Complainant

Respondent

Anonymised Parties

A Beauty Therapist

Beauty and Hairdressing Salon

Representatives

Darach McNamara BL instructed by Stephen J. Daly Solicitors

O’Connor and O’Dea 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-00032763-001

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032763-002

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032763-003

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00032763-004

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00032763-005

05/12/2019

The Complainant is employed as a beauty and holistic therapist with the Respondent. She commenced employment on the 19th January 2019. The Complainant submits that her regular salary is €385.25 for working Friday and Saturday, with an extra week day included. She has made five separate complaints under various pieces of legislation. The Complainant alleges that Mr. B, owner of the Respondent business, sexually harassed her by his unwelcome physical and verbal conduct and she is seeking redress for discrimination in accordance with Section 77 of the Employment Equality Acts, 1998-2015. The Complainant alleges that she did not receive her Terms of Employment, as required, contrary to the Terms of Employment (Information) Act, 1994 and that a core term subsequently given in a contract of employment deliberately contained false or misleading information. The Complainant submits that she never received her daily rest breaks in accordance with the Organisation of Working Time Act, 1997. The Complainant is also seeking a recommendation under section 13 of the Industrial Relations Act, 1969 on the basis that the Respondent failed to provide a policy and/or training in accordance with S.I. No. 208/2012- Employment Equality Act 1998 (Code of Practice) (Harassment)Order 2012.

The Respondent submits that the social event referred to was not a “work organised night”. The Respondent denies that Mr B. was involved in any harassment, sexual or otherwise, of the Complainant at the social event or at anytime in the workplace. The Respondent denies that the Complainant’s salary was €383.25, but instead that her average salary was €168.75 for the hours that she worked. The Respondent admits that it did not give the Complainant her Terms and Conditions of Employment as per CA- 000332763-002 The Respondent denies that it misled the Complainant in deliberately misrepresenting a core term in her contract of employment. The Respondent denies the claim under section 13 of the Industrial Relations Act, 1969 that it did not display or otherwise did not furnish the Complainant with the Grievance and Disciplinary procedures, including Sexual Harassment procedures. The Respondent further denies that it did not allow the Complainant to access her breaks in line with the Organisation of Working Time Act, 1997.

Summary of the evidence of the Complainant:

The Complainant described how she was happy to work in the Respondent’s salon and presumed that Mr. B was the employer as his name was on the salon. Mrs B, his partner, carried out a lot of managerial and administrative duties too. At the beginning of her employment, the Complainant worked 14 hours on Fridays and Saturdays, but she sometimes worked a full extra 8-hour day during the week.

A hurling match was to be televised on the 27th July 2019 and it was agreed among staff that they would gather in a local pub, K’s, after work. The Complainant was reluctant to go when this was first mentioned earlier that week, but she then decided to go on the night in question because she did not want to be seen to be unsocial. It was her first social occasion with the rest of the staff. All the members of staff were present in an area of the pub during the evening, including Mr B and Mrs B.

The Complainant described three incidents of touching by Mr. B. In the first incident she said that she felt Mr B’s hands brush across her breasts, when he was reaching for some drinks. She could not be certain as to whether it was accidental. She said she didn’t want to ‘make a meal’ of it. She really was not sure of what had happened.

In the second incident she said that she was walking down a corridor in the pub and she encountered Mr B who smiled at her, she smiled at him. There was no verbal exchange, but he reached across and grabbed her left breast. She said she immediately went to the lady’s toilet and sat down to reflect on what happened. She decided to avoid Mr B and go to the smoking area, even though she did not smoke. She came out and went back in to the bar area after some time.

In the third incident she said that she was talking to the partner of a work colleague when she felt Mr B touch her right breast. She said to him ‘stop it’. He replied, ‘I’m going to fire you’ She looked across at Mrs B who was looking at her and smiling. She was not sure if Mrs B had witnessed what had transpired. She said she was very angry but convinced herself to shrug it off that night because she didn’t want to upset anyone else’s enjoyment. She went to a ‘late bar’ that night with the rest of the group.

She admitted that she had quite a few drinks on the night in question and would have been over the breathalyser limit, but she clearly remembers the incidents that happened. She felt she was in denial about events because of a previous episode she had encountered in another country. She was raped and seriously sexually assaulted by an individual who was subsequently jailed. After being initially held in custody, the perpetrator was released on bail but attacked another woman while on bail. She had to travel back to this country from Ireland to attend the trial on the advice of the police, but the attacker pleaded guilty after her plane had touched down.

On her return to work on the 9th August 2019, the Complainant sought an opportunity to speak with Mr B. about what had happened in the pub. She said that she told Mr B that she would not be going out again on a company night out unless she was accompanied by her husband because of his behaviour of having grabbed her breasts. She said that his exact words in response to this were: “That won’t be fun. I’ll have to find another victim.” She said that she told Mr B that if it happened again she would go further. She said that he then shrugged his shoulders and walked off. She said that she did not take the matter up with Mrs B because she saw her laughing that night in K’s pub.

