Equality Officer Decision No: DEC-E/2011/099
Parties
Marshfield
And
MSC Fire Products Ltd.
t/a Omada Fire Products
File No: EE/2008/091
Date of issue: 30 May, 2011
Headnotes: Employment Equality Acts 1998-2007 - sections 6,8, 14A and 74 -gender - discriminatory treatment - discriminatory dismissal- sexual harassment- victimisation
1. DISPUTE
This dispute involves a claim by Ms. Sophie Marshfield that she was (i) discriminated against by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 - 2007 and contrary to section 8 of those Acts in relation to her conditions of employment, (ii) sexually harassed by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 -2007 and contrary to section 14A of those Acts, (iii) dismissed in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998-2007 and contrary to section 8 of those Acts and (iv) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2007.
2. BACKGROUND
2.1 The complainant was employed by the respondent as an Administrative Assistant from late September, 2006 until February, 2008. She states that from October, 2006 she was subjected to sexual harassment by (Mr. M) another employee of the respondent. She asserts that when she reported these matters to the respondent it took no action to address her complaint and indeed it victimised her in terms of section 74(2) of the Acts. The complainant further states that the situation became so intolerable for her that she resigned from the respondent's employment in late February, 2008 and submits that this constitutes constructive discriminatory dismissal of her contrary to the Acts. The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that the complaint is not properly before the Tribunal as the complainant named the wrong respondent on her referral form.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2007 to the Equality Tribunal on 12 February, 2008. In accordance with his powers under the Acts the Director delegated the complaint to Mr. 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 26 October, 2010, the date the complaint was delegated to me.
2.3 In accordance with the Tribunal's Procedures the complainant was requested to file a submission setting out the full details of her complaint and did so on 22 April, 2009. This was copied to the respondent at the address furnished on the complainant's referral form. No response was received and on delegation of the complaint to me I wrote to the respondent (at the same address) by registered post on 1 November, 2010 advising that the Hearing on the matter would take place on 19 January, 2011 at the Tribunal's Offices in Dublin and requested that it file its responding submission by 24 November, 2010. The respondent failed to do so and a further reminder issued to it on 11 January, 2011. The respondent engaged with me for the first time on receipt of this last letter and sought a deferral of the Hearing by letter dated 13 January, 2011, stating that it had not received my previous two letters and needed time to prepare its submission. I was satisfied that my letter of 1 November, 2010 had been received by the respondent (it had been sent by registered post and signed for) and I refused the application for an adjournment. The respondent wrote to the Tribunal again on 17 January, 2011 making a further application for an adjournment - on this occasion it was stated that Mr. C, the respondent Managing Director, was away on business in the UK on the date of the Hearing. I responded by e-mail to the respondent immediately upon receipt of the letter seeking copies of the relevant travel documents in support of the application (in accordance with the normal procedures of the Tribunal). It transpired that Mr. C was not out of the country on the day of the Hearing as previously asserted. In the circumstances I refused the adjournment for a second time and informed the respondent by e-mail (on 18 January, 2011) that the Hearing would proceed as scheduled. Mr. C advised by return e-mail that the respondent would not be present at the Hearing. However, having made telephone contact with the Tribunal late on the evening of 18 January, 2011 Mr. C changed his mind and attended the Hearing on 19 January, 2011 with a number of witnesses. The respondent did not file any formal submission to the Tribunal which unnecessarily elongated the Hearing and resulted in it having to reconvene on 20 January, 2011 to complete the proceedings. The respondent was given a short period after the Hearing concluded to file certain additional documentation and did so in mid February, 2011.
