EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC-E2017-015
PARTIES
Mr A (represented by SIPTU)
v
A Repair Shop
File Reference: et-152649-ee-15
Date of Issue: 20th February 2017
Keywords: gender – sexual orientation – sexual harassment – S. 14A(2) defence – fairness and integrity of investigation.
1. Claim
1.1. The case concerns a claim by Mr A that the shop where he worked as a repair technician discriminated against him on the grounds of gender and sexual orientation contrary to Section 6(2)(a) and (d) of the Employment Equality Acts 1998 to 2011, in terms of sexual harassment. He also complains of victimisation and victimisatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 17 December 2014. A submission was received from the complainant on 19 February 2016. No submission was received from the respondent. On 3 January 2017, in accordance with her powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 17 February 2017. The complainant and his representative were in attendance. The respondent was not. The registered letter which informed the respondent of the original hearing date, which was sent to the current company address as per the Companies Registration Office, was returned marked “gone away”. However, the letter sent by normal post and the letter, also sent by normal post, which informed the respondent of the adjourned hearing date were not returned as undeliverable. Attempts made by WRC staff to notify the respondent by email and telephone proved unsuccessful, as neither the email address nor the telephone numbers from the respondent webpage were in use any longer. Overall I am satisfied that the Commission engaged in all reasonable efforts to notify the respondent of the hearing, and subsequently, the adjourned hearing. The complainant’s representative stated that the respondent had not engaged with other legal proceedings arising out of the complainant’s employment, either. Additional evidence was requested from the complainant at the hearing and received on 17 February 2017.
2. Summary of the Complainant’s Written Submission
2.1. The complainant commenced his employment with the respondent, as a repair technician, in February 2013. He submits that he was subjected to sexual harassment by a male manager, including physical contact in a way that simulated anal intercourse and vulgar comments of a sexual nature. These incidents happened in October 2014.
2.2. The complainant raised a grievance about these incidents, which were subsequently investigated by the respondent’s director, Mr S. According to the complainant’s submission, Mr S. found that there was no case to answer regarding the complainant’s complaint of sexual harassment. The investigation concluded on 28 November 2014.
2.3. Two days later, the complainant was dismissed from his employment.
3. Summary of the Respondent’s Written Submission
3.1. As noted above, the respondent did not provide a written submission to the Commission in advance of the hearing.
4. Conclusions of the Equality Officer
4.1. Pursuant to S. 101 of the Employment Equality Acts, I am precluded from investigating the complainant’s dismissal as he also brought a complaint under the Unfair Dismissals Acts 1977 to 2001, which was heard by the Employment Appeals Tribunal on 27 January 2016, nearly a year before my own investigation commenced and which had been decided by the Employment Appeals Tribunal by the time the case was heard.
4.2. The issue for decision in this case is whether the complainant was discriminated in his terms and conditions of employment, by reason that his employer did not take reasonable steps to prevent his sexual harassment, within the meaning of S. 14A(2) of the Acts.
4.3. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.4. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.5. The complainant stated he was heterosexual. He also stated that the manager of the repair shop who harassed him had not imputed homosexuality or bisexuality to him before, independent of his acts of harassment.
4.6. I experienced the complainant as a credible witness. Furthermore, given that the case was undefended, the veracity of his complaint of sexual harassment was not challenged. Given that he complained about his harassment to management, it was the investigation of his complaint which was at the centre of my investigation, to see whether the defence of S. 14A(2) might avail the respondent.
4.7. Section 14A(2) of the Acts states that
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.
4.8. These obligations are usually interpreted as requiring a robust investigation, which, if the complaint is upheld, must be followed by management decisions as to how to protect the affected worker, if necessary. If there is reason to doubt the integrity of the investigation process, the Commission and previously the Equality Tribunal, have not hesitated to enquire into it in detail. See, for example, Ms. A. v. A Retail Chain, DEC-E2013-070.
4.9. The complainant stated that when he complained to the company’s director about the harassment, he received a warning about his complaint and that an investigation of his complaint only happened when he was represented by SIPTU. According to the complainant’s union representative, the complainant was initially anxious to resolve the matter informally, but received an abusive phone call from the manager he had complained about. After that, the complainant and his representative pressed for an investigation.
4.10. To the complainant’s knowledge, the appointment of an outside investigator to conduct the investigation was never considered. This is astonishing, given the gravity of the complainant’s allegations, which place this case definitely at the serious end of a possible spectrum of sexual harassment complaints which the Commission, and before it, the Equality Tribunal, received. It is also astonishing in light of the fact that the respondent owns a whole chain of technology repair businesses in both Ireland and the UK and could probably have afforded such a service.
4.11. The complainant met with the respondent’s director and was given a detailed questionnaire about the incidents of sexual harassment, which he filled out and gave back to the director. He has no knowledge how this questionnaire was then used in the investigation. Likewise, he has no knowledge as to what questions were put to the accused manager, or what answers the manager gave. He had no opportunity to test the manager’s evidence. Whilst it would be true that the manager complained against did not have an opportunity to question the complainant either, I do attach some importance to the fact that the complainant was left wholly unclear as to what would happen to his written complaint. Providing this kind of clarity and transparency does not cost a respondent company any money; it is simply a matter of good practice.
4.12. I also attach importance to oral evidence received, that the respondent’s director did not appear to have an open mind about the complainant’s complaint, or take it indeed seriously at all, when he met with the complainant and his trade union representative. All of these details do point to a seriously deficient investigation process, especially in light of the gravity of the complainant’s allegations.
4.13. Accordingly, I find that the provisions of S. 14A(2) of the Acts do not avail the respondent and that the complainant is entitled to succeed.
5. Decision
5.1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015, that the respondent took no reasonably practicable steps to prevent the complainant’s sexual harassment at the hands of his manager pursuant to its obligations under S. 14A(2) of the Acts, and hence discriminated against the complainant in his terms and conditions of employment.
5.3. In light of the severity of the sexual harassment endured by the complainant, I hereby order, pursuant to S. 82 of the Acts, that the respondent pay the complainant €37,500, which is equivalent to 18 months’ salary for the complainant, in compensation for the effects of his discrimination. This takes into account that the complainant also succeeded in his Unfair Dismissals and Minimum Notice and Terms of Employment complaints before the EAT. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
______________________
Stephen Bonnlander
Equality Officer
20 February 2017