Complainant

Respondent

Anonymised Parties

An Administrator

A Golf Club

Representatives

Matthew Jolley BL                                  Bowler Geraghty and Co. Solicitors

Eamon Marry BL instructed by  O'Brien Lynam 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-00038337-001

23/06/2020

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

CA-00038337-003

23/06/2020

The Complainant commenced employment on the 1 September 2016 as an administrator.  Her weekly gross salary was €666.92. 

Her complaints were in relation to harassment, sexual harassment and penalisation in her workplace. She claimed she was exposed to consistent unwelcome comments, jokes, gestures and contact of the sexual and private nature by the general manager that caused her offence and humiliation.

She was still in employment on the dates of the hearing but was on certified sick leave since January 2020.

In June 2020 she filed her WRC complaint and in October 2020 issued High Court personal injury proceedings. 

The Complainant described her working relationship with the general manager. He engaged with her several times throughout her working day.  He worked in a separate office to her and her co-worker Witness AR. 

From December 2016, the Complainant became subjected to a campaign of repeated, regular and ongoing harassment and invasion of her personal privacy. Under cross examination the Complainant described same as being "more or less daily". This involved inappropriate comments of a significantly and overtly sexual nature.

She described how from January 2017; the general manager was in her office most of every day. She became increasingly uncomfortable and embarrassed with his behaviour and repeatedly made efforts to clarify with the General Manager that his comments, questions, conduct and behaviour was inappropriate and unwelcome.

This conduct included questions as to her marital status (divorced), reason for her personal circumstances, questions about her children, unnecessary questioning about her private and personal life and intimate relationships.

She gave evidence as to how his behaviour was not upsetting initially, but she began becoming very uncomfortable and it became upsetting to her to be asked these questions.  She began recording the instances in the calendar of her phone for her records.

The Complainant gave direct sworn evidence that the General manager visited her home uninvited, commented on the presence or otherwise of motor vehicles and persons at home (February 2017), made regular unwelcome comments on her clothing, physical appearance, her hair and offered unwelcome descriptions of his own private life, marital status and intimate behaviour, all of which was unwelcome to the Complainant.  The General manager asked if she was dating and on dating apps. He asked as to the logistics on if she "got lucky and scored" on a night out, how would it work out with her children at home.

The Complainant told the General manager "to mind his own business".

I was provided with several WhatsApp texts extracted from the investigators report (referred to below). These were provided to the investigator by the General manager. They were from a WhatsApp group that comprised the General manager, the Complainant and Witness AR and also WhatsApp messages sent between the Complainant and the General manager directly.

There were several videos of sexual content sent on WhatsApp, one was in relation to an anal search and another referred to sex for a bar of chocolate.

The Complainant submitted that this behaviour was sexual harassment and in breach of the Policy on harassment and bullying set out in the internal staff Handbook.  The Complainant accepted that she received a contract of employment and staff handbook but maintained that she had not received any training on the policies or procedures contained in the Handbook.

The Complainant reported this behaviour to the Respondent in accordance with its policy on harassment and despite such complaints having been made, the Respondent took no appropriate or adequate steps to address or remedy same.  She raised her complaint with the General manager himself, the bar manager, her co-workers in the office and the head greenkeeper.  She accepted that she did not raise a complaint with the President of the golf club. She did not consider him "ideal" to make a complaint to as he was very friendly with the General manager and played golf and had lunch with him. 

Witness PB, the bar manager agreed that he would raise her complaints with the General manager and that the general manager needed to "back off". The bar manager did say to her she could bring her complaints to the Council of the Respondent. However, she did not feel that was a place she could go to. Her evidence was that there was no hierarchy other than the General manager. She described him as the highest point of contact.  Under cross examination the Complainant accepted that she said to the bar manager in the context of making a complaint "I don't think it will make any difference".

The Respondents Bullying and harassment policy referred to making a complaint to the Management committee. The Complainant gave evidence that she hadn't heard of that committee. She said she asked the bar manager who there were, and he said to make her complaints to the President.

Later the General manager said to her "wasn't it great that the bar manager was looking after her".

