EMPLOYMENT EQUALITY ACTS
Decision - DEC–E2017-077
PARTIES
A Lecturer
and
A Third Level Educational Institute
(represented by Mr. Tom Mallon B.L.
on the instructions of Pembroke Solicitors)
File References: et-156684-ee-15
Date of Issue: 4th October, 2017
1. Dispute
1.1 This case concerns a complaint by the Complainant that she was subjected to harassment and sexual harassment in the workplace contrary to Section 14A of the Employment Equality Acts.
2. Background
2.1 The Complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 27th May, 2015. In accordance with his powers under Section 75 of the Employment Equality Acts, the Director General delegated the case on 8th May, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2015. This is the date I commenced my investigation. A written submission was received from the Complainant on December, 2016 and from the Respondent on 25th May, 2017. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 30th May, 2017.
2.2 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.
3. Summary of the Complainant's case
3.1 The Complainant has been employed by the Respondent as an Accounting Lecturer since September, 1999. In September, 2014 the Complainant was assigned to teach Business Management to three combined courses and the number of students in the combined classes was approx. 100 students. The majority of the students in the class were male with approx. 15 students being female. To accommodate this combined class the lectures were timetabled for a triple lecture.
3.2 On 10th October, 2014, the Complainant notified the Respondent in writing that she was being sexually harassed and harassed by a large group of adult male students in her assigned classroom. In addition to detailing the general harassment and disruption by male students the Complainant specifically notified her Head of Department (Ms. A) that she was suffering from stress as a result of the students’ unacceptable conduct. The Complainant met with Dr. A and she explained to her that in addition to other obscene comments in the class a male student had shouted out asking if “she liked anal intercourse”. The Complainant submitted that this conduct created an offensive and intimidating work environment for her. She submitted that Dr. A asked the Course Leaders to obtain feedback from the students. In a meeting on 15th October, 2014 the Course Leaders confirmed that the sexual harassment and harassment which the Complainant reported had occurred and Dr. A indicated that she would speak to the students and subsequently proceeded to do.
3.3 The Complainant submitted that the disruptive behaviour and harassment began again on 24th October, 2014. The Complainant again reported to Dr. A on 24th October, 2014 that male students were blurting out inappropriate language and hiding in numbers so they could not be identified. The Complainant was able to identify one male student (Student A) who was disruptive and obtained his name and student number. At a meeting on 29th October, 2014 the Complainant gave Dr. A the piece of paper where Student A had written his name and student number. Dr. A informed the Complainant that she was sending the class to the Student Disciplinary Committee. The Complainant submitted that the Respondent’s Respect & Dignity Policy provides that complaints against students for sexual harassment and harassment have to be made under the Student Code of Conduct. However, the Student Code of Conduct provides that only the Head of Departments can refer a complaint to the Student Disciplinary Committee.
3.4 The Complainant submitted that although Dr. A spoke to Student A and informed him that she was sending him to the Student Disciplinary Committee the disruption and harassment continued. In addition to the abuse which the Complainant suffered the male students shouted out to students who asked questions at lectures referring to them as “retards” or “stupid”. Also, several male students openly bullied another male student in class labelling him a “pedo”. The Complainant contends that she became physically ill from this abusive and bullying group of male students and sought help. The Complainant claims that the Respondent did not take any practical steps to prevent the occurrence of the sexual harassment and harassment until she became ill and it was only upon her request that the Respondent agreed to split up the large group of males after multiple reports relating to the offensive treatment. On 17th November, 2014 Dr. A wrote to the Complainant to inform her that she had not heard back from her submission to the Student Disciplinary Committee regarding her complaint of sexual harassment and harassment and she would contact them again to see if the matter was being progressed.
