THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2012-103
PARTIES
A Female Teacher
(Represented by Tom Mallon BL, instructed by Byrne Wallace Solicitors)
v
Board of Management of a Secondary School
(Represented by Helen O'Driscoll BL, instructed by PJ O'Driscoll & Sons, Solicitors)
File Reference: EE/2008/764
Date of Issue: 3 August 2012
Headnotes: Employment Equality Acts, 1998 to 2008 sections 6, 8, 14A, 74 (2)- discriminatory treatment and harassment - gender - conditions of employment - discriminatory dismissal - sexual harassment - victimisation - victimisatory dismissal - prima facie case.
1. Dispute
This dispute involves a claim by a Female Teacher (hereinafter "the Complainant") that she
(i) was discriminated against by the Board of Management of a Secondary School (hereinafter "the Respondent") in relation to conditions of employment on grounds of gender, in terms of section 6 (2) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") and contrary to section 8 of the Acts by not offering her the same treatment in relation to protection of her property, probation, supervision and dismissal as the Respondent afforded to other persons ("the comparators") where the employment circumstances of the Complainant and the comparators were not materially different;
(ii) was sexually harassed at her place of work by pupils of the Respondent, which constitutes discrimination by the Respondent in relation to the Complainant's conditions of employment under section 14A (1) (a) (iii) of the Acts; and
(iii) was victimised by the Respondent (within the meaning of section 74 (2) of the Acts) by being dismissed and otherwise adversely treated by them as a reaction to complaints of sexual harassment made by the Complainant to the Respondent.
2. Background
The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11 November 2008. A written submission was received from the Complainant on 6 July 2009. A written submission was received from the Respondent on 1 December 2009. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 9 May 2011, 9 June 2011, 21 June 2011 and 23 September 2011. Both parties attended the hearing.
3. School disciplinary procedure
An explanation of the school disciplinary process is necessary to understand the evidence of both Complainant and Respondent. The School Guidelines and Code of Behaviour states that:-
"A detailed and graduated series of school actions/responses will apply to deal with breaches of school guidelines. This will be in paralleled by pastoral guidance and a high level of home-school communication from the earliest stage.
Breach 1. Details of the incident will be accurately recorded in the class discipline book and signed by the reporting staff member [i.e. 1st booking]. At the end of the same school-day, the head of discipline for the relevant class will dispatch a letter [Litir 1A] to the parent(s) guardian(s) notifying them of the discipline breach and the student is also interviewed by the head of discipline.
Breach 2. When/if a 2nd booking is incurred, a second litir [Litir 2A] is sent to parent(s) guardian(s). the facility of a meeting with the relevant head of discipline is extended to the parent(s)/guardian(s) though not insisted upon.
Breach 3. A third letter [Litir 3A] is posted to parent(s)/guardian(s) notifying them of the 3rd booking. The student is interviewed by the head of discipline and placed on a Monitoring Card for a period of 5 full school-days. Parent(s)/guardians(s) may also be spoken with via telephone or at a personal meeting.
The Monitoring Card system is central to the administration of monitoring/promotion of behaviour/improvement and must be afforded the highest level of respect by any involved pupil.
"A student on a Monitoring Card is obliged to
a) keep the card neat and tidy and on her/his person for the duration.
b) afford it the privacy of a private document between the student, parent(s)/guardian(s) and the school.
c) place it on the teacher's desk at the start of each class and invite the teacher to mark and initial the appropriate slot at the end of class.
d) ensure that the card is signed each night by parent(s)/guardians and that the card is presented to the head of discipline the following morning before 11.45am for countersigning.
e) the classroom teacher is obliged to award a mark according to the extent the student complies with the three criteria set out below:
o Student is attentive and participates fully in class
o Courteous behaviour shown towards subject teacher and fellow students
o Uniform dress code and class materials/books presented as per standard required by school code of conduct.
The possible marks are:
A for all three criteria
B for two of three
C for one of three
D for poor response to all three
E if there is an unsatisfactory response to all three
An E grade at any time will necessitate the student's removal from class and may result in suspension.