2.4 It is the normal practice of the Tribunal to offer the parties the option of anonymising the identities of the parties in circumstances where the complaint involves allegations of sexual harassment. However, the complainant decided to forego this option and consequently the names of the parties are identified in this Decision. The names of witnesses are however, withheld in accordance with the general practice of the Tribunal.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she commenced employment with the respondent as an Administrative Assistant on 25 September, 2006 and continued in its employment until 25 February, 2008 when she resigned in circumstances which she submits constitute constructive discriminatory dismissal of her on grounds of gender, contrary to the Employment Equality Acts, 1998-2007. She states that she never received a written contract of employment from the respondent at any time during her employment, nor did she receive any written terms and conditions of employment in accordance with the provisions of the Terms of Employment (Information) Act, 1994. She rejects the respondent's arguments that her complaint is not properly before the Tribunal because she named the wrong respondent on her referral form. She states that both her P60 for 2006 and her P45 (issued on 3 March, 2008) - both of which were furnished to her by the respondent - state that her employer is Omada Fire Products and the address of her employer contained on the P45 is the address where she worked for the entire period of her employment. In addition, she states that the details of her salary electronic fund transfer contained in her bank statements show "Omada" as transferring the funds. The complainant further states that whilst she heard the name MSC Fire Products during her period of employment she was never informed that it was her employer and always believed that Omada Fire Products was her employer. Consequently, she named Omada Fire Products Ltd as the respondent on her referral form to the Tribunal and submits that in the circumstances it was reasonable for her to do so and accordingly her complaint is validly before the Tribunal.
3.2 The complainant states that shortly after she commenced employment with the respondent she was briefly absent from work with a chest infection. She adds that on her return she answered the telephone to Mr. M -who is the person she alleges sexually harassed her. She states that in the course of this conversation - which was the first occasion she spoke with him - Mr. M commented on her absence from work and when she explained she had suffered from a chest infection he told her he would like to rub Vicks into her chest. The complainant states that she felt uncomfortable with this comment and immediately terminated the telephone call. She adds that she mentioned the issue to her Line Manager Ms. L a few days later. The complainant states Ms. L told her (the complainant) that Mr. M was rude and had a tendency to upset other staff in the Office and that she (Ms. L) would talk to him. The complainant further states that she was new in the job and did not want "to rock the boat" so she made no further enquiries on the matter. However, thereafter she tried to avoid speaking with Mr. M and colleagues dealt with him as the phone system had Caller ID on it.
3.3 The complainant states that she attended the respondent Christmas party in mid-December, 2006. She adds that after the meal Mr. M approached her and told her he had a room in the hotel and that if she met someone at the party she could have the use of the room. The complainant states that she was very uncomfortable with this comment and walked away. She did not however report this alleged incident to her employer at the time but she spoke informally to Ms. L about the matter who advised her to ignore Mr. M. The complainant states that in January, 2007 Mr. M was in the Office and came over to speak with her at her desk. She adds that he asked her about her background and she told him that her mother was originally from Essex in England to which he replied "Ah, so you are a dirty little Essex girl". The complainant states that she considered this comment to be offensive and she reported the matter to Ms. L. The complainant states that she met with Ms. L in her office and recounted Mr. M's alleged behaviour to her. She adds Ms. L agreed that the alleged behaviour of Mr. M was inappropriate and she (Ms. L) set out the complainant's allegations in an e-mail to Mr. C as dictated by the complainant. In the course of the Hearing the complainant stated that she considered this to be a formal complaint about Mr. M as she wanted something done about him, although she did not put the complaint in writing as she was not asked to do so by Ms. L. She states that she heard nothing from either Mr. C or Ms. L about her complaint and as the inappropriate behaviour of Mr. M ceased she did not pursue the matter.
3.4 The complainant states that in September, 2007 she attended a party for a colleague who was leaving the respondent's employment at which Mr. M was present. She adds that she left the party shortly after her boyfriend arrived. She further states that on the Monday or Tuesday following the party Mr. M was in the Office and commented that she was dragged away from the party adding that it was clear that "A" (the complainant's boyfriend) wore the trousers. The complainant states that she replied "yes he does" and walked away. She adds that she reported the matter to Ms. L who arranged for her to meet with Mr. C later that day. The complainant states that when she met with Mr. C her told her to ignore Mr. M and to limit her discussions with him to work related matters.
