DEC-E2014-040

Decision No: DEC-E2014-040

Parties

An Employee

(Represented by Mr. Barry Mansfield BL

Instructed by Elizabeth Ward and Company - Solicitors)

-v-

A Call Centre

(Represented by IBEC)

File No: EE/2010/832

Date of issue:29 May, 2014

Headnotes: Employment Equality Acts 1998- 2008 – sections6.8.14A and 74 – discriminatory treatment – harassment – gender - victimisation – constructive victimisatory dismissal- prima facie case

1. DISPUTE

This dispute involves a claim by a complainant that she was (i) discriminated against by her employer (“the respondent”) on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, (ii) harassed by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts, (iii) sexually harassed by the respondent contrary to section 14A of the Employment Equality Acts 1998-2008, (iv) vicitimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and (iv) dismissed by the respondent in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998 – 2008. The respondent rejects the complainant’s assertions in their entirety.

2. BACKGROUND

2.1 The complainant commenced employment with the respondent as a Customer Service Agent, initially on an agency basis in mid-March, 2009 and on a permanent basis a month later. She states that she initially got on well with her colleagues but that soon after she commenced permanent employment her Supervisor (Ms. A) started making comments which she (the complainant) found offensive and which she now alleges amount to harassment of her contrary to the Acts. She adds that in addition, Ms. A subsequently made inappropriate sexual advances to her and that when she rejected them her Supervisor victimised her by assigning her menial tasks, an unreasonable workload and berating her in front of colleagues. The complainant further states that when she reported these matters to the respondent she was placed under pressure not to pursue them formally and when she refused to do so the respondent failed to deal with the matter in an appropriate manner. She further states that matters became intolerable for her and this, combined with the respondent’s inaction to investigate her complaint, left her with no option but to consider herself constructively dismissed on 23 September, 2010 in circumstances amounting to victimisation contrary to the Acts. The respondent rejects the allegations in their entirety.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 8 November, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 9 January, 2013 - the date it was delegated to me. A Hearing on the complaint took place on 30 July, 2013, the earliest date that was suitable to both parties. A number of issues arose at the Hearing which required further clarification and comment and gave rise to further correspondence between the parties and the Equality Officer. This process concluded in mid - December, 2013. Given the sensitive nature of the allegations of this complaint I have decided, in accordance with the general practice of the Tribunal in such circumstances and with the consent of the parties, not to publish their identities in this Decision.

3. SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant states that she commenced employment with the respondent as a Customer Service Agent, initially on an agency basis in mid-March, 2009 and on a permanent basis a month later. She adds that initially she got on well with colleagues but that sometime in mid-May, 2009 her Supervisor (Ms. A) got over-friendly with her. The complainant adds that Ms. A asked her inappropriate questions about her (the complainant’s) sex life in front of other colleagues whilst at work. She states that this made her feel extremely uncomfortable and she attempted to ignore Ms. A, although this was unsuccessful. The complainant states that she informed Ms. A she found her comments inappropriate but she (Ms. A) told the complainant she was being shy and continued to make the comments (twice/three times per week). In the course of the Hearing the complainant stated that she never raised this matter with Management, but added that she raised certain aspects of Ms. A’s behaviour in a letter to Mr. C (the Call Centre Manager) dated 16 March, 2010. It is submitted on behalf of the complainant that this amounts to (i) harassment on grounds of gender and (ii) sexual harassment of her contrary to section 14A of the Employment Equality Acts, 1998-2008.

3.2 The complainant states that both she and Ms. A were rostered to work several Saturdays together. The complainant adds that on one such occasion in July, 2009 Ms. A said to her that she (the complainant) was her “soul mate” and that if she (Ms. A) had been a boy she would have been the complainant’s “boyfriend”. The complainant states she was speechless at these comments and did not respond to her. She adds that the following week Ms. A made comments to her about the size of her (the complainant’s) breasts and states that she made similar comments on about three subsequent occasions shortly thereafter. The complainant states that these comments embarrassed her and she indicated this to Ms. A. The complainant further states that during this period Ms. A also made crude and derogatory comments about the complainant’s boyfriend which had sexual undertones. She adds that these comments were also made in front of colleagues who found them extremely humorous. She states that she was “mortified” at the time and tried to deflect this by ignoring the comments. In the course of the Hearing the complainant stated that she never raised either of these matters with Management. It is submitted on behalf of the complainant that this amounts to (i) harassment on grounds of gender and (ii) sexual harassment of her contrary to section 14A of the Employment Equality Acts, 1998-2008.

3.3 The complainant states that Ms. A was responsible for assigning team members their shifts. She adds that in August, 2009 Ms. A started to assign her shifts which finished at 7pm on a far more frequent basis than other colleagues and that this treatment continued until she went on extended sick leave in June, 2010. The complainant contends that Ms. A did so because she (the complainant) had rejected her advances and that Ms. A was jealous of any social life she (the complainant) had and was attempting to scupper same – the complainant gave details of a particular occasion when she had arranged to go to the cinema with a friend and Ms. A insisted that she remain at work late. The complainant states that around August, 2009 Ms. A started to post derogatory comments about her (the complainant) on Facebook and also send her text messages calling her “Northside Scumbag”. The complainant contends that Ms. A treated her in this manner because she (the complainant) had rejected her advances. In the course of the Hearing the complainant stated that she never raised these matters with Management. It is submitted that this amounts to (i) harassment on grounds of gender contrary to section 14A of the Employment Equality Acts, 1998-2008, (ii) sexual harassment contrary to section 14A of those Acts and (iii) victimisation of her in terms of section 74(2) of those Acts.

