EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-054
PARTIES
An Employee
AND
An Employer
(Represented by Donagh Farrell B.L. instructed by LK Shields)
File reference: EE/2013/479
Date of issue: 24 March 2016
HEADNOTES: Employment Equality Acts - Gender – Sexual Harassment
DISPUTE
1.1. This dispute concerns a claim by An Employee that he was discriminated against by An Employer on the grounds of gender contrary to section 6 of the Employment Equality Acts, in that he was sexually harassed contrary to section 14A of the Acts and that he was victimised in accordance with section 74 (2) of the Acts.
1.2. The complainant referred his claim to the Director of the Equality Tribunal on 13 September 2013 under the Employment Equality Acts. On 8 July 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both parties. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 17 July 2015.
1.3. 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. COMPLAINANT'S SUBMISSION
2.1. The complainant submits that he was offered a position as Sales Executive with the respondent and was due to start work with them on 26 November 2012. Before he started, on 2 November he was invited to an office party and he submits that at the party in the office Ms A ‘came onto’ him in an overtly sexual manner, and she was due to be his boss. The party adjourned to a pub and Ms A continued to come onto him. Then a number of people got into taxis to go to a nightclub in central Dublin. He got into the same taxi as Ms A and she started kissing him and he responded. He left the nightclub fairly soon after arriving.
2.2. The following morning he got a text message from Ms A in which she apologised and also came onto him again. They met for lunch and he said there could not be a relationship and she said they could be friends who could flirt.
2.3. He started work and Ms A continued to come onto him with sexual comments every day. He submits he did not know how to deal with it. She was very helpful regarding work. She repeatedly invited him for drinks, all of which he declined. In late December 2012 he agreed to meet her in a hotel and then cancelled at the last minute. He telephoned her over the Christmas/New Year period and said her advances were not welcome. However, she continued to send explicit texts.
2.4. The complainant submits that to protect himself he spoke to the Managing Director. He first got reassurance that the MD was happy with his progress and performance and then he told him he was being sexually harassed by Ms A. The MD gave him some advice on how to handle it, something which the MD subsequently denied. The respondent did not deal with his allegations as a disciplinary matter.
2.5. The complainant submits that within days of making his allegations he came under the disciplinary process himself about expenses and complaints about his performance. He strongly believes they were connected and that this amounts to victimisation.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that on 4 March 2013 the MD met the complainant offsite and the complainant made serious allegations against Ms A but said that he did not want to raise a formal grievance. They met again on 6 March and again the complainant said he did not want to raise a formal grievance. However, he then sent an email stating he did want to use the company’s informal process to resolve the issue. On 8 March 2013 the MD had separate meetings with the complainant and Ms A. Both parties agreed that they would not have contact with each other and everything was to go through the MD. Following this meeting the MD considered the matter closed. Neither party raised any further issues.
3.2. On 19 April 2013 the MD held a third review meeting with the complainant in relation to serious conduct and performance issues, as a result of which the complainant agreed to repay sums misused on company credit card for personal use. The complainant referred to his allegations regarding Ms A in responding comments to the MD’s minutes of the review meeting. The respondent submits that the issues raised in relation to the complainant’s alleged breaches of company policy and poor performance were entirely unrelated to his previously resolved grievance.
3.3. On 30 April 2013 the complainant’s solicitors wrote to the respondent regarding his sexual harassment allegations and indicating that Ms A’s “behavior has destroyed the trust which should exist between the employer and their employees” and the complainant was “seeking an appropriate compensation package”. On the same day the complainant sent in a medical certificate. There followed a number of letter’s between the parties’ solicitors. On 15 July 2013 the complainant’s solicitor provided specific details of the complainant’s formal grievance.
