FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83; EMPLOYMENT EQUALITY ACTS; 1998 TO 2008 PARTIES : A HOTEL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2007
BACKGROUND:
2. The worker appealed her case to the Labour Court on the 25th February, 2009, in accordance with Section 83(1) of the Employment Equality Act, 1998 to 2007. A Labour Court hearing took place on the 19th June, 2009, in Donegal. The following is the Court's determination:
DETERMINATION:
Background
This is an appeal by Ms. D.R , (referred to herein as the Complainant) against her former employer,( referred to herein as the Respondent) in her claim of discrimination contrary to Section 6(2)(a) and victimisation in terms of Section 74(2) of the Employment Equality Act 1998 (the Act). The Complainant also made a claim for equal pay with named male comparators on 27th February 2008. These claims were investigated together by the Equality Tribunal. The claim alleging discrimination was referred to the Equality Tribunal on 25th June, 2004. The Equality Tribunal investigation concluded on 22nd January, 2009, and the Equality Officer issued his decision on 27th January, 2009, in which he held against the Complainant on all claims. The Complainant appealed to this Court.
The Respondent is a hotel. The Complainant was employed by the Respondent in her capacity as a Kitchen Porter between March, 1997, and October, 2006. In the course of her employment the Complainant was required to work with male colleagues, two of whom, she alleges, subjected her to offensive, humiliating and intimidating treatment in the course of her employment. It is alleged that this treatment was on grounds of the Complainant’s gender and constituted sexual harassment within the statutory meaning of that term. The Complainant further alleges that having complained of harassment she was removed from her employment in circumstances amounting to victimisation. Finally the Complainant contends that she was paid less than a male colleague with whom she was engaged in like work.
The Facts
In the course of the hearing of this appeal the Court heard evidence from the Complainant and from Mr. F.P. who gave evidence on her behalf. Mr. F.P. was Head Chef with the Respondent at the time material to these claims. Evidence was given on behalf of the Respondent by Ms. D. McG, who is proprietor of the Respondent and by Ms. S. McN who is Operations Manager with the Respondent. While there were differencesin recollection of certain events between the Complainant on the one hand and Ms. McG and Ms. McN on the other, there is no substantial disagreement as to the salient facts giving rise to the complaint in issue. The facts, as admitted or as found by the Court, and where so found, the evidence on which they are based can be summarised as follows: -
The Complainant was employed in general kitchen portering duties. This involved washing up in the kitchen and preparing plates and cutlery for the dining room. There were other male Kitchen Porters engaged in similar work. The subject matter of the within complaints of harassment relate to two of those male colleagues who are referred to herein as Mr. S.S and Mr. D.K.
On Christmas Day, 2003, the Complainant commenced duty with the Respondent at 2.00 p.m. She told the Court that the hotel was extremely busy and that she was under considerable pressure. According to the Complainant Mr. S.S was also on duty at that time but she was being left to do most of the work. The Complainant informed Mr. F.P (who was her line manager) of the situation. Mr, F.P told the Complainant to ask Mr. .S.S to telephone Mr. D.K, (who lived at the same refugee hostel as Mr. S.S) and ask him to come into work. The Complainant conveyed this message to Mr. S.S. Mr. S.S replied to the effect that if Mr. F.P. wanted Mr. D.K. to come into work he should ring him himself. The Complainant reported back to Mr. F.P. who then spoke to Mr. S.S in his native language (French). The Complainant did not understand what was said to Mr. S.S in the course of that conversation.
Later on the same day Mr. S.S confronted the Complainant and while pointing his finger at her face told her“you be careful, very careful”.The Complainant told the Court that she was frightened and upset by this incident. The following day the Complainant reported the incident to Mr. F.P. Mr. F.P. called a meeting of the kitchen staff at which he emphasised the importance of maintaining a harmonious working environment in the kitchen. No further action was taken in relation to this incident.
The Complainant told the Court of a number of incidents in which Mr. S.S would not assist her and in consequence she was required to carry an inordinate burden of work.
