recognise who appeared intoxicated and who, as he approached her, gave off a strong smell of alcohol, smoke and body odour. The man addressed the complainant, and in an effort to be polite, the complainant answered him. The man then moved behind the complainant and, in the evidence of the complainant, wrapped his arms around her chest.
The complainant then wriggled to break free, turned around and slapped him in the face with the unscrewed top of the milk bottle still in her hand. She scratched his face with her slap. She shouted very loudly: “Don’t touch me!”
The night porter, who stood close by, said something to the man, who appeared known to him, which the complainant did not understand. The night porter then asked the man to leave the kitchen. According to the complainant, the man did so shouting, although she could not understand what he said. The complainant stated that she was trembling and very frightened, and that likewise, her waitress colleague stood in a corner of the room, shocked and frightened.
Mr X., the alleged harasser, appeared before the Tribunal to give evidence. It was his evidence that he came into the kitchen to get a cup of tea, as he had done “a thousand times before”. He was friendly with Mr Y., the night porter, and stated that he was present in the hotel approximately four times per week, as he lived right next to it. On the night and morning in question, he stated in cross-examination that he had been at a friend’s house from 10pm the night before, then entered the hotel at 3am, to have a few drinks and a conversation with Mr Y. He accepted that he had drink taken when the incident occurred. He stated that he did step behind the complainant and then touched her, but insisted that he placed both of his hands on her hips and that this was meant to be a greeting. Under cross-examination, he maintained that he would greet a male stranger the same way. He stated that he was not aware that he caused offence, but that this became clear to him when the complainant slapped him in the face. He stated that he apologised profusely to the complainant when he realised that his conduct had been unwelcome. He confirmed that the night porter asked him to leave the kitchen.
The night porter, Mr Y., confirmed that he had known Mr X. “for ages”, and that Mr X. was a long time friend of both himself and the hotel’s general manager, Mr. A. He confirmed that Mr X. had been drinking in the hotel in the night in question and also that he asked Mr X. to leave the kitchen after the incident. He confirmed in cross-examination that it was one of his duties to keep guests of the hotel out of the kitchen. When asked whether he was reprimanded for not doing so in the instant case, he replied “No”.
The hotel’s general manager, Mr. A., also confirmed in evidence that he and Mr X. had been personal friends since they were about 13 years old. He confirmed that it would not be unusual for Mr X. to come into the hotel kitchen for “a cup of tea”. He confirmed that during night hours, Mr. Y as the night porter would be responsible for security matters. He accepted in cross-examination that there were no signs on the kitchen doors indicating that persons not belonging to the staff were not permitted to enter, and that the hotel did not have a policy to deal with instances of harassment or sexual harassment.
Mention was further made by both parties regarding CCTV footage that shows the incident in question. There was no dispute between the parties as to what is shown on the tape, which is Mr X. stepping behind the complainant, moving his arms forward, and later the complainant turning around and slapping him. Due to the camera angle, and the fact that Mr X. is significantly bigger than the complainant, it was not possible, according to both parties, to see exactly where Mr X. touched the complainant. I understand that the tape has been handed over to the Gardaí for investigation, but for the purposes of my investigation, I am satisfied with this undisputed description of what the footage contains.
I am satisfied, based on the available evidence, that the way Mr X. approached and then physically touched the complainant constitutes sexual harassment within the meaning of S. 14(7) of the Acts. I do not consider the difference in evidence as to which body part of the complainant’s he touched to be material. Even if Mr X. placed both of his hands on the complainant’s hips while approaching her from behind, as per his own admission, I consider this to be a gesture of an unequivocally sexual nature that cannot possibly be interpreted as a greeting as Mr X. has sought to argue, and I am satisfied that this behaviour was both offensive and intimidating to the complainant. I also wish to state that on the question as to whether Mr X. proffered an apology to the complainant at this point, that I prefer the complainant’s evidence that he left the kitchen shouting.
I am further satisfied that the respondent is vicariously liable for Mr X.’s conduct pursuant to S. 15 of the Acts, since it is undisputed that at the material time Mr X. was a customer of the hotel within the meaning of S. 14A(1)(a)(iii) of the Acts, and, further to S. 14A(1)(a)(iii), I am satisfied that the respondent had not taken any steps to prevent it. Not only did the respondent not have a policy in place to deal with such incidents, but did not even adhere to the widespread practice of mounting signs on the kitchen entrances to indicate that non-staff were not permitted access, which could otherwise be considered as a basic step taken to prevent the harassment of staff in the kitchen area where the incident occurred. Furthermore, the night porter, despite having express responsibility for security matters during the time in question, stood in the immediate vicinity of the complainant yet did nothing to stop Mr X. from approaching her, and only requested that the harasser leave the kitchen after the incident.
