ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008243

Complaint(s):

Date of Adjudication Hearing: 06/04/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant has been employed as a Crew Person with the Respondent since 30th November 2016. Her rate of pay is €9.70 gross per hour.

The Complainant maintained that on 26th February 2017 her supervisor made derogatory remarks about her uniform which upset her and as result of what happened she had to leave work as she felt upset and humiliated. The Complainant submitted that these comments added to other comments made by the same supervisor on previous occasions which were also derogatory towards her.

She submitted that on previous occasions the Supervisor would have made comments describing her as a big box or a family box which she found derogatory. She also submitted that when she was working on the drive-through counter she had made comments about a male customer which were overheard by her Supervisor and where the supervisor allegedly responded that the person was his brother and that he had a bigger d*** than him. The Complainant also submitted that in another incident she arrived at the restaurant on her day off in wearing a suit and she was told by the same supervisor that she reminded him of Benburb Street and asked her did she hangout with the prostitutes. The Complainant further maintained that when she got a new uniform in February 2017 the Supervisor commented about how she looked in the uniform, allegedly stating she had an ar** like the back of a truck. The Complainant submitted that all of the comments from her Supervisor were made in public where others would have heard, and the comment regarding her uniform was overheard by a customer who had raised a complaint.

As a consequence of what had occurred the Complainant maintained that on 1st March 2017she made a complaint to a manager and by email to her employer. The Complainant contended that the email was not responded to immediately and when she subsequently met a manager on 3rd March 2017 she was sent home as she was becoming significantly ill due to the derogatory comments. She advised the response she was given was to offer her employment at an alternative location, however due to transport reasons she would not have been able to take up the alternative employment.

The Complainant submitted that the behaviour she experienced was a flagrant breach of the Employment Equality Act and represented sexual harassment on a significant scale. She advised that as it occurred over a protracted period of time it resulted in her having to take sick leave, and has amounted to financial loss, severe anxiety, distress, and upset for her. She submitted that the employer’s response was insufficient and completely inadequate, and she was not advised of how her complaint would be dealt with.

The Complainant was seeking compensation for her loss of earnings due to the time she had to take off as a consequence of the alleged discrimination and sexual harassment she maintained she had experienced.

Summary of Respondent’s Case:

The Respondent denied that it had discriminated the Complainant, or that it failed to handle her complaints reasonably.

The Respondent advised that the Complainant commenced her employment on 30th November 2016 and upon commencement of her employment the Complainant was given a copy of the Crew Handbook and was advised that the Respondent’s Policies and Procedures Manual was available in the crew room. The Respondent submitted confirmation that the Complainant confirmed she had read the company’s hygiene and health and safety handbook, and had been informed about the Employee Handbook and Policies and Procedures where she agreed to be bound by the contents. The Respondent submitted evidence that the Complainant had signed a document to say she received an updated copy of the Crew Handbook and that she understood if she had any questions or queries she could bring them to the attention of the restaurant manager. On that basis the Respondent maintained the Complainant was aware of how to progress a complaint if she experienced any difficulty.

The Respondent also advised that the Complainant’s Supervisor was provided with training on the responsibilities of his role as a shift manager, and as such he would have been aware of what behaviours were inappropriate and what behaviours could be deemed to amount to sexual harassment. The Respondent therefore argued that it had met its responsibilities in doing what is reasonable to prevent sexual harassment or harassment taking place in the workplace. It further presented that it took such matters very seriously and where it had a comprehensive training programme for supervisors which the Supervisor in question would have participated in.

The Respondent submitted that on 1st March 2017 the Complainant attempted to make a complaint to its Human Resources Department but that the Complainant had used an incorrect email address and her complaint was not received on that day. The email was re-sent by the Complainant on 2nd March 2017 to the correct email address. The Respondent contended that in this email the Complainant outlined she was emailing a serious concern that she had reported to a shift manager the previous day, and she was now seeking to make an official complaint. The Respondent advised that following the concerns raised by the Complainant it commenced an investigation on 3rd March 2017. The HR manager met with the Complainant on 3rd March 2017, and interviewers also took place that day with the Supervisor against who she complained about, and other staff members. All contemporaneous notes of the interviews were submitted at the hearing within by the Respondent purporting to support the Respondent’s assertion that it dealt with the complaints properly and in an appropriate manner at the time.