An incident occurred on or about 9th May, 2004, in which a male colleague approached the Complainant and demanded that she help him and another male porter with their work. The Complainant said that she was busy with her own work and would help when she was finished. This individual (referred to by the Complainant as Alan) then remonstrated with the Complainant in his native language which the Complainant did not understand. In the course of this exchange he did tell her to f... off. After work the Complainant told her female colleague of this incident. This colleague undertook to discuss the matter with Ms. McN. In consequence of the incident referred to a decision was taken by Ms. McN and Mr. F.P. to dismiss Alan.
It appears that Alan was dismissed on or about 14th May. 2004. He returned to the hotel in the course of that day seeking to be reinstated. Later that day Mr. S.S approached the Complainant and accused her of having been responsible for Alan’s dismissal. In the course of this incident Mr. S.S referred to the Complainant as“an evil bitch”.
The Complainant told the Court of other incidents in which she felt that Mr. S.S and Mr. D. K adopted a threatening demeanour towards her. These included an incident which occurred on or about 15th May, 2004, in which Mr. S.S and Mr. D.K were holding a conversation in their native language and then approached the Complainant and “laughed in her face”. The Complainant was extremely upset by this incident. She told the Court that she did not sleep that night. The following morning the Complainant told Mr F.P. of the incident.
Mr. F.P. reported the difficulties which the Complainant was having to Ms. S McN. In response Ms. S McN convened a meeting involving the Complainant, Mr. F.P. and herself. The Complainant told Ms McN of the difficulties she was experiencing with Mr. S.S and Mr. D.K. Following this meeting Ms. McN spoke to Mr. S.S and Mr. D.K. and warned them that their conduct would not be tolerated and that if it continued they would be dismissed. Ms. McN told the Court that this was the first occasion on which she had become aware of the Complainant’s difficulties. She accepted that the Complainant had been treated unfairly by her colleagues. She felt that she had dealt with the matter appropriately by issuing warnings to both Mr. S.S and Mr. D.K. Mr S.S and Mr. D.K were also instructed to write a letter of apology to the Complainant. By letter dated 22nd May, 2004, both employees wrote to the Complainant apologising for their behaviour.
Ms McN told the Court that at the material time the Respondent did not have a dignity at work policy nor had it a policy on bullying and harassment. It was also accepted that the Respondent did not have a formal grievance procedure at that time.
On 20th May, 2004, Ms. D McC, who is the proprietor of the hotel, met with the Complainant. Ms. McC told the Court that she held the Complainant in high regard both personally and as an employee. There was some difference of recollection between the Complainant and Ms. McC concerning the detail of this meeting. Ms. McC told the Court that the Complainant had informed her that she suffered from a bone disease which affected her nerves. This was denied by the Complainant. It was the Complainants evidence that she suffered from a disorder affecting her elbow and that this had no effect on her nerves.
Ms. McC recalled that she discussed with the Complainant the difficulties which she (the Complainant) was having at work. Ms. McC told the Court that she spoke to the Complainant on a personal basis rather than as her employer. She said that the Complainant was very upset and she suggested to her that she should take some time off work. The Complainant’s recollection was that she was instructed by Ms. McC to take time off. It was, however, confirmed to the Court that the time off proposed was without pay. Ms. McC told the Court that she made the suggestion out of concern for the Complainant’s welfare and she felt that the Complainant would benefit from a break from work. The Complainant did not accept that Ms. McC’s demeanour suggested a sympathetic attitude towards her difficulties.
Following this meeting the Complainant went on sick leave and did not return to work. However the Court accepts that the Respondent did not wish the Complainant’s employment to end. Members of management remained in contact with her and made enquiries as to her well-being. By letter dated 4th August 2004 Ms. D McC wrote to the Complainant informing her that her position with the hotel was still open and asked her to contact the writer to discuss her situation. The Complainant did not respond to this letter. At that time the Complainant had initiated the within complaints before the Equality Tribunal.