The Complainant submitted that the Respondent failed to have in place and properly or meaningfully apply appropriate and adequate policies and procedures in respect of the harassment and sexual harassment she endured. Her case was that as the conduct was that of her direct line manager / the General manager of the Respondent, the circumstances were even more invidious as there was no avenue apparent to her to bring either forward a confidential, informal or formal complaint.

The Complainant received her permanent contract in May 2017 and described the process to obtain same as very uncomfortable and unprofessional. Under cross examination, the Complainant accepted that she did not formally raise with the General manager at the time of her probation review the issues she had with his comments and behaviour towards her. The Complainant explained that while the location of the workplace was good for her, the job was "okay”, and she needed to work, so she tolerated his behaviour.

The Complainant described how the behaviour of the General manager got worse from that point on. 

She gave examples of when she felt disgusted when the General manager described to her how he was “well endowed”, about a golf trips to Marbella and South Africa, comments about female members of the club, comments about her co-worker AR and her relationship with her husband.  The general manager would describe himself as “horny” and ask her to set him up with a female friend and refer to wanting to show them a "good time". 

The Complainant explained how she would feel panicky if her co-workers were away on holidays and she was on her own with the General manager in the office. She described how his behaviour was a lot worse on those occasions.

She gave evidence that her way of dealing with the harassment was to ignore him, go to the bathroom/ generally spend as little time in his presence as possible.

Because of the General manager’s behaviour, the Complainant suffered from increased anxiety, distress, upset and a loss of mental equanimity and enjoyment of day-to-day living.  The Complainant gave evidence that the General manager’s conduct impacted on her physically. She suffered from headaches chest palpitations, chest pain anxiety stress. She thought she had heart problems. The Complainant was prescribed antidepressants and was still taking them at the time of the hearings. 

She provided me with a letter from her GP dated 21 February 2020. It referred to the Complainant attending with her GP for symptoms of chest pain, anxiety and palpitations in April 2019 which was attributed to "a situation in work." She was again reviewed by her GP in September 2019 complaining of "stress related to her work". She was seen in October 2019 and referred to a hospital for a review of chest pain and palpitations. She was again reviewed by her GP in December 2019 for similar symptoms of anxiety and low mood. The medical report referred to the Complainant relating these symptoms because of her stressful situation at work and referred to a manager which set out "was harassing her at work and called to her house unannounced on 1 May 2019". 

The Complainant became aware that an anonymous letter was sent to the Respondent on the 26 November 2019 alleging in summary that the “two girls in the office” were subject to sexual harassment. The Complainant saw a heavily redacted version of this anonymous letter at a meeting she was called to on the 26 November 2019 but had not been furnished with a copy of same by the Respondent.

Despite the receipt by the Respondent of the anonymous letter, the Complainant was required to continue working with the General manager.  She gave evidence that his comments of a sexual connotation continued. In the presence of the caretaker, the General manager said that the Complainant "liked hard things" and referred to "having hard things in her mouth".

The caretaker commented to her later that he could not believe that the General manager said that to her.

With reference to the upcoming Christmas party in 2019, the General Manager said to her would she go home alone or "go off with one of the greenkeepers". The Complainant took this as being a reference to sleeping with them.

In the presence of another greenkeeper, while the Complainant was using a laminating machine, the general manager said, "isn't it great to have [the Complainant] on her knees".

He would ask had she had sex, was she sleeping with anyone and pressed her "you have to tell me these things".

On the 20 December 2019, the Complainant submitted a formal letter of complaint to the Respondent.  Around the same time her co-worker Witness AR filed a separate complaint.

On the 6 January 2020, the Respondent engaged an external HR firm to investigate her complaints. The Complainant met with the investigator on the 15 January 2020 and 18 February 2020. As the Complainant's co-worker Witness AR had also made a complaint into the behaviour of the General manager, her complaints were investigated at the same time. However, it later transpired that the two complaints were very much kept separate and divided.

The Complainant reported 23 incidents of harassment (including sexual harassment) by the General manager. These dated from October 2016 to November/December 2019. At least 10 of the 23 instances had a sexual connotation.

