Complainant

Respondent

Anonymised Parties

A Technical Support Agent

A Contact Centre Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00010717-001

10/04/2017

The Complainant was employed by the Respondent as a Technical Support Agent from 1 April, 2014 until 7 January, 2017 when she resigned from her employment.

The Complainant claims that she was subjected to harassment and sexual harassment in the workplace contrary to Section 14A of the Employment Equality Acts. The Complainant claims that she was subjected to discrimination on the grounds of gender in relation to her conditions of employment contrary to Section 8 of the Employment Equality Acts. The Complainant claims that she was subjected to victimisation contrary to Section 74(2) of the Employment Equality Acts. The Complainant also claims that she was discriminatory constructively dismissed from her employment.

The Respondent denies that the Complainant was subjected to harassment, sexual harassment, discrimination in relation to her conditions of employment or victimisation. The Respondent contends that the Complainant made a complaint of harassment and sexual harassment by her Team Leader to management which was immediately acted upon and thoroughly investigated. The Respondent contends that the alleged behaviours of her Team Leader then stopped. The Respondent contends that the Complainant had the opportunity to appeal the findings of the investigation but, from the Company’s perspective, she did not avail of this part of the internal process and instead chose to resign of her own volition. The Respondent denies that the Complainant was dismissed, either constructively or otherwise, from her employment.

The Complainant commenced employment with the Respondent on 1 April, 2014 as a Technical Support Agent. She worked on a part-time basis at weekends and was also studying on a full-time basis at a local third level institution. The Complainant’s roles and responsibilities included taking calls from customers regarding mobile phone bills and technical queries from customers regarding their mobile phones.

In or around the 8 August, 2016, the Complainant was medically certified as unfit to work and was absent from work on a number of occasions due to a medical condition regarding a recurrent dislocation of her jaw. This injury and medical condition dated back to 2014.

In or around August, 2016, Mr. A, Team Leader, was transferred from another of the Respondent’s work locations to the premises where the Complainant’s employment was located. Mr. A was assigned as the Complainant’s Team Leader. Team Leaders and agents were based in the same location on the floor within close proximity and there was regular and ongoing interaction between them as part of the discharge of their respective duties.

The Complainant claims that, immediately upon Mr. A’s appointment to the position of Team Leader at her work location, he subjected her to extensive, ongoing and ever-increasing sexual harassment, harassment and entirely inappropriate behaviour and conduct.

On 15 October, 2016, the Complainant approached Ms. D, another Team Leader, to make a complaint about the conduct of Mr. A. The Complainant stated that the previous weekend Mr. A had approached her and asked her to sit in his car with him. The Complainant stated that this was entirely inappropriate and had made her entirely uncomfortable. An hour later, Mr. F, Operations Manager, approached the Complainant and indicated that he wished to talk to her about an issue which she had raised with Ms. D. The Complainant informed Mr. F that there had been several occasions when Mr. A had approached her or had acted inappropriately towards her in work. The Complainant proceeded to tell Mr. F about Mr. A asking her to go and sit in his car with him on a break and about other instances of harassment and sexual harassment that had occurred. Mr. F stated that he wanted the HR Department to determine how to proceed.

Later, Mr. F asked the Complainant to attend a meeting with himself and Ms. D, Team Leader. Mr. F advised the Complainant that she could raise a formal grievance if she wished. The Complainant stated that she wished to do so and that the only reason she had not done so to date was that she did not want to get in trouble or cause anyone to lose their job. Mr. F stated that he would have to inform Mr. A of the formal complaint.

By e-mail dated 15 October, 2016, the Complainant wrote to the Respondent’s HR Business Partner, Ms. B, setting out further details in relation to the incidents of harassment and sexual harassment which she claims had occurred during the previous four weeks since Mr. A had been appointed as her Team Leader. These incidents are summarised as follows, namely:

·         The Complainant had been absent from work on a Sunday because her jaw was dislocated. The next day when she attended work Mr. A started making comments about her jaw dislocating such as “I wonder how that happened”, “I know what happened” and was laughing and joking about it. Throughout that evening, Mr. A kept looking over at the Complainant and was making gestures with his face about her jaw dislocating and winked at her as he passed. The Complainant claims that the comments and conduct of Mr. A were clearly of a sexual nature and suggestive that the injury to her jaw had been caused as a result of her having been sexually promiscuous.

·         On another occasion when the Complainant was working on a Saturday, Mr. A was staring and winking at her in the workplace.

·         On the same date, the Complainant was subjected to physical sexual harassment and what can be legally described as an assault where Mr. A twice placed both of his hands on her waist in the workplace.

·         On 1 October, 2016, the Complainant was sitting on the benches outside of the work premises eating her lunch when Mr. A came out and sat on the bench beside her. When she got up from the bench and went to walk to the canteen he followed her up to the canteen and sat at the same table with her. The Complainant ate her lunch and got up from the table to walk back over to her workstation on the floor and Mr. A followed her out of the canteen and back over to the floor.

·         On another occasion the Complainant was sitting on the bench outside the premises at around 7 pm. Mr. A was leaving work and drove up his car and started talking to the Complainant. She told him that she wanted a new job and he said to her “don’t leave me”. Mr. A asked when she was back in again and when he would see her again.

·         On 8 October, 2016, the Complainant had to approach Mr. A to ask him a work-related question and he responded that she had “amazing eyes”. The Complainant continued to ask the question and Mr. A said “I’m sorry I’m not even listening to you I just can’t stop looking at your eyes”.

·         Later that day, the Complainant got stuck on a difficult work-related call for 40 minutes. Mr. A approached the Complainant to see if she was okay and she told him she was really stressed and wanted to go home. He told the Complainant that she could have an extra few minutes personal and told her to go outside. Mr. A followed her outside and sat on the bench beside her and said “you’ll be okay your boyfriend will give you cuddles when you get home”. When the Complainant responded that she didn’t have a boyfriend, Mr. A started winking at her and said he couldn’t wait for the staff party.

·         On 9 October, 2016, Mr. A told the Complainant that she could go and sit in his car with him. The Complainant declined the offer and later during that shift Mr. A approached her on a number of occasions and asked her if she wanted to go outside with him.

·         On the same date, the Complainant was asking Mr. A to do something on Switch for her. She was standing beside Mr. A and he was sitting down and he leaned over as if to lie on her and her payslip was on the table. Mr. A asked the Complainant if that was where she lived. The Complainant questioned Mr. A and he pointed at her payslip and said “is that where you live”.

·         On all occasions when the Complainant has been in work Mr. A was always around her and treated her differently than other people on her team.

·         Mr. A told other Team Leaders that the Complainant was harassing him on Facebook and kept sending him friend requests. The Complainant claims that she never looked Mr. A up on Facebook.