In or about May, 2006, Ms. S McN met with a nominated representative of the Complainant to discuss her situation., Ms. S.McN’s recollection of that meeting was that the Complainant’s representative told her that the Complainant did not wish to return to work and the making of a financial gesture to her was discussed. A sum of €750 was agreed. By letter dated 5th May, 2006 Ms, McN wrote to the Complainant, in effect, acknowledging her resignation and enclosing a cheque in the amount agreed together with the Complainant’s P.45. The Complainant replied by letter dated 9th May, 2006, denying that she had resigned. She stated that she was still on sick leave and had not been certified as fit to return to work. The Complainant returned the cheque proffered by the Respondent. Ms. S McN replied to the Complainant by letter dated 3rd July, 2006, expressing her surprise at the content of the Complainant’s letter and repeating her understanding of the discussion which she had with the Complainant’s representative. Ms. S McN went on to advise the Complainant that her position with the hotel could not be kept open indefinitely. She expressed the hope that the Complainant would return to work but pointed out that if she failed to do so by 2nd October, 2006, her employment would be terminated. The writer went on to invite the Complainant, or her nominated representative, to discuss the content of the letter with her. Nothing further was heard from the Complainant and her employment came to an end on the date specified.
The Court heard evidence from Mr. F.P. A written witness statement had been submitted to the Court signed by Mr. F.P. in advance of the hearing. It became apparent in the course of Mr F.P.’s evidence that this statement had in fact been prepared by the Complainant and while it contained Mr. F.P.’s signature he seemed unfamiliar with its content. In one material respect this witness did not stand over what was averred in this statement. In consequence the Court does not regard this statement as having any probative value and it was disregarded for the purpose of its consideration of the case.
Mr. F.P. did give oral evidence concerning the working environment in the hotel kitchen at the material time. He accepted that like all hotel kitchens it was pressurised and occasionally inter-personal disagreements developed between staff. This witness told the Court that there were difficulties between the Complainant and Mr. S.S in particular. He gave evidence as to the measures which he had taken to deal with the situation, including convening a meeting of kitchen staff on 26th December, 2003, referred to in the Complainant’s evidence.
Mr. F.P. told the Court that in his opinion Mr. S.S had a negative disposition towards women generally. He formed this opinion from remarks made to him by Mr. S.S. The witness formed the opinion based on things said to him and his general demeanour towards women working in the kitchen that Mr. S.S wished him to replace the Complainant and her female colleagues with men who lived at the hostel in which Mr. S.S resided. The Court accepts that this evidence is substantially correct.
Issues for consideration
On the evidence adduced the Court is satisfied that the Complainant was harassed in the course of her employment by Mr. S.S. Having so found the Court must go on to consider if that harassment amounts to sexual harassment within the statutory meaning of that term. If the Court answers that question in the affirmative it must consider if the Respondent can avail of a legally recognised defence.
The Court must then consider if the circumstances in which the Complainant ceased working with the Respondent amounts to victimisation within the meaning of s.74(2) of the Act.
Finally the Court must consider the Complainant’s equal pay claim. In that regard no evidence was adduced by the Complainant to show that she was paid less than the nominated comparator. Moreover, this claim was presented to the Equality Tribunal in February, 2008. In an equal pay claim the Court can only award arrears in respect of the three years prior to the date on which the claim was presented. In the three years prior to the presentation of her claim the Complainant was not employed at the Respondent’s hotel and had no earnings. Consequently this aspect of her claim is now moot and was not considered further by the Court.
The law.
The Complainant’s claims of harassment and victimisation were initiated on 25th June, 2004. That was before the enactment of the Equality Act, 2004. Hence these claims fall to be considered by reference to the Act of 1998, before its amendment by the Act of 2004.
Harassment
Section 23(1) of the Act provides as follows: -
- 23.—(1) If, at a place where A is employed (in this section referred to as "the workplace"), or otherwise in the course of A's employment, B sexually harasses A and either—
- (a) A and B are both employed at that place or by the same employer,
(b) B is A's employer, or
(c) B is a client, customer or other business contact of A's employer and the circumstances of the harassment are such that A's employer ought reasonably to have taken steps to prevent it,
- (a) A and B are both employed at that place or by the same employer,
- (3) 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),
- (a) any act of physical intimacy by B towards A,
Furthermore, the conduct giving rise to this case was committed after the date for implementation of Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation (2nd December 2003). Article 2.3 of that Directive provides: -
- Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.