The investigation report issued on the 13 March 2020. If comprised 80 pages made up of an explanation of the scope of the investigation, summary of the evidence of all 23 complaints from the viewpoint of the Complainant's evidence, the General Manager’s evidence, the investigators analysis and conclusion and the consideration of the complaints in their totality. The report comprised several appendices which included notes of the meetings with the Complainant, General manager, bar manager and a review of the WhatsApp messages and a copy of the Policies.

Of the 23 complaints, 20 were not upheld and 3 were upheld.  One of the complaints that was upheld related to the hard-boiled eggs complaint and another related to the General manager's experience of prostitutes in Marbella.  These were described as inappropriate behaviour, but not harassment or sexual harassment.

The Complainant had substantial issues in relation to the investigation process and the investigator's findings.  She described as finding the investigation report as "baffling.

It was only after the report issued that the Complainant discovered that both of her co-workers in the office and the greenkeeper were not specifically interviewed as witnesses to her complaints.

The Complainant explained that her co-worker Witness AR went on maternity leave in October 2018 and was replaced by another administrator Witness RW. RW worked in the office between October 2018 and August 2019. Despite that length of time working alongside her and the General manager, the investigator did not interview RW.

On 30 March 2020 the Complainant appealed the findings of the report in full and a subcommittee was appointed to deal with same.

On 28 April 2020, an appeal officer was appointed to hear the Complainant's appeal. The Complainant never met the appeals officer.  On 11 May 2020 the appeal officer contacted the Complainant with a proposal as to how to resolve her complaints. He gave the Complainant two options namely

(a) return to work, outlining the working conditions that she required and receive an apology from the General manager or

(b) seek a settlement described as a redundancy of approximately eight weeks pay and receive a reference.

The Complainant felt that the appeal officer was very brash was not engaged in the appeal process. She thought he would have been more sympathetic.  The Complainant submitted that this proposal amounted to penalisation.

In June 2020 the appeal officer issued his final appeal report.  The Complainant's appeal was not upheld. Ultimately no steps were taken against the General manager.  The Complainant was requested to return to work with the General manager.

On 23 June 2020, the Complainant filed her WRC complaint.

Under cross examination the Complainant agreed that she had sent a WhatsApp message with content of a sexual nature to the General manager.  She also accepted that she responded with four laughing emoji to a video with sexual content sent to her by the General manager. At that hearing she described it as an error on her part. She accepted that there was nothing in the WhatsApp messages that indicated she had any issue with the General manager's behaviour. She also accepted that she was known to state her mind clearly and that she "didn't hold back".

The Complainant also accepted that she didn't recall if she had told the investigator regarding several the incidents given to me during the hearing such as the incident where she was laminating in the presence of the greenkeeper and the reference to "in her mouth" when describing the hard-boiled eggs incident.

Witness AR

The Complainant's co-worker AR gave sworn evidence to me.

She described how she shared an office with the Complainant and how they had different roles. She explained how she was on maternity leave for 10 months and was replaced by another administrator Witness RW. She described how she had not received any training on the relevant HR policies or refreshers.

She explained how the Management committee of the Respondent changed every year and how they current President was very "pally" with the General manager.

She described the General manager has being immature and childish if he didn't get his own way.

She corroborated the Complainant's evidence about how the General manager enquired about her marital status. She described him as "badgering" about it. She described how he made enquiries about the Complainant going on holidays, how he told her that the lights were on in the Complainant’s house and she had "gone off with a man".

She described how she felt uncomfortable about the comments made by the General manager to the Complainant and she felt uncomfortable for the Complainant. She said that they did speak to each other about his comments.

She was present when the General manager asked the Complainant if she did online dating and that she needed to tell him she was seeing someone, as he needed to vet them. She described the office as not a normal working environment. She felt the General manager was stalking the Complainant. She described the working environment as "toxic".

She said she was present when the General manager suggested that if her husband did DIY work for the Complainant, the Complainant should open the door in a lace negligée. The manager referred to her husband "passing a test" and that the Complainant would be doing her a favour. The witness said she felt disgusted with this and that both she and the Complainant told the General manager that his suggestion was disgusting.

She confirmed that the General manager was constantly asking the Complainant about her friends and if they were single/good-looking. These comments referred to sex. The witness confirmed that the Complainant did say to the General manager "stop asking about them".