The Complainant claims that Mr. A’s behaviour as set out above amounted to discriminatory treatment on the basis of her gender, harassment and sexual harassment.

On 17 October, 2016, the Respondent’s HR Business Partner, Ms. B, met with Mr. A to inform him of the Complainant’s grievance against him and informed him that should the grievance be made formal, further investigations would be necessary. Ms. B then went over the Complainant’s grievance e-mail with Mr. A putting eight of the Complainant’s allegations to him and giving him the opportunity to respond. Mr. A stated that he could not recall the incidents and that while in hindsight they might look bad, they were only a “joke”. Ms. B asked Mr. A to sign a copy of the Respondent’s Dignity at Work Policy and informed him that should the Complainant wish to proceed with a formal grievance, an investigation and disciplinary action would be taken against him.

On 19 October, 2016, the Complainant met with Ms. B to discuss the grievance. The Complainant was furnished with a copy of the Respondent’s Grievance Policy and Dignity and Respect at Work Policy as these policies had not been provided to her upon commencement of employment. The Complainant maintains she felt that Ms. B was trying to put her off making a formal complaint as she was telling her that if she did go through with a formal complaint, she would be called to meetings and asked difficult questions that would probe at the very credibility of her complaints. The Complainant claims that at this meeting and through her previous letter, she emphasised to Ms. B the stress that the matter was causing her and her mother’s wish that she contact the Gardaí in relation to the matter.

By e-mail dated 21 October, 2016, the Complainant wrote to Ms. B confirming that she wished to proceed to the formal stage of the grievance process. The Complainant confirmed that she was making a formal complaint regarding the matters outlined in her previous e-mail dated 15 October, 2016 and that same could be expanded upon at a formal meeting. The Complainant was absent from work on 23 October, 2016 due to the fact that Mr. A was the only Team Leader rostered that day and as she did not want to go into work and have to be in direct contact with him or ask him questions.

By e-mail dated 25 October, 2016, Ms. B wrote to the Complainant confirming receipt of her e-mail dated 21 October, 2016 and indicating that she would be the investigating manager and would be in contact to arrange a meeting. On 3 November, 2016, the Complainant attended an investigatory meeting with Ms. B during the course of which she fully outlined and elaborated upon the incidents of harassment and sexual harassment which had been detailed in her e-mail of 15 October, 2016. Ms. B indicated that she would speak to a number of other colleague witnesses. The Complainant stated that she had never sent Mr. A a friend request on Facebook and that she might have appeared on his account as a suggested friend. The Complainant also informed Ms. B that Mr. A had recently placed his hand on her shoulder, that she stated “don’t touch me”, and that Mr. A replied “you wish”.

On 10 November, 2016, Ms. B conducted an investigation meeting with Mr. A and he was afforded the opportunity to respond to the alleged incidents of inappropriate behaviour which the Complainant had raised as part of her complaint.

On 18 November, 2016, Mr. CB, colleague, attended an investigation meeting with Ms. B regarding interactions that he had witnessed between the Complainant and Mr. A. Mr. CB stated that he had witnessed Mr. A picking on the Complainant and putting a banana peel on her head. Mr. CB also stated that Mr. A had made remarks about a tattoo of a Christmas tree which the Complainant had on her ankle and asked other colleagues if they “had seen (the Complainant’s) bush”. The Complainant claims that this was a further example of the shocking sexual harassment to which she was subjected by Mr. A. However, it was submitted that the Respondent failed to investigate this incident as part of the grievance process.

The Complainant was required to leave work early on 4 December, 2016 as Mr. A had attended work an hour after her and had sat directly in front of her. The Complainant felt that Mr. A was attempting to intimidate her and informed Ms. D, another Team Leader, that Mr. A was obliged to sit elsewhere. The Complainant clams that Ms. D failed to deal with the matter and that she was obliged to leave work early on this occasion as a result.

By letter dated 17 December, 2017, Ms. B wrote to the Complainant enclosing her findings of the investigation. In the investigation report, Ms. B indicated that she was upholding five of the complaints made by the Complainant against Mr. A, she was unable to substantiate two of the complaints and overturned one. The Complainant submitted that, despite a number of serious adverse findings being made against Mr. A, he was never suspended pending further investigation or hearings and the disciplinary procedure was never initiated against him by the Respondent. The Complainant claims that Mr. A is still working for the Respondent and has been moved back to the original work location where he was based.

The Complainant submitted that the Respondent failed to promptly, fairly and effectively follow aspects of its own Dignity and Respect at Work Policy, failed to carry out a fair investigation that reached adequate and reasonable findings or that the outcomes of this investigation were promptly, fairly and effectively acted upon and the situation remedied. In particular, the Complainant claims that:

·         As per the Dignity and Respect at Work Policy, the investigation was to be carried out by the HR Manager or an independent Third Party, despite this, the matter was investigated and an outcome issued by Ms. B, who is neither.

·         Ms. B took an inordinate amount of time to conduct the investigation and issue an outcome letter given the nature of the matters complained of. Indeed, Ms. B took in excess of two months to prepare her outcome. During this period, the Complainant was required to work on a daily basis, in an unsupervised manner in close proximity with Mr. A.

·         Ms. B, correctly, allowed Mr. A the opportunity to comment on the Complainant’s complaints; however, in breach of fair procedures and due process, the Complainant was not allowed to comment on the assertions made by Mr. A thereby denying her the opportunity to reply to a number of matters, including new matters raised by him.

·         Ms B. concluded in her report that she was unable to substantiate a number of the Complainant’s complaints on the basis that there were no other witnesses present during the alleged incidents. The Complainant gave explicit evidence to Ms. B regarding these allegations and she, in turn, put these allegations to Mr. A. It was submitted that Ms. B, if in doubt, could have interviewed the parties further and come to a decision as to whether these matters occurred on the balance of probabilities. Given the severity of the matters alleged, the Complainant claims that it is absolutely unacceptable that Ms. B should shirk her responsibilities as an investigator and adjudicator on the mere basis that there were no other witnesses present.

·         Ms. B rejected and overturned the Complainant’s complaint that Mr. A had told other Team Leaders that the Complainant was harassing him on Facebook, as it appeared that she had sent him a friend request (which is denied) that he had not accepted. The Complainant contends that this is a completely illogical finding and whether the Complainant sent him a friend request or not has absolutely no bearing as to whether Mr. A made such comments to other Team Leaders. The Complainant complained that Mr. A told other Team Leaders that she was harassing him on Facebook, this matter was, it appears, not actually investigated by Ms. B, who appears to have relied on an entirely irrelevant matter in rejecting and overturning this complaint. Indeed, the other Team Leaders who it is alleged Mr. A said this to were not in fact interviewed.

