Complainant

Respondent

Anonymised Parties

Deli Assistant

Supermarket

Representatives

Ronan Kennedy, Solicitor

Mary O'Brien Williams

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027498-001

03/04/2019

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

CA-00027498-002

03/04/2019

The Complainant was employed by the Respondent from 15th May 2018 to 25th January 2019.             The complaint relates to discrimination on the gender ground, victimisation, harassment and sexual harassment. The complaint was received by the Workplace Relations Commission on 3rd April 2019.       I have decided, given the sensitive nature of the complaint, to use my discretion and anonymise the parties in this decision.  

The Complainant was working in the Respondent’s Deli Area where, it is alleged, not long after she commenced working there, a co-worker (Mr O) sexually harassed her. It is alleged that the verbal and physical sexual harassment began approximately one month after the Complainant commenced employment.

The Complainant gave evidence that Mr O physically assaulted her by pinching her, by trying to kiss her and at once point kissed her on the neck against her will. She stated that Mr O made inappropriate sexual comments about young girls who came into the shop and when asked to stop as they were clearly young school girls, stated that they looked old enough. The Complainant gave evidence of incidents where she felt personally threatened when for example, Mr O pinned her against or near a fridge and made lewd and sexually suggestive comments to her.                                She stated that a manager Mr R witnessed some of the behaviour of Mr O, and when asked to intervene laughed and told Mr O to stop as the Complainant was from Limerick and she would stab him. The Complainant stated that she was subjected to almost daily sexual assault / harassment. When a co-worker was assaulted by Mr O, in the apparent mistaken belief on his part that it was the Complainant, the Complainant made a formal complaint to the manager Mr R, who referred it to the owner of the shop. Mr R assured the Complainant that her complaint to him would be kept confidential, however, it then transpired that the alleged perpetrator Mr O’s sister who also worked in the store was made aware of the situation. It is alleged that the breach of confidentiality and the subsequent treatment meted out by the sister to the Complainant constituted penalisation for having made the complaint. It is submitted that in the immediate period following her complaint, the Complainant alleges that the alleged perpetrator’s sister made things very difficult including placing a bucket of oil in a position where it would be spilled and the Complainant would have to clean it up. The Complainant was told that the Owner Mr B would investigate her complaint and that he would get back to her within the week. This was in November 2018. She was given terms of reference to sign and signed on 1st December 2018. The Complainant was told by the owner that it would be a hard process, and she felt he was trying to dissuade her from making her complaint. He told her not to tell anyone about the situation, not even her partner. The alleged perpetrator was moved to the Storeroom after a few days, and the Complainant was then told he had gone out on sick leave. She was not informed of anything that had happened with her complaint and she was then left with no option but to resign her employment.   She could not continue to work there and she handed in her notice on 18th January 2019.

It is submitted that the harassment suffered by the Complainant is sexual harassment within the meaning of Section 14 A (1) of the Employment Equality Act and that this is a form of discrimination on the gender ground in relation to conditions of employment. It is further contended that the Complainant has been victimised pursuant to Section 74 (2) of the Act in the manner in which her complaint was dealt with.   The behaviour complained of clearly contravenes the definition and examples of sexual harassment as set out in the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012, SI208/2012. The behaviour was unwelcome in that the Complainant did not wish these comments or actions to be taken. The behaviour was a violation of dignity in that it created an intimidating, hostile, degrading, humiliating and offensive environment for the Complainant.   It is submitted that the Respondent took no or no reasonably practical steps to prevent the Complainant from being harassed or to prevent the Complainant from being treated differently in the workplace and/or to reverse any such effects. It is submitted that the Respondent failed to have any or any comprehensive, accessible and effective policies that focus on prevention, best practice and remedial action. It is submitted that the Respondent failed to have an accessible effective complaints procedure and that any procedure that was there was not put into practice.           At no time was the Complainant advised what the formal procedure entails and what was the relevant timeframe. No written report was made considering representations made by either the Complainant or the perpetrator. No decision was given to the Complainant as to whether the complaint had been upheld.   The Complainant relies on a number of decisions in support of her case, inter alia ADJ-13554 A Catering Assistant v A Facilities Company, ADJ-8084 A Technical SupportAgent v A Contact Centre Company, DEC-E2015-079 Ms C v A Multi National Grocery Retailer.

The Complainant was employed as a Deli Assistant since 15th May 2018. On 9th November 2018, an incident was brought to the attention of Mr M the Manager, whereby a verbal complaint was made by another staff member Ms X, that a fellow employee, Mr O had touched her inappropriately. Following this on the same date, the Complainant also brought forward a verbal complaint to Mr M, who in turn, then informed the Store Owner (Mr B) of both complaints.

