FULL RECOMMENDATION
PARTIES : MBCC FOODS IRELAND LIMITED T/A COSTA COFFEE DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S) ADJ-00027049 CA-00034621-002 This is an appeal under the Employment Equality Acts 1998-2015, ‘the Acts’. Ms. Quilty, ‘the Complainant’, worked for MBCC Foods (Ireland) Ltd., ‘the Respondent’ as a Barista in their Costa Coffee store in Belgard, Dublin. The Complainant raised a complaint against her manager with the Respondent. There is some dispute between the parties about the nature of an original complaint. It is common case that a complaint of sexual harassment was included in a complaint made in January 2020, that the Complainant sought a formal investigation and that she then resigned before the investigation was concluded. A complaint was lodged with the Workplace Relations Commission, ‘WRC’, under the Acts alleging discrimination on grounds of gender, discrimination in conditions of employment and sexual harassment. An Adjudication Officer, ‘AO’, upheld the complaint and, judging it to be in the less serious category of such complaints, awarded compensation of €3500. The Complainant appealed the level of the award to this Court. Summary of Complainant arguments. Directive 2006/54/EC defines sexual harassment and definitions are set out in s.14A of the Acts. In this case, the Complainant was attending an office Christmas party on 7 December 2019. Prior to her going, there was an exchange between some colleagues by text in a group chat, in the course of which her manager asked the Complainant where she was? She did not respond but the manager then posted a picture of himself in his boxer shorts and asked ‘what about Shauna?’. When she did not respond, he posted ‘I’ve got my santa panties’. When asked by a colleague who they were for, he replied ‘who takes them wins the prize’ On 9 December 2019, the same manager posted a video on the group chat of a male Barista drawing male genitalia on a flat white and he posted ’who does this, I’ll promote him to Barista Maestro straight away with no project’. He then posted ‘we shall start practising from tomorrow’. The Complainant was 19 years of age at the time. She was on minimum wage and worked 30 hours per week, on average. The actions of her manager amount to sexual discrimination and sexual harassment and the complaint is made under s.8 of the Acts and s.14A. Sexual harassment is defined under the Code of Practice. S.I. 208/2012 as ‘Unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of men and women at work’. Employees are entitled to be free of such behaviour, seeA Worker v. A Garage Proprietor, EE02/1985. The essential element of sexual harassment is that it is unwanted by the recipient, seeA Company v. A Worker E02/1990 ELR 187.In this case there is no question of there being consent. Sexual harassment may also take place outside the workplace, seeLimited Company v. One Female Employee, EE10/1988. The obligations of an employer are preventative in nature, it is not enough that an employer takes steps to prevent a recurrence, seeA Hotel v. A Worker, EDA 0915. Even where an employer has a sexual harassment policy, it is obliged to ensure that it is understood properly by the management responsible for its implementation, seeA Store v. A Worker EDA3/2016. In this case, the perpetrator was a shop manager who, clearly, had no understanding of sexual harassment. The first response of the employer to the complaint was to suggest that the Complainant be moved. Sexual harassment is a form of direct liability and there is no requirement to show that the wrong-doer was acting within the scope of his employment, seeMcCamley v. Dublin Bus 2016 ELR81. The essential element of sexual harassment is that it is unwanted by the recipient, seeA Company v. A Worker, 1990 ELR187. In the case ofMs. BH v A Named Company DEC/E2006/026, the display of offensive pictures was held to be sexual harassment. In the present case, the Complainant made complaints about her manager. It is not true, as the Respondent contends, that these related only to issues about her working hours and the alarm system. Following a meeting between the manager and Ms. Tracey Knowles, Area Manager, subsequent to this complaint, the manager told the Complainant that he did not want to be careful about what he sent to the group chat and that she blew everything out of proportion. The Respondent acknowledged an email from the Complainant sent on 21 January that set out her complaints about her manager. At a meeting on 24 January 2020, Ms. Knowles, Area Manager, offered to mediate between the parties, despite having no training, and to move the employee to another store or, alternatively to refer the matter for formal investigation. The Complainant chose the formal approach. The Respondent has said that it put in training subsequently but has produced no evidence that all staff have since been trained regarding sexual harassment. The Adjudication Officer was wrong to put this case at the lower level of offence. This was an older manager in a position of authority who sent inappropriate material to a young girl who reported to him. Summary of Respondent arguments. Note. At the outset, the Respondent’s representative accepted, in response to questions from the Court, that the actions of the manager concerned could be regarded as falling within the definition of ‘sexual harassment’. It was accepted also that the Respondent had some