On the 30th August the Complainant said that she was folding some tissue by the tanning bed at the workplace when Mr B came along behind her and caught her by the sides. She said that Mr B was smiling and that she felt completely disgusted. There were customers around, but she did not want to make a scene. She walked into the break room, sat on the floor and cried. Later, that day she was in the Reception area when Mr B touched her sides again. She got very upset and tears welled up in her eyes. She rang her sister and rang her husband to speak with them about what happened. She said that she decided that she had to go home immediately and said it to Mr B. She said that she went out to her car and Mr B followed her out. She cannot remember what he said but she remembers putting her hands up in a protective manner.

She was very upset when she got home. Her kids looked at her strangely and her husband followed her up to her room and said he needed to know what upset her. She told him what had happened that day and her husband demanded Mr B’s phone number.

The Complainant rang Mrs B that week because she still wanted to hold on to her job. She arranged a meeting to discuss the inappropriate behaviour to which she had been subjected. Her husband accompanied her to a pre-arranged meeting with Mr and Mrs B on the 4th September 2019 at 11.00. She asked to speak with Mrs B first and was led to a private place where Mrs B informed the Complainant that she was going to record the meeting. The Complainant gave her permission for this recording. The Complainant then told Mrs B about the incidents in the pub and the inappropriate touching in the workplace. The Complainant said that Mrs B professed no knowledge of these incidents. After this initial meeting, the joint meeting between the Complainant, her husband and Mr and Mrs B took place. At the meeting Mrs B spoke on behalf of Mr B. She said that Mr B denied grabbing the Complainant’s breasts. The Complainant asked for a written apology, but none was forthcoming. The Complainant said that Mrs B spoke about how these allegations were impacting upon Mrs B’s mental health. The Complainant said that the only contribution Mr. B made at the meeting was to say that the Complainant never jumped back when he touched her in the workplace.     The Complainant asked for a copy of the recorded meeting. Mrs B said she would make the recording available, but she never received it.

The Complainant went to work on the following Saturday the 7th September but felt very uncomfortable. She said that all staff, including herself, received a contract of employment that day but she did not sign hers.

She said that her health was seriously affected by the inappropriate incidents she complained about. Medical documentation on the effects of the incidents were produced. She said there were stages when her thoughts were suicidal, and she was advised to contact the local Rape Crisis Centre by her medical advisors. She said that she has not returned to work since the 7th September 2019. She said that she did not make an official complaint to the Gardai because she did not want to go through what she had experienced in the past whilst abroad.

The Complainant said she was never provided with a sexual harassment or dignity at work policy. She also said that her daily schedule was determined by the book of appointments on the day. On a few occasions she had no tea breaks. She had no specific dates or times when this occurred.

Cross-Examination of the Complainant:

The Complainant accepted that it was a work colleague who had organised the social evening and not the Respondent. She said that Mr B had paid for at least two rounds in the pub. She admitted that she had consumed wine, vodka and a shot to the extent of being above her normal alcohol intake. She agreed that she had gone to a nightclub with her work colleagues afterwards. She accepted also that she considered the Respondent to be a decent employer up to a point.

On the issue of not having the opportunity to take break times she admitted that she wouldn’t have held that against the employer. She also accepted that she didn’t consider the loss of a break to have been intentional on the part of the employer.

On the second incident of alleged inappropriate touching near the cash till at reception she accepted that the space there was tight. She rejected the notion put to her that it would be unusual to make a sexual advance in front of other people. It was put to the Complainant that an issue had arisen where she had inputted €40,000 into the register, instead of €40 and that was the reason why she was upset and left the job early and that the allegation of inappropriate touching against Mr B was to cover this mistake. She rejected this accusation stating that the receipt issue was easily rectified by adding a note to the till and that such an incident was not the reason why she left early that day.

She accepted that a copy of the Dignity at Work policy was nailed to a noticeboard in the rest room but that she never personally received a copy to consider, or act upon. She acknowledged that she has gone for a job interview with another employer in the period since the 7th September 2019.

Evidence of Mr D- Husband of the Complainant:

Mr D said that on the 30th August his wife came home from work crying. She told him that Mr B had grabbed her again. Mr D rang the salon and spoke with Mr B and said, “What are you doing to my wife?”. Mr B denied doing anything to his wife. Mr D told Mr B that the Complainant spoke to him  before about not touching her and that she was not comfortable at work. Mr D said he then demanded that he speak with Mrs. B. He said he asked Mrs B if she knew what was going on. Mrs B’s response was that she had booked the following day off and was not happy that the Complainant was not coming in to work, which upset her plans. Mr D agreed that he was angry and upset.

