EDA163

The Equality Officer found that the claim of sexual harassment was presented outside the time limit prescribed by s.77(5) of the Act. A claim of victimisation was also raised both at first instance and in this appeal. The claim of victimisation was considered by the Equality Officer and was found not to be well founded. An issue arose at the commencement of the hearing of the appeal as to whether that aspect of the claim was properly before the Equality Tribunal and, in consequence, whether the Court has jurisdiction to consider that matter in the appeal. This aspect of the case will be addressed later in this Determination.

The within complaints were presented to the Equality Tribunal by notice dated 17^thDecember 2012.

The Parties
In accordance with normal practice in cases such as this the parties are anonymised in this Determination. The Respondent is a major retailer. The Complainant is a woman who was employed by the Respondent as a general operative / sales assistant. At all material times she was engaged in night work involving the packing of goods for sale. The Complainant commenced employment with the Respondent in or about August 2007. She resigned from her employment on or about 6^thAugust 2013.

Position of the Parties
The Complainant claims that she was sexually harassed by male co-workers in the course of her employment in a period commencing February 2010 and continuing until November 2012. The harassment complained of consisted of comments, insults and innuendo of a sexual nature. The Complainant further contends that following the referral of the within complains she was victimised by having her Christmas bonus reduced and by being denied a transfer to another location.

The Respondent denies that the Complainant was sexually harassed in the manner alleged or at all. The Respondent further contends that the complaints of sexual harassment were presented to the Equality Tribunal outside the time limits prescribed by the Act and are statute barred. Without prejudice to its position in that regard the Respondent denies liability for any sexual harassment of the Complainant (which is denied) and claims that it is entitled to a full defence under s.14(2) of the Act by having taken such steps as were reasonably practicable to prevent the sexual harassment of the Complainant.

The Respodent further denies that the Complainant was victimised and contends that any such claims are not properly before the Court.

Evidence
The Court heard oral evidence from the Complainant. Oral evidence was also given by the Complainant’s immediate Manager, the Assistant Manager and by the Human Resources Manager of the Respondent.

Evidence on Behalf of the Complainant
The Complainant appeared alone as an unrepresented party. She had furnished the Court with a comprehensive and helpful written submission which contained a chronological account of the facts upon which she relied in advancing her claim. In ease of the Complainant, as an unrepresented party, the Court allowed her to refer to this document in giving her testimony.

The following is a synopsis of the sworn evidence tendered by the Complainant

The Complainant told the Court that she worked exclusively on night work. Her work involved stacking shelves in an aisle in the store. Two male workers performed similar duties in an adjacent aisle. In or about February 2010, one of these male workers (referred to herein as Mr A) asked her to go out with him on a ‘date’. She refused, telling that person that she was married and had no interest in any romantic involvement with him. Shortly thereafter, Mr A asked her to move in with him. Another male worker subsequently approached her on Mr A’s behalf, in Mr A’s presence, and told her that Mr A loved her. The Complainant again made it clear that she was not interested in any form of relationship with Mr A.

The Complainant told the Court that she worked in close proximity to Mr A and other male employees. In her hearing, Mr A engaged in conversations of a sexual nature with his male co-workers in relation to the Complainant. According to the Complainant, Mr A and his male co-workers regularly discussed, in her hearing, pornographic movies that they had watched and described in detail the sexual acts depicted therein.

It was the Complainant’s evidence that Mr A and the male employees with whom he worked made sexist comments directed at her, details of which were provided in her evidence. The Complainant said that she approached Mr A on several occasions and asked him to desist from this behaviour. She also asked a female colleague to speak to Mr A and point out that his behaviour was offensive. Despite these initiatives the offensive behaviour continued and, according to the Complainant, Mr A began to refer to her as a “Gypsy”.

In or about July 2010 the Complainant informed her Manager of this offensive conduct and asked him to deal with it. It was her evidence that the initial reaction of the Manager was to enquire how she knew what they were taking about (the male workers in question spoke mainly Polish but also used Russian and English expressions). The Complainant explained that she understood the expressions that were being used which were similar to the corresponding terms in her native language. It was the Complainant’s evidence that the Manager’s response to her complaints was to remark that the type of conversation complained of was “ok, as they were just young lads”.