3.4 The complainant states there were several work related social events with colleagues organised, although she tended not to go to these. She adds that in August/September, 2009 Ms. A purchased her own house and a number of these social nights involved something at her house – DVD nights, make-up parties, hairdressing etc. The complainant states that she made excuses not to attend these nights but was subjected to significant pressure to do so. She adds that she eventually went to one evening in September, 2009 – when Ms. A arranged for a hairdresser to attend – and other colleagues were present. She adds that some weeks after this Ms. A invited her to attend another social event at her house and told her that other colleagues were attending. The complainant states that her colleagues never arrived and she was there alone with Ms. A. She adds that the house in located in a remote location and Ms. A refused to bring her home or give her a lift to somewhere where she could pick up public transport. The complainant states that in the circumstances she had no option but to stay at Ms. A’s house, although she was extremely uncomfortable with the arrangements. The complainant adds that Ms. A told her there were no blankets in the spare room and told her to sleep in her (Ms. A’s) bed. She adds that she assumed Ms. A would sleep elsewhere but later on Ms. A climbed into bed beside her. The complainant states that she immediately got out of the bed and went to the spare room where she remained for the night. She adds that she was scheduled to work 9am-4pm the following day but Ms. A instructed that she was to stay until 7pm. The complainant states that whilst shifts could be changed it was usually in exceptional, unforeseen circumstances. The complainant states that no such exceptional circumstances prevailed on this occasion and it is submitted on her behalf that this amounts to (i) harassment on grounds of gender contrary to section 14A of the Employment Equality Acts, 1998-2008, (ii) sexual harassment contrary to section 14A of those Acts and (iii) victimisation of her in terms of section 74(2) of those Acts.

3.5 The complainant states that her boyfriend was taken ill during the early hours of the morning on 23 December, 2009 and was subsequently admitted to hospital. She adds that she texted Ms. A and advised her of the situation and requested that she be permitted to take Christmas Eve off as annual leave in the circumstances. The complainant states that Ms. A refused her request and stated that a client was scheduled to attend the Office that day, that she (the complainant) was required to attend and that if she did not report for duty her position was in jeopardy. The complainant states that she attended work as requested, having been at the hospital until the early hours and when she arrived Ms. A made comments about her appearance. She adds that she explained she had been at the hospital all night and that her boyfriend had been admitted to hospital over the Christmas period Ms. A yelled at her and told her “it was not her f*****g problem”. The complainant states that later that morning Ms. A told her the client was not calling into the Office as they had finished work for Christmas the previous day. The complainant further states that later that day Ms. A called each of the team members (individually) into the Boardroom. She adds that this was under the pretext of chatting about punctuality and attendance. The complainant states that when she attended as requested Ms. A did not discuss these matters and merely sat in silence. She adds that when she asked Ms. A what was going on she replied “nothing I just want you to sit here”. The complainant states that she felt Ms. A was playing mind games with her and treated her in this manner because she (the complainant) had rejected her advances. In the course of the Hearing the complainant stated that she raised this matter with Mr. C and provided details of same in her letter of 16 March, 2010. It is submitted that this amount to (i) harassment on grounds of gender contrary to section 14A of the Employment Equality Acts, 1998-2008, (ii) sexual harassment contrary to section 14A of those Acts and (iii) victimisation of her in terms of section 74(2) of those Acts.

3.6 The complainant states that from early December, 2009 Ms. A started instructing her to complete menial tasks - cleaning desks and delivering verbal messages to other staff members located elsewhere in the building - tasks which were not in her job specification and were not performed by others. She adds that these tasks continued until June, 2010 when she went on sick leave. The complainant states that on one occasion (in early February, 2010) Ms. A instructed her to go to the Post Room to collect newspapers so that she (Ms. A) could check if certain items had been included in them. The complainant adds that when she told Ms. A she was busy and would get it shortly she (Ms. A) yelled at her “go now, go now” in front of colleagues. The complainant states that about a week after this incident she was standing at a colleague’s desk speaking to the colleague - who had asked her a question. She adds that Ms. A walked by the desk and said to her “X, sit down”. The complainant states that she attempted to explain she was answering her colleague’s query and asked Ms. A what was wrong and Ms. A said “sit down now because I said so”. The complainant states other members of staff began laughing and she (the complainant) was embarrassed at being berated in such a fashion and sat down. She adds that a few minutes later Ms. A approached her desk and put her face close to that of the complainant and said in a loud voice “lose the attitude now”. The complainant states that she felt extremely humiliated and threatened by this behaviour but when she tried to speak with Ms. A she turned her back and walked away. The complainant states that she believes this treatment of her was motivated by the fact that she had previously rejected Ms. A’s advances toward her. In the course of the Hearing the complainant stated that she furnished details of these incidents to Mr. C in March, 2010. It is submitted on her behalf that this amounts to (i) harassment on grounds of gender contrary to section 14A of the Employment Equality Acts, 1998-2008, (ii) sexual harassment contrary to section 14A of those Acts and (iii) victimisation of her in terms of section 74(2) of those Acts.

3.7 The complainant states that early in 2010 Ms. A assigned her new tasks – in particular she was assigned new duties of data entry. She states that Ms. A failed to demonstrate how these tasks should be performed and when she asked Ms. A for assistance or instruction on how to do them she (Ms. A) would lose patience with her. Moreover, if the complainant made mistakes in performing the work Ms. A would berate her and call her stupid. She states that Ms. A would do so in a loud manner in front of colleagues, which humiliated the complainant and destroyed her self-confidence. The complainant states that she believes this treatment of her was motivated by the fact that she had previously rejected Ms. A’s advances toward her. In the course of the Hearing the complainant stated that she furnished details of these incidents to Mr. C in March, 2010. It is submitted on her behalf that this amounts to (i) harassment on grounds of gender contrary to section 14A of the Employment Equality Acts, 1998-2008, (ii) sexual harassment contrary to section 14A of those Acts and (iii) victimisation of her in terms of section 74(2) of those Acts.