Cross-Examination of Mr D:

Mr D was asked if he believed that what had happened to his wife was unusual why had he not contacted the Guards. Mr D said he did ring the local Gardai but was told by a Garda that it is only the alleged victim who can make a complaint in such circumstances.

Complainant’s Legal Argument:

Harassment Complaints:

The Complainant submits that these complaints stem from the repeated unwanted inappropriate contact made by Mr B during the Complainant’s employment as detailed in her statement previously furnished, and in her evidence.

The Complainant submits that the following subsections of section 14A of the Employment Equality Act, 1998, as amended, are relevant:

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

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

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

(ii) the victim's employer, or

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

(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…

…(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,

(b) 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.

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

The Complainant refers to Anthony Kerr’s Annotated Employment Legislation (Round Hall) where Kerr says that the liability at subsection (1) above is not “not akin to vicarious liability in common law” -see the Labour Court in McCamley v Dublin Bus EDA 4/2016 (reported at [2016] E.L.R. 81). The Court went on to say that the provision applied a form of constructive direct liability.

The Complainant further cited the European Commission’s Code of Practice on measures to combat sexual harassment ([1992] O.J. C49/1). The Complainant cites the Department of Equality and Law Reform’s Code of Practice on Measures to Protect the Dignity of women and men at work (1994) on the point that the focus in this definition is upon how the conduct was regarded by the recipient rather than upon the motive or intention of the perpetrator. The Complainant also submits that the definition recognises that sexual harassment, includes but is not restricted to, sexual conduct.

The Complainant submits that the conduct is not restricted to the workplace. The Complainant cites the case of A Limited Company v One Female Employee (EE10/1998) where the Equality Officer concluded that “within the scope of employment” can include events outside of the workplace. In that case, the claimant was allegedly harassed by two colleagues during a residential company training programme in a hotel. The Complainant contends that this case established that discrimination may occur outside of the workplace and refers also to 14A(1)(a) of the Employment Equality Act in this regard.

The Complainant contends that in this instant case the harassment occurred firstly at a work organised night out and later in the workplace itself and so clearly falls within the ambit of section 14A. The Complainant further submits that as Mr B comes within section 14A(1)(a), that the conduct in question falls within section 14A (7), and the Respondent is vicariously liable for his actions under section 14A (1), that the Complainant has satisfied the burden of proof by establishing a prima facie case of both harassment and sexual harassment against the Respondent.

Terms of Employment Complaints:

The Respondent concedes that it did not give the Complainant her terms of employment as per Section 3(1) and (1)(A) of the Terms of Employment (Information) Act, 1994 but the Complainant further submits that there was a false term deliberately inserted in her contract of employment and therefore did not comply with section 8(1) of the Protection of Employment (Fixed-Term Work) Act 2003.

Section 13 of Industrial Relations Act, 1969:

The employee is seeking a recommendation that the employer would provide a policy and staff training in accordance with S.1. No. 208/2012 – Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.

Organisation of Working Time Act 1997 (OWTA) – Breaks:

The Complainant submits that that she never received her daily rest periods in accordance with section 11 of the OWTA 1997 and relies on the Respondent’s failure to keep records pursuant to subsections (1) and (4) of Section 25 of the OWTA.

Summary of Mr B’s evidence:

Mr B confirmed that he was the owner of the Respondent business. Mr B said that the social night in question of 27th July 2019 was organised by his employees N and R. They said to him that if he wished to come he was more than welcome. He went to a friend’s house after work for a barbecue. He states that he did buy one or two rounds for his employees. He said that they were gathered in a corner of the bar but that he was not close to the Complainant nor did he have a conversation with her on the night. He completely rejects the allegation that he touched her in anyway. He states that around 11 o’clock, later that night, they all went down to a late-night bar, C’s, including the Complainant.

He said that the Complainant had challenged him at work that “he had grabbed her boobs” in the pub and that in future she would bring her husband. Mr B told the Complainant that he never touched her.

The Complainant said that on the 30th August 2019 that he may have touched “a little bit on the back of her” near the till area which was very narrow. He said that the Complainant was very upset because she had inputted a sum of €40,000 into the cash till instead of €40 and that this greatly distressed the Complainant. He tried to re-assure her that it was not such a big mistake, but she said that she had to go home. He said he had a phone conversation with her husband some time later.

Summary of Cross-examination of Mr B:

Mr B said that he had no drinks at the barbecue and that all the staff were present at some stage in the pub. He drank six or seven pints of Guinness on the night in question. He said that none of the three incidents occurred and that the Complainant was lying. He had no idea why she was lying. He said that if he had touched her in the pub other people would have seen it.

On the 30th August, near the till, he said he touched the Complainant with his fingers, as light as possible on the hips. He accepts that he did not say ‘excuse me’ or make any verbal request.

