Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Firm

Representatives

Ms. Mairead Deevy B.L. on the instructions of E.A. Ryan & Co. Solicitors

Management Support Services (Ireland) Ltd.

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-00020678-001

20/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020678-002

20/07/2018

The Complainant was employed by the Respondent as a Security Officer from 4 April, 2017 until 6 May, 2018 when she resigned from her employment.

The Complainant claims that she was subjected to harassment and sexual harassment in the workplace contrary to Section 14A of the Employment Equality Acts. The Complainant claims that she was subjected to discrimination on the grounds of gender in relation to her conditions of employment contrary to Section 8 of the Employment Equality Acts. The Complainant also claims that she was constructively dismissed from her employment within the meaning of Section 1 of the Unfair Dismissals Acts.

The Respondent denies that the Complainant was subjected to harassment, sexual harassment and/or discrimination in relation to her conditions of employment. The Respondent contends that the Complainant made a complaint of harassment and sexual harassment which was immediately acted upon and dealt with in an effective manner through the internal company procedures. The Respondent denies that the Complainant was dismissed, either constructively or otherwise, from her employment.

CA-00020678-001 – Complaint under the Employment Equality Acts

The Complainant claims that she was subjected to sexual harassment by an employee of the Respondent, Mr. B, in the form of persistent comments on her appearance, her relationship status and in the form of him showing her sexually suggestive and explicit materials on his phone.

The Complainant gave evidence in relation to a number of incidents which occurred in the workplace during which she claims to have been subjected to sexual harassment and harassment by Mr. B. The Complainant recounted an incident whereby she claims that Mr. B referred to her photograph on a social media site and asked her if she was a lesbian. She claims that on another occasion Mr. B made comments about the size of her posterior and that on other occasions he attempted to show her pornographic videos on his phone. The Complainant states that the sexual harassment became more explicit on 8 October, 2017 when, in the course of a night shift, Mr. B asked her if there was: “Any chance of a b…job”. The Complainant stated that she was shocked and appalled that this had occurred, and she reported the matter to her Supervisor, Mr. A, on 13 October, 2017.

The Complainant submits that the immediate reaction of Mr. A appeared to be to shift the onus onto her by asking her whether she wished to deal with the incident formally or informally. The Complainant was unsure how to proceed and, being embarrassed and ashamed at what had occurred, indicated that it could be dealt with informally. It appears that Mr. A, Supervisor, spoke to Mr. B about the incident, who denied showing any inappropriate or pornographic material to the Complainant on his phone, but accepted that he had made a blatant sexual advance by asking her whether there “was any chance of a b…job”.

The Complainant submits that the sole result appears to have been that Mr. B verbally apologised to her by shouting an apology in her direction through a fence in a carpark at the workplace. It does not appear that Mr. B was subjected to any disciplinary sanction whatsoever. Furthermore, by way of e-mail dated 18 October, 2017 from Mr. A to the Complainant which was also copied to the Regional Operations Manager, Ms. C, it was noted that: “As discussed we have spoken to [Mr. B] he has apologised and stated that he did not mean to cause offence”. It was submitted that more worryingly, from the Complainant’s perspective, the Respondent appeared to take the view that such a blatant episode of sexual harassment should simply be forgotten about and not inform her how matters would proceed in the future.

The Complainant submits that the upshot of this was that she was expected to work alongside Mr. B after the sexual harassment had taken place, and indeed was rostered to work a shift with him. The Respondent’s failure to treat the incident with adequate seriousness caused the Complainant to leave her employment with the company. The Complainant submits that to the best of her knowledge Mr. B continues to be an employee of the Respondent with no adverse repercussions arising out of his sexual harassment of her.

It was submitted that the manner of dealing with the Complainant’s complaint was wholly inadequate. Even where the perpetrator had admitted to an extremely serious and demeaning episode of sexual harassment towards the Complainant it was felt that it was appropriate to deal with the harassment by informal means. The means of dealing with the complaint was inadequate in putting the onus onto the Complainant in terms of directing how the complaint should be dealt with and by suggesting to her means of dealing with her complaint which had already been superseded by the fact of her formal complaint to management.

It was further submitted that the Respondent appears to have at best taken the admitted incident less than seriously when it accepted Mr. B’s contention that he had not meant to cause offence to the Complainant. This begs the question as to what exactly an employee would have to do or say for it to be treated as a serious incident of harassment. The fact that, contrary to the terms of the contract of employment, the perpetrator does not appear to have been disciplined further shows the lack of seriousness attached by the Respondent to what was in fact a most serious instance of sexual harassment.

It was submitted that Mr. B’s assertion that he had not shown pornographic material to the Complainant appears to have been taken at face value without any investigation into this aspect of her complaint. The rostering of the Complainant to work alongside Mr. B is further evidence of how little seriousness the Respondent attached to a very serious incident.

It was submitted that it is clear that the focus in cases such as this should be on the perception on the part of the harassed employee rather than the purported intent of the perpetrator or on the intentions of the employer (as per A Complainant -v- A Contract Cleaning Company DEC-E2004-068 as referred to at para. 12-56 of Employment Equality Law, Bolger, Bruton, Kimber. Dublin 2012). It was submitted that it is no defence on the part of an employer to say that an employee admitted carrying out a very serious instance of sexual harassment, but that the employee in question did not mean to cause offence. It is also clear, in particular having regard to the Respondent’s own contract of employment with the Complainant, that each aspect of the Complainant’s complaint ought to have been investigated and it is not sufficient or appropriate to simply recount a denial of showing inappropriate content on a mobile phone as being conclusive and ending that aspect of the matter.

