Complainant

Respondent

Anonymised Parties

A Food and Beverage Assistant

A Cafe

Representatives

Self 

Did not attend 

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-00035658-001

12/04/2020

The Complainant commenced employment with the Respondent on 21/10/2019. She was employed as a Food and Beverage Assistant/Barista. The Complainant submitted her original complaint to the Workplace Relations Commission (WRC) on 02/03/2020 and following a withdrawal of the original complaints the within complaint was received by the WRC on 12/04/2020. The Complainant alleges that she was harassed, sexually harassed and discriminated against by a manager, who was also employed by the Respondent, and despite raising her concerns on a few occasions the harassment intensified. The Complainant was not allowed speak to her colleagues (Portuguese) in her native language when on breaks while the same manager did allow male colleagues speak to their colleagues in their native language (Korean) on their breaks.

The hearing was assisted by a Portuguese interpreter at the hearing.

The Complainant’s employment ceased on 14/06/2020.

Due to the sensitive nature of the evidence submitted the parties are not named in this decision.

The Complainant was employed as a Food and Beverage Assistant/Barista with the Respondent. The Complainant in evidence provided comprehensive details of dates and events which was submitted to establish facts from which the presumption of sexual harassment, and harassment based on the Complainant’s gender and/or ethnic-national origin can be inferred.

Details of verbal, non-verbal and physical conduct by “Manager A” were described by the Complainant in evidence. Such examples included the calling of names, inappropriate suggestive comments and intimate and unnecessary physical contact and leering. The physical contact and touching took place behind a tight counter space and the complainant had to constantly watch where “Manager A” was to try and pre-emptively avoid such contact.

The Complainant also described harassment by “Manager A” in the form of degrading and offensive demands such as asking for tasks to be completed while she was working on another task or while on her break. The Complainant was repeatedly asked not to speak her native language while on her break.   Other examples include, intrusive requests for personal information; attempts to intimate her by repeating the same questions even after a response was given.

The Complainant also outlined how she was subjected to excessive monitoring by “Manager A” which also amounted to harassment. This was carried out in retaliation after the Complainant rejected the sexual harassment and escalated her concerns to a senior manager over a three-month period.   This monitoring was carried out by “Manager A” and was done under the pretence of standard managerial activity.

It was submitted on behalf of the Complainant that there was a s specific term in her contract of employment in relation to Employment Equality:

“ [“The Respondent”] Ltd is an equal opportunities employer.   Individuals are selected on their abilities and merits to perform tasks required. Our policy is to be fair and consistent in all aspects of our business. We recognise respect and value differences and diversity. We embrace equality as part of our normal way of doing things because we believe that it is the right thing to do for our people, our customers and our success.

In line with the Employment Equality Acts, 1998 and 2004 the company will not condone harassment or bullying in any form in the workplace. The Company have a zero-tolerance approach to bullying and harassment. Any finding of bullying and harassment at work may incur a disciplinary sanction up to and including dismissal. Any complaint of Bullying and Harassment will follow fair internal procedures as detailed in our Company Handbook.”

The Complainant in her evidence confirmed that she was never issued with an Employee Handbook or any policy or procedures in relation to bullying or harassment.   She did not observe any signs or documents in relation to the prevention of bullying or harassment.

It was submitted on behalf of the Complainant that the Respondent gave lip service to the principle of equality and did not act in any manner to prevent “Manager A” from harassing and sexually harassing the Complainant. This failure includes not providing the Complainant with its harassment policy, grievance procedure and the complete lack of training for the Complainant, other employees and manager.

The Complainant also asserts that she was discriminated by “Manager A” because of her gender. In that context evidence was given that her male colleagues were regularly instructed to take their breaks first regardless of starting times. This discrimination is specifically prohibited by the provisions of Section 8 of the Employment Equality Acts.

It was submitted that the facts establish that the Complainant was harassed, sexually harassed and discriminated against and in that context the burden of proof shifts to the Respondent. It was also submitted that a Respondent has a defence against a complaint of harassment or sexual harassment, if they can prove that they took steps to prevent it, as set out in Section 14A (2) of the Act. The Complainant in evidence confirmed that she never received any training or was aware of any training in relation to the prevention of harassment or sexual harassment. When she complained about the harassment, sexual harassment and discrimination she was then subjected to additional harassment and excessive monitoring.

