Complainant

Respondent

Anonymised Parties

A care assistant

A nursing home

Representatives

Glenn Cooper Solicitor  

Dundon Callanan Solicitors

Maria Dillon Solicitor

Horan & Son Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019595-001

05/06/2018

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

CA-00019595-002

05/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00019595-003

05/06/2018

The Complainant worked as a care assistant at the Respondent’s nursing home. She started working in the facility in 2001 but had a break in her service for a number of years. She re-joined the nursing home in 2007.

The Respondent took a transfer of the nursing home business in December 2017 under the TUPE regulations.

The resident was known to her and she described him as a “family friend”.

The Complainant’s employment ended on the 18th December 2018.

CA-00019595-001

The Complainant explained that over several years she had been sexually harassed by a resident in the nursing home. The harassment consisted of physical conduct of a sexual nature including touching her breasts, kissing her arm, pulling her down to him, foul language and questioning if her husband was any good to her. She gave an example that the resident requested her to tighten a hoist used to lift the resident and told her “that feels good”.   She said he told her that “she had a fine pair of breasts”. Her case was that his actions had the purpose and/or effect of violating her dignity and creating an intimidating, hostile, degrading, humiliating and offensive for her to work at.

She explained that she raised the resident’s behaviour with the nurses and nursing home management. It was also raised with one of the directors of the Respondent at a meeting prior to it taking over of the nursing home in 2017.

Despite these complaints, no action was taken by management to prevent the ongoing issues and protect her and her co-workers from this behaviour.

An incident occurred on the 7th of January 2018 when the Complainant and her co-worker were attempting to provide care to the resident. The resident used abusive language towards them.   He grabbed her Complainant at the crotch and told her to “fuck off”. A supervisor attended at the room and was also subject to foul and sexually abusive language.

Evidence was given as to how a Clinical Nurse Manager was called to the resident’s room, but she failed to provide any proper assistance to the Complainant or her co-workers. Instead the nurse told the Complainant to “get on with it” and made a complaint to the Respondents Director of Nursing about the Complainant and her co-workers.  

The Complainant explained that she did try to explain her complaint to the Clinical Nurse Manager while she was in the resident’s room, but she drained her out / wouldn’t let her speak.

The Complainant was suspended with pay on the 9th of January 2018.   The Complainant was interviewed on the 17th of January 2018 in relation to the complaints made against her by the Clinical Nurse Manager (CNM) and the resident. This was in line with the HSE trust and care policy.   The outcome of the investigation was to commence a disciplinary procedure against the Complainant and her two co-workers. The Complainant remained on suspension with pay until her dismissal on the 18th of December 2018. She was dismissed following findings that on the balance of probabilities, maltreatment of a resident took place at the nursing home on the 7th of January 2018. The decision maker concluded that she had direct responsibility in creating a situation where the resident was maltreated.

The Complainant submitted that at no time did the Respondent attempt to carry out a sexual harassment investigation following any of her complaints.

The Complainant’s evidence was that she had reported the resident’s behaviour to the nurses on duty. She expected them to communicate it to management. She said her complaints were “old news” and she had said it many times.

The Complainant submitted that the Respondent failed to take any effective steps to prevent the resident’s alcohol fuelled aggression and sexual harassment of her. The Complainant submitted that the resident’s alcohol consumption should have been more tightly controlled and medical assistance should have been obtained earlier in respect of the resident’s behaviour and alcohol intake.   Counselling and other medical and psychiatric intervention should have been obtained for him and he could have been dealt with by male carer’s and nurses. She also submitted he could have been moved to another facility that would be better able to deal with his behaviour. None of these measures were tried by the Respondent.

The Complainant relied on the evidence of five witnesses who attended the hearings (all care workers) and gave evidence of being sexually harassed on an ongoing basis by the resident.

CA-00019595-002

The Complainant brought a claim under Section 74 of the Employment Equality Acts and claimed she was adversely treated by the Respondent as a result of bringing a complaint to the Respondent about the sexual harassment she suffered.

The Complainant relied on the fact that she called the Clinical Nurse Manger to the resident’s room on the 7th January 2018 and attempted to raise her sexual harassment with her. She formally raised the sexual assault she suffered on the 17th of January 2018 during an investigation meeting and in her solicitor’s letter of the 9th of May 2018. She submitted the Respondent took no steps to investigate her complaint of sexual harassment.

CA-00019595-003

The Complainant submitted she suffered penalisation as a result of making a complaint about a threat to her safety, health and welfare at work and taking appropriate steps to protect herself and her colleagues from dangers posed at work.

