DEC-E2015-160

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-160

PARTIES

An Employee

(Represented by Bowler Geraghty and Co)

-V-

A Catering Company

(Represented by ADVOKAT)

File reference: EE/2013/485

Date of issue: December 2015

HEADNOTES: Employment Equality Acts Sections 6, 8 and 74 – Gender, Sexual Harassment, Victimisation, Dismissal

1: Background

This dispute concerns a claim by Ms TCthat she was Sexually Harassed by her Manager and subsequently Victimised by the Respondent Company, KC, culminating in an unfair selection for Redundancy /Discriminatory Dismissal contrary to Section 6, 8, 14 and 74 of the Equality Act.

The Complainant referred a claim to the Director of the Equality Tribunal on 17th September 2013, under the Employment Equality Acts. On the 20th July 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Michael McEntee, an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 31st July 2015.

This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2: COMPLAINANTS' SUBMISSION

2.1: The Complainant started work for a Contract Catering company on the 6th June, 1999 and was part of a TUPE process to the Respondent Company in December 2012.

Her employment ended on the 27th September 2013 on alleged grounds of Redundancy following business restructuring of the service on the site where she was working.

2.2: In February and early March 2013 the Complainant suffered three alleged incidents of unwarranted physical contact from her Manager on the site.

2.3: On the Tuesday 5th March 2013 the Complainant confronted her Manager and he acknowledged and accepted his behaviour and apologised. Later that day he presented her with a box of chocolates – which behaviour the Complainant found offensive and gender stereotyping

The Complainant then made a formal complaint to the Human Resources Department.

2.4: A Ms.AB in the HR Dept. met with the Complainant that, Tuesday, afternoon. It is alleged that Ms.AB pleaded with the Complainant not to make a formal complaint and she was asked to consider her position and revert. This she did the following day, Wednesday, and confirmed that she wished to proceed with a formal complaint.

She had Annual Leave booked for Thursday and Ms.AB suggested that she also take Friday off with pay. The Company would contact her.

2.5: A formal meeting was held with the Complainant on the 11th March 2013. She was accompanied at his meeting by a SIPTU Official.

The Company investigation continued with the Investigators meeting with the Manager and the taking of statements from two witnesses. Details of all these matters were forwarded to the Complainant on the 13th March 2013.

2:6: By letter of the 14th March the Complainant was advised that her Complaint of Sexual Harassment was not being upheld.

The Complainant appealed this decision, an Appeal Hearing was held on the 4th April. The Appeal was turned down. This was communicated in a letter delivered on the 17th April 2013.

2.7: The Complainant went on Sick Leave from the 22nd April and was not passed as fit for work until the 29th August. A further Appeal Hearing was held on the 30th August 2013 and the appeal was not upheld.

At the conclusion of the meeting on the 30th August the HR Director introduced the matter of the business restructuring that had been proposed for the Site during the Complainant’s Sick Leave. Details were provided in writing to the Complainant on the 10th September. This required the Complainant to interview for one of two positions that were available. She was unsuccessful at interview for these positions and was made redundant on the 27th September 2013.

2.8: In summary the Complainant maintained that the decision to make her Redundant/Dismiss her had been taken at a much earlier date. The Sexual Harassment Complaint /Appeals had been treated in a cavalier fashion from the start with the outcome pre judged. Formal Procedures adopted by the Respondent were not in good faith and were in effect designed to create a defensive barrier for the employer against possible redress actions by the Complainant.

The Redundancy decision was alleged to be a clear case of Victimisation arising from her complaint of Sexual Harassment.

3: RESPONDENT'S SUBMISSION

3.1 The Respondent Company has very extensive and detailed Procedures covering Sexual Harassment. Copies were provided.

3.2 An early, almost immediate, investigation was carried out, witnesses were interviewed and statements taken. Minutes of meetings were supplied and the Complainant was accompanied by an experienced SIPTU Official at all relevant meetings.

3.3 The Sexual Harassment complaint was not upheld at the initial investigation or either of the first (April) or second (August) Appeals.

3.4 The Business Restructuring was a normal exercise that was to be expected following the taking over of a Catering Contract. The Complainant was offered the opportunity to interview for two positions or to seek redeployment.

She was unsuccessful at interview and did not seek redeployment.

Accordingly she was made Redundant.