It was further submitted that an ineffectual response on the part of an employer which does not adequately address the matters can give rise to a finding of discrimination against an employer (as per Odion -v- Techniform (Waterford) Limited as discussed in Employment Equality Law, Bolger et al. Para 12-62).

CA-00020678-002 – Complaint under the Unfair Dismissals Acts

The Complainant claims that she was constructively dismissed from her employment within the meaning of Section 1 of the Unfair Dismissals Acts. It was submitted that the effect on the Complainant, and on her feeling of confidence and security in her employment, as well as on her dignity at work, was enormously undermining, with the almost inevitable consequences that she was left with little option but to leave her employment and seek work elsewhere. It was submitted that the Complainant had attempted to have a most serious matter dealt with, however the Respondent’s ineffectual response left her with no confidence in the Respondent, and with her own position in her workplace entirely undermined.

The Complainant submits that on giving her notice of intention to leave employment, the Respondent’s Regional Operations Manager, Ms. C, asked her whether there was any particular reason why she was leaving. The Complainant responded that there were many reasons why she was leaving. Ms. C did not enquire further as to what the reasons might be, or whether the harassment suffered by the Complainant played a part in her leaving her employment with the company. The Respondent’s conduct gave the Complainant the impression that the conduct in question was not taken seriously at all and that the Respondent would prefer to brush the issue aside rather than actually deal with it at any stage.

It was submitted that the Complainant had little option but to resign her employment. The Complainant had raised serious issues with the Respondent and found that they were dealt with in a wholly insufficient manner. To compound this, she was rostered to work alone at night with Mr. B after the sexual harassment having taken place.

The Complainant accepts that she did not invoke the internal grievance procedures prior to resigning her position with the Respondent. It was submitted that the Complainant had lost faith in the Respondent’s ability to deal with any grievance which she may have raised as a result of the ineffective manner in which it had dealt with her complaint of sexual harassment.

It was submitted that in such circumstances the Complainant was entirely justified in taking the view that the Respondent had failed, and was continuing to fail, to honour a fundamental term of the contract of employment in not only failing to deal appropriately with her complaint but in requiring her to work with the person who had sexually harassed her.

CA-00020678-001 – Complaint under the Employment Equality Acts

The Respondent submits that the Complainant began her employment with the Respondent company on or about 11 April, 2017 as a Security Officer. The Complainant was issued with terms and conditions of employment along with a company handbook at the time of her commencement of employment and accepted all the relevant terms and conditions as outlined in both her contract of employment and the policies and procedures contained within the company handbook.

The Complainant approached her Site Supervisor, Mr. A, on or about 13 October, 2017 and raised a number of concerns in relation to her employment. The Complainant indicated that a colleague (Mr. B) had made what she felt was an inappropriate comment to her on 8 October, 2017. The Complainant described how this male colleague had asked her “Was there any chance of a b…job”. The Complainant also alleged that the same colleague had shown her inappropriate social media posts and some video, which she described as “like porn”.

The Respondent submits that the Site Supervisor, Mr. A, treated the matter with the utmost seriousness and requested the Complainant to make a complaint in writing. Further, Mr. A informed the Complainant that the matter would need to be escalated to which she replied that she was not comfortable with it being escalated. Mr. A gave the Complainant the option of having the matter dealt with informally and told her that she could have the weekend to consider how she wanted to proceed. Immediately following this meeting with the Complainant, Mr. A sent an e-mail to all staff on site, reminding them of their responsibilities in relation to bullying and harassment along with a copy of the relevant policies.

The Respondent submits that Mr. A met with the Complainant again on 18 October, 2017 and at this meeting Mr. A was informed that it was the Complainant’s wish to deal with the matter informally. Mr. A also met with the employee in question (Mr. B) on 18 October, 2017 who admitted to making the comment, however, he did not admit to showing the inappropriate social media posts, stating that he had shown her funny posts on social media. Mr. B further stated that it was not his intention to cause any offence to the Complainant and apologised for his behaviour.

The matter was passed to the Regional Operations Manager, Ms. C, who met with the employee, Mr. B. The conversation revolved around how serious the matter was and Ms. C reminded Mr. B of the values and ethos of the company, and it was agreed that he would apologise to the Complainant. It was the Respondent’s understanding that the matter had been effectively and efficiently dealt with, and that the Complainant was satisfied with the resolution.

The Respondent submits that no further complaints were raised by the Complainant in relation to the matter, any similar matter or in fact any further issues. The Complainant tendered her resignation on 26 April, 2018. The Complainant was subsequently invited to attend an exit interview where she indicated that the reason she was leaving her employment was due to irregular hours. Further, the Complainant stated that she was returning to her previous employment. The first the Respondent became aware that the Complainant felt that the complaint raised on 13 October, 2017 was not dealt with to her satisfaction was upon notification that she had referred a complaint to the WRC.