3.5 The complainant states that she returned to work from annual leave towards the end of October, 2007 and was called into her office by Ms. L. She adds Ms. L told her that Mr. M had made comments in her absence that she was providing sexual favours (details supplied) for her boyfriend as payment for him having helped her with work (late into the evening) which she had to complete prior to her taking her annual leave. The complainant states Ms. L told her that she had heard the comments from Mr. C and Mr. S (another senior employee), who had been told by Mr. M and asked her how she (Ms. L) could stand up for the complainant in those circumstances. The complainant adds Ms. L told her that as far as she knew it was suggested that the comment had emanated from a conversation the complainant had with Mr. X (an employee in the Engineering Division) and that Ms. L advised her that she (the complainant) should watch how she spoke to Engineers. The complainant states that she felt extremely humiliated by these events and broke down in tears. She adds that she left the office and did not return to work that day. The complainant states that she returned to work the following day and was told by Ms. L that a further meeting had been arranged with Mr. C later that day. The complainant states that she met with Mr. C and Ms. L later that day and during this meeting Mr. C told her things had gotten out of hand and that she was no longer required to deal with Mr. M in the course of her work. The complainant adds that she was not entirely satisfied with this outcome but accepted that this appeared to be the only action the respondent was prepared to take.
3.6 The complainant states that although she did not have to speak with Mr. M her daily tasks involved her doing work which crossed into area(s) of his responsibility. She states that Mr. M took issue with the work and performance of the complainant and another colleague (Ms. O) and sent e-mails to Mr. C and Mr. S on 21 and 22 November, 2007 complaining about them. The complainant adds that these e-mails were unduly critical and made specific reference to her not answering the telephone to him. She adds that although these e-mails were addressed to specific individuals due to the structure and access levels of the internal e-mail system these e-mails were available to all staff. She adds that she spoke with Ms. L and told her that she found Mr. M's behaviour to be unprofessional and inappropriate in all the circumstances. The complainant states that Ms. O had also made a complaint about Mr. M and a few days later (27 November, 2007) they were both called to a meeting by Mr. C during which he asked them to send him an e-mail detailing the alleged acts of harassment against Mr. M. The complainant states that she did so the following day and heard nothing back from him until 15 January, 2008 at which time he (Mr. C) informed her that he had engaged the services of an Independent External Consultant to investigate both hers and Ms. O's complaints and that he expected the process to commence the following week. The complainant adds that she was not interviewed by the consultant until 6 February, 2008. The complainant submits that the alleged incidents set out in this and the preceding four paragraphs constitute sexual harassment of her contrary to the Acts. She adds that the respondent had no procedures covering sexual harassment in place at the time nor did it have a Grievance Procedure. In addition, it did not commence any investigation of her complaint until twelve months had elapsed from her raising her complaint with Ms. L. She submits therefore that the respondent cannot avail of the defence available at section 14A(2) of the Employment Equality Acts, 1998 - 2007 and seeks to rely of the Decision of this Tribunal in A Female Employee v A Candle Production Company on this issue.
3.7 The complainant states that the entire situation took a toll on her health and she attended her doctor on 30 January, 2008 and was certified unfit for work for a week due to stress. The complainant states that on her return she found her e-mail access had been restricted. She adds that she e-mailed Mr. C on 7 February, 2008 seeking an explanation of why this happened, expressing her extreme disappointment at how matters had been handled and indicated that she felt she had no other option but to seek independent legal advice. The complainant states that Mr. C replied on 8 February, 2008 detailing why changes had been made to the e-mail system. The complainant states that it is clear from this response that other employees retained a higher level of access to her and submits that this constitutes victimisation of her contrary to the Acts.
3.8 The complainant states that she attended her doctor on 8 February, 2008 and was again certified unfit for work due to stress. She states that her mother spoke with Mr. C on the telephone and advised him of the situation. She adds that during this telephone conversation Mr. C agreed to pay the complainant her salary during her absence. The complainant states that this process ceased on 11 February, 2008 which was the last day for which she received payment from the respondent. She adds that when she became aware of this her mother made several unsuccessful attempts to contact him by telephone. The complainant submits that the actions of the respondent on this matter constitute victimisation of her contrary to the Acts. The complainant refers to the Decision of this Tribunal in A Female Employee v A Candle Production Company on this issue.
3.9 The complainant states that she remained on sick leave after 8 February, 2008 and submitted medical certificates to her employer covering the absence. She adds that she heard nothing further from the respondent and felt she was being ignored. She states that in the circumstances she considered the working relationship had totally collapsed and she was left with no other option but to resign and did so in writing on 25 February, 2008. The complainant states that the respondent subsequently sent her P45 to her and Mr. C briefly spoke with her stating that he understood why she had adopted that course of action. The complainant submits that this constitutes constructive discriminatory dismissal contrary to the Acts. The complainant relies on the Decision of this Tribunal in A Worker v A Hotel in this regard.
