DEC-E2015-052

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-052

PARTIES

An Employee

(Represented by Rochford Gibbons Solicitors)

AND

An Employer

File reference: EE/2013/607

Date of issue: 27 July 2015

HEADNOTES: Employment Equality Acts – Sexual Harassment / Harassment. / Discriminatory Dismissal

1. DISPUTE

This dispute involves a claim by Ms. Z that she was sexually harassed by the Respondent contrary to section 14A of the Employment Equality Acts, 1998 and 2004

2. BACKGROUND

2.1 The Complainant commenced work with the Respondent in December 2012

2.2 The Complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on the 14th November 2013. In accordance with his powers under the Acts the Director delegated the complaint to Mr. Michael McEntee, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 16th June 2015.

3. SUMMARY OF COMPLAINANT'S CASE

3.1 The Complainant commenced employment with the Respondent as a hairdresser/barber in December 2012. Initially there were no issues but in April 2013, on discovering that the Complainant had ended a relationship with her then partner, the Respondent began making vulgar jokes and comments in relation to her partnership status. In early May the Complainant alleged that the Respondent began a series of inappropriate physical contacts and touching. Verbal banter of a sexual nature, instigated by the Respondent, continued on a regular basis.

The Complainant took holidays in Bulgaria from mid-June to early July 2013. A number of compromising sexual suggestions were alleged to have been made by the Respondent in relation to Bulgarian women and their coming to Ireland. The Respondent telephoned the Complainant a number of times while she was on holidays again with a strong sexual overtone in the messages.

The Complainant return to work at the Respondents premises in July and alleged that the inappropriate verbal banter continued coupled with many incidents of inappropriate physical touching. The Complainant felt powerless in the situation but alleged that she repeatedly asked the Respondent to desist in his inappropriate physical behaviour and verbal comments.

In late August 2013, in or about the 26th, a dispute arose between the Respondent and the Complainant, initially over the non-filling of a water kettle by the Complainant. It broadened into a significant verbal exchange, much inappropriate sexual language was allegedly used by the Respondent. The verbal dispute culminated in the Complainant being verbally dismissed and leaving the premises.

4. SUMMARY OF RESPONDENT'S CASE

4.1 The Respondent accepted that the Complainant began working for his Company / Barber Shop before Christmas 2012.

4.2. In March 2013 the Complainant went working for another Barber Shop for a period of some two weeks. After the two weeks she asked for her job back with the Respondent and stated that she was very happy working in his shop.

The Respondent pointed to this episode as evidence that the Complainant could easily find other work and that this contradicted her claims of being forced economically to remain with the Respondent.

4.3 In relation to the holidays incident he had to maintain sufficient staff levels in his shop and she did not organize her holidays in keeping with standard arrangements. In addition she received three weeks and two days leave – much more that an employee of her short service was entitled to.

4.4 In relation to phone calls to her home in Bulgaria it was only on 5/6 occasions and was motivated by a concern for her health and a business need to make sure, from a staff planning point of view, that she was in fact returning to Ireland.

4.5 In relation to asking the Complainant for contacts to be arranged on behalf of the Respondent with other Bulgarian ladies the Respondent absolutely refutes this. He finds this allegation most offensive to him personally.

4.6 In relation to claims of improper physical contact and allegations of inappropriate verbal behaviour the Respondent completely rejects this. He is a Turkish man and all who know him would agree that he is loud in his normal conversation but never inappropriate. He is of an ethnic minority in Ireland, is applying for citizenship and would never be insulting to another person on ethic or sexual grounds. He only engaged in harmless humour and joking with the Complainant and most emphatically there was never any harm or offence intended. A detail of one of the incidents alleged which referred to a type of pastry was nonsense as the item concerned was not a normal Turkish item. The Complainant was simply inventing issues.

4.7 The Shop has a CCTV system and the Complainant timed her complaint to ensure that the automatic erasing system, after 28 days, would have activated before her complaint was made. This would ensure that the Respondent could not use the CCTV in his defence. The Shop is very close to a major South side Garda Station and the Complainant never reported the alleged matters there.

4.8 The Respondent maintained that the basis of the Complainant’s case was entirely financial with the motivation of trying to get money, almost by extortion, from a small trader. The Complainant had discussed her wages with the Respondent on occasions but no promises were made by him. She was an employee of only short service. Allegations of promises being made in return for sexual favours were completely untrue and highly offensive.

4.9 After the final incidents the Respondent made contact with the Complainant’s father and met him to try and sort things out. Her father appeared to be only aware of the issue of non-payment of notice pay and was unaware of the sexual harassment elements of the case.

4.10 In relation to allegations in regard to breaks times etc. it was a busy Barber shop and all staff were fairly treated and got required breaks.

