THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2010- 002
PARTIES
An Office Worker
-v-
A Security Company
File Reference:EE/2007/434
Date of Issue:14th January 2010
Keywords
Employment Equality Acts 1998-2008, Section 14A -sexual harassment, discrimination in relation to conditions of employment, rejection of treatment - harassment.
1. Dispute
This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the gender ground, in terms of Section 14(A) of the Employment Equality Acts 1998-2004 and contrary to section 8 that Act in relation to her conditions of employment in that she was sexually harassed and harassed.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 21st August 2007 alleging that the respondent discriminated against her in that she was subjected sexual harassment in the course of her employment. She submits that when she rejected the treatment she was subjected to harassment.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd of July, 2009 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant. A hearing on the complaint was held on the 1st October 2009 and the last correspondence was received on the 10th November 2009.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submits that she started work with the respondent as a junior office assistant in March 2002 when she was 15 years old. She said that since the commencement of the employment Mr. A., who is the Managing Director of the company, has subjected her to offensive comments and treatment. Over the years the treatment got progressively worse. Mr. A would come into her office and make offensive comments to her, tell dirty jokes and touch her inappropriately. He hung a picture of a naked woman in her office and refused to take it down. The complainant submitted a long list of other offensive and sexually explicit remarks that were made to her by Mr. A. The complainant said that she was afraid to be alone in the office with Mr. A.
3.2 When Mr. A was going out of the office on business he was always inviting her to go with him so that he could be alone with her. She refused and had arranged with her friend in the office that she would tell Mr. A. she needed the complainant to do some work. On one occasion her friend was out sick and Mr. A insisted that the complainant accompany him in the company van to his house. The complainant said that she was terrified and did not speak to Mr. A during the journey. She said that he made offensive comments during the journey. He wanted to show her around the house but the complainant made an excuse that she did not feel well and she wanted to return to the office. On the way back Mr. A made further offensive sexually explicit comments and called her an offensive name.
3.3 The complainant submitted that she reported Mr. A. to her manager and she spoke to him. Mr. A reportedly said that it was his office and he could speak any way he wanted. She said that his attitude towards her then changed and he started giving her extra work to do. He sent her out in the rain to do messages for him including getting the paper. He threatened her with suspension gave out to her for going to the toilet.
3.4 The complainant said that she became very stressed by the situation. She dreaded going to work and became sick at the thought of it. She had to be very careful about the way she dressed. She cried a lot both at work and at home. She felt so miserable that she went straight to bed when she came home from work. As a result of the stress she suffered from a number of illnesses. Her doctor advised her she was suffering from stress related depression and declared her unfit for work. One morning in July 2007 while she was making tea for herself, Mr. A. and another employee, Mr. A. asked her to go to the post office to get him a passport form for him. His attitude towards her changed when she said that she would get them after she finished her tea. The complainant said that she immediately went and got the passport form and on her return he told her she was suspended and sent her home. He called her to a disciplinary meeting with her manager. He would not allow her to defend herself an he said that she would be sacked if she spoke again during the meeting. The complainant said that she left the meeting and went to her doctor . She told the doctor about the sexual harassment she had experienced at work. He certified that she was suffering from stress. Her mother went to the respondent's office and attempted to hand in the certificate to the respondent and she was abused by him.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 Mr. A. said that he is the owner of the company. He denied that he ever sexually harassed the complainant or that he ever made comments of a sexual nature to her. Mr. A. said that he had a good relationship with the complainant up until she started bringing her personal problems into the office. In relation to the complainant's complaint the picture of a nude woman, he said that it was a copy of a painting hanging in the National Gallery. He could not identify the genesis of the original painting. He said that the complainant never objected to it nor did any other member of staff.
4.2 He believes that the complainant had personal problems and on one occasion he saw her crying in the office. He asked another member of staff why the complainant was crying and he was informed that there were problems in relation to a car with her boyfriend.