Mr B accepted that he was not familiar with the details of the Respondent’s Dignity and Respect at Work policy and was not aware that unnecessary touching formed part of that policy.

Summary of the evidence of Mrs. B:

Mrs B said she ran the business with her husband and was responsible for most of the managerial and administrative duties. She said she attended the pub on the night of 27th 2019 with the employees. An intercounty hurling match was being screened. She said that she was sober throughout the night and did not witness any incident nor were there any complaints on the night in question.

She said that the first she heard of the allegations about what happened that night was when the husband of the Complainant rang her angrily on the 30thAugust with allegations that her partner had inappropriately touched the Complainant on the night out of 27th July 2019 in the pub and on the day of the call, 30th August 2019 in the salon. She said that the Complainant’s husband had told her he was going to contact the Gardai.

Mrs B said she met with the Complainant and her husband on the 4th September and that she recorded the meeting. She said she told the Complainant and her husband that she did not witness any inappropriate behaviour by Mr B.

Mrs B said that the breaks were recorded in the register and that there was no intention to deprive the Complainant of breaks.

Summary of the cross-examination of Mrs B:

Mrs B admitted that she apologised to the Complainant at the meeting of 4th September 2019 but could not state why she needed to apologise. She also could not give an explanation as to why a copy of the recording of the meeting was not given to the Complainant. Mrs B said that the incident with the mistaken receipt was not raised at the meeting of 4th September. Mrs B acknowledged that there was no named nominated contact person for staff to engage with in cases of suspected harassment.

Summary of Evidence of N – Employee of Respondent:

N gave evidence that she organised the staff drinks outing in the pub on the 27th July for the televised hurling match. She said that the Respondent had no input into organising the occasion but that both Mr and Mrs B were invited and attended. It was a very good night and she heard no complaints about behaviour or otherwise. She said Mr B bought everyone two or three rounds of drink on the night. She said that she found Mr B to be a very fair employer and that the atmosphere in the salon was good.

She accepted that the Complainant told her that she felt uncomfortable around Mr B and N. said she best speak to Mr B about it.

Summary of Evidence of R – Employee of Respondent:

R gave evidence of a lot of alcohol being consumed by people on the social night in question. She never noticed any inappropriate behaviour from Mr B on the night in question or at the workplace. She accepted that there had been no training on the bullying and harassment procedures, but she did know that there was a booklet of procedures hanging up in the rest room.

Respondent’s Legal Argument:

CA- 00032763-001 Sexual harassment: This complaint is not admitted by the Respondent.

The Respondent submits that the event of the 27th July 2019 was not a “work-organised” night. The Respondent contends that while it is denied that any harassment occurred, sexual or otherwise, it is submitted that this social sporting occasion does not fall within the meaning of:

a)       the work place

b)      course of employment

c)       work-related social event

d)      an extension of the work place.

The Respondent also submits that it is denied that Mr B acted in any way that could be considered harassment as set out in 14A of the Employment Equality Act t, 2004.

Furthermore, it is denied that Mr B repeated his serious and inappropriate behaviour on the Friday, 30th August 2019. The Respondent submits that at no time did Mr B intentionally touch the Complainant inappropriately, sexually or intimately. The Respondent points out that Mr B accepts that it is possible that his hand(s) may have touched the Complainant’s hip(s) area as he passed behind her while moving/squeezing behind the reception counter to deal with a waiting customer when the reception area was congested and while she was obstructing his path way. The Respondent submits if Mr B’s hand(s) did come in contact with her hip area it was to ensure a safe passage behind the Complainant to the counter and to avoid his body colliding, or coming into contact with hers, and not in a sexual, intimate or harassing way.

The Respondent accepts that the Complainant was upset on the evening of the 30th of August 2019, but the Respondent submits that this was because the Complainant had entered a wrong transaction where she inputted €40,000 rather than €40. This was discovered by Mrs B who reported it to Mr B. Mr B indicated to the Complainant that she should have told him about the error rather than leaving him to discover it by chance. The Respondent submits that this led to the Complainant becoming upset and leaving before her shift ended. The Respondent contends that Mr B then went to her car because he did not want her driving while she was upset, and that it was not to intimidate her in anyway.

The Respondent cites Mitchell v Southern Health Board [2001] where it was held that the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination” before the onus of proof shifts to the employer using the three-tier test:

1.       Show a discriminatory ground.

2.       Show specific treatment alleged has actually occurred.

3.       Show that the treatment was less favourable than the treatment which may or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground(s).

The Respondent further relies on the Labour Court decision of Valpeters v Melbury Developments Limited, [2010] 21 E.L.R. 64 regarding section 85A of the Act where the Court confirmed that “the Complainant must first establish facts from which discrimination may be inferred…they must be established as facts on credible evidence.”

