EQUALITY OFFICER DECISION NO: DEC-E/2011/267
PARTIES
O'SULLIVAN
(REPRESENTED BY MS. CLÍONA KIMBER BL
INSTRUCTED BY VINCENT & BEATTY - SOLICITORS)
AND
VOLKSWAGEN BANK GMBH IRELAND
(REPRESENTED BY MS. IMOGEN MCGRATH BL
INSTRUCTED BY MCCANN FITZGERALD - SOLICITORS)
File No: EE/2009/054
Date of issue: 30 December, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8, 14A & 74 - gender - age - sexual harassment - respondent avail of statutory defence - whether dismissal or not - resignation - victimisation
1. DISPUTE
This dispute involves a claim by Ms. Donna O'Sullivan (hereafter called "the complainant") that she was (i) discriminated against by Volkswagen Bank GmbH Ireland (hereafter called "the respondent") on grounds of gender and/or age, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts in relation to her conditions of employment, (ii) harassed by the respondent on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 14A of those Acts, (iii) sexually harassed by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 14A of those Acts, (iv) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender and/or age, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts and (v) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The respondent rejects the complainant's assertions.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as an Accounts Manager in January, 2008. She states that from early in her employment she was subjected to inappropriate gestures, comments and behaviour by her immediate Line Manager, Mr. W, which she found to be offensive and which she submits amounts to (a) sexual harassment and (b) harassment of her on grounds of age contrary to the Acts. She adds that she reported this matter to Mr. T (who is a peer of Mr. W) in April, 2008 but Mr. W's behaviour did not improve. She adds that Mr. W subsequently pursued a campaign of singling her out and subjected her to fits of bad temper, foul language and treatment which undermined her in front of colleagues. She submits this behaviour constitutes victimisation of her contrary to the Acts. The complainant wrote to Mr. B, the respondent's General Manager on 25 August, 2008 complaining about Mr. W's treatment of her and tendering her resignation with immediate effect. The complainant states that she subsequently met with Mr. B and was of the view that he was looking into her complaint and spoke in terms that led her to believe they were exploring a possibility to allow her to return to work. She states that on 4 September, 2008 she received a letter dated 28 August, 2008 from Mr. B accepting her resignation. The complainant contends that this treatment constitutes discriminatory dismissal of her on grounds of age and/or gender contrary to the Acts. The respondent rejects the complainant's assertions in their entirety and without prejudice to this submits that the complainant resigned from her employment with it.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 30 January, 2009. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 17 June, 2011- the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 21 September, 2011. At the Hearing Counsel for the complainant confirmed that the discriminatory treatment element of the complaint was withdrawn. The parties also agreed based on the respondent's investigation of the complainant's complaint under its Internal Dignity at Work Policy, which had found several incidents complained of to amount to sexual harassment of the complainant under that Policy, that a prima facie case of sexual harassment had been established and that the only issue which the Tribunal had to examine was whether or not the respondent could avail of the defence available at section 14A(2) of the Acts in respect of that element of the complaint. Finally, at the Hearing the complainant stated that she wished to forego her anonymity in respect of these proceedings - contrary to the established practice of the Tribunal in complaints involving sexual harassment - and on that basis the parties are identified. A number of issues arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded in early November, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she commenced employment with the respondent as an Accounts Manager on 23 January, 2008. She adds that from the early part of her employment her Line Manager (Mr. W) began to treat her in a manner which she found inappropriate - the first of these incidents occurred in February, 2008 when he flicked her pony tail - and she gave details of other incidents (most of which entail comments by Mr. W) which occurred during her employment. It is submitted on her behalf that Mr. W's behaviour amounts to (i) sexual harassment of her and (ii) harassment of her on grounds of age contrary to the Acts. The complainant states, as regards this latter contention that Mr. W did not behave in the same manner towards any of her older colleagues - male or female. She adds that at the time she was in her late twenties and Mr. W was some years older than her. She is unable to point to any specific comments which Mr. W made in support of this aspect of her complaint, but she felt his behaviour towards her was different.
3.2 The complainant states that at the outset of her employment with the respondent she received a copy of its Policy on Dignity at Work (which covered harassment and sexual harassment) as well as its Grievance Procedure, but denies that she was given a copy of the respondent's Staff Handbook. She states that she spoke with Mr. T, who was an Operations Manager in the respondent and a peer of Mr. W's, at a work related Team Building Meeting in Druid's Glen in April, 2008 and made Mr. T aware of what was happening and that she was afraid of Mr. W. The complainant adds that she did not request Mr. T to pass this information on to anyone but states that he told her he would revert to her but this never happened. In the course of the Hearing the complainant stated she thought that Mr. T might discreetly speak with Mr. W but was unable to say if this happened. The complainant adds that she did not want to go direct to Mr. B about the matter as she felt that Mr. W was disrespectful of him and would not respect the formal policy. She states that she first raised the matter formally on 25 August, 2008 in her letter of resignation. She adds that she was extremely fearful of Mr. W and believed he could terminate her employment at will because she was still on probation. Consequently, she never told him his behaviour was inappropriate.
