FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 AND 2004 PARTIES : AN EMPLOYER (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2007.
BACKGROUND:
2. A Labour Court hearing took place on the 4th March, 2009, in accordance with Section 83 of the Employment Equality Act, 1998 to 2007. The following is the Court's determination:-
DETERMINATION:
Background.
The Complainant worked for the Respondent as a General Operative and Banksman on a number of construction sites, from June 1996 until he was made redundant in April 2006.
Incidents occurred in 2000, and allegedly again in 2003 and in 2005, where he was sexually harassed in relation to his sexual orientation. Following the 2005 incidents (which were not at issue between the parties) the Complainant told the Respondent that he was distressed by the incidents and had had suicidal thoughts. The perpetrators apologised. The Respondent advised the Complainant that it would be preferable if he did not work as a Banksman for a while. He attended his own doctor and, at the Respondent’s request, also attended a Psychologist engaged by the Respondent. In the meantime, he worked on, mainly on the ground, and the Respondent conducted meetings of staff outlining its policy on harassment and bullying.
In November 2005, the Complainant was called to the office and told to leave the site immediately and he was placed on sick leave. The Company Psychologist had recommended that the Complainant should not work for a while. In March 2006, the Psychologist indicated that the Complainant could resume work, but the Company was experiencing a downturn in work and, on 11th April, 36 employees, including the Complainant, were made redundant.
On 31st July 2006, the Complainant referred a complaint of discriminatory treatment on the grounds of sexual orientation, sexual harassment and victimisation (Sections 6,8,14A and 74 of the Acts) to the Equality Tribunal. A hearing by an Equality Officer took place on 10th June 2008, the Equality Officer issued the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998 and 2004, (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 Sections 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 823 of the Employment Equality Acts 1998-2008: -
•That the respondent ensures that all existing staff 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 HAS publication entitled Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work.”
By letter dated 21st October 2008 the Respondent appealed against the Decision of the Equality Officer. A Labour Court hearing took place in Limerick on 4th March 2009.
Complainant’s Arguments:
1. The Complainant stated that he was bullied and harassed about his sexuality in 2000, 2003 and 2005. He stated that when he reported the 2000 incident to the Respondents, he was transferred off site. He stated that the fact that he ws moved after the 2000 incident led to a lack of confidence on the Claimant's part that reporting further incidents would achieve anything until they became unbearable and he had to do so. He did not report the 2003 incident because of this lack of confidence that a complaint would be dealt with properly.
The Respondent did not protect him and did not act until he reported the 2005 incidents. Up to that time it had no policy in relation to harassment and bullying in place. When he officially complained in 2005, the Respondent held meetings with the alleged perpetrators and all employees instructing them in relation to the Company's policy on bullying and harassment.2. He stated that because the Harassment was upsetting him, during the interview with the Respondents he was honest enough to admit that at times he had had suicidal thoughts. The Respondents stated that they would investigate the matter.
3. He believed that the fact that the Respondent was investigating the matter (and was allowing him to work on) would lead to his reinstatement in full in all of his duties, both general and as a Banksman.
4. He stated that the Respondents insisted that he have a psychological examination, and this in turn led to his being put off work and losing a lot of money. He claimed that the decision to take him off work resulted from his having made a complaint of harassment and thus constituted victimization within the meaning of Section 74 of the Acts. He was off work until August 2006 and when he returned he was immediately made redundant.
5. He stated that his removal from the site on 8th November 2005 was done without warning and he was given no right of representation. It was done on the basis of the report by the Company Psychologist, whom he had willingly met, and which was contrary to his own medical advice. He stated that alternative methods of dealing with the problem should have been considered by his employers, that they might have sought alternative medical advice or considered alternative courses of action which would not have imposed such a severe penalty on him.
Respondents’ Arguments:
1. The Respondent stated that it was agreed that there was an incident between the Claimant and another worker in 2000 on another site. While it apparently concerned his sexual orientation, it was the continuation of an incident which occurred outside of the workplace at a taxi rank one night. The matter was considered closed and the Complainant was not moved off site as a result.
