Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Retailer

Representatives

David Boughton BL instructed by  PG Cranny & Co Solicitors

Ursula SherlockIBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00019503-001

30/05/2018

The Complainant was employed by the Respondent as a sales assistant on the 7th of November 2016 and she terminated the employment on the 23^rd November 2018. She worked part-time usually between 8 and 16 hours per week and she was paid €9.35 per hour. The Complainant is claiming that she was discriminated against on the gender ground in relation to her conditions of employment in that she was sexually harassed contrary to the provisions of the Employment Equality Act, 1998.

The Complainant commenced work with Respondent as a sales assistant and the 7th of November 2016. She said that she signed a contract of employment, but she never received the Respondent’s grievance policy nor was it ever explained to her during the company training. She went on maternity leave on the 7th of May 2017 and returned to work on the 20th of November 2017. It was submitted that from the 20th of November 2017 onwards that the Complainant was subjected to comments of a sexual nature by an Assistant Manager. She found his comments distressing. It was repetitive leaving her feeling uncomfortable and humiliated in the workplace. This lasted for six months approximately. Despite the comments being made by the Assistant Store Manager and being witnessed by other members of staff, including other Managers, no action was taken by the Respondent until the complaint made a formal complaint. It was submitted that the Complainant’s mental health and well-being deteriorated along with her own self-confidence. It affected her professional approach to work and her capacity to earn a living.

The Complainant in evidence stated that she went on maternity leave on the 7th of May 2017 and returned to work on the 20th of November 2017. Following her return to work she said that she was subjected to sexual comments from an Assistant Manager on a regular basis.

The Complainant in evidence went on to outline the incidents of sexual harassment she said that she was subjected to over the course of the last 6 months of her employment. She said that the Assistant Manager (AM1) called her sexually offensive names, made offensive comments about her Asian partner, called her a thick b****, made sexually explicit gestures towards her, made offensive comments about her breasts, asked her to engage in lewd acts and suggested she provide sexual favours for him in return for keeping her job.  He frequently threatened to kick her up the a*** when she was standing on a stool packing higher shelves and did so on 4 occasions when she was packing lower shelves while making sexually explicit comments to her. He also hit her on the head with a box. He stopped calling her by her name and called her “big tits” and later on “thunder tits”. She said that AM1 sexually harassed her every day she worked with him from November 2017 until she made a written complaint to HR on the 29^th April 2018.

The Complainant said that she asked him to stop a few times and he just told her to f*** off. She said that the Manager and the other Assistant Manager and Deputy Managers heard him and frequently laughed along with him. The Complainant said that she took precautions to avoid AMC1 hitting her like pulling the trolley behind he and wearing baggy clothes, but this elicited more sexually offensive comments from him. She said that she complained to the other Assistant Manager, but nothing was done about it. She said that on one occasion in the warehouse the shop Manager was present and heard AM1 make a particularly offensive comments of a sexual nature about her and her Asian partner, but he did nothing about it.  She said that as all the Managers knew about it she expected that he would have been stopped from sexually harassing her.

The Complainant said that she decided she could put up with the treatment no longer after AM1 made a particularly sexually explicit comment to her after saying he wanted to kick her up the a***. After this she decided she had to make a formal complaint as nobody was doing anything to stop AM1. She spoke to a Deputy Manager and asked him how to make a complaint and he brought her to the office and explained the procedure to make a formal complaint She wrote out her complaint and submitted it to HR on the 29^th April 2018.

The Complainant said that she was interviewed by the investigator on the 1st of May. Following this she returned to work in the in the shop. She said she was subject to harassment by other staff members because she had made a complaint. She said everyone knew she had made a complaint and the accused her of trying to get AM1 sacked. Some of the staff completely ignored her and she heard that one of the Deputy Managers called her a dirty little rat and the other Deputy Manager made threatening comments directly to her.  She said that she complained to the Assistant Manager, but the comments continued. She said after she made the complaint about AM1 things were worse for her than before she made it. She attended her doctor and she was certified unfit for work due to work related stress and she was prescribed antidepressant medication.