The Complainant told the Court that following her return from holidays, in or about August 2010, Mr A commenced spreading rumours to the effect that she was having an affair with her Assistant Manager. He also began uttering a particular sexually expletive on any occasion that a male employee came into the aisle in which she worked.

According to the Complainant, this type of behaviour continued intermittently. The Complainant recalled another occasion, at some time in 2011, when a conversation of a sexual nature took place in her hearing between Mr A and another named employee (referred to herein as Mr B). The Complainant confronted Mr B in relation to what she had overheard. Mr B denied what was alleged and both he and the Complainant went to the Manager in relation to the matter. The Complainant gave evidence of having told the Manager about the offending conduct and that this form of behaviour was on-going. The outcome of this meeting, according to the Complainant, was that she and Mr B agreed to seek a meeting with the Human Resources Manager on the following morning in order to discuss her complaints. The Complainant told the Court that the Manager then told her that if she raised the matter with the Human Resources Manager he could get into trouble for allowing workers to converse in their native language. According to the Complainant, her Manager assured her that he would deal with her complaints and prevent any reoccurrence. The Court was told of other incidents of offensive comments, insults and gossip of a sexual nature being directed at the Complainant by Mr A throughout 2011.

The Complainant testified that in early 2012 the situation improved. However from around March or April of that year the offending conduct resumed and she was again subjected to insults and sexually explicit commentary by Mr A. It was the Complainant’s evidence that this behaviour continued from time to time during that year.

The Complainant recalled another incident which occurred in October 2012 in which Mr A had emptied a trolley that she was using to hold discarded packaging and had thrown its contents on the floor.

The Complainant also gave evidence that in November 2012 (the date was put at the 23^rd-24^thNovember 2012) her knee was swollen and she had to work with her leg outstretched while packing the lower shelves. She was seen in that position by Mr A who made a mocking and sexually offensive comment about her. Later on the same night Mr A made a comment containing an innuendo having a sexual connotation concerning her to a colleague.

Eventually, in response to an incident that occurred in late November of that year the Complainant contacted the Human Resources Department of the Respondent and made a complaint of sexual harassment. She was advised to put her complaint in writing.

An investigation into the Complainant’s complaints was then initiated. The Complainant wished to be represented by her trade union in this investigation but this facility was refused by the Respondent. In consequence of this refusal the Complainant did not participate in this investigation. She then went on sick leave. On 17^thDecember 2012 she then lodged the within complaint with the Equality Tribunal.

Victimisation
In advancing her claim of victimisation the Complainant told the Court that she called to the store on or about 14^thDecember 2012, while on sick leave, in order to collect her Christmas bonus. She was refused the bonus. When it was paid to her some time later she believed that it was in a lower amount than that which she received in previous years. She attributed that to the fact that she had made a complaint of sexual harassment.

The Complainant also told the Court that the Respondent had earlier proposed that she should transfer to another store. She was happy with that suggestion. However, the only transfer that she was offered was to a store that involved longer travelling time from her home and fewer hours per week. She declined the offer. The Complainant wished to be transferred to a store nearer to her home. She considers the Respondent’s failure to accommodate her with a suitable transfer as an act of victimisation for having made a complaint under the Act.

The Complainant accepted in cross-examination that she had not made a formal complaint to the Human Resources Department of the Respondent until November 2012. She also agreed that she received a copy of the Respondent’s staff handbook, containing the Respondent’s policy on sexual harassment, when she commenced her employment in 2007. She said that she had since lost this document. The Complainant also accepted that the Company procedures were displayed in the corridor of the area used by staff in the store.

Evidence on Behalf of the Respondent

The Complainant’s Manager
The Complainant’s Manager gave sworn evidence. He recalled a number of incidents reported to him by the Complainant which she claimed were offensive. The first incident that this witness recalled was in early 2010 when the Complainant informed him and the Assistant Manager that she believed that Mr A and Mr B were making sexual remarks about her and had referred to her as a gypsy. The witness told the Court that he then called Mr A and Mr B to a private area of the store and put the allegations made by the Complainant to them. They admitted engaging in sexually explicit conversations but assured him that they were about women in general and were not directed at the Complainant. He informed both employees that this type of conversation while at work was unacceptable and must cease. The witness was informed by them that the remark about a gypsy was directed at Mr B’s girlfriend and not at the Complainant. Both men assured him that this type of behaviour would not be repeated.