·         Ms. B went on to make a general commentary regarding the matter in her investigation report. It was submitted that in an entirely inappropriate manner, Ms. B appeared to have condoned the behaviour of Mr. A on the basis that the Complainant “seemed to engage openly with ease, in conversation with Mr. A up to the point of 8/9 October, 2016, until the incident that you allege he invited you to sit in his car, at which point you seem to have been made to feel uncomfortable”. The Complainant entirely rejects the suggestion that Mr. A’s behaviour did not make her feel uncomfortable prior to this and cannot understand how Ms. B could possibly have reached such a conclusion.

·         One witness informed Ms. B that Mr. A put a banana peel on the Complainants’ head and had made lewd and inappropriate jokes about the Complainant’s tattoo of a Christmas tree. Ms. B failed to investigate these matters, further examples of shocking harassment, failed to put the matters to either the Complainant or Mr. A and failed to make findings as to whether such behaviour occurred.  

·         Ms. B had access to text messages relevant to the investigation sent between the Complainant and a witness regarding Mr. A’s behaviour. In breach of due process and fair procedures and in an entirely arbitrary manner, Ms. B refused to consider this evidence.

·         In breach of due process, fair procedures, its own policy and employment equality law, Ms. B failed to interview two witness who had information relevant to the investigation.

·         Despite Ms. B upholding no less than five allegations of serious sexual harassment and harassment against Mr. A, she failed to outline any actual outcome or recommendations arising from same, including but not limited to whether Mr. A should be subjected to the disciplinary process; whether Mr. A or the Respondent should issue an apology to the Complainant for the matters that were found to have occurred; whether the Respondent needed to improve its anti-harassment policies and safeguards; whether it was safe and proper to continue to roster the Complainant and Mr. A to continue working together, in close proximity and often unaccompanied or unsupervised by other employees or members of management; how the matter could be prevented from reoccurring; or how the matter could be remedied presently. Bizarrely, despite the length of time that it had taken the Respondent to reach this point and despite five allegations of serious sexual harassment and harassment having being upheld against Mr. A, the Complainant was expected to continue working daily, unsupervised in close proximity with him.

By e-mail dated 14 December, 2016, the Complainant wrote to Mr. G, HR Manager, regarding the grievance outcome indicating that she wished to appeal the outcome of the investigation as she was not satisfied with the manner in which her complaints had been investigated. On 1 January, 2017, the Complainant was asked to attend a meeting regarding her level of absenteeism at work. By letter dated 1 January, 2017, the Respondent wrote to the Complainant regarding this meeting and referred to her “unacceptably high level of absence” across a number of dates, including the period from 23 October, 2016 to 4 December, 2016, absences which were necessitated by the Complainant’s inability to be present in the workplace with Mr. A, a matter which had not been addressed by the Respondent. The Complainant claims that this treatment amounts to victimisation contrary to Section 74(2) of the Employment Equality Acts.

On 2 January, 2017, the Complainant attended a further investigatory meeting with Mr. F, Operations Manager. At this meeting, Mr. F showed the Complainant a copy of a message which Mr. A claimed she had sent him from her Facebook account. The message read “I’m going to absolutely get u fired as this is going on to long I had it handy till now till you came along and put pressure on us all to get stats. Hope ya get fired or get sent back to ….. ”. The Complainant vehemently denies that she had sent this Facebook message to Mr. A and claims that it was sent from a fictitious Facebook account, not belonging to her.

The Complainant claims that the Respondent failed to explain why this meeting was even necessary. The Complainant submitted that Ms. B had conducted an investigation that had reached a number of findings, including upholding five allegations of sexual harassment and harassment against Mr. A; however, despite this and despite no remedial actions having been undertaken by the Respondent in the interim, the Complainant was required to again present herself before the Respondent to address clearly unsubstantiated and maliciously motivated accusations proffered by Mr. A in an attempt to justify obvious instances of sexual harassment and harassment that had already been upheld following an investigation. The Complainant submitted that such adverse treatment amounts to nothing more than an attempt by the Respondent to penalise and victimise the Complainant for having raised complaints regarding discrimination, harassment and sexual harassment that she had suffered at the hands of the Respondent, its servants or agents.

On 2 January, 2017, the Complainant’s mother contacted Mr. G, HR Manager, stating that the Complainant was very upset and requested that the Respondent immediately furnish the Complainant with copies of the alleged Facebook screenshots, as the Complainant wished to refer the matter to an Garda Siochana. By letter dated 3 January, 2017, Mr. G wrote to the Complainant enclosing the Facebook messages that Mr. A alleged the Complainant had sent him on 24 December, 2016.

By e-mail dated 4 January, 2017, the Complainant wrote to the Respondent, forwarding her e-mail of appeal to Mr. G dated 14 December, 2016. The Complainant submitted that, following the issuing of her complaint to the Respondent in October up until the date of her resignation, Mr. A instigated a series of attempts to intimidate her. Mr. A would regularly stand beside the Complainant while she was attempting to raise queries with other Team Leaders. Also, Mr. A would sit one seat away from the Complainant’s desk (indeed away from his own team where he should have been positioned), knowing that he could not sit directly beside her. The Complainant submitted that, following the issuing of her complaint to the Respondent and following the outcome of the investigation up until the date of her resignation, the Complainant was required to continue to work under Mr. A as Team Leader.

Despite the fact that Ms. B had advised in her report that the Complainant should report to Mr. A as Team Leader, the Complainant remained under Mr. A in terms of his team and statistics. The Complainant continued to be scheduled to attend team briefs with Mr. A every weekend. Further, while the Complainant could report to other Team Leaders; all Team Leaders were located in the same area, so the Complainant was required to attend seating areas where Mr. A was located in order to take instruction to raise queries with Team Leaders.

On 5 January, 2017, the Complainant advised Ms. D, Team Leader, that she wished to resign from her employment with the Respondent. It was submitted that the Complainant had no option but to resign her position on the grounds of discriminatory constructive dismissal. The Complainant contends that, applying either the reasonableness test or the contract test, she was discriminatorily constructively dismissed due to the manner in which she was discriminated against by the Respondent on the grounds of her gender; the manner in which she was sexually harassed and harassed by the Respondent, it servants or agents; the manner in which the Respondent carried out the flawed investigation; the manner in which the Respondent refused to treat the Complainant in a sympathetic manner; and the manner in which the Respondent conducted itself in a way likely to destroy the relationship of trust and confidence having regard to the Complainant’s physical and psychological vulnerability.

It was submitted that this behaviour was so unreasonable as to leave the Complainant with little choice other than to resign her employment and also amounted to a repudiatory breach of the contract of employment, such that the Complainant was entitled to treat the contract as terminated and herself dismissed.