2. No further incidents were reported until 2005. As soon as these were reported, the Respondent launched an appropriate informal investigation and held toolbox talks with the alleged perpetrators. these are informal talks at the workplace. Following these talks the individual alleged to have made the remarks apologised to the Complainant. In addition as the Complainant had expressed suicidal thoughts, the Respondent took him off working at heights and referred him to a named Clinical Psychologist. She advised that the Complainant should not continue working until counselling was completed and his situation was further reviewed. By the time he was cleared to return to work, a severe downturn had occurred and he was one of over thirty employees made redundant at that time.
3. While there were changes to the Complainant’s conditions of employment, these were proportionate and necessary given his state of mind and medical history. It was the Respondent which initiated the action on the matters, not the Complainant, who only complained initially to a third party.
4. The outlined awards total €49,700 which is totally disproportionate and equate to nearly two years’ wages after tax, despite the Respondent’s case, prompt action and good intentions being acknowledged.
5. The Respondent submits that no victimisation occurred, that there was therefore no question of loss of earnings arising therefore and that it took all reasonable steps with the Complainant’s welfare foremost in its mind.
The Respondent's appointed Psychologist told the Court that the resondent had engaged her to consult with and assess the Complainant. She confirmed his sexual orientation, was aware that he had had heart trouble in the past, did not cope well with stress, and he had previously suffered with depression and was a recovering alcoholic (dry for 17 years). He felt isolated in the workplace because of the comments of others regarding his homosexuality. He agreed that the Respondent had acted on the complaints when they became aware of the 2005 incidents. As she was concerned at the combination of his suicidal thoughts which might reappear, his depressive history, and his job, she recommended counselling and that he should not continue in his position until cleared following counselling sessions. This happened in March/April of 2006 and she cleared him to return to work. She was aware that his own GP and a Psychologist engaged by the Complainant had recommended an earlier return to work but her professional opinion was as stated.
The Facts Established:
1. Sexual harassment of the Complainant occurred at least twice in the workplace. There was a previous incident in 2000 and, while there may or may not have been other unreported incidents, it definitely occurred in 2005.
2. The Respondent did not have a policy for dealing with these matters prior to 2005 incident.
3. It immediately took steps in 2005. It also took measures regarding the Complainant’s own situatation. The net result of this was that the Complainant was prevented from working, on medical advice, from November 2005 until April 2006.
4. It was agreed that the Complainant’s loss of employment in 2006 was as a result of a genuine redundancy situation.
Conclusions of the Court:
The Complainant contends that he was subject to sexual harassment by a work colleague and that he was subjected to associated victimisation by his employer, the Respondent, for having complained of the harassment.
There is no real dispute concerning the first aspect of the claim. It is clear on the uncontested evidence of the Complainant that he was subjected to verbal abuse concerning his sexuality in the course of his employment by a sub-contractor of the Respondent. The Court is satisfied on the evidence that the said verbal abuse amounted to sexual harassment within the statutory meaning of the term.
The only question which arises for determination in this aspect of the claim is whether the Respondent should be fixed with liability for what occurred. That question turns on the correct application of S.14 (A) of the Acts as amended. Section 14A, in so far as is relevant, provides as follows: -
14 A. –(1) For the purposes of this Act, where-
(a) an employee (in this section referred to as ‘ the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as the ‘workplace’) or otherwise in the course of his or her employment by a person who is-(i) employed at that place or by the same employer(ii) the victim’s employer, or
(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or(II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
The harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
(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-
Victimisation is defined by S.74 (2) of the Acts as follows: -
“(2) For the purposes of this Part victimisation occurs where 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,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
This amended definition was inserted into the Acts by Section 29 of the Employment Equality Act 2004. It closely follows the language of Article II of the Directive on Equal Treatment and the view of the ECJ as set out in case no C-185/19 “Coote v Granada Hospitality Ltd” [1998] IRLR 656 as follows: -
- 'The principle of effective judicial control laid down in Article 6 of [the Directive on equal treatment] would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, the employer might take as a reaction to proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment.'