Evidence of Mr. A, Site Supervisor

Mr. A stated that he was employed by the Respondent as a Site Supervisor and was the Complainant’s supervisor on the site where she was working. Mr. A stated that he received a phone call from the Complainant on 13 October, 2017 in which she asked to meet him on the site. Mr. A stated that he met with the Complainant and she informed him about incidents of sexual harassment that had taken place involving Mr. B. Mr. A stated that the Complainant provided details in relation to the incident which occurred on 8 October, 2017 in which she claimed that Mr. B had asked her “Was there any chance of a b…job”. Mr. A stated that the Complainant indicated that she did not feel comfortable in making an issue out of this matter. However, Mr. A stated that he informed the Complainant that he was treating the matter extremely seriously and that it would be necessary for the incidents to be investigated and escalated.

Mr. A stated that given the Complainant’s reluctance to make a complaint, he informed her that she should consider the matter over the weekend and decide if she wanted to proceed with a formal complaint or have the matter dealt with informally. Mr. A stated that the Complainant was provided with a copy of the Respondent’s Harassment and Bullying Policy and it was explained to her that she could pursue the matter either formally or informally. Mr. A also advised the Complainant that she should consult with her Trade Union representative in relation to the matter.

Mr. A stated that he met with the Complainant again on 18 October, 2017 to discuss the matter and she signed off on a written statement which she made in relation to the alleged sexual harassment. Mr. A stated that the Complainant confirmed at this meeting that she had decided to proceed with the matter informally. Mr. A stated that he subsequently met with Mr. B and outlined the details of the complaint of sexual harassment which had been made against him by the Complainant and indicated that this matter was being treated very seriously by the Respondent. Mr. A stated that a statement was taken from Mr. B in relation to the matter. Mr. A stated that Mr. B admitted to making the comment whereby he asked the Complainant “Was there any chance of a b…job” but did not admit to any of the other alleged incidences of sexual harassment outlined by the Complainant. Mr. A stated that Mr. B indicated that he had not intended to cause any offence to the Complainant and that he was willing to apologise to her for his behaviour. Mr. A stated that Mr. B was issued with a verbal warning in respect of his conduct arising from the incident of sexual harassment. In cross examination, Mr. A stated that he was satisfied a verbal warning was the appropriate disciplinary sanction in the circumstances.

Mr. A stated that he contacted the Complainant and informed her that Mr. B wished to apologise for his behaviour and that he subsequently witnessed Mr. B apologising to her by way of a phone call. Mr. A stated that the Complainant sustained an injury at work on 22 October, 2017 and was subsequently absent from work for approx. four months after the incident involving Mr. B had been closed.

Mr. A stated that measures were put in place so that the Complainant would not have to work on the same shift as Mr. B after she returned to work following her sick absence. In cross-examination, Mr. A stated that there was only one occasion when the Complainant was rostered to work on the same night shift as Mr. B. Mr. A stated that he visited the site on that occasion to check if the Complainant had any difficulty with this rostering arrangement and having spoken to her she did not raise any issue. Mr. A stated that the Complainant did not raise any further issues or difficulties in relation to her employment prior to her resignation on 6 May, 2018.

Evidence of Ms. C, Regional Operations Manager

Ms. C stated that she received a telephone call from Mr. A, Site Supervisor, on 13 October, 2017 during which he indicated that the Complainant had raised the issue with him concerning the alleged sexual harassment by Mr. B. Ms. C stated that she provided advice to Mr. A in relation to the application of the internal policy and procedures in the context of dealing with the complaint made by the Complainant. Ms. C stated that she was satisfied with the manner in which Mr. A dealt with this matter and that the internal policies and procedures had been properly applied. Ms. C stated that Mr. B was given a copy of the company’s Bullying and Harassment Policy after the incident with the Complainant and was made fully aware of the seriousness of the matter. In cross examination, Ms. C stated that Mr. B was not required to undertake any specific training following the incident of sexual harassment involving the Complainant.

Ms. C stated that she called to the Complainant’s home on 22 October, 2017 in order to complete an incident report in relation to the injury which she had sustained at work. Ms. C stated that the Complainant could have raised any issues she had in relation to the incident of sexual harassment or other workplace issues that were causing her concern, but she failed to do so.

Ms. C stated that the Complainant was absent from work for a period of four months as a result of this injury and she could have approached Mr. A on her return with any concerns in relation to her employment. Ms. C stated that she received a text from the Complainant on 26 April, 2018 to confirm that she was resigning her position. Ms. C stated that she subsequently contacted the Complainant to establish the reasons why she was resigning, and the Complainant informed her that she was leaving “for better hours” elsewhere.    

Submissions

The Respondent sought to rely upon the provisions of Section 14A(2) of the Employment Equality Acts which provides that it shall be a defence for an employer in relation to a complaint of harassment/sexual harassment to show that they took reasonably practicable steps to prevent the harassment or to prevent the employee from being treated differently in the workplace or in the course of employment, if and so far as any such treatment has occurred, to reverse the effects of it.

The Respondent submits that the company has a clear anti-harassment and bullying policy that was in place at the time of the Complainant’s employment. The Complainant and all other employees are provided with a copy of these policies in the company handbook. In addition, all employees within the organisation have been thoroughly trained as part of their induction training in relation to the bullying and harassment in particular. All employees are notified of updates or changes on a regular and ongoing basis. It is clear from the policy that the Respondent is focussed on prevention, however the policy also clearly outlines the necessary action to taken by the employee should they have to utilise it. The policy outlines that there is both a formal and informal procedure to deal with such complaints.

