EDA193

This is an appeal by Mr Pearse Brannigan (‘the Complainant’) against a decision of an Adjudication Officer (DEC-E2017-089, dated 20 December 2017) under the Employment Equality Act 1998 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 30 January 2018. The Court heard the appeal in Dublin on 31 May 2018 and 24 October 2018.

Claims

The Complainant was employed as a teacher by the then County Louth Vocational Education Committed (whose successor in title is the Louth and Meath Education and Training Board) from 1981 until his resignation on 31 August 2006. At that time the Complainant was employed in the Drogheda Institute of Further Education (‘DIFE’). The Complainant is a gay man. He alleges that he experienced discrimination on the sexual orientation ground contrary to section 6 of the Act on 10 December 2005, and sexual harassment, contrary to section 14A of the Act, on 10 March 2006.The Complainant’s Appeal Form refers to a third matter that he says occurred on an unspecified date in 2005 i.e. the alleged response he received from the Principal in response to his application for a B-Post of Responsibility. This matter does not appear to have been before the Adjudication Officer and therefore cannot be before this Court.

The Complainant referred his complaints under the Act to the then Equality Tribunal on 4 August 2006. Thereafter, the initial decision of the Equality Officer to whom the matter was assigned for investigation was the subject of judicial review proceedings in the High Court and on appeal to the Supreme Court following which the matter was remitted back to the Workplace Relations Commission for investigation and determination. The Adjudication Officer decided (i) the Respondent could avail itself of the defence in section 14A(2) of the Act in relation to the incident of 10 March 2006, and all other incidents referred to by the Complainant were out of time, in accordance with section 77(5).

Factual Matrix

The Complainant submits that on 16 December 2005 an allegation of racism was raised by a student against one of his colleagues, a Mr R. The Complainant was tasked with investigating the allegation and while attempting to do so was the subject of an attempted assault by Mr R. The Complainant alleges that management at DIFE delayed its investigation of the alleged attempted assault. He further complains that although he did subsequently receive an apology from Mr R, Mr R did not receive a disciplinary warning for his behaviour.

The principal incident that the Complainant refers to occurred on Friday, 10 March 2006. On that date, a colleague placed a half-peeled banana covered with a pink condom in a large white envelope in his post box in the staff room. The Complainant opened the envelope in the presence of two female colleagues and experienced humiliation and embarrassment.

The Complainant attended for work the following Monday, 13 March 2006. However, he left that day and commenced a period of extended sick leave. On 24 March 2006, the Complainant instructed his solicitors to write to the Respondent detailing his allegations of bullying and harassment. The Principal of DIFE replied to that letter on 6 April 2006 and referred the Complainant to the Respondent’s anti-bullying and grievance policies. The Complainant returned to work very briefly on 31 August 2006 to attend a staff meeting immediately prior to the commencement of the following academic year, 2006-07. He learned at that meeting that a number of alterations had been made to the timetable for the following year: his main subject -Media Analysis – had been cut by 50%, and his second subject - the Principles of Teaching – had been omitted entirely from the timetable. This discovery led to a heated discussion between the Complainant and the Principal following which the Complainant left his place of employment for good.

Complainant’s Evidence

The Complainant gave detailed evidence of his recollection of the events of 10 March and 13 March 2006. On Friday 10 March 2006, at approximately 10.00 a.m., he went to his cubby hole in the staff room to receive his mail. There were two (named) female colleagues standing nearby when he opened a large white envelope placed in his cubby hole and discovered it contained a half-peeled, ripe banana covered with a pink condom. His initial reaction was to let the incident go. However, his female colleagues were disgusted by the incident and encouraged him to report the matter to the Principal, Mr Eugene Winters, which he duly did. Having approached him, Mr Winters – he says – asked him ‘What do you want me to do about it? The Complainant’s evidence is that he replied, ‘Eugene, your wife is a member of staff. If this had happened to her would your reaction have been the same?’ According to the Complainant, Mr Winters replied, ‘I would like to think so.’ Mr Winters then undertook to speak to the staff at the 10.45 am break that day. However, as things transpired Mr Winters didn’t attend in the staff room that morning. In the Complainant’s own words, he agonised about his situation for the weekend.

The Complainant went to see the Principal again in his office on the following Monday morning to ask him why he hadn’t addressed the incident with staff at the morning break on the previous Friday as he had undertaken to do. The Principal replied that he had been waylaid. The Complainant said he didn’t know whether or not the Principal did in fact speak to staff on Monday the 13^th. He worked that day but went to see his GP the following day and remained out on sick leave until the end of the following August. It was his wish that the perpetrator be ‘identified and punished’.