The witness then spoke to the Complainant and told her what both men had said and the assurances as to their future conduct that they had given. According to the Manager, he told the Complainant that if she was dissatisfied with that outcome she should refer the matter to the Human Resources Department in writing.

The witness denied that he had dismissed the Complainant’s complaints by saying that the two employees in question“were just young lads”or anything to similar effect.

The Manager recalled another incident in 2011 in which the Complainant reported to him that Mr B had made sexually explicit comments to her. On that occasion the Manager put this allegation to Mr B who flatly denied having made any such comments. Mr B told the witness that he had no difficulty in having the matter investigated by the Human Resource Department if the Complainant wished to pursue it further. He then called the Complainant and sought to resolve the matter between them. He believed that the matter had been satisfactorily resolved because both employees then shook hands. The Manager told Mr B that he would closely monitor the situation between him and the Complainant. The witness denied that he had told the Complainant that he would get into trouble for allowing workers to converse in their native language. He told the Court that there was no prohibition on workers using a foreign language at times when there are no customers in the store.

The third incident reported to the witness related to the empting of rubbish on to the floor from a trolley being used by the Complainant. This occurred in or about November 2012. The Complainant alleged that Mr A had emptied the rubbish. Mr A denied this. He said that when she was informed of this denial the Complainant smiled and walked away.

This witness told the Court that he had sought to deal with these incidents informally as provided for by the Respondent’s sexual harassment policy. He emphasised that he had told the Complainant that if she wished to pursue her complaints further she should do so in writing to the Human Resources Department.

In response to questions from the Court the witness said that he maintained a diary in which serious incidents that occurred were to be recorded. He accepted that none of the incidents on which he gave evidence had been recorded.

The witness also told the Court that the Respondent had policies directed against harassment, bullying and sexual harassment and these were displayed in a prominent position in the staff area of the store. They were available in the English language only.

In reply to further questions from the Court the witness said that he was given a copy of the staff handbook when he commenced employment in 2003. He subsequently received updates in writing from time to time on various company policies. He said that he was the appropriate contact person under the sexual harassment policy to whom complaints of sexual harassment should be made. He said that the Complainant never used the term sexual harassment in making any of her complaints and he did not refer to the relevant policy in considering how he should respond. He also accepted that he did not refer the employees against whom the complaints were directed to the policy on sexual harassment. The witness told the Court that he had not received any specific training on how to handle complaints of sexual harassment.

The witness was unable to say if either Mr A or Mr B had obtained a copy of the staff handbook printed in their native language, nor did he know their level of proficiency in reading English.

Evidence of the Assistant Manger
The Assistant Manager gave sworn evidence. The import of this witnesses’ evidence was to corroborate the evidence of the Manager.

Evidence of the Human Resources Manager
Evidence was given by the Human Resources Manager of the store in which the Complainant worked in relation to the complaints of victimisation.

In dealing with the complaint made concerning the non-payment of the Christmas bonus in December 2012, this witness told the Court that as a matter of consistent practice the Respondent does not pay a Christmas bonus to employees who are on sick leave until they return to work. The Complainant was on sick leave at the time that the Christmas bonus became payable in 2012. She was advised that the bonus would be paid on her return. However, in the circumstances of the Complainant a decision was made to depart from the normal practice in her case and the bonus was subsequently paid before her return to work. Evidence was given of the mode of calculating the bonus used in all cases by the Respondent. The Court was told that the same calculations were made in the case of the Complainant’s bonus as were used for all other employees.

By letter dated 18^thJanuary 2013 the Complainant was furnished with a detailed breakdown of the calculations used to determine the value of her bonus.