The Respondent submits that it is clear from the facts that the company has taken all reasonably practical steps to ensure that the Complainant was not sexually harassed this fulfilling its obligations under the first part of Section 14A(2) of the Acts.

The Respondent submits that the second aspect of the defence is that the employer took reasonable steps to prevent the employee being treated differently in the workplace, and if as so far as any such treatment has occurred, to reverse the effects of it. The Respondent was made aware of the complaint on 17 October, 2017. Upon receipt of the complaint, the Complainant’s supervisor, Mr. A, immediately took steps to address the matter. First, Mr. A discussed with the Complainant the seriousness of the complaint and then explained the process and steps that would need to be taken to address the issue. The Complainant indicated that it was her wish to have the matter dealt with informally. The relevant policy was reissued to the Complainant and she was given time to consider if she still wished for the matter to be dealt with informally, and on 18 October, 2017, she indicated that it was still her wish to have the matter dealt with informally.

Following the meeting with the Complainant on 13 October, 2017, the Site Supervisor, Mr. A, sent a reminder email of the behaviour expected from employees, and re-issued the Bullying and Harassment Policy to all staff on the site where the Complainant was located. The Complainant’s complaint was informally investigated, the employee admitted to the inappropriate comments, however denied entirely that any of the social media posts were inappropriate and described them as just funny. The employee was spoken to regarding expectations and behaviour, and the employee volunteered to apologise to the Complainant for any offence he may have caused. At this stage the manager and supervisor involved were satisfied that the matter had been successfully dealt with. No further complaints were raised, and no indication from the Complainant that she was dissatisfied with the results of the informal approach.

The Respondent submits that it is entitled to rely upon the defence as set out in Section 14A(2) of the Acts on the basis that they have both taken reasonably practicable steps to prevent any harassment taking place, and once they received the complaint took reasonably practicable steps to reverse the effects of it. The Respondent further submits that at all times it has acted in accordance with its own policies, which are based on best practice and the Employment Equality Act 1998 (Code of Practice (Harassment) Order 2012 (SI No. 208 of 2012).

CA-00020678-002 – Complaint under the Unfair Dismissals Acts

The Respondent disputes the Complainant’s claim of constructive dismissal. The Respondent submits that in order for an employee to ground a claim for constructive dismissal in accordance with the definition of “dismissal” in Section 1 of the Act, it is clear that the employer must have either breached or intended to breach the contract of employment or behaved so unreasonably that it would have been reasonable in the circumstances for the employee to have terminated her employment.

The Respondent submits that the Complainant has asserted that she had following the informal grievance raised in October, 2017, been subjected to numerous other occasions of inappropriate behaviour ad comments amounting to sexual harassment. However, it was submitted that at no time had the Complainant raised these issues with either her Supervisor or the Area Manager. Furthermore, the Complainant failed to raise a formal grievance under the internal procedures of which she was fully aware, from October, 2017 when she was informed and supplied with all the relevant procedures.

The Respondent submits that when the company was made aware of the Complainant’s complaint on 13 October, 2017, it immediately took action. First, the Complainant was advised of the grievance procedures. In addition, all staff on site were issued with a reminder that all members of the team were to be treated with dignity and respect. Further, the e-mail reminded staff that anyone not treating other employees with dignity and respect would be dealt with by the company and their Supervisor. In addition, staff were re-issued with the relevant policies to refresh their understanding of what constitutes bullying and harassment.

The Respondent submits that it is in fact the case that at the time of the complaint the employer’s actions were entirely reasonable and appropriate. At no stage during the process did the Respondent either act unreasonably or in a manner in which would have given the Complainant the impression that her employer intended not to be bound by one or more essential term of her contract of employment.

The Respondent submits that the Complainant failed to engage with the company through the internal grievance procedures as outlined in the company handbook. In the case of An Employee -v- An Employer (UD1421/2008), the EAT outlined that the law places a very high burden of proof on the employee to demonstrate that they acted reasonably and exhausted all internal procedures prior to making a claim of constructive dismissal. It was submitted that the Complainant made no such attempt to act reasonably and made no effort to have the matter resolved beyond the informal process that she elected for in October, 2017. The Complainant was made aware at the time of her commencement of employment and in October, 2017 of a formal and informal process, she was advised that the company took the matter very seriously, and was provided with a copy of the relevant procedures to guide her in making the decision as to how she wanted her complaint handled.

It was submitted that the Complainant chose the informal process, the informal process was utilised by the Respondent, and the matter was concluded. Following the process, the Complainant made no indication to the company that she was unhappy with the outcome, nor did the Complainant raise any further issues, either formally or informally to resolve her issues prior to resigning her employment. In addition, the Complainant was given an exit interview, and even at that time refused to raise any issue or complaint with the Respondent.

It was submitted that the Respondent at all times acted reasonably and showed a clear intention to be bound by the terms of the contract and as such has satisfied the test as set down in the aformentioned case of An Employee -v- An Employer. Further, the Complainant acted unreasonably when she failed to engage in the grievance procedure, and as such it is submitted that this is not a case of constructive dismissal according to the definition set out in Section 1 of the Act.