Legal Submission

The Complainant’s barrister submitted that after the Complainant notified HR about the sexual harassment and after her fellow worker heard about her complaints she was treated differently in the workplace. This resulted in stress and anxiety for the Complainant it also raised the question as to the confidentiality and discretion with the regards to the Respondent’s grievance process. On the 22nd of May 2018 the Complainant was advised by her GP not return to work and she furnished her with a medical.

I was referred to a case of A Worker v A Hotel [2010]21 E.L.R. 72 in which the Labour Court considered if the employer had taken reasonably practical steps to prevent harassment of a woman in the workplace.  I was also referred to the Adjudication Officers decision in the case of A General Store Assistant v A Large Company ADJ-00010217 concerning a claim arising from verbal harassment relating to sexual orientation and I was asked to take the jurisprudence in these cases and to account.  The Adjudication Officer stated in the latter case:

“The parties were very divided on the role that training in procedures around discrimination played in this case. The Union put forward the vacuum as a major contributing factor. The Respondent contended that the Induction was followed by the staff handbook which addressed all aspects of the workplace. For my part, I found the staff handbook to be a top-class document, but I found a variance in the principals extolled by the company and the reality on the ground. This may have arisen in part from an insufficient supervision. I note that the Supervisor confirmed the first complaint at investigation.

I recall the evidence of Ms A when she recounted her shock at receiving the complaint in May 2017. I accept that she had no prior knowledge of the issue and this caused her some upset as store Manager. I found Ms A to be a very honest witness and she presented as very caring about her staff.

While, I accept training has its place, and I note the special mention in the Report recommendations, the role of the first line Manager is a key person in terms of administration and implementation of a staff handbook. I found that the company’s principal of zero tolerance to harassment was not in evidence outside of the staff handbook during the months preceding the complaint. I say this as I was struck by the extent and general permissiveness which appeared to exist surrounding highly personal issues. I note that this was picked up during the internal investigation and a recommendation directed at cessation.

I have reflected on the Respondent submission that a line exists in all employment relationships where to “walk in the shoes “of the Complainant and to take on other people’s grievance is effectively wrong. However, it is important that all floor employees and their supervisor try to right a wrong if they see a wrong on the floor and to at least report it if they are not comfortable to intervene This was missing in this case.

On the other hand, I noted the efficiency of the Respondent response once the complaint was lodged. As stated previously, I find that the complaint should have been assessed administratively to correspond to a workable standard. However, I accept that the Respondent acted in good faith throughout the investigation and formulated some very strong recommendations to cover the way forward for the shops employees.”

I was also referred to the Odion v Techniform (Waterford) Ltd DEC-E2007-018. In that case the Equality Officer found that the Complainant was subject to harassment on the race ground and while the employer had acted promptly in dealing with the complaint, the Equality Officer was not satisfied that the outcome of the investigation adequately described the circumstances between the workers.  She found that the employer’s failure to deal with the situation left the Complainant feeling isolated in the workplace, which constituted discrimination on the grounds of race.

The Labour Court in the case of Limerick County Council v Mannering EDA1210 stated:

“the adequacy or otherwise of the investigation undertaken after the occurrence of the event complained of is irrelevant to the question of whether or not the Respondent had taken steps which could have prevented that event from occurring. Rather, in cases such as this, the focus should be on whether or not the Respondent had in place adequate policies and procedures intended to make all employees aware that harassment on any of the discriminatory grounds is unacceptable and will not be tolerated by the Respondent.”

The Complainant’s barrister further submitted that the handbook post-dated the employee’s contract of employment. Furthermore, even if the employer has a policy in place for the prevention of bullying and harassment the communication of that policy was not effective which are the key considerations in the above cited cases. The policy also provides that if colleagues see bullying and harassment that they should tackle the problem and report it, but this did not happen in this case. The Store Manager failed to follow the informal procedures when he became aware of the sexual harassment. He said he spoke to the AM1 and warned him about his behaviour, but he did not follow any of the procedures for handling informal grievances.

