FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : CATLAN TRADING LTD T/A MARCO MOREO (REPRESENTED BY MR DAVID MARTIN, GORE GRIMES SOLICITORS) - AND - KELLIE ANN MCGUINNESS (REPRESENTED MR DES RYAN B.L. INDTRUCTED BY MR RONAN KILLEEN, KILLEEN SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No: ADJ-00001683
BACKGROUND:
2. The Appellant appealed the decision of the Adjudication Officer to the Labour Court on 23 August 2016. A Labour Court hearing took place on 2 February 2017. The following is the Court's determination:
DETERMINATION:
This is an appeal by Ms Kellie Ann McGuinness against the decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2011 (the Acts). The Complainant referred her claim to the Workplace Relations Commission on 1stFebruary 2016 alleging gender discrimination, harassment and sexual harassment. The Adjudication Officer held that the complaint was not well founded.
In this Determination the parties are referred to as they were at first instance, hence Ms Mc Guinness is referred to as ‘the Complainant’ and Catlan Trading Limited t/a Marco Moreo is referred to as ‘the Respondent’.
Background
The Complainant was employed as a Sales Assistant in a concession shop in a major Department Store. She commenced her employment on 8 August 2014. She alleged that an employee from another concession shop who worked alongside her subjected her to harassment and sexual harassment. The Complainant stated that these incidents occurred from July to September 2015.
Summary of the Complainant’s Case
Mr Des Ryan B.L., instructed by Killeen Solicitors, on behalf of the Complainant stated that the Complainant's employment was unremarkable from August 2014 until the summer of 2015. In July 2015 Mr. L, whohad been working in another concessionin the Shoe Department,had left and returned as an Assistant Manager. Heworked in close proximity to the Complainant and between July and September 2015, he subjected the Complainant to a number of instances of unwanted contact, both verbal contact and physical contact, which included harassment and harassment of a sexual nature.
The Complainant submits that the Respondent failed to investigate the allegations at allor appropriately and additionally failed to take appropriate steps to protectthe Complainant and further had failed to take steps on foot of the incidents,the subject matterof these proceedings, including the instigating of any policies and procedures in relationtosexual harassment and harassment and bullying.
Mr Ryan said that Mr L’s behaviour towards the Complainant had the effect of interfering with her personal space; of violating her dignity; it created an intimidating, hostile, degrading, humiliating, and offensive environment for her to work in and had a significant effect on her well-being.
Mr Ryan stated that the Complainant made the Respondent aware that she was uncomfortable working with Mr L. a number of weeks prior to an investigation being conducted, however, she stated that the Respondent had failed to deal or to investigate her complaints in any meaningful or appropriate way, leading to her being treated for a diagnosed psychological illness. She said that she feared that the making of a complaint would jeopardise her employment.
The Complainant relies on the case ofAtkinson v Carty & Ors.[2005] 16 ELR1, a decision of Judge Delahunt where she stated in her judgment that where there were no written procedures in place to provide the plaintiff with an avenue to seek redress the employer was liable.
Judge Delahunt stated:-
- 'It is not sufficient for the Defendants toplead that no amount of paper compliance would have helped in the case of the Plaintiff. The failure of the Defendants tohave in place adequate procedures renders the liable and by reason of their failures tofulfil their statutory obligations, they are responsible and cannot plead immunity from same simply because the Plaintiff complained tomakeacomplaint'.
Judge Delahunt found:-
- “I am satisfied that the Defendant are responsible for the actions of the independent contractor and that the Defendants are correctly before the court.
- The failure of the Defendants to have in place adequate procedures renders them liable and by reason of their failure to fulfil their statutory obligations they are responsible and cannot plead immunity from same simply because the Plaintiff failed to make a complaint.”
In support of his contention, Mr Ryan citedA Worker v Company[1992] ElR 40, a decision which identifies that where an employer had not taken necessary measures to ensure the safety of the employee then it has failedin its duty to the employee, andAllen v Dunnes Stores, [1996] ELR203, in which it was held that every employer has a liability to advise and educate its employees regarding sexualharassment. He contended that theRespondent had failed in theirduty to the Complainant in this regard.
Mr Ryan submitted that the Respondent had failed in its duty to the Complainant to have a policy in place to prevent harassment. He referred to theEmployment Equality Act 1998 (Code ofPractice) (Harassment) Order 2012which he maintained places a significant emphasis on having a policy in place and gives practical assistance to an employeron how the policy should be drawn up, implemented and communicated to employees and any other persons such as clients or business contacts who may be affected by it.