Parent(s)/guardian(s) are obliged to sign the card each night and to support the school's behaviour modification/improvement efforts by continually monitoring the grades and performance.
"Short-circuit offence. Foirm Spesialta 'A' (FSA).
If a student is involved in behaviour which is unacceptable to any teacher/staff member (especially any form of disrespect) instant action may be taken. Another pupil (not the student involved) may be sent to the staff-room to ask another teacher to stand in while the subject teacher or teacher on supervision duty completes a FSA and brings the student to the relevant Head of Discipline/Deputy Principal who will investigate the incident getting clear statements from the parties involved and other witnesses. The Principal is involved only when all investigations are complete as she/he must impartially review the evidence before taking any action. All work in class must stop as an exemplary protest against such behaviour. The relevant Head of discipline will consult with the Principal as to the length of term of suspension which may apply."
4. Summary of the Complainant's case
The Complainant is a secondary school teacher of Irish and English. She was employed by the Respondent under a contract of indefinite duration dated 26 July 2007 to teach Irish and English to Leaving Cert (Higher) standard, Religious Studies to Leaving Cert standard, and Social Political and Health Education and Civic, Social and Political Education to 3rd year standard. The Complainant gave up a permanent whole time position in another school to take up the position in the Respondent's school for family reasons. While there was no explicit provision in the written contract of employment for a probationary period it is agreed by both parties that such a condition was understood and accepted. The Complainant commenced employment with the Respondent in September 2007.
The Complainant alleges excessive supervision by the Principal; damage to her car and discrimination in not being allowed park it safely; lack of support from the school management; sexual harassment by a number of male pupils; failure by the Respondent to investigate her complaints of sexual harassment; negative assessment of her work as a consequence of her making sexual harassment allegations; and having her employment contract terminated as a reaction to her making such allegations.
5. Summary of Respondent's case.
The Complainant made unsubstantiated allegations against a number of pupils. All alleged disciplinary claims made by the Complainant were fully investigated by the Respondent but no corroborating evidence of any type could be established. The Respondents took the view that justice and fairness was best served by disregarding the allegations as no corroborating evidence was uncovered despite the thoroughness of the investigations which took place.
The Board of Management on 5 June 2008 decided not to offer the Complainant a contract of employment for the following school year after hearing a report from the Principal. The Principal's report to the Board stated that
"having probated [the Complainant's] performance and assessed her overall suitability in this school with its ethos and traditions, I find that she has not satisfactorily completed her probation as such. I am reporting to the Board of Management that as Principal of the school I am not satisfied that [the Complainant] has satisfactorily completed the probationary period."
The Respondent argues that the decision not to renew the Complainant's contract was not a reaction to her claims of sexual harassment but because of her failure to adhere to disciplinary procedures, thereby exposing the school to threat of litigation and reputational damage.
6. Detailed allegations of Complainant and Respondent's reply.
6.1 Excessive supervision by Principal.
Complainant: Despite her considerable experience in teaching, the then Principal instructed her, on more than one occasion, what to teach in her classes. While the Complainant was open to discussing class content and syllabi with the Principal, she found it very unusual and somewhat disconcerting that he would intervene in this way.
Respondent: The then Principal denies instructing the Complainant on what to teach in her class and in his time as a Principal since 1992 has never so instructed any teacher what to teach in his or her class.
6.2 Damage to car.
Complainant: In or about October 2007, her car suffered minor damage while parked in the rear of the school. The car was scratched in several places, Tippex was painted on the door handle and the air caps removed. The Complainant began to park her car at the front of the school albeit on double yellow lines. Because other teachers parked there the Complainant didn't consider that this would cause a difficulty. After a number of days the Principal instructed her to move her car notwithstanding that he did not suggest that any of the other teachers move their cars. In oral evidence the Complainant said that other female teachers were allowed to park in front of the school. The Complainant was of the view that the Principal did not believe or was not concerned that her car was vandalised.