responsibility for the actions of the manager. The first time that these matters were brought to attention by the Complainant was in an email on 21 January 2020. This was just hours after the Complainant had a meeting with her manager to discuss the outcome of a monthly ‘Costa check’ audit, after which each member of staff is met individually by their manager as a matter of course. She then provided a medical certificate on 22 January 2020 stating that she was unfit for work due to stress and anxiety. The Respondent acted quickly. Ms. Tracey Knowles, Area Manager, asked the Complainant if she felt able to meet her. She confirmed that she was and a meeting took place on 24 January 2020. At the meeting, the Complainant detailed complaints against her manager. These included her feeling that she did not receive enough training and support in certain aspects of her work. She also raised the posts by her manager and stated that she was disgusted. These matters were not brought to the Respondent’s attention until an email from the Complainant on 21 January 2020. The Respondent would question this delay, 6 weeks after the incidents and directly after a meeting with the same manager, in which she had not taken the discussion well. This email briefly mentions the incidents and makes no reference to the Complainant feeling sexually harassed. The main issues concerned the ‘Costa check’. Due to the nature of the allegations, Ms. Knowles outlined some options to the Complainant. The first was to have the matters investigated informally with the possibility of mediation between the parties. The second option was to hand the matter over for formal investigation. Lastly, Ms. Knowles offered the option for the Complainant to move to an alternative store of her choice while the matter was being investigated. The Complainant opted for a formal investigation and the matter was passed on to the company’s HR Department. A hearing was arranged for the date of the Complainant’s return from sick leave. The manager was put on suspension. The Complainant resigned on 4 February 2020. When she was contacted and asked to re-consider her resignation, she declined to do so and, in response to a query about her attendance at a meeting regarding the investigation, she indicated that she would be withdrawing her complaints. The investigation proceeded and a disciplinary hearing took place, following which the manager was demoted from the position of Store Manager and transferred to a different store. On 4 March 2020, one month after her resignation and having declined to participate in the investigation, the Complainant’s representative indicated that she was willing to engage in an informal process. However, the within claim had been lodged by then, the investigation had concluded and an outcome of the disciplinary process had issued. Since these incidents, the Respondent has engaged a company to provide up-to-date training for all managers on dignity and respect in the workplace. The Respondent accepts that the manager’s behaviour was inappropriate. The Respondent dealt with it accordingly. A policy on harassment and bullying was available to all staff in the kitchen area along with a work poster displayed there. This policy is consistent with S.I. 208/2012. The Complainant’s contract makes her aware of a grievance policy and procedure. The Respondent makes reference to s. 14A(2) of the Acts which allows an employer a defence that they took reasonably practicable steps to prevent sexual harassment in the workplace. The Complainant did not raise complaints at the earliest opportunity and when she did, she never referenced specifically that she felt sexually harassed. There were immediate and adequate responses from the Respondent, even though the Complainant did not engage with the process that she had sought. It appears that she thought it would be more beneficial to lodge a complaint under the Acts. The Respondent does not wish to undermine the significance of the content posted but notes that that there was a good working relationship between the Complainant and her manager after 9 December 2019. The complaint appears to be responsive to the manager carrying out his work duties and, as noted inRuffley v. the Board of Management of Saint Anne’s School, (20170 IESC 33,the correction of an employee by one whose role is to correct and guide shall not constitute bullying and/or harassment. Furthermore, the offensive content was not persistent and, while unacceptable from a manager, it was sent to a group chat of colleagues, including male colleagues, and was not addressed to the Complainant, in particular. Witness evidence. Ms. Shauna Quilty Ms. Quilty is the Complainant. The witness stated that the content posted by her manager on 7 and 9 December 2019 was posted on a Facebook Messenger platform that was used to convey information regarding work rosters and other, operational, matters related to the store. The witness said that she was embarrassed by the content and that she did not discuss it with anybody at the time. She stated that this was her first full time job. However, she felt that subsequent to the events, her manager singled her out for unfair treatment. This culminated in her being blamed unfairly for problems with the ‘Costa check’, following which she shared her experiences with her mother, who advised her that what had happened was not right. As a result, she made her complaint. The