4.3 He said that the increased her wages by €100 per week when she turned 18 and he intended giving her more work and more experience. For this reason he asked her once to go to a house he had purchased to meet an estate agent who was arranging the renting of the house. He said that the complainant would have to deal with the estate agent and to ensure that the rent went into the bank. This was the only time he invited the complainant to go out of the office and she did not object to going with him. He thought that the trip was a success but he did notice that the complainant stayed in the car while the estate agent took pictures of the house.
4.4 Mr. A. said that the complainant was often late for work and he had to speak to her about it. She used her mobile phone during office hours despite the fact that he banned the use of personal mobiles in the office and he had to give her a written warning. The complainant had a lot of sick leave and she was unwell on a number of occasions at work. He denied that he ever touched her in any way.
4.5 He accepted that one complaint, which the complainant mentioned in her evidence had been made. It was a very inappropriate comment in relation to making the tea. He said that the complainant had wrongly attributed it to him and submitted that it was made by another employee. He said that the complainant did not complain about it at the time. He said that there was office banter in the office particularly during tea break which the complainant participated in. In July 2007, he decided to have a disciplinary meeting with the complainant following her refusal to get a passport form for him. The complainant initially attended the meeting but she left the meeting and did not return. She then sent medical certificates stating the she was suffering from stress. He said that the complainant's mother barged into his office with the medical certificate and he had to ask her to leave. The complainant has not returned to work but she is still an employee and is sending in medical certificate.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent (i) sexually harassed the complainant contrary to section 14A of the Employment Equality Acts, 1998 and 2004 and (ii) and harassed her for having rejected the sexual harassment in circumstances constituting discrimination of her on grounds of gender contrary to the same section of those Acts. 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 the witnesses at the Hearing.
5.2 Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was sexually harassed and discriminated against on the gender ground in relation to her conditions of employment. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
5.3 Section 14A of the Acts defines sexual harassment as:
“any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct 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.”
The Act goes on to give examples of unwanted conduct and states: (b) Without prejudice to the generality ofparagraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
5.4 The complainant contends that Mr. A. sexually harassed her as set out above from very early on in her employment with him. She said that she complained to her manager, who was Mr. A's. future sister in-law, and she spoke to Mr. A. The respondent denied that he ever treated the complainant inappropriately or that he made any comments of an explicit nature to her which could be construed as sexual harassment.
5.5 There is a conflict of evidence in relation to what happened and neither party called any witnesses. Therefore I must decide on the balance of probabilities which version of events I find more credible. The complainant gave very clear evidence and I note that she provided two detailed submissions in which she provided details of the alleged sexual harassment. The complainant also provided two written reports from her doctor stating that she was suffering from work related stress. The first report referred to incidents at work which caused the complainant great distress and the second report the doctor stated that the complainant complained to him about being subjected to comments about her body shape and in particular comments about her breasts. The report also stated that she complained about being shouted at.
5.6 Mr. A. refused to provide any submission. He expressed his reluctance to cooperate with the investigation and hearing process. He said at the start of the hearing that he was not calling any witness because he was going to the Courts where he would call witnesses and clear his name. He expressed disregard for the Tribunal process.
5.7 I note that the complainant and the respondent agreed about number of matters which occurred while they disagreed about the context in which they happened. The complainant stated that the respondent constantly asked her to go out with him when he left the office on business. The complainant said that she did not like being alone with Mr. A because she felt uncomfortable with him and she had arranged with another work colleague to tell Mr. A. that she was busy and could not go with him. She had to go on one occasion when this work colleague was absent. During the course of the journey he made inappropriate remarks to her. The respondent said that he did ask the complainant to go with him on one occasion to meet an estate agent at his house which he was about to let. He said that the complainant would have to ensure the rent was paid into his bank account. He said that while he was of the view that the trip was a success he did notice that the complainant stayed in the car. He denied that he made any inappropriate comments during the trip or that there was any other motive attributable to the trip other than work related. I am not satisfied from the evidence about this trip that it has been established that it was solely work related, in that the respondent agreed in evidence that the complainant sat in the car while he conducted the business with the estate agent. He provided no evidence that the complainant participated in that meeting and the complainant's evidence is that she stood outside the house while Mr. A dealt with the estate agent.