CA-00019596-001                                                                                                                                               

The Respondent submitted that complaints raised by the Complainant was implausible. They explained that the resident was admitted to the nursing home in October 2006. They confirmed that he had complex care needs. He was high dependency and hoist dependent. He required use of a wheelchair and he was unable to extend his legs. It was explained that the resident was largely bed bound and spent only about two hours a day sitting in his wheelchair. He was incontinent and suffered from constipation and required assistance with feeding. They submitted that he was blind in one eye and had a significant cataract in the other eye to the extent that his vision was significantly impaired. A medical report was submitted to me confirming same.  

It accepted that the resident had a history of alcohol dependency however it denied that the Respondent’s management permitted the resident to have unlimited access to alcohol. The Respondent further explained that the pub where the resident attended, permanently closed in April 2019.

The Respondent categorically denied that any allegations of sexual harassment were made by the complainant or her co-workers prior to the 7th of January 2018.  

It submitted at all material times male care assistants were employed at the nursing home and if any such allegations of a sexual nature had been made and management had deemed that those allegations had merit, in those circumstances male care assistants could have been allocated to attend to the personal hygiene of the resident.

The Respondent further claimed that it was implausible and far-fetched and that in light of the health and physical condition of the resident and the fact that he was effectively blind that he could engage in physical contact of a sexual nature including touching the care assistants on their arms, legs and bottom or grabbing at their breasts or crotch.

The Respondent submitted that the Complainant and her co-workers were complicit in the manner in which their claims and assertions were made and sustained and that there was clear evidence of collusion.

The Respondent denied that any such allegations or assertions were made to the director of the Respondent when they took over the management of the nursing home.   The Respondent set out that while legal submissions furnished by the Complainant’s solicitors made blanket assertions and various sections of legislation were paraphrased, no attempt had been made beyond mere assertion, to clarify how it is alleged that the contentions of the Complainant amounted to sexual harassment and/or victimisation.  

They submitted that there was no evidence of any documented complaint by the Complainant of sexual assault.

When queried on the entries in the resident’s care plan, the Respondent’s position was that the care plan was written up by the then Director or Nursing who rarely left her office and that there was a big difference between verbal sexual comments and assault.

Overall the Respondent seemed to accept that less-intrusive physical touching, lewd comments and suggestive remarks were made by the resident, but vehemently rejected the physical assault by the resident to the Complainant.

Evidence was provided to be by the Clinical Nurse Manager, the current Director of Nursing, the Practice Development coordinator, the director of the Respondent and the decision maker in the disciplinary process.

The Clinical Nurse manager gave evidence that the resident had no vision and he had to eat his food with his hands. While he did drink alcohol there was more 7up and little whiskey in the glass. She never found his behaviour problematic and he was never rude with her. She did accept he was impatient when he did return from the pub. As regards the events of the 7th of January 2018 her evidence was that the resident wasn’t abusive. He said to her “you’ll understand”. She confirmed she had given him the tiniest amount of alcohol earlier that morning.   She gave evidence that the resident required his money to be counted regularly and he kept a key for his drawer around his neck.

She explained that she had been watching a documentary on a Garda whistle-blower and it resonated with her as to what she had seen on the 7th of January 2018. She felt an obligation to advocate for the resident and she submitted that she had made the right decision. She confirmed that after the incident of the 7th of January 2018 it was decided to put in a monitoring system for the resident’s alcohol intake.  

CA-00019595-001

Section 85A of the Employment Equality Act sets out the burden of proof which applies in a claim of discrimination. This section provides that the Complainant must first establish facts from which discrimination may be inferred. It is only when a prima facie case has been established that the burden of proof passes to the Respondent.  

In considering whether the Complainant was subjected to sexual harassment pursuant to Section 14A of the Acts, and whether this constitutes discrimination in relation to her conditions of employment, I am required to consider:

(a) whether the Complainant has established on the balance of probability that she was sexually harassed in terms of the incidents she described in her evidence.

(b) if the answer to (a) is in the affirmative, did the Respondent take reasonable action to prevent the sexual harassment occurring in the workplace, such as to enable it to rely on Section 14A (2) of the Act.

Section 14A (7) (a) (ii) of the Act defines sexual harassment as follows:

(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”.

The Complainant gave evidence that she was subjected to sexual harassment from the resident in the workplace. The evidence of the Complainant was that the resident made inappropriate comments of a sexually explicit nature (commenting on her breasts) towards her. In particular on the 7th January 2018 she explained that the resident grabbed her by the crotch and told her to “fuck off”.