Respondent: The Complainant approached the Principal in October 2007 to say that air caps were being removed from her car. The car was parked in an area where pupils did not gather or congregate. The Principal kept an eye on the car every day for a week and the Complainant's car was not interfered within any respect during this period. The Principal explained this to her at the end of the week. The Complainant made no comment and did not raise the issue again. The Complainant never raised any issue regarding Tippex or scratches.
6.3 Sexual harassment by Pupil A.
Complainant: The Complainant alleges that in January 2008 a 3rd year pupil (Pupil A) started to verbally sexually harass her in class. On 10th January he called her derogatory names in class including the words "slut", "skank" and "whore". The Complainant states that she completed a FSA in respect to this pupil. She claims that she brought the pupil's behaviour to the attention of the Principal but no action was taken by him of any other manager. In oral evidence the Complainant stated that she gave the teacher in charge of discipline a FSA on 8 February 2008 in respect of this pupil, 4 weeks after the first incident. The FSA as submitted at the hearing does not appear to make any reference to anything happening on 10 January 2008. It appears to make allegations that Pupil A used offensive language in class in her hearing on 21 and 28 January 2008, muttering 'fuck off' under his breath and continuously using the word 'slut'. During oral evidence the Complainant agreed that the form was amended later by her to include specific allegations that the words 'slut', 'skank' and 'bitch' were used by Pupil A.
From 31 March 2008 the same pupil was on a Monitoring Card for one week for misbehaviour (not in the Complainant's class). The Complainant gave him an E grade for his behaviour in her class twice in that week which would mean his suspension from school. The pupil appealed against this grading, denying any misbehaviour in her class. The Complainant completed a FSA form on 2 April 2008 explaining her awarding 'E' grades because he said the word 'slut' in her class. She handed this to the Vice-Principal along with a copy of the FSA dated 8 February 2008. She also reported previous incidents of inappropriate language by him, namely on 6 February 2008, 29 February 2008 and 4 March 2008. The Complainant claims that nothing was done to investigate her complaints.
Respondent: The Respondent states that the allegations against Pupil A were brought to the attention of the Principal orally for the first time on 31st January 2008. If the issue did arise on 10 January 2008 it should have been brought immediately to the Head of Discipline by the next day at the latest. A delay of 3 weeks in bringing the issue to the attention of management meant it was not possible to hold an effective investigation.
The Respondent claims that the FSAs dated 8 February 2008 and 2 April 2008 were not given to management until 4 April 2008, when the Vice-Principal asked the Complainant why she had awarded an 'E' grade for conduct to Pupil A that week. The Vice-Principal advised the Complainant that he could not proceed to investigate the 'old' allegations. He did, however, investigate her allegation that Pupil A had called her a slut that week. He questioned Pupil A at length and questioned two other pupils who he knew to be truthful and who sat close to Pupil A. Pupil A vehemently denied saying anything offensive in class and the two other pupils did not hear him say anything either. The Vice-Principal concluded that there was no evidence to support the Complainant's allegation. He was satisfied that his investigation was thorough.
6.4 Sexual harassment by Pupil B
Complainant: The Complainant states that on 24th January a 1st year pupil, (Pupil B) also referred to the Complainant as a "slag". The Complainant asked to see the pupil at lunchtime after class and when she did so, she asked him to repeat the word he had used. He eventually admitted to saying the word "slow". The Complainant did not believe him. She spoke to the pupil's mother about the incident at a parent-teacher meeting that evening. A meeting with the pupil's parents was held a number of days later. The Complainant attended this meeting with the Respondent's Head of Discipline and the Vice-Principal. At the meeting the Complainant accepted an apology from Pupil B for talking in class, who admitted talking but denied using offensive language. While the Complainant considered that the Head of Discipline and the Vice-Principal gave her support, she was disappointed that the Principal did not become involved or did not attempt to help the Complainant in any way. The Complainant stated that Pupil B did not misbehave in her class again.
Respondent: The Respondent rejects the criticism of the Principal. Under the disciplinary code the Principal is involved only when all investigations are complete as she/he must impartially review the evidence before taking any action. In this case the correct procedures were followed in that the Head of Discipline and the vice-Principal investigated the complaint and resolved the matter. The pupil was given a severe warning by the Vice-Principal as to his future conduct.