He further submitted that the intention of the perpetrator is irrelevant and that it is the effect that the behaviour and discriminatory treatment had on the Complainant is the matter which must be taken into consideration. I was referred to the Code of Practice for the prevention of harassment in that regard.

The Respondent submitted that on the 29th of April 2018 the Complainant approached her line Manager to present a complaint regarding treatment she had received from the Assistant Store Manager (AM1). She submitted a hand-written complaint setting out specific incidents and named colleagues as witnesses. An investigation was initiated immediately as it was a formal complaint and the person named in the complaint AM1 was interviewed and suspended pending the investigation. The Complainant was interviewed on the 1st of May and subsequently the witnesses named were all interviewed as was the Store Manager. The complaint about sexual harassment was upheld, and the Complainant was informed by letter dated 22nd of May 2018. The Complainant was off sick from work because of work-related stress at that time and did not return to work after this. She resigned in November 2018.

Legal Submission

The Respondent refutes the Complainant’s claim that she was sexually harassed on the gender ground as the treatment does not meet the statutory definition of sexual harassment. It was submitted that if it is held that the treatment meets the definition the Respondent cannot be held vicariously liable for the actions of AM1 as the defence under section 14A(2) of the Employment Equality Acts applies. The first defence of 14A(2)(a) suggests that an employer must the conscience of the possibility of sexual harassment occurring and having in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show that a clear anti-harassment and dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. The Store Manager, by his own account, dealt with the initial incidences using an informal approach as allowed under the Respondent’s policy. He stated he had done this with the agreement of the Complainant and that he did not have a formal written complaint to pursue. In hindsight, he accepted that he could have acted differently but his genuine attempt to deal with the matter informally was made in particular circumstances where AM1 shared some confidential information about his health with him.

Both the Assistant Store Manager and the Store Manager had completed a full induction with the business including instructions on dealing with a grievance.  All staff including Managers have access to the handbook and associated policies. 

It was submitted that a second defence under Section 14A(2)(b) places an obligation on an   employer to reverse the effects of the discrimination, in so far as such treatment has occurred, “to prevent the victim from being treated differently in the workplace are otherwise in the course of the victim’s employment”.  The Complainant’s complaint was taken extremely seriously, investigated quickly and effectively with due respect to all parties concerned and her complaint was fully upheld. The perpetrator was suspended as soon as the complaint was made and was transferred as part of his disciplinary sanction. The Store Manager was also moved to another store. It is always the company’s position that it acted reasonably and fairly in accordance with its policies, best practice, and appropriate conduct with a view to protecting the Complainant and ensuring that there was no possibility of any repetition including moving the perpetrator to a different area.

The outcome of the investigation was provided to the Complainant on the 22nd of May and she expressed concern that she was not informed of the sanction imposed on the perpetrator. The Complainant then went out sick and did not give the Respondent an opportunity to address her concerns.

I was referred to the Labour Court case of County Louth Vocational Education Committee v Pearse Brannigan EDA193. The Court concluded that the fact that the Complainant in a sexual harassment case stopped attending work on sick leave at the time of the incident of sexual harassment, and had not returned to work by the time they lodged their complaint to the Equality Tribunal, did deprive the employer of the opportunity to utilise the second defence set out in Section 14(2)(b) of seeking to rectify or reverse the effects of discrimination. Conversely, in the case herein, the Complainant continued to attend work until the 22nd of May and only left the workplace, despite the complaint being upheld, upon being told that the disciplinary outcome would not be shared with her. This was some weeks after the last alleged act of discrimination.

The Respondent submitted that without prejudice to their position that the claim should be dismissed, it was submitted, in reference to the case of A Worker v A Hotel EDA0915 cited in the Complainant's submission, that the hotel in question admitted that they had no policies in place to address matters of harassment, had no dignity at work policy nor a policy on bullying. There was no formal grievance procedure within the company and as such the Court found that the hotel could not invoke the first defence of having had reasonable measures in place to prevent harassment.