This is a broader definition to that contained in the Act before its amendment and it brings within its ambit any unwanted conduct, on any of the proscribed grounds, including gender, which has the object or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
The decision of the ECJ in Case C- 106/89Marleasing S.A. v La Commercial Internacional de Malimentacion S.A.[1990] ECR 4135 makes it clear that from the date on which Member States are required to transpose a Directive a National Court must interpret its domestic law in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the Directive. This interpretative obligation was described by Hamilton C.J inNathan v Bailey Gibson[1996] ELR 114, as follows: -
- [N]ational courts are bound to interpret their national laws in the light of the wording and purposes of the relevant EEC Directive even where the national law in question was adopted before the Directive was given. That was, as I say, a far-reaching application of the general rule on interpretation which itself is not open to challenge.
There can be no doubt that the treatment to which the Complainant was subjected was unwanted and that it had the effect of violating the dignity of the Complainant and of creating an intimidating, hostile, degrading, humiliating or offensive environment. Accordingly it must be interpreted as coming within the intendment of Section 23(3) of the Act if it was related to the Complainant’s gender.
Burden of proof
In considering if the impugned conduct was on grounds of the Complainant’s gender the Court is required to apply the shifting burden of proof provided for by Council Directive 97/80 of 15th December, 1997, on the Burden of Proof in Cases of Discrimination Based on Sex. This Directive sets out the procedural rules to be followed in applying the evidential burden in discrimination cases. Article 4.1 of the Directive provides that, where a plaintiff in discrimination proceedings establishes facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. Directive 97/85 is now transposed in domestic law by s. 85A of the Act, as amended.
The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination inMitchell v Southern Health Board[2001] ELR 201.That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish aprima faciecase. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the Determination of this Court in Determination EDA082,Kieran McCarthy v Cork City Council.
Finally Directive 2000/78/EC provides that, in respect to employment, there shall be no discriminationwhatsoeveron grounds,inter, alia,of gender. Thus if it is established that the Complainant’s gender was anything other than a trivial influence giving rise to the treatment to which she was subjected the complaint of discrimination will have been made out, subject to the defence available to an employer under Section 23(5) of the Act. (See dictum of Peter Gibson LJ to that effect inWong v Igen Ltd and othersIRLR 258).
Defence available
Where a person suffers unlawful harassment in the course of his or her employment by a fellow employee Section 23(1) provides that the employer is fixed with liability for the harassment. However an employer can avoid liability by making out the defence provided for at Section 23 (5). That subsection provides: -
- (5) If, as a result of any act or conduct of B, another person ("the Employer") who is A's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against A, it shall be a defence for the Employer to prove that the Employer took such steps as are reasonably practicable—
- (a) in a case where subsection (2) applies, to prevent A being treated differently in the workplace or otherwise in the course of A's employment and, if and so far as any such treatment has occurred, to reverse the effects of it, and
Victimisation
Victimisation is defined by s.74 (2) of the Act as: -
- (2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
- (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
- (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
It is to be noted that the protection against victimisation is not confined to acts done in response to an employee having initiated a claim under the Act. It also applies in situations where an employee “opposed by lawful means an act which is unlawful under this Act”.That can include making a complaint to an employer.
The term penalisation is not defined by the Act. However it is generally taken to mean any form of adverse treatment in relation to employment. Moreover, this statutory provision must be interpreted in line with Article 11 of Directive 2000/78/EC which provides: -
- Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.
Conclusion of the Court
Claim of sexual harassment
The Complainant was subjected to threatening,intimidating and humiliating conduct by a work colleague in the course of her employment. However she can only avail of the protection of the Act if it is found that her gender was a reason for the treatment complained of. It is for the Complainant to establish on evidence, to aprima faciestandard, that but for her gender she would not have suffered the impugned treatment. If she does not meet that evidential standard she cannot succeed.
In considering that question the Court has placed considerable reliance on the evidence of Mr F.P. This witness told the Court that, for reasons which he explained, Mr. S.S was negatively disposed towards women in general. The Court accepts as a fact that Mr. S.S was so disposed towards women, including the Complainant. It can reasonably be inferred from that fact that Mr. S.S’s conduct towards the Complainant was, in part at least, related to her gender. Consequently the Complainant has discharged the initial burden which she bears and the onus of proving the absence of discrimination passes to the Respondent. No evidence was adduced by the Respondent to prove, on the balance of probabilities, that the Complainant’s gender was in no sense whatsoever a causal factor in the treatment which she suffered. Of significance in that regard is the absence of any evidence to show that the alleged harasser behaved similarly to a male employee.