3.8 The complainant states that she was not aware of any policy which the respondent had on Bullying or Harassment. She adds that she was only nineteen years old at the time and felt hesitant of complaining about a senior member of staff. She further states she was embarrassed by the intimate nature of the alleged harassment and was not comfortable raising the matter as both Directors were male – there was no female in a senior management role above Ms. A whom she (the complainant) could speak with about the matter. The complainant states that despite this she decided she had to take action on the matter and she approached Mr. C on 15 March, 2010 (Counsel states that the date of 1 June, 2009 contained in correspondence on the matter submitted to the Tribunal is incorrect and is a typographical error) and gave an overview of Ms. A’s treatment of her from Christmas 2009. She adds that Mr. C asked her to put her allegations in writing and she did so the following day and placed the envelope in his pigeonhole in the Post Room. She adds that the envelope remained in the pigeonhole for a couple of days and it is submitted that this is indicative of the lack of regard which the respondent had for the matter. The complainant states that about four days later she met with Mr. C in his office. She adds that he informed her of the formal and informal routes provided by the respondent’s Bullying Policy. She states that he emphasised the negative aspects of the formal route describing it as like “being in Court” and that it would be her word against Ms. A’s. The complainant adds that she felt like she was being pressured into pursuing the informal route, if she was to pursue the matter at all. She states that given Mr. C’s comments (outlined above), his close relationship with Ms. A and the fact she believed that he would be one of the people would investigate any formal complaint, she felt she had no choice and was manipulated to select the informal route and confirmed same to Mr. C on 23 March, 2010 by e-mail. In the course of the Hearing the complainant stated that she never reported any of the incidents during the period June-December, 2009 (which had sexual undertones) to Mr. C at any stage. The submission filed on her behalf states that Mr. C’s dismissive attitude to the details she did furnish to him discouraged her from doing so.

3.9 The submission filed on behalf of the complainant states that she had expected the matter would be dealt with promptly once she had chosen the informal route. It adds that she did not, however, hear from Mr. C for two weeks and she began to lose confidence in the process. It further states that the complainant became so stressed with not knowing what was happening – in this regard she believed Ms. A was aware of the complaint because she (Ms. A) kept away from the complainant – that she decided to drop the matter altogether and informed Mr. C of same. The submission states Mr. C informed her that if she was withdrawing the complaint she would be required to confirm same in writing and he dictated the contents of same. In the course of the Hearing the complainant stated that she met with Mr. C on 25 March, 2010 and restated the affect the behaviour of Ms. A was having on her. She added that she was keen to bring matters to an end but knew that if she resigned it would impact on her social welfare entitlements – she therefore suggested to Mr. C that he might dismiss her to overcome any such reduction in entitlement. She added that Mr. C said that before the respondent could consider the proposition she would have to withdraw her complaint against Ms. A and in addition state that the bullying had been resolved and she was reassured in her belief that the respondent acted appropriately in dealing with the matter. The complainant states that Mr. C dictated the content of an e-mail to her which reflected these matters and she sent it to him on 26 March, 2010.

3.10 The complainant states that she met with Mr. C on 9 June, 2010 to see if there was any update on her proposal of her being fired. She adds that her health was deteriorating and she was anxious to clarify if her proposal was acceptable to the respondent but Mr. C informed her there was no update. The complainant adds that she did not want to pressure the respondent as she was looking for it to do her a favour. She further states that she met with Mr. C again on 18 June, 2010 to seek an update but she received the same response as before. The complainant states that she became so stressed that she was certified as unfit for work by her doctor and commenced sick leave on 25 June, 2010. She adds that her mother advised Ms. A of the complainant’s absence and that her medical certified was sent to her (Ms. A) immediately. The complainant states that the following day she received a number of extremely abusive and threatening text messages. She adds that she believes these texts were sent by Ms. A and reported same to the Gardaí. In the course of the Hearing the complainant advised that she never brought the existence or content of same to the attention of the respondent.

3.11 The complainant states that her health further deteriorated and she was advised not to return to work by her doctor. She adds that her solicitor wrote to the respondent on 30 August, 2010 advising of its intention to institute appropriate proceeding pursuant to employment equality legislation as regards harassment and constructive dismissal and under civil law for personal injury. The complainant accepts that she received both the respondent’s letters – 1 September, 2010 (direct to the complainant) advising of possible redundancies and 8 September, 2010 (addressed to her solicitor) advising that if the complainant had a grievance she might lodge it formally in accordance with the Grievance Procedure. The complainant states that her solicitor responded by letter dated 23 September, 2010 advising that she “has experienced in the past an inadequate and inappropriate response from [the respondent] when she sought recently to make a complaint” that given this experience and the detrimental effect it had on her “our client has absolutely no confidence in any grievance procedure that [the respondent] may have” and that she would not be returning to work on medical advice and she “considered herself constructively dismissed”. The complainant denies that either she or her solicitor received the respondent’s letter of 23 September, 2010. She accepts that her solicitor received the respondent’s letter of 13 October, 2010 and replied to same on 26 October, 2010. The complainant states no reply issued to the respondent’s letter of 29 October, 2010.

3.12 Counsel for the complainant argues that section 14A(1) and section 15 of the Employment Equality Acts, 1998-2008 places liability on the respondent for the actions of Ms. A. He submits that the behaviour of Ms. A towards the complainant falls within the definition of harassment and/or sexual harassment as defined at section 14A(7) of the Acts. He further submits that the respondent did not have any policy or procedures covering harassment and/or sexual harassment at the time and the complainant was therefore at a loss as to what exactly she should do. In this regards Counsel refers to the Decision of this Tribunal in A Female Employee v A Recruitment Company[1]. Counsel further submits that at the time the complainant was only nineteen years old and was nervous and reluctant to pursue a complaint against a senior colleague. In this regard he refers to a Decision of this Tribunal where the Equality Officer considered the young age of an employee to be a relevant factor[2]. Counsel further argues that when the complainant sought to invoke the Bullying Policy – which he states did not cover harassment or sexual harassment - she was actively discouraged by Mr. C from pursuing a formal complaint and her informal complaint was not dealt with in an appropriate manner by the respondent. Counsel submits therefore that in all the circumstances the respondent cannot avail of the defence at section 14A(2) of the Acts. Finally, Counsel submits that the respondent actions, by permitting Ms. A to harass the complainant in the first place and then by failing to address her complaint made in March, 2010 in an appropriate manner, are sufficient to entitle the complainant terminate her contract of employment and consider herself constructively dismissed in circumstances amounting to victimisation contrary to the Acts.

