Complainant

Respondent

Anonymised Parties

A Service Administrator

A Waste Services Company

Representatives

SIPTU

IBEC

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-00021077-001

09/08/2018

The complaint relates to sexual harassment in the workplace. The complainant asserts that she was subjected to a series of incidents of sexual harassment at the hands of a colleague. This included comments and unwanted physical contact, including his body pushed up against hers. The respondent does not accept that the acts constituted sexual harassment and submitted that it is entitled to rely on the statutory defences.

In submissions, the complainant outlined that she was discriminated against in the workplace as she was subjected to sexual harassment. She submitted that the respondent failed in its duty of care to her and erred in its findings that harassment did not take place. The respondent did not comply with the Code of Practice and did not address the matter expediently.

The complainant is a Service Administrator and commenced working for the respondent on the 10^th April 2012. She made the first complaint of harassment against the alleged perpetrator on the 14^th February 2018, stating also that this was not an isolated incident.

The complainant outlined that harassment can take many forms and can involve both physical or non-physical conduct. It includes behaviour that denigrates or ridicules a person because of their gender. The complainant outlined that the intention of the perpetrator is irrelevant. Harassment occurred when the complainant was subjected to an intimidating, hostile, degrading, humiliating and offensive environment.

The complainant outlined that the harassment was extremely distressing and had a detrimental effect on her physical and mental health. She contended that the respondent did not adequately investigate her complaint and that the definition of ‘harassment’ in the policy was inadequate.

The complainant relied on A Hotel v A Worker (EDA0195) where the Labour Court held that the offensive behaviour need not be directed against the person. The Court also inferred a finding of harassment because the perpetrator in question was shown to be negatively disposed to women in general.

The complainant outlined that the respondent erred in how it investigated her complaints and how it weighed up the evidence. It did not have regard to her evidence and supporting evidence from a colleague. It also did not have regard to the alleged perpetrator admitting to making inappropriate comments in the office as well as his admitting to the porridge bowl incident. The respondent also erred in asking whether the complainant had objected to the behaviour of the alleged perpetrator. She outlined that it was very upsetting for the alleged perpetrator to approach her after she had made the complaint.

The complainant outlined that it was not appropriate for complaints of harassment to be addressed via a grievance procedure. The complainant outlined that there were failures with how the investigation was conducted, for example no initial terms of reference and HR dialled into the meeting.

Evidence of the complainant

The complainant outlined that she first complained to her manager on the 22^nd February 2018. This related to the incident of the 14^th February 2018. The complainant had a chest infection and the alleged perpetrator asked her how she was. He approached her and said that he “would look after that” and put his hands on her breasts and squeezed.

Within the first week of starting at the respondent, the alleged perpetrator asked the complainant to help set up his phones and email. The complainant did so and when she was on speaker to IT while downloading apps to his phone, the alleged perpetrator put his large body against hers. He placed his hand on her neck, making her feel uncomfortable.

In a later conversation, the alleged perpetrator commented on the complainant’s personality, saying that she would do well in sales. She replied that she was happy where she was, to which he replied that the complainant was not a monogamous person. This made her feel uncomfortable and she left the room.

In another incident, the complainant described the alleged perpetrator as coming up behind her and placing his hands on her hips, squeezing her. She was recovering from surgery and this incident greatly annoyed her. He was also very condescending to her. When she asked him to stop, he pulled her into him, hugging her from the side. The alleged perpetrator had crossed the line and she was initially going to report this but changed her mind over the weekend. The complainant said that she now regretted not reporting this, especially as there were incidents with other women.

The complainant outlined that the alleged perpetrator made further comments regarding her clothes, including a couple made in front of colleagues and which could be corroborated. In one incident, the complainant was wearing a summer dress and the alleged perpetrator asked her mockingly who she thought she was.

The complainant said that she took a dislike to the alleged perpetrator. She ensured that she was never on her own with him. She was taken by surprise on one occasion. She was at the sink in the kitchenette when she felt someone push up against her. It was the alleged perpetrator, who put his hands over her shoulders and her chest, slamming his bowl into the sink. There was no reason for him to be standing over her in this way. He could have placed the bowl on the side counter. He proceeded to clean the bowl over her shoulders.

In another incident in the kitchen, the complainant was standing next to the microwave when the alleged perpetrator approached. He leaned into her, pushing her. He rubbed his chest across her chest. There was no reason for him to be near her in the kitchenette as there was enough room for him to walk straight out.