There was no appearance by on behalf of the Respondent. I am satisfied, having made enquiries, that the Respondent was on notice of the date, time and venue for the hearing. The Respondent did notify the WRC that they ceased trading on 13/03/2020 and were proposing to liquidate the company. There was no further correspondence received from the Respondent by the WRC.

Harassment and sexual harassment are defined in Section 14A (7) of the Employment Equality Acts as follows:

14A. – (1) For the purposes of this Act, where –

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

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

(ii)                the victim’s employer, or

(iii)               a client, customer or other business contact of the victim’s employer and the circumstances of the harassment aresuch that the employer ought reasonably to have taken steps to prevent it.

7 (a) In this section –

(i)                  references to harassment are to be 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 of 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.

The Complainant also provided a copy in evidence of the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 as evidence. Of relevance to this case is the non-exhaustive list of examples:

a.       Physical conduct of a sexual nature – This may include unwanted physical contact such as unnecessarily touching, patting or pinching or brushing against another employee’s body, assault or coercive sexual intercourse.

b.       Verbal conduct of a sexual nature – This includes unwelcome sexual advances, propositions or pressure for sexual activity, continued suggestions for social activity outside the work place after it has been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments.

c.       Non-verbal conduct of a sexual nature – This may include the display of pornographic or sexually suggestive pictures, objects, written materials, e-mails, text-messages or faxes. It may also include leering, whistling or making sexual gestures.

Having regard to the above and the circumstances of this case in reaching my decision I looked firstly at the alleged incidents. I found the Complainant’s evidence to be most credible in relation to the alleged prohibited conduct to which she claims to have been subjected to by “Manager A” during her period of employment with the Respondent.

I accept the Complainant’s evidence in relation to these matters and I am satisfied that the incidents of harassment, sexual harassment and discrimination as alleged by her did occur. In addition, I am satisfied that all these incidents of inappropriate, offensive and unwelcome behaviours had the effect of seriously violating the Complainant’s dignity and resulted in her working in a hostile and intimidating workplace.   I find that the Complainant has established a prima facia case that she was harassed and sexually harassed while employed by the Respondent.

Having considered the uncontested evidence I find as a fact that the Complainant was the subject of harassment, sexual harassment and discrimination by the Respondent. In that context it is important to note that the intention of the Respondent in such situations is irrelevant. It is the effect of the behaviour on the Complainant is what is relevant and at the hearing there was considerable evidence in relation to the on-going effects this has on the Complainant. In one such example the Complainant cut her finger while using a sharp knife due to the distraction caused by excessive monitoring by “Manager A”.

I also find as a fact:

(a)    that the Respondent, as an employer, did not have any regard for their obligations and responsibilities under the Employment Equality Act. It is the Respondent’s responsibility to comply with the provisions of the Employment Equality Act and European Equality Law.

(b)    that the Respondent did not have a policy in place to give effect to the Employment Equality Act and the provisions of the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.

(c)     that the Respondent did not have any process or procedure in place to deal with a grievance or complaints in relation to harassment, sexual harassment and discrimination.

(d)    that the Respondent did not deal with the Complainant’s complaint of harassment and sexual harassment and its response was so defective and it did nothing to deal with the serious issues which the Complainant was subjected to.

(e)    that the Respondent failed in its obligation to monitor the conduct and behaviour of the Manager after it became aware of the Complainant’s situation.

I find that the Complainant was harassed and sexually harassed by the Respondent contrary to Section 14 A of the Employment Equality Acts.

I find that the Complainant was subjected to discrimination by the Respondent on the grounds of gender.

The complaint is well founded. I have assessed the appropriate award of redress having regard to the seriousness of and the effect of the harassment and sexual harassment on the Complainant.   I therefore order, in accordance with my powers under Section 82 of the Employment Equality Acts, that the Respondent pay the Complainant the sum of €25,000 (being twenty -five 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.

Harassment, sexual harassment, discrimination. Excessive monitoring.