Summary of the Respondent’s Position
Mr David Martin, Gore Grimes Solicitors, on behalf of the Respondent, held that the Complainant did not make her Manager aware of any ongoing harassment by the alleged harasser. However, in or around the end of August 2015 the Complainant’s Manager, Ms D herself witnessed an incident in relation to the Complainant and her alleged harasser.Ms D spoke to Mr. L’ s Manager, Ms C, and this Manager spoke to the Complainant however, the Complainant stated that she did not want her to speak to the alleged harasser.
Subsequently on 7 September 2015, Ms D observed a further incident of harassment and immediately proceeded to take steps to ensure that such an incident would not occur again.As Ms C was on leave at the time Ms D spoke to Mr L directly and instructed him to cease his harassment of the Complainant.
Mr Martin said that on 15 September 2015, Ms C returned from annual leave and Ms D notified her of the incident, at which point the latter manager proceeded to carry out an investigation. The Complainant was requested to provide a statement regarding the incidents and was advised that the matter was been taking seriously.Ms C requested written statements in relation to the incidents from four named individuals including the Complainant. Mr Martin said it was Ms D who typed up the Complainant's statement in conjunction with the Complainant. Pending the result of the investigation Mr L was suspended and informed that he would not be returning to work in the department store. At which point Mr L resigned his position. The outcome of the investigation and Mr L’s suspension and resignation was communicated to the Complainant on the same day.
By letter dated 16 September 2015 the Respondent wrote to the Complainant apologising for the abuse she had been subjected to and outlining its support for her.
Mr Martin submitted in this case that as soon as the alleged harassment was brought to the attention of the Respondent that steps were taken between the Respondent and the alleged harasser's employer such that the complaint was investigated, statements were taken from a number of witnesses including the Complainant and the alleged harasser was suspended by his employer from his employment and removed from the site.
Mr Martin referred to theEmployment Equality Act 1998 (Code of Practice) (Harassment) Order 2012. He stated that the code encourages employers to follow its recommendations in a way which is appropriate to the size and structure of an organisation, however, it does not impose any legal obligations in itself, nor is it an authoritative statement of the Law.He citedthe decision ofA Worker v A RestaurantDEC-E2015-145 in which the Adjudication Officer/Equality Officer reaffirmed this position:-
- “I accept that the code does not specifically compel an employer to adopt the code. It does stipulate, that "it is essential that employers have in place successful and efficient policies and procedures to deal with sexual harassment and harassment.”
alleged harassment came to the attention ofthe Respondentthe harassment of the Complainant was investigated by the Managerof theharasser with the assistance and support of the Respondent and the outcome of theinvestigation was that the allegedharasserwas suspendedand hewas removed from the site.Witnesses Testimony
- The Complainant
The Complainant told the Court that even after Mr. L left the Company she felt that she did not receive support from management for the stress incurred.
- - The Complainant’s Manager, Ms D
Ms D, former Concession Manager in the Department Store, said that she had observed an incident which occurred in August when Mr L. made an inappropriate remark of a sexual nature to the Complainant. When she mentioned it to the Complainant and asked her what she thought of the comment she said the Complainant replied that she did not wish her to take any action. Ms D said that there had been no complaints from the Complainant prior to this incident which she herself had observed. She said that she asked Ms C to deal with the issue. She denied telling the Complainant to ignore Mr L.
Ms D said that she was out for a few days and when she came back on 7 September 2015 that other colleagues of Mr L told her there were further incidents involving Mr L making inappropriate comments to the Complainant. At this point Ms D told Mr L to keep away from the Complainant and she told the Complainant that she would inform Mr. L’s Manager on her return from leave.
On the morning of Ms C’s return to work on 15 September 2015, Ms D spoke to her and the investigation commenced.
Ms D said that she reacted straight away when she witnessed an inappropriate incident in August, she spoke to Mr L and told him not to approach the Complainant and that she would report him to his Manager.
The Law
This case falls to be considered by application of section 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
- (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) such harassment has occurred, and
- (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
- (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
(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.
- (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
(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),
(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,
- (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(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.
- (1) For the purposes of this Act, where—
It is not disputed between the parties that the conduct complained of carried out by Mr L, an employee of a separate concession shop employer, within the Department Store, was inappropriate and of a sexual nature towards the Complainant which affected her dignity at work, and constituted sexual harassment. Therefore it comes within the ambit of paragraph (a) of subsection (1) of section 14A and constitutes discrimination. That section is to be read in harmony with Article 2(a) of Directive 2006/54/EC on equality between men and women (the Framework Directive).
