Complainant

Respondent

Parties

Ruffy Magat

Component Distributors (CD Ireland) Limited

Representatives

Richard Grogan & Associates Solicitors

Desmond Ryan, BL instructed by A&L Goodbody Solicitors

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-00021808-001

03/09/2018

The complainant asserts that he was subject to harassment and discrimination on grounds of sexual orientation and race. This relates to graffiti written in the workplace, citing his first name and the deeply offensive term of “faggot”. The respondent argues that it is entitled to rely on the defence in section 14A(2).

The solicitor for the complainant indicated at the start of the hearing that the respondent had effectively ambushed him by submitting documentation on the day of the hearing. He commented that this included some new material. The solicitor indicated that, without prejudice to his usual approach, he would proceed with the hearing.

The complainant submitted that the respondent’s graffiti policy is new and neither he nor his supervisor attended the training course on 10 October 2018. He commented that the respondent had appealed the earlier adjudication decision (ADJ 8313) and this training course was instigated following his second complaint.

The complainant outlined that there was ongoing harassment and sexual harassment in the workplace as well as victimisation. The complainant worked as a picker and takes goods off the line. The respondent has done nothing to address this issue and belatedly introduced the training course. The term “faggot” is the most degrading term for a gay person. The complainant had viewed the graffiti stating ‘[complainant first name] faggot’ on 24 August and reported this immediately. It was removed by 3 September. This should have been cleaned off immediately. The respondent had not investigated to find out who was responsible. It told the complainant to submit a grievance. He would always have come across the graffiti.

The complainant submitted that the respondent was vicariously liable for acts of its employees. He had made out a prima facie case. The respondent knew of the harassment but did not take any steps following the last adjudication, which it appealed.

The complainant said he did not want this decision anonymised.

The respondent outlined that it had sent its submission prior to Christmas. While some additional documents were sent on the day before or the day of the adjudication, this did not prejudice the complainant.

The respondent submitted that it had taken steps to address the harassment, so any compensation should be minimal. There is no absolute liability on an employer. It had arranged meetings with all staff members on a one to one basis and installed signs tackling harassment. The respondent outlined that the graffiti was deplorable. It could not, however, define the timeframe of when the graffiti was written.

In evidence, the operations manager outlined that the complainant’s role related to incoming goods. It was a slow and manual role. He worked with a supervisor and four colleagues. There were some 31,700 shelves in the facility. The graffiti policy was drafted in 2017, when he joined the company. This was displayed in the canteen with the bullying and harassment policy. It was sellotaped on four doors. The respondent had zero tolerance of graffiti and have employees from all nationalities and religions.

On learning of the graffiti, the operations manager reported this immediately to the board of directors, who took it very seriously. The operations manager apologised to the complainant and said that if they found who did the graffiti, they would be able to apply the policy. They looked through CCTV footage, but the location was not covered by a camera. They looked at random days but did not know how long the graffiti was there for.

The operations manager outlined that grievance process is their first port of call but they had investigated the incident. They approached managers and looked at the CCTV. He attended all pay review meetings and had gone through the policies with all employees individually. The operations manager outlined that he asked for the graffiti to be removed immediately after being photographed. He was not sure when it was removed. The graffiti was located on the second floor of building 1, not building 4 where the complainant normally worked.

The respondent had selected a date for the training to maximise the number of employees present. They intended to run a second day for employees at another facility and those who did not attend in October 2018. The purpose of the training was to address the harassment issue. He commented that the complainant continues to participate in social events with colleagues.

In questioning, the operations manager said that the August incident was not included as part of the training notes. It was put to the operations manager that the incident was not raised at the training and staff were not aware of the threat of disciplinary proceedings. The operations manager said that the graffiti was unacceptable and should have been removed immediately.

Section 14A of the Act address sexual harassment and harassment on the other discriminatory grounds:

“(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,

…

(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.

…

(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 14A defines harassment. It must be unwanted conduct related to a discriminatory ground. The conduct must have the purpose or effect of violating a person’s dignity and create an offensive or humiliating environment. The section provides a defence for the employer who takes reasonably practicable steps to prevent the employee from being harassed. Where an employee has been treated differently in the workplace because of the harassment, it is a defence for an employer to show that they took reasonably practicable steps to prevent this differential treatment or to reverse its effect.

In respect of an employer’s vicarious liability, 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.

…

(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.”