The Complainant relied upon the following cases in support of her complaint, namely: Sheffield City Council -v- Norouzi [2011] IRLR 897; A Worker -v- A Hotel [2010] ELR 72; An Office Worker -v- A Security Company DEC-E2010-002; BH -V- A Named Company Trading as A Cab Company DEC-E2006-026; Odion -v- Techniform (Waterford) Limited DEC-E2007-018; A Worker -v- An Engineering Company DEC-E2008-038; An Employer -v- A Worker EDA0916; Gabriele Piazza -v- The Clarion Hotel DEC-E2004-033; Ms. A -v- A Contract Cleaning Company DEC-E2004-068; S -v- A Named Organisation DEC-E2006-025; A Boys’ Secondary School -v- A Female Teacher of Religion EED022; A Complainant -v- A Hospital DEE029/2002; Dublin Corporation -v- Gibney EE5/1986; A Technology Company -v- A Worker EDA0714; An Employee -v- A Broadcasting Company [2012] ELR 88; An Employer -v- A Worker (Mr. O)(No.2) EED0410.

The Respondent is an outsourced contact centre company providing tailored solutions to businesses. The company employs a significant number of employees and operates in four locations across the Republic of Ireland and Northern Ireland.

The Complainant commenced employment with the Respondent as a Technical Support Agent on 24 March, 2014. She was required to handle customer phone contacts from client’s customers for a range of technical queries. Her core role was to troubleshoot and manage these customer queries through to resolution. She worked as part of a team of approx. 20 agents which was managed by a Team Leader within a department of approx. 300 Technical Support Agents.

On 15 October, 2016, the Complainant had a meeting with the Operations Manager, Mr. F, during which she made a number of allegations against her Team Leader, Mr. A, that would be contrary to the Company’s Dignity and Respect at Work Policy and Procedure. This was the first time the Respondent was made aware of any allegations of inappropriate behaviour towards the Complainant by her Team Leader, Mr. A.

At the request of the Operations Manager, Mr. F, and on the same day, the Complainant sent an e-mail detailing her allegations to the Respondent’s HR Business Partner, Ms. B. The allegations made in the e-mail ranged in dates from mid-September to early October, 2016. The HR Business Partner, Ms. B, met with the Complainant’s Team Leader, Mr. A, on 17 October, 2016 to bring to his attention the allegations that had been made against him. At this meeting, Mr. A did acknowledge that some of the incidents had taken place and did recognise “how it looked but did not mean anything by it”.

Following this meeting the HR Business Partner, Ms. B, arranged to meet the Complainant on 19 October, 2016. The initial meeting, as agreed with the Complainant, took place on this date and she was accompanied by a friend who attended as a witness. During this meeting the Complainant was given a copy of the Company’s Grievance Procedure and it was explained to her that the process was, at that juncture, being dealt with informally and how the process would be managed. The Complainant was informed that should she wish the matter to be managed formally then a full and thorough investigation would take place. The Complainant was also told that the issues had been put to her Team Leader, Mr. A, but that he had not been given a written copy of the allegations made against him.

On 21 October, 2016, the Complainant e-mailed the HR Business Partner, Ms. B, to inform her that she wanted this matter dealt with through formal process. On 25 October, 2016, Ms. B wrote to the Complainant to acknowledge receipt of her e-mail. She informed the Complainant that she would be conducting the investigation and included with this letter were the Company’s Dignity and Respect at Work Policy and Procedures as well as a copy of the minutes of the meeting with her Team Leader, Mr. A, on 17 October, 2016.

The HR Business Partner, Ms. B, met with the Complainant on 3 November, 2016. During the meeting each of the issues raised by the Complainant in her e-mail of 15 October, 2016 were discussed in detail. The Complainant acknowledged that she was comfortable with some of the issues she had raised but that others made her feel uncomfortable. The Complainant was also advised that, for the duration of the investigation, she would no longer report to Mr. A. During this meeting the Complainant was asked about the friend request she had sent to M. A on Facebook. The Complainant denied ever having made a friend request and asked for a screenshot of this request which was subsequently provided to her by the Respondent.  

As part of the investigation the HR Business Partner, Ms. B, met with Mr. A on 10 November, 2016. During this meeting Mr. A did acknowledge that some of the incidents that the Complainant complained of had happened, but not to the extent that she had alleged. Mr. A was also advised that the Complainant would not be reporting to him for the duration of the investigation but would remain on the system as being on his team. It was explained to Mr. A that the reason for not moving the Complainant from him on the system was that “it would appear that I think you are in the wrong”.

Ms. B continued the investigation by meeting with one of the Complainant’s work colleagues, Mr. CB, on 18 November, 2016. During this meeting, Mr. CB referred to some of the issues raised by the Complainant. While he did corroborate some of them, he did inform Ms. B that the Complainant did not appear to be upset, she had not asked Mr. A to stop but did think the behaviour was “a bit” inappropriate.

The HR Business Partner, Ms. B, completed her investigation and, on 7 December, 2016 wrote to the Complainant regarding her findings. The outcome of the investigation provided a detailed breakdown of each of the Complainant’s complaints, whether they were upheld, substantiated or turned down and the reasons for these findings. Of the nine allegations of harassment and sexual harassment which the Complainant had detailed in her complaint, five were upheld, two could not be substantiated on the basis that there were no other witnesses and one was overturned. The Complainant was also afforded the opportunity to appeal the outcome of the investigation.

As part of the outcome letter the Complainant was given the option of remaining on Ms. D’s team (i.e. the Team Leader to which she was reporting during the investigation) or reverting to her original team.

In line with recommendations as outlined in the outcome letter, the internal procedures regarding Mr. A by way of disciplinary process commenced in December, 2016 and concluded in early January, 2017.

During this disciplinary process, Mr. A produced new evidence and the Respondent was obliged to follow this up with the person directly involved, namely the Complainant. This meeting took place with the Complainant on 2 January, 2017 during which the HR Business Partner, Mr. E, who reminded the Complainant that she hadn’t appealed the outcome of the investigation. The Complainant indicated that she had e-mailed her appeal to Mr. E on 14 December, 2016. Mr. E checked his e-mail and found no record of having received the appeal. The e-mail from the Complainant to Mr. E seeking clarification on aspects of the appeal and expressing her dissatisfaction with how the investigation had been conducted was sent to an incorrect e-mail address. When Mr. E queried why the Complainant had not followed up with him she said “I said in the e-mail I would be in contact in due course”. She said that there were a couple of things that she wanted to discuss and “to be honest I was getting advice from my solicitor”. When asked, the Complainant clarified that she did intend to appeal and that she would send her appeal to Mr. E. At the request of the Complainant, a copy of the Facebook messages that had been shown to her on 2 January were provided to her on 3 January, 2017.