The Respondent further submits that the Complainant did not explore or exhaust all internal avenues of redress and that the Complainant filed an application to the Workplace Relations Commission (WRC) to “protect” her position. A meeting was conducted between Mr and Mrs B and the Complainant and her husband on the 4th September 2019 which did not advance matters and the Complainant was subsequently invited on the 11th December, 2019 and 13th January, 2020 to meet with an independent qualified mediator/HR Consultant at a convenient time and location of her choice in an effort to investigate her complaints but the Complainant did not make herself available.

The Respondent cites Valpeters in support of its assertion that the refusal of the Complainant to engage in a meaningful way regarding possible solutions to the issue of working arrangements indicates an intransigence which made it virtually impossible for the Respondent to find a resolution to the grievances made.

CA-0003276-002 Non-receipt of statement of employment:

This complaint is admitted by the Respondent. In mitigation the Respondent submits that it had a good track record of compliance with the Terms and Conditions of Employment (Information) Act, 1994 and was the subject of a WRC audit in 2018 but it is accepted that in this instance strict adherence was overlooked.

CA-0003276-003 Misleading information in terms and conditions of employment:

This complaint is not admitted by the Respondent. The Complainant was not satisfied that her contract was a fixed term one-year contract. The Complainant did not adequately engage with the Respondent to seek to resolve this difference if there was one. An express invitation was sent to the Complainant’s representative on the 11th December 2019 and 13th January 2020 seeking a meeting.

CA-0003276-004 – Industrial Relations dispute with Respondent for failing to provide a policy/training in accordance with S.I. no 208/2012.

This Complaint is not admitted by the Respondent. The Respondent furnished the Complainant with terms and conditions of employment on the 7th September ,2019 which included a section dealing with grievances and disciplinary procedures. Furthermore, the Respondent submits that the Dignity at Work Policy was posted in the notice board of the canteen/tea room for access by all the employees.

CA-0003276-005 – No proper tea breaks:

This complaint is not admitted by the Respondent. The Respondent submits that daily time sheets and corresponding appointments are maintained to ensure that all staff received their adequate tea breaks.

CA- 00032763-001 Sexual harassment:

The issues for decision in this specific complaint is whether the Complainant was subject to sexual harassment pursuant to Section 14A of the Employment Equality Act 1998, as amended, (The Act).

Section 14A of the Act provides:

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

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

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

(ii) the victim’s employer, or

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

or

(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.”

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

(a) In this section—

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

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) 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.

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

The Labour Court in the case ofNail Zone Ltd v A Worker, Labour Court Determination EDA 1023, 10 November 2010, defined the law in relation to harassment as follows:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the complainant, it constitutes harassment for the purpose of the Acts.”

Preliminary Respondent Issue: Social night of 27th July 2019:

The Complainant in her evidence said that Mr B subjected her to sexual harassment at a work organised night out and later in the workplace itself. The Respondent submits that the Saturday night social event of 27th July 2019 was not a “work-organised event”. The Respondent submits that while it is denied, that any harassment occurred, sexual or otherwise, that this event does not fall within the meaning of:

·         The workplace

·         Course of employment

·         Work-related social event

·         An extension of the work place.

The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 S.I. No. 208 of 2012 sets out a Code of Practice on Sexual Harassment and Harassment at Work (Code of Practice). This Code of Practice is issued as a guideline for employers and employees. The provisions of the code are admissible in evidence in proceedings before an Adjudication Hearing of the WRC. The Code, amongst other things, sets out the scope of sexual harassment provisions: “The scope of the sexual harassment and harassment provisions extend beyond the workplace, for example to conferences and training that occur outside the workplace. It may extend to work-related social events.”

The Complainant cites A Limited Company v One Female Employee (EE10/1988) of the proposition that “within the scope of employment” can include events outside the workplace. The Complainant gave evidence that it was her first night out with her colleagues and that she would not have attended but that her colleagues invited her out and she didn’t want to refuse them.

The Respondent’s witnesses N and R gave evidence that they organised the night out, and not the Respondent. They invited all the work colleagues including the Complainant and, Mr. and Mrs. B. Evidence was given that Mr. B bought a few of rounds of drinks for the employees and their partners who were present.

In deciding whether the social event of July was work-related, I refer to the case of Maguire v North Eastern Health Board DEC-E2002-039 where the Equality Officer considered the previous Code of Practice (Harassment) Order,2002 in making a finding. The provision relied upon in that case, mirrored the aforementioned Code of Practice, in that the scope of the sexual harassment provisions may extend to ‘work-related events’. In that case the respondent stated that it was not involved in the organisation of a Christmas party and that it had made no financial contribution towards it. The Equality Officer was satisfied that the Christmas party was work related since the complainant would not have been present at the party if he had not been employed by the respondent organisation.

