Complainant

Respondent

Anonymised Parties

Instructor

Social Care Provider

Representatives

A.M. Giblin BL  instructed by J.O.S Solicitors

Aisling McDevitt IBEC

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-00036618-001

11/06/2020

This case involves a complaint that the Complainant was sexually harassed in the workplace by her manager, that she was victimised by that manager when she resisted his unwanted behaviour and that she was victimised by the wider organisation after she made a formal complaint of sexual harassment. She contends that the Respondent is vicariously liable for the sexual harassment and the manner in which she was treated by the manager and the wider organisation after she exercised her rights under the EEA. Associated issues were raised related to the absence of preventative measures prior to the sexual harassment, the absence of supports after she made a formal complaint and also the investigation of her complaints by an external investigator.

As the Decision is anonymised the generic term of Complainant and Respondent are used while DM indicates the alleged perpetrator. Witness A represents the person who gave evidence on behalf of the Respondent.

Submission. The Complainant was employed by the Respondent from June 2019 until an unspecified date in 2020. From October 2018 she was employed at the same location by a Government Department. Her direct line manager was DM. It was submitted that on approximately 29th May 2019 DMs behaviour towards the Complainant changed when he began sending her text messages of a sexual nature. The Complainant was uncomfortable about these messages but did not know how to react as he was her line manager. She told DM she was happily married and did not want an affair. The unwanted text messages continued. In mid-September she asked DM on a WhatsApp to stop his advances. He appeared to accept this and said it would not alter the working relationship between them. However, the work relationship did change dramatically in so far as the Complainant was isolated by him; he stopped most communications or when he did communicate he set an impossible deadline for a task. He did not respond to emails. She wrote to him about her concerns on October 19th, 2019. In his response, he referred to the sexual advances in the past. Further incidents of a lack of support and isolation continued. Of twenty-two emails sent to DM by the Complainant between dates in September and December 2019 only one or two received a response. {The numbers in the submission do not tally]. The Complainant learned that another female colleague had experienced issues with DM (sexual harassment) as she had. On December 16th having been out of work on stress leave from December 12th she made a complaint of sexual harassment and also about the way she was treated by DM from approximately September after she had asked him to stop his unwanted sexual interactions. The other female employee also made a complaint.

The discrimination by DM was described as verbal contact of an unwanted sexual behaviour, which was explicitly sexual in nature and contained repeated requests for social activity outside the workplace. Unwanted suggestive remarks and comments were made about the Complainants appearance.

The Complainant was informed that DM was suspended. There followed an investigation of the complaint by an external investigator. She received limited information and little support during the investigation phase which continued until a report was issued in late June 2020. She did not receive a copy of the report until it was included in the Respondents submission. Witness A for the Respondent read the document to her and informed her she would not receive a copy. She was informed that the investigation report was final. The outcome of the investigation was to the effect that she had engaged in mutual behaviour with DM and was not sexually harassed by him. That conclusion in the report is rejected by the Complainant and she maintains she was sexually harassed by DM. She was informed that the second part of her complaint, about the treatment of her by DM after she rejected his behaviour, was found to be inappropriate and that part of her complaint was upheld by the investigation.

She was informed that the Respondent had terminated the employment of DM and related that termination to her complaints. At the time she was told the termination was subject to appeal and heard no more after that. In 2020 she left the employment and is engaged in similar work with another service provider.

Time Limit.

It was submitted that the discrimination in the form of sexual harassment was ongoing until 16 December 2019 the date of the complaint made to the Respondent. As the complaint was submitted on June 11, 2020 it was within the time limit of six months specified in section 75 of the EEA. That discrimination was a continuum of behaviour of the same person which had commenced in May 2019 and therefore should be treated as in Hurley v County Cork VEC where the Labour Court found that an act which extended over a period is to be treated as done at the end of that period. In that case, the Court also found that in order for acts or omissions outside of the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit and their admissibility is dependent on there being some link between the occurrence outside the time limit and those inside the limitation period. In essence, the application of the principle of continuum for the purposes of identifying a cognisable period was sought by the Complainant.