It was only at this meeting that the Respondent became aware that the complainant had appealed the outcome of the investigation but that she had sent her appeal to the wrong e-mail address. The Respondent did not get the opportunity to resolve the Complainant’s issues over the investigation, as three days following the meeting on 2 January, 2016, she informed her Team Leader, Ms. D, that she had obtained another job and was, in effect, resigning with immediate effect. From the Company’s perspective, it is regrettable that it did not get the opportunity to resolve whatever concerns remained with the Complainant.

The Respondent submitted that it is also important to note that Mr. A was not suspended during and following the investigation as to do so could have prejudiced any potential disciplinary process.

The Respondent submitted that it has a comprehensive Dignity and Respect at Work Policy in place to deal with harassment and sexual harassment in the workplace. This policy clearly outlines that the company is committed to providing a work environment that is free from all forms of harassment and discrimination. It is clear that the company does not condone the inappropriate behaviour of any staff member against another. This policy also explains that, where an employee may feel that they are being harassed, they should bring the behaviour to the attention of the alleged perpetrator or make a formal written complaint to their line manager or HR Manager.

The Respondent submitted that it is most regrettable that management was not made aware of the issues involving the Complainant until a full month after they had begun. Until they were made aware of them they were not in a position to bring the behaviours to a stop. Following, the Complainant bringing her concerns to management, a full, thorough and transparent investigation into the allegations was carried out. This was in line with the company’s documented policy. The outcome of the investigation was sent to the Complainant and gave a detailed breakdown of each of her complaints, whether they were upheld, unsubstantiated or turned down and the reasons for these findings. The Complainant was also afforded the opportunity to appeal the outcome of the investigation. No appeal was received from the Complainant, so it was reasonable for the Respondent to conclude that she was satisfied with the report and the outcome.

In summary, the Respondent denies that the Complainant was subjected to discrimination, harassment, sexual harassment, victimisation or discriminatory constructive dismissal contrary to the Employment Equality Acts.

The Respondent submitted that the company takes its obligations regarding the dignity, welfare and respect of its staff very seriously. The Complainant made a complaint to management which was immediately acted upon and thoroughly investigated. The alleged behaviours of Mr. A then stopped. The Complainant had the opportunity to appeal but from the company’s perspective, she did not avail of this part of the process but instead she chose to resign.

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.

Accordingly, the issues for decision in this case are:

      (i)            Whether or not the Complainant was subjected to sexual harassment and harassment pursuant to S.14A of the Acts.

    (ii)            Whether or not the Complainant was subjected to discriminatory treatment on the grounds of gender in relation to her conditions of employment.

   (iii)            Whether or not the Complainant was constructively discriminatorily dismissed from her employment.

   (iv)            Whether or not the Complainant was subjected to victimisation contrary to Section 74(2) of the Acts.

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. In keeping with the Commission’s normal approach concerning complaints involving sexual harassment I have decided to anonymise the identities of the parties involved.

Harassment and Sexual Harassment

The first issue that I must consider is whether or not the Complainant was subjected to harassment and sexual harassment pursuant to Section 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.

The Complainant adduced evidence that she was subjected to harassment and sexual harassment by her Team Leader, Mr. A, in the workplace on an ongoing basis during the period from August, 2016 until she resigned from her employment in early January, 2017. The Complainant made a formal complaint in relation to the alleged harassment and sexual harassment on 21 October, 2016 in accordance with the Respondent’s internal Dignity and Respect at Work Policy. It is common case that the Complainant had previously sent an e-mail to the Respondent on 15 October, 2016 in which she provided detailed information in relation to nine separate incidents of harassment and sexual harassment involving Mr. A which had allegedly occurred up to that juncture. The Complainant claims the Respondent carried out a flawed, inefficient and ultimately toothless investigation and that it failed to reach a reasonable and adequate outcome or to make recommendations to address the instances of harassment and sexual harassment actually found to have occurred.

The Respondent maintains that it acted upon the Complainant’s complaint of harassment and sexual harassment immediately upon becoming aware of the matter and that it carried out a thorough investigation in relation to the complaint following which five of the nine alleged incidents of harassment/sexual harassment were upheld. The Respondent maintains that it took all such steps as were reasonable to prevent any such harassment and sexual harassment occurring and re-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.

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 carefully considered the nature of the incidents of harassment and sexual harassment which the Complainant claims she was subjected to by Mr. A during the material period in question. These alleged incidents of harassment and sexual harassment relate to behaviour and conduct by Mr. A, both of a verbal and physical nature, which included inappropriate touching and physical contact of the Complainant’s waist; comments of a sexually explicit, derogatory and suggestive nature relating to the Complainant and her sexual behaviour; behaviour which had the effect of intimidating the Complainant such as following her around the workplace, asking her to go and sit in his car and indicating that he knew where she lived; placing a banana peel on her head.

The Respondent was not in a position to dispute the actual occurrence of the alleged incidents of harassment and sexual harassment albeit that only five of the nine allegations of harassment and/or sexual harassment which the Complainant had raised in her initial complaint in October, 2016 were ultimately upheld following the conclusion of an internal investigation into the matter. Mr. A did not attend the hearing to give evidence in relation to the matter, and therefore, the Complainant’s evidence in relation to the alleged incidents of harassment and sexual harassment was uncontested.

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. On balance, I accept the Complainant’s evidence in relation to this matter and I am satisfied that all of the incidents of harassment and sexual harassment as alleged by her did actually occur. Furthermore, I am satisfied that a number of these incidents of harassment and sexual harassment were extremely serious in nature in terms of the impact and effect they had on her personally and her working environment. It is clear that these incidents of inappropriate, offensive and unwelcome behaviour had the effect of violating the Complainant’s dignity and subjecting her to a hostile and intimidating workplace. Furthermore, I find that the impact of this treatment was exacerbated by the fact that the behavior was committed by her immediate supervisor Mr. A, him being a person of authority within the company. I therefore, find that the Complainant has established a prima facie case that she was harassed and sexually harassed in the course of her employment.

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 AHotel –v- A Worker[1] 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 and Respect at Work Policy in place to deal with harassment and sexual harassment in the workplace. 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 policy and procedures on sexual harassment and harassment and I accept that they generally conform to the standards set out in the Code of Practice. However, it is not sufficient to avail of the defence under Section 14A(2) for an employer simply to have these policies in place if it does not take all reasonable efforts to effectively communicate the existence of such policies to its workforce.

The Complainant adduced evidence that the first occasion during her period of employment that she received a copy of the Dignity and Respect at Work Policy was after she had made a formal complaint of harassment and sexual harassment against Mr. A. The Respondent did not adduce any evidence to confirm whether or not a copy of this policy had been provided to Mr. A or if he had been made aware of its existence prior to the occurrence of the alleged prohibited conduct against the Complainant. In the circumstances, I find that I have not been presented with any evidence from which I could reasonably conclude that this policy was effectively communicated by the Respondent to staff members, including Mr. A, prior to the occurrence of the harassment and sexual harassment in this case.