She recalled how she used to say all the time to the manager that his comments were inappropriate, but “he thought they were funny”.  After a while she concluded that there was no point in saying that they were inappropriate.

She was taken through some of the specific complaints of the Complainant (Incidents 5 – 13) referred to the investigator and corroborated same. 

She described that when she came back from maternity leave, the behaviour of the General manager was still ongoing and she felt it was worse than when she left on leave.

She gave evidence that the investigator did not ask her about a number of specific incidences the Complainant had reported and that her meetings with the investigator were in relation to her own complaints about the General manager's behaviour.

Under cross examination, when asked why she didn't escalate her complaints to a formal complaint pre-November 2019, the witness said she needed her job and the security of working close to home.  She was worried that she and the Complainant would not be believed as the President was “very close” to the General manager.  She described it as a male dominated workplace and the organisational structure as “a hierarchy of power “.

She said that after the anonymous letter had been sent to the Respondent, both she and the Complainant acquired the courage to make their complaints.  She said that both she and the Complainant tolerated an intolerable situation for three years for a quiet life. 

Witness RW

This witness gave evidence that she commenced working for the Respondent at the end of October 2018 and her employment ended August 2019.

She was not interviewed by the investigator in relation to the Complainant's grievance.

She described how she did observe the General manager's behaviour as described and the inappropriate comments he made to the Complainant and about the Complainant.

She gave evidence as to how he spent a lot of time in their office and described it as "unnecessary".

She explained that in her view the General manager constantly quizzed the Complainant about her personal life, her private and romantic life. She described the enquiries as being of a sexual nature.

She found the work environment to be "strange" and thought the behaviour of the General manager was bizarre. She herself was uncomfortable about his behaviour and it was clear that the Complainant was uncomfortable. She said she “felt awful” for the Complainant.

She gave evidence that the General manager made constant jokes all the time and she became fed up with it. She was only in the workplace for 10 months and didn't know they staff well.

She described the person she understood was the reporting person, as the person who was acting inappropriately (i.e., the General manager).

The Respondent's case was that at no time between December 2016 and November 2019 had the Complainant notified or complained to the Respondent that she was the victim of the alleged conduct by the General manager.

When the Respondent was made aware in November 2019 of the complaints, it acted decisively and expeditiously by appointing an independent and experienced expert who conducted a thorough investigation into the complaints.

The Respondent described how it was not until 26 November 2019 following receipt of an anonymous letter from a third party (who was a member of the Respondents Golf club) concerning the General manager's conduct, that the Respondent first became aware of the alleged misconduct of the General manager.

The Respondent immediately nominated two Council members to meet with the Complainant. The Complainant disclosed for the first time that she had an issue with the General manager’s behaviour and subsequently made a formal written complaint to the Respondent in December 2019.

The Respondent submitted that the investigation that took place fully complied with fair procedures and concluded with a detailed and comprehensive report which reached findings which were objectively sustainable and in compliance with the law.

The Respondent relied on the findings contained in the investigators report.  In its written submission, the Respondent described the content of the report as flawless and stated it could not be criticised as it correctly stated the duties resting on each of the participants as well as the correct interpretation of the relevant law and the correct application of the law to the particular facts of the case.

The Respondent further submitted that the Complainant did not actually discharge the burden resting on her regarding her complaints. It relied upon the number of legal authorities in this regard.

The Respondent argued that there was a duty on the Complainant to notify the Respondent and to invoke the Grievance Procedures which were available to her at which she had an openness to invoke.

Witness PB

The bar manager gave evidence that he started working for the Respondent in 2008.

He confirmed that he did receive his contract of employment but didn't remember receiving a staff handbook. He had received training on manual lifting, first-aid and use of the defibrillator.

He had no recollection of receiving any training in relation to sexual harassment.

He saw the Complainant and the General manager interact most days. He described them as being “like a married couple”. He described how the atmosphere in the office could be “chatty.  But other days you could cut it with a knife”.

He confirmed that the Complainant did speak to him about the General manager's behaviour. She said that she was confused about reporting complaints. The Complainant gave out to him about the General manager. He suggested that he would have had a chat with him. The complainant said “no”.

The witness said he didn't know what was meant by sexual harassment.  He said that if he thought there was something serious and amiss, he would have done something about it himself. 