The complainant said that on the next day, she was standing by the scanner/printer, which was across a corridor from the alleged perpetrator’s office. He came up right behind and pushed his full weight across her. This was a power play with sexual connotations. She said that she believed that he was aware she was about to have a second operation and would be out on sick leave from the following Tuesday. A manager told her that the alleged perpetrator knew she was going on this sick leave. The complainant said that when she attended work on the following Monday, she stared at the alleged perpetrator, who avoided her. She was unable to immediately return from sick leave and this was when the alleged perpetrator referred to the finance staff as bitches. He said “they were our bitches”.  She said that this was degrading and believed that the women complained.

The complainant said that she initially wanted to give the alleged perpetrator the benefit of the doubt. They avoided each other. In January, he approached her about a tracking incident and shouted at her for three days. He made continuous comments about a criminal gang. She explained that she has a familial connection to members of the gang, and while she never mentioned this in work, she was aware that it was a topic of office gossip. On one occasion, she was holding a vessel containing the ashes of a pet animal, when the alleged perpetrator said that this was her work for this criminal gang. This occurred in front of a colleague who did not know of the connection, but the complainant believed that the alleged perpetrator knew.

The complainant said that she first raised the harassment with a named manager on the 22^nd February. This manager became very distressed and had tears in his eyes. She referred to the interview with this manager who said that he had not known how to process a complaint of harassment. She sent the email on the 27^th February. She wanted to tell the alleged perpetrator directly in front of their respective line managers.

The complainant outlined that she was not provided with a copy of the policy prior to the meeting of the 5^th March. It was not clear how the investigation would be conducted. The minutes in the booklet are the revised minutes, redacted to remove all mention of other colleagues’ complaints. She asked for the redaction once she knew that the alleged perpetrator would receive the minutes. She was very upset at this meeting. She said that she was only provided with the minutes of the meeting with the alleged perpetrator on the day of her second meeting. She therefore asked for her meeting to be adjourned. She confirmed that the minutes of this second meeting (23^rd March) are complete and accurate. They agreed that the complainant would go on sick leave until the investigation was complete. Her representative asked to cross-examine witnesses at this second meeting.

The complainant commented that the alleged perpetrator gave no answer when asked to say more about the kitchen incident.

At the later investigation meeting, the complainant challenged inconsistencies in the alleged perpetrator’s account of what happened in the kitchen in February.

The complainant said that investigation finding erred in preferring the evidence of the alleged perpetrator over what she said. The investigator could have made an inference on his general behaviour and comments of the alleged perpetrator. The policy relies on the wrong definition of harassment and does not set out how evidence is to be weighed up. The policy also refers to making a grievance.

The complainant submitted the grievance on the 21^st May and made additional points in the document of the 18^th July 2018. She approved the minutes of the appeal meeting.

The complainant said that the alleged perpetrator worked on site until the 9^th March and returned in May. His employment ended in July. She commented that she was out of work but remained an employee of the respondent.

The complainant referred to a male colleague who was out on sick leave because of bullying and harassment by the alleged perpetrator. This colleague was told not to talk to others about the process. The complainant said that she asked for him to be interviewed as part of this process.

She said that she heard that during the equality training given in November 2017, the trainer rolled her eyes at comments made by the alleged perpetrator.

The complainant outlined that the appeal was wrongly decided. It should have upheld her appeal on the balance of probabilities, taking account of her evidence and the alleged perpetrator’s general behaviour in the workplace.

She commented that the email from the alleged perpetrator of the 12^th July was the first attack on her and referred to her bad faith. He admitted to being aggressive and to shouting – this held her back from returning to work.

The complainant said that she returned to work on 22^nd October. She was handed the outcome of the appeal on the way into mediation at the Workplace Relations Commission. On her return, she was given menial tasks and her role was taken away. Colleagues refused to work with her and one longstanding colleague pointed the complainant out to new colleagues.  They would drop documentation to her before she arrived to work or after she left. Female colleagues, in particular, have treated her badly. She saw their emails to the alleged perpetrator, which she obtained accidentally on other people’s terminals.

The complainant said that she asked for her old role back on her return and took the other role under protest. She reported five incidents involving the two female colleagues. They befriended the alleged perpetrator and perceived that he was let go because of the complaint. She commented that she was unhappy with being out of work during the investigation. The complainant stated that she was withdrawing the complaint of victimisation.