3.3 The complainant states that on 4 September, 2008 Mr. B handed her a letter (dated 28 August, 2008) which, inter alia, notes that she has "not raised a formal grievance with regard to your resignation. However, with your consent an investigation will be taking place with regard to the points you have raised during our conversations...". The complainant states that she responded to this letter on 8 September, 2008 in which she expressed surprise at the reference to raising a formal grievance in light of her letter of 25 August, 2008 and her subsequent discussions with Mr. B. She adds however, that she formally invoked the respondent's Dignity at Work Policy by letter dated 25 September, 2008. The complainant states that although she was aware of the existence of the Policy she received no further details on it at her induction training and was unaware of whom the designated Contact Personnel referred to in the Policy were.
3.4 Counsel for the complainant refers to the Labour Court Determination in A Hotel v A Worker which set out what obligations an employer has in order to avail of the defence at section 14A(2) of the Acts - stating the Court held that the mere existence of a Policy was not enough to escape liability and that an employer had to take such steps as were reasonably practicable to prevent harassment in the first place and then deal with any complaints of harassment in a prompt and appropriate fashion. Counsel also submits that the respondent's Policy was deficient in terms of what was contemplated in the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order, 2002 and in particular Paragraph 5 of that Code. It is further submitted that the respondent adduced no evidence to show that the relevant Managers within the organisation had received training to enable them (i) be aware that sexual harassment is unlawful, (ii) recognise sexual harassment and its manifestations and (iii) how to deal with allegations of sexual harassment when brought to their attention. Counsel also made reference to Mr. B's evidence at the Hearing where he stated that (a) the respondent was in a start-up phase and there were competing priorities and (b) the HR person was only part-time and was very busy with recruitment. In addition, Counsel notes Mr. B's acknowledgement at the Hearing that he was not familiar with Irish employment equality legislation in terms of sexual harassment at the time and his confirmation that the training he received on the matter occurred after the complainant had left the respondent's employment. In summary therefore it is submitted on behalf of the complainant that the respondent is not entitled to avail of the defence available at section 14A(2) of the Acts.
3.5 The complainant states that after a particularly upsetting incident with Mr. W on 22 August, 2008 she decided, after discussing matters with her family, that she had enough and she hand delivered two letters to the respondent on 25 August, 2008 - one addressed to Mr. W and the other to Mr. B - in which she expressed her concern about her treatment at the hands of Mr. W, providing some details of several alleged incidents - and informed both that she had no other option but to resign with immediate effect. She adds that Mr. B phoned her later that afternoon and a meeting was arranged for the following day. The complainant states that she met with Mr. B the following day and provided him with more specific details of her allegations and outlined the reasons why she had resigned. She adds that during this meeting Mr. B offered to redeploy her within the organisation working to another Manager but no specific role was suggested. The complainant states that she cannot recall if a cooling of period of a few days to allow her consider her position was mentioned but she rejects the respondent's assertion that a different role was discussed. In the course of the Hearing the complainant accepted that at this meeting she told Mr. B she would not return to work if Mr. W remained there and she had to meet him face to face, adding that she had expected the respondent to suspend him pending investigation of the matter. The complainant states that at the end of the meeting her understanding was that Mr. B would examine the options available to him and revert to her.
3.6 The complainant states that a number of texts arose between her and Mr. B the next morning in the course of which, inter alia, Mr. B asked her if all issues had been covered the previous day and she replied that the discriminatory aspects of her complaint had not been dealt with. The complainant states that in response to a text, which she states was received by her at 11:49 am, she contacted Mr. B and in the course of this conversation further details of the discriminatory aspects of her complaint were discussed and they agreed to meet again to discuss the matter. The complainant adds that the next she heard from a colleague was that her resignation had been announced in the course of an e-mail issued to all staff by Mr. W at 12:17 that day. The complainant states that she was totally shocked at this outcome. The complainant emphatically rejects the respondent's assertion that Mr. B read the contents of any e-mail to her which was to issue about her resignation; although she accepted that they discussed the possibility of issuing an e-mail covering her unexplained absence. It is submitted on behalf of the complainant that the respondent acted with inexplicable haste in issuing the e-mail announcing her resignation and that in circumstances where the parties had been discussing some resolution of the issues and the complainant believed that her resignation was "on hold", the only credible explanation is that the respondent unilaterally dismissed the complainant's employment with it. It is further submitted that given the fractured working relationship that had emerged between the complainant and Mr. W it is unlikely she would have agreed to him issuing any e-mail about her. The complainant states that she met with Mr. B on 4 September, 2008 when she set out fuller details of the alleged incidents comprising her complaint against Mr. W and he (Mr. B) handed her a letter (dated 28 August, 2008) which, inter alia, acknowledged her resignation with effect from 29 August, 2008.