The European Commission in its Recommendation of 27 November 1991 on the protection of the dignity of women and men at work (92/131/EEC) provided a definition of sexual harassment which was adopted in this jurisdiction by the Code of Practice made pursuant to section 56 of the Acts contained in S.I 78/2002, Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002. That Order has since been revoked and replaced by S.I 208/2012, Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.
InGrimaldi v Fonds Des Maladies Proffessionelles [1989] ECR 4407, the European Court of Justice pointed out that national Courts are bound to take Recommendations made pursuant to Article 249 of the EC Treaty into consideration in order to decide disputes submitted to them, in particular where they are capable of casting light on the interpretation of other provisions of national or Community law.
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.
Section14A(2)(a) fixes an employer with liability for the harassment subject to the defence that the employer can satisfy the Court that it had taken such steps as were reasonably practicable to prevent the sexual harassment of the Complainant or any class of persons which includes the Complainant. As was pointed out by this Court in Determination EDA0915,A Hotel and a Worker: -
- “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.”
- “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.
Therefore the Court must examine whether or not the Respondent took such steps as were reasonably practicable to prevent the person from harassing or sexually harassing the Complainant, including Mr L whom the Court accepts was a person with whom the Respondent might reasonably expect the Complainant to come into contact in the workplace or otherwise in the course of his or her employment.
Conclusions of the Court
The Court has given careful consideration to the oral and written submissions made and to the evidence given by the Complainant and on behalf of the Respondent.
The Court notes that the Respondent did not have ananti-harassment or dignity at work policy in place at the relevant time. It informed the Court that it has since introduced such a policy. The Respondent submitted that as a small employer it was not incumbent on it to have such a policy and that it took every step reasonable to deal with the issue once it became aware of the harassment. However, the Act places an obligation on an employer to take such stepsas were reasonably practicable toensure that employees are protected from sexual harassment in the course of their employment.
While the Code of Practice S.I 208/2012 does not impose any legal obligations in itself, it is the employer’s responsibility to ensure compliance with the Acts. It provides that employers should have in place effective measures to ensure that sexual harassment does not occur and, if it does occur, to ensure that adequate procedures are readily available to deal with the problem and prevent its re-occurrence. Furthermore, it states that some specific groups are particularly vulnerable to sexual harassment and harassment as there may be a link between the risk of sexual harassment or harassment and an employee’s perceived vulnerability - such as might be the case with new entrants to the labour market. The Court notes that the Complainant was a young person who could be considered as such a vulnerable person.
The Court is of the view that while the Code encourages employers to follow its recommendations in a way which is appropriate to their size and structure that does not exempt small or medium sized enterprises from its recommendations. Such enterprises are encouraged to adapt some of the practical steps to their specific needs, while keeping with the code’s general intention. An employer who has taken such steps as set out in the code to prevent sexual, harassment or harassment, to reverse the effects of it and to prevent its recurrence, may avoid liability for such acts in any legal proceedings brought against them.
However, in the instant case, the Respondent did not have in place any policy or procedure to deal with complaints of sexual harassment and harassment which was known to employees including the Complainant at the relevant time, and there is no doubt that it did not have in place a policy to prevent such harassment or to inform employees of its intolerance of such inappropriate behaviour.
The Respondent has since introduced a policy. A copy of the Respondent’s “Employee Handbook” dated June 2016 was furnished to the Court. This handbook contains a policy on “Harassment” and outlines how an employee should deal with any complaints they may have in that regard.
While it is commendable that the Respondent has since then introduced a policy on “Harassment”, it is insufficient in this case to make out the defence contemplated by Section 14A (2) of the Act. In order to avoid liability it is essential for the Respondent to establish that it had in place, at the time at which the harassment occurred, arrangements intended to prevent and deal with the occurrence of such conduct. It is clear that no such arrangements were in place at the material time. Accordingly, the defence provided by Section 14 (A)(2) of the Acts cannot avail the Respondent and it is therefore liable for the discrimination suffered by the Complainant.
While the Court notes that the Respondent took reasonable steps to deal with the situation when it observed such behaviour, however, the Court must hold the Respondent liable for the discrimination suffered by the Complainant by failing to take appropriate measures to prevent its occurrence, which resulted in the Complainant having to work in a workplace which was not free from sexual harassment.
Determination
For all of the reasons referred to above the Court is satisfied that the Respondent is liable for the harassment suffered by the Complainant on grounds of her gender. The Court orders the Respondent to pay the Complainant the sum of €5,000 for distress and the effects of sexual harassment constituting discrimination. Accordingly, the appeal is allowed and the decision of the Adjudication Officer is set aside and substituted with this Determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
7 March 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.