In cross-examination, the complainant said that she may have made a mistake with the date of the incident that led to her first reporting the harassment. This occurred on the 14^th February and not the 8^th February. It was the incident when the alleged perpetrator mentioned her family connection to the gang that led her to complain about the incident the week before. The email was sent on the 27^th February and it took her five days to send this. The investigation minutes refer to the incident occurring the week before and going to the named manager a week later. She said that she never made sexual references in work and the alleged perpetrator was doing so very shortly after starting. The complainant asked how he would know what was banter between them when they did not know each other, and he knew nothing about her. She said that she should have made a complaint earlier, but one person was already out, and she made it clear to the alleged perpetrator to stop. She had not wanted to report him.

It was put to the complainant that the alleged perpetrator was removed from the site immediately; she replied that she was not sure what happened, but he returned in May. He should have been found guilty especially as he admitted going up behind her and washing the bowl over her. She never said that there were witnesses to the events. She outlined that she never discussed the physical or sexual incidents with colleagues. She brought this claim as she was being portrayed as dishonest. She said that her evidence was more credible than that of the alleged perpetrator. The respondent did not take account of the alleged perpetrator’s wider behaviour. It was embarrassing to sit through an investigation without there being a single female present in the room. She emphasised that she was not a liar. She said that the alleged perpetrator was allowed return to work and did so as brash as ever. He told everyone of the other colleague’s complaint against him.

It was put to the complainant that the respondent had to do the right thing by everyone and to look at both sides, irrespective of how long they have worked for the respondent; she replied that her track record was clear. It was put to the complainant that other witnesses said that they had not seen anything; she replied that no witnesses saw the incidents, but all staff should have been interviewed. She denied the assertion that she was part of a clique in the workplace and said that she met colleagues every day to discuss the day’s work. It was put to the complainant that this daily interaction with two managers showed that she could have raised a complaint; she replied that she was ashamed and was not ready to make a complaint. She said that the alleged perpetrator portrayed himself as an over-friendly gay man who said he liked to touch people. It was put to the complainant that there was general banter in the workplace; she replied that there may have been banter in the sales office, but she did not work there. She stated that there was cursing and that this is a male environment. It was put to the complainant that she took offence at the alleged perpetrator’s “bitches” comment; she replied that she is not sensitive but other members of staff raised his misogynist comments. It was wrong for him to call women “bitches”.

The complainant outlined that while the alleged perpetrator left the business on the 27^th July, she followed up on the outcome of the appeal and did not return to work. In respect of the date of contravention, the complainant stated that she gave the incorrect date and the incident took place on a Wednesday. The complainant says that the reference in the minutes to the 8^th and 15^th February are errors. It is correct that it took a week to report the issue and the respondent does not dispute that the manager was told of the issue on the 22^nd February.

In closing, the complainant outlined that the Code of Practice is admissible in evidence in this adjudication. The act of brushing up against the complainant is unwanted physical contact and a single incident is all that is required. Harassment is to be judged subjectively and with regard to its effects. The intention of perpetrator does not matter. The complainant explained the delay in making a complaint. She was honest and told the truth from the start. What she said was more credible than what the alleged perpetrator said. There was the other investigation against him. Her complaint of harassment should have been upheld.

The respondent denies all the claims of discrimination and harassment. It referred to its Equality and Diversity policy and the training delivered to managers in November 2017. The alleged perpetrator commenced employment with the respondent on the 2^nd May 2017.

The respondent submitted that the complaint was out of time as it was not brought within six months of the date of contravention. The form refers to the last date of discrimination being the 14^th February 2018. However, it is clear from the investigation and the notes that the last possible contravention was the 7^th February 2018. The complaint was brought on the 9^th August 2018 and is, therefore, outside the six-month limit. The respondent submitted that consideration should first be given to whether there is a discriminatory act within the cognisable period of 10^th February to the 9^th August 2018. If not, earlier incidents cannot be taken into account.

The respondent submits that time should not be extended as the complainant was aware of the time limit. Inadvertence and waiting on an appeal did not constitute grounds for an extension (see McDonalds Restaurants of Ireland v Comerford DWT1628 and Irish Rail v Lynch UDD822)

The respondent submitted that the complainant has not established facts of such significance that raised the inference of discrimination.