4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

This case has two main items for decision

(A) Did Sexual harassment take place and did the employer take all necessary and appropriate steps to address the matter?

(B) Was the Redundancy /Dismissal selection flawed and a case of Victimisation of the Complainant?

A considerable volume of evidence was presented both in Submissions and orally at the hearing.

4.1 Sexual Harassment

The Complainant claims that she was subjected to sexual harassment. Section 14A (7) (a) of the Acts, inter alia, defines sexual harassment as

"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.

4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

4:3 The initial investigation in March 2013 and the first Appeal Hearing on April 1st 2013 felt that in relation to the Unit Manager, a Mr.W.

“Mr. W’s behaviour could not reasonably be considered to constitute sexual harassment”

The Appeal was not upheld.

This position was confirmed at the 2nd and final Appeal hearing at the end of August 2013.

4:4 However the Tribunal felt that once uninvited physical contact has taken place, which is not disputed in this case, and is proven to a required degree there in no sliding scale of gravity of offence. No provision exists that allows for the creation of an almost quantifiable degree of severity index resulting in some complaints deemed to be of a lesser, more venial, nature. The legislation and precedent is crystal clear on this point

From reading the minutes supplied it appears that this point was raised by the SIPTU Official throughout the proceedings and again on the 30th August 2nd Appeal but with little apparent effect.

4:5 The best guidance in this area is a set out in Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 S.I. No. 208 of 2012

It is worth quoting from the relevant sections “Unwelcome conduct” and “Violation of Dignity” at some length

Unwelcome conduct
The Employment Equality Act does not prohibit all relations of a sexual or social nature at work. To constitute sexual harassment or harassment the behaviour complained of must firstly be unwelcome. It is up to each employee to decide (a) what behaviour is unwelcome, irrespective of the attitude of others to the matter and (b) from whom, if anybody, such behaviour is welcome or unwelcome, irrespective of the attitudes of others to the matter.

The fact that an individual has previously agreed to the behaviour does not stop him/her from deciding that it has become unwelcome. It is the unwanted nature of the conduct which distinguishes sexual harassment and harassment from behaviour which is welcome and mutual.

Violation of dignity
In addition, to constitute sexual harassment or harassment under the Employment Equality Act the behaviour must have the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Intention. The intention of the perpetrator of the sexual harassment or harassment is irrelevant. The fact that the perpetrator has no intention of sexually harassing or harassing the employee is no defence. The effect of the behaviour on the employee is what is relevant.

In this case the key phrase is

“The effect of the behaviour on the employee is what is relevant” and

“It is up to each employee to decide (a) what behaviour is unwelcome, irrespective of the attitude of others: -----”

4:6 In relation to Sexual Harassment it was clear that physical contact had taken place. Admissions by the Manager and evidence from a witness in statements supported this fact. The effect on the employee was such as to prompt her to confront her Unit Manager and to refer a formal complaint to her Human Resources Department.

The Medical reports from the Respondent’s Occupational Health Physician on the 30th May and the 30th August 2013 are indicative of the impact the situation had on the Complainant.

I quote from Occupational Health report dated the 30th May 2013.

“Opinion

In my opinion Ms.C has had a difficult time as a result of this incident. She maintains that it is not just the incident itself but also the way in which she perceives it was handled”

The Physician found her unfit for work at that date. However it must be noted, in caution, that the Report was based on an examination in late May quite a few weeks after the alleged original incidents.

A follow up medical examination, again by the Respondent’s Physician took place on the 30th of August and largely confirmed the initial diagnosis but confirmed that the Complainant was now sufficiently recovered to return to work. However the Physician did note that

“She is fit to return to work at this point with ongoing monitoring and review”

The Tribunal noted that both medical reports, commissioned by the Respondent were available to the 2nd Appeal Hearing in late August – both of these reports indicated the negative impact both the original alleged incidents and the subsequent procedures had had on the Complainant. The Complainant had been on sick leave for almost four months and the Occupational Health Physician was clearly indicating at least a linkage if not a complete causative effect. The reference to the quote from the Code of Practice “The effect of the behaviour on the employee” is what is critically relevant.

4:7 In the Respondents mitigation it has to be accepted that good Policies and Procedures were in place, an investigation was undertaken and three formal meetings, all attended by a SIPTU Official, were held. A question is; does this proper Management behaviour amount to a defence under Section 14A (2) of the Acts.?