Furthermore it was submitted that without prejudice to the Respondent's position, with regard to the case of A General Store Assistant v A Large Company ADJ10207, the Respondent notes that the Adjudication Officer found that the employer could not entirely rely on the second defence of reversing the effects of the discrimination as the investigation outcome had made what the Adjudication Officer called a significant "understatement" in its conclusions resulting in insufficient effort to prevent a recurrence.

No such accusations could be levied at the investigation in this case. Both the Store Manager and the Assistant Manager left the shop with AM1 moving to a different area to minimise the possibility of the Complainant encountering him in the future.

The Respondent points to the fact of the Complainant continued to attend work until the 22nd of May 2018 and she then went on sick leave and failed to return to work. It is submitted that she has failed to establish a causal connection between the sick leave and the treatment she experienced.

The first issue for decision by me is whether the Respondent discriminated against and sexually harassed the Complainant contrary to section 14A of the Employment Equality Acts, 1998 as amended on the gender ground. In reaching my decision I have taken into consideration all the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.

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 as a basis for a decision affecting that person.

…………

(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, 

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. 

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

Section 15 provides:

(1) 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.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) 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 doing in the course of his or her employment acts of that description.”

The Labour Court in the case of Nail Zone Ltd and A Worker Determination No. EDA1023, defined the law in relation to harassment as follows:

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

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides:

"Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary." 

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act provides for the allocation of the probative 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.

The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

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

The Complainant in evidence outlined a long list of incidents of inappropriate comments of a sexual nature, offensive name calling, gestures of a sexual nature and hitting and kicking her, directed against her by AM 1.  She said that the treatment commenced on her return from maternity leave in November 2017 and continued until the end of April 2018. I note that the Complainant made a formal complaint of sexual harassment to the Respondent on the 29^th April 2018 which was investigated and upheld.

 I find therefore that the Complainant was subjected to inappropriate treatment and inappropriate comments for a period of 6 months of her employment.   I find the above treatment falls within the definition of sexual harassment under section 14A of the Acts.  On the basis of the foregoing, I am satisfied that the Complainant has established a prima facie case of discriminatory treatment and sexual harassment in relation to her conditions of employment contrary to section 14A of the Employment Equality Acts.

I must now consider is whether the Respondent rebutted the prima facie case raised. I note that Section 14A(2) of the Employment Equality Acts, 1998, cited above, provides a statutory defence for an employer in claims of sexual harassment. This requires the employer to show that that it has a dignity at work policy and a policy to prevent sexual harassment in the workplace. The Respondent claims that this provision of the Act provides them with a full defence to the claim because they have such policies in place.  It submitted that the Store Manager dealt with the initial complaints using the informal procedures as provided for in the policy.  The Complainant’s evidence is that both the Manager, Assistant Manager and Deputy Managers witnessed some of the offensive comments and did not do anything to stop AM1 but laughed along with him. She also said that she asked AM1 to stop his behaviour and she also raised it with the other Assistant Manager. She said that she took preventative measures to stop him sexually harassing her such as wearing baggy clothes or pulling the trolley behind her in case AM1 would touch her or kick her as he had threatened to kick her up the a*** and did so on occasions. However, the sexually offensive comments and gestures continued which affected her and her family life and she suffered from low self-esteem.

I note from the notes of the investigation the Manager spoke to AM1 on 2 occasions about his behaviour in or around December and January. Therefore, the Manager on his own admission was well aware of the inappropriate behaviour of the Assistant Manager towards the Complainant.