In this current case, the sexual offending behaviour did cease before that date, but the offending behaviour of DM simply changed, the atmosphere did not improve and both the offending sexual behaviour by DM and the behaviour after he ceased the sexual behaviour represent a continuum of behaviour until it ceased after she made a complaint when he was suspended. On this basis the complaint submitted on 11 June was within the six-month time limits contained in section 77 of the Act. In the alternative if it is decided that the complaint of discrimination was not made within a six-month period reasonable cause exists for an extension of the time limit to twelve months. Cementation Skansa v Carroll DWTO338 was cited in support of this position.

If it is found that there was a delay in this instance. The Complainant was the recipient of unwanted explicit and suggestive texts from her direct line manager throughout the course of her employment. She was extremely worried about the consequences if she made a complaint. When she did ask DM to stop his unwanted behaviour, she was left isolated in the workplace. As regards lodging a complaint with the WRC there was an investigation ongoing until June but the investigation continued for six months without an outcome and so she lodged her complaint on 11 June inside the six months after she submitted her complaint to the Respondent. The Complainant is therefore entitled to an extension of time, if this is required, as the delay in bringing the complaint was entirely reasonable.

Complaint of Discrimination

Complainant Witness Evidence

The Complainant gave evidence of her dealings with DM. She said he had initiated the interactions of a sexual nature by text. She had responded to those text trying to make fun, but she was confused, and he was her line manager. His behaviour towards her changed at the end of May. She no longer has all of the text messages. She asked him to stop but then he began to talk about them booking into a hotel, so she started to blame her husband saying she would have to discuss it with him and then using him as an excuse not to go ahead with the hotel arrangement saying that he would not agree. Some of the texts were received outside of working hours and when she was on holiday and when she guessed DM was drinking. Over the period he would stop and then start again. She was very uneasy, confused and disappointed by his behaviour.  In the workplace he acted as though there was no texting. She agreed that in July August the texts went both ways, she did engage with the texts of a sexual nature, that’s a fact, she said. but after the hotel texts it was too much-she never intended it to be more that text messages. She accepted that there were mutual exchanges of a sexual nature at times over in the texts. She did say about having an open marriage, but she never spoke to her husband about it-it was just an excuse to get him to stop, blaming her husband for her decision. In mid-September he said yes, okay he would stop. But then a few days later he started again a couple of days later. At that point she said stop, stop now. This was September 25th.

There was no offending sexual behaviour after the end of September. However, on October 24th he did reference their previous sexual exchanges in a message and specifically her decision to stop those exchanges. After that there were no further references to sexual interactions and no further contacts of that nature from DM (or the Complainant).

Complaint of Victimisation

The first part of the complaint of victimisation formed part of the complaint to the Respondent on 12 December 2019. That was concerned with what the Complainant terms isolation of her in the workplace by DM after she told him to stop the offending behaviour and not to continue. He would send her a text in the morning regarding any work for the day, but he refused to reply to her emails or her requests for support with the service user she worked with when her situation became difficult.  When DM did communicate with the Complainant he asked her to carry out tasks that were impossible to complete. She was told she could not send emails outside the service without his authority while not replying to her own emails to him. A copy of the emails was provided. She experienced increasing difficulties with the service user she was assigned to but received little support and became increasingly stressed and attended her GP on December 12th.

The second part of the complaint of victimisation concerns the reduction in pay of the Complainant from the end of January 2020. Her contract of employment stated that she was employed as a basic instructor on point six of the pay scale. In early December 2019 before she made her complaint, she wrote to HR about concerns that staffing was to be reduced in the centre. She was assured this was not planned or if it occurred would take months and not weeks. However, after she made her complaint her role, her contract and pay changed without her agreement when the service user was removed from her and she was reduced to point four on the scale. She had never agreed to work for less than point six on the scale.

The third part of the complaint of victimisation is concerned with a refusal to promote the Complainant to senior instructor in December 2019 although the person she was interviewed by over the phone told her she would be interested in having her in that role. While she was told that this was because she did not have a social care degree, she was aware of others who were in that grade without social care degrees and gave some details in evidence. In response to the assertion that she was not qualified, reference was made to a contact in July 2020 offering her a post of a temporary senior instructor and her academic qualifications. This submission was confirmed in witness evidence by the Complainant who added that the explanation given at the hearing as to why she was not qualified for a permanent senior instructor post in December 2019 but was qualified for a temporary post in July 2020 was not given to her at the time. She turned down the temporary appointment.