The Respondent accepts that there are exceptions to the requirement that an employee must exhaust the internal procedures, however, it was submitted that no such exception arises in the context of the instant case. The Respondent referred to the case of Zabiello -v- Ashgrove Facility Management UD1106/2008 where the EAT held that: “For a claim of constructive dismissal to succeed the claimant needs to satisfy the Tribunal that her working conditions were such that she had no choice but to resign …. The Tribunal is satisfied that the claimant did not exhaust the grievance procedures before she resigned. Accordingly, the Tribunal finds that the claimant was not constructively dismissed”. The Respondent submits that there is no reason to apply an exception to the general rule that the Complainant must have entered into some form of grievance prior to terminating her employment in the circumstances of the instant case.

The Respondent also relied upon the following cases in support of its position, namely: Cedarglade Limited -v- Tina Hliban UDD1843, An Employer -v- An Employee UD1421/2008 and Murray -v- Rockabill Shellfish Limited [2012] ELR 331.

CA-00020678-001 – Complaint under the Employment Equality Acts

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Accordingly, the issues for decision in this case are:

      (i)            Whether or not the Complainant was subjected to sexual harassment and harassment pursuant to S.14A of the Acts.

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

The Complainant also referred a complaint of victimisation contrary to Section 74(2) of the Acts, but this specific complaint was withdrawn by the Complainant at the oral hearing.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.

Harassment and Sexual Harassment

The first issue that I must consider is whether or not the Complainant was subjected to harassment and sexual harassment pursuant to Section 14A of the Acts. In this regard, I am required to consider two aspects of the evidence, namely:

(a)    Whether the Complainant has established on the balance of probability that she was sexually harassed and/or harassed in terms of the incidents she described in her evidence. This includes an evaluation as to whether the events the Complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment and sexual harassment.

(b)    If the answer to the question in (a) above is in the affirmative, did the Respondent take reasonable action to prevent the harassment and sexual harassment occurring in the workplace. This includes considering the extent to which the Respondent was aware of the Complainant’s experiences, to enable it to deal with the Complainant’s complaint of harassment and sexual harassment, and if it was aware whether it took appropriate action to enable it to rely upon the defence in Section 14A(2) of the Acts.

The Complainant adduced evidence that she was subjected to harassment and sexual harassment by a colleague, Mr. B, in the workplace during the period of her employment. The Complainant contends that the harassment and sexual harassment took the form of persistent comments on her appearance, her relationship status and in the form of him showing her sexually suggestive and explicit materials on his phone. The Complainant contends that the sexual harassment became more explicit on 8 October, 2017 when, in the course of a night shift, Mr. B asked her if there was: “Any chance of a b…job”.

The Respondent accepts that the latter incident of sexual harassment occurred, and that Mr. B admitted to making the comment after he was confronted by the Site Supervisor, Mr. A, in relation to the matter in response to a complaint made to him by the Complainant. The Respondent contends that Mr. B did not admit to showing the Complainant inappropriate videos or posts from social media sites on his phone. The Respondent maintains that it acted upon the Complainant’s complaint of harassment and sexual harassment immediately upon becoming aware of the matter and that it took all such steps as were reasonable to prevent any such harassment and sexual harassment occurring and re-occurring, and in this regard relies on the defence in Section 14A(2) of the Acts. The Respondent also maintains that it has sufficient policies and procedures in place to ensure a harassment-free workplace for all its employees.

Section 14A(7)(i) of the Act defines “harassment” as any form of unwanted conduct and Section 14A(7)(ii) defines “sexual harassment” as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. 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 have carefully considered the nature of the incidents of harassment and sexual harassment which the Complainant claims she was subjected to by Mr. B during the period of her employment. These alleged incidents of harassment and sexual harassment relate to behaviour and conduct by Mr. B, of a verbal nature which included comments of a sexually explicit, derogatory and suggestive nature relating to the Complainant and her sexuality and behaviour which had the effect of intimidating the Complainant such as showing her pornographic videos from social media sites on his phone.

I note that the Respondent was not in a position to dispute the actual occurrence of the alleged incidents of harassment and sexual harassment albeit that Mr. B denied that he had shown the Complainant pornographic videos from social media sites on his phone after being confronted by the Site Supervisor, Mr. A, in relation to the matter. Mr. B did not attend the hearing to give evidence in relation to the matter, and therefore, the Complainant’s evidence in relation to the alleged incidents of harassment and sexual harassment was uncontested.

I have found the Complainant’s evidence to be very credible in relation to the alleged prohibited conduct to which she claims to have been subjected to by Mr. B during her period of employment. It is clear from the written statement which the Complainant made to Mr. A on 13 October, 2017 that she recounted the occurrence of further incidents of inappropriate and unwelcome behavior and conduct by Mr. B which had taken place prior to the incident on 8 October, 2017 when he asked her if there was: “Any chance of a b…job”. On balance, I accept the Complainant’s evidence in relation to this matter and I am satisfied that the incidents of harassment and sexual harassment as alleged by her did occur. Furthermore, I am satisfied that these incidents of inappropriate, offensive and unwelcome behaviour had the effect of violating the Complainant’s dignity and subjecting her to a hostile and intimidating workplace. I therefore, find that the Complainant has established a prima facie case that she was harassed and sexually harassed in the course of her employment.