3.10 The complainant states that there were two male employees who worked in the same area as her and that these were not subjected to any criticism by Mr. M when he levelled undue criticism on her and her female colleague in the course of his e-mails of 21 and 22 November, 2007. She submits that this constitutes less favourable treatment of her on grounds of gender contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that that the complaint is not properly before the Tribunal as the complainant named the wrong respondent on her referral form. It states that the complainant was never employed by Omada Fire Products Ltd. but instead was employed by MSC Fire Products Ltd. It adds that Omada Fire Products Ltd was a separate legal entity which was sold to a well known security company in 2007. The respondent states that it retained use of the trading name of Omada Fire Products under licence from the new owners and that this arrangement existed during the complainant's period of employment. The respondent further states that the Employer's Registered Number on the P45 and P60 submitted by the complainant is that of MSC Fire Products Ltd. and adds that this clearly demonstrates the complainant was employed by that company and not Omada Fire Products Ltd. It submits therefore that the complainant named the incorrect respondent on her referral form and her complaint is not validly before the Tribunal. In the course of the Hearing Mr. C accepted that the complainant had never received a written contract of employment or any written terms and conditions of employment in accordance with the provisions of the Terms of Employment (Information) Act, 1994.
4.2 Mr. C states that he cannot recall if Ms. L sent him an e-mail in January, 2007 and that the first occasion he was formally aware of the full extent of the complainant's concerns was at the meeting of 27 November, 2007 and from the complainant's e-mail of the following day. He adds that he spoke with Mr. M at that time and he denied the allegations. Mr. C accepts that he made no direct contact with the complainant until his e-mail of 15 January, 2008. He states that he had engaged an external investigator to deal with both the complainant's and Ms. O's complaints and that investigator was not available until then. Mr. C accepts that there were changes to the internal e-mail system in early 2008 which resulted in certain restrictions to staff access, although some staff retained access which they previously had for business reasons. He therefore rejects the complainant's assertion that the amendments to her e-mail access constitute victimisation of her contrary to the Acts. Mr. C accepts that he agreed to pay the complainant during her absence on sick leave in February, 2008 but cannot recall if he informed Ms. L - who prepares the payroll - of his decision on this matter, although he imagined he would have done so. He adds that he did not instruct Ms. L to remove the complainant from the payroll at that time.
4.3 Ms. L agrees that the complainant approached her in January, 2007 and made a complaint about Mr. M. She adds that the complainant did not appear upset and she (Ms. L) did not think she was serious. Ms. L states that she sent an e-mail to Mr. C setting out the complainant's concerns and that this e-mail was headed "sexual harassment". She adds that she did this to "put a spin" on the complaint and to provoke a reaction. She states that she spoke with Mr. M at the time asking him "to go easy on the girls" and she related this to the complainant, who appeared satisfied. Ms. L states that she is unable to comment on which members of staff had their e-mail access restricted/altered in early 2008, although she was aware there were changes made to the system. Ms. L states that she prepares the payroll each week. She adds that due to the extent of the complainant's absence - she had been absent on a previous occasion shortly beforehand - she (Ms. L) took the complainant off the payroll, in accordance with standard practice - which is three days paid sick leave per year. She adds that she was unaware of any arrangement Mr. C had made with the complainant's mother on the matter.
4.4 Ms. L states that she was quite friendly with the complainant and that the conversations in the office could sometimes be inappropriate. She adds that early in the complainant's employment she (Ms. L) overheard her make a crude and inappropriate comment in the presence of a male employee and spoke with her about it. Ms. L adds that she viewed this as a friendly piece of advice instead of a formal warning. She adds that she was present at the Christmas party and rejects the complainant's assertion that she told her of Mr. M's alleged comment and of the comment attributed to her (Ms. L).
4.5 Ms. T and Mr. F, both of whom are Administrative Assistants with the respondent, state they were present at the Christmas party in December, 2006. Both state that they heard Mr. M make a comment about the use of his room to the complainant. They add that the complainant had been flirting with another male colleague all evening and they believe it was in this context that the comment was made.