The respondent stated that the complainant was allowed go home on the day she first reported harassment. She was then facilitated in working from home. The complainant was off work on full pay between the 22^nd February and 22^nd October 2018. Her complaint of harassment was escalated to the CEO and she later set this out in writing. The alleged perpetrator took some sick leave and then worked from home or from a different site.

The respondent outlined that neither the complainant, nor her union representative, initially raised procedural concerns. The union was at all times involved in the investigation meetings and provided with the notes. The complainant did not attend work and continued to be paid. The alleged perpetrator ceased employment on the 27^th July 2018, but the complainant continued to set preconditions for her return.

The respondent set out that eight witnesses were interviewed as part of the investigation. They were not able to corroborate the allegations of sexual harassment. Taking account of the credibility of the complainant and the alleged perpetrator, none of the seven allegations were made out. It referred to the evidence of four female colleagues who denied that the alleged perpetrator behaved inappropriately. One colleague denied making the statement attributed to her by the complainant.

The respondent referred to other managers who also did not witness anything. It referred to the evidence of one colleague that people could brush up to each other in the kitchen area. This witness did not see the incident in the kitchen between the complainant and the alleged perpetrator. It further pointed to witness statements that the kitchen area was small. The investigation concluded that the alleged perpetrator should be disciplined for speaking angrily to the complainant, but that the allegation of harassment was not made out. The inappropriate behaviour related to statements the alleged perpetrator made and one comment she overheard. He was sent to refresher training on the Equality and Diversity policy and the Code of Conduct.

The complainant said that it was best that she remain off site. She said at the first investigation meeting that she would be happy to stay out of the workplace. The complainant was clear she wanted to be out until the investigation was completed. She refused to come back in August when she set further conditions. The investigator outlined the process at the first meeting. The union had not asked that the process start again because of procedural issues.

In terms of the investigation, the respondent outlined that eight of the 10 witnesses were met. Four female colleagues did not support the complainant’s evidence. One female colleague had not confirmed supporting evidence while a named male colleague confirmed that he witnessed two incidents. The respondent outlined that at the meeting on the 27^th April, the Operations Director raised the colleague’s case, but the complainant did not say that he should be interviewed.

The respondent outlined that the alleged perpetrator’s behaviour was taken on board in weighing up the evidence. No one else’s evidence supported the complainant. While the alleged perpetrator engaged in inappropriate comments and was flamboyant, this was not enough for a finding against him. It was legitimate to ask had the complainant asked him to stop and whether the acts were related to gender.

The respondent outlined that its business was impacted by both the complainant and the alleged perpetrator being off-site, while he continued to manage the sales team from a different site. It submitted that the only document submitted by the complaint was a one-page document and all other evidence was given orally.

Evidence of the Investigator

The Operations Director said that he was asked to investigate the complaint. He is not involved in the Irish business. He said that the Equality and Diversity policy is on the internal online resource. He outlined that the complainant’s union representative complimented the respondent for how seriously they took the complaint. They explained the process to the complainant and progressed through the investigation. The issue of the colleague being out on leave was raised in the context of a breach of confidentiality and the Operations Director was not aware of the substance of the issue. They did not reach out to this colleague. He outlined that they spoke with everyone who was on site.

The Operations Director outlined that the alleged perpetrator was shocked by the allegation made against him. The Operations Director commented that the alleged perpetrator had self-awareness issues and may have had a blurred perspective of the office dynamic. He also had issues with confidentiality and could behave inappropriately. His relationship with the complainant deteriorated and he may have sought to interact with her to remedy this. The Operations Director said that he did not believe that he was sexually harassing the complainant. He commented that the alleged perpetrator was immature and craved attention.

Commenting on the incident of washing the porridge bowl in the kitchen, the Operations Director said that this was not an accident. He said that this was a clumsy effort to make amends for their poor relationship. He described the alleged perpetrator’s actions as naïve. He said that he did not see the intellect in the alleged perpetrator to carry out acts of sexual harassment or intimidation. The Operations Director said that the complainant was able to speak for herself. He described the workforce at the respondent facility as a closed group and hard to break into. He commented that the complainant could have raised any issue and the two managers could have stepped in on her behalf. He did not see any demeanour of people holding back when he spoke to the witnesses. The alleged perpetrator’s flamboyant countenance did not point to a hatred of women. The Operations Director acknowledged that the complainant was distressed. She was not comfortable during their conversations.