The Respondent submitted that when it met with the Complainant on 3rd March 2017 to hear her complaint it had offered that the Complainant could work at an alternative location as a temporary measure until the investigation was completed.   The Respondent advised that the Complainant did not respond to the offer. Later that day the Complainant sent an email to the HR manager indicating that she was unwell and would not be in work for the week. The Respondent also maintained it had informed the Supervisor that he would be required to work at an alternative location for the duration of the investigation when the Complainant returned to work. As the Complainant did not return to work while the investigation was being conducted the Supervisor was not moved.

On 6th March 2017 the HR manager sent an email to the Complainant stating her complaint was a number one priority, that it was being dealt with, and where the Respondent would endeavour to resolve the issue as promptly as possible. The email also reiterated the option of moving the Complainant to an alternative store as a temporary measure to remove her from the stressful situation whilst the investigation was ongoing. It maintained in its email that the suggested move was not deemed to be a long-term solution or punishment. The Respondent submitted in its evidence a copy of the email that was sent to the Complainant. The Respondent further advised that on 6th March 2017 the Complainant presented a medical certificate stating she was unfit to work until 3rd April 2017. Subsequent medical certificates followed, and the Complainant remained absent from work until 26th June 2017.

The Respondent acknowledged that comments were made by the Supervisor to the Complainant about her being a big box and a snack box. The Respondent maintained it understood that these comments were made in a friendly manner between the parties and where there was no sexual element to the comments. In support of this position, the Respondent submitted that the Complainant had sent the Supervisor a birthday card with reference to big box and that these comments were banter made between colleagues with references to each other, and there was no sense at the time that the comments were of a sexual nature.

The Respondent maintained that when it received the complaint by email from the Complainant on 2nd March 2016 it immediately acted on the complaint by conducting a fact-finding procedure. The Respondent advised that the Complainant went out sick and did not engage with them in the fact-finding procedure, although opportunities to meet with the Complainant were provided. The Respondent advised that following receipt of sick certs from the Complainant for the period 3rd April to 1st May 2015 it wrote to the Complainant on 11th April 2017 and sent a copy of the letter by email on 12th April 2017. The Respondent submitted that it also attempted to contact the Complainant by telephone, but the Complainant did not respond to these messages. In its written correspondence of 11th April 2017, the Respondent advised the Complainant that it wanted to meet with the Complainant to discuss the matters that were causing her stress and provided the Complainant with five appointment options during April 2017 in order to facilitate her return to work. The Complainant did not make herself available for any of the dates suggested, and on 25th April 2017 it received an email from the Complainant’s solicitor that maintained the Complainant had raised a complaint about repeated and severe sexual harassment and of discrimination, and as no adequate response had been received by the Complainant that the Solicitor was submitting a complaint to the WRC.

On 4th May 2017 the Complainant emailed the Respondent apologising for her delay in responding to the Respondent’s email of 12th April 2017 and advising that she now wished to meet with the Respondent in order to resolve matters. A Director of the Company responded to the Respondent on 9th May 2017 (as the HR Manager had been on annual leave due to being married) and invited the Complainant to a meeting on 11th May 2017, and that the Complainant could be accompanied by a colleague, and that the Respondent delighted to help the Complainant and support her return to work. The Complainant replied advising that she would attend the meeting, would not be bringing a colleague but would be accompanied by her own independent person. The Complainant also advised that she viewed the meeting was to discuss her return to work and was not about the initial problem with her supervisor as she viewed that was a separate issue being dealt with separately.

In reply by email on 9th May 2017 the Respondent advised that the company policy stated that the Complainant can have a work colleague accompany her, and as the Complainant’s sister worked in the same organisation the Respondent would make arrangements to have her off roster to attend the meeting. The Respondent also advised the Complainant that it was not sure how it could facilitate not talking about the initial complaints as the Respondent wanted to ensure it did not reoccur on her return.