4.6 The respondent (Mr. C) states that when Ms. L became aware of the complainant's concerns in January, 2007 she acted in a manner that reduced the complainant's prospect of having to work with Mr. M, a point that was subsequently endorsed by Mr. C in October, 2007. It adds that Ms. L also spoke with Mr. M at the time and asked him to "go easy on the girls". The respondent adds that Mr. M was a difficult man who disagreed with most staff at one time or another. It adds that nothing further was heard from the complainant between January, 2007 and September, 2007 and submits that such behaviour is inconsistent with the complainant's assertion that she was working in a stressful environment. The respondent submits that the Tribunal should have regard to the complainant's behaviour and demeanour during her employment towards staff and customers and refers specifically to the incident in October, 2007 when the complainant was alleged to have told an employee (Mr. X) that she performed sexual favours for her boyfriend for having assisted her at work. It states that the first occasion Mr. C was formally advised of the complainant's concerns was late November, 2007 and he acted as swiftly as possible to have the matters investigated by an Independent External Consultant. It adds that the complainant was interviewed as part of this process in early February, 2008 and resigned three weeks later without having awaited the outcome of the investigation. The respondent submits that in those circumstances the complainant cannot succeed in her claim of constructive discriminatory dismissal.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not (i) the complaint is properly before the Tribunal for investigation, (ii) the respondent discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 - 2007 and contrary to section 8 of those Acts in relation to her conditions of employment, (iii) the respondent sexually harassed the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998 -2007 and contrary to section 14A of those Acts, (iv) the complainant was dismissed in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998-2007 and contrary to section 8 of those Acts and (v) the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2007. 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 matter which I must address is whether or not the complaint is validly before the Tribunal for investigation. The complainant named Omada Fire Products Ltd. as the respondent on her referral form. The respondent states that this company was never her employer - adding that she was employed by MSC Fire Products Ltd. The complainant submitted her P60 for 2006, her P45 on termination of her employment (dated 3 March, 2008) and copies of her bank statements for the latter part of 2007 in support of her assertion that her complaint is validly before this Tribunal. The respondent states that the Employer Registered Number contained on the P45 and P60 refers to MSC Fire Products Ltd. and accepts that the complainant never received a written contract of employment or any written details of her terms and conditions of employment in accordance with the Terms of Employment (Information) Act, 1994. I have examined the documentation submitted by the complainant. Both the P60 for 2006 and the complainant's P45 name Omada Fire Products as the complainant's employer. Both contain the same Employer Registration Number which Mr. C contends refers to MSC Fire Products Ltd. Both of these documents are important legal documents in terms of the revenue and social security codes and as such should not contain false or inaccurate information - which in my opinion is exactly what they contained if one accepts the respondent's assertion as to the correct identity of the complainant's employer. Whilst this Tribunal has no jurisdiction under the Terms of Employment (Information) Act, 1994 it does not mean that Equality Officers cannot have regard to information issued to employees pursuant to that statute or indeed a failure of an employer to comply with its statutory obligations under that Act. Under section 3 of that Act employers are required, within a specific time limit, to furnish written details of his/her employment to an employee. The inclusion of certain information in this written statement, including the full name and address of the employee and employer, is mandatory. The respondent never furnished the complainant with such a statement and therefore did not behave in a manner which might rectify the inaccurate information contained on the P60 and P45. In my view the complainant was entitled to accept as correct, the details contained in the P60 and P45 in respect of who her employer was and include same in her complaint to this Tribunal - to do otherwise would require her to look beyond that information and check with the Revenue Commissioners that the Employer Registration Number contained on the documentation matched with the name of the Employer contained therein. Such a requirement would clearly run contrary to the Tribunal's position as the informal forum for dealing with complaints of discrimination. I further note that the details of the transactions in the complainant's bank statement as regards the lodgement of her salary to her bank account show Omada as transferring the funds. Her referral form to this Tribunal includes the trading name of the respondent and can be distinguished from the situation which arose in the case of Coleman v @Resonance Ltd where the two respondents named were separate legal entities. In light of this and my comments above I find that the complaint is properly before the Tribunal and I have jurisdiction to investigate it.