3.4. The respondent appointed the Chief Finance Officer of the group to carry out an investigation, which was held on 31 July and 1 August 2013. The investigator found that the allegations did not occur in the manner described by the complainant, that both parties were willing participants in a relationship and that the complainant appeared to have used the relationship to gain advantage and he had made the allegations to avoid responsibility for expense irregularities. He recommended that the respondent should address his findings through a disciplinary process.
3.5. On 19 August 2013 the respondent wrote to the complainant notifying him that a disciplinary process would commence in accordance with their procedures. The complainant did not attend a disciplinary hearing on 8 October 2013. The disciplinary report was issued on 22 October 2013 and it recommended that the complainant be dismissed. This was confirmed in writing to the complainant on 24 October 2013. The complainant did not appeal the decision.
3.6. The respondent submits that any relationship between the complainant and Ms A was consensual and therefore cannot amount to sexual harassment within the meaning of the Employment Equality Acts. Without prejudice to the foregoing the respondent submits they took reasonable steps when they were made aware of the complaint.
4. FINDINGS & CONCLUSIONS
4.1. I have to decide if the complainant suffered sexual harassment on the grounds of gender and if he was victimised. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. At the hearing the complainant confirmed that he was a willing party to the initial incident on 2 November 2012 but afterwards he made it clear to Ms A that he only wanted a professional relationship. He also agreed that Ms A was not his direct boss, as stated in his written submission, but she did have ‘moral authority’ over him.
4.3. Ms A gave evidence that any incidents between herself and the complainant were consensual and the complainant would frequently visit her office, close the door and there would be sexual comments. Her evidence was that he gave no indication that he wanted their interactions to stop.
4.4. During the course of the hearing it became apparent that the complainant had been selective in a number of the emails that he had submitted as evidence of Ms A’s behaviour; in that either they did not contain the whole text of the email or he had not submitted his initiating or responding email. This seems to have been done to highlight the email correspondence between them as showing Ms A to have initiated flirtatious behaviour. However, the full correspondence shows both parties were willing and equal participants. The selective use of emails goes a long way to undermine the complainant’s credibility.
4.5. There was also contested evidence from both sides regarding the proceedings around his sales performance and expense irregularities. The complainant alleges that these were initiated as a result of his allegations against Ms A. In this respect I note that Ms A did bring the MD’s attention to the expense irregularities. However, I also note that Ms A made the complainant aware of two issues shortly before he spoke to the MD, although they were not made official until after he had spoken to the MD on 4 March 2013.
4.6. The evidence given at the hearing by Ms A and the MD I find to be credible, whilst that of the complainant was, in some respects inconsistent and selective. Having examined all the evidence I conclude that the flirtatious relationship between the complainant and Ms A was mutual and therefore cannot fall into the definition in section 14A of the Employment Equality Acts that: “references to ‘‘sexual harassment’’ are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature”. The complainant is therefore unable to establish a prima facie claim of sexual harassment.
4.7. Section 74 (2) of the Employment Equality Acts states: “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 complaint of discrimination made by the employee to the employer.
4.8. In this claim the complainant contends he made a complainant of sexual harassment to the MD and that proceedings were initiated against him by the respondent in relation to performance and expenses shortly afterwards. Firstly, I accept that the complainant did make a complaint of discrimination to the respondent. I therefore have to see if he suffered adverse treatment as a result of making that complaint. From the evidence given it is clear to me that the questions about his expenses had already been raised before the complaint was made. The MD gave evidence that the complainant’s initial training period was coming to an end and he had serious doubts about the complainant’s work, as he had made no sales to date. I also accept the evidence of the MD that at the time he raised the performance issues he considered the informal complaint made by the complaint to have been resolved.
4.9. I therefore conclude that the initiating of proceedings against the complainant in relation to expenses and performance issues were not related to his claim of discrimination and that he was therefore not victimised.
4. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that:
· the complainant has failed to establish a prima facie case of sexual harassment on the gender ground, and
· the respondent did not victimise the complainant,
and his complaints fail.
____________________
Hugh Lonsdale
Equality Officer
24 March 2016