3.5 The Complainant contends that the stress she suffered at the hands of the male students caused her anxiety about returning to work after Christmas. On 12th January, 2015 the Complainant received an e-mail from Dr. A indicating that Student A was not registered with the Respondent and therefore could not be brought before the Student Disciplinary Committee. The Complainant was also informed around that time by Dr. A that the Disciplinary Committee was not in situ following the retirement of the previous Chairman of the Committee. The Complainant submitted that three months after she had made the Respondent aware of the sexual harassment and harassment, and was of the belief that the matter was pending before the Student Disciplinary Committee, she became aware that no action had been taken. She contends that the Respondent demonstrated a total lack of commitment to dealing effectively with her complaint and that when she persisted in seeking to have the matter dealt with by the Student Disciplinary Committee that the newly appointed Chairman, Dr. B, appeared to do everything in his power to avoid dealing with her.
3.6 The Complainant submitted that the Respondent did not have an effective procedure in place to facilitate a staff member to make a complaint relating to sexual harassment or harassment by a student. She contends that under the procedures it is necessary for a staff member to refer a complaint of sexual harassment or harassment against a student to the Student Disciplinary Committee via the relevant Head of Department. The Complainant claims that this restriction places a hurdle in front of staff members who have been sexually harassed or harassed and means that a complaint can be filtered.
3.7 The Complainant submitted that the Respondent failed to adequately monitor or deal with her complaints of sexual harassment and harassment and as a result she was required to submit a formal grievance under the internal Grievance Procedures on 29th January, 2015 requesting that her complaints against the male students be investigated and acted upon. The Complainant also requested that the Respondent investigate why her initial complaint regarding the disruptive students that resulted in bullying, harassment and sexual harassment was not taken seriously with appropriate steps taken to ensure that this treatment did not occur again. The Complainant received an e-mail from Dr. B on 9th February, 2015 indicating that the investigation into the disciplinary issue involving the behaviour of Student A had been concluded following a meeting with him and that it been decided that was no need to take further action or to refer the matter to the Student Disciplinary Committee. The Complainant was distressed and extremely upset with this outcome especially in light of the fact that Dr. B had not sought any information from her regarding how this student and the others had behaved towards her. The Complainant was appalled that Dr. B would without any reference to her make a decision that no further action was required.
3.8 The Complainant decided to progress her grievance to the next Stage of the internal process after being informed of Dr. B’s decision that no action was to be taken against Student A or the other male students. The Complainant attended a grievance meeting on 13th February, 2015 and it was agreed that the students would be required to attend meaningful Respect and Dignity training. The Complainant considered that this training would reverse the effects of the sexual harassment and harassment and would help prevent these students from engaging in further offensive conduct. The Complainant contends that the training which she had agreed would be provided to the students was not what was apparently provided to them. The Complainant continued to query if and when the training would be provided and on 22nd May, 2015 the Chairman of the Disciplinary Committee, Dr. B, informed her that half of the students had not participated in the training.
3.9 The Complainant subsequently spoke with the Respondent’s Equality Officer, who had been designated to provide the training, and he confirmed that training had taken place for around 50 students. The Complainant informed the Equality Officer that that was not the entire cohort of students and he expressed surprise because Dr. B had not informed him that there were others to be trained. The Complainant submitted that contrary to Dr. B’s statement that the students were committed to the training and had engaged, she claims that the Equality Officer informed her that the students during training had made inappropriate comments concerning his appearance. The Complainant contends that although half of the students had not been provided with training she did not receive any further follow up from the Student Disciplinary Committee after the communication on 22nd May, 2015. The Complainant also contends that when she was leaving the grievance meeting on 13th February, 2015 the HR Manager indicated that she would be in contact with her. However, the Complainant contends that up to the date of the hearing, she had not received any further contact and she assumes that the remaining issues in relation to her grievance that were to be addressed, if needed, after the training are still pending.