Section 14A(2) of the Acts provides that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent sexual harassment and harassment from occurring in the first place and in circumstances where such harassment has occurred that it took action to reverse its effect. The Labour Court has previously held that in order for an employer to avail of the first component of this defence it must show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment or sexual harassment occurred and that the policy was effectively communicated to staff. In the case of AHotel –v- A Worker EDA0915 the Labour Court held 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”.

In the present case, I note that the Respondent had a policy on Bullying and Harassment in place to deal with harassment and sexual harassment in the workplace. The Employment Equality Act, 1998 (Code of Practice) (Harassment) Order, 2012 (S.I. No. 208 of 2012) is intended to give practical guidance to employers and employees, as well as their respective representatives, on what is meant by sexual harassment in the workplace and how it may be prevented and while it does not impose any legal obligations in itself nor is it an authoritative statement of the law on the issue.

I have examined the Respondent’s policy and procedures on sexual harassment and harassment, and I accept that they generally conform to the standards set out in the Code of Practice. However, it is not sufficient to avail of the defence under Section 14A(2) for an employer simply to have these policies in place if it does not take all reasonable efforts to effectively communicate the existence of such policies to its workforce.

The Respondent contends that the Complainant and all other employees have been made fully aware of the existence of the company’s policy and procedures on harassment. The Complainant was not in a position to dispute the Respondent’s evidence on this point and accepts that she received a copy of the Company Handbook and was aware of the existence of the Respondent’s anti-harassment policies. On balance and having regard to the submissions of the parties and the evidence adduced, I am satisfied that the Respondent’s policy and procedures on harassment were effectively communicated to its staff.

The second element of the defence at Section 14A(2) is where harassment has occurred that the employer took action to reverse its effect. This involves an evaluation of what action the Respondent took once it became aware that an employee was making a complaint of harassment and/or sexual harassment under the Acts (or Policy) and how promptly it took those actions.  

In the case of Limerick City Council -v- Martin Mannering EDA1210 the Labour Court held that: “Consequently, unless the defence provided for by s. 14A(2)(a) is made out the Respondent is liable to the Complainant by operation of s. 14A(1)(a) of the Act. That raises a question as to the necessary ingredients of the defence provided for at s. 14A(2)(a) of the Act. On a plain reading of paragraph (a) of subsection (2) what is required is that the Respondent proves that it took steps that are reasonably practical to prevent the perpetrator from harassing the victim. In a situation where there is continuing harassment the defence will normally succeed or fail on the adequacy of the employer’s response to any complaint made by the victim. Hence, where an employer fails to conduct an adequate investigation, or fails to apply adequate sanctions on a harasser, the employer will be fixed with liability for any subsequent acts of harassment.”

Having regard to the totality of the evidence adduced, I find that there were a number of critical shortcomings and fundamental failings in relation to the manner in which the Respondent dealt with the Complainant’s complaint of harassment and sexual harassment which were of such significance so as to render its response inadequate in the circumstances.

In coming to this conclusion, I find that the nature and manner of the Respondent’s response to the situation was not commensurate to the gravity and seriousness of the sexual harassment which occurred and the impact that this treatment had on the Complainant. In this regard, I note that the Complainant reported the alleged harassment and sexual harassment to the Site Supervisor, Mr. A, on 13 October, 2017. The Complainant subsequently made a written statement outlining details of the incident that had occurred on 8 October, 2017 where she claimed that Mr. B had asked her if there was “any chance of a b…job” and significantly, she also confirmed that there had been other occurrences of inappropriate behaviour by Mr. B prior to that date.

I am satisfied that Mr. A recognised the seriousness of the allegations after the Complainant reported the incidents of harassment and sexual harassment to him and that he sought to act on the complaint when this matter was brought to his attention. In this regard, I note that Mr. A issued an e-mail on 13 October, 2017 to all staff on site to remind them that all members of the team were to be treated with dignity and respect and that any failure to so would not be tolerated by the company.

It was not in dispute that Mr. A referred the Complainant to the Respondent’s internal Bullying and Harassment Policy and requested her to make a decision as to whether she wished to have the matter dealt with either formally or informally. Neither was it in dispute that the Complainant subsequently informed Mr. A that she wished to have the matter dealt with informally following a period of reflection. However, given the gravity and seriousness of the allegations made by the Complainant in the circumstances of the instant case, I cannot accept that the Respondent acted in an appropriate or adequate manner when deciding that this was a matter which could or should be properly dealt with on an informal basis.

I am satisfied that the urgent requirement for a thorough investigation and disciplinary process should have become even more apparent to the Respondent after Mr. B admitted to having asked the Complainant if there was “any chance of a b…job” but denied having engaged in any further acts of prohibited conduct. I can only conclude that the Respondent accepted without demur the denials by Mr. B that he had engaged in any further acts of prohibited conduct, notwithstanding the fact that the Complainant had clearly stated that a number of other such incidents had also occurred. In the circumstances, I am satisfied that there was an obligation on the Respondent to conduct a thorough investigation into the matter in accordance with its formal procedures, to apply adequate sanctions in the event that the other allegations were held to be proven and finally, in such circumstances to take reasonably practicable steps to prevent any reoccurrence of the prohibited conduct. I find that the Respondent’s failure to conduct an adequate and thorough investigation in relation to all of the alleged acts of harassment and sexual harassment made by the Complainant against Mr. B amounted to a fundamental failure in relation the manner in which it dealt with the matter.