Three carers who were not involved in the incident on the 7th January 2018 gave evidence at the hearing. Two of these witnesses were still in employment with the Respondent when they gave evidence. I found them to be very credible witnesses. The three witnesses were not in the hearing room when the complainant or her co-complainants gave evidence. These three carers gave clear and compelling evidence of the behaviour of the resident towards them.

The first carer referred to the resident as being “very abusive” and described how he engaged in unwelcome behaviour such as “kissing her arm” and lewd comments about her having 7 children. She confirmed that “everyone knew” about his behaviour and how she reported it to nurses and a director of the Respondent. The second carer gave evidence that the resident “groped her breasts”, “kissed her arms” and “mauled her”. He also made lewd comments towards her. She reported this to the nurses on duty. The third carer gave evidence that the resident grabbed her breast, licked her arm and pulled her onto him. She explained that his behaviour was so bad “young carers would not go into him” to attend to him. She too made complaints to the staff nurse.

I was furnished with a copy of the resident’s care plan. It stated that the Respondent liked to drink 7up and alcohol and limited amounts of water and tea. It stated that he sometimes could display challenging behaviour to staff if he was anxious, had an intake of alcohol or had an impatient mood.   It stated that staff were to follow his requests promptly and understand that he had no understanding of waiting, for example for his tea when he had alcohol intake. The care report went on to say that at times he could say inappropriate comments about female shape and this had been discussed with him as “inappropriate language which can be upsetting to staff”. It stated that he was to be treated with dignity while maintaining safe distance as he could express inappropriate sexual comments. Two staff were required to care for his personal needs. The care report set out that the resident went to the pub most of the days and drank alcohol which “may contribute to behavioural issues”.   This care report was signed by the resident 28th of August 2017. There was further reference to responsive behaviour as part of his care plan and it stated that the resident could express challenging behaviour at times of impatience, following alcohol intake or inappropriate sexual comments to female staff. Under the heading nursing intervention, it stated that two staff were required to attend the resident’s needs as he was less likely to use inappropriate sexual language when two staff were present. This was signed by the resident and dated 28th of May 2017.

I found the Complainant’s evidence to be credible and preferred it over the evidence of the Clinical Nurse Manager who instigated the complaint of patient neglect against her and her co-complainants. I have no doubt that there was ‘history’ between the staff.   This was not introduced into evidence by either side, though was fleetingly referred to in the minutes and statements. The Director of the Respondent made reference in his evidence to historic complaints. There was clearly a wish on the part of management to change the old culture of the nursing home and improve standards and work practices.

I accept the Complainant’s oral evidence and as set out in the notes of the investigative meeting of the 17th January 2018 that she called the nurse manager to the resident’s room on the 7th January 2018 because of the resident’s drunken state and because he was “verbal”, “he was mad. He was drinking all morning”. The Complainant accepted that she didn’t report that he had sexually assaulted her to the Clinical Nurse Manager on the 7th January 2018.

I accept that the Complainant reported the sexual harassment to the Director of Nursing prior to the 7th January 2018. I accept the evidence of the complainant, her co-complainant’s and the additional three carers who gave evidence that they did make complaints to the nurses working for the Respondent. This is substantiated with references to what is sexual harassment in the resident’s notes.

As regards the reaction of the Clinical Nurse manager to Complainant’s request for assistance on the 7th January 2018, I find that she was very annoyed to be called to the resident’s room and her own evidence confirmed same.  

I accept that the Respondent had to balance its obligations to the resident and its employees and that dealing with challenging behaviour is a fact of life with certain nursing home residents. However, in this case the Respondent’s focus was only on the resident which is commendable as towards the resident but not when it is at the expense of its obligations to the Complainant and her co-workers. The Respondent was in a difficult position in that it had less than 12 months previously taken over the nursing home under a transfer of undertakings. I have no doubt that the Respondent was in the process of improving the nursing home and practices which were allowed under the previous management.

I cannot accept the Respondent’s submission that it was not aware of the resident’s behaviour was as bad as the evidence presented to me. I found this very hard to accept as there was tangible evidence in the resident’s notes of what was described as “his challenging behaviour”.   Rarely is there such tangible evidence available in claims of sexual harassment.

The Respondents reliance on the physical condition of the resident was at variance with the evidence of the Clinical Nurse Manager as regards the resident’s visits to the local pub and demanding behaviour. I noted that he required his money to be counted regularly. His physical capabilities were corroborated by the evidence of the six carers provided to me at the hearing. The Complainant gave evidence that she never heard or noted that he had an eye problem.

