Complainant

Respondent

Anonymised Parties

An employee

Accountancy Solutions Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00016525-001

25/12/2017

This complaint was initially referred under Section 21 of the Equal Status Act, 2000. When pointed out to the parties that it should have been referred under Section 79 of the Employment Equality Acts, 1998 – 2015 and it was my intention to hear the case under this legislation there were no objections.

The Complainant in this case commenced employment with the Respondent in May 2017 and resigned in mid-November 2017. During her employment, a senior colleague’s behaviour towards the Complainant was unwelcome to her. She felt that the treatment from the senior colleague amounted to discrimination on the grounds of gender, sexual orientation and race. It should be noted that the Complainant requested the perpetrator to stop this type of behaviour.

At the point of resignation in mid- November 2017 the Complainant felt that her well-being was being affected and this was the only reason for her resignation.

Although not legally required to do so, I have anonymised the identity of both the Complainant and Respondent.

At the hearing both the Complainant and Respondent made verbal submissions.

1.       At an early stage in her employment a senior colleague, on several occasions took unwelcomed ‘snapchats’ of the Complainant during working hours and sent these to his friends. The Complainant made it known to the senior colleague that she was not comfortable with this and asked him to stop, he did not appear to care and continued with this ‘snapchat’ activity. On one occasion the said senior colleague showed the Complainant the response from one of his friends, the caption on the ‘snapchat’ response was “cute chink”. The Complainant felt very uncomfortable and degraded by this response.

2.       On 23rd June whilst in the kitchen the same senior colleague asked the Complainant what her plans for the weekend were. The Complainant replied that she was going to a nightclub with some friends. The colleague then openly made a comment about “I might look for a girl that night because that could be what I’m into”. The Complainant was very upset by that comment and felt embarrassed as there were many other colleagues present in the kitchen at that time.

3.       On the afternoon of Friday 30th June – the day following a social corporate night event – another person (male) knocked on the window of the office, the same senior colleague opened the window to talk to the person outside. The senior colleague pointed to the Complainant and told the other person outside the window “that’s the one Stephen shiftedlast night”. At this point the attention of other colleagues sharing the same workroom as the Complainant had been attracted. This episode was the cause of much embarrassment for the Complainant.

4.       On the morning of Thursday 27th July, the senior colleague said to the Complainant “I heard cats and dogs are the main meat sources of Asians, so do you like eating them?” The Complainant felt disgusted and offended by these words, the senior colleague said “Huh,Huh, Huh?

5.       On Friday 28th July, the senior colleague asked the Complainant how her night out went last night. The Complainant informed him that ‘it was alright’ – the senior colleague then responded by saying “because you didn’t get a shift”? These words left the Complainant feeling that her dignity had been violated.

6.       After lunch on Friday 28th July the Complainant’s reporting manager caught the Complainant crying and asked the Complainant to tell her what had her so upset. At the end of this meeting with the reporting manager the Complainant was asked to take the weekend to think about how she would like the issue to be handled and to let her know the following Monday.

7.       On Monday 31st July, the Complainant met with her reporting manager and one of the partners. Initially the Complainant was asked how she would like things to be handled. The Complainant informed the two seniors that she would leave it to them as she trusted them to do things the fairest way for the Respondent company.

8.       The decision of the two seniors was to address issues the “Informal” way. The senior colleague was asked to apologise for his behaviour when the Complainant felt comfortable enough to talk to him. The senior colleague was asked to the meeting room and apologised to the Complainant. The Complainant accepted the apology.

9.       The Complainant felt that the atmosphere in the office became more professional after the apology.

10.   As time passed the Complainant felt that she no longer belonged to the team at work.

11.   The Complainant handed in her resignation on Friday 10th November to a more senior partner. The Complainant outlined her reasons for resigning and summarised the events of the last few months and explained that she felt her wellbeing was being affected by remaining in the workplace.

12.   The HR Department were only informed of the incident at this stage.

13.   Some discussion took place between the Complainant and one of the partners in relation to what she should write on her CV to explain to future prospective employers the circumstances regarding her departure from the Respondent company.

14.   The Complainant experienced some difficulty in obtaining a reference from the Respondent company and experienced some difficulty with the payment of tuition fees.

2.       By utilising the informal approach in relation to this incident there was no need for involvement or input from the Human Resources Department.