I noted that he was careful about his use of the word banter. 

He said he did recall the Complainant asking for help and giving out every second day about the General manager. She told him that the General manager was "saying things to her". He felt it was nothing of seriousness that would cause him to speak up.

He described that he did have a chat with the General manager, but he did so “as a friend”. He did not consider that he was part of a grievance process. He told the General manager to stay out of “the office”.

Under cross examination he confirmed that he had sent a text to the Complainant confirming that he had spoken to the General manager. This was in May 2017. His text was "I would say he would not sleep too well".

He described the General manager as being "too friendly".

Witness RS

The General Manager gave sworn evidence. He explained how he ran the day-to-day business of the Respondent and reported to the Council.

He confirmed that he interviewed the Complainant with the previous administrator. At her probationary assessment, he advised the Complainant that she was personable, but needed more attention to detail and to be more diligent. He kept a note of the meeting. At the hearing he went through the meeting note and pointed out that the Complainant had never raised any issues with him at that meeting or at any prior meeting.

He described his relationship with the Complainant as amicable and they had sent each other 400 WhatsApp messages.  He denied all the allegations against him.

He went through some of the WhatsApp messages and pointed out that the Complainant helped to arrange his wife's 50th birthday.  The Complainant borrowed a power washer from him and returned it. Her daughter minded his family cat.  Nothing in their interaction led him to believe that the relationship was uncomfortable for the Complainant.

He submitted that when he posted the Customs video, the Complainant's response was 4 laughingly emoji. He explained that generally laughing emoji were her response to his posts.

He submitted that they never had any conversations about her complaints.

He explained the background to the two visits to the Complainant's home. He described their working relationship as good and amicable. He had no serious disagreements with the Complainant. He described her as having a strong personality, outgoing and personable.

He gave evidence that the Complainant never asked him to stop his interaction with her or indicated that his conduct was unacceptable to her. He described her character as strong and that she would be able to stand up for herself.

The General manager confirmed that the Complainant had a friendly working relationship with the bar manager. He explained that the bar manager was not part of the management structure.  He recalled the bar manager saying, "the girls are dangerous".  He went on to explain he did recall having a brief conversation with the bar manager in May 2017 but that it was informal and nothing of a serious nature.

He described the Complainant as having a lot of stress in her life, which was not caused by him. He was aware of this because she had openly discussed her private life with him.

When questioned on the bullying and harassment policy, the General Manager confirmed that he possibly should have refreshed the Respondents policies regularly. This did not happen.

The investigator had one meeting with him on the 31 January 2020. He did agree with several the complaints, but they were not comments of a sexualised nature. They were never raised as being offensive with him.

He rejected what was said about his wife, he never referred to horny females or commented on women's asses.  He explained that the Complainant constantly talked about her friends.

He agreed that they did have a conversation about dating app but that it was a two-way conversation and that he was not told to stop.

If he was requested to stop, he would have done so.

Witness KT

The investigator gave evidence as to her background and confirmed that she stood over the report she issued on the 13 March 2020. Three complaints were upheld.

She explained that she was investigating two separate complaints at the time. She cross-referenced the evidence between the two complaints when there was an overlap. She did this to maintain the integrity of the separate investigations.  There was very little overlap between the incidents complained of by the two complaining employees. Hence there was only two references to Witness AR in the report she issued re the Complainant.

She explained that she didn’t share witness statements with other witnesses. She did share relevant documents.  Two separate reports issued to the Respondent together with the composite report. In total three reports were produced.

She confirmed she never met witness RW or the caretaker or staff in the green keeping department. She said she did not consider they would have relevant evidence. 

She said there was no reference to sexual innuendo in Incident 18 (the incident with the eggs) when she was carrying out the investigation. That was only introduced at the hearing of this complaint by me.

She explained that the other witnesses were not suggested to her as witnesses at the time. 

She explained how there was a debate that there should be a higher standard of proof in sexual harassment cases. She referred to this in her report. She could not quote the source of this belief.

Regarding the involvement of the bar manager, she said the Complainant had raised an informal grievance with him in 2016. The word “complaint” was not raised at that time.

