FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : WATERFORD INSTITUTE OF TECHNOLOGY (REPRESENTED BY TOM MALLON B.L. INSTRUCTED BY PEMBROKE SOLICITORS) - AND - LOUISE WALSH DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal Of Adjudication Officer Decision No. DEC-E2017-077.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 14 November 2017. A Labour Court hearing took place on the 5 June 2019. The following is the Court's Determination:
DETERMINATION:
This matter comes before the Court as an appeal by Ms Louise Walsh (the Appellant) against a decision of an Adjudication Officer in her complaint made under the Employment Equality Acts, 1998 to 2015 (the Act) against her employer Waterford Institute of Technology (the Respondent).
The originating complaint was received by the Equality Tribunal on 27thMay 2015. The within appeal was received by the Court on 14thNovember 2017. Final written submissions were received by the Court on 2ndMay 2019.
Summary of the Appellant’s position
The Appellant contends that she was the subject of a number of incidents of sexual harassment and harassment based on her gender perpetrated by students attending her lectures on various dates from 10thOctober 2014 to 19thMarch 2015.
The Appellant submitted that in September 2014 she was assigned to teach a combined class of 100 students from three courses of whom approximately 85 were male.
On 10thOctober 2014 she notified the Respondent that she had been sexually harassed by a large group of male students in her assigned class. She said that she had been asked explicitly, coarse sexual questions and, in addition, various disgusting and explicit comments were made about male genitalia. On that same date she outlined that she was also the subject of general harassment and disruption by a large number of male students. She was not able to identify the individuals involved.
On 15thOctober 2014 the course leaders spoke to the three courses and confirmed that the sexual harassment had occurred. The course leaders were not asked to investigate further or to monitor the situation.
On 24thOctober 2014 she was again sexually harassed and the form of the harassment involvedthestudents blurting out inappropriate sexual references and sexual language including coarse words referring to parts of a woman’s body; references to sexual acts and comments about how the male students ‘would do her’. She informed the Head of Department of this experience and advised her that the behaviour had the purpose and effect of violating her dignity and creating an intimidating and hostile working environment. The Appellant was able to identify one male student who had engaged in disruptive behaviour to the Head of Department although she could not identify him as a perpetrator of sexual harassment or harassment based on her gender.
Although the Head of Department spoke to the male student and informed him that she was sending him to the Student Disciplinary Committee, the disruption and harassment continued.
On 9thNovember 2014 the Appellant advised the Respondent that the disruption in class continued and that a number of male students had openly bullied another male student.
The Respondent subsequently split the class.
The Appellant submitted that, on 19thMarch 2015, a group of students sexually harassed her by stating in her hearing: “You are not going to believe what the stupid bitch is doing now.” and “I am not going next fucking Thursday.” This comment referred to training being instituted by the Respondent in relation to Dignity at Work arising from the Appellant’s earlier complaints and grievances.
The Appellant submitted that the Respondent had and continues to havehasa Dignity and Respect policy that provides that complaints of sexual harassment against a student must be made under the Student Code of Conduct. That Code requires a complaint to be made to the Student Disciplinary Committee by the relevant Head of Department rather than the complainant. The Appellant submitted that when the Head of Department made a complaint to the Student Disciplinary Committee in relation to the one identified male student who had behaved in a disruptive manner, she could only do so utilising a form designed for disputes between students and their neighbours. She further submitted that the Chair of the Committee failed to respond to the complaint when it was made because he did not have secretarial support. Furthermore, the complaint that was made referred to misbehaviour in class and did not refer to sexual harassment or, harassment generally.
The Appellant submitted that she was never asked by the Student Disciplinary Committee for any information as regards the harassment she suffered and she was never asked to submit a statement as regards the incidents underlying her compliant.
On 29thJanuary 2015, the Appellant submitted a grievance through a separate procedure in response to what she contended was the Respondent’s inadequate response to incidents of sexual harassment and harassment based on gender.
On 13thFebruary 2015 a grievance meeting was convened. It was agreed at that meeting that students would be provided with meaningful Dignity at Work training to be delivered by the Respondent’s Equality Officer in order to address the Appellant’s complaint of sexual harassment, harassment and bullying.
The Respondent, however, did not advise the Equality Officer that a member of staff had been harassed, sexually harassed or bullied but did advise the Equality Officer that students had been disruptive and had engaged in unsavoury behaviour.