The Operations Director outlined that they recommended training for the alleged perpetrator and gave him robust feedback. He was unsure whether the disciplinary outcome was implemented. He acknowledged that the investigation process could have been faster and that initial terms of reference might have been appropriate. Commenting on the later interview notes, the Operations Director said that there was no note of anything to add regarding the porridge bowl incident.

In cross-examination, the Operations Director said that he did not think he completed a previous investigation into an allegation of sexual harassment. He completed remote training on doing the investigation. The Operations Director said that he applied the balance of probabilities in deciding the case. He was asked why he preferred the evidence of the alleged perpetrator given his own comments; he replied that he was not convinced that the acts could be interpreted as sexual harassment. It was put to the Operations Director that the porridge bowl incident occurred in a small space; he replied that the alleged perpetrator acknowledged putting the bowl into the sink and only accepted that he brushed up against the complainant. It was put to the Operations Director that what mattered was how the act was interpreted by the complainant; he replied that he would expect the complainant to have acted there and then and in real time. It was put to the Operations Director that the policy does not set out a clear investigation process; he replied that the investigation was conducted according to the policy and he never previously sought terms of reference.

Evidence of the HR advisor

The HR advisor outlined that she was the co-investigator of the appeal. They attended training prior to this investigation through a law firm, who were with them every step of the way. There was delay in processing the appeal due to the union objecting to a named local manager, so they chose a manager based in the UK. The complainant submitted additional grounds on the 18^th July.  

The HR advisor said that they used the definition of sexual harassment in the Code of Practice. They met with several witnesses. They were asked to consider the “bitches” comment as gender-based misconduct. She did not think that this term was a female insult anymore. While the complainant said that it was inappropriate, it is not necessarily derogatory of women. She also had regard to the fact that it was not said to the complainant or about her. She accepted that the comment regarding monogamy and the incident with the dish were inappropriate. She said that the length of time people know each other does not change whether an act constitutes harassment. She noted that the alleged perpetrator was not propositioning the complainant.

The HR advisor outlined that the investigation findings regarding harassment were sound. There was no evidence of a hostile environment in the workplace. The investigation applied the correct legal test and was independent. The team was gender balanced and another HR advisor was involved on the calls and took notes. The appeal was also heard by a mixed-gender team. She commented that the complainant was contradictory in wishing to stay off site but not wanting to go off work. The alleged perpetrator was moved off site. She commented that they have learnt to have clear terms of reference for any investigation. There was now an explicit reference to the balance of probabilities in the policy. They reviewed the policy to ensure consistent and fair application. Training has been rolled out to sites.

The HR advisor said that it was her understanding that the alleged perpetrator was already in a redundancy process when the issue of disciplinary sanction was raised. The respondent did not want two processes in being at the one time. She said that equality training was carried out in November 2017 but did not know whether this was evaluated. She said that while a manager said that he did not know what to do on hearing of the initial complaint, he acted quickly and contacted the CEO.

In cross-examination, it was put to the HR advisor that the alleged perpetrator visited the site every day between March and May and was officially back on site from May; she replied that he split his time between the sites. He would have been assigned to the other site if the complainant returned to work during this time. She commented that many of the incidents occurred before the equality training and while the alleged perpetrator received the training, the respondent could not predict what he would do. She said that the policy in place at the time complied with the Code of Practice, but the new policy was better. The new policy did not mean that the old policy was not fit-for-purpose.

In closing, the respondent had no idea whether there was a bullying complaint from another colleague, and this could not tar this matter. It submitted that it took steps to prevent harassment and to prevent its effects. The alleged perpetrator was flamboyant and tactile, and the complainant did not initially think it was sexual harassment. She is an established and a valued member of staff, but also part of a ‘clique’ with senior managers. It is a regret that the complainant did not raise this issue earlier, but she was able to articulate her concerns. The respondent was entitled to be informed of the impugned behaviour as part of the section 14(A)(2) defence. The complainant did not provide details of the incidents and this was only done in hindsight. The respondent provided equality training to senior managers and the policy was available internally. The respondent submitted that the investigation commenced immediately on foot of the complaint and the alleged perpetrator was placed off site. The full definition of sexual harassment was used on hearing the appeal. There was no evidence to corroborate the allegations and nor was there evidence of an offensive environment. Notes of all investigation meetings were shared with the alleged perpetrator, but this was never raised as a criticism of the integrity of the investigation.