Vicarious Liability

Legal arguments were made regarding the liability of the Respondent to prevent discrimination under Section 15 of the EEA. In this case, it was notable that the Respondent accepted that they had no record of any training being provided to the manager DM. Having a policy in place is insufficient. Furthermore, the Respondent conceded that there was no record of an induction day for the Complainant where the relevant policy was explained to her or how she could make complaints. Referencing the Code of Practice S.I.208/2012, ‘Employers will not be able to rely on an excellent policy if has not been implemented’.

Following the receipt of the complaint, the Respondent did not keep the Complainant informed of developments-she was the one who made contact seeking updates regarding the investigation. HR did arrange a face to face meeting with the Complainant on 22 April 2020. Acknowledging that she was offered the support of EAP through the VHI, there was no contact with her regarding her situation in the workplace or the impact of the offending behaviour although she was working alongside members of staff who were known to be very close to the suspended employee DM.

The investigation took over six months, in breach of the Employers own policy which commits to thirty days-an extended breach even allowing for Covid. The Respondent did not provide the Complainant with a copy of the report.

Witness evidence regarding Vicarious liability by the Respondent

The Complainant gave evidence that she did not have an induction day with her manager. She was given a folder of documents and a couple of hours to read them. Some of the documents were highlighted by sticky labels and she was told to give those priority. One of the those was the Dignity at Work Policy. She did not receive a copy of the policy. That was held in an area to which she did not have direct access. It was when she spoke to another employee about her difficulties with DM and that person had access to the place where the policy was held, that they both read the procedure for making a formal complaint and then they both made complaints.

She confirmed that she did not receive a copy of the Preliminary Report. The investigator did meet with her again after he received the response of DM to the Preliminary Report. She did receive a copy of any statements made by DM but not the other witnesses. HR met her when the report was finalised and read it to her. She was told she would not receive the final report. She was told that the employment of DM was terminated and that he had the right of appeal. She was not informed of the outcome of the appeal.

Complaint of sexual harassment.

An allegation of sexual harassment was made by the Complainant on December 16th, 2019. Due to the seriousness of the complaints made by the Complainant and another employee, DM was placed on administrative leave on December 18th and the Complainant was informed of the decision, within two days of the complaint. An external investigator was engaged at great expense. The Complainant and DM were interviewed in relation to all of the complaint as were other employees regarding the allegation that DM had isolated the Complainant in the workplace after September 2019. A Report was issued in June 2020. The investigation did not uphold the complaint of sexual harassment and the Respondent has accepted that finding and rejects the complaint of sexual harassment on that basis.

The second part of the Complainants complaint, regarding her isolation by DM after the exchanges between them ended, was upheld by the same investigation as inappropriate behaviour. This second aspect of the Report was also accepted and formed part of the basis of the disciplinary procedures put in place by the respondent which resulted in the termination of the employment of DM. A complaint by another employee around the same time was also investigated. That complaint of sexual harassment was upheld and that also formed part of the disciplinary process for DM.

The Respondent has in place a full DREW policy. The contract of employment signed by the Complainant references the Respondent Policies and staff are required to read those policies and have access to them in the workplace. The DREW policy is one which is highlighted on induction day/s. The respondent’s policy itemises sexual harassment as gross misconduct.

While the investigation was ongoing there was contact between HR and the Complainant and her requests for updates were responded to by emails and also a meeting with HR in April 2020. EAP was put in place.

References to difficulties in working with other employees after she made the complaint and while the investigation was ongoing were never raised by the Complainant at any stage.

The education requirements for a senior instructor role were outlined in the submission.

The Complainants pay was reduced in February 2020 because she had received the higher (point 6) rate of pay when working with a particular service user and this ceased in January 2020 due to her own expressed difficulties in working with that service user.

All aspects of the complaint were rejected.

Time Limits

The Respondent submitted that the complaints were out of time.