3.7 The complainant accepts that she issued the letter of resignation on 25 August, 2008 but states that she did so without legal advice. The complainant seeks to rely on the Labour Court Determination in Millett v Shinkwin as authority for the proposition that it is possible for a distressed employee, following a robust dressing down from her employer, to subsequently validly revoke a resignation where "special circumstances" arise. It is submitted on behalf of the complainant that in the instant case she had been subjected to a particularly distressful incident of harassment where she had confronted Mr. W, without success, and felt hopeless. It is further submitted that copying her letter of resignation to the General Manager (Mr. B) is a clear sign or "cry for help", that she hoped for some outcome from her letter of resignation and that as a result of the meeting on 26 August, 2008 and the fact that a further meeting was scheduled, it was clear the complainant hoped for some solution which would enable her remain in employment. In the course of the Hearing the complainant stated that she never indicated to the respondent at any time subsequent to her letter of 25 August, 2008 that she wished to revoke her resignation, adding that as her resignation had been announced to colleagues by e-mail on 27 August, 2008 she saw no point in seeking to revoke the contents of her letter of 25 August, 2008 after that. Counsel for the complainant submits that in all of the circumstances outlined in this and the preceding two paragraphs it is clear that the respondent terminated the complainant's employment with it and moreover that it did so in a manner which amounts to discrimination on grounds of gender and/or age contrary to the Employment Equality Acts, 1998-2008.
3.8 In the alternative to the above, it is submitted on behalf of the complainant that the respondent's treatment of her amounts to a constructive discriminatory dismissal on grounds of gender and/or age contrary to the Acts. The complainant again seeks to rely on the Labour Court Determination in Millett v Shinkwin in this regard. It is submitted that the conduct of the employer was such that it was reasonable for the complainant to tender her resignation. Counsel for the complainant submits that the complainant is entitled to a workplace free from harassment and victimisation. She states that the complainant was being harassed and victimised by Mr. W and did not know where to turn. It is submitted that the Grievance Policy was inadequate, that her attempts to discuss the problem with another Senior Manager had failed, that she feared for her job and felt unable to go over Mr. W's head. Counsel notes the following extract from the Millet case as follows -
The facts of the case, as found by the Court, indicate that the respondent conducted himself in relation to the complainant in a manner which caused her a significant level of distress and brought her to the reasonable belief that she could not continue in that environment without endangering her emotional and physical wellbeing. The Court is satisfied that these circumstances provided reasonable grounds upon which the complainant would have been entitled to terminate the contract without given prior notice to the employer. Consequently, the circumstances in which the complainant's employment came to an end could properly be classified as a dismissal within the meaning of section 2(1) of the Act.".
Counsel submits that the complainant's circumstances in the instant case are very similar to those outlined above and accordingly her resignation amounts to a dismissal in terms of section 2 of the Employment Equality Acts, 1998-2008.
3.9 The complainant seeks to rely of section 74(2)(f) of the Acts in terms of her allegation of victimisation. She states that the Report of the Internal Investigation by the respondent into her complaint not only found certain incidents to constitute harassment of her but that the Report found several of the incidents to constitute bullying contrary to the respondent's Policy. The complainant refers in particular to an incident involving lifting of a heavy flipchart from one room to another for a presentation and Mr. W prevented a male colleague from helping her carry the flipchart, thus insisting that the complainant lift it herself. She adds that no one else was singled out for such treatment and that Mr. W's treatment of her arose solely because she had refused his invitation to go out and had also commenced not engaging with him in a social setting as a result of him harassing her. Counsel for the complainant submits that this amounts to victimisation of the complainant contrary to the Acts in circumstances where the complainant sought to assert her right have a workplace free from harassment - an act that is unlawful under the statute - and further submits that section 15(3) of the Acts fixes liability for this behaviour on the respondent.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions that she was harassed on grounds of age contrary to the Acts. It accepts, having regard to the investigation conducted by it in accordance with its Internal Dignity at Work Policy, that a prima facie claim of sexual harassment has been established by the complainant and therefore the only issue for consideration by the Tribunal on this element of the complaint is whether or not the respondent is entitled to avail of the defence at section 14A(2) of the Employment Equality Acts, 1998-2008. The respondent submits that it is so entitled, arguing that at all times it had in place a robust Dignity at Work Policy and that when the complainant invoked the Policy it investigated her complaint in a prompt and thorough manner. Finally, the respondent rejects the complainant's assertion that it dismissed her in terms of section 2 of the Acts, arguing that she resigned from her employment of her own volition.
4.2 The respondent states that the first occasion it became aware the complainant had issues with Mr. W's behaviour toward her was when Mr. B received her letter of resignation on 25 August, 2008. The respondent (Mr. B) states that on receipt of this letter he contacted the complainant and it was arranged that they meet the next day to discuss the matter. The respondent (Mr. B) adds that in the course of this meeting he suggested the complainant might report to a different Manager and this option was discussed to some degree. He adds that the option of a different role was also advanced but this was not discussed to a huge degree. He further states that he suggested that the complainant take some time out to consider her position and let things settle down and that he mentioned this option about three times during the conversation. Mr. B adds that the complainant was adamant she wanted to resign in circumstances where she could not be assured she would have to engage with Mr. W at work. Mr. B states that he informed the complainant he could not offer any such assurances and adds that at the end of this meeting he was of the view that the complainant wished to resign.