The Appellant submitted that the Respondent did not circulate its Dignity at Work policy widely and did not take steps to bring it to the attention of students. The Respondent took no adequate steps to ensure that sexual harassment, harassment and bullying did not take place in her workplace. The Respondent took no adequate steps to respond to her complaints and take adequate steps to reverse the effect of sexual harassment and harassment based on gender and to avoid a recurrence.
Summary position of the Respondent
The Respondent accepts that certain incidents occurred which amounted to sexual harassment or harassment based on gender but that the incident which is alleged to have occurred on 19thMarch 2015 did not amount to sexual harassment or harassment based on gender.
The Respondent submitted that the last incident which could be said to amount to sexual harassment or harassment based on gender occurred on 24thOctober 2014 and consequently the Appellant’s complaint, made on 27thMay 2015, was out of time by reference to the time limits for making a complaint under the Act.
Notwithstanding that contention the Respondent submitted that, in any event, it was entitled to rely on the defence provided by the Act at Section 14A(2) namely that it took all practicable steps to avoid the occurrence of sexual harassment or harassment based on gender and all practicable steps to respond to the Appellant’s complaints of such harassment.
On or around 10thOctober 2014 the Appellant notified the head of the Department of Science by e-mail that she was being generally harassed and sexually harassed by a large group of disruptive male students. She notified the Respondent’s Head of Department that she was stressed from the experience and requested something be done immediately. The Head of Department met with the Appellant on 13thOctober 2014. Relevant course leaders also attended that meeting. The Appellant was unable to identify any of the perpetrators. The Appellant was advised that in order to proceed to the Respondent’s Student Disciplinary Committee the students against whom an allegation was being made would have to be identified.
The course leaders were tasked with investigating the matter by speaking to the class groups individually in order to verify the allegations. That was done and the course leaders confirmed the allegations. The course leaders then spoke to the class groups about their behaviour. The Head of Department addressed the groups collectively and cautioned them that any further such behaviour would not be tolerated.
The Respondent submitted that disruptive behaviour occurred at the Appellant’s lecture on 24thOctober, but this behaviour was never alleged to be sexual harassment. The Appellant supplied the name of a student who was alleged to be responsible for that misbehaviour.
The Respondent split the Appellant’s group into two separate class groups and there was no further occurrence of disruptive behaviour following the taking of such action.
The complaint about disruptive behaviour by an identified student on 24thOctober 2014 was investigated on 28thJanuary 2015. The delay arose from a lack of clarity as regards the student’s registration and a change in Chair of the Student’s Disciplinary committee.
Ultimately, training in dignity at work was provided to approximately half of the students by the Respondent’s Equality Officer. The remaining students were unavailable at that time because they were on placement outside the college.
The Respondent submitted that it had a comprehensive Dignity and Respect policy in place to deal with harassment / sexual harassment in the workplace and when the Appellant was sexually harassed it took such steps as were reasonably practicable to prevent its recurrence. In those circumstances the Respondent is entitled to the defence set out in the Act at Section 14A(2).
Summary of evidence on behalf of the Respondent
The Court heard evidence from Ms O’D, the Head of Department, that on 10thOctober 2014 the Appellant had contacted her to say that she was being generally harassed and sexually harassed by her class. Ms O’D met the Appellant on 14thOctober 2014. The Appellant advised her that she could not identify the persons responsible for the harassment.Ms O’D told the Appellant that she could not refer the entire class to the Student Disciplinary Committee.
She advised the Appellant that she would ask the course leaders to investigate the matter and the Appellant was satisfied that should happen, The Course leaders spoke to the class and confirmed that disruption had occurred but could not identify who was responsible. Ms O’D advised the Appellant that she would speak with the class herself and the Appellant was satisfied with that. Ms O’D subsequently spoke to the class.
On 24thOctober 2014 the Appellant made a complaint as regards a specific student and alleged that he had been disruptive in class. Ms O’D referred that complaint against a named student to the Student Disciplinary Committee.
Ms O’D took the decision to speak to the class and to ask the course leaders to speak to the class and also decided to split the class. That split occurred before 17thNovember 2014.