She identified as the discussion with the bar manager as "peers sounding off". She explained there was a very big difference between this and a formal complaint. She noted that the facts recorded by her on this point were of “an informal grievance”.

She explained that there was evidence produced to me that was not said to her.

She described how she was not looking for gross misconduct in her investigation. She was very conscious of the McKelvey -v- CIE decision.

The issues for decision by me are whether the Complainant was harassed, sexually harassed, and victimised contrary to the terms of the Employment Equality Act 1998 as amended.

This complaint was submitted to the Workplace Relations Commission on the 23 June 2020. The cognisable period is 22 December 2019 to 23 June 2020.  Based on the evidence, I consider the alleged acts to be a sufficiently connected series of acts that constitute a continuum per section 77(5) of the Act (see Hurley v County Cork VEC (EDA 1124)). They involve the complainant and the alleged perpetrator and mainly take place in the confines of a workplace.

The legal framework

Section 14A of the Employment Equality Act addresses sexual harassment and harassment on the discriminatory grounds:

“(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, 

…

(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.

(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 under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

(a) in a case where subsection (1)(a) applies (whether or not subsection (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 where subsection (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. 

…

(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, 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. 

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

In respect of an employer’s vicarious liability, section 15 provides:

“(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval. 

…

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee— 

(a) from doing that act, or 

(b) from doing in the course of his or her employment acts of that description.” 

The Code of Practice on Sexual Harassment and Harassment at Work (S.I. 208/2012) was the applicable code at the time of the alleged acts and it sets out steps for employers to prevent and address harassment in the workplace and between colleagues.  It also confirms that intention of the perpetrator of sexual harassment or harassment is irrelevant. It confirms that the effect of the behaviour on the employee is what is relevant.  The Code of Practice provides a non-exhaustive list of forms of behaviour which can constitute sexual harassment, even if there is only one single incident.  This Code of Practice has since being replaced by a new code of practice in 2022.

Section 74

“victimisation” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a Complainant,

(c) an employee having represented or otherwise supported a Complainant,

(d) the work of an employee having been compared with that of another employee

for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under

this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs

Assessment of the evidence

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides:

"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 him or her, it is for the Respondent to prove the contrary."

CA-00038337-001

The Complainant claimed both harassment and sexual harassment.  As sexual harassment is the more serious of the complaints (harassment and sexual harassment), I have focused on this in my decision.  That is not to say that I was not presented with evidence of harassment or consider same in my final award. 

Section 14A(7)(a)(ii) clearly sets out in relation to sexual harassment that the conduct itself must be “of a sexual nature” and must be unwanted verbal, non-verbal or physical conduct of this nature.

Despite the findings of the investigators report, the direct evidence presented to me at the hearings (which I note did include additional evidence not presented to the investigator) in relation to the Complainant’s complaints no 6, 8, 9, 10, 12, 17, 18 were of a sexual nature.  As a result, they fall within the definition of sexual harassment under section 14A of the Acts.

In assessing the evidence, I found the corroborating evidence of the Complainant's witnesses to be compelling. Their evidence was consistent and with the added evidence of the bar manager, I found the Complainants case to be more credible to that of the Respondent. 

Taking the evidence, I am satisfied that the Complainant was the recipient of offensive comments by the General Manager (e.g., Incidents 3, 6,8, 18 20, 21) and she found the comments offensive and unwelcome.    

Witness PB’s description of the work environment as sometimes very tense on certain days (“some days you could cut it with a knife”) was indicative that all was not well in the office.  The evidence of Witness RW was chilling.  While background information only, the evidence presented to me of the anonymous letter indicated that other members of the club were aware of hostile environment in the office. 

I accept the evidence that the anonymous letter gave the Complainant and Witness AR courage to bring the formal complaints that they did.  I also accept that the Complainant had earlier asked the General Manager to stop and made complaints to her colleagues and the bar manager.

Based on the foregoing, I am satisfied that the Complainant has established a prima facie case of sexual harassment contrary to section 14A of the Employment Equality Acts.

I must now consider whether the Respondent has rebutted the prima facie case raised. Section 14A (2) of the Employment Equality Acts, 1998, provides a statutory defence for an employer in claims of sexual harassment. This requires the Respondent to show that that it has a policy to prevent sexual harassment in the workplace. The Respondent claims that they had policies in place and carried out a thorough investigation of the complaints when made to them.