In the instant case, the Complainant gave evidence that she would not have been at the social event in question but for the invitation from her work colleagues. She gave further evidence that this was her first time being at a work night out and the reason she went was that she didn’t want to be seen to be unsocial by her colleagues. I am satisfied that the Complainant would not have been present at the social event if she had not been employed by the Respondent therefore I cannot accept the Respondent’s preliminary point. I consider that the scope of the sexual harassment provisions under section 14A of the Act extend to the social evening in a public house on 27th July 2019, which I deem to be a work-related social event.

Evaluation of Evidence: Night of July 27th, 2019:

The Complainant described three incidents of inappropriate touching by Mr. B. at the work night out at a local public house. She gave evidence that she wasn’t sure about the first incident which could have been an accidental brushing of a hand on her breast by Mr B, but she gave detailed evidence of what she believed was deliberate grabbing of her breast in a corridor in a second incident and touching of her breast later in the public bar. She gave further evidence of her upset on the night but said she carried on because she did not want to spoil the night for other people.

The Complainant gave evidence of confronting Mr B on her first return to work since the alleged incidents, on the 9th August 2019. The Complainant gave evidence that she told Mr B that she would not be going out again on a company night out unless she was accompanied by her husband because she told him that he (Mr B.) had grabbed her breasts. She said that his exact words to her were: “That won’t be fun. I’ll have to find another victim.” She said that she told Mr B that if it happened again she would go further. She said that he then shrugged his shoulders and walked off.

Mr B He said that they were gathered in a corner of the bar but that he was not close to the Complainant nor did he have a conversation with her on the night. He completely rejects the allegation that he touched her in anyway. He said that the Complainant had challenged him at work with an allegation, in his words, that “he had grabbed her boobs” in the pub and that at any other work occasion she would need to bring her husband. Mr B gave evidence that he told the Complainant that he never touched her.

There are no witnesses to corroborate the evidence in relation to the incidents that happened in the public house. However, I have considered that the attitude of Mr B towards a very serious allegation, that amounted in essence to an allegation of sexual assault, to be somewhat blasé. Mr B gave no evidence of taking the matter seriously nor did he seem perturbed when challenged by the Complainant. At the very least, he could have initiated an investigation under the Dignity and Respect at Work Policy, which he himself had approved and drafted, according to documents submitted at the hearing. I don’t believe it to be a credible proposition that the Complainant would, or could, conjure up a detailed account of incidents and locations, without there being substantial authenticity attached to her claims.

I have taken account of the Complainant's demeanour in giving her evidence regarding events of 27th July 2019 and of her responses to cross-examination. Overall, I found that the complainant gave credible evidence to the best of her recollection. The Complainant's evidence is preferred over that of Mr B. I therefore am satisfied, on the balance of probabilities, that the Complainant was  subject to unwanted physical conduct of a sexual nature from Mr B on the night of 27th July 2019 which amounted to sexual harassment.

Evaluation of Evidence: Workplace 30th of August:

On the 30th August the Complainant gave evidence of two incidents of unwanted and inappropriate touching which occurred in the workplace. In the first incident she stated that she was folding some tissue by the tanning bed at the workplace when Mr B came along behind her and caught her by the sides. She said that Mr B was smiling and that she felt completely disgusted. She gave evidence that she did not want to confront Mr B, as there were customers around and that she did not want to make a scene. Instead, she stated, she walked into the break room, sat on the floor and cried. Mr B. gave no evidence of denial of this specific incident or otherwise any rebutting testimony. On this basis, I can reasonably conclude that this incident occurred as described, and that it amounted to unwanted and inappropriate physical contact. I note that the Complainant gave credible evidence of being distressed by this incident.

In the second incident the Complainant described how, later that day, she was in the reception area of the salon when Mr B touched her sides again. She gave evidence of being extremely upset to the extent that she rang her sister and husband and left the salon. She described how she went to her car and that Mr B followed her out. She stated that cannot remember what he said but she remembers putting her hands up in a protective manner.

The Complainant’s husband gave evidence of the Complainant arriving home in a very upset state. He stated that he angrily confronted Mr B on the phone about his behaviour towards his wife and how he also contacted the Gardai about the incidents, but was informed that in such situations it was only the Complainant who could make such a complaint

In response to the alleged incident in the reception area, Mr B in evidence said that he may have touched “a little bit on the back of her” near the cash till, which was very narrow. Under cross examination, he gave a somewhat different account in that he touched her lightly on the hips with his fingers. He said that the Complainant was very upset, not because of the touching, but because she had mistakenly inputted a sum of €40,000 into the cash till in a transaction, instead of €40 and that this greatly distressed the Complainant. He gave evidence of trying to re-assure her that it was not such a big mistake, but that she said to him that she had to go home. He gave evidence of receiving a phone call with her husband sometime later, who he acknowledged was in an irate state.