It is well established that it is irrelevant that the harasser did not intend to harass the victim or that the harasser believed that the behaviour was mere workplace banter or frolic. There is no requirement that the conduct itself must be reasonably capable of being viewed as harassment. What is capable of constituting harassment under Section 14(A) is defined in quite general terms.   As a whole, I accept the incidents of sexual harassment as alleged by the Complainant did occur. Furthermore, I am satisfied that these incidents were serious in nature in terms of the impact and affect they had on the Complainant and her working environment. I therefore find that the Complainant has established a prima facie case that she was 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 occurring in the workplace and in circumstances where such harassment has occurred it took action to reverse its effect.

The Labour Court has consistently 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 sexual harassment occurred and that the policy was effectively communicated to staff.   I note that the Respondent has an Employee Handbook containing a Personal Harassment Policy and Procedure. No evidence of training or information sessions on harassment or sexual harassment was provided to me. The notes in the patient’s care plan indicate that the behaviour of the resident was not considered as falling under the Respondent’s Personal Harassment Policy.

In those circumstances I cannot conclude that that this policy was effectively implemented. I accept that the resident’s behaviour was reported to the Respondent as some of it is noted in the resident’s care plan. Apart from a reference to speaking with the resident, no evidence was submitted to me as to what the Respondent did to prevent the sexual harassment occurring in the workplace.  

In relation to the second component as to whether the employer took action to reverse the effect of the sexual harassment suffered by the Complainant, I note that the notes of the resident set out “he can at times say inappropriate comments about female shape and this has been discussed with him as inappropriate language which can be upsetting to staff”. The evidence provided to me was that the Complainant and her co-workers were advised to “get on with their work” and to “grow up. They were advised that the nursing home was the resident’s home and he could “do as he likes” and were essentially instructed to ignore the behaviour of the resident.   Even on receipt of a formal complaint by the Complainant via her solicitor on the 9th May 2018 of “sexual assault by inappropriate touching on arms legs /breasts and aggressive behaviour and foul, violent, sexually inappropriate language towards her”, the Respondent did not commence any investigation. I find that there was a total failure in the Respondent’s handling of the Complainant’s complaints and to reverse the effect of the sexual harassment suffered by her and her co-workers.

In conclusion,I am satisfied that the Complainant was subjected to sexual harassment in the workplace by the resident. This went beyond tactile touching, banter or involuntary behaviour due to dementia.   I accept that this behaviour was alcohol fuelled. I accept the Complainant’s evidence as to what occurred on the 7th January 2018 and that the resident grabbed her by the crotch. Furthermore, I am satisfied that the Respondent failed to put appropriate measures in place to stop this sexual harassment from occurring or to reverse its effects. On the basis of same, I find that the sexual harassment constituted discrimination against the Complainant and the Complainant was subjected to discriminatory treatment on the grounds of gender in her employment.

CA-00019596-002

The issue to be decided in this element of the claim is whether the Complainant was victimised for having made a complaint of discrimination to the employer as set out in Section 74 of the Acts.

The Complainant complained of being sexually harassed by a resident in the care of the Respondent over a long period.   On the 7th January 2018 she experienced verbal sexual harassment by the resident and was groped by him. He was annoyed that he had to wait to be attended to, he had been drinking alcohol already that morning and wanted more alcohol. I note that the Clinical Nurse Manager poured the resident a drink on that morning. I accept that the resident told the Complainant to “fuck off” when she offered him tea or soup. She approached her Clinical Nurse Manager for assistance who confirmed in her statement of the 7th January 2018 and handwritten note that she had been told by the carers that the resident had been using “abusive language to them”. I accept the Complainant called the nurse manager to the resident’s room on that morning for a serious reason. She had been working with the resident for twelve years and as noted in the minutes of her interview on the 17th January 2018 she “went up about his behaviour” i.e. from the resident.

Therefore, I accept that the Complainant had made a complaint of sexual harassment to the Respondent.

It is clear from the statements, minutes of meetings and a reflection document that the Clinical nurse manager prepared on the 7th January 2018 that she had an issue with the way she was called by the carers to the resident’s room. In her reflection document the Clinical Nurse Manager set out that she was

“glad I was called down or ordered down that day in no uncertain terms, or I would have been unaware of how the resident was being treated”

She referred to her stress and to the stress of the resident. I note she made no mention of any stress of the carers. There is a dispute between the Clinical Nurse Manager and the carers as to the what position the resident was in when she entered the room and whether he was covered with bedclothes or not, soiled or not. The Respondent and decision maker into the complaint against the Complainant and her co-complainants accepted the Clinical nurse manager’s version of events.