6.5 Sexual harassment by Pupil C.
Complainant: She states that on 29 January 2008 a 3rd year pupil, Pupil C, called her "a slapper and a bitch" in earshot of the class. The Complainant called the Vice-Principal to her class and Pupil C was removed from class. Five pupils were taken out of class to corroborate the story. The Complainant completed an Incident Report Form but Pupil C was not suspended and she never received an apology.
On 14 March 2008 the same pupil, Pupil C used the word 'slut' in class. The Complainant immediately filled in a FSA on the spot. She handed it to the Principal who handed it back to her saying that it contained insufficient information.
Respondent: states that the Complainant's complaint was investigated immediately by the Vice-Principal. Pupil C admitted losing his temper in class and shouting at the teacher when she accused him of name calling. Pupil C swore to the Vice-Principal that he had not said anything insulting about the Complainant. The vice-Principal spent 45 minutes interviewing 5 pupils to find out what happened. No pupil, not even those sitting nearest to Pupil C, heard him utter any insulting remarks. The vice-Principal concluded his investigation and reported to the Principal that as he was unable to verify the Complainant's allegations against Pupil C they could not proceed with any sanction.
As regards the 14 March 2008 incident, the Respondent states that the Complainant had not been specific in her allegation, stating merely that Pupil C was "argumentative in class", which was an insufficient basis for an investigation.
6.6 Pupil D
Complainant: On 29 February 2008 a 1st year student (Pupil D) called the Complainant a 'slut' in class. The Complainant telephoned the pupil's mother to report the incident. The mother informed the Complainant that she would deal with the issue. However a day or so later the mother arrived at the school unannounced and said that her son was a "lovely boy" who would not engage in name calling. The mother berated the Complainant in a loud tone on the school corridor. The Principal observed the scene and did nothing to calm the mother down or support the Complainant. The Complainant found the situation very distressing. Subsequently the Principal asked the Complainant about the matter. The Complainant explained it. The Complainant understands that the Principal subsequently spoke to Pupil D who denied that he engaged in name-calling. The Principal took no further action.
Respondent: Although the Complainant did not complete a FSA, the Principal investigated the allegation. He spoke to the Complainant, Pupil D and four other pupils in the class. The Complainant told him "I hear 'slut' in almost every class. It has been happening every single day." The Principal could not find any evidence of the term 'slut' being used by Pupil D on the day in question.
6.7 Incidents involving Pupil E.
6.7.1 Offensive drawing
The Complainant produced at the hearing a page from an exercise book which appears to be a drawing of male sex organs scrawled over homework answers. The homework is dated 27 November 2007. In the corner the Complainant has written the name of a pupil, Pupil E, and the date 10 January 2008. The Complainant claimed that this drawing was handed up to her on the latter date and was a clear case of sexual harassment. She made copies and brought it to the attention of the Head of Discipline but that the Head of Discipline did not order an investigation.
The Respondents point out that this incident was not part of the original submission made by the Complainant. The incident was fully investigated at the time. Pupil E was initially suspected but on investigation another pupil was found to be the culprit and was punished. The Complainant was aware of the outcome of the investigation.
6.7.2 Name-calling and gestures
On 13 March 2008 the Complainant met the Principal for a probationary review. During the course of the meeting she alleged that Pupil E and Pupil F called her "slut" on 20 February 2008 but that she ignored them. When the Principal asked about Pupils B and D, she said that Pupil D was quiet enough at the moment but that she was certain that he had called her a slut as had Pupil B.