The Complainant’s evidence was that he had not seen the bullying and harassment policy that the Respondent seeks to rely on in the within proceedings prior to the events complained of although he had been the (sole) elected recipient of bullying and harassment complaints in DIFE since September 2005. He first saw the document entitled Code of Practice for Dealing with Complaints of Bullying and Harassment in VEC Workplaces in August or September of 2006. In his belief, it was first circulated to staff in August 2006. In direct examination, the Complainant told the Court that the various steps provided for in the procedure contained in the dignity at work policy had not been outlined to him when he made his initial complaint to the Principal nor at any time thereafter. Neither was he informed in writing of the outcome of any investigation that may have taken place nor was he offered access to the services of a counsellor as provided for in the policy. He confirmed that neither his mobile phone number nor his address changed throughout 2006.

The Complainant raised the issue of the explanation which the perpetrator of the 10 March 2006 incident had offered for his behaviour: i.e. that the Complainant had been coming on to him in a sexual way. The Complainant told the Court that the first time he had become aware that the perpetrator had alleged this was when he read it in court documents some two to three years after the incident took place. The Complainant denied he had been flirting with the perpetrator. The Complainant went on to reiterate his concerns arising from the Respondent’s failure to notify him of the outcome of the disciplinary process involving the perpetrator and the warning that was imposed on him. He further complained that he had never seen any paperwork or ‘written evidence’ to confirm that the perpetrator had, in fact, received a written warning. He expressed his opinion that it wasn’t sufficient to investigate the perpetrator’s behaviour and that he should be present in the Court during the appeal hearing.

The Complainant told the Court that he felt ‘humiliated, angry and upset’ by the incident of 10 March 2006. He regarded it as ‘put-down with regard to his sexuality’ and ‘infantile and disgusting’.

Under cross-examination from Mr Mallon BL, the Complainant confirmed that he had been a member of the TUI and had been a shop steward for two years in the 1990s. He also confirmed that he had been elected as the contact person for bullying and harassment in his place of work and that his election had been pursuant to the process set out in the Respondent’s dignity at work policy. He expressly admitted that he read about the election process ‘somewhere’. Mr Mallon BL directed the Complainant and the Court to the first page of the copy of the policy document (dated April 2006) which was before the Court and noted the references there to the policy having national application and to its background and evolution all of which confirmed - in his submission - that the version of the policy before the Court was merely an update of the policy in place at the time the Complainant was elected as contact person and in accordance with which that election had taken place.

Also under cross-examination, the Complainant amended his earlier evidence and confirmed that he had, in fact, left the school on Monday afternoon once he had completed his work and had been driven by a friend to see his GP in Bettystown. The Complainant told the Court that he did not know whether or not the Principal addressed the issue of the incident with staff on Monday 13 March 2006. Mr Mallon BL put it to him that the perpetrator admitted his role in the incident and, therefore, no investigation was necessary and that he had been disciplined. He also put it to him that he had known that the perpetrator left his job with the school in the summer of 2006 and did not return thereafter.

Evidence of Mr Eugene Winters

Mr Winters confirmed that he was the Principal of DIFE at the time the events complained of in the within proceedings took place. He is now retired. The witness confirmed that the Complainant arrived at his office at approximately 10.00 a.m. on Friday 10 March 2006 with a peeled banana that had been left in his cubby hole. He asked the Complainant what he would like him as Principal to do about it. He also remembers asking the Complainant what the significance of the matter was and had anything similar happened to him previously. Mr Winters told the Court that he wasn’t aware at that stage that a condom had been placed on the banana. This only came to his attention on the following Monday. He confirmed that he undertook to speak to staff about the incident at the morning coffee break. He intended to do so at 10.55 a.m. However, he another matter arose that required his attention and he was delayed. As he didn’t arrive at the staff room until 11.05 a.m., when the break was over, he decided to wait until the following Monday to address the staff. He had no further conversation with the Complainant on Friday 10 March 2006. Mr Winters told the Court that – contrary to the Complainant’s evidence – there had been no reference to Mr Winter’s wife in the course of his conversation with the Complainant at approximately 10.00 a.m. on Friday 10 March 2006.

Mr Winters recalls that the Complainant came to him at approximately 10.00 a.m. on Monday 13 March 2006. Mr Winters says that took the opportunity to apologise to the Complainant for not speaking to the staff at the morning break on the previous Friday and explained why he hadn’t been able to make it to the staff room in time to do so. He confirmed that he did address the staff at the break on Monday 13 March 2006 and told them collectively that the VEC would not tolerate the type of behaviour that had taken place in relation to the Complainant on the previous Friday. He also asked staff to let him know if anybody else had experienced anything similar. Mr Winters told the Court that a named male teacher came to him shortly after his address to staff and admitted having placed the item in the Complainant’s cubby hole. The Principal’s evidence is that he reprimanded the male teacher in strong terms and suggested that he go and apologise to the Complainant. The male teacher returned to Mr Winters shortly afterwards to say that he had tried to apologise to the Complainant but the Complainant wasn’t amenable to listening to his apology and had stormed off. The witness also told the Court that the perpetrator was subsequently given a formal verbal warning that was recorded on his file and that the perpetrator had informed him that the banana incident had been a prank he decided to play on the Complainant because the Complainant had been making sexual advances on him. Some days after the incident, he issued a memo to all staff re-iterating VEC policy on entitlement to dignity at work. Mr Winters went on to give his version of the events that took place on 31 August 2006 at the staff meeting to prepare for the following academic year which meeting the Complainant attended having been absent from school since the previous 13 March.