4.3 The respondent (Mr. B) states that a number of texts flowed between him and the complainant on the following morning and it became clear that the complainant had further issues of a discriminatory nature which she wished to raise. Mr. B states that during the course of a telephone conversation with the complainant during the morning of 27 August, 2008 the issue of her resignation arose and she informed him that she could not ignore colleagues any further and wished to know when a communication would issue to staff advising of her departure from the organisation. The respondent (Mr. B) adds he informed the complainant that an e-mail would issue later in the day and read her the proposed content of same and the complainant did not object. The respondent states that the e-mail issued from Mr. W later that morning, adding that had he (Mr. B) issued it staff would have viewed it as strange. Mr. B rejects the complainant's assertion that the respondent acted with undue haste and that the e-mail had been pre-prepared, although he was unable to offer any explanation for the short period of time between the phone call with the complainant and the issue of the e-mail. The respondent adds that the complainant e-mailed Mr. B the following day advising she did not consider it necessary to meet to discuss the discriminatory aspects of her complaint as previously arranged and these matters were explored subsequently during the meeting of 4 September, 2008.
4.4 The respondent states that Mr. B wrote to the complainant on 28 August, 2008 accepting her resignation. It states that the letter also noted the complainant had not raised a formal grievance and that with her consent, an investigation of the points discussed between her and Mr. B would follow. The respondent (Mr. B) adds that he met with the complainant on 4 September, 2008 when she furnished more fulsome details of the alleged incidents comprising her complaint. The respondent adds that the complainant replied on 8 September, 2008. The respondent replied to this letter on 10 September, 2008 and the complainant formally invoked the Internal Dignity at Work Policy by letter dated 25 September, 2008. The respondent (Mr. B) states that Ms. M (the respondent's HR Manager) immediately commenced her investigation of the complaint and interviewed the complainant on 2 October, 2008. The respondent adds that statements were also taken from Mr. W and six witnesses. Final responses on all of the material were received from the complainant and Mr. W by 5 February, 2009 and the Final Report on the matter issued to the parties on 5 March, 2009. It states that given the volume of material involved, the fact that Ms. M only worked part-time and the respondent was in the process of setting up, the investigation process took longer than might be anticipated. The respondent states that the investigation upheld several of the complainant's allegations and as a result Mr. W was subjected to the respondent's Disciplinary Procedure and received a significant sanction.
4.5 The respondent (Mr. T) states that he knew the complainant from a previous employment. He adds that he was therefore not surprised when the complainant spoke with him about her working relation with Mr. W at the Team Building Meeting in Druid's Glen in April, 2008. Mr. T states that got the feeling the complainant was seeking some guidance and assistance from him with some issues she had with Mr. W and he (Mr. T) suggested that she speak with Mr. W about her concerns, although he believed the complainant had some difficulty with that suggestion. Mr. T states that the complainant never asked him to escalate the issue - raise it with Mr. W or Mr. B on her behalf - and it was not his understanding that was the outcome of the conversation. He adds that if such a request was made clear by the complainant he would have done so. Mr. T states that he never informed the complainant he would revert to her.
4.6 Counsel for the respondent submits that it is entitled to avail of the defence at section 14A(2) of the Acts as it took such "steps as reasonably practicable" in terms of that provision. She states that at all relevant times the respondent had a Dignity in Work Policy in existence which the complainant was fully aware of from the outset of her employment. Counsel adds that the Policy was fully accessible to all employees and was effectively disseminated and submits that the Policy fully complies with the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order, 2002 in that regard. It is further submitted on behalf of the respondent that the first occasion it was made aware that the complainant had any issues with Mr. W was when she handed in her letter of resignation on 25 August, 2008. It submits that in the circumstances the discussion between the complainant and Mr. T at the Druid's Glen gathering in April, 2008 could not be regarded as the complainant informing the respondent of her concerns or invoking the Policy at any level. Counsel for the respondent submits that whilst the identities of Designated Contact Persons may not have been included in the Policy it was always open for the complainant to approach Mr. B about her concerns and she decided not to do so on the basis of her view that "management always sides with management" and that she felt that Mr. W would not respect the process.
4.7 It is submitted on behalf of the respondent that once the matter was formally brought to its attention it dealt with the issue promptly. Counsel states that a thorough investigation was conducted which upheld several of her allegations and that Mr. W was subjected to the respondent's Disciplinary Procedure and received a significant sanction for his behaviour. In summary, therefore, Counsel submits that the respondent took such steps as are reasonably practicable to avail of the defence at section 14A(2). Its further submits that the complainant has failed to establish a prima facie case of harassment on grounds of age contrary to the Acts.
