EMPLOYMENT EQUALITY ACTS 1998-2015
DEC-E2017-020
A General Operative
(represented by SIPTU)
v
A Manufacturer of Electronics
(represented by IBEC)
File reference: et-159484-ee-15
Date of issue: 23rd March 2017
Keywords: Employment Equality Acts, Sexual harassment, Gender, no prima facie case
Dispute
1.1 The case concerns a claim by an employee (General Operative) that a fellow employee (trainer) sexually harassed her as per Section 14A of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’]. and that her employer failed to prevent it or reverse the effects.
1.2 Through her Trade Union, the complainant referred a complaint under the Acts to the Equality Tribunal on 21st September 2015. On 30th May 2016 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Adjudication 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 and a joint hearing was held on 15th July 2016 in Galway as required by Section 79(1) of the Acts. I have exercised my discretion to anonymise this decision.
1.3 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.
Summary of the complainant’s case
2.1 On 1st May 2015 the complainant made a complaint under the employer’s Dignity at Work policy concerning unwanted and unwelcome behaviour by her male colleague Mr K. She submits that she received unwelcome attention (leering and staring) and comments as well as Facebook messages of a sexual nature.
2.2 The employer appointed an external investigator. The complainant argues that the investigator went beyond his brief in making a comment about the complainant’s conduct: ‘While I find this element of the overall complaint to be valid, I do however find it somewhat incredulous that the complainant would have in the first instance initiated a conversation with an individual who she alleges was involved in unwanted and unwelcome behaviour towards her’. The complainant appealed this investigation but the finds of the investigator were upheld and Mr K returned to work the evening that the investigation was upheld. As far as the complainant knows, Mr K was not reprimanded.
2.3 The complainant points out that the Code of Practice on Sexual Harassment and Harassment at Work (S.I. 208 of 2012) states that the ‘scope of the sexual harassment and harassment provisions extend beyond the workplace’. The Code goes on to say:
Employers are legally responsible for the sexual harassment and harassment carried out by co-employees…employers will not be allowed to rely on an excellent policy if it has not been effectively implemented’. The code states that the investigation report should recommend whether the organisation’s disciplinary procedure should be invoked. This did not occur here and the complainant submits that it was a serious omission.
2.4 The complainant submits that the respondent took no remedial action whatsoever. She submits that the leering by Mr K continues. She requests compensation, a change in shift patterns and an order that the employer instruct Mr K not to interact with the complainant.
Summary of the respondent’s case
3.1 The complainant commenced employment on 2nd February 2015. The respondent acknowledges that she raised a complaint under their Dignity at Work policy three months later but that it was investigated thoroughly by an independent investigator. While it was being investigated, Mr K was suspended with pay. As part of this investigation, Mr K made available the Facebook messages between him and the complainant. They are reproduced verbatim below:
Complainant: How’s things, make sure to send on a picture of tattoo when finished. Will you send on his number please? Thank u.
Mr K: [picture of him out in pub] You know I miss you every night.
Complainant: Enjoy your night off. I say it was very quite last night with all the sick heads.
Mr K: HaHaHa
Complainant: You had a good nite Sunday nite
Mr K: Can’t wait to see you again
Complainant: Ha ha funny
Mr K: Can’t wait
Complainant: Wednesday night if I’m back
Mr K: I know you love me
Complainant: Will you get over yourself
Mr K: Haha
Complainant: Age and Drinking don’t mix well do they ha ha
Mr K: Listen, I don’t know more I love you or hate
Complainant : What????
Mr K: Yeahh
Complainant: I don’t understand ur message
Mr K: You know what I mean
Complainant: I don’t explain please
Mr K: Not tonight
Complainant: Not tonight???
Mr K: Yes
Mr K: I know you love me
Complainant: What are you on about? Where are you getting that from?
Mr K:From my heart
Complainant: Who else do u say this too
Mr K: [ Named Male colleague]
Complainant: That’s what I thought….Is it him u have a bet on with?
Mr K: You know he is my Girlfriend!
Complainant: Don’t get ya
Mr K: I love you too
Complainant: Will you get over it……..Who will win the bet???
Mr K: Not me for sure
Complainant: Who have you the bet with?
Mr K: Hmmmmmmm
Complainant: U might win if you tell me
Mr K: I never win. You are always Wright
Complainant: Glad you know it. Some of us have work tonight. Enjoy you nite off
Mr K: We think the same but afraid to say so.
Complainant: Think the same about what.
Mr K: You know.
Complainant: If I did I would say it.
Mr K: I’m afraid that you wouldn’t.
Complainant: Wouldn’t what. I’m not afraid of anything!!!!
Mr K: Be honest with me, What we talk about it
Complainat: Yes. What about it?
Mr K: I want to meet you wright now.
Complainant: No!
Mr K: Thanks.
Complainant: You no it can’t happen
Mr K: I don’t know it. If two people want the same.