Even if it were found that there was sexual harassment, any interactions of a sexual nature ceased in September 2020 and a complaint submitted on June 11, 2020 was well outside the six-month time limit. There was no basis for extending that time limit beyond the initial six months provided for in Section 77.

The complaint of victimisation by DM is also outside the time limit as the Complainant ceased to work with DM on December 11th as that was her last date worked with DM as her manager-she was out sick from the 12th December 2019.

Evidence of Witness A

The evidence of witness A was concerned with the complaints of victimisation in relation to the senior instructor position, the change in the rate of pay in January and the responses to the complaint. Some of the evidence supported the submission with additional evidence.

A gave a detailed explanation regarding the historical and current qualifications which were in place before he commenced in the employment. On the basis of the current requirements, the Complainant was not eligible for appointment to a permanent post of senior instructor in spite of her acknowledged academic qualifications. This was explained to her when she contacted HR at the time. The description she gave of a telephone interview was not an interview for the post. DM had no role in the filling of the permanent position which would be handled through HR procedures.

In relation to the offer of a post at senior instructor rate of pay in July 2020, great detail was also provided regarding the purpose location and basis of this position and the offer to the Complainant. This was a temporary appointment. The rate of pay was permitted as a temporary appointment because the service user had special needs. He acknowledged that the communications sent to the Complainant at the time were not clear about the point.

Regarding the reduction in pay in January 2020, this was also related to the work to be done by the Complainant. Her point six salary was based on her working with a particular service user. She herself had raised safety concerns about the behaviour of service user and it was decided to assign the service user to someone else and she reverted to the relief panel. He had decided to extend the period she was paid on point six for a few weeks because he was aware it was a loss of pay and he also decided to increase her to point four earlier than would have occurred otherwise.

In relation to the time taken to the conduct the investigation. There were delays due to the absence of the DM who decided that he would be out sick even though he was on paid administrative leave. There was Covid and arrangements to be made with witnesses. When the Investigator completed a preliminary report that was issued to DM. In response DM engaged technical support to locate previously deleted and unavailable messages exchanged with the Complainant which he said showed that the sexual exchanges were mutual. The Investigator then met DM and also the Complainant to go through the new evidence. A confirmed that it was his understanding that the Preliminary Report favoured the Complainant on the allegation of sexual harassment, but this changed in the final report. During the investigation stage the Complainant had access to HR and the Investigator regarding the conduct of the investigation.

In relation to the final report he went through this line by line with the Complainant at a meeting explaining what it meant. Asked of her reaction he said she did not seem surprised about the findings in relation to the allegation of sexual harassment to the effect that these were mutual exchanges. Asked why the Complainant did not receive a copy of the report, he stated that he was advised by the Investigator not to provide her with a copy and he followed that advice.

Time Limits

In relation to time limits -there are unusual aspects to the case under consideration. There is the complaint of alleged discrimination through sexual harassment, the full definition of which is well known to the parties.

The Complainant brought two issues to the attention of her employer on December 16th, 2019. The first concerned an allegation of sexual harassment by DM through unwanted sexual advances and the second was in effect an allegation of victimisation of her by DM because she sought to end those advances. At the hearing it became evident that the latest possible date for advances of a sexual nature or even, at the limit, references to sexual behaviour was 24 October 2019. The Complainant agreed that there was no unwanted sexual behaviour of any kind from DM after that date. On the basis of this conclusion the outer time limit for making a complaint of discrimination on grounds of sexual harassment within the initial sis month time limit contained in Section 77 was 23 April 2020. It is not accepted that there was any regime of sexual conduct or by extension potential sexual harassment between October 24th and 16 December 2019 when the complaint was made. The date for commencement of the six-month time limit for the complaint of sexual harassment is not therefore the date of the complaint as contended on behalf of the Complainant i.e. December 16th, 2020. The principle espoused in Hurley vs County Cork VEC does not apply to the facts in this case in terms of the time limit for bringing the complaint.