The Complainant did not attend the meeting planned for 11th May 2017 on the basis of her doctor’s advice. The Respondent wrote to the Complainant’s solicitor on 11th May 2017, and referring to the solicitor’s email of 25th April 2017 outlined the steps it had taken to address the complaints, including explaining to the Complainant the steps she could take as per the Policy and procedures, that it had commenced an investigation of matters and had attempted to engage the Complainant, and that it was continuing with its disciplinary investigation of the complaints.

The Respondent submitted that it subsequently progressed with its investigation. It advised the investigation was completed on 30th May 2017. The investigation report concluded that both the Complainant and her Supervisor would have referred to each other as a big box or a snack box and these comments related to the Complainant’s past employment in another organisation. The Investigation observed that both the Complainant and the Supervisor would have text and Facebooked each other using these terms, and that the Complainant had sent the Supervisor a birthday card on 4th January 2017 addressing him as a big box.

It is noted that the Respondent’s investigation noted that the Complainant did not produce any witnesses to the alleged comments that her “ar** looked like a lorry”; and that the investigation noted there was no record of a customer complaint regarding the alleged comments made by the Supervisor, or that nothing was noted in the diary regarding the alleged comments. It is also noted that on the roster for the day it was recorded by the Supervisor that a customer would have made complaints about not being provided with food and the customer called the Supervisor a “pr***” as a result of this and that the comments were not due to his alleged remarks regarding the Complainant’s uniform. The Respondent’s investigation also concluded that no evidence supported the allegations that the Supervisor had made remarks regarding Benburb Street being where prostitutes are found. Furthermore, the investigation report also noted there was a conflict of evidence relating to the customer complaint regarding the Supervisor’s comment about the Complainant’s uniform.

The Respondent’s investigation concluded that the Complainant had been upset; that name-calling had been going on between the parties since January 2017, however both parties were involved in this. The investigation had recommended a final written warning for the Supervisor, that he should be scheduled for retraining, and he was to agree to mediation between himself and the Complainant.

The Respondent therefore maintained that it took all reasonable attempts to address the issues, and significant steps were taken including a disciplinary sanction against the Supervisor for the inappropriate comments where the Supervisor was found to be in breach of the company’s non-fraternity policy, and he received a final written warning for engaging in the two-way banter.

The Respondent submitted that the Complainant returned to work in mid July 2017 at which time the Supervisor had been moved to another location. It denied that the Complainant’s new manager behaved inappropriately or in a non-supportive way towards the Complainant when she returned. The Respondent contended that it was supportive of the Complainant during her absence and that it was the Complainant who did not comply with the procedures when the Respondent was seeking to deal with the complaints she had raised.

Based on the above submission the Respondent contended that the WRC complaint was lodged prematurely, and that it was disingenuous for the Complainant to ascertain that when she had complained to senior management the response was to offer her work in a different restaurant which they knew she could not do. The Respondent also maintained that the Complainant’s solicitor’s assertion that no adequate response had been received entirely misrepresented the position. It advised the complaint was submitted on 2nd March 2017 and received an immediate response where a fact-finding investigation commenced immediately on 3rd March 2017. The Respondent submitted it has behaved speedily, diligently, and in the Complainant’s best interest to deal with the complaint. It contended that any delays in progressing the matter were due to the Complainant’s non-availability or non-co-operation with its procedures.

Legal Argument

The Respondent submitted that section 85A of the Employment Equality Acts set out the burden of proof necessary for 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. The Respondent therefore submitted that the Complainant is required to establish, in the first instance, a prima facia case of discrimination, that is, facts from which it can be established that she was sexually harassed and discriminated against on the gender ground. The Respondent submitted that it is only when the Complainant has discharged this burden that the burden shifts to the Respondent to rebut the prim facia case of discrimination raised.