4.8 The respondent states that on receipt of the complainant's letter of resignation Mr. B took immediate steps to engage with the complainant to see what could be done to persuade her to remain and in that regard met with the complainant on 26 August, 2008. The respondent's (Mr. B) version of what occurred at this meeting is set out at paragraph 4.2 above. At the Hearing Mr. B stated that at the outset of this meeting he had hoped the complainant would remain at work but this view was gone by the end of same and he was of the opinion that she wanted to resign. He added that this view was based on the complainant's comment that as long as the role involved working in an office with Mr. W she would not contemplate changing her mind. Mr. B added that he was unable to give such an undertaking and considered the option of suspending Mr. W for a period to be unreasonable. The respondent (Mr. B) states that a number of texts and a telephone conversation between him and the complainant occurred the next morning. He adds that the issue of the complainant's resignation arose in the course of this telephone conversation - she was not taking phone calls from colleagues and could not continue to do so - and wanted to know if and when staff would be advised of her leaving the employment. Mr. B states that he read the contents of the proposed e-mail to her and she raised no objections to same. In the course of the Hearing Mr. B stated that at no time during the meeting of 26 August, 2008, or at any other occasion subsequent to that did the complainant inform him, at any level, that she wished to withdraw her resignation. He adds that indeed the opposite was the case - she continuously reinforced her position.
4.9 It is submitted on behalf of the respondent that the complainant was not dismissed in terms of section 2 of the Employment Equality Acts, 1998-2008 but instead resigned from her position of her own volition. Counsel for the respondent argues that the complainant's reliance on Millett v Shinkwin is misplaced. Counsel acknowledges that this Determination is authority for the proposition that an employee can withdraw a decision to resign from employment in "special circumstances" and within a reasonable time but argues that manifestly contrary to what occurred in Millet the complaint in the instant case never, even in the most opaque terms, withdrew her resignation and indeed she reinforced her decision to terminate her employment at the meeting on 26 August, 2008 - a meeting which was scheduled with a view to seeing if she could be persuaded to remain in employment. Counsel further submits that the complainant was concerned about her reputation in the eyes of her colleagues and in circumstances where she was not answering calls from them she was anxious to have her resignation communicated to them on 27 August, 2008. Counsel adds that this is what the respondent did in its e-mail of that date bearing in mind that it had to be fair to Mr. W also as all it had at this stage were basic allegations. Counsel for the respondent also rejects the assertion that the complainant was constructively discriminatorily dismissed contrary to the Acts. In this regard she seeks to rely on the Equality Officer's Decision in Ms. W v A Hotel where the complainant refused offers of transfer to alternative rosters so as to alleviate contact with an alleged harasser and instead resigned claiming constructive dismissal and the Equality Officer found that her actions in the circumstances were not reasonable. Counsel states that the complainant herself accepts that she was offered alternatives to resigning by Mr. B at their meeting on 26 August, 2008 and further notes that the complainant was unwilling to reconsider her position so long as she had to work in the same office as Mr. W. It is submitted on behalf of the respondent that the complainant's actions in this regard are unreasonable and fatal to her claim of constructive discriminatory dismissal. In conclusion, Counsel submits that the complainant has failed to establish a prima facie case that (i) the respondent unilaterally decided to terminate her employment in circumstances amounting to discrimination and/or (ii) the behaviour of the respondent was such as to enable her reach the conclusion she was entitled to resign on the basis of her gender and/or age.
4.10 The respondent submits that the complainant's reliance on section 74(2)(f) of the Employment Equality Acts, 1998-2008 is misconceived. It adds that victimisation in terms of that provision of the Acts can only arise where there is a nexus between the behaviour complained of and the complainant having opposed by lawful means anything that was unlawful in terms of the Acts. The respondent states that the first occasion on which the complainant made any reference to the behaviour of Mr. W was in her letter of resignation on 25 August, 2008. It adds that all of the alleged treatment of by Mr. W occurred prior to that date - during her period of employment. It states that during this period that complainant made no complaint of discrimination to the respondent nor could she be said to have exercised her rights under section 74(2)(f) of the Acts during this period. It notes that the complainant made particular reference at the Hearing to an incident involving carrying a flipchart as an example of the adverse treatment she was subjected to by Mr. W and the respondent submits that such behaviour could not properly be categorised as victimisation in the circumstances. Counsel for the respondent submits that the complainant has failed to discharge the initial probative burden required of her and therefore this element of her complaint must fail.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the respondent can avail of the defence available to it at section 14A(2) of the Acts as regard the incidents which were found to amount to sexual harassment in terms of the Acts on completion of the investigation conducted by the respondent in accordance with its Internal Dignity at Work Policy which commenced in October, 2008, (ii) whether or not the respondent harassed the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 14A of those Acts, (iii) whether or not the complainant was dismissed by the respondent in circumstances amounting to discrimination on grounds of gender and/or age, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts and (iv) whether or not the complainant was victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 The first issue I must examine is whether or not the respondent can avail of the defence available at section 14A(2) of the Acts in terms of those incidents which were found to be sexual harassment of the complainant on conclusion of Ms. M's investigation under the respondent's Internal Dignity at Work Policy. Section 14A(2) of the Acts provides that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent sexual harassment from occurring in the first place and in circumstances where such harassment has occurred that it took action to reverse its effect. The Labour Court has previously held that in order for an employer to avail of the first component of this defence it must 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 staff. In the course of the Hearing the complainant confirmed that she was aware of the existence of the respondent's Dignity at Work Policy from the outset of her employment with it. On balance, I am satisfied that other employees were similarly aware of the Policy and therefore I find that the Policy was effectively communicated to staff. As the complainant has suggested that the Policy is deficient and does not comply with the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order, 2002 I feel I must address that contention. The Code of Practice is intended to give practical guidance to employers and employees, as well as their respective representatives, on what is meant by sexual harassment in the workplace and how it may be prevented and does not impose any legal obligations in itself nor is it an authoritative statement of the law on the issue. In the circumstances it is a matter, in the first instance, for this Tribunal and the Labour Court on appeal, to decide what weight to attach to any departure from the Code. I have examined the respondent's Dignity at Work Policy and whilst it is not on all fours with the Code I am of the view that any shortcomings are not significant.