It is clear that, instead of acting in the foregoing manner, the Respondent proceeded to conduct an incomplete and cursory investigation into the matter which resulted in a verbal warning being issued to Mr. B and the requirement for him to apologise to the Complainant for any offence which he may have caused arising from the incident of sexual harassment on 8 October, 2017. I cannot accept that the sanction applied in respect of this act of misconduct, which I consider was very serious in terms of the impact and effect which it had on the Complainant personally and her working environment, was adequate or proportionate in the circumstances or that it served as a sufficient deterrent to prevent a reoccurrence of such conduct in the future.

I take the view that there was an obligation on the Respondent to closely monitor the conduct and behaviour of Mr. B in the aftermath of the incident that occurred on 8 October, 2017 to ensure that there was no further reoccurrences of such behaviour. However, I find that the Respondent failed to put adequate measures in place to monitor the conduct of Mr. B after the occurrence of this incident of sexual harassment or to provide him with any relevant training on issues of harassment and sexual harassment in the workplace.

I also find that the Respondent failed to put adequate measures in place to separate the Complainant and Mr. B in the workplace following the incident of sexual harassment on 8 October, 2017. It was common case that the Complainant sustained an injury to her hand at work on 22 October, 2017 and was subsequently absent from work for a period of four months thereafter. I note the Respondent’s evidence that measures were put in place to ensure that the Complainant and Mr. B were not rostered on the night shift together after she returned to work following this absence. However, notwithstanding the foregoing, I am satisfied that there was subsequently at least one occasion on which the Complainant and Mr. B were rostered on the same night shift and it is clear that they were also rostered on the day shift on several occasions which resulted in unavoidable interaction between them in the workplace.

Whilst I accept the Respondent’s evidence that the Complainant did not report any further instances of harassment or sexual harassment by Mr. B following her return to work after this absence, I take the view that it was incumbent on the Respondent to take all reasonable measures to mitigate against the possibility of the prohibited conduct from reoccurring. I note the Respondent adduced evidence that the company was also contracted to provide security services on another site in the same locality where the Complainant and Mr. B were based at the material time in question. I further note that the Respondent did not adduce any evidence to suggest that consideration was afforded to the option of transferring Mr. B to the other site in response to the situation. In the circumstances, I find that it was remiss of the Respondent not to consider and implement such a course of action to ensure that the Complainant would not be required to have any further interaction with him in the workplace.  

Having regard to the foregoing, I find that the Respondent cannot avail of the defence provided by Section 14A(2) of the Acts and it is therefore liable for the harassment and sexual harassment suffered by the Complainant. Accordingly, I find that the Complainant is entitled to succeed in this element of her complaint.

Conditions of Employment

The next element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to discrimination on the grounds of gender in relation to her conditions of employment.

Section 14A(1)(a) of the Acts provide that where “an employee is harassed or sexually harassed either at a place where the employee is employed or otherwise in the course of his or her employment by a person who is ….. employed at that place or by the same employer …… the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment”.

As I have already found above, I am satisfied that the Complainant was subjected to harassment and sexual harassment in the workplace by Mr. B. Furthermore, I am satisfied that the Respondent failed to take such steps as were reasonably practicable to prevent the Complainant from being treated differently in the workplace arising from this prohibited conduct. Having regard to the foregoing, I find that this harassment and sexual harassment constitutes discrimination against the Complainant in relation to her conditions of employment. Accordingly, I find that the Complainant is entitled to succeed in relation to this element of her complaint.  

CA-00020678-002 – Complaint under the Unfair Dismissals Acts

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

“dismissal”, in relation to an employee, means—

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

The Complainant contends that she had no option but to resign her position and look for alternative employment as a result of the ineffectual response by the Respondent to her complaint of harassment and sexual harassment. The Complainant contends that she had raised an extremely serious issue with the Respondent which was dealt with in a wholly insufficient manner and to compound matters even further she was required to continue working with her harasser, Mr. B. The Complainant claims that she was entirely justified in resigning her position on the basis that the Respondent had failed, and was continuing to fail, to honour a fundamental term of her contract in not only failing to deal with the complaint appropriately but also in requiring her to continue working with the person who had sexually harassed her.

The Respondent disputes the Complainant’s contention that her position was untenable and contends that she acted totally unreasonably in resigning from her employment without fully exhausting the internal grievance procedures in relation to any issues that were causing concern in relation to her employment. The Respondent contends that the Complainant’s complaint of harassment and sexual harassment had been dealt with satisfactorily in accordance with its internal policy on harassment and that she did not raise any further concerns in relation to this matter prior to her resignation.

It is well established that in advancing a claim for constructive dismissal that an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his or grievance with their employer.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A. UDD1636 that: ”In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal in the case of An Employee v An Employer UD1421/2008 held that: “In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In considering this issue, I am satisfied that the Respondent had an established Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000). Having regard to the evidence adduced, I note that it was not in dispute that this policy was brought to the Complainant’s attention during her period of employment and that she was fully aware of its existence.

It was common case that the Complainant did not invoke the internal grievance procedures prior to her resignation. The Complainant contends that there were factors present in the circumstances of the present case which would excuse her failure to invoke the internal procedures as a result of the wholly ineffective manner in which it had dealt with her complaints of harassment and sexual harassment. It is well established that there can be situations in which a failure to invoke the internal procedures in relation to a grievance will not be fatal in circumstances where it is established that an employee could not have faith in the employer’s ability to properly or effectively address his/her grievances (see Liz Allen -v- Independent Newspapers [2002] 13 ELR 84, Moy -v- Moog Ltd [2002] 13 ELR 261, and Monaghan -v- Sherry Bros [2003] 14 ELR 293 and New Era Packaging -v- A Worker [2001] ELR 122).