4. Summary of the Respondent’s case
4.1 The Respondent is a third level institute of education. The Respondent accepts that the Complainant sent an e-mail to Dr. A, Head of Department, on 14th October, 2014 after the lecture which gave rise to her subsequent complaint of sexual harassment and harassment. The Respondent submitted that Dr. A responded immediately and asked the Complainant to come to meet her at the earliest possible convenience during the following week. Dr. A met with the Complainant and discussed the incident and asked her if she could identify the students that were involved and she said that she could not. The Complainant was advised by Dr. A that in order to proceed to the Respondent’s Student Disciplinary Committee, which was the normal procedures, she would have to have the particular students involved identified. Dr. A advised the Complainant clearly that she could not bring a class group of 70/90 students to the Disciplinary Committee for the actions of a few.
4.2 During the discussions between Dr. A and the Complainant, Dr. A suggested that the three Program Leaders (there being three class groups in the lecture) be asked to join the meeting and that the incident could then be outlined and ask them to speak to the class groups individually to see if they could verify the incident and possibly identify the students involved. The Respondent submitted that the Complainant expressed agreement with that method to proceed and contends that her reference to this conversation in her submission is at odds with Dr. A’s clear recollection. The Respondent submitted that Dr. A is satisfied that she met with the Complainant and they agreed an appropriate way forward to deal with the incident.
4.3 The Respondent submitted that in accordance with the agreement the three Program Leaders were tasked to speak to each class group and there was a level of agreement that there had been unrest, or an incident in the class in question. Dr. A, in agreement with the Complainant and the three Program Leaders met, in her capacity as Head of Department, with the three class groups as a collective and advised them strongly that misbehaviour would not be tolerated and that any person who was misbehaving wold be identified and would have the full rigor of the Disciplinary Procedures brought to bear. The Respondent submitted that following on from this Dr. A contacted the Complainant to see that she was happy to progress and asked her, the Complainant, to let her, as Head of Department, know if there was any further misbehaviour. The Respondent rejects the assertion that the Complainant was not supported by the relevant Department as she has alleged in her complaint.
4.4 In response to the issue raised by the Complainant relating to the time taken in splitting the class size, the Respondent contends that Dr. A hoped that after addressing the students following the initial incident that that would be the end of the problems. However, in circumstances, where other issues arose it was her, Dr. A, that suggested that this large group of students should be split to make them a more manageable group. The Respondent submitted that logistically it was quite difficult to split the class group in circumstances where the module involved was being delivered to three separate class groups being students from three different programmes. The contact hours for these programmes was approx. 30 per week and the programmes were co-delivered by the Respondent and another college, so on certain days the students are schedule to be in the partner college. In those circumstances splitting the group for three four hour lectures would have to run the new split group into parallel classes at the same time on a Friday afternoon. In those circumstances in order to facilitate the splitting of the group it was necessary for Dr. A to contact the Head of Department of Accountancy and Economics to identify an academic staff member who had the expertise to tech the module and had availability and willingness. She also had to obtain an appropriate classroom free for those hours and this organisation was quite difficult and was dealt with as quickly as possible in the circumstances.
4.5 The Respondent also refutes the Complainant’s contention that Dr. B, Chair of the Disciplinary Committee, appeared to do “everything in his power to avoid dealing with (her) complaint”. The Respondent contends that the complaint was dealt with appropriately and in accordance with existing procedures, and noting the difficulty of isolating named individuals as responsible for the alleged harassment, there were certain limitations on what could be done. The Respondent contends that it was not possible to discipline the entire class for the behaviour of the minority unless that minority could be identified and such a course of action would be entirely unfair on entirely innocent students. The Respondent submitted that one student was identified (Student A) by the Complainant and his case was considered by the Student Disciplinary Committee. The Respondent submitted that following steps were also taken:
- The Course Leader spoke to the students about their behaviour. The Head of Department also spoke to the students about their behaviour on more than one occasion.
- The Chair of the Disciplinary Committee, along with the President of the Student’s Union, addressed the students.
- One named individual (namely Student A) was met by the Chair of the Disciplinary Committee.
- Training was given to the relevant class group as agreed with the Complainant by the Respondent’s Equality Officer and the class group were addressed again by the Chair of the Disciplinary Committee.