The Appellant raised a grievance at a later point to the effect that she was not satisfied that the Respondent had dealt adequately with her complaint and, in response to that grievance, a training programme was put in place for the students.
In cross examination Ms O’D confirmed that she did not consult the Respondent’s Equality Officer and she did not report the complaint made on 10thOctober 2014 to any person or body. Ms O’D gave evidence that she had not been trained in relation to Dignity at Work or sexual harassment as part of her role as Head of Department.
The Court also heard evidence from Mr H who was the Chairman of the Student Disciplinary Committee at all material times.
He stated that he was not made aware of this matter following the complaint of 10thOctober 2014 but was made aware after 24thOctober 2014 of a complaint against a named student. That complaint related to disruption and not to sexual harassment.
The Student Disciplinary Committee did not function from a date before 10thOctober 2014 until early 2015 because of a lack of administrative support staff. It was his practice to speak to a student about whom a complaint was made before that student would meet the Student Disciplinary Committee and, in this case, he had met the student complained of by the Appellant. That student had not been asked to meet the Student Disciplinary Committee.
He had received no complaint as Chair of the Student Disciplinary Committee as regards sexual harassment or harassment based on gender of the Appellant. He was made aware of a grievance raised in early 2015 by the Appellant in relation to the handling by the Respondent of her earlier complaint to her Head of Department. As a result of that grievance he had asked the Respondent’s Equality Officer to arrange training on the subject of Dignity at Work. That request was not in writing and the Equality Officer had not been asked to provide training on the issues of sexual harassment and harassment based on gender. In advance of the training, Mr H and the President of the Student’s Union spoke to the class group in order to advise them of the training. Mr H did not refer to harassment or sexual harassment when he spoke to the class and could not recall whether the training programme contained a reference to these issues.
The Court also heard evidence from Ms H, HR manager of the Respondent.
Ms H stated that the Appellant had lodged a grievance on 29thJanuary 2015 arising from dissatisfaction in relation to how her complaint of sexual harassment and harassment based on her gender was handled by the Respondent. Ms H had no involvement in the matter prior to that date.
That grievance was received by the Respondent on 3rdFebruary 2015 and a meeting was held on 13thFebruary 2015. It was agreed with the Appellant that training on Dignity at Work would be provided to all students of the class and she understood that the matter was then resolved. The grievance raised on 29thJanuary was a stage one grievance procedure and the matter was never elevated by the Appellant to stage 2 or three. It was Ms H’s recollection that the ‘slides’ for the training programme drawn up by the Respondent’s Equality Officer contained references to sexual harassment and harassment based on gender.
Ms H gave evidence that she did not know if the head of the Student Disciplinary Committee was trained in matters related to sexual harassment or Dignity at Work specifically, albeit such training was made available to staff generally.
The Law
This matter falls to be considered by application of section 14A of the Act. That section provides: -
- (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
- (i) such harassment has occurred, and
- (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
(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.
(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),
(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,
(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.
- (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
- (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—
It is not disputed between the parties that certain conduct complained of which was carried out by students of the Respondent in a class taught by the Appellant in 2014 was inappropriate and of a sexual nature which affected her dignity at work and constituted sexual harassment. The parties dispute whether certain behaviour occurring in March 2015 constituted such harassment. Harassment and sexual harassment come within the ambit of paragraph (a) of subsection (1) of section 14A and constitutes discrimination.
Subsection (1) of Section 14A fixes an employer with liability for harassment subject to the defences provided by subsection (2) of that section.
Section14A(2)(a) fixes an employer with liability for the harassment subject to the defence that the employer can satisfy the Court that it had taken such steps as were 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 and 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.
This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have 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, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations.”
Therefore, the Court must examine whether or not the Respondent took such steps as were reasonably practicable to prevent the students of the Respondent from harassing or sexually harassing the Complainant as well as considering whether the Respondent took such steps as were reasonably practicable to prevent a recurrence of the harassment.
Preliminary issue
The Appellant has submitted to the Court that she was the subject of discriminatory treatment harassed on the gender ground and sexually harassed. She further submitted that she had been the subject of a series of discriminatory acts in the period from 10thOctober 2014 until 19thMarch 2015. She contends that the events prior to the cognisable period of her complaint which is 28thNovember 2014 until 27thMay 2015 should be viewed as part of a continuum of discriminatory events culminating in harassment on the gender ground on 19thMarch 2015. The Respondent submits that events outside of the cognisable period for the within complaint are out of time and that no discrimination occurred within the cognisable period for the within complaint.