Turning to the question of the proposed transfer of the Complainant, the witness agreed that the Complainant had been offered a facility to transfer to another store. The Court was told that the normal practice within the employment is that where a staff member wishes to transfer a general enquiry is made to other stores seeking to identify suitable vacancies. In this case such an enquiry had been made in respect to the Complainant. Initially the Complainant was on sick leave and the question of finding an alternative position did not then arise. A vacancy was later identified in a store in reasonable proximity to the store in which the Complainant worked and she was offered the opportunity to fill that vacancy. The Complainant declined to accept a transfer to that store claiming that it would involve longer traveling time to work. According to the witness, the difference in distance between this store and the store in which the Complainant worked was minimal.

It was this witness’s evidence that the process used in this case in seeking to accommodate the Complainant with a transfer was the same as that used in the case of every other employee who wished to change their work location.

Preliminary Issues
Two preliminary issues arise for consideration in this case. They relate to (1) whether the complaint of victimisation was properly referred to the Equality Tribunal within the six month period commencing on the date of the occurrence of the event giving rise to the claim, as prescribed by s. 77(5) of the Act and (2) whether incidents alleged to constitute sexual harassment that occurred outside the six month period ending on 17^thDecember 2012 (the date on which the within complaint was referred to the Equality Tribunal) can be taken into account in this appeal.

Victimisation
It is common case that the originating form on which the Complainant submitted her complaints to the Equality Tribunal on 17^thDecember 2012 did not contain a complaint of victimisation. The Complainant contends that a submission was sent to the Equality Tribunal on her behalf on 13^thFebruary 2013 which contained that complaint. The Respondent claims that the only submission of which it had sight was one submitted to the Equality Tribunal in February 2014. While it is acknowledged that this submission did raise an issue of victimisation, the Respondent submitted that this complaint was then out of time. The Respondent further submitted that the mere reference to a complaint in a submission does not constitute a valid reference of that complaint in circumstances in which it had not been raised in the form used in making the referral.

The Court decided, with the agreement of the parties, that it would hear the evidence in relation to the claim of victimisation without prejudice to the Respondent’s contention that this matter is not properly before the Court and, having heard that evidence, the Court would decide if it was necessary to hear further submissions on the admissibility of the claim. For reasons that follow the Court finds that it is unnecessary to invite further submissions from the parties on this point.

Time Limit – Sexual Harassment Claim
The Complainant relies on incidents that occurred in a period extending from February 2010 to November 2012. The Respondent contends that it is only those incidents (if any) that occurred in the period between 18^thJune 2012 and 17^thDecember 2012 that can be relied upon for the purpose of this appeal. The Complainant contends that the sexual harassment of which she complained extended over a period commencing in February 2010 and continued until shortly before she made her complaint to the Equality Tribunal. It is the Complainant’s submission that the time limit in relation to the totality of her claims only starts to run from the date on which the harassment ceased.

Time Limits Generally
Section 77(5)(a) of the Acts provides: -

• (a) 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 6 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.

Section 77(6A) provides: -

• For the purposes of this section —

  (a) discrimination or victimisation occurs—

  • • (i) if the act constituting it extends over a period, at the end of the period,
    (ii) [not relevant]
    • (iii) [not relevant]

• Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur[1989] ILRM 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act (see the decision of the Court of Appeal for England and Wales inRobertson v Bexley Community Centre[2003] IRLR 434, at para 21).

  Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. The circumstances in which a corresponding provision of UK law can come into play was considered by the Court of Appeal inArthur v London Eastern Railway Ltd[2007] IRLR 58. Here the Court was concerned with a claim of victimisation in the form of a series of acts directed against the complainant, some inside the three-month time limit provided at s.48 of the UK Employment Rights Act 1996, and some outside that limit. In considering if the time-limit in respect of all of the acts relied upon stated to run from the last such act Mummery LJ said: -

  • The provision in s.48(3) regarding a complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.

    The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them.

The Law
This case falls to be considered by application of s.14A of the Act. That section provides: -

• (1) For the purposes of this Act, where—
  • (a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—

    (i) employed at that place or by the same employer,

    (ii) the victim's employer, or

    • (iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or
  (b) without prejudice to the generality of paragraph (a)—
  • (i) such harassment has occurred, and
  (ii) either—
  • (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

    (II) it could reasonably be anticipated that he or she would be so treated

  the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.

  (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

  • (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

    (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.