The Respondent maintained that it has many policies to ensure the organisation is free from harassment, sexual harassment, and bullying. These policies include training at induction level and where it takes its responsibility in this area quite seriously. It maintained it has comprehensive approach to its policy development and were all staff, including the Supervisor, are provided with the required training. It also has policies and procedures to deal with issues arising under the Employment Equality Acts, including examples of harassment and sexual harassment; that respect in the workplace is of great importance to the Respondents and is a key performance indicator that is highlighted in all performance reviews, including requiring an employee to treat team members with respect regardless of gender and the other equality grounds. The Complainant maintained that it has also distributed the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 to its managers.

The Respondent submitted that in the case of Nailzone Ltd and A Worker (IE DA 1023) the Labour Court considered 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 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… The Respondent submitted that the Complainant could not meet the statutory test aforesaid in that the Complainant has not identified whether the alleged conduct complained of constitute harassment or sexual harassment. The Respondent further submitted that it was clear that following an extensive investigation, which included interviews with witnesses nominated by the Complainant, the Respondent did not find any evidence to corroborate the Complainant’s allegations at all, with the exception of the use of the terms big box and snack box which had been made by both the Complainant and her Supervisor.

The Respondent submitted that it relies upon the case of Arturs Valpeters V Melbury Developments Ltd EDA 0917[2010] 21 E.L.R in which the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows: section 85 A of the Act provides for the allocation of the probate of burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts and credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions that evidential rule. The Respondent submitted that the Complainant’s allegations, with the exception of the aforesaid, have not been established as facts and credible evidence, and fall within the category of mere speculation or assertions unsupported by evidence. The complaint therefore cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

In relation to the use of the terms big box, snack box, family box as being inappropriate on behalf of the Supervisor, the Respondent submitted that this conduct did not fall within the statutory meaning of harassment or sexual harassment given the mutuality of use of the terms which were also instigated by the Complainant as demonstrated in particular by the birthday card sent by her to the Supervisor.

The Respondent also relied on the case of A Female Employee and a Café Owner (DEC-E 2016-029) in which the Equality Officer found the Complainant acquiesced with the conduct complained of, and in that respect, her behaviour was entirely inconsistent with a complaint that she was harassed and/or sexually harassed by the Respondent. Aside from partaking in the general banter and gossip in the workplace, the Complainant admitted to dancing with the Respondent at the Christmas party and having her photo taken by his wife with her wrapped around his shoulders is produced at the hearing. This is not the behaviour that one would expect from someone who was being harassed and/or sexually harassed.

The Respondent further submitted that it relied on Section 14 and 15 of the Employment Equality Acts, and in particular section 14A (2) which states if harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practical-(a) in a case for subsection (1)(a) applies (whether or not subsection (1) (b) also applies), to prevent the person from harassing or sexually harassing the victim of any class of persons which includes the victim, and (b) in a case for subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victims employment and, if and so far as any such treatment has occurred, to reverse its effects. Referring to section 15(3) of the Act, the Respondent submitted that in proceedings brought under the Act against an employer in respect of an act alleged to have been done by an employee of the employer, it should be a defence for the employer to prove that the employer took such steps as are reasonably practical to prevent the employee-(a) from doing that act, or (b) from doing in the course of his or her employment acts of that description.

The Respondent therefore stated that whilst it denied harassment or sexual harassment had taken place, it submitted that it took all such steps as are reasonably practical to prevent such acts, and where these steps have been outlined above.

The Respondent also submitted that relies on the Employment Equality Act Code of Practice (Harassment) Order 2012 in that employers who take the steps set out in the code to prevent sexual harassment or harassment, to reverse the effects of it and prevent its recurrence, may avoid liability for such acts in any legal proceedings brought against them.

The Respondent asserted that it was a very reasonable and proactive employer and has at all-times supported the Complainant beyond the normal requirements of an employer, including facilitating the Complainant with an additional period of long-term sick leave for personal reasons from September to December 2017, despite the Complainant’s failure to comply with its absence policy. The Respondent advised that the Complainant had now returned to work following that period of absence and is very happy with her employment as she indicated in her performance review of 23 February 2018 where she asserted a number of times that she was very happy with everything that there were no problems and that she was very happy and had a positive performance review.