Section 14A(2) of the Acts provides that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent sexual harassment from occurring in the first place and in circumstances where such harassment has occurred that it took action to reverse its effect. The Labour Court has previously held that in order for an employer to avail of the first component of this defence it must show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to staff.

In the course of the Hearing the Complainant disputed that that she was aware of the existence of the respondent's Dignity at Work Policy from the outset of her employment with it.

In the circumstances it is a matter, in the first instance, for this Tribunal and the Labour Court on appeal, to decide what weight to attach to the Respondent’s Code. I have examined the respondent's Bullying, Harassment and Sexual Harassment Policy and Procedure of the 1st May 2006. It is well in keeping with the Code of Practice and all evidence pointed to it being well communicated across the organisation.

4:8 The Labour Court has stated that in addition to the existence and effective communication of a sexual harassment policy in order to avail of the statutory defence, an employer should ensure that Management Personnel should be trained to deal with incidents of harassment and to recognise its manifestations. At the Oral Hearing it was confirmed that Management had received the required Training.

4:9 The second element of the defence at section 14(A) (2) is where harassment has occurred that the employer took action to reverse its effect. This involves an evaluation of what action the respondent took once it became aware that an employee was making a complaint of harassment under the Acts (or Policy) and how promptly it took those actions. Again there can be no fault attaching to the Respondent here.

The long sick absence of the Complainant’ from late April to the end of August effectively removed one of the parties to the situation and steps, if warranted, to address her relationship with the Unit Manager ,who remained at work , could not really take place.

However it should be noted that the Company did put a HR person in the Unit for a few days in April when both parties were together at work. The Complainant’s verbal comments about “working with her abuser being Therapy” were confusing for and ambiguous to say the least for the Respondent’s attempts to put in place a strategy to manage the situation.

4:10 Accepting the fact that the Respondent has good procedures, a well trained staff and acted with promptness in setting up the initial investigation where the Tribunal does have a query is the perceived Independence from external business pressures of the Primary Investigators. Ms. AB from HR and Ms. SF the Key Account Manager for the Client’s site.

Bearing in mind that actual Physical contact had taken place, to a degree that was debated, the Tribunal found it hard to see the rationale for the “not reasonably considered to be sexual harassment” outcome of the Investigation.

In a practical commonly accepted sense the Respondent Company KC had just taken over the Company X Contract and a Sexual Harassment finding against their newly appointed Unit Manager would be very unwelcome for the Respondent and the relationship just being established with the main Client Company on the site. The initial alleged reaction of the HR Manager , Ms. AB, to the Complainant and her suggested strong request to the Complainant no to go down a formal complaint route are interesting here.

Managers familiar with TUPE style transfers between Contract Catering Operators would recognise that the new Contractors and their responsible Regional /Unit managers taking over an established Catering Contract are under business pressure to make the contract work from a commercial point of view.

In this climate an incident involving a long established TUPEd employee and a newly appointed Unit Manager would generally be accepted to be an uphill struggle for the Complaining employee to achieve success in. This is not in any way to take from the evident professionalism of the Investigators and the commendable speed of their response.

The decision by the Investigation Team not to find Sexual Harassment was, it would be commonly accepted, unlikely to be reversed by their own superiors handling the Appeal processes. The August second hearing, when the Respondent’s strong medical evidence was available, seemed to be somewhat surprising in its outcome.

The facts of the case were that unwarranted Physical Contact had taken place between a long standing member of the Unit staff and a newly appointed Unit Manager. The Complainant stated in the minutes of one of the meetings, that she felt the Unit Manager was a “Predator” who was testing the ground with his initial advances.

The Complainant’s departure on Sick leave shortly after the finding of the first Appeal and the later medical evidence from the Occupational Health Physician (30th May 2013) substantiated the assertion that the entire process had been most upsetting for her.

The Reports from the Respondent’s own Occupational Health Physician referred to above stating that the Complainant was suffering from a stress related illness are instructive. It is accepted that she had a medical history and had significant external non-employment stress issues but the trigger factor for the long period of absence in the Summer of 2013 appears to have been, in the views of the Physician, the Sexual Harassment situation complained of.

