THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 196
PARTIES
Ms Pauline Stone
(represented by Mr Conor Power, B.L., instructed by the Equality Authority)
and
I. Moloney & Sons Ltd.
File Reference: EE/2009/200
Date of Issue: 12th October
Table of Contents
Claim 3
Summary of the Complainant's Written Submission 3
Summary of the Respondent's Written Submission 4
Conclusions of the Equality Officer 4
Sexual Harassment 5
Victimisation 12
Discriminatory Dismissal 13
Decision 15
Claim
1.1. The case concerns a claim by Ms Pauline Stone that I. Moloney & Sons Ltd discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment, sexual harassment, and discriminatory dismissal. Ms Stone further claims that the respondent victimised her contrary to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 25 March 2009. A submission was received from the complainant on 15 January 2010. No submission was received from the respondent. On 12 February 2010, 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 14 July 2010. An additional submission was requested from the complainant at the hearing and received on 23 July 2010. The last piece of correspondence relating to the complaint was received on 6 October 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that she was repeatedly sexually harassed by Mr. A, director of the respondent, through offensive and inappropriate physical contact and remarks of a sexual nature contrary to S. 14A of the Acts. The complainant made a detailed statement to An Garda Síochána on the matter which was appended to her submission. A file was sent to the Director of Public Prosecutions, but not prosecution ensued.
2.2. At first, the complainant tried to get Mr A to stop his behaviour. However, the harassment she experienced intensified. She then complained to the shop manager, Mr B., and to the regional manager of the respondent's franchise, Mr. K. Mr K. visited the respondent's premises and called a meeting to attempt and resolve the complaint. It was agreed that Mr A would give the complainant a written apology. However, the letter produced was vague and unsatisfactory from the perspective of the complainant. In addition, the complainant harassment continued and intensified even further after her complaint to the franchise.
2.3. Eventually, the complainant was so distressed by the matter that she felt she had no option but to resign from her employment. She contends that this constitutes discriminatory constructive dismissal.
2.4. With regard to the complainant's complaint of victimisation, the complainants submits that after she complained about Mr A's conduct internally, her working hours were cut from 40 hours per week to 20 hours per week. She contends that this constitutes adverse treatment within the meaning of S. 74(2) of the Acts.
3. Summary of the Respondent's Written Submission
3.1. No submission was received from the respondent.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against, discriminatorily dismissed and sexually harassed on the ground of gender within the meaning of the Acts and whether she was victimised within the meaning of S. 74(2) of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
Sexual Harassment
4.3. In relation to the claim of sexual harassment, I must consider (i) whether the complainant has established on the balance of probability that she was sexually harassed. If I find that the complainant has established that she was sexually harassed, I must then consider (ii) whether the complainant's employer is vicariously liable for the harassment. If I find that the complainant's employer is vicariously liable, I must consider as a defence (iii) whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace. I will also consider the manner in which the respondent dealt with the complainant's complaint of sexual harassment.
4.4. At the hearing of the complaint, the complainant gave extensive oral evidence. I experienced the complainant as a credible witness with a good recall of events. The complainant expressly waived her right to have the Tribunal's decision anonymised.
4.5. The complainant's started her employment in the store in March 2007. Mr B., the store manager, hired her. The store is on the main road in Ballyshannon and consists of a petrol forecourt and a small supermarket. It is a retailer for a well-known franchise. The complainant worked on the DVD and deli counters. Initially, she saw little of Mr A due to the shifts she worked on.
4.6. In October 2007, the complainant was in work at 6:30am, checking DVD's in. Mr A said to her: "You are in fine form for a rub of the relic." The complainant understood this to be an allusion that she should masturbate him. According to the complainant, these remarks continued until the summer of 2008 at a frequency of about twice a week.
4.7. In his evidence, Mr A alternately disputed that he made these remarks and said that they were blown out of proportion. He also said that the "rub of the relic" referred to a miraculous medal that a staff member had brought back from Lourdes, and that he explained the phrase to Ms Stone.
4.8. I do not find Mr A's evidence credible on this point. Apart from the general contradictions it contains, I find that it is generally known that the phrase "rub of the relic" is a colloquial reference to masturbation.