Summary of Respondent’s Case:

The Complainant did not accept the Respondent’s evidence.

The Complainant maintained that the various comments she had alleged were made by the Supervisor and that the Supervisor had been overheard by a customer making comments on the Complainant’s uniform, and that this customer would have raised the Complainant to the Complainant’s sister (who also worked in the store at the time) in the bathroom. This occurred because the customer would not talk to the Supervisor about what she had heard.

The Complainant maintained that the Respondent’s initial approach to move her to a new location was not a reasonable response to her complaints. She advised there was no policy document to assist her deal with her complaints, but that she made a complaint as best she could. She also advised there was no guidance given to her and she was not told of the protocol on how the case was to be handled. She also maintained there was no investigation of her concerns, and that the first she had seen of the Investigation was provided to her at the hearing within.

The Complainant further maintained that after correspondence with the Respondent in May 2017 she received no further letters, nor was she advised that the investigation had been closed. She said when she returned in July 2017 she was never provided with a draft of the final investigation report, and the first time she would have seen the report was at the hearing within. The Complainant advised that she returned to work when she was told the Supervisor was moved to different store; however, she maintained that she received no notification of the result of any investigation or disciplinary action taken against her Supervisor.

She advised that the comments made by the Supervisor about her had saddened her, she had lost 5 ½ stone, and where it was suggested that she could resolve matters in mediation with the supervisor was not a reasonable response.

The Complainant viewed the Supervisor’s behaviour as being one of gross misconduct but there was no reasonable action taken against him.

The Complainant submitted that she had been absent from work for approximately 20 weeks where she had been unpaid, with an estimated loss of earnings of €7,500. She submitted that when she returned to work she was subject to further bullying and rude treatment by a female supervisor that she was required to report to. The Complainant maintained that this new supervisor had been friendly with the Supervisor and she was not treated fairly by the new supervisor. The Complainant advised that she again made a complaint in August 2017 about this treatment to the Store Manager but that this treatment and harassment continued.

The Complainant submitted that she initially would have had a good interaction with the Supervisor, but matters turned to comments of a sexual nature and these occurred during her probationary period where she tried to deal with them. The Complainant did acknowledge that there would have been banter between herself and her Supervisor, and initially this banter did not bother her at the time. She contended that it was only when other male staff got involved, and when she was the only girl in a closed shift, that she found the comments unwelcoming. She advised that she did not raise these concerns on 3rd March 2017 with her complaint as she did not want to talk about them at the time, and that she could not remember why she did not make the complaints known to the Respondent until it was contained in a letter from her solicitor in April 2017.

The Complainant maintained that whilst the facts are in dispute, her version did make sense and that the allegations she has made had happened. She was of a tender age, and the comments and behaviours had a psychological effect on her. She advised that as time passed she no longer wanted to take the banter and behaviour from her Supervisor. She advised that the comments about how she looked in her new uniform alone constituted sexual harassment, that the comment was made, and it was up to the employer to provide a defence.

She maintained that she was subject to a pattern of abuse but the employer attempts to deal with the matter falls short of their obligations. The Complainant contended that the Respondent’s communications with her were not sufficient and as she was out sick she could not attend the meetings, and she felt she could not participate in the investigation.

She maintained that the employer was in breach of a SI 208/2012 was not provided with any set timeframes regarding the conduct of the Investigation or about how the investigation was going to be conducted, and she did not receive information on or copies of the Report of the investigation,.

Findings and Conclusions:

The Complainant has alleged that she was sexually harassed and discriminated against at work in the manner that her Supervisor behaved towards her, and that her employer failed to deal with her complaint in a reasonable manner. As a consequence, the Complainant maintained that she remained out of work for some 20 weeks and suffered a loss of earnings. She also maintained that upon her return to work she was subject to further harassment from a new supervisor.