From the evidence it appeared that the alleged harasser continued in his role while the Complainant was out sick. New temporary resources were engaged to cover for her absence.

All issues considered and the Complainant’s medical history, taken as an additional complication, a review of the entire complaint including the two Medical reports by a completely Independent outside expert prior to the final Appeal Hearing at the end of August would have been a very worthwhile and useful exercise.

This is particularly the case as the Medical reports indicated that the Complainant was suffering from Mental health issues and a probably higher degree of Employer caution towards her situation was warranted. The Medical reference (Report of the 30th August) referred to above in relation to “Ongoing monitoring and review” was of importance here.

4:11 Notwithstanding that there is a defence for the Respondent under Section 14 the Tribunal feels that the accepted facts that a degree of physical contact had taken place and the medical reports detailing the impact the incidents had on the Complainant I therefore find that the complainant has established a claim of sexual harassment and the respondent has failed to rebut it.

4:12 Victimisation / Selection for Redundancy.

I shall now look at the Complainant's contention that she was victimised culminating in her alleged unfair selection for Redundancy. The Complainant maintains that she was victimised by the respondent in terms of section 74(2) (f) of the Employment Equality Acts, 1998-2008. This section defines victimisation as follows -

"For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by an employee to the employer.............
(f) an employee having opposed by lawful means an act which is unlawful under this Act......."

4.13 In Tom Barrett v Department of Defence (EDA1017) the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.

Section 85A of the Employment Equality Acts 1998 -2008 which sets out the burden of proof which applies to claims of discrimination has been referred to above. As stated it requires the Complainant to establish, in the first instance, facts upon which she can rely in asserting the she was treated unlawfully on the ground specified. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the Complainant does not discharge the initial probative burden required her case cannot succeed.

The Labour Court has held that mere assertions unsupported by any evidence are insufficient to discharge the initial probative burden required of the Complainant. However the facts in their context have to be looked at.

4:14 The Respondent had taken over a Catering Contract from a previous Contract Holder. The need was stated and would be accepted by all observers that a “New Broom” approach is characteristic of this situation. The Complaint had a medical history and the long absence, as certified by the Respondent’s own Physician, was not conducive, in an accepted common view, to a positive view being taken of her continued employment by the new employer.

Expecting her to return from a Sick Absence of the nature accepted by the Occupational Health Physician and to then interview for a new position was , to repeat the phrase used earlier , asking her to face a considerable uphill struggle in an employment interview. The reference from the Physician in the Report of the 30th of August regrading “Monitoring and Review” was noted. An employment interview and the possible loss of her position hardly falls into this category.

New, albeit temporary staff, had been engaged and all indications were that the new temporary staff were working out very well under the new regime. An employee of the complaints long service under previous Contract Holders and with a medical history was not going to be , again in common understanding, an ideal employee.

It was the view of the Tribunal that the Sexual harassment claim was a contributory factor, which taken in conjunction with the long period of absence, towards creating the uphill climate the Complainant faced on her return to work and job interviews.

The tests cited by the Labour Court in the Barrett vs Dept. of Defence case are instructive. The Complainant had not referred a formal Claim to an external agency, none the less a complaint process was underway internally with the assistance of SIPTU. The Complainant was absent for most of the Summer months but the Job Interview process on her return, while perfectly legitimate from a business point of view , could not have been an easy situation for her particularly when the Medical report of the 30th August ( “Monitoring and Review”) quoted above was taken into account. It certainly raised the issue of whether or not it was “adverse” treatment particularly if the 30th of August medical report, commissioned by the Respondent themselves, was given any credence by the Respondent. It certainly cast a major shadow over the Redundancy selection process.

4:15 Accordingly the Tribunal having considered the evidence and considered the legal precedents cited and I find that the complainant was Victimised in relation to her Unfair Selection for Redundancy.

5: DECISION

This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

I have investigated the above complaints and make the following decisions in accordance

with Section 79 of the Acts that:

Ø The Complainant has established a case of Sexual Harassment. Accordingly an award of €2,250 (approximately 12 weeks’ pay) in made as compensation under this heading in favour of the Complainant.

Ø The Complainant has established a case of Victimisation. Accordingly an award

of €1,500 (approximately 8 week’s pay) is made in compensation.

The awards are redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

____________________

Michael McEntee

Equality Officer

December 2015