4.9. In terms of inappropriate remarks, the complainant gave further evidence that one morning when her husband dropped her at her workplace, Mr A shouted after him: "I'll look after her for the day", before turning to her and saying: "That's him jealous for the day." On another day, when the complainant came into work early, Mr A remarked: "What's the matter? Where there fleas in the bed?" He also said on occasion: "Did you stop off for a rub of the relic along the way?" Mr A did not offer any defence to this part of the complainant's evidence, and did not deny it. I am therefore satisfied that his repeated remarks to Ms Stone of this nature constitute sexual harassment within the meaning of the Acts.
4.10. The complainant further stated that after Mr A started the abovementioned comments in October 2007, he also stepped behind the complainant while she stood behind the till, and pinched her in the waist with both hands. According to the complainant, this happened three or four times. Again, Mr A did not offer any defence to this part of the complainant's evidence, and did not deny it. I am therefore satisfied that the described acts happened, and that they do constitute sexual harassment within the meaning of the Acts.
4.11. In or around this time, Ms Stone's son, who was also working for Mr A, was packing goods into plastic bags. The clear plastic bags had run out, so Mr S. was using frosted plastic bags. According to the complainant, Mr A used this occasion to ask Mr S. whether his mother was wearing see-through underwear. Mr Stone was about 18 years of age at the time. Again, Mr A did not offer any particular defence to this part of the complainant's evidence, and did not deny the incident. I am satisfied that his behaviour on this occasion does constitute sexual harassment of the complainant within the meaning of the Acts, insofar as it constituted verbal conduct of a sexual nature which had the effect of violating Ms Stone's dignity in front of her son and thus created a degrading and humiliating environment for her. If Mr S. had been joined to the proceedings as a complainant, he might have had a separate valid complaint under the Acts, since it has to be a degrading experience for a young man to be asked a question of this nature about his mother.
4.12. Some time between 26 July and 9 August 2008, the complainant and Mr A went to the cigarette room to fetch cigarettes that were needed to re-stock the vending machine. The cigarettes were stored out of reach for Ms Stone, and she requested that Mr A provide a step ladder. According to Ms Stone, Mr A cupped his hands together and offered to lift her up. When she refused, he brought in a step ladder and she stepped up to reach for the cigarettes. She said that then Mr A put hand into her blouse, squeezed her rib cage and remarked: "You are in fine form for a rub of the relic". Ms Stone climbed down the ladder in haste and caught her foot in a case of wine. She asked Mr A to stop his behaviour, and refused to retrieve the remaining cigarettes. She subsequently told the store manager, Mr B. and a colleague about the incident. According to the complainant, Mr A repeated the suggestion to go back to the cigarette room several times afterwards. Ms Stone refused all of hese requests. Mr B., in direct evidence, confirmed that the complainant spoke to him about the incident and that he noted it in the store's incident book.
4.13. The complainant further stated that on 17 October 2008, after the incident in the cigarette room and after she had asked Mr A to stop his behaviour, Mr A came behind the till where she was working, bent down to reach some plastic bags and, while doing so, grabbed the back of her left knee and squeezed it. Ms Stone froze on the spot, and her hands were shaking. According to Ms Stone, Mr A asked her: "Why are your hands shaking, am I making you nervous?" The complainant replied at the time: "My hands are always shaking" and explained at the hearing that she did not wish to give him the benefit of thinking that his actions had this kind of impact on her. According to the complainant, the store manager asked a staff member to review the CCTV footage of the incident. The CCTV footage was viewed by several staff members, and according to the complainant, one named colleague asked her: "Was [Mr A] being pervy again?"
4.14. According to the complainant, it is not possible to see the leg grab on the available footage. This was confirmed by the direct evidence of Mr B. and also by the video evidence which the respondent introduced to rebut the complainant on this point, which was shown at the hearing. It is inconclusive due to the camera angle, and as such does not constitute either a confirmation or a rebuttal of the complainant's evidence. However, I am satisfied from the complainant's direct evidence on the matter that the described act happened, and that it does constitute sexual harassment within the meaning of the Acts.
