ADJUDICATION OFFICER’S / EQUALITY OFFICER’S DECISION No.-EE-2015-104
PARTIES
An Employee
Represented by Fiona Gallagher B.L.
Instructed by C.M. Haughey Solicitors
-v-
A Licensed Premises
Represented by Sian Langley BL,
Instructed by Niall Brosnan & Co Solicitors
File No. EE/2011/756
Date issued 15 October 2015
1. DISPUTE
The complainant referred a complaint, under the Employment Equality Acts to the Director of the Equality Tribunal on 9th November 2011 alleging she had been sexually harassed, victimised and dismissed in circumstances amount to discrimination on grounds of gender contrary to the Acts. In accordance with his powers under Section 75 of the Acts, the Director delegated the case on 15th January ‘15 to me, Jim O’Connell an Equality Officer, for Investigation and Decision. Submissions were received from both parties. As required by Sec 79(1) of the Acts a hearing was held on 23 February, 2015. This hearing had to be adjourned to a further Hearing on the 22nd June ’15as the main witness from the respondent was unable to attend for medical reasons. As required by Section 79(1) of the Acts, a further Hearing was scheduled for the 22nd June 2015.
2. Summary of Complainant’s Position
2.1 The Complainant commenced on a part time basis at weekends in the Respondent’s public house/restaurant on the 30th April ’10 and was paid €8.65 per hour. The Complainant went full time on the 13th October 2010 working as a pot washer in the kitchen. At the time she commenced employment with the Respondent the Complainant was 19 years of age and was in her leaving Certificate year in school. This was her first job and she was paid €8.65/€8.90 per hour. From in or around late July 2010 the Complainant began working on the bar/restaurant floor, serving tables and doing bar work. During the summer of 2010 the Complainant worked full time until the 11th September 2010 when she returned to college in Cork. She returned to only working weekends. In Mid October 2010 the Complainant decided to withdraw from her college course and thereafter commenced work full time in the Respondent’s premises, working approximately 28 hours per week, generally Friday, Monday and Wednesdays. The Complainant during the course of her employment never received a written contract of employment nor was she made aware of the existence of any employment policies such as bullying and harassment policy or grievance procedure. She has claimed that she has been discriminated on grounds of gender.
2.2 It was submitted on behalf of the Complainant that throughout her employment she was subjected to ongoing sexual harassment by the Manager of the Respondent’s business, who fostered a sexually offensive environment within the workplace with crude and lewd banter or repartee. Details of various comments and dates made by the Manager were submitted into evidence. The complainants Mother rang the respondent in or around 10th/11th March 2011 to inform him that the Manager had asked the complainant to travel to Dublin with him and secondly to notify him of the Manager’s inappropriate behaviour and comments towards the complainant, which had upset and intimidated her. The complainant’s mother referred in particular to the Managers comment “I like you on your knees” when the she was stocking shelves and making moaning noises of a sexual nature. It was submitted that the respondent acknowledged that this was sexual harassment and told the complainant’s mother that he would look into it and leave it to him. The complainant’s mother again phoned the respondent in or around the first week of April 2011 and informed him of what was going in the premises. The respondent was asked to tell the Manager to stop this unwanted behaviour towards the complainant. The respondent replied that he would have a word with him and sort it out.
2.3 The Complainant further submitted that she was victimised because she made a complaint and her hours of work were reduced as a result. It was stated that the Complainant was forced to resign her position on the 3rd of June 2011.
3 Summary of Respondent’s Position
3.1 It was submitted on behalf of the respondent that he is the owner of the premises and he employs approximately 12 people working predominantly female staff-eight female bar staff two male bar staff along with a manager and a chef. The respondent has hands on approach and he visits the premises approximately 5 days per week particularly at weekends. On each occasion he visits he speaks with each staff. He is available for and contactable to deal with any issues. All staff was aware that although there is a Manager in place the respondent is the boss and all staff members have his phone number and are welcome to contact him in relation to any issue.
4 Preliminary Issue-Time Limits - Section 77(5)
4.1 The respondent submitted that the complainant’s complaint dated the 3rd November ’11 does not contain any complaint of victimisation either in paragraph 5 or paragraph 8 or at all. Section 77(5) of the Employment Equality Acts 1988 -2011 provides that a claim in respect of discrimination or victimisation may not be referred under this section after the end of a period of six months from the date of the most recent occurrence of the discrimination or victimisation to which the case relates. It was stated that Form EE1 states that the last date of discrimination was the 30th May ’11. The Complainant’s representative by letter dated the 27th of March 2012 states “We wish to advise that there was an error in respect of the completion of the Form EE1, more particularly in relation to paragraph 5 therein. Please note that the boxes for “Victimising me” and “Dismissing me for discriminatory reasons” should also have been ticked.”
5 Preliminary Findings
5.1 Section 77(5) (a) of the Act provides as follows;
“ Subject to paragraph (b) , a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be , the date of its most recent occurrence”
5.2 However Section 77(5) (b) of the Act provides for an extension of time of a maximum of a further six months on application to the Director due to reasonable cause The Complainant representative made an application for an extension of time due to a clerical error
5.3 I find that there is clear evidence in the claim Form EE1 by the Complainant of sexual harassment, victimisation and discrimination. In relation to the occurrences upon which the Complainant seeks to rely which occurred prior to her claim being presented to the Equality Tribunal on 9th November ‘11, I make reference to the decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24th July 2009, is clear authority for the proposition that a claim under the Act may be amended so as to rely on additional acts or omissions which occurred before the claim was initiated provided that the nature of the claim remains the same . In April ‘2011, in front of staff and customers, including the complainant’s boyfriend and his friends, the Manager came up behind the complainant who was chatting at the bar to another employee and gyrated behind her in a sexually suggestive manner. The claim for victimisation arises out of and is intrinsically linked to the complainant’s complaint of sexual harassment. I find that the complainant resigned her employment with the respondent on the 3rd June 2011 in circumstances where she had been subjected to sexual harassment during the course of her employment and the respondent failed and neglected to take appropriate steps to prevent such behaviour.