The Employment Equality Act 1998 as amended, defines under S6 that discrimination shall be taken to occur when a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in the Act referred to as ‘discriminatory grounds’). With reference to the case within, the discriminatory groundis where one is a woman and the other is a man(in this Act referred to as “thegender ground”).

In addition, Section 8(1)(b) of the Act, an employer shall not discriminate in relation to conditions of employment. Sexual harassment is a form of discrimination on the gender ground in relation to conditions of employment.

The Complainant has maintained that the treatment she received from her Supervisor amounted to sexual harassment, and the manner of the handling of her complaint by her employer fell short of what was required which added to the severity and impact of the discrimination she experienced.

With regard to the complaint of sexual harassment, Section 14A refers to harassment as follows:

14A (1) For the purposes of this Act, where—

• an employee (in this section referred to as ‘The victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘The workplace’) or otherwise in the course of his or her employment by a person who is—

• employed at that place or by the same employer,

• the victim’s employer, or

• a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

• without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

• the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

• it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

Furthermore, Section 14A (7) of the Act states

• In this section—

• references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

• 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.

Section 14A(2) of the Act states if harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practical-(a) in a case for subsection (1)(a) applies (whether or not subsection (1) (b) also applies), to prevent the person from harassing or sexually harassing the victim of any class of persons which includes the victim, and (b) in a case for subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victims employment and, if and so far as any such treatment has occurred, to reverse its effects.

In order to rely on this defence employers must show that they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also an accessible effective complaints procedure. The measures taken to put the policies and procedures into practice should also be considered, and employers will not be able to rely on an excellent policy if it has not been effectively implemented. The core elements of a policy and complaints procedure are outlined in Parts (4) and (5) SI 208 of 2012.

Section 15(1) of the Act, states that Anything done by a person in the course of his or her employment shall,in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

Section 15(3) of the Act States In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from during the course of his or her employment acts of that description.

SI 208 of 2012 Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 sets out a Code of Practice on Sexual Harassment and Harassment at Work. This code of practice is issued as a guideline for employers and employees. The provisions of the code are admissible in evidence in proceedings before an Adjudication Hearing of the WRC. The Code sets out that it is essential that employers have in place accessible and effective policies and procedures to deal with sexual harassment and harassment. The Code identifies that Sexual Harassment, inter alia, can include:

• Verbal conduct of a sexual nature — This includes unwelcome…unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments.
•  
• Gender-based conduct — This includes conduct that denigrates or ridicules or is intimidatory or physically abusive of an employee because of his or her sex such as derogatory or degrading abuse or insults which are gender-related.

The Code further states that to constitute sexual harassment or harassment the behaviour complained of must firstly be unwelcome. It is up to each employee to decide (a) what behaviour is unwelcome, irrespective of the attitude of others to the matter and (b) from whom, if anybody, such behaviour is welcome or unwelcome, irrespective of the attitudes of others to the matter. The fact that an individual has previously agreed to the behaviour does not stop him/her from deciding that it has become unwelcome. It is the unwanted nature of the conduct which distinguishes sexual harassment and harassment from behaviour which is welcome and mutual.

In addition, to constitute sexual harassment under the Employment Equality Act the behaviour must have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The intention of the perpetrator of the sexual harassment or harassment is irrelevant. The fact that the perpetrator has no intention of sexually harassing or harassing the employee is no defence. The effect of the behaviour on the employee is what is relevant.

Part 4 of SI 208/2012 states that Employers should adopt, implement, and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment. It also advises that the policy should state that management and others in positions of authority have a responsibility to ensure that sexual harassment …does not occur and that complaints are addressed speedily. The policy should state that in particular management will: …

• respond sensitively to an employee who makes a complaint of harassment

• explain the procedures to be followed if a complaint of sexual harassment or harassment is made

• ensure that an alleged perpetrator is treated fairly

• ensure that an employee making a complaint is not victimised for doing so

• monitor and follow up the situation after a complaint is made so that sexual harassment or harassment does not recur.

The Code of Practice further advises:

• the policy should include a commitment to effective communication. It should be communicated effectively to all those potentially affected by it... Employees, including those in management and all other positions of responsibility, should be made aware of the policy as part of any formal induction process whereby new employees become familiar with their job and their working environment and rules and regulations that apply such as health and safety.