Once proscribed treatment occurs the employer is fixed with liability unless the defence provided for at Section 23(5) is successfully made out. The treatment impugned in this case comes within the ambit of Section 23 (1) of the Act. Hence, in accordance with Section 23 (5) (b) the Respondent must show that it took such steps as are reasonably practical to prevent harassment of women in the workplace. The obligation is preventative in nature and it is not sufficient for an employer to show that measures were taken to prevent a reoccurrence of harassment after it had taken place.
This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations.
In the instant case the Respondent accepted that at the material time it had no such policies in place and the responsible management staff had no training on how to deal with incidents of harassment. Moreover, there was no formal grievance procedure within the employment although it is accepted that an informal arrangement was in place. It was accepted by the witness who gave evidence for the Respondent that employees were not told on induction that any form of harassment, including sexual harassment, was unacceptable and would not be tolerated. The Court was told that the Respondent employs some 140 staff members at peak times and that the working environment, particularly in the kitchen, is generally pressurised. It seems to the Court that in such an employment the need for coherent policies and procedures to prevent harassment from occurring is self-evident.
In all the circumstances the Court does not accept that the defence provided for by s.23 (5) of the Act can avail the Respondent. Accordingly, the Complainant is entitled to succeed in this aspect of her claim.
Claim of victimisation
This aspect of the Complainant’s claim appears not to have been expressly addressed in the decision of the Equality Officer. Nevertheless it was addressed by both parties in their submissions to the Court and there was no suggestion that it was not properly before the Court.
The gist of the Complainant’s claim is that, having complained of harassment by her male colleagues, she was placed on unpaid leave by the Respondent. The Court accepts that Ms. McC was well disposed to the Complainant and believed that it was in the Complainant’s best interest to take some time off work. However in the circumstances the Court believes that an offer of a period of paid leave would have been a more appropriate response.
There was some controversy as to whether the proposal to take time off was put to the Complainant in the form a suggestion or an instruction. It appears that Ms. McC intended it as a suggestion but that it was capable of being understood as an instruction. Given the Complainant’s acknowledged upset state at the material time it is not surprising that she understood it to be the latter. In the result the Complainant ceased her employment with the Respondent and did not return. That occurred in circumstances which were a reaction to her complaints and amounts to victimisation under the Act.
It appears to the Court that the Complainant could have returned to work within a reasonable period or sought some assurances that measures would be taken to prevent any reoccurrence of the treatment which she had suffered. The Court is also satisfied that the Respondent did try to contact the Complainant to discuss her situation but the Complainant failed to respond. Moreover, the Complainant was in receipt of social welfare disability benefit during the period of her absence from work and was medically certified as been unable to work through illness. These are matters which must be taken into account is measuring redress.
Equal pay claim.
For reasons set out earlier in this determination the Complainant’s equal pay claim is moot.
Determination
For the reasons set out above the Court is satisfied that the Complainant is entitled to succeed in her claim of discrimination in the form of sexual harassment and in her claim of victimisation. To that extent her appeal is allowed and the Decision of the Equality Tribunal is varied accordingly.
Redress.
The Court is satisfied that the appropriate redress is an award of compensation. The Complainant’s gross pay at the material time was €280 per week. In relation to the victimisation which the Court found to have occurred, the Complainant effectively left her employment in the circumstances referred to above and did not return, despite having been invited to do so by the Respondent. In the period up to her dismissal in October, 2006, and thereafter, she was medically certified as unfit for work and was in receipt of social welfare disability benefit. There was no evidence to show a causal connection between her illness and the harassment which she suffered. Consequently, any pecuniary loss that she may have suffered in consequence of being out of work cannot be attributed to the harassment nor can it be regarded as totally attributable to the victimisation found to have occurred. Nonetheless, victimisation is a serious matter which must be marked with an award of compensation.
While the conduct of which the Complainant complained is serious and unacceptable, it is not at the higher scale in terms of its gravity. The Court measures the amount which is fair and equitable in all the circumstances at € 5,000 in respect of the acts of sexual harassment and € 5,000 in respect of victimisation, of which €1,000 is in respect of loss of earnings.
Signed on behalf of the Labour Court
Kevin Duffy
2nd July, 2009______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.