4.15. In terms of examining the respondent's vicarious liability pursuant to S. 15(1) of the Acts, I note the specific situation in which the complainant found herself, in that it was one of the Directors of the respondent company, i.e. one of her employers, who perpetrated the sexual harassment on her. The evidence summarised above shows clearly that this took place in the course of her employment. There can therefore be no doubt that the respondent company is liable for Mr A's actions, and accordingly, I turn to the respondent's defence pursuant to S. 14A(2) of the Acts, that it took "such steps as are reasonably practicable ... to prevent the person from harassing or sexually harassing the victim".
4.16. The franchise of which I. Moloney & Sons Ltd is a retailer submitted its employee handbook and sample contract of employment to the Tribunal pursuant a request made under S. 95(1) of the Acts. Both documents may be said to be models of good employment practice. They contain detailed complaints procedures for both general grievances and complaints of harassment, sexual harassment and incidents of bullying. However, it is not part of the franchise agreement that it is mandatory for retailers to adopt these documents in their employment practice. Ms Stone stated at the hearing that she did not receive a contract of employment, was not aware of any grievance procedures and had never signed for the employee handbook. The respondent submitted an unsigned employment contract bearing Ms Stone's name after the hearing; however, Ms Stone instructed her representative that she had never seen this document. This was communicated to the Tribunal by letter.
4.17. Ms Stone was therefore not aware of any complaints procedure. Furthermore, she stated that hearing while Mr A's comments about the "rub of the relic" (see paragraphs 4.6 to 4.8 above) made her feel uncomfortable and nervous around Mr A, she did not make a complaint at the time. She stated that she was concerned about her own and her son's employment with Mr A, as her husband was unemployed. She also stated that since most businesses in Ballyshannon are owned by Mr A, she felt it would be very difficult to secure alternative employment. This has been borne out by the fact that the complainant has not worked since the employment relationship with I. Moloney & Sons came to an end. Finally, she stated that she was afraid of Mr A's temperament, while denying, in cross-examination by the respondent, that she was generally of a nervous disposition. The complainant's evidence on this point is supported by the fact that Mr A had previously been lawfully convicted of assault, and that this was a matter of public knowledge as it was extensively reported on in the Donegal Democrat newspaper. Mr A, in cross-examination, stated without hesitation that he would assault the relevant person again, or another, if his victim displayed the same transgressing behaviour again. From this evidence, I find that Ms Stone's initial reluctance to stand up to Mr A's behaviour to be well founded.
4.18. However, the complainant is clear that when the incident in the cigarette room happened, she did ask Mr A to stop his behaviour. Furthermore, after the later incident in which Mr A grabbed the complainant's knee, Ms Stone contacted a local Garda for advice and was advised to contact both the store manager, Mr B., and a local representative of the franchise, Mr K. This she did on 23 October 2008. Mr K. was also separately informed about the incident by Mr B., who also took a statement about it from Ms Stone.
4.19. A meeting between Ms Stone, a female colleague, Mr B., Mr K. and Mr A was called for the following day, 24 October 2008. The female colleague accompanied the complainant for support. With regard to possible legal representation at the meeting, the complainant stated that it was impossible for her to find a solicitor in Ballyshannon willing to represent her, as every solicitor she approached about the matter cited potential conflicts of interests with Mr A.
4.20. The meeting was announced as a "mediation" meeting, however, at the hearing of the complaint, Mr K., who attended as a witness for the Tribunal, clarified that he is not a trained mediator, and that his main objective at the meeting was to minimise potential reputational damage to the franchise and to prevent the complaint from being discussed in the local media. Mr K. states that he was instructed by his employer to call the meeting. Mr K. confirmed that he also gave a statement to the local Garda when asked to do so.
4.21. With regard to what transpired in the meeting, Mr K. confirmed that the complainant's recall of events was correct, as did Mr B. in his evidence. The complainant's direct evidence on the meeting was as follows:
4.22. Mr A first stated that he could not remember being in the cigarette room. He then said that he had offered to lift her by his hands, and attempted to explain his touch as "steadying" the complainant on the ladder. The complainant noted that health and safety regulations would prescribe to steady the ladder rather than the person standing on it. According to the complainant, Mr K. said that she was misconstruing Mr A's actions, and that "men were from Mars and women were from Venus". The complainant stipulated in the meeting that her employment should not be affected, and demanded a letter of apology. In evidence, the complainant stated that she was willing to settle for this action, as she did not want to embarrass Mr A in the local community, mostly out of consideration for his five children, who were attending local schools.