• employers should consider a staff handbook where practicable to be distributed to all employees as part of the induction process.

• the policy should include commitments to training staff on issues of sexual harassment and harassment.

• regarding the complaints procedure, the Code of Practice suggests the policy should set out a complaints procedure. It is essential for employers to attach to their policy a detailed complaints procedure that will be available to employees… The procedure should ensure the resolution of problems in an effective and timely manner. Practical guidance for employees on how to deal with sexual harassment and harassment will make it more likely that these problems will be dealt with at an early stage.

• time limits should be set for every stage of the investigation.

• the procedure should provide for a competent named person to be available to assist in the resolution of any problems through informal means and to provide information … on the procedure and on the policy in general.

• the complaints procedure should provide that employees should attempt to resolve the problem informally in the first instance...The informal process could provide for mediation.

• •  
  • in implementing the formal procedure, to ensure procedural fairness both the Complainant and alleged perpetrator should be informed of the following:
  • what the formal procedure entails and the relevant time frame
  • that both parties have the right to be accompanied and/or represented, by a representative, trade union representative, a friend or colleague
  • that the complaint should be in writing and that the alleged perpetrator will be given full details in writing of the nature of the complaint including written statements and any other documentation or evidence including witness statements, interview notes or records of meetings held with the witnesses
  • • •  
  • that the alleged perpetrator will be given time to consider the documentation and an opportunity to respond
  • • •  
  • that confidentiality will be maintained throughout any investigation to the greatest extent consistent with the requirements of a fair investigation
  • • •  
  • that a written record will be kept of all meetings and investigations
  • •  

• that the investigation, having considered all of the evidence before it and the representations made to it, will produce a written report to both parties outlining its findings and the reasons for its final decision.

• it is the responsibility of the employer to provide for proper notifications regarding the investigation process and for a fair determination of the complaint. What is required in any particular instance will depend on the circumstances and/or complexity of the case and may require the adaptation of the procedures.

The Respondent submitted that it relies on the Employment Equality Act (Code of Practice) (Harassment) Order 2012 in that employers who take the steps set out in the code to prevent sexual harassment or harassment, to reverse the effects of it and prevent its recurrence, may avoid liability for such acts in any legal proceedings brought against them.

Considering the above, and having reviewed both the written and aural evidence provided during the hearing, I find that the complaints raised by the Complainant against her Supervisor, if they were to be upheld, would amount sexual harassment as defined in the Act. Whilst the Complainant may have engaged in banter with her supervisor, it appears that she found this banter to be unwelcome and believed the issues had culminated to sexual harassment from early 2017 and up to comments being made to her about her uniform just before she lodged a complaint to the respondent on 2nd March 2017.

Once such complaints are raised the Respondent has obligations to deal with the complaints in accordance with the guidelines set out in SI 208/2012. In addition, once the Respondent has complied with Sections 14A and 15 of the Act (in that it has implemented comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also an accessible effective complaints procedures; and it took such steps as were reasonably practicable to prevent its employees from engaging in acts of sexual harassment) then it can rely on such actions as a defence against a complaint of sexual harassment or discrimination.

Dealing with Section 14A of the Act, whilst I am impressed with the evidence of the Complainant that she experienced unwelcome verbal conduct of a sexual nature form her Supervisor, I am satisfied that the Respondent has included in the staff handbook a definition of sexual harassment, and outlines a procedure to be taken if an employee believes they are a victim of sexual harassment. The procedures include a formal process where a Complainant is required to make a complaint in writing to their reporting manager, and where the Respondent will conduct an investigation by a member of management or an independent adviser. The policy also states that a timetable would be set for the investigation, interviews will be held with Complainant, alleged perpetrator, and any relevant witness. I, therefore, find the Respondent’s policy and procedure are in accordance with the guidelines set out in SI 208/2012. Mediation is also set out as an option to resolve matters. On that basis I do not find the suggestion of mediation as being unreasonable or an act of discrimination against the Complainant.