On 9 May 2008, the Complainant wrote to the parents of Pupil E a "Litir 1" complaining that he was disregarding teacher's instructions and showing a lack of courtesy. The Complainant commented in the letter that "the purpose of this document is to report on talking out of turn in class and disregarding classroom rules." Pupil E's mother asked the Complainant for a meeting to discuss the letter. According to the mother's written record of the meeting, the Complainant explained that Pupil E was talking to another pupil and was asked to stand up. Pupil E asked why he was asked to stand and was told he was talking to another pupil. Pupil E denied this saying his hand was up seeking permission to go to the toilet. The Complainant did not believe him and made him stand until the end of class. The Complainant at the meeting with the parent went on to allege that Pupil E had made "sexual gestures" to the Complainant in November 2007 (i.e. six months previously) and on two occasions ( in February 2008 and on 8 May 2008, during the "standing up" episode) verbally abused her by saying 'slut'. The parents were alarmed by these allegations and questioned their son. They were convinced by him that he was telling the truth when he denied the allegations. The parents wrote to the school seeking an urgent meeting, stating that
"there is obviously some serious misunderstanding between [the Complainant] and [Pupil E] resulting in either [Pupil E] being accused of sexual harassment towards his teacher and also a defamation of character towards [Pupil E] and we feel that the truth in this matter needs to be sought and found by any means possible by the school itself or by our own means. All we want is the truth."
The meeting sought by the parents was held on 23 May 2008. The Principal, the Vice-Principal, the parents of Pupil E and the Complainant were in attendance. The parents complained that they would not have found out about the allegations against their son if they had not asked for a meeting with the teacher. The Principal stated that neither of the alleged offences were reported or filed to anyone by the Complainant. The first he knew about the allegation of 20 February was on 13 March, too late to investigate. The other allegations he heard of on 15 May. The Principal promised to do his best to reinvestigate and report back to the parents. In the event the Principal went back to a few pupils but could not investigate it properly due to lapse of time.
6.8 Other allegations
The Respondent states that in all the Complainant made allegations against 8 pupils in 6 classes. Most of these allegations could not be investigated because the Complainant did not follow the Disciplinary Code in making the complaints and were too late for a meaningful investigation. Those complaints that could be investigated were investigated. None could be substantiated. The Respondent formed the view that the complaints lacked credibility, were damaging to the reputation of the school, were leading to threats of legal action by parents and were extremely distressing for the pupils involved.
6.9 Evidence of other teachers
In the course of the hearing, three teachers who were colleagues of the Complainant gave evidence. None was aware of the allegations of sexual harassment made by the Complainant at the time. None was aware of reputational damage to the school at the time. One teacher had herself been a victim of sexual harassment by a pupil (not one of those against who the Complainant made allegations) and stated that she was satisfied with the response of school management to her complaint and the sanction imposed on the pupil perpetrator. One teacher gave evidence that the Complainant appeared flustered in school after Christmas 2007. She asked his advice on handling troublesome pupils. He said that some pupils had complained to him that the Complainant couldn't control the class. The pupils were worried about their exam prospects as the Complainant's class tended to degenerate into anarchy. He decided to observe the class unseen by the Complainant and by the pupils with the intention of identifying the troublemakers. He witnessed a well managed, normal, positive class.
7. Probation
The Complainant alleges she was given an extremely negative probationary report by the Principal as a reaction to her making sexual harassment complaints and not related to poor performance on her part. The Principal denies this. It is clear from the Principal's own notes (supplied by the Complainant) that the meeting focused on strategies for maintaining control in classes. During a discussion of disciplinary issues the Complainant made further allegations of sexual harassment by pupils.
The Complainant alleges that after the meeting the Principal suggested that he or the Vice-Principal would supervise her classes. The Respondent denies this saying that all he had in mind was keeping an eye on the class through the window in the door "to send the appropriate message out to students."
A second Probationary meeting was held on 21st April 2008 at the Complainant's request. This time the Complainant was accompanied by the Association of Secondary Teachers (Ireland) (ASTI) shop steward. The meeting was concerned with the Complainant attempting to counter what she saw as the negative tone of the Principal's report of their meeting of 13 March 2008. The shop steward in evidence at the hearing said that it was agreed at the meeting that the disciplinary issues including the sexual harassment allegations would put be put on a separate file and not included as part of the Probationary review.
8. Termination of employment.
8.1 The Principal prepared a note for the Baard of Management dated 29 May 2008 on the performance of the Complainant entitled "Matters that caused me serious concern", as follows:
1. Deficiency in work performance:
Failure to adhere to disciplinary procedures by failing to report alleged breaches of discipline to the head of discipline, the deputy Principal or Principal in a timely fashion.