The next step is to consider whether the delay in submitting the complaint was justified as reasonable such as to provide an excuse for that delay. On balance I find that the delay in making such a complaint to the WRC cannot be reasonably explained other than, possibly, an error caused by the fact that the Complainant had effectively two different parts to her complaint submitted on the December 16th and the time limit for both was treated by her or on her behalf as the same. However, this Complainant was in regular contact with the Respondent from the end of January posing very direct questions about progress on the investigation. She also had direct access to the investigator as evidenced by witness A on behalf of the Respondent. Her complaint was submitted before she knew the outcome of the investigation, so the complaint to the WRC did not await the outcome of the investigation-as it has in other situation where employee make complaints based on an outcome which either upholds or rejects their complaint.

Given the facts in this case, I find that the complaint of sexual harassment itself is out of time under Section 77 of the EEA and that an extension beyond the initial six-month period is not justified on grounds of reasonable cause which excuses the delay.

In terms of the unusual feature of this case in relation to time limits, there is a second question of time limits related to the complaints of victimisation for exercising her right to object to unwanted and unlawful behaviour. It is accepted that as long as DM had remained her line manager on the job so to speak there was a potential for victimisation if that occurred as she was continuously operating within that regime. This conclusion brings the dates in question to December 18th, 2019 when DM was suspended. Based on this conclusion, the complaint of victimisation directly by DM falls within the initial six-month period provided for in Section 77. Similarly, the change of her pay falls within the same six-month time limit as that occurred after she made her complaint. The complaint about non-access is considered as it forms part of the continuum of victimisation alleged against DM because of the allegation that DM was directly involved in the decision not to appoint the Complainant to the senior instructor role.

The potential for any finding of vicarious liability now arises from the allegation of victimisation by the Complainant both by DM and the wider organisation. The first part because she exercised her right to object to the discriminatory behaviour as alleged and the second as she contents she was victimised after she exercised her right to make a complaint of sexual harassment and victimisation by DM. The alleged lack of support after the complaint was submitted and the conduct of the investigation and the handling of the outcome of that investigation are also features of the claim of vicarious liability on the part of the Respondent.

Notwithstanding the finding that the complaint of sexual harassment was made to the WRC outside of the initial six-month period for making such a complaint, in order to determine if the Complainant was victimised by DM effectively for rejecting his sexual interactions as unwanted, it is necessary to decide whether in fact the Complainant was sexually harassed through unwanted sexual conduct by DM. In this regard the investigation report which the Respondent seeks to rely on has no standing as evidence. The Adjudication Officer is required to investigate the complaint. This is in spite of the fact that, as is often the case, the only available evidence is that of the Complainant. The alleged perpetrator is not a witness. He has long parted the employment and there were no witnesses to the disputed behaviour. Thus, an Adjudication Officer is frequently left to decide the matter based mainly on the evidence of one party to the situation which gave rise to the allegations. A seeming one-sided hearing based on one sided evidence with no countering oral evidence.

However, the Adjudication Officer must consider fully the evidence available in any hearing which in this case includes the Complainants response to questions concerning text messages between her and DM which were put to her at the hearing. Having carefully considered that evidence and the content of the messages provided to the hearing, the finding is that while the Complainant took steps to avoid the situation developing further to a more intimate extent, she has not provided an explanation of her own interactions over an extended period from which any reasonable person would conclude that she did not engage willingly in the sexual text dialogue with DM up to that point. The date when the alleged sexual harassment began was given as the end of May-at a time when DM was not the Complainants line manager although she and her representative sought to emphasise that aspect of their respective positions. And it was she, and not he, who made suggestive remarks in the texts provided for 25th September 2020. There was a mutuality in the messages exchanged in terms of the content of the available texts on and off during the period May to September 2019 such that it was not reasonable to expect DM to conclude that those exchanges and were unwanted or to side with the Complainants assertions they were unwanted. And in her oral evidence she did concede that at times at least there was a mutuality to their respective conduct. The exchanges are found to have been mutual up to the last stages and, it is found that when she informed him that she would not go to a stage of staying in hotel and that her husband would not agree, he accepted her decision. This is confirmed in his message of 24 October where he stated” Secondly as you said before, nothing sexual is going to happen and I am not into games which as I said is no prob, so in my books all good with you”. The earlier part of that same message was complimentary about her work which he described as valued by him and the team and he apologised for the delay in responding to her concerns re the service user.