  (3) A person's rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

  (4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim's employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

  (5) In this section “employee” includes an individual who is—

  (a) seeking or using any service provided by an employment agency, and

  • (b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),
  and accordingly any reference to the individual's employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

  (6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim's conditions of employment” there were substituted “contrary to section 11”, or, as the case may be, section 12.

  (7)

  (a) In this section—

  • • (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

      (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

    (b) 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.

    (c) 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.

For the purposes of this Directive, discrimination includes:

• (a) harassment and sexual harassment, as well as any less favourable treatment based on a person’s rejection of or submission to such conduct;

• Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work (1). This can include unwelcome physical, verbal or non-verbal conduct.

  Thus, a range of behaviour may be considered to constitute sexual harassment. It is unacceptable if such conduct is unwanted, unreasonable and offensive to the recipient; a person's rejection of or submission to such conduct on the part of employers or workers (including superiors or colleagues) is used explicitly or implicitly as a basis for a decision which affects that person's access to vocational training or to employment, continued employment, promotion, salary or any other employment decisions; and/or such conduct creates an intimidating, hostile or humiliating working environment for the recipient (1).

  The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. Sexual attention becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious. It is the unwanted nature of the conduct which distinguishes sexual harassment from friendly behaviour, which is welcome and mutual.

• Sexual harassment pollutes the working environment and can have a devastating effect upon the health, confidence, morale and performance of those affected by it. The anxiety and stress produced by sexual harassment commonly leads to those subjected to it taking time off work due to sickness, being less efficient at work, or leaving their job to seek work elsewhere. Employees often suffer the adverse consequences of the harassment itself and short- and long-term damage to their employment prospects if they are forced to change jobs. Sexual harassment may also have a damaging impact on employees not themselves the object of unwanted behaviour but who are witness to it or have a knowledge of the unwanted behaviour.

Section 56(4) of the Act provides: -

• An approved code of practice shall be admissible in evidence and, if any provision of the code appears to be relevant to any question arising in any criminal or other proceedings, it shall be taken into account in determining that question; and for this purpose “proceedings” includes, in addition to proceedings before a court and under Part VII, proceedings before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Director and a rights commissioner.

• • The obligation is preventative in nature and it is not sufficient for an employer to show that measures were taken to prevent a reoccurrence of harassment after it had taken place.

    This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to 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 all employees. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations.

  
  
  

Evaluation of the Evidence
The Court has carefully evaluated all of the evidence adduced in the course of this appeal. The Complainant gave evidence in which she described the conduct of her male colleagues which she claims to have found offensive, degrading and humiliating and which created an offensive working environment for her. That conduct was clearly of a sexual nature. Her evidence was also to the effect that the offensive conduct extended over a period commencing in February 2010 and continuing until, at least, November 2012. The conduct was perpetrated by the same person or persons and, in the Court’s view, should properly be regarded as continuing conduct.

The Court has taken account of the Complainant’s demeanour in giving her evidence and of her responses to cross-examination and to questions put to her from the Court.

The Court has also taken full account of the evidence tendered by the Complainant’s Manager and the Assistant Manager on the events to which these complaints relate. In so far as that evidence related to the explanations provided by Mr A and Mr B in response to the Complainant’s complaints it was hearsay. Nevertheless, it has been taken into account for what it is worth.

Overall, the Court found that the Complainant gave credible evidence to the best of her recollection. The Court is satisfied that her evidence provided a substantially correct picture of the events and conduct that she described. In so far as there was a conflict between the Complainant’s evidence and that tendered by the Manager and the Assistant Manager in relation to these events, the Complainant’s evidence is preferred.

It follows that the Court must hold that the Complainant was sexually harassed and that that harassment extended over a period commencing in February 2010 and continuing until at least November 2012. The within complaints were made on 17^thDecember 2012. Consequently, by application of s.77(5)(a) of the Act, the totality of the conduct complained of is cognisable in considering her complaint.