4.11 The Respondent offered to bring his other staff member, at the time, Mrs. A, to the hearing to corroborate his evidence.

5. CONCLUSIONS OF THE EQUALITY OFFICER

5.1 The issues for decision by me is whether or not the Respondent (i) sexually harassed the Complainant contrary to section 14A of the Employment Equality Acts, 1998 and 2004 and (ii) treated her adversely for having rejected that harassment in circumstances constituting discrimination culminating in a Discriminatory Dismissal of her on grounds of gender contrary to the same section of those Acts on the 27th August 2013.

In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.

5.2 Section 85A of the Employment Equality Acts, 1998 and 2004 sets out the burden of proof necessary in claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which it can be inferred that she was sexually harassed and treated less favourably on the ground cited. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

5.3 Section 14A of the Acts defines sexual harassment as "any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” It goes on to set out some examples of unwanted conduct which includes "requests and spoken words".

The Complainant contends that the Respondent engaged in inappropriate verbal and physical behaviour on a number of occasions.

The language spoken was Turkish and the physical element was apparently only on occasions when the Complainant and the Respondent were alone in the Shop together.

5.4 The only possible witness, the other staff member is of East European origin and does not speak Turkish. Verbal banter in the Turkish language would have been incomprehensible to her in any event and she was never present when the physical elements alleged took place. Accordingly I decided that there would be little to be gained from an evidential point of view in calling her to give evidence.

5.5 As there is contradictory evidence from both parties about almost all contentious elements of this case I must therefore decide on balance, which version of events I find more credible.

The Complainant was a solid witness. She gave her evidence with clarity and conviction and had, in my opinion, a clear recollection of the disputed events to which she averred and I prefer, on balance, her version of events.

The Respondent gave his verbal evidence via an Interpreter. Allowing for this, I found his evidence was strongly emotional but somewhat lacking in any factual substance that could be relied upon to defend his case. He admitted phoning the Complainant, on a number of occasions, in Bulgaria during her holidays. He did not find the fact of making multiple calls somewhat unusual for an employer. He maintained that in a Barber shop brushing, with the hand, customers hair off a colleague’s clothes was a normal practice. He had done this “brushing” with the Complainant on a number of occasions. The repeated use of verbal humour was also agreed with. On balance the confirmation of the “brushing” and verbal banter, even if not intended to be consciously upsetting, favour the Complainants’ version of events.

A number of factual vaguenesses in the Respondent’s written submission and the lack of any written employment contracts did not aid the Respondent.

5.6 I conclude therefore, on the balance of probabilities, that the Respondent made the comments attributed to him and that these comments fall within the definition of sexual harassment set out above. On the balance of probability the physical elements, touching etc. also took place.

5.7 For the alleged behaviour to constitute sexual harassment under the Acts it much occur in the workplace or in the course of the Complainant's employment. As all the primary incidents took place at the Respondent's premises, save for the phone calls to Bulgaria, it follows that the harassment occurred in the course of the Complainant's employment.

On the basis of the foregoing I am satisfied that the Complainant has established a prima facie case of sexual harassment contrary to section 14A of the Employment Equality Acts, 1998 and 2004.

5.7 At the time of the incident the Respondent had no written employment policy of any nature, in operation. In his defence the Respondent stated that he attempted to discuss the issue post the alleged dismissal with Complainant’s father but apparently to no avail.

5.8 I shall now look at the Complainant's allegation of discriminatory treatment- in that she contends she was dismissed for rejecting the alleged sexual harassment. Having evaluated all of the evidence submitted by the parties on this issue I am satisfied, on balance, that there was a dismissal. She has established a prima facie case of discrimination and the burden shifts to the Respondent to rebut the inference raised.

5.9 I must now decide whether this termination of the Complainant's employment constitutes discrimination or whether it was connected to legitimate factors unconnected to the matter at hand.

Without doubt there was a vigorous verbal exchange on the 26th August 2013 but the lack of any substantive evidence presented to justify the dismissal has to favour the Complainant.

5.10 My conclusion is that a discriminatory dismissal took place.

6. DECISION OF THE EQUALITY OFFICER.

6.1 I find that the Complainant was (i) sexually harassed by the Respondent contrary to section 14A of the Employment Equality Acts, 1998 and 2004 and (ii) that she was Dismissed in a discriminatory manner by the Respondent on grounds of gender contrary to the Act.

6.2 I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts that:

(i) the Respondent pay the Complainant the sum of €6,500 by way of compensation for the distress and effects of the discrimination and harassment. (As the Complainant was on €400 a week nett this equates to approximately 16 weeks’ pay)

This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.

(ii) the Respondent provide, a very basic written Employee Handbook, appropriate for a small business with suitable sections on Equality and prevention of Discrimination.

___________________
Michael McEntee
Equality Officer

27 July 2015