witness said that she had received no training of any kind except for training on how to prepare the beverages sold in the store. Under cross examination, the witness stated that she worked a full 37.5 hour week, even though she was on a part-time contract. The witness said that her relationship with Ms. Knowles had been good until she had made her complaint when, she said, Ms. Knowles’ first reaction had been to transfer her to another store. The witness reiterated that the delay in raising a complaint about the posts was due to embarrassment. In response to questions from the Court, the witness said that she had never received a handbook setting out the Respondent’s HR policies. She said that she was not aware of a company social media policy. When asked why she had resigned, the witness said that she did so following consultation with her mother and Mr. Grogan, her Solicitor. On re-direct, the witness clarified that she had not wanted to return to the workplace at the time. She said that she did not know how to raise a complaint with her employer at the time. Ms. Tracey Knowles Ms. Knowles is an Area Manager with the Respondent and gave evidence on their behalf. The witness denied that the first response that she put to the Complainant, when they met following the complaint, was to suggest that she transfer stores. Rather, she said that she suggested alternatives to the Complainant. She suggested either that the Complainant, her manager and the witness get together to see if the issue could be resolved informally or that the Complainant could have the matter dealt with formally. She offered the option to the Complainant, if she wanted to avail of it, to transfer temporarily to another store while the complaint was being processed. The Complainant indicated that she wanted to formalise the complaint. The witness stated that since this matter arose, the Respondent had provided training to managers on dignity and respect in the workplace. She said that this had not been provided to staff. The witness said that the Respondent had a social media policy that warned staff about references to the company in their social media posts. Under cross examination, the witness agreed that she had received no training on sexual harassment or dignity at work, prior to the complaints before the Court. When asked why she had not transferred the manager following the complaint, the witness said that she had never intended to transfer the Complainant but had put options to her. When asked why she had not suspended the manager, the witness said that she had passed the matter on to HR for their attention. When asked how many women worked in the store at the time, the witness indicated that there were four. In response to questions from the Court, the witness said that she had not seen the Respondent’s policy on bullying prior to these complaints. She confirmed that she was not familiar at the time with the workplace definition of sexual harassment. The witness said that managerial training in the company was in respect of operational matters and that HR issues were referred on to the Respondent’s HR unit. The witness said that she had worked for the Respondent since 2013. The witness confirmed that she was aware of the existence of the Facebook Messenger group for the store, which had been set up by the store’s employees. She confirmed that operational matters, such as work rosters, were communicated through this mechanism. On re-direct, it was confirmed that the manager against whom the complaints had been made had been suspended from duty by the time that the witness had met the Complainant. The applicable law Employment Equality Acts 1998-2015 Discrimination for the purposes of this Act. 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where — (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which — (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), Discrimination by employers etc. 8.— (1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker. Harassment and sexual harassment. 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 ofparagraph (a)— (i) such harassment has occurred, and (ii) either — (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment. (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer undersubsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable — (a) in a case wheresubsection (1)(a)applies (whether or notsubsection (1)(b)also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b)in a case wheresubsection (1)(b)applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects. (3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person. 77. (11) A party to any proceedings under this Act before the Director General of the Workplace Relations Commission or Labour Court may be represented by any individual or body authorised by the party in that behalf. (12) (a) Not later than 42 days from the date of a decision of the Director General of the Workplace Relations Commission on an application by a complainant for an extension of time undersubsection (5), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal. (b) On the appeal the Labour Court may affirm, quash or vary the decision Redress which may be ordered. 82.— (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission undersection 79may provide are such one or more of the following as may be appropriate in the circumstances of the particular case: (a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral undersection 77(1)which led to the decision; (b) an order for equal remuneration from the date referred to inparagraph (a); (c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case undersection 77; (d) an order for equal treatment in whatever respect is relevant to the case; (e) an order that a person or persons specified in the order take a course of action which is so specified; (f) an order for re-instatement or re-engagement, with or without an order for compensation. S.I 208/2012