4. SUMMARY OF RESPONDENT’S CASE

4.1 The respondent rejects the complainant’s assertions in their entirety. It states that the alleged incidents detailed by the complainant between July, 2009 and December, 2009 were never brought to its attention at any time prior to the cessation of the complainant’s employment. It adds that consequently, it was unable to deal with them and submits that it cannot therefore be fixed with liability for same. In this regard it rejects the assertion contained in the letter dated 13 December, 2010 from the complainant’s solicitor to this Tribunal which states that she handed a complaint to Mr. C on 1 June, 2009. It adds that Mr. C only became Manager of the Call Centre in February, 2010 and could not therefore have received a letter of complaint from the complainant prior to that date. The respondent accepts that Mr. C met with the complainant on a number of occasions in March, 2010 during which she raised several issues concerning Ms. A from Christmas 2009 onwards. The respondent states that this was the first occasion it was aware of any issues and she did not mention any of the alleged incidents which preceded Christmas Eve 2009.

4.2 The respondent states that the complainant e-mailed Mr. C and Mr. N (Company CEO) on 15 March, 2010, seeking a meeting with them to discuss “quite a sensitive matter”. The respondent adds that Mr. C replied approximately ninety minutes later and agreed to the complainant’s request and the meeting took place within the hour. The respondent (Mr. C) states that he met with the complainant and that during the meeting she provided details of a number of alleged incidents involving Ms. A and he requested that she provide these details in writing. He adds that he also gave her a copy of the respondent’s Bullying Policy. The respondent states that this document is located on the respondent’s Intranet page which is the home page every time any employee starts his/her web browser. In the course of the Hearing Mr. C stated that the complainant made no mention of sexual harassment and she did not mention any alleged incidents which predated Christmas 2009. The respondent (Mr. C) states that he received the complainant’s written complaint detailing several alleged incidents and he e-mailed her on 19 March, 2010 asking her to “drop into me for a couple of minutes”. Mr. C states that he met with the complainant later that morning and explained the formal and informal routes available under the Bullying Policy. In the course of the Hearing Mr. C accepted that he may have used the phrases attributed to him by the complainant but stated that if he did so, it was by way of his efforts to explain the differences between the two processes to her and emphatically rejects the complainant’s assertion that it was an attempt on his part to pressure or manipulate her into selecting the informal route. He added that he suggested that she think about the matter over the weekend and revert to him. He also stated he informed her that any action which might emerge from the process would be conducted by the respondent’s Financial Controller (Mr. X).

4.3 The respondent (Mr. C) states that he was anxious to progress the matter and when he received no response from the complainant he e-mailed her on Tuesday 23 March, 2010 asking her if she could “come back to me today to advise on how you like you like (sic!) to proceed following our meeting”. The respondent (Mr. C) states that he received a replying e-mail from the complainant later that day saying “I have had a think about it and I personally think it would be best to take the informal route. Can you let me know when this will happen….”. The respondent (Mr. C) states that he met with the complainant on 25 March, 2010 to advise her of the next steps in the process and she informed him that she now wished to stop the process as Ms. A’s recent behaviour towards her had improved. He adds that he advised her that she could resume the process at any time in the future should she so wish. Mr. C accepts that he requested the complainant to confirm this position in writing but emphatically rejects the he dictated the content of the subsequent e-mail to her. He also rejects the complainant’s assertion that she mentioned the prospect of the respondent dismissing her at that meeting. The respondent (Mr. C) states that he received an e-mail from the complainant the following day (26 March, 2010) stating “I would like to drop you a small e-mail to confirm what we were speaking about yesterday. I would at this time like to put a hold on the informal action against Ms. A in relation to my accusations of bullying. My reason being that I have had no troubles in the last while and I hope this may have been resolved. Again, if anything does happen or if I have reason to take the formal action I know I can go to you anytime……”. Mr. C states that the complainant never came back to him at any subsequent time seeking to reactivate the complaint and it is submitted that he was acting according to her wishes at all times. He therefore rejects the complainant’s assertion that the respondent (he) failed to adequately address her complaint.

4.4 The respondent (Mr. C) states that the next time he had any direct dealings with the complainant was 8 June, 2010 when he received an e-mail from her asking if she could “have a quick word with you when you have a chance?”. He states that he replied later that day advising he would be in the office the following day. He adds that after exchanging a couple more e-mails with the complainant they met on the morning of 9 June, 2010. . He states that the complainant referred to the fact that the respondent had made some people redundant in recent months and added that for personal health reasons she would need to attend the hospital for treatment 2/3 time times per week for 6/8 weeks at least. He adds that she went on say that in those circumstances – where she was not 100% available for work - it would be unfair to terminate another person’s employment when she was interested in being made redundant. The respondent (Mr. C) states he informed her that as far as he was aware there were no plans for redundancy but he would talk to Mr. N and come back to her. He adds that the complainant informed him that her request had nothing to do with Ms. A as things were “OK” there.

4.5 The respondent (Mr. C) states that he received an e-mail from the complainant on the afternoon of 16 June, 2010 requesting a short meeting with him over the next few days “to give you a small update”. He states that for a variety of reasons they were unable to meet until 18 June, 2010. He adds that at the outset of the meeting he informed her that despite his efforts, he had been unable to discuss the issue of redundancy with Mr. N but reaffirmed he was unaware of any proposals in that regard. He further states that the complainant informed him she had found out that the treatment she was to undergo was expensive but that if she was made redundant the cost would be covered by “social welfare”. He adds that she informed him she was anxious to know about the redundancy because her treatment was to start shortly. The respondent (Mr. C) states that he advised the complainant he could not manufacture such a scenario and agreed to check urgently with Mr. N to see if something was coming down the tracks that he wasn’t aware of. The respondent states that he spoke with Mr. N on 24 June, 2010 who confirmed that there were no plans to make anyone redundant but before he could revert to the complainant to confirm this she commenced sick leave and did not resume work. The respondent states that the complainant never brought the existence or content of any abusive texts alleged to have been sent to her by Ms. A to its attention. It adds (Mr. C) that Ms. A approached him on 28 June, 2010 and informed him that she had received a phone call to her mobile phone over the previous weekend from a person who identified himself as a member of an Garda Síochána concerning abusive and threatening texts the complainant alleged were sent to her by Ms. A. The respondent (Mr. C) states that he asked Ms. A if she had sent such texts and she denied same, although she accepted she had texted her about her sick absence. Mr. C adds that he asked Ms. A for the number of the person who had called her but she was unable to do so as the number had been withheld. It is submitted on behalf of the respondent, that in all of the above circumstances, the telephone call was not a legitimate call from the Garda Authorities.