The Respondent submitted that the foregoing shows that it dealt with the complaint appropriately, fully and as speedily as possible and that in those circumstances there is no merit in the instant complaint.
4.6 In relation to the training which was agreed with the Complainant it was submitted that:
- The training was devised by the Respondent’s appointed Equality Officer who was the officer agreed by the Complainant to deliver the training. The Equality Officer was the appropriate person to design and deliver that training, he being the person with the most expertise in the area.
- Dr. B inquired from the Equality Officer how the training had gone and it was indicated to him that the training was well attended and that students seemed to have been engaged. Quite clearly on it became clear not all students were in a position to attend and therefore the training was delivered in two tranches. The duration of the training was determined by the Equality Officer who had the expertise in this area.
- The Complainant alleges that a copy of the training was not provided to her. It is the Respondent’s belief that it was provided through internal mail however if it was not delivered then in the circumstances where the Complainant was in touch with the Equality Officer she could easily have requested a copy from him.
4.7 The Respondent submitted that in acknowledgement of the fact that it was necessary to have the training for a second batch of students it was at all material times the Respondent’s understanding that the Complainant was aware, understood and accepted this as a matter of fact. The Respondent submitted that it is to be emphasized that the students, including the identified student, were entitled to due process particularly where serious accusations were levelled against them. The particular named student denied being involved in sexual harassment and his response was that the incident in which he was involved in was more in the nature of “hi jinx” than anything else. Student A was however prepared to apologise to the Complainant in person and in writing for his part in that behaviour but he was not willing to admit to sexual harassment which he alleged he had not committed.
4.8 The Respondent submitted that in accordance with good practice in third level institutions the practice of the Disciplinary Committee was to seek ways forward with disciplinary issues before proceeding to a formal process. This normally involves meetings between the Chair and the students to scope out the issues and this often results in a resolution of the matter without the full rigours and all of the downsides for a student at the very earliest part of his career being the subject of a serious disciplinary process.
4.9 In conclusion, it was submitted by the Respondent that having received a complaint from the Complainant of wrongful conduct by students, including an allegation that some of them had engaged in behaviour that might be classified as sexual harassment, the matter was dealt with appropriately, in particular by providing appropriate training delivered by the Equality Officer, by having the appropriate senior academics speak to the group and taking appropriate steps to split the group into smaller numbers as that they would be more manageable.
5. Conclusions of the Equality Officer/Adjudication Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.
5.2 Accordingly, the issue for decision in this case is whether the Complainant was subjected to sexual harassment and harassment pursuant to S. 14A of the Acts. In this regard, I am required to consider two aspects of the evidence, namely:
(a) Whether the Complainant has established on the balance of probability that she was sexually harassed and/or harassed in terms of the incidents she described in her evidence. This includes an evaluation as to whether the events the Complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment and sexual harassment.
(b) If the answer to the question in (a) above is in the affirmative, did the Respondent take reasonable action to prevent the harassment and sexual harassment occurring in the workplace. This includes considering the extent to which the Respondent was aware of the Complainant’s experiences, to enable it to deal with the Complainant’s complaint of harassment and sexual harassment, and if it was aware whether it took appropriate action to enable it to rely upon the defence in Section 14(A)(2) of the Acts.
5.3 The Complainant adduced evidence that she was subjected to harassment and sexual harassment by a group of male students during the course of a lecture which took place on 10th October, 2014 and that she was subsequently subjected to further incidents of harassment by a group of students at lectures on 24th October, 2014 and 9th November, 2014. The Complainant alleges that, during the incident on 10th October, 2014, a large group of male students engaged in inappropriate behaviour and used offensive language and made references to their anatomy, sexual conduct and anal sex. The Complainant also adduced evidence that she was subjected to harassment by a number of male students during the course of a lecture on 24th October, 2014 whereby they engaged in disruptive behaviour and were blurting out inappropriate language. The final incident of harassment alleged by the Complainant took place on 9th November, 2014 whereby she claims that a group of students engaged in disruptive behaviour and openly bullied another student by labelling him a “pedo”. It was accepted that the Complainant reported the alleged incidences of harassment and sexual harassment to her Head of Department on each occasion. The Respondent was not in a position to dispute the actual occurrences of the alleged incidences of harassment and sexual harassment. However, the Respondent maintains that it took all such steps as were reasonable to prevent any such harassment and sexual harassment occurring and in this regard relies on the defence in Section 14A(2) of the Acts. The Respondent also maintains that it has sufficient policies and guidelines in place to ensure a harassment-free workplace for all its employees.