Both the complainant and the respondent agreed that an inappropriate comment was made to the complainant when she came out of the toilet. The comment related to the tea the complainant was making for Mr. A and another member of staff. The complainant attributed the comment to Mr. A while he said that it was made by another employee. I am satisfied therefore that this comment was made. Even if I accept that the comment was not made by the respondent, I note that as an employer with a duty to prevent sexual harassment in the workplace, he took no disciplinary action against the employee he alleges made the remark. It would appear to me from the respondents evidence that he accepted the remark as office banter.
5.8 Having considered the totality of the evidence presented I prefer, on the balance of probabilities, the complainant's version of events. The complainant was very clear in her evidence while the respondent was less than forthcoming. I find therefore that Mr. A subjected the complainant to the inappropriate treatment and to the inappropriate comments which she attributed to him and which she outlined in her evidence above. I find therefore that the treatment falls within the definition of sexual harassment under section 14A of the Acts as set out above. On the basis of the foregoing I am satisfied that the complainant has established a prima facie case of sexual harassment contrary to section 14A of the Employment Equality Acts.
I am not satisfied that the respondent has rebutted the prima facie case of sexual harassment established by the complainant. I note that Section 14A(2) of the Employment Equality Acts, 1998 and 2004 provides a defence for the respondent in cases of sexual harassment. As Mr. A is the employer of the complainant the defence under this section does not apply.
5.9 I shall now look at the complainant’s allegation of discriminatory treatment in that she contends she was treated differently by Mr. A. when she rejected the sexual harassment. The complainant submitted that she noticed that Mr. A's attitude towards her changed when she complained to her manager and to Mr. A about his treatment of her. In support of this contention she said that she was sent out in the rain to get the paper and the respondent's cigarettes . Mr. A. shouted at her and disciplined her in relation the passport form. Mr. A said that the complainant was employed as a junior office assistant and these duties such as going to the shops and post office were part of her functions. I am satisfied that the complainant has not established a prima facie case of discriminatory treatment because she rejected the sexual harassment. The tasks which she was asked to undertake were part of her duties and requesting her to undertake these duties cannot be construed as harassment or discriminatory treatment contrary to section 14A and her claim under this heading cannot succeed.
6. DECISION OF THE EQUALITY OFFICER.
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant in terms of section 14A of the Employment Equality Acts 1998-2004 and contrary to section 8 of the Acts in relation to her conditions of employment. Having made this finding I now have to consider the redress.
6.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. In considering the amount of compensation I should award, I have taken into account the fact that the sexual harassment was continuous and ongoing since a very early stage in her employment, and created a degrading, humiliating and offensive work environment for the complainant resulting in her suffering from a stress related illness. I also note the complainant had no avenue of complaint given that the sexual harassment was perpetrated by the owner of the company and the manager, who is an in-law of Mr. A., and to whom the complainant complained was powerless get Mr. A. to cease from directing the discriminatory treatment at the complainant. I have also taken into consideration the fact that the complainant was subjected to this treatment at a very young age from the time she commenced the employment when she was only15 years old. The maximum compensation I can award under the Act is 2 years pay which would amount to over €53, 000. Have taken the foregoing matters into consideration, I am of the view that an award in the amount of €45,000 is appropriate.
I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, make the following orders
(i) that the respondent pay the complainant the sum of €45,000 by way of compensation for the distress and effects of the discrimination and sexual harassment. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
(ii) that the respondent pay the complainant interest at the Courts Act rate on the amount awarded for compensation in respect of the period beginning on the 21st August 2007 (the reference date of the claim) and ending on the date of payment.
(iii) that the respondent seeks guidance from the Equality Authority in order to develop a code on the prevention of harassment on all of the nine discriminatory grounds covered by the Employment Equality Acts, which is modelled on the Employment Equality Act, 1998 (Code of Practice) (Harassment) Order, 2002 (S.I. No 78 of 2002). The code should be put in place within 3 months from the date of this decision and the respondent should communicate the policy to all employees and displays it permanently in a prominent position in the office.
______________________________
Marian Duffy
Equality Officer
14th January 2010