There is no definition of what steps are “reasonably practicable” for an employer, but guidance is forthcoming from the case law and the Code of Practice.

The Respondents bullying and harassment policy sets out

“if  you think that you are being harassed/bullied at work you should seek advice from any of the following contact people.

Manager

General Manager

Member of the management committee

A colleague”

I was not convinced that there was a readily identifiable management committee in the Respondents organisation.  Witness PB (who is a manager) confirmed that he did not know who the management committee were, but he did know who the Council was. 

On hearing the oral evidence over the three days, it was clear to me that none of the Respondent’s employees who appeared as witnesses in the hearing were familiar with the bullying and harassment policy. This applied to both the Complainant, Witness AR, Witness RW, the General Manager and Witness PB the bar manager.  Videos and WhatsApp messages of a totally inappropriate kind were being exchanged between the staff. This included a WhatsApp message sent by the Complainant herself. 

None of the people to whom the Complainant raised the behaviour of the General Manager were sufficiently trained to recognise the behaviour as falling under the bullying and harassment policy and aware of the next steps that needed to be undertaken. 

I was particularly struck that the bar manager afraid to use the word “banter” in his evidence. This signified to me that his knowledge of what was acceptable and not acceptable banter had been updated since the Complainant had brought her case.

I accept that the Staff Handbook was given to the employees with their contract, but the Respondent did not provide any explanation or training on the various policies. This is not acceptable on the part of the Respondent. Unfortunately, it is a common occurrence. As a rule, employers need to make provision in their annual budgets for ongoing HR training and review, like fire safety review.

The Complainant's legal team had numerous issues with the investigation that was carried out and the findings in the report.  I can recognise that the investigator had a difficult job.  She was tasked with carrying out two separate investigations.  She was presented with directly contradictory evidence by the Complainant and General Manager in the main.

I accept the criticisms of the investigation. While the investigator gave a lot of time to investigating the complaints of the Complainant and Witness AR, I find that she was overly cautious and structured in her methodology. I find that it was a defect that she did not widen the number of witnesses she interviewed.  The investigation report set out

"Potential witnesses were considered. Having given careful consideration to the possibility of obtaining corroboration of the relevant evidence, the investigator considered it appropriate to interview one witness (emphasis added) who was met by the investigator".

In the context of 23 complaints over a period of 3 years, interviewing one additional witness was overly restrictive.  Especially after that witness gave evidence which corroborated parts of the Complainants evidence.  By restricting the pool of witnesses, the investigator was to a certain extent pre-empting the outcome of her report.  For example, Incident 17 refers to the caretaker as a witness of what was said regarding Witness RW and her partners sexual history.  He was not interviewed by the investigator. The same applies to Incident 18, though I do accept that additional evidence of that incident was presented to me at the hearings.  Regarding incident 6, at the hearings, the Complainant and witness AR gave evidence that they found the General Managers comments about the Complainant wearing a negligee (and having sex with her co-worker’s husband) disgusting.   The only reference in the investigation report to Witness AR is that "she did not recall the Complainant having a light fitting delivered". The evidence presented to me by Witness AR was that when she was interviewed by the investigator, she was doing so in relation to her complaints against the General Manager's behaviour and not as a witness for the Complainant. 

I also find that the investigator gave too little weight to the complainant’s account. In relation to incident 8, both the Complainant and Witness AR gave evidence that the General Manager did enquire if the Complainant knew some "horny females". Witness AR does not appear to have been asked about this comment. She gave evidence that she "presumed" all staff would be interviewed as regards this Complaint. The findings of the report found that the General Manager did say "maybe you could set me up with one of them" in the context of talking about other people. The investigation found there was nothing objectively inappropriate about the conversation that was actively engaged in by both parties and/or if that perception was created.

In Incident 21, the General Manager accepted making a certain statement about his trip to Marbella in the context of his naivety, but he did not know the women were hookers.  The investigator found this to be inappropriate behaviour.  She did not find this to be sexual harassment.