CA-00021077-001

The complainant commenced working for the respondent on the 10^th April 2012 and was an employee at the time of this adjudication. While several of the investigation minutes refer to some interpersonal tension between colleagues, the respondent was clear to say that the complainant was an established and valued colleague and employee. The complainant did not attend work and was on pay while the investigation was underway. This was between the 22^nd February and 22^nd October 2018.

A senior manager commenced employment with the respondent on the 2^nd May 2017 and his employment ended through redundancy on the 27^th July 2018. It is against this manager that the complainant makes the allegations of sexual harassment. The evidence indicates that this senior manager had many years’ experience in the industry and has a strong personality. The investigation minutes point to him dressing down colleagues, for example when a client closed its account. The evidence indicates that he is physically large. It also points to him being “tactile”, “flamboyant” and “loud”.

Section 77 of the Employment Equality Act provides that a person subjected to discrimination or victimisation may refer a claim for redress. Where established in evidence, section 14A provides that sexual harassment constitutes discrimination by the employer of the victim’s conditions of employment. A complaint must be referred within six months of the date of occurrence of the most recent act of discrimination (extendable to 12 months with reasonable cause).

The complaint was submitted to the Workplace Relations Commission on the 9^th August 2018. The cognisable period is, therefore, the 10^th February to the 9^th August 2018. As submitted, there must be a discriminatory act within the cognisable period.

Is there an act within the cognisable period?

The respondent asserts that there is no such act within the cognisable period. The parties are in dispute whether the last incident occurred within the cognisable period. The complainant asserts that this is when the alleged perpetrator said he would rub her chest and gestured a squeezing motion; she says that she rejected this and backed away. The complainant’s email of the 27^th February 2018 says that the incident occurred on “Wednesday the 8^th February”. In the minutes of the 5^th March, the complainant repeats that this incident occurred on the 8^th February 2018.

On the other hand, the complainant states in the complaint form that the date of the last act of discrimination was the 14^th February 2018 (so within the cognisable period). This is also the date referred to in her chronology of events. She refers to raising the incident with a manager-colleague on the 22^nd February and this was one week after the last date. She formally emails the complaint on the 27^th February 2018.

Having considered the evidence and submissions of the parties, I find as fact that the date of the last incident was the 14^th February 2018. The act therefore falls within the cognisable period. I make this finding for the following reasons. As discussed at the adjudication, my first reason arises from the 8^th February 2018 falling on a Thursday and not a Wednesday (recalling that in her email of the 27^th February, the complainant states that the incident took place on a Wednesday). It is clear from the very off that the complainant’s assertion as to the date could not have been correct; there was no Wednesday, 8^th February 2018.

Second, I find it far likelier that someone will recall the day of the week an incident occurred more accurately than the date. This is because we live in routine in the workplace and in our private lives. We tend to do the same things on the same day of the week, be this particular work tasks or social or family commitments (e.g. childcare, elder care, football, Bridge etc). This means that when the complainant says that the incident occurred on “Wednesday” “8^th February”, the reference to the day of the week is more reliable than the date. It follows that the reference to this taking place on a Wednesday is more reliable.

My third reason is that the 14^th February is a Wednesday. This is the date cited by the complainant in her complaint form. The reference in the email of the 27^th February 2018 to the incident taking place on a Wednesday is corroborated by a Wednesday being referred to in the complaint form. While I appreciate that the investigation and appeal teams faced many incidents to delve into, it is striking that there is never a finding made as to when incidents took place. The last incident is referred to as the “February 2018 incident” in the reports. No issue is taken with the incident said to have taken place on an impossible date, i.e. Wednesday, 8^th February 2018.

Fourth, given that there was no finding of what date this allegation referred to, the date of the last interaction was never a matter of controversy. While the fact of the incident taking place at all was strongly disputed, there was never a dispute over what date the complainant said it occurred. It was never said that the incident could not have taken place on Wednesday, 8^th February. I note also that the complaint form was submitted during a hiatus in the process. The investigation completed, the complainant appealed and attended the appeal hearing. The complaint form was submitted during the appeal team’s deliberations of the appeal. The complaint could have been submitted at any time and the complainant had nothing to gain from inserting a false date into the complaint form. The date was simply not a matter of controversy or difference. This points to the correct date being Wednesday, 14^th February 2018, in particular as the complainant had time to set out the chronology of events in detail throughout the investigation and the appeal process.