5.3 In the Determinations mentioned in the previous paragraph the Labour Court stated that in addition to the existence and effective communication of a sexual harassment policy in order to avail of the statutory defence, an employer should ensure that Management Personnel should be trained to deal with incidents of harassment and to recognise its manifestations. In the instant case the respondent had not done so. In the course of the Hearing both Mr. B and Mr. T confirmed that they had completed appropriate training in the matter but only after the complainant had ceased employment with the respondent. Consequently, the respondent cannot comply with this element of the defence.
5.4 The second element of the defence at section 14(A)(2) is where harassment has occurred that the employer took action to reverse its effect. This involves an evaluation of what action the respondent took once it became aware that an employee was making a complaint of harassment under the Acts (or Policy) and how promptly it took those actions. There is dispute between the parties as to when the respondent was aware the complainant notified it that she believed she was being subjected to sexual harassment by Mr. W. The complainant submits that this occurred when she spoke with Mr. T at the event in Druid's Glen in April, 2008. The respondent submits that the earliest it became aware there were issues was 25 August, 2008. As the reasonableness of the respondent's actions must be assessed in terms of when it had knowledge of the complaint I must decide which, if either, was the relevant date as a third date may be appropriate - 4 September, 2008 when the full details of the allegations were recounted to Mr. B by the complainant.
5.5 It is common case that the complainant did not ask Mr. T to pass on her concerns following their discussion at Druid's Glen and it was Mr. T's evidence that it was not his understanding he was to pursue the matter further. The complainant states that he undertook to revert to her. However, I cannot see why and for what reason Mr. T would agree to revert to her in the circumstances. I also note the contents of Mr. T's statement to Mr. M in the course of her investigation (which was opened to the Tribunal), in particular his comment that "he felt it wasn't his place to intervene" in the working relationship between the complainant and Mr. W. Moreover, I note the complainant's evidence at the Hearing that she believed Mr. W to be generally disrespectful of Mr. B and the Policy in general and this was one reason why she did not raise the matter with Mr. B earlier. In those circumstances I cannot see what she expected Mr. T, who was a peer of Mr. W, to do. Where there is dispute between two parties as to a particular version of events it is for the Equality Officer to decide, on balance of probabilities, which version of events s/he finds more credible. I have carefully considered the evidence given by the complainant and Mr. T on this matter and I find, on balance, Mr. T's version of events to be more credible. In the circumstances I cannot accept that this discussion amounts to the complainant placing the respondent on notice that Mr. W was harassing her and that she wished to invoke the Internal Dignity at Work Policy.
5.6 The complainant also stated that she did not raise the treatment of her by Mr. W as she was afraid of him -she was still on probation and he effectively held her future in his hands. Whilst I can understand her reluctance in this regard it was open to her, at all times, to raise the matter with Mr. B and she made a conscious decision not to do so, despite the fact that the complainant's accepts she was aware of the respondent's Policy. Part of the reason advanced by the complainant for her decision in this regard was that management always side with management. I find this comment to be at the very least disingenuous to Mr. B as (i) the complainant adduced no evidence to support such a comment and (ii) the actions of Mr. B once he became aware of the complainant's issues and on completion of Ms. M's investigation in terms of the sanction he imposed on Mr. W (details of which were supplied and I am satisfied were significant) are wholly inconsistent with such a proposition. Having considered all of the evidence adduced by the parties on the issue of when the respondent was put on notice of the complainant's issues with Mr. W's treatment of her I am satisfied that this occurred on 25 August, 2008, when she tendered her resignation.