The overall finding is that there was no sexual harassment of the Complainant by DM. Theirs was a series of mutual interactions of a sexual nature to the point where that interaction was ended by mutual agreement.

In relation to his treatment of the Complainant after the end of September, it is easily concluded and deserves recognition that DM did avoid the Complainant and made her life unnecessarily difficult in failing to liaise adequately with her over an extended period, basically to do his job. Without getting into the area of speculation as to why he behaved in that fashion-it cannot be concluded that it was as a result of the Complainant exercising her right to reject unwanted behaviour in the form of sexual harassment, since it is found that the behaviour was not unwanted until it threatened to exceed her boundaries and her wishes and was ended by mutual agreement. Retaliation for the termination of mutual behaviour is inappropriate but not a breach of the Employment Equality Act.

Vicarious liability under Section 14 of the EEA in respect of the alleged discriminatory treatment of the Complainant by DM does not arise for consideration under the legislation in circumstances where it is found that sexual harassment did not occur and consequently on this aspect of her treatment, the Complainant has not satisfied the test in section 14 that she was subjected to different treatment because she rejected sexual harassment.

In relation to the remaining issues, an allegation regarding non-promotion to senior instructor strictly speaking this aspect does not arise for consideration based on the connection made by the Complainant between DM and that decision. However, I will deal with the issue in the interests of fairness and clarity.  The detailed and clear explanation of witness A concerning the qualifications for posts at that time as distinct from the practice in previous years is accepted as is his detailed evidence regarding those others named and claimed as employees who were promoted to senior instructor or equivalent without the social care degree. His explanations are consistent with developments in the sector and were explained to the Complainant in an email when she raised the issue. In addition, the Complainant seemed to think she was interviewed through a phone call from a manager at the time who expressed a wish to have her in the post but went off to check. The evidence that there was no interview is accepted. In reality this aspect of the complaint seems to have related more to the Complainants suspicions that DM influenced the decision not to appoint her, but she has no evidence other than a suspicion which is not evidence.

Justifiable and serious issues were raised regarding the conduct of the external investigation after the complaint and the absence of any acceptable standard of training or policy enforcement by the Respondent prior to the complaint. However, in the absence of a finding of sexual harassment or victimisation for rejecting further sexual interaction these do not arise for consideration as potential vicarious liability. I would advise the Respondent that it is in their own interests to ensure that any future investigations are conducted in line with their own existing DREW Policy including what is to happen when an investigation report is completed. And that references to statutory rights and time limits for taking complaints under the EEA be contained in the Policy as recommended in the related Statutory Instrument. Referring employees especially managers to a policy for them to read that policy has never to my knowledge been accepted as the standard for defining an employer’s commitment to preventing sexual harassment or a culture of harassment generally.

Regarding the reduction in pay following the complaint which occurred in January February 2020, that unilateral decision appears as a breach of the contract of November 2019 which was to endure for six months. However, this is not a complaint of breach of contract. The possibility of removing the Complainant away from the particular service user was referenced by DM in late October 2020 due to the real concerns she was raising about that service users behavioural issues towards her. In that email he referenced the view of another more senior manager on this point. The communications around that change were poor and there was a breach of contract but that the change stemmed from her having made a complaint of sexual harassment, particularly when another employee had also made such a complaint, is not supported by the evidence and the circumstances surrounding the service user

In summary the complaint of sexual harassment was submitted to the WRC outside of the initial period of six months and no reasonable cause for the delay was provided which excuses that delay.

In considering the other elements of the complaint which were submitted within the required time limit for those aspects, that there was sexual harassment of the Complainant through unwanted is not accepted and neither is it accepted that she was victimised by DM for exercising a right to end unwanted behaviour of a sexual nature. The key word at all times being unwanted.

The complaints of victimisation by the Respondent directly for her making a complaint of sexual harassment are not supported by the evidence.

The respondent has no case to answer of vicarious liability under the Employment Equality Act resulting from the behaviour of DM between May and October 2019 or thereafter until his employment ended.

CA-00036618

The complaints made by the Complainant against the Respondent under the Employment Equality Act are not well founded.

Sexual Harassment; Time Limits; Victimisation; Vicarious Liability