5.4 Section 14A(7)(i) of the Act defines “harassment” as any form of unwanted conduct and Section 14A(7)(ii) defines “sexual harassment” as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. I have found the Complainant’s evidence to be very credible in relation to the alleged treatment which she claims occurred on the material dates in question. I am satisfied that the incident described by the Complainant in terms of the hostile behaviour and the offensive language of a sexual nature made by the group of students on 14th October, 2014 occurred as described by her and that it amounted to unwanted verbal contact of a sexual and offensive nature. I am also satisfied that the conduct and behaviour of the group of students, including by Student A, occurred as described by the Complainant during the incidents on 24th October, 2014 and 9th November, 2014 and that the behaviour, albeit not of a sexual nature on either occasion, was nonetheless inappropriate and had the effect of creating a hostile working environment for her. In the circumstances, I am satisfied that the Complainant has established the primary facts that are necessary to establish a prima facie case of harassment and sexual harassment.
5.5 Section 14A(2) of the Acts provides that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent sexual harassment and harassment from occurring in the first place and in circumstances where such harassment has occurred that it took action to reverse its effect. The Labour Court has previously held that in order for an employer to avail of the first component of this defence it must show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment or sexual harassment occurred and that the policy was effectively communicated to staff. In the case of A Hotel –v- A Worker1 the Labour Court held 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”.2
In the present case, I note that the Respondent had a Dignity & Respect Policy in place to deal with harassment and sexual harassment in the workplace. The Respondent also had a Student Code of Conduct in place which included disciplinary procedures to deal with complaints of bullying, harassment and sexual harassment involving students. The Complainant has argued that these policies and procedures were ineffective in terms of dealing with complaints of harassment or sexual harassment made by a staff member against a student. The Employment Equality Act, 1998 (Code of Practice) (Harassment) Order, 2012 3 is intended to give practical guidance to employers and employees, as well as their respective representatives, on what is meant by sexual harassment in the workplace and how it may be prevented and while it does not impose any legal obligations in itself nor is it an authoritative statement of the law on the issue. I have examined the Respondent’s policies and procedures on sexual harassment and harassment and I cannot accept the Complainant’s contention that they are ineffective. I am satisfied that the existence of these policies has been effectively communicated by the Respondent to both staff members and students. In my view the combination of the Respondent’s Dignity & Respect Policy and the Student Code of Conduct, when applied correctly, are an effective preventive measure against harassment and sexual harassment of staff members by students.
5.6 The second element of the defence at Section 14(A)(2) is where harassment has occurred that the employer took action to reverse its effect. This involves an evaluation of what action the Respondent took once it became aware that an employee was making a complaint of harassment and/or sexual harassment under the Acts (or Policy) and how promptly it took those actions. The Complainant contends that her complaints of harassment and sexual harassment were not taken seriously by the Respondent and that it failed to take all reasonable steps to ensure her workplace was free from sexual harassment and harassment by preventing the harassment and sexual harassment from occurring. In considering this matter, it was not in dispute that the Complainant notified the Respondent (by way of e-mail to her Head of Department, Dr. A) about the initial incident of harassment and sexual harassment on the date of its occurrence on 14th October, 2014. The Complainant informed Dr. A that she had been subjected to harassment and sexual harassment by a large group of male students but she was unable to identify the names of any individual student or students who had engaged in the offensive behaviour.