4.6 The respondent states that in August, 2010, during the period when the complainant was absent on sick leave, it lost a major client contract which was to result in several job losses, and it wrote to the complainant on 1 September, 2010 (along with a number of other employees) to advise her of same and to commence consultations with her in respect of possible redundancy. The respondent states that it never received a response to this letter. It adds that it received a letter from the complainant’s solicitor dated 30 August, 2010 advising of that she was entitled to consider herself constructively dismissed and of its intention to institute appropriate proceeding pursuant to employment equality legislation as regards harassment and constructive dismissal and under civil law for personal injury. The respondent states that it replied to this letter on 8 September, 2010 advising that as far as it was concerned “[the complainant] remains in good standing with the company and there are no outstanding issues. If [the complainant] has a grievance we are unaware of this and request that she lodge it formally in accordance with the company grievance procedures.”. The respondent states that a number of pieces of correspondence between the parties crossed and it wrote to the complainant’s solicitor on 23 September, 2010 (in response to a letter dated 16 September, 2010) wherein it advised that it was anxious to discuss matters with the complainant and requested that such a meeting might be arranged without further delay. The respondent states that the complainant did not avail of this opportunity and her solicitor advised by letter dated 23 September, 2010 that, inter alia, she considered herself constructively dismissed.

4.7 The respondent states that it received a further letter from the complainant’s solicitor (dated 8 October, 2010) and replied to same on 13 October, 2010. It adds that in this reply it (the respondent) advised that it considered that any grievance which the complainant had should be concluded before any resignation should take effect, that it required further details of the allegations set out in its letter of 30 August, 2010 and that in the circumstances it requested that the complainant’s resignation be withdrawn. It states that the complainant’s representative replied by letter dated 26 October, 2010 and advised, inter alia, that the complainant would not be invoking any procedures the respondent was suggesting and repeated the position that the complainant considered herself constructively dismissed as and from 23 September, 2010. The respondent adds that it replied to this letter on 29 October, 2010 stating the company had no outstanding request from the complainant as regards investigations under any internal procedure; that it (the complainant’s solicitor) had failed to provide details of any specific issues (as requested) and had declined to avail of the offer by the company to investigate any such matters; that it (the respondent) was of the view the complainant had resigned and that it would issue her P45 and other cessor matters in due course with 29 October, 2010 as her last date of employment.

4.8 It is submitted on behalf of the respondent that it is well established law that for any claim of constructive dismissal to be made out an employee must have availed of any internal grievance procedure before resigning. It is further submitted that a failure on an employee’s part to avail of these procedures is fatal to a claim of unfair dismissal[3] and that the principles established under unfair dismissals legislation are equally applicable to dismissal under employment equality legislation. It is submitted on behalf of the respondent that the complainant declined to avail of these procedures at a time when she was legally advised, that her actions in this regard are unreasonable in the circumstances and consequently her complaint of constructive victimisatory dismissal must fail. It is further submitted on behalf of the respondent, as regards the harassment element of the complaint, that the complainant has, in the first instance, failed to establish a prima facie case on this matter and notwithstanding this argument, that she never raised any such complaint with the respondent. It is further submitted that when the complainant raised matters with Mr. C in March, 2010 he acted promptly and appropriately to them in accordance with the respondent’s Bullying Policy. The respondent’s representative further submits that the complainant subsequently effectively withdrew her complaint and never reactivated same. It is submitted that in the circumstances the complainant cannot succeed in her complaint of harassment. Finally, the respondent submits that the complainant has failed to establish a prima facie case of victimisation contrary to the Acts.

5. CONCLUSIONS OF EQUALITY OFFICER

5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, (ii) harassed the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 14A of those Acts, (iii) sexually harassed the complainant contrary to section 14A of the Employment Equality Acts 1998-2008, (iv) vicitimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and (iv) dismissed the complainant in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998 – 2008.In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.

5.2 Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered unlawful treatment contrary to the Acts. It is well settled in a line of decisions from both this Tribunal and the Labour Court that the type or range of facts which may be relied upon by a complainant can vary from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination has occurred. The language used indicates that where the primary facts alleged are proved it remains for this Tribunal to decide if the inference or presumption contended can be properly drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn from a fact, or range of facts, which have been proved in evidence. If the complainant does not discharge the initial probative burden required her case cannot succeed.

5.3 I have carefully examined the evidence adduced by both parties and it appears to me that the complaint can be broken into three distinct but interrelated sections – (i) the alleged incidents between mid-May 2009 – 23 December, 2009, (ii) the alleged incidents between 24 December, 2009 – 26 March, 2010 and (iii) the alleged incidents from 26 March, 2010 up to and including the cessation of the complainant’s employment with the respondent. I propose to look at each of these issues separately in the order indicated above. The complainant detailed several alleged incidents which occurred between her and Ms. A during the period mid-May, 2009 – 23 December, 2009 which she contends amount to (a) harassment on grounds of gender, (b) sexual harassment or (c) victimisation of her contrary to the Acts. It is common case that during her period of employment she never brought these alleged incidents to the attention of her employer. She offers a number of explanations for this (i) she was not aware of any policy which the respondent had on Bullying or Harassment, (ii) she was only nineteen years old at the time and felt hesitant of complaining about a senior member of staff, (iii) she was embarrassed by the intimate nature of the alleged harassment and was not comfortable raising the matter as both Directors were male – there was no female in a senior management role above Ms. A whom she could speak with about the matter and (iv) Mr. C’s dismissive attitude to the details she did furnish to him in March, 2010 discouraged her from doing so. As stated in the preceding paragraph the initial probative burden rests on the complainant to establish a prima facie case. In the course of the Hearing I did not find the complainant to be a credible and consistent witness. Her direct evidence was, at times, at variance with the detail furnished on her behalf by her solicitor in the written submission filed with the Tribunal. Whilst I accept that there was a level of animus between her and Ms. A in their day-to-day contact I am of the view that the complainant embellished the events to a degree in recounting them in the course of my investigation. In addition, some of the alleged incidents could not be said to amount to harassment or sexual harassment under the Acts as they did not arise “at the workplace or in the course of [the complainant’s] employment”. Moreover, in the course of the Hearing the complainant was portrayed as a young vulnerable female who did not know where to turn when faced with the alleged treatment of her. This is in stark contrast to the person who six months later proposes to her employer (of her own volition) that it terminate her employment in an effort to manoeuvre a situation to maximise her social security benefits.