4.23. It was the complainant's understanding that something would be drawn up by the franchise's legal department, and also that minutes of the meeting would be drawn up, but to her knowledge, nothing ever ensued. The complainant also received no assurances that Mr A's behaviour would stop.
4.24. The promised apology was not forthcoming until the complainant raised the issue again with Mr K. However, the complainant regards the letter which she received on 6 November as not being a proper apology. It reads:
Dear Pauline,
Further to our meeting of 24th October past, I refer to the incidents you spoke about.
As discussed in the meeting, my actions were misconstrued from the original context in which they were intended and this resulted in a situation where you felt uncomfortable. I apologise for any distress that you may have suffered from this misunderstanding which was wholly unintentional. I also undertake to prevent any similar situations arising in the future. I have arranged to have a full HR Audit conducted and will put in place appropriate policies and procedures."
4.25. In response, Mr A stated in his evidence that he only wrote the letter of apology to "keep the [franchise's] brand happy" and that he would not write a letter of apology in a different situation.
4.26. I find that all of these support Ms Stone's contention that she did neither receive a genuine apology, nor any credible assurances that Mr A's behaviour would stop.
4.27. One further incident where a remark with sexual connotations was made arose in December 2008, when the complainant was brought into work by her husband. Mr A was already in the shop. He asked the complainant: "What happened to you this morning?" "Nothing." "Did you stop off along the way for a ... ? You are effing late." The complainant disputed being late, saying it was 6:33am by the till. Mr A insisted it was already 6:40am and threatened her with suspension. For the second time he said to the complainant that she had given him "wild abuse" with her complaint, and shouted and waived his fists at her. This behaviour only stopped when a garda came into the store as a customer. I find that this incident encompasses elements of both the complainant's complaint of sexual harassment, in light of previous remarks directed at the complainant's husband and marital life (see paragraph 4.9 above), and of victimisation (see below).
4.28. From all of the foregoing, I find that the defence in S. 14A(2) of the Acts cannot avail the respondent. The complainant was sexually harassed. She eventually complained about this harassment. The respondent had no policies in place to prevent her harassment, and Mr A's behaviour did not stop until the complainant's employment relationship with the respondent came to an end. I therefore find that the complainant was discriminated against in her terms and conditions of employment, with regard to prolonged sexual harassment by one of the respondent's Directors, pursuant to S. 14A of the Acts.
Victimisation
4.29. In terms of the complainant's complaint of victimisation, she complains of a number of instances of specific negative treatment after the meeting she had with Mr A, Mr K., and Mr B on 24 October 2008.
4.30. After the meeting, Mr A initially kept his distance. One morning, he accidentally dropped the till on the floor. According to the complainant, he said to her: "You pick that f***ing up." Mr A disputes this, saying that he himself picked up the cash. However, I prefer the complainant's evidence in this matter and believe that she was made to pick up the money as described. I am guided in this by Ms Stone's credible descriptions of Mr A's raging moods, and his own comments in cross-examination regarding his previous conviction for assault.
4.31. The complainant stated that on 21 November, after receiving the letter, she had her hours cut. Her son's hours were also cut. She had been working 30 hours per week, and this was cut to 20 hours per week. The complainant was paid per hour on the then minimum wage of €8.65/hour. When she enquired about this, the assistant manager told her that Mr A had ordered that her hours be cut, justifying it by saying that he "got to keep the wages right" and that she had given him "wild abuse" by making her complaint. However, there was no shortage of work in the store: Two more staff members were taken on that week.
4.32. Based on evidence which the respondent submitted after the hearing, I find that Ms Stone's hours were indeed cut to 24.5 for the week of 21 November 2008. However, they were restored to 31 hours the following week and remained at that level until Ms Stone resigned.
4.33. The complainant then took four days of holidays which were due to her. She was not paid for same initially, but received the money into her bank account with her final wage payments on 19 December. While on holidays, she attended her doctor, who placed her on a short sick leave due to an acute stress reaction to the harassment she had been experiencing. Mr A submitted her sick note in evidence and stated that she was not paid for her absence because the company had a policy of not paying sick pay.