I am not convinced by Mr B’s evidence that the reason for the Complainant’s upset was a mistaken cash input. The Complainant gave cogent evidence that the mistake is one which is easily rectified by putting a note in the register. Furthermore, Mrs. B gave evidence that at the meeting of 4th September 2019 with the Complainant and her husband (which was an initial meeting to deal with the allegations against her husband) that neither she nor her husband mentioned the mistaken cash input in the register. This makes me conclude that such a narrative was a contrivance to veil the true reason for the Complainant’s upset, which was the inappropriate touching of the Complainant by Mr B. This conclusion is further validated by the acceptance in evidence of Mrs B that she apologised to the Complainant at the meeting but could not state at the hearing why she needed to apologise. I can conclude, on the balance of probabilities, that such an apology was for her husband’s behaviour.

Conclusion:

Section 85A of the Employment Equality Act sets out the burden of proof which applies in a claim of discrimination:

“85A. – (1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

This section provides for the allocation of the probative burden which requires that a 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 that there was no infringement of the principle of equal treatment, passes to the Respondent.  

I have evaluated the evidence and found that the Complainant has proven, on the balance of probabilities primary facts which raise a presumption of unlawful discrimination, by way of sexual harassment. The burden of proof shifted to the Respondent and I find that the Respondent has not rebutted the inference of unlawful discrimination.

Section 14A of the Acts defines sexual harassment as:

“any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

I find that the inappropriate and unwanted physical touching of the Complainant by Mr B, both at the work-related social event and in the workplace, were acts of sexual harassment and that the Respondent was vicariously liable for the unlawful behaviour of Mr B. In considering the essential characteristics of harassment, as defined by the Labour Court in Nail Zone cited above, I am satisfied that the actions of Mr B. constituted an intimidating, hostile, offensive, degrading and humiliating work environment for the Complainant.

While accepting that the respondent had a policy for preventing bullying and harassment in the workplace, it was not adequate to prevent the Complainant suffering sexual harassment and the Respondent failed to implement it. Overall, I have reached the conclusion that while the Respondent did have a policy on the prevention of sexual harassment it did not have adequate arrangements in place to ensure that the content of, and importance of adherence to, that policy was properly understood by staff or implemented by the Respondent. An aggravating factor in this case is that the person who is recorded as having drafted and approved the Dignity at Work policy, in the documents submitted at the hearing, is the perpetrator of the sexual harassment. Mr. B. gave evidence that he was not aware that ‘unnecessary touching’ was given as an example in the Respondent’s policy and procedures. I note also that the Respondent’s procedures state that ‘full information sessions on the subject will be made available to employees’ but the evidence of employees at the hearing was that they were not aware of such information events taking place. The policy also stated that “A designated contact person, trained in dealing with these matters will be available to provide non-directive advice and support, via the Manager.” Evidence was given by Mrs. B that the Respondent had no such designated person in place at the time of the Complainant made her complaints. I cannot therefore accept the assertion of the The Respondent that the Complainant did not explore or exhaust all internal avenues of redress before she filed an application to the Workplace Relations Commission (WRC). Fundamentally, there were no meaningful internal systems in place.

Documentary medical evidence was presented, in the form of an excerpt from a psychiatric report, which showed that the Complainant had reported a decline in mental health and coping due to the inappropriate sexual touching by her employer which triggered memories of a prior assault in another country. The reports states that the Complainant suffered trauma-related nightmares four to five times a week, episodes of irritability, fluctuating mood, and suicidal thoughts but with no plan or intent to harm herself. The report went on to state that the Complainant was distressed by intrusive memories of the sexual assault in another country and felt angry that she had being doing well for the year previous to the incidents with her employer. I find that the effects of the sexual harassment on the Complainant are quite significant. It is acknowledged that she had been receiving treatment and counselling resulting from a serious sexual assault in another country, but the fact of the Complainant’s vulnerability and previous medical condition does not lessen the liability of the Respondent for the effects of the inappropriate behaviour.

Having heard all the evidence and submissions in this case, I conclude that the Complainant was sexually harassed and that the sexual harassment constitutes discrimination by the Respondent in relation to the Complainant’s conditions of employment on grounds of her gender.Pursuant to Section 82 of the Act I order the following:

(1)    Having regard to all the circumstance of this case I am satisfied that the appropriate redress is an award of compensation and I order the Respondent to pay the Complainant the sum of €25,000 for the effects of discrimination. No part of this award is in respect of remuneration.

(2)     I order the Respondent to conduct an independent audit of its Dignity and Respect at Work policy to ensure that it is fully compliant with the Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2012 S.I. No. 208 of 2012, that a copy of this policy is given to all existing and new staff (on arrival) and that full information and training sessions on the policy and procedures are provided for both staff and management.