Having regard to the totality of the evidence adduced, I am not satisfied that there were factors present in the circumstances of the present case which excuse the Complainant’s failure to invoke the internal grievance procedures before resigning. In coming to this conclusion, I am cognizant of the fact that I have already found that the manner in which the Respondent dealt with the Complainant’s complaint of harassment and sexual harassment was inadequate in the circumstances. However, notwithstanding this finding and the significant failures by the Respondent in relation to the manner in which it dealt with her complaint, I find that the Respondent did not seek to coerce or intimidate the Complainant into having her complaint dealt with informally or to deliberately avoid taking action in relation to the matter. Whilst I accept that the Respondent should have progressed the Complainant’s complaint through the formal procedures given the gravity and seriousness of the allegations, I am satisfied, on balance, that the Site Supervisor, Mr. A, acted in good faith upon being made aware by the Complainant of the alleged sexual harassment and harassment and that he sought to deal with the matter in accordance with the internal policies, albeit that this response was inadequate in the circumstances.

It was common case that the Complainant went absent from work on 22 October, 2017 shortly after the Respondent had dealt with her complaint on an informal basis as a result of sustaining a work-related injury to her hand. The Complainant was absent from work for a period of four months thereafter and she subsequently informed the Respondent of her intention to resign from her employment on 26 April, 2018. I am satisfied that the Complainant did not indicate to the Respondent at any juncture during the intervening period of seven months after her complaint had been dealt with informally in October, 2017 that she was dissatisfied with the outcome of the process or that she felt her working conditions were such that she was contemplating terminating her employment.

Having regard to the evidence adduced, I am satisfied that the Complainant had a relatively good working relationship with her Site Supervisor, Mr. A and the Regional Operations Manager, Ms. C. In the circumstances, I find that it is not unreasonable to conclude that it would have been possible for the Complainant to raise concerns in relation to any workplace issues which she considered were rendering her position untenable prior to taking the decision to resign.

I have also taken cognizance of the evidence adduced by Ms. C that she contacted the Complainant by telephone after receiving notification of her intention to resign to try and establish the reasons for her resignation. I note that Ms. C adduced evidence that the Complainant informed her during this conversation that she was resigning her position “for better hours” with another employer. I further note that the Complainant disputes that she imparted any such information to Ms. C during this telephone conversation. Notwithstanding the conflict of evidence on this point, I find it particularly significant that the Complainant did not indicate to Ms. C during their interaction on this matter that the reason for her resignation was attributable to the manner in which the Respondent had dealt with her complaint of harassment/sexual harassment or the outcome of this process.

Having regard to the totality of the evidence adduced, I find that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met where the Complainant failed to exhaust the procedures available to her before taking the step to resign, thereby not providing the Respondent with an opportunity to address her grievances in a proper manner.

Having regard to the foregoing, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

CA-00020678-001 – Complaint under the Employment Equality Acts

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of the Act.

In accordance with Section 79(6) of those Acts I issue the following decision. I find that -

        (i)            the Complainant was harassed and sexually harassed by the Respondent contrary to Section 14A of those Acts.

      (ii)            the Complainant was subjected to discrimination by the Respondent on the grounds of gender in relation to her conditions of employment.

In accordance with the provisions of Section 82 of the Acts, I consider that an award of compensation is the appropriate form of redress in the circumstances of the present case.

In considering the level of compensation, I note that there was a dispute between the parties in relation to the admissibility or otherwise of a medical report which the Complainant sought to adduce in evidence at the oral hearing in relation to the effects that the harassment and sexual harassment had on her health following the termination of her employment. The Respondent objected to the admissibility of the report on the basis that the physician who completed the report was not in attendance to verify its contents and was not available to be cross-examined on the subject matter. I informed the parties at the hearing that I was not precluded from admitting the report into evidence and that it would be a matter for me to decide what weight, if any, that should be ascribed to the report in the circumstances. Having considered this matter, I have decided that this report is of little or no evidential value in relation to my assessment of the effects of the discrimination on the Complainant.

In the circumstances, I have assessed the appropriate award of redress having regard to the seriousness of the discrimination, the effect on the Complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. I therefore order, in accordance with my powers under Section 82 of the Employment Equality Acts, that the Respondent pay to the Complainant the sum of €15,000 (being fifteen thousand euro) for the distress suffered by the Complainant and the effects of the discrimination, harassment and sexual harassment on her.

This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

In accordance with the provisions of Section 82(1)(e), I also order that all staff within the Respondent company who have staff management functions receive appropriate training in its Bullying and Harassment Policy and that this training is kept under review in light of development/best practice in the area.

CA-00020678-002 – Complaint under the Unfair Dismissals Acts

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the Complainant resigned from her position of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

Employment Equality Acts 1998 to 2015 – Discrimination – Section 14A - Harassment – Sexual Harassment – Conditions of Employment - Unfair Dismissals Acts 1977 to 2015 – Section 1 - Constructive Dismissal – Resignation