Complainant: How do you no I do?
Mr K: I just know. So. ?
Complainant: Why me?
Mr K: You know why
Complainant: No I don’t explain
Mr K: We hate each other and we love. That’s why
Complainant: U fight with me and I just don’t take shit. From anyone!
Mr K: Stop. You want or not
Complainant: Talk tomorrow
Mr K: No we talk. No we talk today
Complainant: Look talk tomorrow. You think u might be texting the wrong person. I think you might
Mr K: You think so?
Complainant: Yes. Talk tomorrow night
Mr K: Common lets finally meet
Complainant: Talk tomorrow [Mr K’s first name]
Mr K: Bye
Complainant: U mad now? Bye
Mr K: Sorry for text shit before
Complainant: What was it all about
Mr K: It’s nearly break time
The complainant’s grievance was not upheld. Therefore Mr K was not sanctioned. However, for positive employment relations the respondent thought it was prudent to move the complainant and Mr K to different shifts. Mr K now works the evening shift while the complainant works the night shift so there is no need for interaction between them. The respondent also informed the complainant about their Employee Assistance Programme should she wish to avail of it.
3.2 The respondent submits that it takes bullying and all forms of harassment very seriously. All employees are made aware of their policy at induction. Regarding the manager ignoring her complaint, the complainant did not make a formal complaint. What is referred to is that the complainant arrived early to work and had a cigarette in the smoking shelter. Sometimes Mr K was there as his shift was finishing. The respondent points out that the complainant refused to make a formal complaint. They also point out that she could have chosen to have her cigarette elsewhere as it was before her clock-in time. The respondent also points out that Mr K goes out of his way to avoid the complainant since she accused him of sexual harassment.
Conclusions of the Equality Officer
4.1. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. 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.
Sexual harassment
4.2Sexual harassment is defined in Section 14A (7) of the Acts as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. It may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. it is a defence for the employer if it can prove that it took reasonably practicable steps to prevent the person from sexually harassing the victim or any class of persons which includes the victim and to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and where such treatment has occurred to reverse its effects. (my emphasis)
4.3 Sexual harassment is a fraught and emotionally loaded issue. It has been further complicated by the ease in contacting a work colleague outside working hours through digital platforms e.g. 30 years I would have to ask a colleague for their landline phone number unless it was listed in the telephone directory. Generally there was only one phone per household so there was no guarantee that I would be the one to answer. In this case the complainant contacted the alleged harasser for the number of his tattoo artist on Facebook messenger. I do not think that the complainant brought sexual harassment on herself by contacting him with this query. However, she gave direct evidence that prior to this, she found Mr K stood too close to her and was always staring at her. I also note that by the end of the conversation, she still did not have the number of the tattoo artist. A quick google search by myself found the phone number of the relevant tattoo artist. While some of the comments made by Mr K were lascivious, at no point in the text conversation did the complainant establish boundaries or tell Mr K that he was making her feel uncomfortable. Instead she gave the impression that she was enjoying the flirtation. The complainant gave direct evidence at the hearing that her husband was beside her and was reading this message thread as it went on. This I find hard to believe. In the circumstances of this case, the complainant adduced no evidence that the conduct of Mr K was unwanted by her. Therefore the complainant has failed to raise a prima facie case of sexual harassment.
4.4 It is a defence for the employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim or any class of persons which includes the victim and to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and where such treatment has occurred to reverse its effects. First of all, the respondent has a Dignity at Work policy and the complainant raised a grievance under it. The respondent appointed an independent investigator and suspended the alleged harasser with pay while the investigation was ongoing. They did not take a narrow approach to the investigation by arguing that the messaging took place mainly outside work and that it did not occur on equipment supplied by them. Mr K willingly supplied the Facebook messages between himself and the complainant. While he agreed some of his messages were not prudent to a work colleague he said that both her behaviour at work and her coyness in the messages led him to believe that she was attracted to him. I am satisfied that the investigation was adequate and that the respondent took the extra precaution of putting the complainant and Mr K on different shifts. The respondent could not reasonably do anything more to reverse the effects of the alleged harassment than that. Regarding where the complainant takes her smoking break before work, I accept the respondent’s contention that I cannot order the respondent to forbid Mr K from taking his smoking break on the slight chance the complainant may be there in circumstances where the accusations of sexual harassment were not well-founded. For the avoidance of doubt, even if I had found sexual harassment (which I did not) in the circumstances of this case the respondent is entitled to avail of the 14A (2) defence.
4.5 I have some sympathy for the complainant. She previously had worked in crèches where most employees tend to be women. This was her first time working in a factory where the dynamic is very different. Perhaps this is how the confusion arose.
Decision
5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the complainant was not sexually harassed and that the respondent is entitled to the defence in the Acts.
_______________
Orlaith Mannion
Equality Officer/Adjudication Officer