Deliberation. While some reference was made to gender discrimination and discrimination in conditions of employment in the Complainant’s submission, neither party made oral arguments to the Court on these aspects. The AO Decision was that a case had not been established on these aspects, provided for in s.6 and s. 8 of the Acts. The arguments made to the Court concern the claim of sexual harassment and this determination is confined to that issue and the Court has no reason to vary the decision of the AO in respect of S.6 and s.8. As the Respondent accepts that the actions that gave rise to the complaints amount to sexual harassment, it is not necessary to dwell overmuch on this aspect of the case beyond referring to s. 14A of the Acts, set out above, and to the examples of sexual harassment that are set out in S.I.208/2012. There is no doubt in the mind of the Court that the actions in this case are actions covered by the definitions of such behaviour. The acceptance of this by the Respondent obviates the need for the Court to examine if a ‘prima facie’ case exists such that the burden of proof should shift to the Respondent. The burden shifts because of the acknowledgement by the Respondent. The Respondent accepts also that the behaviour of the Complainant’s manager is not something that it can disown and that there is a liability on their part. Rather, they argue that the manager concerned acted contrary to the company policy, that he was disciplined for his misconduct, that the behaviour was at the lower end of seriousness and was only brought to the Respondent’s attention by the Complainant when she had other, unrelated, issues with the manager. The Respondent states that they are covered by the defence available under s.14A(2) of the Acts. It is argued, therefore, that the Decision of the AO was correct in confining the award to €3500 or twelve weeks’ pay. The Complainant for her part argues that she was subjected to sexual harassment at the upper end of the scale, that her employer had an obligation to protect her, that her employer failed to take the steps necessary to do so, that, as a consequence, she suffered distress and that her employer mishandled her complaint and compounded their failures by suggesting that she might move to a different outlet. She argues that the AO Decision falls short in recognising the seriousness of the complaint and that the award is not ‘dissuasive’. The first issue for the Court is to consider if the Respondent had taken sufficient steps to protect the Complainant from the sexual harassment that she suffered. In this regard, the Court is quite shocked to note that an employer of this magnitude had, at the relevant time, no clearly set out policy on sexual harassment. The policy on which the Respondent relied in making arguments to the Court is, in fact, a policy on bullying and dignity in the workplace rather than one that covers sexual harassment. This extraordinary oversight meant that not alone was there no training provided to employees on sexual harassment but, it could be argued, there was no express prohibition on such behaviour. It goes without saying that such an absence does not absolve an individual for behaviour that is, self-evidently, unacceptable but it calls into question the commitment of the Respondent to the protection of their employees. To put the matter at its bluntest, the Complainant was a young woman of 19 at the time and she was entitled to expect that all employees would know, without any potential ambiguity, what her employer would deem to be unacceptable behaviour, so that she might expect with confidence that she would not be the recipient of such behaviour by a fellow employee. It was set out with clarity inA Store v. A Worker EDA3/2016,that even where an employer has a sexual harassment policy, it is incumbent on them to ensure that it is properly understood by managers responsible for its implementation. In this case, the fact that the Respondent did not even have the most basic policies in place makes them all the more culpable for what happened. The fact that the platform used for the sexual harassment of the Complainant was a Facebook Messenger platform used for the Respondent’s operational purposes and whose existence was known to the Respondent, would suggest an imperative on the part of the Respondent to have in place a clear policy on social media use. In effect, that platform became, because of the nature of its use, the responsibility of the Respondent. The Court was told that the company did have a social media policy but that this concerned primarily, if not exclusively, (it was not produced to the Court), admonitions to employees about making, or not making, references to the Respondent on their own social media accounts. As this Court noted inA Worker v. A Garage Proprietor, EE02/1985,‘Freedom from sexual harassment is a condition of work which an employee from either