For these reasons, I find that the date of the last alleged incident was Wednesday, 14^th February 2018. This falls within the cognisable period.

Continuum of allegations

Moreover, I find that the alleged acts of harassment are a sufficiently connected series of acts that constitute a continuum per section 77(5) of the Act (see Hurley v County Cork VEC (EDA 1124)). After all, they all involve the complainant and the alleged perpetrator and mainly take place in the confines of a workplace. They relate to one-on-one interactions between them and take place out of sight of colleagues. Having accepted that they form part of a continuum, the next question is whether they occurred as alleged by the complainant.

Harassment and vicarious liability – the legal framework

Section 14A of the Employment Equality Act addresses sexual harassment and harassment on the other discriminatory grounds:

“(1) For the purposes of this Act, where — 

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is —

(i) employed at that place or by the same employer, 

…

(b) without prejudice to the generality of paragraph (a) — 

(i) such harassment has occurred, and 

(ii) either — 

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or 

(II) it could reasonably be anticipated that he or she would be so treated, 

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and 

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’ s employment and, if and so far as any such treatment has occurred, to reverse its effects. 

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person. 

…

(7) (a) In this section — 

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and 

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. 

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

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

In respect of an employer’s vicarious liability, section 15 provides:

“(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval. 

…

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee— 

(a) from doing that act, or 

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

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

The Code of Practice on Sexual Harassment and Harassment at Work (S.I. 208/2012) sets out steps for employers to prevent and address harassment in the workplace and between colleagues.

Assessment of the evidence

An employer is not automatically liable per the Employment Equality Acts where sexual harassment takes place. There are defences available to the employer, for example where it takes “reasonably practicable” steps to prevent the harassment or reverse any consequent differential treatment. The questions to be answered in this case is whether the sexual harassment took place as alleged and whether the respondent can rely on the above defences.

In assessing the evidence, I note the inherent coherence of the complainant’s account, which was subjected to a thorough cross-examination. She is an established employee who has a close relationship with several managers and colleagues. This is exemplified by one manager being brought to tears when she explained what had happened with the alleged perpetrator. It is also exemplified by strong supporting statements given by the male colleague who worked with her in the same office.

I also appreciate the difficult job faced by both the investigation and appeal teams. They were all UK-based and the Irish facility is described as hard to break in to. They faced directly contradictory evidence. The complainant set out a series of events, which the alleged perpetrator generally denied occurred. He accepted that the porridge bowl incident occurred although denied that there was any sexual connotation to it. He accepted making certain statements but said that they were not derogatory of the complainant. It was found that this was inappropriate behaviour but not sexual harassment.

It was not especially disputed that the respondent’s process was hampered by not having terms of reference set out in advance. To the respondent’s credit, this has been addressed in the new policy. The respondent also reacted quickly to the complainant raising the issue. It accommodated the complainant’s concerns by bringing in the UK-based investigation team. It is not disputed that the investigation took too long, but I appreciate that they had difficult issues to address. I also appreciate that a finding of sexual harassment is a grave one, in particular in the light of the alleged perpetrator’s seniority and 30 years’ experience.

Having read through all the documentation and heard the evidence, the following aspects are striking. The first is the porridge bowl incident. While there was an array of issues, the fact of this incident taking place was not disputed. What it meant was certainly disputed.

The incident occurred in June 2017, although there is no finding of when it precisely took place. The evidence points to a workplace that starts early. This included the alleged perpetrator. This incident related to cleaning breakfast dishes. The complainant was at the sink, washing a cup. It is accepted that the kitchen area was small, less than five square feet. The alleged perpetrator came up behind her and lifted his bowl over the complainant. He put it into the sink, “slamming it” according to the complainant. This involved the alleged perpetrator going up to the complainant and engulfing her with his mass in placing the dish over her shoulders and into the sink.

There is little friendly about this incident. It is uncomfortable as it involved a large man in such close proximity to a smaller woman. There is little to explain the incident. The complainant referred to a side counter where the bowl could have been placed. The alleged perpetrator had only just started working for the respondent; as generally set out by the complainant, this meant that there was no acceptable or established tenor of interaction between him and the complainant. They were strangers, with no history of working together. Yet, this serious incident takes place. What is striking is the lack of probing during the investigation of this incident. At the first investigation meeting, the alleged perpetrator did not recall whether he pressed up against the complainant. He is asked about it at the second meeting, but no answer is recorded. This incident is not an accidental brushing up of one colleague against another but is a very physical and proximate act on the complainant.

