The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-237
PARTIES
A Shop Manager
(Represented by Brendan Archbold)
AND
A Retail Outlet
(Represented by Peninsular Business Services (Ireland) Limited)
File reference: EE/2009/261
Date of issue: 12 December 2011
HEADNOTES: Employment Equality Acts - Gender - Harassment & sexual harassment
1. DISPUTE
1.1. This dispute concerns a claim by A Shop Manager that she was discriminated against by A Retail Outlet on the grounds of gender contrary to section 6 of the Employment Equality Acts that she was harassed and sexually harassed contrary to section 14A of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 28 April 2009 under the Employment Equality Acts. On 23 September 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both parties. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 9 November 2011.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant submits that she started working for the respondent on 7 January 2008 as the Manager of a shop in Dublin.
2.2. She submits that the Warehouse Manager (Mr A) made deliveries to the shop on most Fridays between 6pm and 9pm and sexually harassed her by making repeated comments of a sexual nature. The first comment was made on 7 March 2008. On numerous occasions he suggested that certain garments would suit her. On one occasion he held up a particular skirt and made a comment about her legs and on another occasion he held up a top and made a comment about her cleavage.
2.3. The complainant submits that she ignored the comments and walked away from Mr A whenever possible but the comments continued. Sometimes the complainant asked her boyfriend, who worked as a Security Supervisor in the shopping centre, to stand near the shop entrance but Mr A responded by saying that she should be with an older man. She also tried to avoid him by going on a break when he was making deliveries but she was told by the Area Manager (Ms B) that she should be in the store for all the time between 6pm and 9pm.
2.4. The complainant submits that in August or September 2008 a shop assistant (Ms C) came back from the stockroom and said that she would not be going out there anymore when Mr A was there. Another shop assistant (Ms D) said that Mr A was staring at her legs.
2.5. The complainant submits that on 29 October 2008 she reported the harassment to the Area Manager (Ms B) at a meeting in the back office of the store. Ms B said that Mr A was well known for his behaviour but "its best not to create any waves". On 31 October 2008 the owner (Mr E) visited the store and the complainant approached him and asked if Ms B had spoken to him. He said she hadn't, so the complainant went through the details of Mr A's behaviour. Mr E responded that it "doesn't sound like Mr A, he's a senior member of the company and can do and say as he pleases"
2.6. The following week Ms B spoke to the complainant and suggested she "keep your head down". However, the sexual harassment stopped immediately and was replaced by harassment of the complainant and some of her staff. Mr A threw stock into a trolley in an aggressive manner. He shouted at the complainant and other members of the sales staff in an aggressive tone. He also made false reports to senior management about the store which resulted in Ms B making complaints to the complainant.
2.7. The complainant submits that on 4 March 2009 she left a disciplinary hearing and went into another store and was followed by Mr E who stared at the complainant for 1 to 2 minutes. She submits that the harassment continued up to that time she was dismissed on 11 March 2009.
2.8. The complainant submits that Mr A sexually harassed and harassed her and that senior management failed to deal with the issue. She also submits that respondent has no policies or procedures to deal with such complaints.
3. RESPONDENT'S SUBMISSION
3.1. The respondent confirms that on 7 January 2008 the complainant started working for them as a manager in a Dublin store. Following disciplinary hearings on 27 January and 4 March 2009 she was dismissed on 11 March 2009. There was an appeal hearing on 22 April 2009.
3.2. The respondent submits that the allegations of sexual harassment were not made until after the appeal hearing, apart from one complaint which was fully investigated with the alleged harasser and they found no evidence to support the complainant's allegations. The respondent also submits that the comments attributed to Ms A, Ms B and Mr E are either completely untrue or taken out of context.
3.3. The respondent submits that Mr A was a key member of the investigation team into matters that lead to the complainant's dismissal. Although he was not involved in the disciplinary hearings The respondent submits that the complainant fabricated these allegations of sexual harassment and harassment as a result of the disciplinary action taken against her. The disciplinary proceedings centred on the competency of the complainant and the investigation showed her true nature. The respondent submits that it came to light during the investigation that members of the complainant's staff felt bullied by her and she told lies about missing money. The respondent submits that these incidents place serious doubts on the complainant's integrity.
3.4. The respondent submits that they have a detailed Staff handbook in place which was available to the complainant. The handbook includes disciplinary rules and procedures, a detailed grievance procedure, an equal opportunities policy, and a detailed harassment policy.