It is clear from this definition that victimisation arises where a complainant suffers a form of adverse treatment solely or mainly for having committed a protected act referred to at paragraphs (a), (b) or (c) of subsection (2) of Section 29 of the Act of 2004.Furthermore, S.85A of the Acts provides for a shifting burden of proof in cases of discrimination. Subsection (4) of that Section provides that this shifting of the burden applies equally in cases where victimisation is alleged. Hence, it is for the Complainant to make out aprima faciecase of victimisation which, in the absence of independent corroboration, must be approached with caution. (see the approach of this Court inNevins, Murphy, Flood v Portroe Stevedores[2005] 16 ELR 282).Having considered the evidence adduced the Court does not accept that the decision to restrict the Complainant to working at ground level amounted to victimisation as statutorily defined. Rather, the Respondent was motivated by a concern for the health and safety of the Complainant, having regard to his psychological health at the material time.With regard to the decision to place the Complainant on unpaid sick leave, the position is significantly different. The Court was told that the Respondent decided to place the Complainant on involuntary sick leave in response to a professional assessment of his psychological health. The evidence tendered by the Respondent confirmed that the Psychologist engaged by the Respondent recommended that the Complainant be removed from the workplace until he underwent counselling. However, the decision to place him onunpaidleave was taken by the Respondent alone but in the context of the Respondent not having a sick pay scheme in place.There was no evidence of the Respondent having considered any alternative course of action by which the Complainant would not have suffered a loss of pay. In particular the Court considers it extraordinary that the Respondent failed to discuss the Psychologist's Report with the Complainant or to afford him or his medical psychological advisers, with an opportunity to comment on the recommendations contained in the Report. Rather, having received the Report the Respondent moved peremptorily to remove the Complainant from his place of work and did so on thirty minutes' notice. Moreover, there was an extraordinary delay of some five months in having the Complainant’s condition reviewed and this occurred only just before redundancies, by which the Complainant was to be affected, came into contemplation. In that regard the treatment of the Complainant can be sharply contrasted to that of the perpetrator of the harassment against whom no form of disciplinary action was taken. It is of particular significance that the Complainant had almost ten years' uneventful service with the Respondent and only experienced difficulties after he complained of harassment. It is also significant that when the Complainant had previously complained of being sexually harassed in 2000, no action was taken and he claimed to have been moved off site.
These are factors which strongly suggest a causal connection between the decision to place the Complainant on unpaid sick leave and the complaints which he had made concerning sexual harassment. They are, in the Court’s view, facts of sufficient significance to raise a presumption of victimisation and so transfer the probative burden to the Respondent. There is nothing in the evidence tendered by the Respondent which, in the Court’s view, goes far enough to rebut or displace that presumption of victimisation.
Accordingly, the Court finds that the Complainant was victimised within the meaning of S.74 of the Acts and, as has been noted already, the protection against victimisation is an essential adjunct to the principle of effectiveness, without which the protection against discrimination afforded by domestic and European law would not be upheld.
It is thus well established in the jurisprudence of both this Court and that of the Equality Tribunal that it is unacceptable and this must be marked in measuring redress where it is found to have occurred (see the decision of this Court inDublin City Council v McCarthy(Determination EDA022).
Determination:
The Court therefore determines: -
- That the Respondent pays the Complainant the sum of €12,500 for distress and the effects of sexual harassment constituting discrimination which award of compensation is for the breach of the Complainant's right under the Acts.
- That the Respondent pays the Complainant the further sum of €12,500 in compensation for the distress and effects of victimisation which award of compensation is also for the breach of the Complainant's rights under the Acts and the further and final sum of €1090 in respect of reimbursement of medical expenses incurred by the Complainant previously.
- That the Respondent has polices on harassment and sexual harassment which are in accordance with the Code of Practice on such matters issued by the Equality Authority, that it ensures that all staff are familiar with such policy on an ongoing basis and that it appoints a specified person as the first point of contact in such matters for employees making complaints.
The Court so orders and varies the Equality Officer’s Decision accordingly.
Signed on behalf of the Labour Court
Raymond McGee
13th July, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.