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.

In the case of Limerick City Council -v- Martin Mannering[4] the Labour Court held that: “Consequently, unless the defence provided for by s. 14A(2)(a) is made out the Respondent is liable to the Complainant by operation of s. 14A(1)(a) of the Act. That raises a question as to the necessary ingredients of the defence provided for at s. 14A(2)(a) of the Act. On a plain reading of paragraph (a) of subsection (2) what is required is that the Respondent proves that it took steps that are reasonably practical to prevent the perpetrator from harassing the victim. In a situation where there is continuing harassment the defence will normally succeed or fail on the adequacy of the employer’s response to any complaint made by the victim. Hence, where an employer fails to conduct an adequate investigation, or fails to apply adequate sanctions on a harasser, the employer will be fixed with liability for any subsequent acts of harassment.”

The Complainant contends that the investigation by the Respondent into her complaints of harassment and sexual harassment was ineffective 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 the first instance, and then re-occurring after she had made the initial complaint.

In considering this matter, I note that it was not in dispute that the Respondent conducted an investigation in relation to the alleged incidents of harassment and sexual harassment after the Complainant had raised a formal grievance in relation to the matter on 21 October, 2016. As I have already adverted to above, it was common case that the Respondent upheld five of the nine allegations of harassment and/or sexual harassment following the conclusion of this investigation.

Having regard to the evidence adduced, I find that there were a number of critical shortcomings and fundamental failings in terms of the manner in which the investigation was conducted and the conclusions which were reached following the conclusion of the process. In this regard, I find that:

·         The investigation was carried out in accordance with the Respondent’s Grievance Policy rather than its Dignity and Respect at Work Policy. The latter policy was put in place to deal specifically with complaints relating to harassment and sexual harassment in the workplace and the Respondent did not offer any plausible explanation as to why the Complainant’s complaint was not dealt with in accordance with the correct policy. The Respondent’s Dignity and Respect at Work Policy stipulates that the investigation in relation to a complaint of harassment and sexual harassment should be carried out by the HR Manager or an independent Third Party. However, in the instant case, the matter was investigated and an outcome issued by Ms. B, Business Partner, who is neither.

• The investigation process was tainted by a number of procedural deficiencies including the following, namely: the inordinate length of time (i.e. two months) which it took Ms. B to conduct the investigation and issue an outcome letter given the nature of the matters complained of; contrary to the principle of fair procedures, the Complainant was not allowed to comment on the assertions and responses made by Mr. A in response to the alleged incidents; Ms. B failed to interview two witnesses who had key information relevant to the investigation; Ms. B failed to investigate two further allegations of harassment and sexual harassment which came to light during the investigation process, namely that Mr. A had placed a banana peel on the Complainant’s head and had made lewd and inappropriate jokes about the Complainant’s tattoo of a Christmas tree by asking colleagues if they had seen the Complainant’s “bush”.
• Ms. B concluded in her investigation report that she was unable to substantiate a number of the Complainant’s complaints on the basis that there were no other witnesses present during the alleged incidents. Given the gravity of the matters alleged and the fact that five of the other allegations were upheld, I find that it was unreasonable that Ms. B could not have come to a decision as to whether or not these matters occurred on the balance of probabilities.
• I am not satisfied that the gravity and seriousness of the harassment and sexual harassment which occurred and the impact that this treatment had on the Complainant was accurately reflected in the investigation report. Despite the fact that Ms. B had upheld five of the allegations of harassment and sexual harassment of a very serious nature, she failed to recommend that Mr. A should be subjected to disciplinary action in respect of these matters but simply recommended that his “behaviour be further investigated though our internal processes”. Furthermore, I find that Ms. B failed to make any recommendations in her report as to how the matter could be remedied from the Complainant’s perspective or how the harassment and sexual harassment could be prevented from reoccurring in the immediate future.

I also find that the Respondent failed to take appropriate action or put sufficient measures in place following the investigation to reverse the effects of the treatment on the Complainant and to prevent further harassment and sexual harassment from reoccurring. The Respondent failed to offer the Complainant an apology or to provide her with any reassurance that measures would be put in place to counteract the recurrence of any such behaviour by Mr. A. in the future.

As mentioned above, the Respondent failed to take any disciplinary action whatsoever against Mr. A in the immediate aftermath of the investigation notwithstanding the fact that five of the allegations of harassment and sexual harassment had been upheld. I fully accept that Mr. A was entitled to due process in terms of disciplinary procedures, however, it should have been patently clear to the Respondent at that juncture that immediate remedial action was required in order to prevent the harassment and sexual harassment from reoccurring.

In this regard, I find it totally inexplicable that the Respondent failed to put even the most basic of measures in place in order to separate the Complainant and Mr. A in the workplace following the conclusion of the investigation especially in light of the serious nature of the harassment and sexual harassment which had been found to have already occurred. I note that the Complainant and Mr. A were both still required to be seated in the same work location for a further month until the Complainant resigned her position on 7 January, 2017. The Respondent gave evidence that the Complainant was allowed to report to another Team Leader both during and following the investigation. However, this action alone was wholly inadequate as it is clear that the Complainant was required to have interaction with Mr. A on an ongoing basis during this period, including the requirement to attend team briefings at weekends. I accept the Complainant’s evidence that she was subjected to further intimidation in the workplace by Mr. A during this period.

Having regard to the foregoing, I find that the Respondent cannot avail of the defence provided by Section 14(A)(2) of the Acts and it is therefore liable for the harassment and sexual harassment suffered by the Complainant. Accordingly, I find that the Complainant is entitled to succeed in this element of her complaint.

Conditions of Employment

The next element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to discrimination on the grounds of gender in relation to her conditions of employment.

Section 14A(1)(a) of the Acts provide that where “an employee is harassed or sexually harassed either at a place where the employee is employed or otherwise in the course of his or her employment by a person who is ….. employed at that place or by the same employer …… the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment”.

As I have already found above, I am satisfied that the Complainant was subjected to harassment and sexual harassment in the workplace by Mr. A. Furthermore, I am satisfied that the Respondent failed to put appropriate measures in place to stop this harassment and sexual harassment from reoccurring or to reverse its effects. Having regard to the foregoing, I find that this harassment and sexual harassment constitutes discrimination against the Complainant in relation to her conditions of employment. Accordingly, I find that the Complainant is entitled to succeed in relation to this element of her complaint.  

Constructive Dismissal

The next element of the Complainant’s complaint which I must consider relates to the claim that she was discriminatorily constructively dismissed from her employment.

Section 2(1) of the Acts defines dismissal as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... ".