CA- 00032763-002 Failure to provide written terms:

The Terms of Employment (Information) Act, 1994 require that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Furthermore, redress in the Act is described as follows at Section 7(2):

A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3 , 4 , 5 , 6 or 6C shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6or 6C, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3 , 4 , 5 , or 6 , and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

(e) in relation to a complaint of a contravention under section 6C , and without prejudice to any order made under paragraph (d) , order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.

The Respondent accepts that it did not give the Complainant the required statement of terms under the 1994 Act. In this case the only redress sought by the Complainant is an award of compensation. Such an award can only arise where the complaints made are well founded. Moreover, it should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. I am not convinced that the Complainant was greatly discommoded by the omission of the Respondent in this instance therefore I consider that 2 weeks wage is the appropriate compensation. The Respondent denies that the Complainant’s salary was €383.25, as stated in the Complainant’s submission, but instead that her average salary was €168.75 for the hours that she worked. Based on the documentary evidence of payslips over a more realistic period which were presented to me I conclude that the average weekly salary of the Complainant is €168.75 for the purposes of compensation. Therefore, I find that the complaint is well founded, and I award the Complainant compensation of €337.50

CA- 00032763-003: Deliberate falsification of a core term under section 3(1A) of the Terms of Employment

The relevant provisions of Section 6B of the Terms of Employment (Information) Act 1994 provides as follows:

6B. Offences:

… (2) An employer who deliberately provides false or misleading information to an employee, or who is reckless as to whether or not false or misleading information is provided, as part of the statement required by section 3(1A), shall be guilty of an offence…

… (5) Summary proceedings for an offence under this section may be brought and prosecuted by the Commission.

The Complainant alleges that the inclusion of a fixed term in a contract of employment that was eventually received was a false core term that was deliberately inserted into the contract. Outside of the fact that the contract was not signed or agreed by the Complainant, the charge of deliberate falsification falls squarely under section 6B of the Act. This is an offence for summary prosecution by the Workplace Relations Commission, as distinct from a complaint to be adjudicated upon by an Adjudication Officer, therefore I have no jurisdiction in this matter.

CA- 00032763-004 – Industrial Relations Dispute:

The employee’s dispute with the employer is that the employer has failed to provide a policy and/or training in accordance with S.I. No. 208/2012 – Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012. This is a matter that was dealt with in under   complaint no. CA- 00032763-001 at this hearing, therefore I recommend that both parties would accept the order as prescribed in the aforementioned complaint.

CA- 00032763-004-005 – Daily Rest Periods:

The Complainant contends that she never received her daily rest periods in accordance with section 11 of the Organisation of Working Time Act 1997 which provides:

11. Daily rest period

An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The Complainant gave evidence that she did not get her tea breaks ‘a few times’ but had no details of dates and times. She accepted that it was not a major ongoing problem. She described how there was a book of appointments and that employees were responsible for marking in their breaks on this book.

The Respondent submitted copious daily time sheets where it showed employees being recorded for breaks, including the Complainant. There is an onus on the Complainant to be more specific about the details of denial of rest periods and I am not satisfied that the Complainant has given enough evidence to back up her claim therefore I find that the complaint is not well founded due to lack of evidence.

CA- 00032763-001 Sexual harassment: For the reasons set out herein I am satisfied that the Complainant was sexually harassed in the course of her employment and that the harassment constituted discrimination against her by the Respondent in terms of her conditions of employment on grounds of her gender.

1.       Having regard to all the circumstance of this case I am satisfied that the appropriate redress is an award of compensation and I order the Respondent to pay the Complainant the sum of €25,000 for the effects of discrimination. No part of this award is in respect of remuneration.

(1)     I order the Respondent to conduct an independent audit of its Dignity and Respect at Work policy to ensure that it is fully compliant with the Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2012 S.I. No. 208 of 2012, that a copy of this policy is given to all existing and new staff (on arrival), and   that full information and training sessions on the policy and procedures are provided for both staff and management.

CA- 00032763-002: Terms of Employment: I find that the complaint is well founded, and I award the Complainant compensation of €337.50.

CA- 00032763-003: Deliberate falsification of the Terms of Employment: I find that this is an alleged offence for summary prosecution by the Workplace Relations Commission, as distinct from a complaint to be adjudicated upon by an Adjudication Officer therefore I have no jurisdiction in this matter.

CA- 00032763-004: Industrial Relations Dispute: This is a matter that was dealt with in under complaint number CA-00032763-001 therefore I would recommend that both parties would accept the order as prescribed above.

CA- 00032763-005: Rest periods at work: I find that the complaint is not well founded due to a lack of evidence.

Employment Equality, Sexual Harassment, Rest Periods, Terms of Employment.