The next question is whether the Manager made sufficient efforts to prevent the Complainant being sexually harassed. I note from the instruction booklet titled How 2 Handle Grievance on which the Respondent stated all Managers and Assistant Managers are trained, was not followed. The document clearly states “Complaints of discrimination or bullying and harassment should generally be considered as formal grievances due to the potential serious consequences” but the Manager choose to deal with it informally by speaking to AM1. He failed to notify HR of the behaviour of the AM 1 or to take any sufficient action to prevent him sexually harassing the staff including the Complainant. I note that the Manager received confidential information from AM1 concerning medication for an illness which he alleged was causing the behaviour, but the Manager failed to notify HR of this serious issue so that steps could be taken to prevent him sexually harassing the Complainant. Likewise, I note that after speaking to AM1 in December and January about his offensive behaviour, the Manager failed to monitor the situation or to speak to the Complainant and the other staff or bring their attention to the policy on the prevention of harassment and bullying to ensure that the behaviour had ceased.  There was no evidence that he spoke to any of the other Assistant Manager or the Deputy Managers to ensure that the Complainant was working in a workplace free from sexual harassment. It is incomprehensible that for about 4 months after the Manager learned about the sexual harassment that he sat on his hands and allowed it to continue.

The Manager did not give evidence, but his contention to the Investigator that he had no formal written complaint from the Complainant to act upon is irrational given that he had seen the Complainant being sexually harassed. I note that the Manager’s evidence to the Investigation that he saw the Complainant being sexually harassed after which he decided to speak to AM1 and he also accepted he had a complaint from a Deputy Manager about the behaviour of AM1.  Furthermore, it was an Assistant Manager and a person who had power over the Complainant who was harassing her, and it was unreasonable for the Manager to believe that he required a formal written complaint before he could take the matter further and prevent AM1 sexually harassing her.  It is difficult to know what more information he required in a formal written complainant before he acted to prevent the sexual harassment. Managers or other persons with supervisory or management functions in every employment have a responsibility pursuant to the Employment Equality Acts to ensure that employees are not sexually harassed in the workplace and they also have a very serious responsibility to ensure that the employer’s policies and procedures are implemented and complied with by all staff including management and appropriate action is taken where breaches occur and to prevent a reoccurrence. 

It is pointless having a policy to prevent sexual harassment in place unless it is effectively operated by management and effectively communicated and explained to staff and all staff including management are fully trained in the measures to prevent sexual harassment and know the procedures for taking a complaint.  The Respondent provided a document in evidence to state that all the Managers had been trained in the Anti-Bullying and Harassment Policy, but this training was not obvious from the way the Manager failed to demonstrate the implementation of the policy and to take appropriate action to stop the sexual harassment of the Complainant.  The Complainant said in evidence that she had not received a copy of the handbook and did not receive the grievance procedures until she enquired from management about the procedures for making a complaint about sexual harassment.  The Labour Court in Limerick County Council v Mannering cited above stated: “the adequacy or otherwise of the investigation undertaken after the occurrence of the event complained of is irrelevant to the question of whether or not the Respondent had taken steps which could have prevented that event from occurring. Rather, in cases such as this, the focus should be on whether or not the Respondent had in place adequate policies and procedures intended to make all employees aware that harassment on any of the discriminatory grounds is unacceptable and will not be tolerated by the Respondent.”

I accept that the Respondent has a policy for preventing bullying and harassment in the workplace, but it was not adequate to prevent the sexual harassment of the Complainant and the management of the Respondent’s shop failed to implement it.  I am not satisfied that the Policy is in line with of S.I. No. 208 of 2012 Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012. The provisions of the Policy are not adequate for the prevention of sexual harassment because the policy does not mention the words sexual harassment, nor does it specify the responsibility of management to prevent sexual harassment in the workplace. Furthermore, I am not satisfied that the complaints procedure in the policy is either accessible or adequate for dealing with the serious issue of sexual harassment.  