During his cross-examination of Mr Winters, Mr O’Sullivan BL referred to a letter which had been sent to the Respondent by the Complainant’s then solicitors at the end of March 2006. Mr Winters confirmed that in his reply letter he advised: “It remains open to Mr Branigan (sic) to formalize his complaint in respect of [the March] incident either via the anti-bullying procedures of the Grievance Procedure. If he wishes to do this he should consider consulting with his Union, TUI, who are very experienced in the operation of these procedures.” In response to Mr O’Sullivan BL’s questioning, Mr Winters said that he had been President of DIFE since January 2005 prior to which he had been a principal of a voluntary secondary school. He said it was his understanding that the Bullying and Harassment Policy had been in place in DIFE since 2000. However, he knew first hand that it had been given to staff in August 2005 and again in August 2006 as part of their ‘pack’ at the commencement of the respective academic year.

In response to questions put to him by Mr Mallon BL in re-examination, Mr Winters confirmed that the Complainant had not raised the banana issue on 31 August 2006. The only issue that arose on that occasion concerned the changes that had been made to the timetable for the new academic year.

Complainant’s Submission

Mr O’Sullivan BL submits that the Respondent is vicariously liable for the sexual harassment visited on his client. In this context he referred the Court to sections 14 and 15 of the Act and to the judgment of the Supreme Court inHickey v McGowan[2017] 2 IR 196 and the judgment of the UK Supreme Court inMohamud v WM Morrison Supermarkets[2016] IRLR 362. Mr O’Sullivan BL further submitted that the Dignity at Work Policy that the Respondent relies on in the within proceedings is dated April 2006 i.e. it post-dates the incident of 10 March 2006 but that in any event neither the informal or formal processes provided for in that policy had been followed in the Complainant’s case. He further submits that the Principal delayed in taking action in response to his complaint, that no procedures were implemented following his client’s complaint to the Principal and that any investigation that did take place was defective and inadequate as the Respondent made no efforts to seek to reverse the effects of discrimination that had occurred. Finally, he submits that the Complainant was aggrieved that he was not informed prior to the hearing before the Adjudication Officer that the perpetrator had received a disciplinary warning. In Mr O’Sullivan’ submission the statutory obligation on the Respondent to take steps to reverse the effects of discrimination requires a Respondent to communicate throughout the process with the victim of harassment including in relation to the administration of any sanction on the perpetrator. In reference to Mr Winter’s letter dated 6 April 2006, he submitted that this was too little, too late and was only sent in response to a letter from the Complainant’s solicitors. Prior to this date, in Mr O’Sullivan BL’s submission, the Respondent had not done anything that indicated it was treating the matter with appropriate seriousness.

Respondent’s Submission

Mr Mallon BL, for the Respondent, submits that only one of the incidents referred to by the Complainant in his appeal is within time i.e. the incident that occurred on 10 March 2006. He acknowledges that the perpetrator of the incident intended it to be an act of sexual harassment but that the Respondent cannot be held vicariously liable for the perpetrator’s actions in this case because the Respondent had an effective dignity at work policy in place and it dealt with the incident appropriately when it occurred. Mr Winter’s had asked the Complainant what he wished him to do in response to the incident. They had agreed that Mr Winters would address the staff collectively and he did so. In Mr Mallon’s submission, the Respondent dealt with the issue in an appropriate way: in his address to staff he re-emphasised the Respondent’s unwillingness to tolerate the type of behaviour that had taken place on 10 March 2006. The Principal issued a written memo to all staff re-iterating VEC policy on entitlement to dignity at work within a number of days of the incident. As the perpetrator very quickly admitted his actions following the Principal’s address to staff a disciplinary warning was administered to him without the need to undertake a formal investigation. He further submitted that it was not appropriate, having regard to data protection legislation, to disclose the nature or details of that warning to the Complainant. Finally, Mr Mallon BL submitted that the authorities which Mr O’Sullivan urged the Court to consider were not relevant as they address the issue of vicarious liability at common law and the Court’s role in considering this issue is circumscribed by section 15 of the Act