5.7 I must therefore assess the respondent's actions in terms of the section 14A(2) defence against that date. It is clear that discussions between the parties went on for a few days after 25 August, 2008 and that face to face meetings concluded on 4 September, 2008. It is clear from Mr. B's letter of 28 August, 2008 that the respondent did not consider the complainant had formally raised a grievance. Whilst such an approach may seem pedantic I am satisfied that it was warranted in the circumstances as the respondent also had a duty of care to Mr. W and it was not aware of the fuller details of the complaint at that stage - these matters being clarified at the meeting of 4 September, 2008. The complainant did not confirm she wished to invoke the procedure until her letter of 25 September, 2008. I am satisfied that on receipt of this confirmation the respondent acted promptly - the complainant was interviewed by Ms. M on 2 October, 2008. Mr. W and the six witnesses were interviewed between 28 October, 2008 and 13 January, 2009. The complainant and Mr. W were afforded an opportunity to furnish final comments on 15 January, 2009, which they both did. A Draft Final Report was distributed on 20 February, 2009 and the Final Report itself issued on 5 March, 2009. In all of the circumstances I do not consider that Ms. M took an unduly long period to reach her conclusions, bearing in mind the number of personnel involved and the fact that Christmas occurred during the period. The respondent (Mr. B) applied the company Disciplinary Procedure to Mr. W and a significant sanction was imposed and confirmed to him on 9 April, 2008. Mr. W appealed this decision (as he was entitled) and the sanction was upheld. I note that during this period Mr. W threatened legal proceedings against the respondent to no avail. In light of my comments in this and the preceding paragraph I am satisfied that the respondent responded in a prompt and appropriate fashion in dealing with the complainant's complaint under the Internal Dignity at Work Policy. I have given careful consideration to the evidence adduced on this matter and whilst there are some shortcomings on the respondent's part they are not sufficient to deprive it of the defence at section 14A(2) of the Employment Equality Acts, 1998-2008 and I therefore find, on balance, that the respondent took reasonable steps as practicable to enable it avail of that defence.
5.8 I shall now look at the complainant's contention that she was harassed on grounds of age contrary to the Acts. Section 85A of the Employment Equality Acts 1998 -2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she was treated unlawfully on the ground specified. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required her case cannot succeed. The complainant was unable to point to any specific comments or actions of Mr. W in support of this aspect of her complaint, but she felt his behaviour towards her was different because she was younger than him and other female colleagues. What the complainant bases this element of her complaint on is a feeling and assertion unsubstantiated by fact. The Labour Court has held that mere assertions unsupported by any evidence are insufficient to discharge the initial probative burden required of the complainant. Consequently, I find that this element of the complainant's claim fails.
5.9 It is submitted on behalf of the complainant that she was dismissed in circumstances amounting to discrimination on grounds of gender and/or age contrary to the Acts. It is further submitted that this dismissal arises by either (i) the unilateral decision of the respondent to terminate her employment or (ii) because the complainant was reasonably entitled to terminate her employment in circumstances where the conducted of the respondent warranted such action. The respondent rejects the complainant's assertion that she was dismissed at all and instead argues that she resigned her employment of her own accord. I shall look at the former of the complainant's arguments in the first instance. In general, it is established law that a resignation is a unilateral act which, if expressed in unambiguous terms, brings a contract of employment to an end and such a contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. However, there is an exception to this general rule and the circumstances surrounding when and how such an exception can arise was examined by the Labour Court in Millett v Shinkwin . It is clear that the complainant in the instant case tendered her resignation in writing on 25 August, 2008. The language used in this letter is unambiguous in that the complainant states "that she has no option but to resign with immediate effect". In normal circumstances the respondent should be entitled to rely on this. However, the complainant seeks to rely on the terms of the Millett Determination to argue that there are "special circumstances" which result in this resignation either being withdrawn or nor taking effect.
5.10 I have examined the circumstances in the instant case against those which existed in the Millett case and a number of fundamental differences emerge which, in my view, are fatal to Ms. O'Sullivan. The first of these is that in the Millett case the complainant revoked her resignation in writing within days of her original letter of resignation. The complainant in the instant case confirmed in evidence at the Hearing that she never did this. Moreover, she states that her letter of resignation was a "cry for help". However, at the meeting of 26 August, 2008 with Mr. B instead of revoking her resignation she reaffirmed her original decision in the strongest terms, stating that she would not change her mind so long as there was a chance she would have to meet with Mr. W - a fact she also confirmed in her evidence at the Hearing. Finally, in the Millett case the complainant wrote her letter of resignation in what could be described as a knee jerk reaction to a particularly distressful altercation with her employer without discussion of same with anyone and then revoked her resignation after reconsidering her position having spoken with her husband over the weekend. In the instant case, the complainant did not act in the same haste. The incident between her and Mr. W occurred on Friday 22 August, 2008. The complainant's evidence to this Tribunal was that she took the weekend to discuss the matter with family members, in particular her father and that he was instrumental in persuading her to tender her letter of resignation. In the interest of completeness I wish to say that I am satisfied it was reasonable for Mr. B to hold the view at the end of the meeting on 26 August, 2008 that the complainant had resigned from her employment with the company and therefore I do not consider it necessary to consider the relevance, if any, of the events of 27 August, 2008. In light of the foregoing I find that the respondent did not unilaterally terminate the complainant's employment with it, rather the complainant resigned her position of her own accord.
5.11 However, that is not the end of the matter as the definition of dismissal at section 2 of the Employment Equality Acts, 1998-2008 provides that an employee can terminate his or her employment in circumstances where the behaviour of an employer entitles them to reasonable do so. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances 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 ...."
In An Employer v A Worker (Mr. O No.2) the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case".