4.34. It would appear that confusion arose within the respondent business as to the complainant's absence on holidays, and her absence due to illness and that this contributed to the delay of the payment. However, I find the evidence presented not conclusive enough to find that the complainant has been victimised on this specific aspect of her complaint.
4.35. When the complainant returned from this short absence, the incident described in paragraph 4.27 above arose. Mr A's aggressive and intimidating behaviour on this occasion is directly linked to her complaint. I therefore find that it constitutes victimisation within the meaning of the Acts.
4.36. Overall I find that the complainant has established a prima facie case that Mr A's actions as outlined above, that is, the two aggressive incidents and the reduction of hours, constitute an adverse reaction to her complaint of his sexual harassment of hers, and that this has not been rebutted. I therefore find that the complainant has been victimised within
Dismissal
4.37. Turning to the complainant's complaint of discriminatory dismissal, it is the complainant's contention that her resignation from the respondent's employment constitutes constructive dismissal, since she had to endure prolonged sexual harassment which did not even cease after she made a formal complaint to the respondent's franchise.
4.38. 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.
4.39. 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.
4.40. I am satisfied that the experience of continuing harassment over the course of more than a year, and the continuing requirement to work with her harasser placed considerable stress on the complainant. I am further satisfied that by the time of the complainant's resignation, the respondent was fully aware of her grievances, yet not only persisted with his unlawful conduct, but, as found above, had also started to victimise the complainant. It therefore cannot be said that he addressed her complaint in a meaningful or satisfactory manner, and that therefore his entire conduct towards the complainant must be regarded as so unreasonable that it would have been unfair to expect the complaint to continue to put up with it.
4.41. 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 find accordingly that the respondent discriminatorily dismissed the complainant contrary to S. 8(6) of the Acts. However, from the evidence before me, I find the complainant's dismissal to be more victimisatory than discriminatory in nature, since it is obvious from the events recounted in paragraph 4.27 above, that it was Mr A's increasingly physically aggressive and threatening behaviour that ultimately led the complainant to resign. It is also worth noting that this physically threatening behaviour occurred in conjunction with Mr A's allegations that it was the complainant who was abusing him, rather than the other way around, by lawfully resisting his conduct. It is clear from the evidence that this incident constituted something of a culmination of the victimisation which the complainant had experienced up to that point. For all of these reasons, I am satisfied that the complainant's constructive dismissal from the respondent's employment is properly described as a victimisatory dismissal.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) the respondent did discriminate 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 victimise the complainant contrary to S. 74(2) of the Acts and
(iii) the respondent did victimisatorily dismiss the complainant contrary to S. 8(6) of Acts.
5.2. In terms of making an award, there are two aspects to this claim, namely the complainant's sexual harassment, which constitutes discriminatory treatment, and her victimisation, including her victimisatory dismissal. Consequently the complainant is entitled to two separate awards. S. 82(1)(b) of the Acts states that redress can be awarded for acts of discrimination or victimisation which occurred no earlier than six years before the referral of the case. I interpret this to mean (as has indeed been the practice of the Tribunal), that separate awards can be made for discrimination and victimisation.
5.3. In the circumstances of the above and in accordance with Section 82 of the Acts, I hereby order that the respondent
(i) pay the complainant the sum of €26,988.00 in compensation for the effects of the acts of sexual harassment amounting to discrimination in relation to the complainant's conditions of employment. This sum represents 104 weeks of 30 hours (Ms Stone's average working week) at the then minimum wage of €8.65/hour.
(ii) pay the complainant the sum of €26,988.00 in compensation for her victimisation and subsequent victimisatory dismissal. The basis for the computation of this figure is the same as in (i) above.
(iv) pursuant to S. 82(5)(b) of the Acts, pay the complainant interest at the Courts Act rate in respect of the amounts at (i), and (ii) above in respect of the period beginning on 25 March 2009 (being the date of the reference of the claim) and ending on the date of payment.
(v) These awards are made in compensation for the distress suffered by the complainant in relation to the respondent's unlawful conduct and are not in the nature of pay and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
12 October 2010