Discriminatory Constructive Dismissal
I now turn to how the respondent handled the incident, which forms part of the complainant’s complaint of discriminatory constructive dismissal.
It is the complainant’s case that while she refused to serve Mr X. breakfast, feeling extremely unnerved after the incident in the kitchen, she worked out her shift. She stated that nobody enquired after her well-being during that time. Mr A., the respondent’s general manager, came up to the complainant shortly before lunch and briefly mentioned the incident. At around 12:45pm, Mr B. (her immediate line manager) called her into the receptionist’s office and showed her the CCTV footage.
The complainant further stated that at 1:30, Mr A. approached her again and went with her through the kitchen and to the wine room. He then closed the door and advised that the complainant’s partner had phoned him (after the complainant had spoken to her partner earlier during a work break) and given him more detail as regards the incident. Mr A asked her: “What do you want from me?” The complainant stated that her level of English was not good, that she was not sure what could be done or what was usually done in such a situation, and that her main concern was for her to maintain her employment with the respondent. Therefore the only thing she could think of was to demand an apology from Mr X. However, the complainant insists that she did not say she would be satisfied with an apology, but rather, that she left this matter open.
At 2:15pm, Mr A. approached the complainant again and asked her to follow him to the receptionist’s office. On the way there, he said that Mr X. was in the office and that the complainant would receive an apology. The complainant received no other advance notice of re-encountering her harasser. She found Mr X. in the office, with the CCTV footage of the incident showing on a television monitor. Mr A. entered the office and closed the door. The complainant stated that this made her feel very uncomfortable.
According to the complainant, Mr A. said to Mr X.: “Apologise”, and that Mr X. then proffered an apology and then proceeded to demonstrate his supposed behaviour by touching the complainant on the shoulder. The complainant stated that she said to Mr X not to touch her, and to look at the footage. She also told Mr X not to touch a woman if she was not asking for it. The complainant stated that at this point, she felt very stressed and uncomfortable. Mr A. asked her: “Is that ok?” The complainant said she said yes, because she was so uncomfortable that all she wanted to do was to leave the room. The complainant further stated that Mr X. still smelled of alcohol, and that this encounter with him was not agreed in advance in any meaningful way. According to the complainant, she was never offered another opportunity to address the issue, and that nobody in the respondent organisation displayed any concern for her welfare or the psychological impact the sexual harassment had on her.
The complainant went home at 3pm, when her shift ended, and lodged a complaint with the Gardaí the following day. On 16 November 2005, her Irish partner drafted a letter of complaint to Mr A. based on a detailed discussion of the incident between the couple, which the complainant subsequently signed and had delivered to Mr A. In cross-examination, the complainant insisted that the letter truthfully reflected her experience, and that her partner was only assisting her with recounting same in grammatically correct English. According to the complainant, neither Mr A. nor anybody else in the hotel ever acknowledged receipt of the letter, which was submitted in evidence. On the evening of the same day, she went to a nearby city to become a member of a trade union and get advice on her situation.
On 18 November 2005, Mr A. called the complainant into the empty restaurant and said to her, speaking of himself in the third person: “I hope you understand that the procedures have nothing to do with X Hotel or Mr A.” The complainant understands that this referred to the Garda investigation, since she was aware through colleagues that the Gardaí had been interviewing staff in connection with her sexual harassment.
The complainant left in early December for holidays in Spain. On her return, when she served in the bar, she discovered Mr X in the bar, chatting and laughing with Mr A., and that they appeared to be very good friends. The complainant was distressed and frightened by this discovery, left her post in the bar, and went to seek the help of Mr B., who permitted her to work in the restaurant instead. When the complainant returned home that night, she had another discussion with her partner, and wrote another letter of complaint to Mr B., with a copy to Mr A. The complainant stated that she felt very distressed by now, and called in sick the next day. The complainant remained on sick leave until 26 January 2006, when she delivered her letter of resignation. The complainant did not receive sick pay. She states that she received her P45 and that this was the only acknowledgement of her resignation.