5.4 I am going to allow an extension of time in this case in accordance with Section 77(5)(b) of the Acts
6. Complaint of Sexual Harassment
6.1 Section 14A (7) of the Employment Equality Acts sets out the definition of harassment and sexual harassment, as follows
(a) In this section-
6.2 (i) References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds,
(ii) References to sexual harassment are to any form of unwanted verbal, non- verbal or physical conduct of a sexual nature, being conduct, which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person .Without prejudice to the generality of paragraph
(a)such unwanted conduct may consist of acts, requests, spoken words, (b)gestures or the production, display or circulation of written words, pictures or other material
6.3 "The Code of Practice on Sexual Harassment and Harassment at Work produced by the Equality Authority defines verbal conduct of a sexual
nature as, "unwelcome sexual advances, propositions or pressure for sexual .
Activity, continued suggestions for social activity outside the work place after it have been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments." The Code also defines non-verbal conduct of a sexual nature as including, "the display of pornographic or sexually suggestive pictures, objects, written materials, e-mails, text messages or faxes. It may also include, whistling or making sexually suggestive gestures."
6.4 I find that the complainant has established a prima facie case of sexual harassment, in accordance with Section 85A of the Employment Equality Acts. I find the evidence established that the impugned conduct of the Manager was unwanted, offensive, humiliating and sexually embarrassing for the complainant and in this case that it amounts to sexual harassment,
6.5 Section 14A(2) places liability with the respondent specifically for harassment and provides for a defence. I find that having examined all evidence as presented that the respondent failed to have in place adequate procedures renders him liable and by reason of their failure to fulfil their statutory obligations they are responsible and cannot plead immunity. The respondent was fully aware of the Managers inappropriate behaviour and he failed to take the necessary action to deal with the situation that left the Complainant with no option other than to resign
7. Complaint of Victimisation
7.1. The Complainant stated that she was out on sick leave for a period of two weeks 27th April 2011to the 11th May 2011 and her hours of workwere changed by the Manager after returning from sick leave.
7.2. I find that in the nature of the business hours may fluctuate and I find that the Complainant did not give sufficient time to establish whether her reduction in her hours was of a permanent basis or not.
7.3 I find that the complaints were made to the respondent in or around 10th/11th March 2011 and again in or around the first week of April 2011.
7.4 I find that the time frame between the incidents does not provide a clear indication that the incidents are directly linked.
7.3 I find that the Complainant has not provided sufficient evidence to
Support her claim of Victimisation by the reduction of hours.
8. Complaint of Discriminatory Dismissal
8.1 I find that due process took place in that the respondent was made fully
Aware prior to any case been taken of the Manager’s behaviour.
8.2 I find that having examined all evidence as presented that the Respondent failed to have in place adequate procedures renders the liable and by reason of their failure to fulfil their statutory obligations they are responsible and cannot plead immunity. The respondent was fully aware of the Managers inappropriate behaviour and he failed to take the necessary action to deal with the situation that left the Complainant with no option other than to resign.
8.3 The Complainant has established that she was subjected to sexual harassment in breach of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 8 of those Acts in relation to her conditions of employment.
Conclusion
I find the respondent or the main witness did not attend the hearing on the 23rd June 2015 but were represented. At this juncture I feel it is appropriate to state that complainant produced witnesses at the Hearing who gave evidence. In general I found this evidence to be consistent with the evidence as submitted.
9. DECISION OF THE ADJUDICATION OFFICER / EQUALITY OFFICER.
9.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) The complainant has established a prima facie case of sexual harassment, in accordance with Section 85A of the Employment Equality Acts.
(ii) the complainant has failed to establish a prima facie case of victimisation in accordance with section 74(2) of the Employment Equality Acts
(iii) the complainant has established a prima facie case of discriminatory dismissal on grounds of gender in terms of section 6(2) of the Employment Equality Acts 1998 and 2004 and contrary to section 77 of those Acts.
9.2 Having regard to all of the factors of this case I am satisfied that the appropriate form of redress is an award of compensation. I therefore order, in accordance with my powers under section 82(1) of the Acts, that the respondent pay the complainant the sum of €31,000 by way of compensation for the distress suffered by her as a consequence of the discrimination. This award does not contain any element in respect of remuneration and is therefore not subject to PAYE/PRSI. In addition, I order that the respondent introduce, within four months of the date of this Decision, (i) a policy on harassment covering all nine discriminatory grounds under employment equality legislation and (ii) a formal grievance procedure. Copies of these policies must be circulated to existing staff at that time and the respondent should ensure that they are furnished to all new employees at induction training.
I am guided by Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive, Directive 2006/54/EC of the European Parliament and the Council of 5th July 2006 on the implementation of the principle of equal treatment of men and women in matters of employment and occupation Official Journal L204, 26/7/2006 P.0023-0036.
This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
______________________
Jim O’Connell
Adjudication Officer / Equality Officer