Inthe case of An Employer -v- A Worker (Mr. O No. 2)[5]the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e. the "contract" test and the "reasonableness" test were applicable tests under the Employment Equality legislation. In this case the Labour Court, when referring to the “reasonableness test”, held that: “There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.”

The Labour Court further held in this case, when referring to the “contract test”, that: “It is not suggested that the respondent breached any express term in the complainant’s contract of employment. It is, however, settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

The Complainant claims that she discriminatorily constructively dismissed due to the manner in which she was subjected to discrimination, harassed and sexually harassed by the Respondent; the manner in which the Respondent carried out a flawed, inefficient and ultimately toothless investigation; the manner in which the Respondent refused to treat her in a sympathetic manner and the manner in which the Respondent conducted itself in a way likely to destroy the relationship of mutual trust and confidence having regard to her physical and psychological vulnerability. The Complainant contends that the Respondent’s behaviour was so unreasonable that she was left with little choice other than to resign her employment and also amounted to a repudiatory breach of the contract of employment, such that she was entitled to treat the contract as terminated and herself dismissed.

The Respondent denies the claim of discriminatory constructive dismissal and contends that the company acted appropriately on becoming aware of these issues when raised by the Complainant and dealt with them fairly and effectively. The Respondent contends that it thoroughly investigated the alleged harassment and sexual harassment and that the Complainant had an opportunity to appeal the outcome of this investigation but failed to do so but rather chose to resign her employment of her own volition.

Having regard to my findings above, I am satisfied that the Complainant was subjected to ongoing and sustained harassment and sexual harassment by her Team Leader over a period of approx. five months from August, 2016 until her resignation on 7 January, 2017. Furthermore, I am satisfied that the Respondent failed to deal with the Complainant’s complaints of harassment and sexual harassment in an appropriate manner or to put appropriate measures in place either during or following the investigation to address or remedy this treatment.

I also find that the Respondent’s failure to deal effectively and appropriately with the harassment and sexual harassment was further compounded and exacerbated by management’s actions and inactions following the conclusion of the investigation process, including:

·         The decision by the Respondent’s management to reprimand the Complainant following the conclusion of the investigation for an “unacceptably high level of absence”. I find that this course of action was totally unjustified especially in circumstances where it should have been manifestly clear to the Respondent that six of the eight days on which she was absent occurred during the period within which she was being subjected to the harassment and sexual harassment by Mr. A. I accept the Complainant’s evidence that the reason for her absence on a number of these occasions was directly attributable to the stress associated with this prohibited conduct.

·         The Complainant was summoned to a further investigation meeting by the Respondent on 2 January, 2017 “as part of the ongoing grievance which she had raised against Mr. A”. At this meeting, the Complainant was asked by the Operations Manager to address, what she claims were unsubstantiated and maliciously motivated accusations about a Facebook message, proffered by Mr. A in an attempt to justify obvious instances of harassment and sexual harassment that had already been upheld by the Respondent. I accept the Complainant’s evidence that she had not sent any such Facebook message to Mr. A and I find that this is further evidence of the intimidation and harassment to which she was subjected by Mr. A, even after the formal investigation of her complaints had concluded.

·         The Complainant clearly conveyed to the Respondent in her “exit interview” from the companyon 5 January, 2017that her decision to resign was exclusively related to the treatment which she had been subjected to by Mr. A and the company’s failure to effectively address or remedy this situation. I am satisfied that the Respondent did not attempt to try and dissuade the Complainant from resigning or to try and reassure her at that juncture that measures would be put in place to offer her a safe working environment thereafter.

Having regard to the totality of the evidence adduced, I find that the Respondent’s conduct amounted to an undermining of the relationship of trust and confidence between the parties, was unreasonable in the circumstances and entitled the Complainant to claim that she was constructively dismissed.

I must also address the Respondent’s argument that the Complainant’s failure to fully exhaust the internal grievance procedures prior to her resignation, in terms of her decision not proceed with an appeal of the investigation outcome, is fatal to her claim of discriminatory constructive dismissal. The Labour Court also held in the case of An Employer -v- A Worker (Mr. O No. 2) that: “The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (seeLiz Allen v Independent Newspapers [2002] 13 ELR 84, Moy v Moog Ltd, [2002] 13 ELR 261 and Monaghan v Sherry Bros [2003] 14 ELR 293.”

I am satisfied that there are reasonable grounds which, in the exceptional circumstances of this case, excuse the Complainant’s failure to fully exhaust the internal grievance procedures before resigning. In coming to this conclusion, I note that it was not in dispute that the Complainant had sent an e-mail to the HR Manager on 14 December, 2016 to confirm that she wished to appeal the outcome of the investigation. However, it subsequently transpired that she had sent this e-mail to an incorrect address and notification of her intention to appeal was not conveyed to the HR Manager until the meeting on 2 January, 2017. The Complainant informed the Respondent of her resignation on 7 January, 2017 prior to any appeal being heard.

Notwithstanding the confusion that arose in relation to the communication of the Complainant’s intention to appeal, I am satisfied that any confidence or trust that the she had in the effectiveness of the internal procedures was totally eroded and undermined by virtue of the ineffective manner in which the Respondent had conducted the investigation and its failure to put any measures in place to address or remedy this treatment. I have also had regard to the fact that the Complainant’s resignation on 7 January, 2017 occurred some three weeks after the conclusion of the investigation and the Respondent had failed to take appropriate measures, or indeed signal its intention to do so, to effectively address the prohibited conduct to which she had been subjected or to remedy the situation.

In the circumstances, I find that the Complainant’s employment with the Respondent came to an end in circumstances amounting to dismissal within the meaning of section 2(1) of the Act, and that her dismissal occurred on the grounds of the harassment and sexual harassment she experienced while in the Respondent’s employment. Accordingly, I find that the Complainant was discriminatorily constructively dismissed by the Respondent contrary to Section 8 of the Acts.

Victimisation

The final element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to Section 74(2) of the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimisation” occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

(a)    a complaint of discrimination made by the employee to the employer,

(b)    any proceedings by the complainant

….. ….. …..

(f)     an employee having opposed by lawful means an act that is unlawful under this Act….

(g)    an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In the case of Tom Barrett v Department of Defence[6] the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant. In the instant case I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”. The Complainant has claimed that she was subjected to victimisation by the Respondent after she had made a complaint under the company’s internal procedures regarding the discriminatory treatment, harassment ad sexual harassment that she was being subjected to by Mr. A. I therefore find that this fact satisfies the requirement outlined in (i) above.

In considering whether the Complainant has satisfied parts (ii) and (iii) of the test outlined above, I have taken cognizance of the case of Roy Mackarel –v- Monaghan County Council[7] where the Labour Court held that: “Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).”