Notwithstanding, the Complainant did not opt for an informal resolution of the matters of concern, and was within her rights to seek that her complaints were progressed formally. On that basis the evidence supports that the Respondent did conduct an investigation of the complaints, and this Investigation commenced on 3rd March 2017. However, I find that the Respondent did not adhere to its procedures in conducting the investigation in that it failed to set timelines for the conduct of the investigation and did not provide a copy of the outcome of the investigation in writing when it competed same at the end of May 2017.

Under such circumstances I find on the one hand it was reasonable for the Complainant to have had the view that since making her complaint the Respondent was not dealing with her complaint reasonably as she did not receive either timelines for the investigation nor a written report of the outcome of the investigation. On the other hand, I am satisfied that the Respondent did engage with the Complainant, met with her on 3rd March 2017 to hear a complaint, conducted an investigation of the complaint, maintained contemporaneous notes of meetings with the various witnesses, and attempted on numerous occasions during April and May to meet with the Complainant to address her concerns.

I am also satisfied that the Complainant raised her complaint to the Workplace Relations Commission prior to the internal procedures being exhausted, and before the Respondent was provided with an opportunity to address the concerns through its internal procedures. Notwithstanding the Respondent did complete an investigation after advising the Complainant that it was conducting an investigation and disciplinary process in its correspondence to her in April and May 2017. On completion of that process the Respondent upheld one of the complaints against the Supervisor.

I am also satisfied that the evidence provided at the hearing supported that the Complainant and Respondent would have engaged in exchanging texts and a birthday card with reference to family box and big box, and where these allegations were upheld against the Supervisor during the Respondent’s internal investigation. The Respondent has also provided explanations in the investigation report as to why the other complaints were not upheld. The outcome of the investigation led to the Supervisor being subject to a disciplinary sanction that amounted to a final written warning, and where the Supervisor was relocated to a different outlet when the Complainant eventually returned to work.

With regard to section 15 of the Act, I am satisfied that the Respondent not only has a detailed policy and procedure regarding the prevention of sexual harassment, which is in line with the guidelines set out in SI 208/2012, but that it also took reasonable steps to ensure the Supervisor was aware of his responsibilities regarding sexual harassment. In this regard the Respondent has a suite of training material relating to respect and dignity at work, and where the Supervisor would have participated in such training.

I am therefore satisfied that whilst the Complainant maintains she was subject to various acts of sexual harassment, that the Respondent investigated such matters and has dealt with them in a reasonable fashion, albeit it did not comply strictly to its own procedures, and it is this lack of compliance which in the early stages has contributed to the Complainant’s concerns with regard to how her complaint were being handled. However, once her solicitor wrote to the Respondent I am satisfied the Complainant was advised that an investigation was in process, but the Complainant did not seek any further update of that process prior to or after submitting her complaint to the WRC.    

With regard to the complaint that the Complainant experienced further discrimination since her return in June 2017, this complaint was made after the submission to the WRC and it is further noted that since the Complainant has returned to work she has confirmed to the Respondent in a performance review conducted on 23rd February 2018 that she is very happy with everything, and where her reporting manager advised she could see no reason why the Complainant could not apply for a promotion should a position be available.

Based on the aforementioned I do not find the Respondent was in breach of its obligations under the Employment Equality Acts, and I do not uphold the complaint that the Respondent has behaved unreasonably with regard to the handling of the Complainant, or that it has discriminated against the Complainant in its handling of her complaints.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

As I have not found that the Respondent is in breach of the obligations under Sections 6 of 8 of the Act, and that it has met its obligations under Section 14A and 15 as relevant, I do not uphold the complaint. I therefore decide that the complaint fails.

Considering the findings regarding the failure of the Respondent to provide a timeline for its investigation, and its failure to provide the Complainant with a written copy of the outcome of its investigation, in accordance with S84 (1)(e) of the Act, I order the Respondent to adhere to those elements of its procedures in and future investigation it conducts.

Dated:   16/10/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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