Section 77(5)(a) of the Acts provides: -
- (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
Section 77(6A) in relevant part provides: -
For the purposes of this section —
- (a) discrimination or victimisation occurs—
- (i) if the act constituting it extends over a period, at the end of the period,
The Court, in Cork County VEC v Hurley (EDA24/2011) considered a contention that events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. The Court in that case decided
- ‘that if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences where found not to have involved victimisation the complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the act as the most recent occurrences would have been outside the time limit.’
The Court therefore, consistent with its approach inCork County VEC v Hurley (EDA 24/2011),must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before it can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period.
The Court in the within matter therefore decided to consider first the events submitted by the Appellant to have occurred between the dates of 28thNovember 2014 and 27thMay 2015.
The Respondent has submitted that no event which could be characterised as sexual harassment occurred in the cognisable period for the within complaint. The Appellant has submitted that, on 19thMarch 2015, she was harassed by students of the Respondent in that certain students engaged in behaviour on that date which constituted sexual harassment on the gender ground within the meaning of the Act.
The Act defines harassment and sexual harassment at Section 14A(7) as follows
(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,
(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.- (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
The behaviour at issue involved a number of male students making the following statements in the hearing of the Appellant when discussing planned training in respect of Dignity at Work which had been arranged following the Appellant’s complaint as regards harassment and sexual harassment by students:
“you are not going to believe what the stupid bitch is doing now” and “I am not going next fucking Thursday”
The Court is satisfied that the behaviour of students as described by the Appellant as having occurred on 19thMarch 2015 involved unwanted conduct related to the gender ground being conduct which had the effect of violating the Appellant’s dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for the Appellant in her workplace. The Court therefore concludes that this behaviour constituted harassment on the gender ground within the meaning of the Act. Consequently, the Court finds that the Appellant was subject to unlawful discrimination on the gender ground on that date.
The Appellant has submitted that the events of 19thMarch 2015 represented a regime or continuum of discrimination conducted between 10thOctober 2014 and 19thMarch 2015.
The Court is satisfied, having regard to the submissions of the parties and the uncontested accounts of events in the period, that the Appellant was the subject of a continuum or regime of discrimination from 10thOctober 2014 to 19thMarch 2015. The Court applies the reasoning ofCork County VEC v Hurley (EDA 24/2011),and concludes that all events in that period come within the jurisdiction of the Court arising from the complaint made on 27thMay 2015
Conclusions of the Court
The Court has given careful consideration to the oral and written submissions made and to the evidence given by the Respondent.
The Respondent relies upon the Act at Section 14(A)(2) as a full defence against the complaint of discrimination within the meaning of the Act. The Court must therefore examine whether the Respondent took such steps as are reasonably practicable to prevent sexual harassment and harassment based on gender from occurring in the workplace .and, in circumstances where such harassment has occurred, whether sufficiently robust policies and procedures are in place to deal with it when it is found to have taken place.
The Court, in Pearse Brannigan v County Louth VEC [EDA193] pointed out that:
- This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have 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, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees.
The Court notes that the Respondent did have a Dignity and Respect policy in place at the relevant time and that this policy made clear that sexual harassment was unacceptable. The Respondent submitted that the policy was available on its website. The Appellant submitted that it was extremely difficult to locate this policy on the Respondent’s website and that no steps were taken by the Respondent to highlight the policy or its contents to students of the Respondent. No evidence was proffered by the Respondent which would demonstrate any active promotion of the policy or of any strategy or practice in place which was designed to bring the policy and its contents to the attention of students of the Respondent.
On the basis of the submissions of the parties and the evidence proffered, the Court has no basis for finding that the Dignity and Respect policy of the Respondent was effectively communicated to all students and consequently finds that the Respondent did not take such steps as were reasonably practicable to prevent sexual harassment and harassment based on gender occurring in the Appellant’s workplace.