There are a number of acts of victimisation which have been claimed by the Complainant in the present case. The Complainant claims that following the raising of the complaints of discrimination, harassment and sexual harassment against Mr. A that she was treated in an adverse manner (1) by the Respondent in punishing her for absences that were caused and necessitated by its failure to separate her and Mr. A in the workplace (2) by Mr. A in treating her in an entirely inappropriate and intimidatory manner while at work by manufacturing false and malicious evidence (i.e. Facebook messages) in an attempt to discredit her and (3) by the Respondent for putting these spurious, malicious and manufactured allegations to her, despite the fact that the investigatory process had concluded and findings had been made.

In relation to the first alleged act of victimisation, it was not in dispute that the Complainant was summoned to a meeting by the Respondent on 1 January, 2017 to discuss her ”unacceptably high level of absence” across a number of dates ranging from July to December, 2016. It is clear that six of the eight days on which she was absent occurred during the period when she was being subjected to the harassment and sexual harassment by Mr. A. Following this meeting, the Respondent issued a letter to the Complainant stating that her “absence has a negative impact on your colleagues and the performance of the business and this is not acceptable. A significant and sustained improvement is immediately required”. The letter also went on to state that “I must advise you that failure to reach and sustain the required improvement, or any breaches of company policies or procedures will be dealt with under the company’s disciplinary measures and could result in disciplinary action”.

I find that this course of action was totally unwarranted and unjustified especially in circumstances where it was manifestly clear to the Respondent that the majority of the Complainant’s absences occurred during the period when she was being subjected to the harassment and sexual harassment by Mr. A. The Respondent failed to adduce any cogent evidence to explain the rationale for raising the issue in relation to these absences in such close proximity to the conclusion of the investigation of Complainant’s complaint about harassment and sexual harassment.

I am satisfied that the actions of the Respondent in raising this issue about her absences and the warning that disciplinary action could ensue amounted to adverse treatment. I find that the Complainant has established facts from which it could be inferred that the complaint which she had raised in relation to the harassment and sexual harassment was an operative or influencing factor in the Respondent’s decision to impose this adverse treatment on her at that particular juncture. In the circumstances, I find that the Complainant has established facts from which victimisation within the meaning of Section 74(2) can be inferred and that the Respondent has failed to discharge the probative burden.

The second and third alleged acts of victimisation identified above are inextricably linked. I have found the Complainant to be a very credible witness and I accept her evidence that she did not send a Facebook message to Mr. A after the conclusion of the investigation into her complaints threatening to get him “fired”. Having regard to the Complainant’s uncontested evidence, I am satisfied, on the balance of probabilities, that this Facebook was manufactured by Mr. A and that it was used in an intimidatory manner by him to try and discredit the Complainant following the conclusion of the investigation. I find that the actions of Mr. A, in attempting to intimidate and discredit the Complainant in such a manner, clearly amounts to adverse treatment. Furthermore, I am satisfied that this detriment would not have occurred but for the Complainant having initiated the complaint of harassment and sexual harassment against Mr. A.

The provisions of Section 15 of the Acts render an employer liable for the acts of employees done in the course of employment, whether the acts are done with the employer's knowledge or consent or not. An employer, however, can avoid liability by proving that he or she took reasonable steps to prevent the particular act of discrimination or that type of act generally.

The Respondent contends that Mr. A produced this Facebook message during this disciplinary process that ensued following the investigation into the Complainant’s complaint of harassment and sexual harassment and that it was necessary to bring this this information to her attention as part as part of this process. I accept that the Respondent was obliged to bring this matter to the Complainant’s attention and afford her the opportunity to respond in relation to the veracity or otherwise of the messages from her perspective. I accept the Complainant’s evidence that she made it emphatically clear to the Respondent at the meeting on 2 January, 2017 that she had not sent this or any other Facebook messages to Mr. A. I am satisfied that the Complainant’s evidence on this issue is corroborated by the minutes of this meeting which were taken by the Respondent.

However, notwithstanding, the Complainant’s emphatic denial that she had sent this message and the obvious intimidatory effect that it had on her, I am satisfied that the Respondent failed to resolve this issue from her perspective either prior to, or subsequent, to her resignation. The Respondent did not adduce any evidence to suggest that Mr. A was reprimanded or that any disciplinary action was taken against him in relation to this further act of intimidation. In the circumstances, I find that the Respondent failed to take reasonable steps to prevent the particular act of victimisation by one of its employees against the Complainant or to reverse the effect thereof, and therefore, cannot rely upon the defence in Section 15(2) of the Acts.  

In the circumstances, I find that the Complainant has established facts from which victimisation within the meaning of Section 74(2) can be inferred and that the Respondent has failed to discharge the probative burden. Accordingly, I find that the Complainant is entitled to succeed in respect of this element of her complaint.

In accordance with section 79(6) of those Acts I issue the following decision. I find that -

        (i)            the Complainant was harassed and sexually harassed by the Respondent contrary to Section 14A of those Acts.

      (ii)            the Complainant was subjected to discrimination by the Respondent in relation to her conditions of employment.

    (iii)            the Complainant was discriminatorily constructively dismissed contrary to Section 8 of the Acts.

    (iv)            the Complainant was subjected to victimisation contrary to Section 74(2) of the Acts.

In accordance with the provisions of Section 82 of the Acts, I consider that an award of compensation is the appropriate form of redress in the circumstances of the present case. In the instant case the Complainant was subjected to a particularly offensive and humiliating work environment for a number of months and this behaviour was perpetrated by her Team Leader, who was her immediate line manager within the Respondent company. The award is arrived at having regard to the seriousness of the discrimination, the effect on the Complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.

Section 82(4) limits the monetary jurisdiction of an Adjudication Officer, to an amount equal to 104 times the Complainant’s gross weekly pay or €40,000, where the Complainant was in receipt of remuneration at the date of the reference of the case. The Complainant was paid a gross yearly salary of €10,708 and therefore, the maximum award that I can make in the circumstances of the present case in respect of the acts of discrimination and victimisation is €40,000.

I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts:

      (i)            that the Respondent pay to the Complainant the sum of €35,000 for the distress suffered by the Complainant and the effects of the discrimination, harassment, sexual harassment and discriminatory constructive dismissal on her.

    (ii)            that the Respondent pay to the Complainant the sum of €10,000 for the distress suffered by the Complainant and the effects of the victimisation on her.

This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI. 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 (as amended).

In accordance with the provisions of Section 82(1)(e), I also order:

   (iii)            that all staff within the Respondent company who have staff management functions receive appropriate training in its Dignity and Respect at Work Policy and that this training is kept under review in light of development/best practice in the area.

Employment Equality Acts – Discrimination – Harassment – Sexual Harassment – Conditions of Employment - Victimisation – Constructive Discriminatory Dismissal – Prima facie case - Complaints upheld – Compensation awarded