The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-096
PARTIES
A Receptionist
(Represented by Coghlan Kelly Solicitors)
- V -
A Hotel
(Represented by Edward Farrelly, BL, instructed by DAS Group)
File reference: EE/2009/055
Date of issue: 12 May 2011
Keywords - Employment Equality Acts - Discriminatory Dismissal - Harassment - Sexual Harassment - Gender - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by A Receptionist that she was subjected to harassment, sexual harassment and discriminatory dismissal by the respondent on the grounds of gender in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as the Acts'), and contrary to sections 8 and 14A of those Acts. There was also a reference to a claim under collective agreement, which the complainant did not wish to pursue.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 30 January 2009 under the Acts. On 4 February, 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 30 March 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that she was employed by the respondent from June 2007 to August 2008 as a Receptionist and worked mainly under the instruction of Mr A, one of the directors of the respondent company.
2.2 The complainant submitted that the respondent was in breach of its obligations under "Statutory Instrument 78 of 2002 Employment Equality Act, 1998 (Code of Practice) Harassment 2002" in that it failed to provide a policy on sexual harassment at Work.
2.3 The complainant submitted that during the course of her employment the respondent was responsible for leaving the complainant open to increased levels of sexual harassment.
2.4 The complainant submitted that during the course of her employment the conduct of the General Manager, Mr A, was one of 'close friendliness'. Mr A was described as a tactile person who would greet the complainant with a kiss and the complainant had no difficulty with same and accepted this as part of his character. The complainant submitted that in the months leading to August 2008, Mr A began to make inappropriate and unwelcome comments, including suggesting that the complainant wear a mini skirt to work, that she should dye her hair or that she should wear her hair down. The complainant submitted that this type of inappropriate language was accepted by the complainant in circumstances where there was no set procedure for challenging same.
2.5 The complainant submitted that, in or around June 2008, she had to take time off work to attend to a medical problem and that the respondent was noticeably dissatisfied with the complainant for this. From this time onwards, the complainant noticed an increase in the type of activity complained of, namely: making suggestive gestures at her, making suggestive comments while she was on the phone, and inappropriate touching. The complainant submitted that the general working environment was one of tolerance in relation to highly sexualised activity and suggestive comments of a sexual nature.
2.6 The complainant submitted that during the evening shift of 3 August, 2008, the complainant was alone with Mr A, who made a totally unprovoked advance upon her, attempting to kiss her despite her resistance. The complainant submitted that she left the area and went downstairs, having rejected Mr A's advances.
2.6 The complainant submitted that she was extremely upset and not sure how to react to the above incident. The complainant submitted that she returned to work on the following day (4 April 2008) and was exposed to further incident of intimidation and harassment.
2.7 The complainant submitted that as a result of the foregoing, she went to her doctor at the end of the week and was certified as unfit to return to work, and that she has not been able to return to work since that date. The complainant notified the respondent of the nature of her complaint via a letter from her solicitor dated 22 August 2008. It was also submitted that in the circumstances, taking this course of action amounts to constructive dismissal for a discriminatory reason under the Acts.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that the allegations of sexual harassment and discriminatory treatment, harassment generally and unwelcome conduct are denied in their entirety.
3.2 The respondent submitted that there was no policy on sexual harassment and harassment at work at the time complained of.
3.3 The respondent submitted that the complainant never formally resigned and never sought her P45.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainant to harassment, sexual harassment and discriminatory dismissal on grounds of gender, in terms of section 6 of the Acts and contrary to sections 8 and 14A of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.3 At the start of the hearing, the parties agreed that the employment relationship began in June 2007 and came to an end on 10 August 2008. Oral evidence was given to the Tribunal by the Complainant; by Mr A, the Managing Director of the respondent hotel; Ms B, a director of the respondent hotel, and wife of Mr A; and by Mr C, the Bar Manager of the hotel.
4.4 The complainant outlined the working environment and working relationship that existed in the respondent hotel and in particular with Mr A. The complainant stated that she worked mainly under Mr A's instruction and that he was friendly and would greet her with a kiss on the cheek most mornings. The complainant stated that the harassment of a sexual nature began after about three months. The complainant stated that Mr A would have a couple of pints starting from breakfast time and the amount of drink he had taken would influence his behaviour. The complainant described Mr A as being "quite flirtatious" and stated that she thought that he had developed an attraction for her. The complainant stated that she had known Mr A for a number of years prior to her employment and that the harassment began with remarks such as that she should dye her hair like she used to and he also began to make remarks about her weight/weightloss, dress sense and ask her to wear a mini-dress. She also stated that Mr A used to make reference to when his wife wasn't around and invite her over to his house.
4.5 The complainant also gave evidence that Mr A had requested her to attend various bedrooms in the hotel in order to witness faults with the housekeeping or issues relating to the room. She stated that his behaviour used to put her in fear of her personal safety but confirmed, upon cross-examination from the respondent's representative that she went down to the bedrooms and was subjected to sexual harassment of a verbal nature "between five or ten times". The complainant also stated that on one occasion she was shown a stained coverlet in one of the rooms, which was then bundled up, and given to her to bring to the cleaners.
4.6 The complainant stated that on Sunday 3 August 2008, Mr A asked her whether she knew how to lock the smoking area and when she said no, he said 'come up and I'll show you'. The complainant related the events of that date to the Tribunal in some detail. The evidence given was that Mr A kissed the complainant despite her resistance, before being distracted, enabling the complainant to leave that part of the hotel. The complainant then returned to her post at reception, uncertain what to do.