Jurisdictional Issue

The Complainant in the within appeal also initiated High Court personal injuries proceedings against the Respondent arising from the very same circumstances and events which are the root of the instant case. Those matters were ultimately compromised for a substantial figure plus costs. Both parties are in agreement that that the Complainant did not explicitly settle the within proceedings in the High Court settlement. However, relying on the judgment of the Court of Appeal inCulkin v Sligo County Council[2017] IECA 104, the Respondent submits that in so far as the Complainant seeks in the within proceedings compensation for the effects of discrimination which are related to his alleged personal injuries then these matters have been fully compensated in the settlement of the High Court proceedings and were this Court to make a further award of compensation such an award would amount to a collateral attack on the legally binding settlement executed between the parties. This is denied by Counsel for the Complainant who submits that compensation for the acts of discrimination goes beyond compensation for personal injury. He further submits that, if the Complainant is successful in the within appeal, the Court could, for example, under the Act, compensate him for hurt feelings or insult to his dignity and pride.

Having regard to its determination of the within appeal (see below) the Court determines that it is unnecessary for it to make a decision in relation to the application ofCulkinin the instant case.

The Law

Section 14A of the Act provides as follows in relation to harassment and sexual harassment:

• 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.
  (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.
  (3) A person's rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.
  (4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim's employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.
  (5) In this section “employee” includes an individual who is—
  • (a) seeking or using any service provided by an employment agency, and
    (b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),
  and accordingly any reference to the individual's employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.
  (6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim's conditions of employment” there were substituted “contrary to section 11”, or, as the case may be, section 12.
  (7)
  • (a) In this section—
    • (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
      (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
    (b) 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.
    (c) 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.

Discussion and Decision

The facts surrounding the incident that occurred in the staff room on 10 March 2006, as a consequence of which the Complainant was the subject of an unpleasant and discriminatory act of sexual harassment, are not in dispute. Neither is it disputed that the act in question was perpetrated by a work colleague of the Complainant. It follows from the wording of section 14A(1)(a) of the Act that the sexual harassment thus experienced by the Complainant constitutes discrimination by the Respondent in relation to the Complainant’s conditions of employment. The Court finds that section 14(1)(b) does not come into play in this case because of the Complainant’s decision to leave the workplace on extended certified sick leave with effect from Monday 13 March 2006. It is common case that he did not return until 31 August 2006 and only remained for a short number of hours. What transpired on that date is not encompassed by the within appeal as the Complainant’s originating complaint was referred to the Equality Tribunal on 4 August 2006.

Section 14A(2), however, offers a defence to an employer who but for that subsection would be regarded as having discriminated against an employee within the meaning of section 14A(1). As the Court has already held that section 14A(1)(b) does not apply in this case, the only defence available to the Respondent, if it is otherwise liable to the Complainant, is that contained at s.14A(2)(a). That involves satisfying the Court that it had taken such steps as are reasonably practicable to prevent the sexual harassment of the Complainant or any class of persons which includes the Complainant. As was pointed out by this Court in Determination EDA0915,A Hotel v A Worker: -

• “The obligation is preventative in nature and it is not sufficient for an employer to show that measures were taken to prevent a reoccurrence of harassment after it had taken place.”

The Court has given very careful consideration to the evidence of both the Complainant and Mr Winters in relation to this issue. The Court finds the evidence of Mr Winters to the effect that, following his appointment as Principal of DIFE in January 2005, it was his practice to ensure that a copy of the Code of Practice for Dealing with Complaints of Bullying and Harassment in VEC Workplaces was included in the pack circulated to all teachers at the commencement of each academic year, to be convincing, cogent and consistent. This finding is supported by the Complainant’s own evidence in relation to the basis on which he had become the contact the person for complaints of bullying and harassment in DIFE in 2005 notwithstanding his assertions that no such written policy was in place at the material time.

As stated previously, the Complainant did not return to DIFE between 13 March 2006 and the date on which he submitted his originating complaint to the Equality Tribunal and as a consequence the Court has already found the section 14A(2)(b) has no application in this case. It follows, therefore, that the emphasis repeatedly placed by Counsel for the Complainant on the obligation placed by that paragraph on an employer to reverse the effects of the discrimination, in so far as any such treatment has occurred, “to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment” has no application to the facts of the instant case. Furthermore, no evidence was advanced by the Complainant to cast any doubt on the accuracy of Mr Winter’s evidence that the perpetrator admitted his wrongdoing and received a formal verbal warning for that wrongdoing. Likewise, no evidence was adduced to contradict that of Mr Winters to the effect that he had placed a written notice in the staff room in relation to Respondent’s anti-bullying and anti-harassment policy a short number of days after he had addressed the staff collectively on 13 March 2006.

Having regard to the entirety of the foregoing, the Court finds that the Respondent is entitled to avail itself of the defence provided for in section 14A(2)(a) of the Act. The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
TH______________________
12 February 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.