5.3 Section 85A of the Employment Equality Acts 1998- 2007 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 he suffered discriminatory treatment on the grounds 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.
5.4 I will examine the complainant's allegation that she was sexually harassed first. At the outset I am compelled to say, having carefully considered the evidence adduced by both parties at the Hearing, that the manner in which the complainant's working environment operated was one in which inappropriate language and behaviour, some of which had sexually offensive undertones, was a daily feature of working life. I am satisfied that such behaviour and comments was indulged in by Middle and Senior Management (in particular Ms. L) and that the complainant also participated in this practice. However, such behaviour on the complainant's part is not fatal to her complaint to this Tribunal.
5.5 Section 14A of the Acts defines sexual harassment as follows:
"(ii) ...any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which ....has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.".
The complainant states that she was subjected to sexually offensive comments by Mr. M on three separate occasions between October, 2006 and January, 2007. I found the complainant to be a credible witness who gave her evidence in a forthright manner and I accept her version of events as regards the first incident (The Vicks incident) and the last incident (dirty little Essex girl comment). The second incident took place at the Christmas party and both Mr. F and Ms. T (independently of each other) stated that the complainant had been flirting with a male colleague that evening and that Mr. M had made the comment in that regard. Whilst I accept that such a comment is consistent with the general practice of staff in the Office (as mentioned above) it was nonetheless inappropriate for a senior member of staff to make such a comment. When taken with the other two incidents outlined above, I am satisfied that the comments were unwanted remarks of sexual nature and I find that the complainant has established a prima facie case of sexual harassment contrary to the Acts.
5.6 The complainant contends that two other alleged incidents involving Mr. M constitute sexual harassment of her contrary to the Acts. The first of these is a comment in September, 2007 about who "wears the trousers" in the complainant's relationship with her boyfriend. Whilst such a comment might be regarded as inappropriate I cannot hold that it constitutes sexual harassment contrary to the Acts. The second incident involves a comment (made in October, 2007) that the complainant performed sexual favours for her boyfriend after he helped her (after normal office hours) to complete some tasks she had to do before going on annual leave. In the course of the Hearing the respondent inferred that the complainant had made this comment to a male colleague (Mr. X), who in turn had told Mr. M, who in turn had told Mr. S and Mr. C, who in turn told Ms. L. The complainant rejected the assertion that she made this comment to Mr. X. The respondent did not produce Mr. X or Mr. M at the Hearing on this issue and I therefore find the complainant's version of events to be more compelling - that she had not made the comment - and on balance I am satisfied that it emanated from either Mr. X or Mr. M. There is no doubt however, that on her return from annual leave, the complainant was faced with her colleagues gossiping about this matter and when she spoke with Ms. L on the issue she was effectively chastised by her. Having carefully considered the evidence adduced on this issue by the complainant, Mr. C and Ms. L in the course of the Hearing, it is clear to me that Mr. C and Ms. L had formed the view that the complainant had made the comment - a view reached without any discussion with the complainant - and had allowed the comment to become common knowledge in the Office during the complainant's absence. This is in stark contrast with the length of time it took the respondent to deal with the complainant's formal complaint of sexual harassment made in January, 2007. In light of the foregoing I find that the comment constitutes prima facie evidence of sexual harassment of the complainant contrary to the Acts.
5.7 The complainant states that in the course of a meeting in October, 2007 to discuss the matter raised in the previous paragraph, Mr. C told her that things had gotten out of hand and that she no longer had to deal with Mr. M in the course of her work. Mr. C accepted that he had reached such an arrangement with the complainant at this meeting. He was however, unsure whether or not he had communicated this arrangement to Mr. M. The complainant submits that the critical e-mails of 21 and 22 November, 2007 constitute further sexual harassment of her. I have examined the e-mails in question and whilst they are critical, their contents are not focussed at the complainant in particular - other employees are also mentioned - and there are no sexual undertones contained in them. I find therefore, that they do not constitute sexual harassment of the complainant contrary to the Acts.