It is important to note that sexual harassment is not something that emanates from attraction. It is not a misplaced or unrequited advance. It is something that violates a person’s dignity. The subjective intention of the perpetrator does not determine whether an act constitutes harassment; that is judged from the perspective of the victim.

A great deal of weight was placed in this case on the alleged perpetrator’s flamboyant nature. He is said to be tactile and loud. There is reference to him being gay and he says he is not monogamous. I have no idea of his sexual orientation; however, this is irrelevant. Discriminatory harassment is about power, not about attraction or unrequited affection. In this case, too much emphasis was placed on the demeanour of the alleged perpetrator, when the focus should have been on his actions. This should have started with the June 2017 incident in the workplace kitchen.

The complainant gave a cogent and coherent account of the incidents involving the person who I can now refer to as the perpetrator. There were a series of escalating events, which she sought to mitigate or to avoid. She decided to complain but then on reflection changed her mind. While she had a good working relationship with colleagues and managers, I appreciate that complaining about the perpetrator was an escalation. It made her the centre of attention, in particular trying to prove allegations where there no witnesses. It led to her being out of work for months. While I accept that this was an act done by the respondent for the right reasons, the delay meant that the “victim” was not able to work while the perpetrator continued to work, albeit initially from a different venue.

The respondent’s position is that it did not have evidence to find for the complainant. It never said that it disbelieved the complainant. Obviously, this upset the complainant. She told of a series of events that humiliated her; yet, the respondent did not accept the veracity of her account. The respondent had the “out” of the parallel redundancy process and the perpetrator left in late July 2018. However, the complainant was a current employee of good standing; her serious allegations ought to have been addressed and findings made regarding their veracity.

Taking the above findings together, I find that the allegations set out by the complainant are established as fact. Starting with the undisputed bowl incident, I find that this was sexual harassment because of the humiliating effect it had on the complainant. It was an uncomfortable, aggressive physical act where the complainant was engulfed by the perpetrator’s body. I find that the other elements of sexual harassment took place as described by the complainant, whose evidence was cogent.

I appreciate that the respondent witnesses came in post-facto, to investigate the allegations. I find that the respondent has not established a ‘reasonable practicable’ defence of preventing or addressing the discrimination. It is vicariously liable for the perpetrator’s actions as it did not take reasonable practicable steps to prevent these actions. I find this because of deficiencies in the respondent’s original policy: there were no terms of reference, no standard of proof set out and issues were to be raised as grievances. I also find that the respondent did not adequately assess the evidence. It gave too little weight to the complainant’s account. It did not press the perpetrator on the gaps in his evidence, for example regarding the porridge bowl. It placed too much weight on his demeanour. The respondent never said why the complainant’s evidence was insufficient or why it disbelieved her. The complainant was not able to attend work during the investigation and returned in unsatisfactory circumstances.  

In the light of the above findings, it falls to determine redress that is “effective, proportionate and dissuasive.” I note that the complainant is an employee of good standing who did everything right. She had no choice but to report the harassment and incurred loss as she was unable to go to work in the normal way. I acknowledge the rapidly launched investigation and the complainant being kept on pay. There was delay and more importantly an outcome where the complainant was not believed when she should have been. It is especially important for someone of the complainant’s standing to be able to report such behaviour; what chance would someone who had less service or less good standing. I acknowledge that the respondent has taken steps to ameliorate the relevant policy. Weighing these factors, I assess that the complainant is due redress of €25,000. This could have been a higher award, had it not been for the steps taken by the respondent via the investigation and appeal teams. I base the award on the extensive humiliation incurred by the complainant, who is an employee of good standing with the respondent but is a victim in respect of this complaint per the Employment Equality Act.

CA-00021077-001

I find that the complainant has established a prima facie case of discrimination in the form of harassment and the respondent has not rebutted the inference of discrimination.

I order the respondent pay to the complainant €25,000 in compensation for the breach of the Employment Equality Acts. 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).

Key Words:

Employment Equality Act / Date of contravention

Sexual harassment violating a person’s dignity and create an offensive or humiliating environment

Defence of taking reasonable practicable steps to prevent harassment