Mr M (the Manager)’s evidence was that he was in the employment for 15 years. He was Chargehand in the Deli when the Complainant made her complaint to him. He had witnessed the Complainant and Mr O “messing around and laughing” and he did admit to telling Mr O to stop as the Complainant was from Limerick and she would stab him. However, he considered this a joke and did not think the Complainant was upset about this. He was shocked when both the Complainant and another female employee came to him complaining that Mr O had inappropriately touched them. He went immediately to the owner Mr B who took over the investigation from there. Mr M stated in evidence that this was the first incident of its type in the shop. He stated that there is a laminated version of the company’s policy on bullying and harassment and sexual harassment on the wall of the canteen. He stated that up to then there had been no training for managers or staff on these issues.   Mr M denied that anyone else was present when the Complainant spoke to him, and that he did not discuss the matter with Mr O’s sister.

Mr B, the owner gave evidence that he had taken over the shop in May 2018.   On 10th November 2018, Mr B met with Mr O who denied the allegations made against him. Mr B put it to him that the allegations were very serious and that he would be looking into this further and would require a meeting with him again once he had more information. A week later, while on annual leave, the Complainant came into the shop and spoke to Mr B advising him of her complaint and stating that she wanted to make a full written statement. She was given the space to do so, and duly completed the statement and provided it to Mr B. Mr B denies saying to the Complainant “don’t tell your partner about this”. The other employee also formalised her complaint against Mr O of alleged inappropriate behaviour. Mr B then met with Mr O on 19th November 2018 with regard to both formal complaints and when Mr O denied them he was advised that the matter would be investigated further given that both parties had invoked the formal grievance procedure. On foot of the investigation Mr B relocated Mr O to another area of the shop and he was placed on a different shift. A proposed terms of reference was drafted and sent to the parties, requesting a response by 26th November 2018. The Complainant signed and returned the terms of reference. Mr O did not and he subsequently went on sick leave for a period before ceasing contact with the company. It is believed he returned to his home country.   The terms of reference had not been signed off by all the parties, and the investigation could not progress any further    The company take matters of this nature very seriously and acted immediately once the matter was brought to its attention and an investigation was immediately commenced. Mr O who was the subject of the Complainant’s complaint left the company unexpectedly and the Respondent could not conclude its investigation.   The Complainant worked on until 25th January 2019 and did not seek any update on the investigation or process during that time or raise any grievance. It is submitted that she left the company of her own accord for another job and gave no indication of dissatisfaction during her resignation meeting with Mr B. At that point, Mr O was technically still in the employment, and could have returned from sick leave to contradict the evidence against him. Therefore the investigation could not be concluded.

It is strongly refuted that the Complainant was discriminated against during her employment or penalised as a result of making a complaint. The Labour Court and WRC have consistently held 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. It is submitted that the Complainant has not established a prima facie case under any of the grounds. Case law cited : ADJ-7944 A Factory Operative v A Food Manufacturer.

CA-00027498-001

The issues for decision in this case are:

(1) Whether the Complainant was subject to sexual harassment and harassment pursuant to Section 14A of the Acts.

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

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

Burden of Proof

Section 85A of the Employment Equality Act sets out the burden of proof which applies in a claim of discrimination:

“85A. – (1)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 her or her, it is for the Respondent to prove the contrary.”

This section provides for the allocation of the probative burden which requires that the Complainant must first establish facts from which discrimination may be inferred. It is only when a prima facie case has been established that the burden of proof that there was no infringement of the principle of equal treatment passes to the Respondent.  

Harassment and Sexual Harassment

Section 14A of the Act provides:

“14A.-(1) For the purposes of this Act, where –

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

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

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

or

(b) without prejudice to the generality of paragraph (a) –

(i) such harassment has occurred, and

(ii) either –

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

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.”

In considering whether the Complainant was subjected to harassment and sexual harassment pursuant to Section 14A of the Acts, and whether this constitutes discrimination in relation to her conditions of employment, 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 (a) is in the affirmative, did the Respondent take reasonable action to prevent the harassment and sexual harassment occurring in the workplace, such as to enable it to rely on Section 14A (2) of the Acts which provides:

“(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable –

(a)in a case where subsection (1) (a) applies (whether or not subsection (1) (b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b)in a case where subsection (1) (b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects”.

Section 14A (7) (a) (ii) of the Act defines sexual harassment as follows:

(ii) 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”.