5.12 In the instant case I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of her employer was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from its employment. The corpus of caselaw developed on this point requires the complainant, before taking the unilateral step of terminating her employment, to give the respondent the opportunity to address her grievance or complaint. The complainant again refers to the Millett case in support of her assertion that it was reasonable for her to terminate her employment without notice. I cannot accept this argument. In that case the complainant was several months pregnant and this was undoubtedly a factor which influenced the Labour Court in expressing the opinion that she would have been entitled to terminate her contract of employment without prior notice. I do not wish to detract from the impact of the events on the complainant in the instant case in having to work in a stressful environment with Mr. W (which is clear from the outcome of Ms. M's Investigation Report) but the same circumstances do not arise in her case as did in Millett . In the circumstances I must examine, in terms of the reasonable test set out in the previous paragraph, whether or not the complainant could terminate her employment with the respondent in circumstances that comport with the definition of dismissal also set out in the previous paragraph.
5.13 As I stated above it is clear that the complainant resigned on 25 August, 2008 -at which time she advised the respondent for the first time of the issues she had with Mr. W. The complainant agrees that at the meeting on 26 August, 2008 the option of working to a different Manager was discussed. She cannot recall if a period of time to consider her position was mentioned but she rejects the respondent's assertion that a different role was discussed. Mr. B gave evidence that all three options were mentioned and provided the Tribunal with what he stated were notes of his record of that meeting which were prepared within a number of hours of the meeting. I found Mr. B to be a reliable witness and on balance, I find his account of this meeting, supported by his notes, to be more compelling. It is also clear that none of these options were agreeable to the complainant in circumstances where there was any possibility of her coming into contact with Mr. W. At this juncture she had not given fuller details of the various incidents which eventually comprised her complaint under the Internal Policy and I am satisfied that in the circumstances the respondent could not accede to her veiled suggestion to suspend Mr. W. Moreover, I note her evidence at the Hearing that she offered no alternative to the three options put forward by the respondent because she did not believe it was up to her to offer any possible solutions. In my view her resignation was premature and unreasonable in terms of grounding a complaint of constructive discriminatory dismissal. In light of the foregoing I find that the complainant has failed to establish a prima facie case of constructive discriminatory dismissal in terms of the Employment Equality Acts, 1998 -2008. In conclusion I find that the complainant has failed to establish facts from which it could be inferred that she was dismissed on grounds of gender and/or age contrary to the Acts and I am satisfied that she resigned from her employment with the respondent of her own volition.
5.14 The final element of the complainant's case is her assertion that she was victimised by the respondent (Mr. W) in terms of section 74(2)(f) of the Employment Equality Acts, 1998-2008. This section defines victimisation as follows -
"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 an employee to the employer.............
(f) an employee having opposed by lawful means an act which is unlawful under this Act......."
The complainant contends that Ms. M's internal investigation found certain incidents of which she complained to constitute harassment of her and others to constitute bullying of her contrary to the respondent's Policy. The complainant refers in particular to an incident involving lifting of a heavy flip chart from one room to another for a presentation and Mr. W prevented a male colleague from helping the complainant carry the flipchart, thus insisting that the complainant lift it herself. She adds that no one else was singled out for such treatment and that Mr. W's treatment of her arose solely because she had refused his invitation to go out and had also commenced not engaging with him in a social setting as a result of him harassing her. It was submitted on her behalf that this amounts to victimisation of the complainant contrary to the Acts in circumstances where the complainant sought to assert her right to have a workplace free from harassment - an act that is unlawful under the statute. The respondent states that the first occasion on which the complainant made any reference to the behaviour of Mr. W was in her letter of resignation on 25 August, 2008. It adds that all of the alleged treatment of her by Mr. W occurred prior to that date - during her period of employment. It states that during this period that complainant made no complaint of discrimination to the respondent nor could she be said to have exercised her rights under section 74(2)(f) of the Acts and that the treatment complained of cannot amount to victimisation as there in no nexus between any alleged adverse treatment of the complainant and her having "opposed by lawful means an act which is lawful under this Act" . In the course of the Hearing the complainant stated that she never told Mr. W that his actions were inappropriate or unacceptable to her.
5.15 In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. As stated previously I am satisfied that the first time the complainant raised any issues with the respondent about the treatment of her by Mr. W was 25 August, 2008. I am also satisfied, on the complainant's own evidence, that she never informed Mr. W his actions were inappropriate or unacceptable to her. I cannot accept that merely ignoring someone can amount to the complainant taking action which could be deemed a protected act in terms of the first component of the test set out above. I am therefore satisfied that the first occasion on which she took action that could be viewed as a protected act in terms of section 74(2)(f) of the Acts was 25 August, 2008. As all of the alleged treatment of her by Mr. W occurred before this date it cannot amount to victimisation contrary to the Employment Equality Acts, 1998-2008 and this element of her complaint fails.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the respondent took steps as are reasonably practicable to enable it rely on the defence at section 14A(2) of the Employment Equality Acts, 1998-2008 as regards those aspects of the complaint which were found to constitute sexual harassment of the complainant in terms of the Acts as a result of an investigation under the respondent's Internal Dignity at Work Policy.
(ii) the complainant has failed to establish a prima facie case of harassment on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 14A of those Acts.
(iii) the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of gender and/or age in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts.
(iv) the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts 1998-2008
and her complaint fails in its entirety.
_______________________________
Vivian Jackson
Equality Officer
30 December, 2011