Example: Alleged breaches of discipline by [Pupil E]. Her failure in immediate communication of behaviours exposes the board in respect of its legislative requirements under health & safety and discrimination legislation.
2. Non co-operation with the probation process.
Example: not agreeing to the Principal visiting her classroom.
8.2 The Respondent Board of Management met on 5 June 2008. The following is an extract from the minutes of the meeting.
"The Principal made a statement to the Board:-
Having probated [the Complainant's] performance and assessed her overall suitability in this school with its ethos and traditions, I find that she has not satisfactorily completed her probation as such.
I am reporting to the Board of Management that as Principal of the school I am not satisfied that [the Complainant] has satisfactorily completed the probationary period.
"...The Principal made a statement to the Board and he outlined matters that had caused him concern.
A delegation from ASTI comprising an Industrial Relations (IR) official and an Executive member accompanied the Complainant to the meeting.
"It was put forward by the ASTI delegation having consulted the Complainant that two examples pertaining to the Complainant's performance would be put forward by the Principal and defended by the Complainant. The Principal outlined two examples of how the Complainant had dealt with two pupils in the school. The Complainant defended her actions with a detailed reply. When the Complainant and the ASTI Executive member withdrew, the ASTI IR official representing the Complainant requested the Board of Management to consider granting the Complainant a second probationary year where controls, deadlines, formal scheduled and meeting [sic] agreed by all parties would be put in place. He said that requirements under legislation could be legally set aside if the board was willing to grant such a request.
"Having heard the Principal's report and the defence by the Complainant of the allegations put forward, the Principal, the Complainant and the ASTI representatives withdrew while the board made its deliberations and came to its decision. The unanimous decision of the board was to terminate the contract of the Complainant. This statement was conveyed to the Principal:
"As [the Complainant] is on probation, the board feels that things haven't worked out for her in this school and is terminating her contract of employment from 31 August 2008."
This was conveyed to the Complainant in writing by the Principal.
9. Conclusions.
I have considered all the evidence both written and oral presented to me.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. In a recent Determination the Labour Court1, whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
I shall now consider in turn each of the complaints of discrimination made by the Complainant.
9.1 Excessive supervision by Principal.
Even if the allegation was true, it would not constitute discrimination under the Acts because the Complainant has not presented any evidence that the Principal treated her less favourably because she is a woman.
9.2 Damage to car
If the Complainant's car was vandalised, that does not constitute discrimination unless it is harassment on one of the discriminatory grounds. No evidence was presented that the Complainant's car was interfered with because she was a woman. Even if the allegation of unfavourable treatment in car parking (compared to other teachers) was true, it would not constitute discrimination on the gender ground since by the Complainant's own admission, other female teachers were allowed park where she was not.
9.3 Probation and dismissal
No evidence was presented that the Complainant was dismissed because she was a woman. Further, no evidence was presented that the Complainant was subject to greater scrutiny in probation because she was a woman. It was accepted by the Complainant that her appointment was subject to a probationary period.
For these reasons I conclude that the Complainant was not discriminated against on the gender ground in conditions of employment by not offering her the same treatment in relation to protection of her property, probation, supervision and dismissal as the Respondent afforded to other persons.
10. Claims of sexual harassment.
10.1 The Complainant pointed out that whether conduct constitutes sexual harassment or not depends upon how the conduct was regarded by the recipient rather than upon the motive or intention of the perpetrator. The Complainant's case is that she reported incidents of what she considered sexual harassment to the school management but management's response was inadequate. The Complainant argues that the Respondent failed to take such steps as are reasonably practicable to prevent pupils or fellow employees from sexually harassing the Complainant or female teachers generally and therefore the Respondent has no defence in law (under section 14A(2)(a) of the Acts) from a claim of discrimination.