5.7 It is clear that Dr. A immediately engaged with the Complainant after the incident had been reported to her with a view to taking appropriate steps to address her complaint. I accept that Dr. A advised the Complainant it would not be possible to bring the entire class group of 70/90 students before the Student Disciplinary Committee, which would have been the normal procedure, for the actions of a few. However, I am satisfied that Dr. A treated the matter with the utmost seriousness and subsequently agreed an appropriate course of action with the Complainant and put a number of measures in place to try and deal with the incident and to prevent a reoccurrence. In accordance with this agreement, the three Course Leaders spoke to the class groups about their behaviour and Dr. A, as the relevant Head of Department, spoke with the three class groups as a collective and advised the students that misbehaviour would not be tolerated and that any person who was misbehaving would be identified and would have the full rigor of the Disciplinary Procedures brought to bear. The Chair of the Student Disciplinary Committee along with the President of the Student’s Union also addressed the students in relation to the matter.
5.8 An employer is required to take such steps as are reasonably practicable to prevent sexual harassment and harassment occurring. The Labour Court stated in the case of A Boys’ Secondary School v Two Female Teachers 4 -
“… if an employer controls the situation in which harassment occurs and fails to exercise that control so as to prevent harassment occurring or in reducing the harassment … It also appears to the court that situations can arise in which an employer may adopt a course of action to avoid harassment of an employee but that harassment nonetheless occurs. In such cases, the employer could not be fixed with liability if the action taken, although unsuccessful, was in all the circumstances, as much as the employer could reasonably have been expected to do.”
5.9 In the present case, I am satisfied that the measures which were put in place by the Respondent at the material time following the initial incident was a reasonable and rational response to try and address the matter and to prevent a reoccurrence of the harassment and sexual harassment. While it is clear that ultimately these measures were not successful in preventing a reoccurrence of two further incidents of harassment during lectures on 24th October, 2014 and 9th November, 2014, the Complainant accepted during the course of cross-examination that there were no further occurrences of sexual harassment. In this regard, it is important to note that the Complainant has not adduced any evidence to suggest that the unwanted conduct that a number of students engaged in during the course of these lectures was of a sexual nature, but nonetheless, I am satisfied that the behaviour of the relevant students was inappropriate and disruptive and had the effect of creating an intimidating working environment for the Complainant. It was not in dispute that the Complainant immediately reported both of these incidents to Dr. A and following the incident on 24th October, 2014 she was able to identify one particular student (Student A) as having participated in the inappropriate behaviour.
5.10 Based on the evidence adduced, I am satisfied that the Respondent implemented further preventative measures after these incidents were reported to address the harassment including splitting the Complainant’s class group into three separate class groups and thereby making the class a more manageable group. I accept the Respondent’s evidence that there were logistical difficulties associated with implementing this measure and that the necessary arrangements were put in place within a reasonable timeframe given the circumstances. I note that it was accepted by the Complainant that the dynamics in the class improved thereafter and there was no evidence adduced to suggest that there was any further reoccurrences of the harassment following the splitting of the class group. In the circumstances, I find that the Respondent’s response and the measures which it put in place to address the further incidents of harassment were reasonable and that ultimately these measures were successful in terms of preventing any further occurrences of the inappropriate behaviour by students in the Complainant’s class group.
5.11 I have also taken into consideration that the Respondent put arrangements in place to provide training to the students in the Complainant’s class group, which was devised by the Institute’s Equality Officer, as a further measure to reverse the effects of the harassment and sexual harassment and to prevent the reoccurrence of such behaviour in the future. This training was provided by the Respondent in agreement with the Complainant as a resolution to the formal grievance which she raised under the Institute’s grievance procedures arising from the lack of seriousness and action which she claims that the Respondent took in response to her complaints of harassment and sexual harassment. The Complainant was critical of the manner in which the training was provided and her perceived lack of participation by large numbers of students in the training. The Respondent accepts that it was not possible to deliver the training to all of the relevant students at the same time and that it was necessary to deliver the training in two tranches. I have taken account of the evidence of Mr. C (Equality Officer) who delivered the training on behalf of the Respondent and I am satisfied that his evidence does not concur with the criticisms levelled by the Complainant on this matter. In the circumstances, I find that the training which was provided by the Respondent to the students in the Complainant’s class group was a reasonable response in the circumstances to address the effects of the harassment and sexual harassment by a number of students within her class group and to prevent a reoccurrence of this behaviour.