I accept that HR acted promptly when it received the complaint from the Complainant and AM 1 was suspended and the investigation was commenced immediately and AM1 was removed from the shop where the Complainant worked. However, I am not satisfied that the management of the shop took sufficient steps to ensure that that the Complainant was not treated differently for reporting the Assistant Manager for sexually harassing her and that her complaint was treated confidentially within the workplace. I note the Complainant said that when she attended work after she was interviewed for the investigation all the staff knew she had made a complaint. She was blamed for reporting the conduct of AM1 and she was told she would be responsible for him losing his job. She was subjected to name calling and the staff stopped talking to her and the work situation became much worse for her than before she made the complaint. She said that she complained about her treatment to the Assistant Manager and told him about the impact the treatment was having on her, but things did not improve and the staff including the Deputy Manager continued to call her names.  She said that she was very stressed out about her treatment and had to go to the doctor.  She was put on antidepressants and went on certified sick leave. I found the evidence of the Complainant very credible and the Respondent did not call any evidence to contradict the Complainant’s version of events      

Having considered the matter, I am satisfied that the Complainant was treated “differently in the workplace…... by reason of rejecting the sexual harassment” because she made a formal complaint about AM1 to HR about her treatment.  I also note that the Assistant Manager to whom the Complainant complained failed to take any action to prevent the name calling and isolation of the Complainant after the Complainant complained about sexual harassment nor did he report it to HR. I find that this treatment constitutes further incidents of discrimination of the Complainant in relation to her conditions of employment.

Section 15 of the Act cited above provides that the Respondent is vicariously liable for the actions or inactions of its store management team. For all of the above reasons, I cannot accept the Respondent’s argument that the policies in place to prevent harassment and the fact that they took immediate action and remove the perpetrator from the store where the Complainant worked provides a full defence to the claim given the inexplicable failure of their Managers to take appropriate action under the policies to prevent the discriminatory treatment and sexual harassment of her.   

For all of the above reasons including the managements failure to prevent the sexual harassment of the Complainant in workplace the statutory defence under Section 14A(2)(a) & (b) does not apply.  Based on the foregoing, I find that the Respondent has failed to rebut the prima facie case of discriminatory treatment in relation her conditions of employment raised by the Complainant.

Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination.  Section 82(4) provides:

The maximum amount which may be ordered by the Director General

of the Workplace Relations Commissionby way of compensation under subsection

(1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date

of the reference of the case, or if it was earlier, the date of dismissal, an

amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the

complainant would have received at that date but for the act of discrimination

or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000.

The Complainant’s pay for 104 weeks amounts to €16,000. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I note that the Labour Court in the case of Lee t/a Peking House v Fox EED036 in assessing appropriate amount of compensation in an employment equality case stated: “In measuring the appropriate quantum of compensation the Court must have regard to all the effects which flowed from the discrimination which occurred. This includes not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings.”

In deciding quantum and having regard to the above, I believe that this is a case where 104 weeks does not adequately reflect the gravity of the matter. The higher award is applicable, given the inexplicable failure of management to prevent the discriminatory treatment as set out above, the serious nature of the discriminatory treatment that the Complainant was subjected to over a period of 6 months including being physically assaulted a number of times, the distress and indignity suffered by her and the impact it had on her health requiring her to go on sick leave. The trauma of recalling these events was still evident on the day of the hearing, a matter which I have also considered in assessing the amount of redress. For all these reasons I award redress in the amount of €40,000.

(i) In accordance with Section 82 of the Act, I order the Respondent pay the Complainant €40,000 in compensation for the distress and the effects of the discriminatory treatment.

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

(ii) I order the Respondent to revise their Anti Bullying & Harassment Policy to include a definition of sexual harassment, clarity about the responsibilities of management and a detailed and accessible complaints procedure which is in line with all matters contained in the Employment Equality Act, 1998 (Code of Practice) (Harassment) Order, 2012 S.I. No 208/2012;

(iii) that a copy of this revised Policy is given to all staff and management and that the Policy is effectively communicated to all staff and they are fully acquainted with its contents;

(iv) that staff with management functions fully acquaint themselves with all aspects of the Policy including training in the procedures to follow in the event of any inappropriate and unacceptable behaviour occurring in the workplace.

Employment Equality Act 1998, Section 14A – sexual harassment, Section 14A(2) – defence, Policies.