5.4 I am satisfied that the respondent had no dedicated Harassment/Dignity at Work Policy in operation at the time. A failure in that regard is generally fatal to a respondent in terms of being able to avail of the defence available at section 14A(2)(a) of the Acts[4] . I accept that early in her employment the complainant may have been hesitant to “rock the boat” by complaining about Ms. A (who was her Team Leader). However, given the nature of the incidents she detailed to the Tribunal one would have thought that she would eventually no longer be able to deal with the matter by simply ignoring events and that having reached that point she would have filed a complaint, particularly when she made the decision (in March, 2010) to raise a grievance about other aspects of Ms. A’s alleged behaviour. I further accept that it may have been embarrassing for the complainant to recount the details of these alleged incidents (at least initially) to Mr. C when she spoke with him in March, 2010. However, it was open to her to suggest to Mr. C that there were sensitive issues which she would be more comfortable telling to a female and request that he might organise someone in that regard – yet she did not do so. Nothing from the evidence adduced by the parties leads me to conclude that Mr. C would not have been receptive to that proposition and made appropriate arrangements. Finally, the complainant states that when she did register a complaint with Mr. C in March, 2010 his dismissive attitude to the details she did furnish him discouraged her from providing details of these alleged incidents. I cannot accept the complainant’s assertion on this point. Copies of several e-mails between the complainant and Mr. C around this time were submitted to the Tribunal as part of my investigation. The tone and content of these e-mails do not support the complainant’s contention that Mr. C was dismissive of her. Having carefully considered same I am satisfied that Mr. C’s overall approach was supportive of the complainant and it is clear he was anxious to progress the matter as quickly as possible. Moreover, at all stages his response to her was prompt and courteous.

5.5 It is correct to say that the respondent is fixed with statutory liability for the actions of its employees. However, before such liability can be fully fixed, in terms of the complainant’s allegations of harassment, the respondent should be advised of the impugned behaviour and given an opportunity to remedy matters – such a scenario is encompassed by the defence available to it at section 14A(2)(b) of the Acts. It is equally true to say that the policy and procedures operated by the respondent at the time fell far short of what might be regarded as best practice and indeed there was no policy on harassment in existence under which the complainant could have made her complaint. However, in the instant case the complainant consciously decided not to provide the respondent with details, or indeed notice of, the alleged (2009) incidents themselves. I have dealt with the reasons for her failure in this regard in the previous paragraph. However, she maintained this position some months later (September/October, 2010) when arguably any such hesitance or reluctance was obviated by the presence of legal advice. Having carefully considered the totality of the evidence adduced by the parties in respect of this period and having regard to my comments in this and the preceding two paragraphs, I find, on balance, that the complainant has failed to establish a prima facie case of harassment contrary to the Acts and this aspect of her complaint cannot therefore succeed. However, before leaving this matter I would recommend that the respondent implement an anti-harassment policy covering the nine grounds prescribed in the Employment Equality Acts as a matter of urgency, if it has not already done so.

5.6 The second aspect of the complainant’s claim covers the alleged incidents between 24 December, 2009 – 26 March, 2010. It is common case that the complainant met with Mr. C on 15 March, 2010 and brought certain alleged incidents involving Ms. A to his attention. It is also common case that Mr. C asked her to put these issues in writing. The complainant did so on 16 March, 2010 – a copy of this document was furnished to the Tribunal. I have examined this handwritten document and it details a number of incidents concerning Ms. A’s alleged treatment of her over a period of time. The first incident detailed is the alleged events of 24 December, 2009 and the last one concerns an alleged incident on 9 March, 2010. Nowhere in the document does it make any reference, or suggestion, that the behaviour is because she is female, contains offensive sexual undertones, or amounts to victimisation of her. Instead, it sets out what is more akin to bullying. It is common case that they met again on 19 March, 2010 to discuss the contents of this letter. The complainant states that in the course of this meeting Mr. C informed her of the formal and informal routes provided by the respondent’s Bullying Policy. She adds that he emphasised the negative aspects of the formal route describing it as like “being in Court” and that it would be her word against Ms. A’s and consequently she felt like she was being pressured into pursuing the informal route, if she was to pursue the matter at all. She adds that given Mr. C’s close relationship with Ms. A and the fact that he would be one of the people she believed would investigate any formal complaint, she felt she had no choice and contends that she was manipulated to select the informal route and confirmed same to Mr. C on 23 March, 2010 by e-mail.

5.7 Mr. C agrees that (at this meeting) he explained the formal and informal routes available under the Bullying Policy and accepts that he may have used the phrases attributed to him, but states that if he did so, it was by way of his efforts to explain the differences between the two processes to her and emphatically rejects the complainant’s assertion that it was an attempt on his part to pressure or manipulate her into selecting the informal route. He adds that he suggested that she think about the matter over the weekend and revert to him and assured her that any action which might emerge from the process would be conducted by the respondent’s Financial Controller (Mr. X). Having carefully considered the evidence adduced by both parties, I prefer, on balance the respondent’s version of events, including his assertion that there was no discussion about her dismissal. In the circumstances which Mr. C found himself – allegations of bullying and inappropriate behaviour by one employee against another - it was entirely appropriate for him to explain the process to the complainant and the options available to her. It must be remembered that the first occasion he had been made aware of any issues was 15 March, 2010 and only 2/3 working days had passed before this meeting with the complainant – by any standards a prompt response. Moreover, he advised the complainant to think about her options over the weekend – an approach which is inconsistent with someone manipulating the situation – since if that was his objective, one might have expected he would require the complainant to select one of the options on the day. Finally, when the complainant failed to revert to him by the following Tuesday, he sent her an e-mail enquiring what her decision was. This e-mail is polite in tone and content and could not in any way be considered part of a scheme on his part to pressurise the complainant into selecting the informal route under the Policy, or indeed dropping the complaint altogether. The complainant’s response is equally cordial advising that “I have had a think about it and I personally think it would be best to take the informal route” and enquires what the next steps in the process are.