The burden of proof on the person alleging harassment and sexual harassment is to establish, on the balance of probabilities, that same did in fact take place.  The investigators report noted same however it went on to state that where the complaints were "of a sexual nature, the burden of proof applied is the balance of possibilities but to a higher degree of probability".  This is not correct.  The investigator could not cite her source of that belief. It may have emanated from the legislation pre-2004. The previous definitions of harassment of the 1998 Act were mostly objective, a reasonable person test.  Section 14A is a more subjective test without any limitations of perceived reasonableness.  The net result is that conduct which is viewed by the recipient as unwanted and as having the effect of violating her dignity can be deemed to be harassment regardless of the intention of the perpetrator.

I find the appeal process to also be defective.  I can understand where the appeals officer may have been coming from, but his rudimentary effort at reaching a settlement between the parties was not what is considered best practice.  He did not attend the hearings, so I can only surmise on the evidence presented to me.  It may well have been his intention to make a “without prejudice” offer to the Complainant, but he went beyond his role of acting as an appeals officer in his interactions with her on 11 May 2020.

Based on the clear lack of knowledge by all the witnesses as to the workings of the bullying and harassment policy and what is sexual harassment, I find that the Respondent has not established a ‘reasonable practicable’ defence of preventing or addressing the discrimination and cannot avail of the statutory defence under section 14A (2) of the EEA.  I also find that there were serious defects in the investigation and appeal process. 

Redress:

Based on that finding, I must now determine redress that is “effective, proportionate and dissuasive.”  

The Employment Equality Act requires employers to adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment.  This did not occur in this case. 

The Respondent made several submissions on the failure of the Complainant to report her complaints to them pre-receipt of the anonymous letter.  I reject that submission and find that she did bring a complaint within the terms of the bullying and harassment policy but that nobody knew what to do about it. 

I do find to the Respondent’s credit, that it reacted quickly on receipt of the anonymous letter. I understand that the various committees are made up of volunteers and they rotate on an annual basis. Like any other voluntary committee, the members generally leave the running of the organisation to the staff hired for the various roles.  That however does not lessen their obligations to the Respondents employees. 

The Respondent placed much emphasis on the Complainant contributing to or participating in the engagement with the General Manager, including sending a sexually explicit WhatsApp message.  It has long been held by the Equality Tribunal and the WRC that such behaviour will not deprive the Complainant of an entitlement to claim that he/she has been sexually harassed. The weight to be attached to the evidence of such participation impacts on the level of award made rather than a refusal to make a finding of harassment. See A Female Employee v A Recruitment Company DEC-E-2008-15.

Taking all the above into account, I assess that the Complainant is entitled to redress of €25,000. I have not reduced the Complainants award.  The Complainant did complain about the General manager’s behaviour and as Witness AR said, “they put up with it for a quiet life”.

On an overall basis I find that the comments she had to endure were on the mid-scale of such behaviour and totally unacceptable in the modern workplace. 

CA-00038337-003

Victimisation

The Complainant claims that she was victimised in the proposal made by the appeals officer on the 11 May 2020 for making her complaints.

The Respondent set out that the Complainant was not victimised and suffered no detriment / adverse treatment. 

The Labour Court in the case of Department of Defence v Barrett EDA 1017 stated in relation to victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

I accept that the complaint of alleged harassment and sexual harassment raised by the Complainant constituted a complaint on a protected ground under the Act. 

I am required to ascertain that the Complainant was subjected to adverse treatment.

From the evidence before me, the Complainant is still in employment.  She has not been dismissed.  She is not in the workplace because she is on certified sick leave.

It appeared to me the actions of the appeals officer were intended to “settle” the Complainant’s complaint and give her an option 

She did not take up the options.  They were not imposed on her without her consent.  Therefore, I find that it cannot be held that she suffered adverse treatment and she was not victimised pursuant to section 74(2) of the EE Act.

CA-00038337-001

This complaint is well founded.

I find that the complainant has established a prima facie case of discrimination in the form of harassment and the respondent has not rebutted the inference of discrimination. I order the respondent pay to the complainant €25,000 in compensation for the breach of the Employment Equality Acts. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

CA-00038337-003

This complaint is not well founded

Sexual harassment.  Harassment policy.