5.8 Once a prima facie case of sexual harassment is made out by a complainant, the respondent is fixed with liability for the unlawful behaviour unless it can avail of the defence provided at section 14(A)(2) of the Acts. The Labour Court has previously held that in order for an employer to avail 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. The Court adds that Management Personnel should be trained to deal with incidents of harassment and to recognise its manifestations. In the course of the Hearing the complainant stated that she never saw any policy on harassment during her employment with the respondent. The respondent stated that its harassment policy was contained in the Staff Handbook and furnished the Equality Officer with a copy of same. This document was dated February, 2008 and when questioned, Mr. C stated that this was a revised version and a copy of the previous document was furnished to the Equality Officer subsequent to the Hearing. The respondent states that this latter document (which is dated November, 2005) was stored in electronic format on a shared drive and that all staff had access to it. The respondent was unable to confirm that all staff, including the complainant, had actually seen the document and whilst I accept the evidence of some of the witnesses who attended the Hearing that they had seen the document during their employment, the manner in which the respondent sought to bring the document to staff's attention, in my view, fall far short of what the Labour Court might consider "effectively communicated".
5.9 In any event not a huge amount turns on the above because unbeknownst to her the complainant invoked the policy in January, 2007 when she made her complaint to Ms. L - as paragraph 1.3 of the section dealing with sexual harassment requires an employee to make a complaint to his/her immediate Line Manager. In the course of the Hearing Ms. L confirmed that she considered the complainant's complaint to be the first stage of the formal internal process, notwithstanding her comments that she did not think she was serious and that she headed the e-mail to Mr. C "sexual harassment" in order to "put a spin" on the complaint and to provoke a reaction. I find such a cavalier attitude to be highly unprofessional and totally unacceptable for a person in Ms. L's position. What is clear is that the complainant was under the impression she had complained of her treatment by Mr. M and she believed something would be done about it. However, the formal complaint's procedure was not followed. Either Ms. L did not send the e-mail to Mr. C at that time as she states or she did and he ignored it. In either scenario the actions of the respondent are unacceptable. Things quietened down and the matter lay dormant until September, 2007 when the complainant made a further complaint about Mr. M. When she met with Mr. C on this occasion he instructed her to restrict her contact with Mr. M to work related matters. It is noteworthy that Ms. L attended this meeting and yet she never, on behalf of the respondent, sought to resurrect the original complaint and the consequential investigation as required under its policy.
5.10 The complainant raised a further complaint about Mr. M in October, 2007 and the respondent's only reply on this occasion was again to restrict her contact with Mr. M. It only sought to deal with the matter in accordance with its policy when the complainant and Ms. O made further complaints about Mr. M in November, 2007 - and it then went about engaging the services of an External Consultant to investigate the matters. It is clear from the foregoing that the respondent did not act in a timely and reasonable manner to deal with the complainant's complaint of sexual harassment. In the circumstances I find that it cannot avail of the defence at section 14A(2) of the Acts and the complaint is therefore entitled to succeed in respect of this element of her complaint.
5.11 I shall now examine the complainant's assertion that she was victimised in terms of section 74(2) of the Employment Equality Acts, 1998-2007. She submits that two alleged acts by the respondent - (i) restrictions to her e-mail access and (ii) her removal from the payroll on 8 February, 2008 whilst on sick leave contrary to an agreement with Mr. C - constitute victimisation of her contrary to the Acts. Section 74(2) of the Employment Equality Acts, 1998-2007 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 complaint of discrimination made by an employee to the employer.............
(f) an employee having opposed by lawful means and act which is unlawful under this Act......."
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 take 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.