5.8 Whilst the submission filed on behalf of the complainant states that she did not hear from Mr. C for two weeks after this and she began to lose confidence in the process, she agreed in the course of the Hearing that this was incorrect and that she met with him on 25 March, 2010. She adds that in the course of this meeting she restated the affect the behaviour of Ms. A was having on her and suggested that the respondent might dismiss her so as to minimise the impact on her social welfare benefits that would arise if she resigned. She adds Mr. C replied that before the respondent could consider the proposition she would have to withdraw her complaint against Ms. A and in addition state that the bullying had been resolved and she was reassured in her belief that the respondent acted appropriately. She goes on to state that Mr. C dictated the content of an e-mail to her which reflected these matters and she sent it to him on 26 March, 2010. The respondent (Mr. C) states that he met with the complainant on 25 March, 2010 to advise her of the next steps in the process and she informed him that she now wished to stop the process as Ms. A’s recent behaviour towards her had improved. He adds that he advised her that she could resume the process at any time in the future should she so wish and accepts that he requested the complainant to confirm this position in writing but emphatically rejects the he dictated the content of the subsequent e-mail to her. He also rejects the complainant’s assertion that she mentioned (at this meeting) the prospect of the respondent dismissing her.

5.9 The follow-on from this meeting is the complainant’s e-mail of 26 March, 2010 to Mr. C. This e-mail states “I would like to drop you a small e-mail to confirm what we were speaking about yesterday. I would at this time like to put a hold on the informal action against Ms. A in relation to my accusations of bullying. My reason being that I have had no troubles in the last while and I hope this may have been resolved. Again, if anything does happen or if I have reason to take the formal action I know I can go to you anytime……”[emphasis added]. If the complainant’s assertions are correct – in that Mr. C wanted her to withdraw her complaint against Ms. A and to achieve that goal he dictated the wording of her e-mail – then the wording detailed above does not achieve that objective. If that was Mr. C’s purpose then one would have expected an unequivocal statement that the complaint is withdrawn in its entirety rather than the rather ambiguous comment that the complainant would like to put “a hold” on the informal action against Ms. A. Moreover, the language used clearly provides that the complainant may reactivate the process at a future date should she so wish. One further point is noteworthy in reaching my conclusions on this matter. One of the reasons advanced on behalf of the complainant for her not having made a formal complaint about Ms. A from the outset of the alleged behaviour she was only nineteen years old at the time and felt hesitant of complaining about a senior member of staff (see paragraph 5.3). In the course of the Hearing the complainant stated that at this meeting she suggested to Mr. C that the respondent might dismiss her so that she could retain maximum social welfare benefits if her employment ceased in than manner. Whilst this is disputed (in terms of that meeting), it displays (as previously commented) a significantly different person to the vulnerable young employee who did not know what to do or where to turn to when she was first (allegedly) harassed by Ms. A several months previously, as portrayed by her Counsel earlier in the course of the Hearing. In light of the foregoing I prefer the respondent’s version of events and find that the complainant wrote this e-mail of her own volition. In those circumstances I am satisfied, in the instant case, that the respondent is entitled to respect the complainant’s wishes and place the matter on hold and only restart the process if the complainant confirms she wishes to do so, although in general terms such an approach might not be considered best practice – once a complaint is raised an employer should bring the matter to an actual conclusion through investigation or withdrawal by the complainant. Mr. C states that the complainant never came back to him at any subsequent time seeking to reactivate the complaint and I accept his evidence in this regard. As stated above none of the alleged incidents described by the complainant make any reference to the treatment of her being connected with her gender or that it is sexually offensive to her. Moreover, having found that the complainant wrote the e-mail of 26 March, 2010 of her own volition, it is noteworthy that she contemporaneously characterised the treatment of her as bullying. Having read the complainant’s letter of 16 March, 2010 I would concur with her assessment in this regard. Having carefully considered the evidence adduced by the parties on this matter, I find that the complainant has failed to establish a prima facie case that any of the alleged incidents during this period amount to harassment of her contrary to the Acts and this element of her complaint cannot succeed.

5.10 It is common case that the next interaction between the complainant and Mr. C took place on 8 June, 2010 (by e-mail from the complainant seeking a meeting). It is also common case that they met on 9 June, 2010, in the course of which the possible termination of the complainant’s employment was raised, although the complainant states this was the second time the matter was discussed whilst Mr. C states it was the first occasion. From an evaluation of the evidence adduced I am satisfied that the complainant wanted the respondent to terminate her employment so as she could maximise the benefits available under the social welfare programmes. Apart from the ethical and moral implications of such behaviour an employer would potentially expose itself to a complaint of unfair dismissal under the relevant statutes. Consequently, I am satisfied it labelled the process as a discussion about redundancy. It is clear that in the circumstances the respondent approached the complainant’s proposition with extreme caution and I am satisfied that it ultimately (on 24 June, 2010) decided not to agree to it. However, at this time the complainant commenced a period of sick leave and never resumed duty. Consequently, Mr. C did not communicate this decision to her. It is noteworthy that the complainant states this sick absence arose because she was stressed, yet she did not (at that time) inform the respondent of the alleged offensive texts she received from Ms. A the day after she commenced sick leave (which, if true, is would likely exacerbate her stress) despite the fact that she was entitled to and could reactivated her previous complaint against her at any time.