The Court heard evidence that the Head of Department and the course leaders spoke to the class following the complaint of harassment and sexual harassment made by the Appellant on 10thOctober 2014. The Court has further heard that, following a grievance meeting held on 13thMarch 2015, the Chair of the Student Disciplinary Committee and the President of the Student’s Union spoke to the class where the sexual harassment and harassment had occurred. The Head of Department gave evidence that she could not recall that she had explicitly addressed the issue of sexual harassment when she spoke to the class. Similarly, the Chair of the Student Disciplinary Committee gave evidence that he did not explicitly refer to sexual harassment or harassment based on gender when addressing the class and that he could not recall the President of the Student’s Union having done so. The Chair of the Disciplinary Committee gave evidence that he briefed the Equality Officer of the Respondent as part of the request to the Equality Officer for the design and delivery of training on Dignity at Work to the students of the class. He gave evidence that he did not specifically brief the Equality Officer on the background of acknowledged sexual harassment of a teacher and neither did he specifically request the Equality Officer to address the issues of sexual harassment or harassment based on gender as part of the training programme.
The Appellant submitted and the Head of Department gave evidence to the effect that it was not possible for the Appellant to make a complaint directly to the Student Disciplinary Committee but that the procedure in place required her to raise the matter with the Head of Department who would then communicate with the Committee. The Head of Department gave evidence that it was not possible to bring a complaint to the Committee where the identity of the perpetrators of sexual harassment was unknown.
It is clear to the Court that at all times the Appellant’s complaint was that of sexual harassment and harassment based on her gender in the workplace. It is also clear to the Court that the Respondent at no time raised those matters explicitly with the class of students where the incidents occurred.
The Court has been given a submission and heard evidence on behalf of the Respondent to the effect that the machinery available to the Respondent to deal with complaints of sexual harassment by students was the Student Disciplinary Committee but that such machinery could not operate where a complainant could not identify the particular students who were responsible for acknowledged incidents of sexual harassment.. The Court has also heard evidence that, in any event, the Student Disciplinary Committee was, for reasons unrelated to the within appeal, not functional from a date before October 2014 and the early part of 2015.
This mechanism was unavailable therefore to play any active part in addressing the complaints made by the Appellant. In effect, no mechanisms were in place,
It is common case that the Head of Department, course leaders and the President of the Student’s Union spoke to the class concerned. No evidence has been put before the Court which established that the issue of sexual harassment and harassment based on gender were specifically raised during any of these interactions with the class. It is also common case that the Respondent did split the class in response to the Appellant’s complaint. Finally, it is common case that, in response to a grievance raised by the Appellant in early 2015, the Respondent did put in place a training programme on Dignity at Work for the students of the Appellant’s class. No evidence has been put before the Court however that this programme specifically addressed the issues of sexual harassment or harassment based on gender and the Court has heard evidence that the Equality Officer was not specifically asked by the Respondent to include a focus on these topics when designing the training programme.
In all of those circumstances the Court finds that, while the Respondent did take steps in response to the complaint of the Appellant, the Respondent cannot be found to have taken such steps as were reasonably practicable to avoid a recurrence of sexual harassment and harassment based on gender.
Having regard to this finding and the finding that the Respondent did not take such steps as were reasonably practicable to prevent sexual harassment and harassment based on gender occurring in the Appellant’s workplace, the Court finds that the defence provided by Section 14 (A)(2) of the Act cannot avail the Respondent and it is therefore liable for the discrimination suffered by the Complainant.
Determination
For all of the reasons referred to above the Court is satisfied that the Respondent is liable for the sexual harassment and the harassment suffered by the Appellant on grounds of her gender. Having carefully considered the submissions and the evidence of both parties and bearing in mind the principles contained in Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR1891 that remedies proposed by National Law and implemented by a National Court when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive”, the Court orders the Respondent to pay the Appellant the sum of €10,000 for distress and the effects of sexual harassment and harassment based on her gender. In addition, the Court, in exercise of its power under Section 82(1)(e) of the Act, orders the Respondent to review the operation of its Dignity and Respect policy and in particular the effectiveness of arrangements in place to communicate the policy to students and, as part of those arrangements, to communicate the Respondent’s intolerance of sexual harassment and harassment based on gender. The Court also, in exercise of its power under Section 82(1)(e) of the Act, orders the Respondent to review the effectiveness of arrangements in place to respond to complaints made by teaching staff of sexual harassment and harassment based on gender by students, including where the identity of individuals involved is not known to the victim.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
TH______________________
13 September 2019Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.