3.       Human Resource personnel are readily available for all employees to speak to. The Complainant in this instant case did not report any of the incidents outlined to any member of the Human Resources Team.

4.       The Complainant attended induction training at the Respondent’s Athlone office and was aware of the policies and procedures contained within the employee handbook.

5.       The two members of management who spoke to the Complainant adopted an informal approach and this appeared to be working successfully.

6.       The issue was resolved and one female member of management held regular meetings with the Complainant.

7.       The Complainant was asked if she would be happy with an apology, this appeared to be acceptable and the senior colleague who had been involved apologised and was quite surprised that he had upset the Complainant.

8.       On the subject of management training in relation to Dignity at Work the Respondent representative re-stated that all managers are trained on this subject and it is an area that the Respondent company does well.

9.       During the exit interview the Complainant was informed that had she made a report to the HR Department they could have helped.

10.   The Respondent company have an Employee Assistance Programme in place and the Complainant could have utilised this programme to help her.

In the WRC Complaint form it is alleged by the Complainant that she was discriminated against in relation to her Gender, Sexual Orientation, Race and Other.

The issue for decision by me is whether the Respondent (i) harassed the Complainant contrary to section 14A of the Employment Equality Act, 1998 as amended and (ii) sexually harassed the Complainant contrary to section 14A of the Employment Equality Act,1998 as amended and did the alleged harassment and sexual harassment constitute discrimination by the Complainant’s employer in relation to the Complainant’s conditions of employment.

Section 14A of the Acts defines sexual harassment as:

“any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, 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.”

Section 14 (A) (7) of the Employment Equality Act provides that references to harassment are to ‘any form of unwanted conduct relating to any of the discriminatory grounds’. This section ensurescompliance with legislation by using the phrase ‘related to’ rather than the potentially more narrow ‘on grounds of’ in setting out the scope of unlawful harassment.

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides “Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

This requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is facts from which it can be established that she was harassed and sexually harassed and thus discriminated against on the grounds of gender, sexual orientation and race in relation to her conditions of employment. It is only when she has discharged this burden to the satisfaction of the Adjudication Officer that the burden shifts to the Respondent to rebut the prima facie case of discrimination raised.

The Act goes on to give examples of unwanted conduct and states:

(b)“Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

The Labour Court in the case of Nail Zone Ltd and A Worker (Determination EDA 1023) defined the law in relation to harassment as follows:

“The essential characteristics of harassment within the statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct has the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts”.

In this instant case the allegations made by the Complainant are not denied and have been discussed by the Complainant and Respondent management, therefore the prima facie case is established.

The senior colleague of the Complainant has apologised and this apology was accepted by the Complainant.

The Respondent’s management, in agreement with the Complainant, utilised the informal approach to address the complaint. At hearing the Complainant quite clearly stated that she should have been asked to sign a declaration that this was the route to be utilised and this signed declaration should have been filed with the HR Department, this did not happen, the Respondent is therefore in breach of their own Complaints/Grievance procedure, this document was produced by the Complainant at the hearing.

The Complainant attended an exit interview prior to leaving. During this interview it became apparent to the Complainant that HR personnel had no knowledge of the reasons for her departure. This possibly raises questions in relation to the level of communication between operational management and the HR function.

Having considered the entire matter, I believe the Complaint is well found.

I find that the Complainant was harassed and sexually harassed and was the victim of discrimination within the meaning of the Act.

Section 82 (1) (c) provides that I can make an order for the effects of the discrimination.

In accordance with Section 82 of the Act, I order the Respondent to pay the Complainant €8,000 in compensation for the distress and effects caused by the discriminatory treatment in her conditions of employment.

The total award is redress for the infringement of the Complainant’s statutory rights and, therefore, is not subject to income tax as per section 192 A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

I further order the Respondent to develop a Code of Practice on Harassment on all the nine discriminatory grounds covered by the Employment Equality Acts 1998 – 2015, this code of practice should be modelled on Employment Equality Act, 1998 (Code of Practice) (Harassment) Order,2002 and should be in place within 3 months from the date of this decision;

I order that a copy of this code is given to all existing and new staff and that all staff are fully acquainted with its contents and;

All staff who have management functions fully acquaint themselves with all aspects of the code.

Employment Equality Acts; sexual harassment;harassment.