5.11 It is common case that there was no further communication between the parties until end August/start September, 2010. On 30 August, 2010 the complainant’s solicitor wrote to the respondent ( a copy of which was furnished to the Tribunal) advising that its client “has been subjected to bullying and harassment and has had to endure foul language used, including being routinely humiliated…” and that Counsel’s view was that the “conduct complained of constitutes a repudiatory breach of [the complainant’s] contract of employment entitling [her] to consider herself constructively dismissed, should she choose to take that course of action.”. This letter crossed with a letter from the respondent to the complainant (dated 1 September, 2010) advising the complainant of possible redundancy and requesting that she contact Mr. N as soon as possible to discuss the matter. The complainant accepts that she received this letter and passed it on to her solicitor and left matters in its hands. The respondent replied to the letter of 30 August, 2010 (on 8 September, 2010) advising that as far as it was concerned “[the complainant] remains in good standing with the company and there are no outstanding issues. If [the complainant] has a grievance we are unaware of this and request that she lodge it formally in accordance with the company grievance procedures.”. An interim reply issued from the complainant’s solicitor advising that it would respond fully to the letters in due course. On 23 September, 2010 the respondent wrote to the complainant’s solicitor requesting that the complainant, either direct or through her solicitor, contact the respondent to arrange a meeting to discuss all matters in issue between them. By letter of the same date the complainant’s solicitor wrote to the respondent advising that its client “has experienced in the past an inadequate and inappropriate response from [the respondent] when she sought recently to make a complaint” that given this experience and the detrimental effect it had on her “our client has absolutely no confidence in any grievance procedure that [the respondent] may have” and that she would not be returning to work on medical advice and she “considered herself constructively dismissed”. The complainant denies that either she or her solicitor received the respondent’s letter of 23 September, 2010. However, I do not accept this. It appears overly convenient to me that the only piece of correspondence which went astray, amongst the extensive volume of inter partes correspondence, was that particular letter.

5.12 The complainant’s solicitor wrote to the respondent on 8 October, 2010 requesting her P45. The respondent replied on 13 October, 2010 advising that it did not accept that the complainant was constructively dismissed and requested more fulsome details of her allegations and bullying so as the matter could be investigated. The complainant’s solicitor replied on 26 October, 2010 advising that the complainant “will not be returning to work and will not be invoking whatever procedure [the respondent] may now put together.”. The respondent replied to this letter on 29 October, 2010 stating the company had no outstanding request from the complainant as regards investigations under any internal procedure; that it (the complainant’s solicitor) had failed to provide details of any specific issues (as requested) and had declined to avail of the offer by the company to investigate any such matters; that it (the respondent) was of the view the complainant had resigned and that it would issue her P45 and other cessor matters in due course with 29 October, 2010 as her last date of employment. The complainant submits that this treatment amount to constructive dismissal of her in circumstances amounting to victimisation contrary to the Acts.

5.13 Section 2(1) of the Employment Equality Acts, 1998-2008 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)[5] 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.

5.14 I shall look at the circumstances of the instant case under each of the aforementioned tests. Taking the “contract” test first – this test is generally refers to circumstances where the employee argues “entitlement” to terminate the contract. It was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp[[6] as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”

This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. In the instant case the complainant had raised a complaint under the respondent’s Bullying Policy in March, 2010. As stated previously in this Decision, I am satisfied that the respondent (Mr. C) acted in a prompt and appropriate manner to this complaint. I am further satisfied that the complainant placed this complaint “on-hold”; that she reached this decision of her own volition and that the respondent (Mr. C) was entitled to rely on that decision. I am further satisfied that the complainant never subsequently, either personally or through her solicitor, sought to reactivate the complaint, an option which was afforded her in March, 2010. This failure is all the more stark when one considers the written requests by the respondent for clarity on the complainant’s grievance following receipt of her solicitor’s letter dated 23 August, 2010, wherein it clearly states it views the behaviour of the respondent to constitute a repudiatory breach of its client’s contract of employment. In light of the foregoing, I cannot accept that the actions of the respondent were such as to amount to a repudiatory breach of the contract, even less so on the basis of the complainant’s gender or in terms of victimisation pursuant to the Acts.

5.15 I shall now look at the "reasonableness" test is terms of the instant case. This test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice and has been described by the Labour Court as follows: "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"[7] It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that he could not fairly be expected to put up with it any longer and he 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. Having carefully assessed the evidence adduced by the parties I am not satisfied that the complainant made any credible effort to do so – indeed she steadfastly refused the respondent’s efforts to engage, particularly in terms of her solicitor’s letter of 26 October, 2010. Her resignation was therefore premature and unreasonable in terms of grounding a complaint of constructive victimisatory dismissal. Moreover, the actions of the respondent could not, even taken at their height amount to victimisation of the complainant contrary to section 74(2) of the Acts. In light of the foregoing I find that the complainant has failed to establish a prima facie case of victimisatory dismissal in terms of the Employment Equality Acts, 1998 -2008 and this element of her complaint fails.

6. DECISION OF THE EQUALITY OFFICER

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find that the complainant –

(i) has failed to establish a prima facie case that she was discriminated against by the respondent on grounds of gender, in terms in terms of section 6(2) of the Employment Equality Acts, 1998- 2008 and contrary to section 8 of those Acts,

(ii) has failed to establish a prima facie case that she was harassed by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998- 2008 and contrary to section 14A of those Acts ,

(iii) has failed to establish a prima facie case that she was sexually harassed by the respondent on contrary to section 14A of the Employment Equality Acts, 1998-2008, (iv) has failed to establish a prima facie case that she was victimised by the by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008,

(v) has failed to establish a prima facie case that she was dismissed by the respondent in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008,

and her complaint fails in its entirety.

_______________________________________

Vivian Jackson

Equality Officer

29 May, 2014

Footnotes:

[1] DEC-E2008-015

[2] An Office Worker v A Security Company DEC-E2010-002

[3] See Travers v MBNA UD720/2006

[4] See EDA 915 and EDA 916

[5] EED0410

[6] 1978] IRLR 332

[7] An Employer v A Worker (Mr. O No.2)