4.7 The following day, the Head Chef asked the complainant to get some bread as the hotel had run out. She stated that Mr A asked her to accompany him to collect the bread. The complainant gave evidence that Mr A then suggested that he could 'have his way with her' if he wanted to and made reference to visiting a 'business park' nearby. The complainant stated that it was then that she realised that the previous day's incident was not a once off event and that she didn't know where to turn.
4.8 The complainant stated that she worked out the remainder of the week and then went out on sick leave and has not returned to work for the respondent since.
4.9 In evidence, Mr A denied that any of these events described by the complainant took place. Mr A stated that although he may have greeted staff with a peck on the cheek, he denied any involvement in harassment or that any conduct of a sexual nature took place. When asked about the incident involving the stained coverlet, Mr A could not recall any incident of this nature happening. Mr A's account of running the errand on 4 August 2008 contradicted the complainant's version of events.
4.10 Ms B gave evidence regarding the working environment and the day-to day work routines and schedules of staff. Ms B also stated that if anyone had any cause for complaint they could have approached her. Ms B also gave evidence relating the run up to the event of 4 August 2008 which contradicted the complainant's version in that she stated that the complainant volunteered to go with Mr A rather than being told to go with him.
4.11 Mr C gave evidence regarding the working environment, work routines and the general operation of the hotel and bar. In relation to Mr A's drinking habits, Mr C gave evidence that contradicted the complainant's assertions in that regard.
4.12 Each of the witnesses was cross-examined by the opposing representative and was closely questioned by the Equality Officer.
4.13 When considering the oral evidence of each of the witnesses (especially when contradictory) , I am particularly mindful of the credibility or otherwise of the individuals in terms of their demeanour while testifying; their level of recollection of various incidents/facts; the existence or non-existence of bias, interest or other motive; the consistency of their evidence - within their own accounts and when the accounts are compared with one another; and the plausibility of their accounts. I have also taken into account the issues raised by cross-examination by the various representatives.
4.14 Having regard to the foregoing, I am not satisfied that the complainant has established in the first instance, facts from which discrimination may be inferred for the period prior to August 2008, in particular, her account of events that took place prior to that date lacked the level of detail I would have expected. When this is combined with her detached demeanour in evidence and in reply to cross-examination, I can come to no other conclusion. The totality of the complainant's evidence and demeanour can be contrasted quite starkly with her account of the incident of 3 August 2008. When giving evidence of this incident, the complainant recalled the details of the incident with such precision that, when combined with her demeanour, her account was utterly compelling. Her account of events was consistent, detailed and plausible and stood up to cross-examination. The complainant gave a similar level of detail in relation to the incident of 4 August 2008 and although two witnesses gave contrasting accounts of that day's incidents, I prefer the complainant's version of events.
4.15 On the basis of the evidence before me from both parties, on balance, I prefer the complainant's account of the events of 3 & 4 August 2008. The complainants recall and demeanour in relation to the August events was credible and there I find that she has established facts from which discrimination on these dates may be inferred.
4.16 The respondent acknowledged that it did not have a policy on harassment and sexual harassment in place at that time. Although Ms B stated in evidence that the complainant could have come to her to make a complaint of sexual harassment against Mr A (her husband), given the lack of existing procedures, the relationship of the directors to one another, and the small close-knit nature of the staffing, I do not consider that it would be plausible for an employee to do so. Therefore, I do not consider that the employer can demonstrate that it took reasonably practical steps such as to avail of a defence under Section 14(2) of the Acts. Accordingly the complainant is entitled to succeed in this complaint.
4.17 In relation to the constructive dismissal element of this complaint, I am mindful of the Labour Court's consideration in Nail Zone Ltd v A Worker (EDA 1023). In that case the Court set out its considerations regarding this issue:
Constructive dismissal
Section 2(1) of the Act defines a dismissal as including:
"[T]he 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...."
In A Worker (Mr O) v An Employer (No 2) [2005] 16 ELR 132 this Court extensively considered the circumstances in which this provision can apply. Here the Court said: -
"This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 -2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the "contract" test where the employee argues "entitlement" to terminate the contract. The second or "reasonableness" test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332 as follows:
"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance"
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances the employee is entitled to accept the repudiation and consider him or herself dismissed. However not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.
There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.
Finally, the authorities indicate 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."
There is no suggestion in the instant case that the Respondent repudiated the Complainant's contract of employment. Rather, it is submitted, the Complainant was entitled to terminate her contract of employment by application of the reasonableness test.
4.18 The complainant submitted that as the respondent made no attempt to resolve this issue once it was notified of the substance of the case by the complainant's solicitor (on 22 August 2008), she was left with no reasonable choice but to leave the respondents employment. In the absence of any argument to the contrary, and having regard to the consideration given to such matters by the Labour Court, I am satisfied that the complainant has established facts from which constructive dismissal may be inferred under the reasonableness test.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of harassment and sexual harassment on the basis of the gender ground has been established and this complaint succeeds.
5.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the gender ground has also been established and this element of the complaint succeeds.
5.3 In accordance with section 82 of the Acts I award the complainant €30,000 in compensation for the effects of the sexual harassment and discriminatory dismissal suffered. As it does not include any element of remuneration, it is not subject to income tax.
Conor Stokes
Equality Officer
12 May 2011