sex is entitled to expect’. It is extraordinarily unsatisfactory that a social media platform used by employees of the Respondent for work purposes was not covered by a social media policy that expressly set out a prohibition on the type of sexual harassment to which the Complainant was subjected. This failure, again, heightens the sense that while the behaviour of an individual employee gave rise to the complaint, the Respondent bears significant responsibility for what occurred. The Court found the evidence by Ms. Knowles to be honest and trustworthy. Her candid admissions that as an Area Manager in the company, having worked there since 2013, she was unaware at the relevant time of the Respondent’s policy on bullying and that she was not aware at the time of the workplace definition of sexual harassment, are examples of commendable honesty. Unfortunately, they are also evidence that speaks to the casual approach of the Respondent to its responsibilities regarding the protections that its employees are entitled to expect. It is not easy for the Court to measure the level of seriousness of a complaint of sexual harassment. Obviously, the very upper end of seriousness includes situations of sexual assault. However, it is not possible to say with any certainty what might be construed as minor examples as much can depend on the impact of harassment on the individual. Each case has to be examined on its unique facts. What can be said in the instant case is that the Complainant has a right to go to work without being subjected to unwanted pictures of her manager in his underwear or childish and offensive representations of male genitalia. While the nature of such offensive behaviour may not be in the same category as physical assault, it is considerably more than harmless banter and the Court does not concur with the view of the AO that the acts fall into the lowest category of misbehaviour. Furthermore, the Court sees little merit in the argument that the delay in the Complainant reporting the behaviour or the circumstances in which she did so are indicative that she did not regard this behaviour as seriously upsetting. The Court accepts her explanation in evidence that she found the incidents embarrassing and, as a result, did nothing about them until other matters caused her to have a full discussion with her mother, which then resulted in her making a complaint. On the other hand, the Court does not accept the argument that the reactions of the Respondent to the complaints were designed to minimise them or that the Respondent sought to penalise the Complainant for having made the complaints by moving her to another location. In this regard, the Court notes that the relevant manager was suspended from work at an early stage, his behaviour was investigated and, as a result, a penalty was imposed on him. The Court notes also that Ms. Knowles, notwithstanding her acknowledgement of a lack of knowledge or training in such matters, advised the Court that she offered the Complainant three, in the Court’s view, perfectly reasonable alternatives either to have an informal, three-way, discussion involving the relevant manager, to register a formal complaint with HR and/or to re-locate pending an investigation. These factors mitigate to some small degree the almost inexplicable inadequacies in the Respondent’s protective procedures. However, they are responses to what happened. The defence set out in s.14 A (2) is not available to the Respondent because of their failure to take any real steps in advance to protect the Complainant from the harassment that she suffered. In the Determination ofA Hotel v. A Worker EDA 0915,it was noted that an employer has preventative obligations and cannot rely as a defence on actions taken to prevent the recurrence of harassment after it has occurred. The Court is left to consider a situation that is more than just poor behaviour by an individual. The Court cannot ignore the fact that the Respondent’s failures offered inadequate protections to the Complainant. The Court notes with approval that the Respondent has taken some steps to address its deficiencies in this regard, subsequent to the incidents that gave rise to the complaints. It hardly needs to be said that the Respondent needs to have a full suite of policies regarding the legal protections that they are required to put in place to ensure that staff are protected from recurrences of this type of incident. Therefore, in accordance with Section 82(1)(e) of the Act of 1998, the Court orders the Respondent to take the following courses of action:
In assessing the compensation to be awarded to the Complainant, in accordance with s.82(1)(c), the Court has set out above the considerations that lead it to the conclusion that the award should lie somewhere between the maximum award of two years’ pay and that decided upon by the AO. In assessing precisely where the award should fall within that range, the Court has regard to the observations invon Colson and Kamann (1984) ECR 1891,that awards should be effective, proportionate and dissuasive and that they should act as a disincentive against future infractions by the employer. Taking all of the above factors into account, the Court is of the view that compensation of €20,000, or approximately one year’s earnings, is appropriate in this case and the Court so determines. Determination. The Decision of the Adjudication Officer is varied.
NOTE |