The Complainant gave cogent evidence that she was subjected to sexual harassment from her colleague Mr O in the workplace on an ongoing basis during the period from in or around June 2018 to November 2018. I have considered her evidence regarding the nature of the incidents of harassment and sexual harassment which the Complainant claims she was subjected to by Mr O during the period in question. The evidence of the Complainant clearly showed that the inappropriate touching and physical contact and comments of a sexually explicit and suggestive nature visited upon her by Mr O had the effect of violating her dignity and creating an intimidating and degrading environment for her. The Respondent was not in a position to dispute the actual occurrences of the alleged incidents of harassment and sexual harassment as it did not carry out a full and complete investigation. This will be considered again when I look at the question did the Respondent take reasonable action to prevent the harassment and sexual harassment occurring in the workplace, such as to enable it to rely on Section 14A (2) of the Acts. Mr O did not attend the hearing to give evidence and therefore the Complainant’s evidence in relation to the alleged incidents was uncontested. I have found the Complainant’s evidence to be very credible and on balance, I am satisfied that all of the incidents of harassment and sexual harassment as alleged by her did occur. Furthermore, I am satisfied that these incidents were extremely serious in nature in terms of the impact and affect they had on her personally and her working environment. 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 occurring in the workplace and in circumstances where such harassment has occurred it took action to reverse its effect. There are then essentially two components to this defence. The first is that the employer took such steps as are reasonably practicable to prevent sexual harassment and harassment occurring in the workplace, and the second component is that where such harassment has occurred the employer took action to reverse its effect. The Labour Court has 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 this instant case, I note that the Respondent has an Employee Handbook containing policies on Bullying, Harassment and Sexual Harassment. The Complainant agreed that she was given a Handbook (albeit not “the glossy one” produced in evidence at the hearing). I also accept the evidence of Mr M that a laminated version of the Respondent’s policies are pinned up in the canteen.   However, I also note the evidence in the hearing that at the time of the Complainant’s complaints, no training or information sessions on harassment or sexual harassment had been provided for managers or staff. There was some indication at the hearing that “HR were now dealing with this”.   I find that while the Respondent has comprehensive and clear policies on harassment and sexual harassment I cannot reasonably conclude that that this policy was effectively communicated by the Respondent to managers, supervisors and staff members including Mr O.   In relation to the second component as to whether the employer took action to reverse the affect of the harassment and sexual harassment suffered by the Complainant, I note that following the submission of a formal complaint by the Complainant, the Respondent commenced a formal investigation, with terms of reference.   Mr O did not sign the terms of reference, and went on sick leave thus effectively taking no further part in the investigation of his alleged conduct. In considering the evidence, I find that there were some major flaws in the Respondent’s handling of the Complainant’s complaints and the subsequent investigation including the following which is not exhaustive:

(a) There was no “contact person” assigned to provide support for the Complainant. This is in direct contravention of the commitment given by the Respondent on page 41 of the Employee Handbook under the heading “Procedures” which states:

“In support of this procedure, our Store has appointed individuals as contact persons to provide support to employees who may feel that they are victims of Bullying, Harassment or Sexual Harassment..”

(b) The terms of reference for the investigation includes the following:

“If at any stage either party ceases or refuses to contribute or cooperate, the investigator will note the non-cooperation. Using the evidence already available, the investigation will continue and a decision will be made on the alleged incident(s).”

The fact that the Respondent failed to conclude its investigation and make a decision is the most egregious flaw in the process. The Respondent in evidence, was keen to point out the natural justice afforded to the alleged perpetrator Mr O but in the context of the above extract, did so at the expense of the Complainant and closure for her of this appalling experience.

As I have found above, I am satisfied that the Complainant was subjected to harassment and sexual harassment in the workplace by Mr O. Furthermore, I am satisfied that the Respondent failed to put appropriate measures in place to stop this harassment and sexual harassment from occurring or to reverse its effects. Having regard to the foregoing, I therefore find that this harassment and sexual harassment constitutes discrimination against the Complainant and the Complainant was subjected to discriminatory treatment on the grounds of gender in her employment.

CA-00027498-002

The issue to be decided in this element of the claim is whether the Complainant was victimised for having made a complaint of discrimination to the employer as set out in Section 74 of the Acts.

Section 74 (2) provides:

“(2) For the purposes of this Part 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..”

The Labour Court has set out three components which must be present for a claim of victimisation or penalisation to be made out. (Barrett v Department of Defence EDA1017) :

(i) the Complainant must have taken action of a type referred to as 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 this instant case, the Complainant complained primarily of victimisation by the sister of Mr O who worked alongside her and who, it was alleged subjected the Complainant to adverse treatment having learned, it was alleged by the Complainant, of her complaint against Mr O. The evidence adduced in the hearing from Mr M, the Manager was that he did not disclose the fact or content of the complaint to Mr O’s sister. Evidence from the Respondent indicated the likelihood of Mr O himself disclosing his situation and I find that this may, on balance have been the case. In the hearing, some evidence was given by the Complainant of having suffered adverse treatment in reaction to the complaint she made, such as Mr O’s sister placing a bucket of oil near her which involved a spill situation. The Complainant also stated that she was put on “close” duties towards the end of her employment with the Respondent. The evidence of Mr B was that there were no specific complaints about Mr O’s sister put by the Complainant to the Respondent, that he had no knowledge of the bucket of oil situation and that the Complainant was not placed on “close” duties deliberately in light of her complaints. Given the foregoing, I am satisfied from the evidence given that limb (i) of the test above was fulfilled but I can find no clear evidence of limbs (ii) and (iii). I therefore find on balance, that this element of the Complainant’s complaint, that she was victimised for having made a complaint does not succeed.

CA-00027498-002

In accordance with section 79 (6) of the Acts I have decided that the Complainant was not victimised for having made a complaint of sexual harassment and I do not find this element of her complaint succeeds.

Harassment, Sexual Harassment, Discrimination, Prima Facie.