5.12 In the instant case I am satisfied that the respondent was in no doubt from 28 November, 2007 that the complainant had made a formal complaint of sexual harassment - i.e. opposed by lawful means an act which is unlawful under the Employment Equality Acts, 1998-2007 - and therefore a protected act in terms of section 74(2)(f) of those Acts. However, having considered the evidence adduced by the parties on each of the alleged incidents of victimsation I am not satisfied that the complainant was subjected to adverse treatment by the respondent. As regards the alleged restriction to her e-mail access I note that the complainant had complained about other colleagues having sight of e-mails from Mr. M to Mr. C in November, 2007 which were critical of her and another colleague. I further note that Mr. C details the reasons for the changes to the e-mail system in his e-mail to the complainant on 8 February, 2008 - the last day she attended work. Having carefully considered the arguments made by the parties on this issue I accept the respondent's evidence as reasonable and I am not satisfied that the complainant has established facts from which victimisation could be inferred. The second alleged act of victimisation concerns the removal of the complainant from the payroll whilst on sick leave. I note Mr. C accepts that he reached this agreement with the complainant's mother and whilst he cannot recall if he told Ms. L of this arrangement, he was certain he did not tell Ms. L to remove the complainant from the payroll. I also note Ms. L's evidence that she did not receive any instruction whatsoever from Mr. C as regards the complainant and removed her from the payroll because she had exceeded the sick leave policy. I am satisfied that the complainant had exceeded the paid sick leave policy at that time and that Ms. L was entitled to remove her from the payroll. I am further satisfied that the there was a genuine error on Mr. C's part in failing to inform Ms. L of the unusual arrangement he had reached with the complainant's mother. In the circumstances I am not satisfied, on balance, that the complainant has established facts from which victimisation of her could be inferred. In conclusion I find that the complainant has failed to establish a prima facie case of victimisation and this aspect of her complaint fails.
5.13 The next element of the complainant's claim concerns an assertion that she was constructively dismissed on grounds of gender. She states that due to the treatment she suffered during her employment, but in particular from January, 2007 - when she made her complaint to Ms. L - until 11 February, 2008, when she was removed from the respondent's payroll - she was left with no option but to resign her position. 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".
5.14 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 the respondent 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 originally raised her complaint in January, 2007 ands states that as things settled she did not pursue matters. Matters came to a head in late November, 2007 and it was only then that the respondent took any real action to deal with the complainant's concerns. The respondent made no efforts to keep the complainant informed of what was happening following this meeting until 15 January, 2008 - when Mr. C informed her that he had engaged and External Consultant to investigate her complaint. The complainant was interviewed by this Consultant on 6 February, 2008 and was absent from work from 8 February, 2008 until she resigned on 25 February, 2008. The complainant had waited twelve months to have her complaint investigated and yet within three weeks of her being interviewed as part of that process she resigned - without awaiting the outcome of the process. 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 discriminatory dismissal in terms of the Employment Equality Acts, 1998 -2007.
5.15 The final aspect of the complainant's case concerns an allegation of less favourable treatment as regards her conditions of employment insofar as she contends that the two male employees who worked in the same area as her and that these were not subjected to any criticism by Mr. M when he levelled undue criticism on her and her female colleague in the course of his e-mails of 21 and 22 November, 2007. Whilst the e-mails only make reference to the complainant and another female colleague, in the course of the Hearing Mr. F stated Mr. M disagreed and argued with most staff, including him. I therefore find, on balance, that the complainant has failed to establish a prima facie case of less favourable treatment on grounds of gender contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant's complaint is properly before the Tribunal and I have jurisdiction to investigate it.
(ii) the respondent sexually harassed the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts 1998 -2007 and contrary to section 14A of those Acts.
(iii) the complainant has failed to establish a prima facie case of discrimination on grounds of gender in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 8 of those Acts in respect of her conditions of employment.
(iv) the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of gender in terms of section 6(2) of the Employment Equality Acts 1998-2007 and contrary to section 8 of those Acts.
(v) the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts 1998-2007.
6.2 In accordance with my powers under section 82(1) of the Employment Equality Acts, 1998-2008 I order that the respondent pay the complainant the sum of €10,000 by way of compensation for the distress suffered by her as a consequence of the discrimination. This award does not contain any element in respect of remuneration and is therefore not subject to PAYE/PRSI. In addition, I order that the respondent introduce, within four months of the date of this Decision, a policy on harassment covering all nine discriminatory grounds under employment equality legislation, which may be included in the Staff Handbook. Copies of these policies must be circulated to existing staff at that time and the respondent should ensure that they are furnished to all new employees at the outset of their employment and secure written confirmation of same. I further order that within for months of the date of this Decision, that all Senior Management and staff within the respondent organisation who have who have staff management responsibilities, receive appropriate training in dealing with complaints of harassment covered by the Acts.
_______________________________
Vivian Jackson
Equality Officer
30 May, 2011