4. FINDINGS & CONCLUSIONS
4.1. The complainant's initial claim form was received by the Equality Tribunal on 28 April 2009 and was made in relation to sexual harassment. In her submission received on 30 October 2009 the complainant added the claim in relation to harassment and gave details of incidents to support this claim. These incidents had not been referred to in her initial claim. The respondent has submitted that I cannot consider the claim of harassment as they were not included in the original claim and are therefore essentially a new claim which would be outside the time limits. In the recent decision of the High Court in County Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J). Judge McGovern stated:
"6.2 I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
6.3 Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."
4.2. It is clear from this judgement that in advancing a claim under the Acts a complainant is not limited solely to what is contained in the originating form. However, the complainant has added the claim of harassment which I have to treat as a new claim made on the date of it's submission, 30 October 2009. The last possible date of discriminatory act was 22 April 2009 when the complainant's appeal of her dismissal was heard and decided. This is outside the six months time limits for making a claim under section 77 (5) of the Acts. The complainant's representative agreed with the respondent and withdrew the claim of harassment.
4.3. I have to decide if the complainant suffered sexual harassment on the grounds of gender. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.4. At the hearing it was agreed by both parties that Mr A made deliveries on about three out of four Fridays. Mr A described how he loaded the goods from his car into a trolley, pushed the trolley through the shop, dropped the bags in the store room at the back of the shop and left. He said there was no need for the complainant, or any other member of staff, to be in the store room when he made the delivery. The complainant contended that in her position as Manager of the shop she took the delivery of the goods and was therefore in the back room with Mr A, usually on her own.
4.5. At the hearing the complainant confirmed the allegations she had made in her written submission; that Mr A had made a number of comments of a sexual nature during these deliveries.
4.6. The complainant contends that the respondent had no policies or procedures in place telling her how to make a complaint The respondent contends they have a staff handbook which include policies and procedures on 'Grievance procedure' and 'Personal harassment policy and procedure'. One current member of staff and one former member of staff, who were both working in the store at the same time as the complainant, gave evidence that the Staff Handbook was available in the kitchen. On balance I accept the respondent's evidence and conclude that they did have the appropriate policies and procedures in place. Therefore, there was nothing to stop the complainant from making a complaint.
4.7. The complainant did make a complaint to Ms B and Mr E but contends that they did nothing. The respondent contends that the complainant made a verbal complaint about one comment made by Mr A. The complainant says she made this complaint to Ms B in the store room whilst Ms B says this conversation took place in the shop. This complaint was made at the end of October 2008 and Mr E gave evidence that he and two other Directors interviewed Mr A about the allegation but decided there was no case to answer. At the hearing Mr E agreed that this finding had not been passed to the complainant. The respondent contends they were not aware of any other incident. I conclude, from the evidence provided, that the complainant made a complaint about one incident only and the respondent was unaware of any other incidents. The respondent investigated the one reported incident and it is unfortunate that they did pass their findings to the complainant.
4.8. The alleged comments were made in the store room out of earshot of any other members of staff. Mr A gave evidence that he just left the delivery and no one from the shop had to be present. The complainant's submission did not describe where the comments were made and at the hearing she contended that she needed to be present to take delivery of the goods. However, on balance I accept the evidence of the respondent that it was not necessary for the complainant, or any other member of staff, to be present when the deliveries were made. Therefore it is difficult to understand why the complainant needed to have any contact with Mr A. I conclude that this casts a significant issue of credibility on the complainant.
4.9. I note the respondent's contention that Mr A's role in a disciplinary investigation is what motivated the allegations of sexual harassment. The respondent had concerns about the complainant's performance and asked Mr A to observe what was going on in the shop when he made his deliveries. He passed on his observations to Ms B and some of these observations were then passed on to the complainant by Ms B. However, there is no direct evidence to support the alleged link between the complainant's allegations and the disciplinary investigation.
4.10. To address the complainant's credibility the respondent provided two witnesses at the hearing. They gave evidence of conversations with the complainant. However, I do not find their evidence relevant to the claim I am investigating.
4.11. There are no witnesses to the alleged incidents and the evidence provided by the complainant and the alleged perpetrator, Mr A, is contradictory. I therefore have to assess the credibility of the evidence. I do not find the evidence presented by the complainant to be credible and, on balance, I accept the credibility of the evidence presented by Mr A. I therefore conclude that the complainant has failed to establish a prima facie of sexual harassment.
4. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the complainant has failed to establish a prima facie case of sexual harassment on the gender ground and her complaint fails.
____________________
Hugh Lonsdale
Equality Officer
12 December 2011