I accept the submissions of the Complainant that she would not have called the Clinical nurse manager into the room to find the resident in the state that she alleges he was in that led to her dismissal.  

Based on a complaint made by the Clinical Nurse Manager, the Complainant and her co-complainants were suspended on pay and ultimately dismissed from their employment. I find that this was adverse treatment by the Respondent and I further find that “but for” the fact that the Clinical Nurse Manager was called to the resident’s room on the 7th January 2018 and the complaints of the resident’s behaviour made to her, the Complainant would not have been suspended and ultimately dismissed.

CA-00019596-003

The burden of proof in this case is on the balance of probabilities. The Safety Health and Welfare at Act 2005 (the Act) is silent on the question of who the burden of proof should be allocated to as between the parties.

In O’ Neill -v- Toni and Guy Blackrock Limited [2010] ELR 1, the Labour Court held:

“In the instant case what is at issue is the motive or reason for the Claimant’s dismissal. That is to be found in the thought process of the decision-makers at the time the decision to dismiss the Complainant was taken. That is something which is peculiarly within the knowledge of the Respondent. It would be palpably unfair to expect the Claimant to adduce direct evidence to show that the Respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the Respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act.

Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

I have applied this process to come to my decision on this complaint.

The Complainant’s evidence was she made a complaint to the Clinical nurse manager on the 7th January 2018 in relation to the behaviour of the resident towards her. She left the resident’s room on the 7th January 2018 to find the nurse manager and bring her to the resident’s room. The Clinical Nurse Manager’s statement of the 7th January 2018 stated

“the girls also said that [resident] was using abusive language to them….”

This was a complaint relating to the Complainant’s safety. I find that this complaint was a protected act under the provisions of the Act.

I was presented with two very different versions of what took place in the resident’s room on that date. I understand that the pressures on all levels of staff working in nursing homes is great, but I find the response from the Clinical Nurse manager to being called by the Complainant and her co-worker to the resident’s room and reporting of abuse from the resident seriously lacking. The Complainant’s evidence was that the Clinical Nurse Manager came into the room “with her hands on her hips. She said for us to get on with it. There was no counselling for us”.  

It is clear from the language of Section 27 that in order to make out a complaint of penalisation, it is necessary for a Complainant to establish that the detriment which is complained of was imposed “for” having committed one of the acts protected by subs. (3). Thus, the detriment giving rise to the Complainant must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggests that where there is more than one causal factor in a chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act, she would not have suffered the detriment.

Following the events in the resident’s room on the 7th January 2018, the Clinical Nurse Manager made a complaint to the Director of Nursing about the actions of the Complainant.   Having examined and reflected on the evidence from both sides, I prefer the evidence of the Complainant.   I am satisfied, as a matter of probability, were it not for the Complainant calling the Clinical Nurse manager to the resident’s room on the 7th January 2018 and her complainant about his behaviour towards her, she would not have been suspended from work on the 9th January 2018 and ultimately dismissed on the 18th December 2018.

CA-00019596-001

I find in favour of the Complainant that she was sexually harassed contrary to Section 14A of the Acts and that she was subjected to discrimination by the Respondent on the ground of gender in relation to her conditions of employment. I order that the Respondent pay to the Complainant the sum of €30,000 for the distress suffered by the Complainant and the effects of the discrimination and sexual harassment on her.   This amounts to just over 1.5-year salary. This award does not contain any element of remuneration and is therefore not subject to taxation. 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 direct that all staff within the Respondent company who have staff management functions receive appropriate training in its policies on harassment and sexual harassment.

CA-00019596-002

I find in favour of the Complainant and note that the Complainant was ultimately dismissed from her employment. I order that the Respondent pay to the Complainant the sum of €10,000 for the distress suffered by the Complainant and the effects of the victimisation on her. This amounts to just over six months’ salary and is compensation and not subject to taxation.

CA-00019596-003

I find in favour of the Complainant and note that the Complainant was ultimately dismissed from her employment. I order that the Respondent pay to the Complainant the sum of €10,000 for the distress suffered by the Complainant and the effects of the penalisation on her. This amounts to just over six months’ salary and is compensation and not subject to taxation.

Sexual harassment, victimisation, penalisation