Defence
The Court must then turn to considering whether the Respondent can avail of the defence provided by s.14A(2)(a) of the Act. In addressing the applicability of that defence the adequacy or otherwise of the Respondent response to the formal complaints made to the Human Resources Department in November 2012 is not determinative. In considering whether the Respondent can avail of the statutory defence the focus must be on the adequacy of any antecedent measures taken by the Respondent to prevent the type of conduct giving rise to these complaints. For that reason the Court ruled, in the course of the appeal, that matters relating to the investigation conducted by the Respondent, after the complaints were formally referred to the Human Resources Department and after the within complaints were referred to the Equality Tribunal, were not relevant to the questions that the Court must decide.

The Court accepts that the Respondent had in place a policy directed against sexual harassment which is contained in the employee handbook. It further accepts that the content of this policy was displayed in the staff area of the store. However the Court is not satisfied that the policy was properly or adequately applied in practice. Nor is the Court satisfied that the import or importance of the policy was properly understood by the Complainant’s Manager in the store who were responsible for its implementation. Moreover, the evidence was to the effect that the handbook and the displays in the staff area of the store were printed only in English. English was not the native language of the perpetrators of the offending conduct and there was no evidence concerning their competency in reading English.

The policy contained in the staff handbook provides that complaints of sexual harassment should be made to the complainant employee’s immediate supervisor. The Complainant did complain to her Manager. Having heard the evidence of the Manager the Court has concluded that he had little understanding of what constitutes sexual harassment or of how he should respond to complaints alleging such conduct. The Manager appeared to place some importance on the fact that the Complainant did not use the expression ‘sexual harassment’ in making her complaint although it should have been obvious that the subject of her complaints amounted to such behaviour. The Manager also wrongly concluded that because he was assured that the offending comments, which were admitted by the perpetrators, were not directed at the Complainant their seriousness was diminished.

The Manager told the Court in evidence that he was provided with a copy of the staff handbook, containing the policy on sexual harassment, in 2003 but that he had not received any specific training on how to apply that policy. In addressing the Complainant’s complaints neither the Manager nor the assistant Manager considered it appropriate or necessary to refer either Mr A or Mr B to the content of the policy on sexual harassment, or indeed to draw the Complainant’s attention to that policy.

There was a conflict in the evidence given by the Manager and the Assistant Manager, on the one hand and that given by the Complainant, on what she was told at the time that she first complained about the conduct of Mr A and Mr B. The recollection of the Manager and that of the Assistant Manager was that they told her that if she was dissatisfied with the informal approach that they had taken she should put her complaints in writing to the Human Resources Department. The Complainant was adamant that she received no such advice. On balance, the Court has concluded that the Complainant’s recollection on this point is correct and should be preferred.

The Manager told the Court that he maintained a diary in which serious events arising were recorded. It is significant that none of the events of which the Complainant complained were recorded in this diary.

Overall, the Court has reached the conclusion that while the Respondent did have a policy on the prevention of sexual harassment it did not have adequate arrangements in place to ensure that the content of, and importance of adherence to, that policy was properly understood by the Managers who were responsible for its implementation. In these circumstances the Court is satisfied that the Respondent did not take such steps as were reasonably practicable to prevent Mr A and Mr B from sexually harassing the Complainant. Accordingly, the Court must hold that the Respondent cannot avail of the defence provided by s.14A(2)(a) of the Act.

Victimisation
Having regard to all the evidence adduced in relation to the Complainant’s complaint of victimisation the Court is satisfied that there is no basis upon which it could be held that the events grounding this complaint were in any way related to the making of her complaints of sexual harassment. Accordingly this aspect of the complaint could not be upheld.

In these circumstances it is unnecessary for the Court to consider whether this aspect of the claim was properly before the Equality Tribunal and is now properly before the Court.

Outcome
For the reasons set out herein the Court is satisfied that the Complainant was sexually harassed in the course of her employment between 2010 and November 2012 and that the harassment constituted discrimination against her by the Respondent in terms of her conditions of employment on grounds of her gender.

The Court is satisfied that the Complainant was not victimised in the manner alleged.

Redress
Having regard to all the circumstance of this case the Court is satisfied that the appropriate redress is an award of compensation. The Court directs the Respondent to pay the Complainant compensation in the amount of €15,000 for the effects of the discrimination that she suffered. No part of this award is in respect of remuneration.

The decision of the Equality Tribunal is set aside and substituted with this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
28th January 2016______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.