10.2 The Respondent argues that the Complainant has not met the threshold of proving the primary facts on which she relies. The Respondent maintains that it took all such steps as were reasonable to prevent any such harassment, which is denied, occurring and in this regard relies on section 14A (2) and section 15 (3) of the Acts. The Respondent also maintains that it has sufficient policies and guidelines in place to ensure a harassment-free workplace for all its employees.
10.3 The primary facts in this case are that certain pupils called the Complainant certain names and, in one case, a sexually explicit drawing was handed in to her. The Complainant must establish these facts before I can consider the adequacy of the response of management or the robustness of the procedures for dealing with such complaints.
10.4 Apart from the assertions of the Complainant, there is no evidence to support her claims that the words complained of were actually spoken. All the alleged perpetrators denied saying the words. Where the Complainant submitted her claims in time, the school management investigated thoroughly and could not find any eyewitness who heard the alleged perpetrators say the words claimed to have been heard by the Complainant. All the alleged conduct happened in classes with significant numbers of pupils present. I note that the Code of Practice on Sexual Harassment and Harassment at Work2 states that the employer's complaints procedure should make clear that in the course of investigating the complaints the employer will make no assumptions about the guilt of the alleged harasser. Therefore, in this case the Respondent is correct in concluding that without some independent evidence, from someone else present at the scene, of the fact of the impugned words having been uttered, the Respondent could not proceed to impose a sanction on the alleged perpetrator.
10.5 There was real evidence produced at the hearing in the form of a crude drawing of male sex organs scrawled on a pupil's copy. It is clear from section 14A (7) (c) of the Acts that unwanted conduct of a sexual nature would include the production, display or circulation of such a drawing. Therefore this incident constitutes a prima facie case of sexual harassment. The question then is: is the Respondent liable or can they avail of the defence in section 14A (2)?
10.6 Section 14A provides:
14A. -- (1) For the purposes of this Act, where --
(a) an employee (in this section referred to as 'the victim') is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as 'the workplace') or otherwise in the course of his or her employment by a person who is --
...
(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,
...
the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable --
(a) in a case where subsection (1)(a) applies ... to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim.
...
(7) (a) In this section --
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
10.7 In the case of the drawing, the school management investigated the case and identified and punished the pupil responsible. An employer is required to take such steps as are reasonably practicable to prevent sexual harassment occurring. As the Labour Court stated in a similar case3-
"...if an employer controls the situation in which harassment occurs and fails to exercise that control so as to prevent harassment occurring or in reducing the extent of it, he/she will be directly liable for having subjected the employee to the harassment...It also appears to the court that situations can arise in which an employer may adopt a course of action to avoid harassment of an employee but that harassment nonetheless occurs. In such cases, the employer could not be fixed with liability if the action taken, although unsuccessful, was in all the circumstances, as much as the employer could reasonably have been expected to do."
10.8 In the Labour Court case under reference, although that school responded with severe penalties where offending students could be identified, the imposition of disciplinary sanctions was not in itself sufficient to alleviate or control the developing culture of sexual harassment. The school management in that case failed to fully accept the plain fact known by all the teachers that teachers were being sexually harassed at the school. In the present case, from the evidence given by other teachers at the hearing, while instances of sexual harassment have occurred there is not a culture of sexual harassment in the school and the teachers were satisfied that disciplinary measures are effective. Moreover, in my view the combination of the Respondent's Dignity in the Workplace policy and the School Guidelines and Code of Behaviour for pupils, when applied correctly, are an effective preventive measure against sexual harassment of staff by students. On that basis I distinguish the present case from the previous case on the facts. The Respondent can avail of the defence of having taken such steps as are reasonably practicable to prevent sexual harassment taking place. I can conclude therefore that the Respondent did not discriminate in relation to the Complainant's conditions of employment by failing to take such steps as were reasonably practicable to prevent her sexual harassment.
11. Victimisation
Section 74 (2) of the Acts 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 the employee to the employer,
(b) any proceedings by a Complainant,
(c) an employee having represented or otherwise supported a Complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs."