In his evidence, Mr A. stated that after the complainant complained to the Gardaí, the respondent did not have any further obligations towards the complainant except to cooperate with the Garda investigation. He accepted that the respondent had no procedures in place to prevent harassment or sexual harassment, but stated that in 43 years in the hotel business, he had no previous experience of an intoxicated customer harassing or sexually harassing a staff member, which I must say I find somewhat difficult to believe. Mr A. further stated that the excellent rapport he had with all 400 staff made such a policy unnecessary. In his opinion, the filmed encounter between the complainant and Mr X. in the kitchen was “nothing serious” and could not count as sexual harassment. He did not think that the complainant was distressed, and insisted that the brief meeting with the complainant in the wine room, and the subsequent encounter with Mr X. in the receptionist’s office constituted a proper investigation of the complainant’s complaint. He accepted that the complainant had not been given advance notice of either meeting.
However, in cross-examination by counsel for the complainant, Mr A. contradicted himself on part of his evidence. Among other things, he accepted that the complainant was distressed, but stated that he could not address this because of the Garda investigation. He accepted that he did not do anything to comfort the complainant. He also stated again at one point that he did not investigate the incident because he had formed the view that no sexual harassment took place. With regard to the meeting between himself, the complainant and Mr X. in the receptionist’s office, he stated that the complainant and Mr X. shook hands in the receptionist’s office after Mr X.’s apology, and that he took the view this meant the matter was sorted. He also stated that the complainant received sick pay, although no sick pay entitlements are mentioned in the complainant’s contract of employment.
Mr X., when cross-examined about what happened in the receptionist’s office when he proffered his apology, denied touching the complainant on the shoulder, but insisted that he shook hands with the complainant after his apology, something the complainant strenuously denies.
On balance of probabilities, I am satisfied that Mr X. did not touch the complainant on the shoulder, and that they did shake hands, as it is the complainant’s general evidence that she agreed with what was asked of her during her subsequent encounter with Mr X, in order to be able to leave the room. However, I do not consider it particularly material to the case whether Mr X. touched the complainant on the shoulder or not, as even without further physical contact between Mr X. and the complainant, the encounter must have been extremely distressing to the complainant.
I am also satisfied that no meaningful investigation of the complainant’s complaint of sexual harassment took place, and that the respondent, without any investigation, formed the view that no sexual harassment of the complainant had taken place. It further seems highly likely to me that the respondent was influenced in this matter by the several decades of friendship that existed between Mr A., Mr X and Mr Y prior to the occurrence of the complainant’s sexual harassment.
Turning then, to the complainant’s contention that the respondent’s actions in this matter left her no option but to resign, I first note that S. 2(1) of the Acts specifies that
“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be constructed accordingly.
The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the “contract” test and the “reasonableness” test, and held that these tests may be used either in combination or in the alternative. I find that in the case on hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee’s grievance or complaint.
With regard to the respondent’s actions following the sexual harassment that the complainant was subjected to, as outlined in paragraphs4.17 to 4.29 above, I do not accept that they constitute a reasonable response to the complainant’s complaint. On the contrary, I note again that they aggravated the complainant’s feelings of intimidation and distress, and accept that they were detrimental to the complainant’s health to the point where she needed to first take sick leave, and ultimately felt forced to resign from the respondent’s employment.
I therefore find that the complainant’s employment with the respondent came to an end in circumstances amounting to dismissal within the meaning of S. 2(1) of the Act, and that her dismissal occurred on the ground of the sexual harassment she experienced while in the respondent’s employment. Accordingly, I find that the respondent discriminatorily dismissed the complainant contrary to S. 8(6) of the Acts.
Decision
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent discriminated against the complainant in relation to her conditions of employment contrary to S. 8(1) of the Acts by not taking reasonable and practicable steps to prevent her sexual harassment contrary to S. 14A(7) of the Acts;
(ii) The respondent did discriminatorily dismiss the complainant contrary to S. 8(6) of Acts.
In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent
(i) pay the complainant €30,000 in compensation for the discrimination and discriminatory dismissal.
This award is in recognition of the aggravating and stressful experience of the complainant due to the conduct of the respondent; first with regard to her experience of sexual harassment, and then with how the respondent handled the matter subsequently. It is not in the nature of pay and therefore not subject to tax.
(ii) I further order that the respondent adopt a policy to prevent harassment and sexual harassment in all hotels under the respondent’s management, with immediate effect.
_______________________
Stephen Bonnlander
Equality Officer
29 July 2009