5.12 I must also address the criticisms raised by the Complainant in terms of the manner in which her complaints of harassment and sexual harassment were dealt with by the Student Disciplinary Committee and her contention that the Chairman of this body (Dr. B) appeared to do everything in his power to avoid dealing with her complaint. The Complainant claims that the lack of action by the Student Disciplinary Committee in relation to the investigation of her complaints ultimately resulted in her invoking a formal grievance under the Respondent’s internal grievance procedures. The Respondent’s Dignity & Respect Policy provides that complaints of harassment and sexual harassment against students will be dealt with under the institute’s Student Code of Conduct and investigated by the Student Disciplinary Committee. It was not in dispute that the complaints of sexual harassment and harassment were brought to the attention of the Student Disciplinary Committee by Dr. A on the Complainant’s request following the incident that occurred on 24th October, 2014. The Complainant’s contends that she was informed by Dr. A at that juncture that the entire class of 70/90 students would be brought before the Student Disciplinary Committee. The Complainant’s contention on this matter was disputed by Dr. A. On balance, I prefer the evidence of Dr. A on this matter and I accept that she made it clear to the Complainant after she reported the first incident of harassment and sexual harassment on 14th October, 2017 that the entire class group could not be brought before the Student Disciplinary Committee and that it would be necessary for her to identify the particular students involved before this body could take action.
5.13 I am satisfied that D. A brought the matter to the attention of the Student Disciplinary Committee without delay after the Complainant had identified Student A as having engaged in the inappropriate behaviour which amounted to harassment. I am also satisfied that the relevant staff members, including Dr. A, continued to fully engage with the Complainant while her complaints were pending before the Student Disciplinary Committee in order to take action and put appropriate measures in place (as set out above) to prevent a reoccurrence of the harassment and sexual harassment. I am satisfied that the complaints against Student A were subsequently investigated by the Chairman of the Student Disciplinary Committee, Dr. B, who after formally meeting with him to discuss the matter decided that there was no need to take any further action. Dr. A gave evidence that Student A accepted that he has engaged in inappropriate behaviour which he claimed was more in the nature of ”hi jinx” but indicated that he very much regretted the behaviour and was prepared to apologies to the Complainant in person and in writing for his part in the disruptive behaviour. I have given careful consideration to the evidence adduced on this matter and whilst I accept that there were some shortcomings in terms of the process applied by Dr. A and the length of time that it took him to deal with the complaints which the Complainant referred to the Student Disciplinary Committee they are not sufficient to deprive the Respondent of the defence at Section 14A(2) of the Acts.
5.14 Having regard to the foregoing and the totality of the evidence adduced, I find that the Respondent did not discriminate against the Complainant by failing to take such steps as were reasonably practicable to prevent her harassment and sexual harassment. Accordingly, I find that the Respondent is entitled to avail of the defence at Section 14A(2) of the Acts.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that:
(i) the Complainant has established a prima facie case of harassment and sexual harassment contrary to Section 14A of the Employment Equality Acts.
(ii) the Respondent took such steps as are reasonably practicable to enable it rely on the defence at Section 14A(2) of the Employment Equality Acts.
Accordingly, her complaint fails.
______________
Enda Murphy
Equality Officer/Adjudication Officer
4th October, 2017
Footnotes:
2 EDA0915
3 S.I. No. 208 of 2012
4 AEE/01/9