11.1 The Complainant claims that her employment contract was terminated as a reaction to a complaint of sexual harassment (which is a form of discrimination) made by her to her employer. The decision of the Board of Management was taken after the Principal had withdrawn from the meeting. No one who was present when the decision was taken came to give evidence at the hearing. I must therefore decide what the reasons for the decision were, based on the submissions made to the Board prior to their decision and from the official minutes of the board meeting.
11.2 It is clear to me that the effectiveness of the Complainant as a teacher was not a factor in the board's decision. No criticism was made of the Complainant's ability to teach the subjects she was employed to do. The Principal prepared a note for the Baard of Management dated 29 May 2008 on the performance of the Complainant entitled "Matters that caused me serious concern", as follows:
1. Deficiency in work performance:
Failure to adhere to disciplinary procedures by failing to report alleged breaches of discipline to the head of discipline, the deputy Principal or Principal in a timely fashion.
Example: Alleged breaches of discipline by [Pupil E]. Her failure in immediate communication of behaviours exposes the board in respect of its legislative requirements under health & safety and discrimination legislation.
2. Non co-operation with the probation process.
Example: not agreeing to the Principal visiting her classroom.
From the written and oral evidence of the then Principal, I can discount as irrelevant to the decision to terminate the contract, the allegation of non co-operation with the probation process. It appears from the minutes of the Board of Management meeting that this issue was not discussed.
11.3 The then Principal in oral evidence said that the focus of the discussions before he withdrew from the meeting was primarily on the Complainant's treatment of Pupil E and of his parents. It is clear to me that if the Complainant had not made allegations of sexual harassment her contract would not have been terminated. No witnesses could recall any other case in the school's history of a teacher not being kept on after probation. The Respondent seeks to distinguish between the form and substance of the Complainant's complaints; that it wasn't for making complaints of sexual harassment as such that she was dismissed but for making such complaints in a manner which caused harm. I note for example that the case of Pupil E that the Complainant made an allegation of sexual harassment directly to the parent of the pupil, 6 months after the alleged event occurred. However I am not convinced by such fine distinctions.
11.4 Some witnesses for the Respondent expressed the opinion that if her allegations had been proved she would not have lost her job, the implication being that it was not for making allegations of sexual harassment but for making false allegations that she was fired. Section 74 (2) not only protects those who make allegations which are upheld; it also protects those who make allegations which are not upheld.
11.5 I conclude that the Complainant's contract was terminated as a reaction to a complaint or complaints of discrimination (in the form of sexual harassment) made by her to her employer and that she was therefore victimised within the meaning of section 74 (2) of the Acts. The Acts do not provide for any defence by an employer which would justify victimisation. The arguments of the Respondent that they were acting in the best interests of the whole school community cannot be entertained as a defence.
12. Redress
The Complainant sought reinstatement. In my view it would not be in the best interests of all to order reinstatement in view of the obvious breakdown in relations within the school. Instead I award monetary compensation. In determining the level of compensation I take into account the devastating impact the loss of her job has had on the Complainant's career. From having a full-time job with a contract of indefinite duration on a salary of €50,000 a year, she is earning just €300 a week as a part-time teacher.
13. Decision
In reaching my decision I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the Complainant
1. was not discriminated against by the Respondent in relation to conditions of employment on grounds of gender, in terms of section 6 (2) the Acts and contrary to section 8 of the Acts by not offering her the same treatment in relation to protection of her property, probation, supervision and dismissal as the Respondent afforded to other persons ("the comparators") where the employment circumstances of the Complainant and the comparators were not materially different;
2. was not sexually harassed at her place of work by pupils of the Respondent, within the meaning of section 14A (1) (a) (iii) of the Acts; and
3. was victimised by the Respondent (within the meaning of section 74 (2) of the Acts) by being dismissed by them as a reaction to complaints of sexual harassment made by the Complainant to the Respondent.
I make an order for compensation for the effects of the act of victimisation in the amount of €75,000 which corresponds to 18 months' salary. As this does not include any element of remuneration, it is not subject to income tax.
Niall McCutcheon
Director
August 2012.
1 Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.
2 Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (S.I. No. 78 of 2002)
3 A Boys' Secondary School v Two Female Teachers [AEE/01/9]