Section 15 provides that it is a defence for an employer to show that it took reasonably practicable steps to prevent one employee’s harassment of the other.

As submitted by the respondent, an employer is not strictly liable for harassment carried out by its employee. It can rely on the defence of taking “reasonably practicable” steps to prevent the harassment or to prevent or reverse any difference in treatment arising from the harassment.

The Code of Practice on Sexual Harassment and Harassment at Work (S.I. 208/2012) provides that employers should “act in a preventative and remedial way.” It states “In order to rely on this defence [section 14(A)(2)] employers must show that they have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action, and also accessible effective complaints procedures. The measures taken to put the policies and procedures into practice will also be taken into account by courts and tribunals: employers will not be able to rely on an excellent policy if it has not been effectively implemented.” The Code states that the employer should “respond sensitively” to complaints of harassment and “monitor and follow up the situation after a complaint is made so that [harassment] does not recur.”

In respect of monitoring, the Code provides “The policy should include a commitment to monitor incidents of sexual harassment and harassment. The only way an organisation can know whether its policy and procedures are working is to keep careful track of all complaints of sexual harassment and harassment and how they are resolved. This monitoring information should be used to evaluate the policy and procedures at regular intervals, with changes recommended where appropriate.” The Code emphasises the importance of training and having a detailed complaints procedure. It provides that complaints should be handled “fairly, sensitively and with due respect for the rights of the both the complainant and the alleged perpetrator.”

In this case, there is no doubt the words written on the shelf amounted to harassment of the complainant. It refers to him by his first name. The graffiti uses the deeply offensive term “faggot”, a pejorative reference to sexual orientation. This clearly creates an intimidating and offensive environment.

This case takes place against the background of the previous adjudication, where the complainant raised incidents of harassment on grounds of both sexual orientation and race. The adjudicator decided that, in respect of the incidents within the limitation period, harassment had taken place and there was a breach of the Act. An award of damages and a requirement for workplace equality training were ordered.

On 24 August 2018, the complainant discovered the offensive graffiti. He reported this to the respondent and it was removed some days later. It is not clear why it was not removed immediately. I accept that the respondent senior management were empathetic and responsive to the serious issue raised by the complainant. I accept that the respondent sought to find out who had written the graffiti. I accept the evidence that the respondent discussed harassment at one-to-one pay review meetings. I accept that the notices regarding harassment and graffiti were posted in the workplace. I note that a firm of solicitors delivered ‘Diversity – Dignity at work’ training to staff. The first session took place in October 2018 and a further session will take place in 2019.

This is the fourth incident of harassment reported by the complainant. While it is unclear when, precisely, the graffiti was written, it is likely to be in mid-2018. While the complainant might not work in this area every day, it was an area he accessed in the ordinary course of his duties. It can be surmised that the graffiti was inscribed at this location for the complainant to see it when working there.

It is striking that the respondent wished that the August 2018 graffiti be dealt with as a ‘grievance’ rather than a complaint under the harassment policy. While I fully accept that it did not have an ‘alleged perpetrator’ to investigate, it is difficult to see how an employer could monitor harassment or take the further actions required by the Code if such complaints are not addressed under the harassment procedure. ‘Effective implementation’ of the policy requires that harassment be dealt with as harassment and not as a grievance.

Taking these factors together, I find that the respondent had not taken the reasonably practicable steps to prevent harassment. As of August 2018, it had not provided training to staff. Such training would have signalled to employees the seriousness the respondent takes tackling harassment. In assessing redress, I note that while this incident related to the inscription of two words, one word is highly offensive and deplorable. I note the previous incidents and that the respondent did not address this issue according to its harassment policy. I also note the initiatives taken by the respondent to address this issue. Taking these factors together, I award redress of €7,000 in compensation for the effects of harassment.

For completeness, I find that the complaint of victimisation is not made out. There is no evidence that the graffiti was in any way related to the previous adjudication or any equality issue raised by the complainant.

The report will not be anonymised.

CA-00021808-001

I find that the complainant was subject to harassment and discrimination in the workplace and that the respondent is not entitled to rely on the defences provided in the Employment Equality Act. I award redress of €7,000 to be paid by the respondent to the complainant for the effects of harassment. I find that the complainant was not subject to victimisation.

Employment Equality Act / harassment

Section 14A(2) defence / reasonably practicable

Section 15 / vicarious liability

Code of Practice on Sexual Harassment and Harassment at Work (S.I. 208/2012)