EDA2213

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00019185 CA-00025051-001

BACKGROUND:

2.The Worker appealed the Decisions of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 2 June 2022. The following is the Court's Determination:




DETERMINATION:

Background to the Appeal

This is an appeal by Ms Lynn Brien (‘the Complainant’) from three decisions of an Adjudication Officer (ADJ-00019185, dated 7 February 2020; ADJ-00022596, dated 23 March 2020; ADJ-00020991, dated 23 March 2020) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal from ADJ-00019185 was received by the Court on 24 February 2020 and from ADJ-00022596 and from ADJ-00020991 on 27 March 2020.

The Court heard the appeals together in Dublin on 2 June 2022 in one sitting. During the course of the hearing, the Court heard the sworn evidence of the Complainant and of Ms Sarah Buckley, HR Manager with The Agricultural Trust (‘the Respondent’).

The Factual Background

The Complainant commenced employment with the Respondent as an Accounts Executive in September 2016. She worked 37.5 hours per week and was paid a gross monthly salary of €2,916.66. She was part of a five-member team and reported to the Toplink Sales Manager.

Mr PK was also a member of the team. The Complainant submits that a number of incidents occurred in the workplace that led to a deterioration of her working relationship with PK and that she was the subject of sexual harassment by PK and that this ultimately led to her resignation from her employment on 10th December 2018.

The Claims

The Complainant alleges that she has been discriminated against on the grounds of gender and sexual orientation and has been subject to sexual harassment in the course of her employment. She submits that the Respondent failed to carry out a proper enquiry into her complaint of sexual harassment and also failed to put appropriate measures in place to mitigate against the effects of that harassment.

She further alleges that she was victimised in the period between making her complaint of sexual harassment and resigning her employment. She maintains that her resignation should be regarded as constructive discriminatory dismissal.

Finally, she submits that the discriminatory treatment and sexual harassment continued after her resignation in so far as the colleague who had sexually harassed her continued to try and contact her via various social media platforms and the Respondent chose to turn a blind eye to issues of concern to her ventilated to it in correspondence from her solicitors.

The Complainant’s Evidence

The Complainant told the Court about two incidents that occurred in the workplace which she says led to a deterioration in her working relationship with PK. The first was a meeting to discuss the circulation of the Respondent’s publication in Scotland. PK and another colleague, Mr F, were present at this meeting along with the Complainant. According to the Complainant, PK behaved in a passive aggressive manner toward Mr F at the meeting. Mr F complained about this to his manager who conducted an investigation in the course of which the Complainant was interviewed.

She confirmed that PK had indeed conducted himself in a passive aggressive manner at the meeting. The second incident occurred when both PK and the Complainant were working late one evening in the office. The Complainant told the Court that PK told her on that occasion that his mission was to ‘turn her straight’.

In the period after the above events, the Complainant said that PK ignored her at coffee time and refused to answer her questions at meetings. They had a ‘civil working relationship’ only. She noticed, for example, that PK frequently left his desk at lunchtime when she was having her lunch at her desk even though he was fully aware that one person (out of a group of three) was required to be available to answer the phone at all times.

She emailed her manager about this matter. The Complainant said that she felt PK’s behaviour was a form of retaliation because she had given evidence that supported Mr F’s complaint against PK.

The Respondent’s summer party took place on 26 July 2018. This was organised on behalf of the Respondent by two members of staff. It took the form of a pre-theatre meal followed by attendance at a play. Some of the attendees went to a bar afterwards and one of the group suggested that they go on to a nightclub. The Complainant was part of the group that did so as was PK.

At one stage she was on the dance floor with some female colleagues and PK began dancing very close to her and began to push his body against hers without her consent. This caused her to have a panic attack she said so she went to the bathroom. While there she met a colleague who arranged with security to have back door opened so that the Complainant could leave and take a taxi home.

The Complainant said she attended work the following day. There was only a small number of staff present and she didn’t feel comfortable working in proximity to PK.

She had spoken about the previous night’s events with her parents, her fiancée and friends who advised her to report the matter to HR. She met both her line manager and the HR Manager about what had happened.

Her line manager, HS, carried out an investigation. However, the Complainant told the Court she was unhappy with the investigation as HS spoke only to three witnesses although the Complainant had identified a number of other colleagues who had been present and whom she believed had witnessed PK’s conduct. She also complains that she was not given notes of HS’s meeting with PK.

She was advised that PK had been suspended for the duration of the investigation. Following the investigation, she says she was advised that PK’s suspension had ended but that he would be working from home and she would not have direct contact with him. PK was also disciplined following the investigation. He received a written warning.

She initially took this to be a permanent arrangement and says she was never advised that it was intended by temporary in nature only. On 1 October 2018, the Complainant learned at a meeting with Ms Buckley and with her line manager that PK was to return to the office the following day as all ‘company processes’ relating to the summer party incident had been completed.

She says this caused her anxiety, upset and confusion as both her desk and PK’s were situated fairly close together. She was advised by Ms Buckley that she (Ms Buckley) and HS had met with PK ‘to clarify company expectations regarding professional behaviour towards [the Complainant] going forward’ and that PK had agreed to following these. The Complainant was advised that she would be expected to commit to similar protocols.

The Complainant requested to be allowed to move to a different desk. She noted that SB was on maternity leave and her desk was unoccupied. She was advised that her request would be considered but that Ms Buckley and HS would have to consult with other colleagues before taking a decision but that they would do so and inform her of the outcome before the end of the day.

PK attended for work on 2 October as planned. The Complainant was present in the office for a short time but began to feel anxious and uncomfortable. As she felt unsafe, she says, working in close proximity to PK, she left the office after about thirty minutes and did not return.

She was out on certified sick leave. She was referred to the Respondent’s occupational health advisors on 1 November 2018 and invited to attend a meeting with HR on 6 November 2018. She declined to attend. At this stage she sought legal advice from Sherwin O’Riordan Solicitors, she says, and she wanted all future communications to be directed through that firm. The Complainant resigned her employment on 10 December 2018. She told the Court that she was living in a rented apartment at the time and her savings were dwindling. As a result she had no option, she said, but to resign her employment with the Respondent and seek alternative employment.

She told the Court that she continued to receive unwanted approaches from PK after her employment had ended. He reached out to her on various social media, including LinkedIn and Instagram.

Under cross-examination, the Complainant confirmed that she was aware to the Respondent’s Dignity at Work and Equal Opportunities policies. She also confirmed that an investigation had been carried out into her complaints arising from the events that took place on 26 July 2018 in line with the Respondent’s policies and that findings had been made against PK and PK had been sanctioned.

It was put to her – notwithstanding the complaints she had raised in the within proceedings about the alleged shortcomings in the investigation – that the correspondence in November 2018 from Sherwin O’Riordan to the Respondent made no mention of these alleged shortcomings. It was also put to her that she had not engaged directly with the Respondent at all in relation to her resignation and had not responded to its request to reconsider her decision in this regard.

She was asked again about this by the Court. In reply, she confirmed that she had not reverted to the Respondent when asked to reconsider her resignation. She said that she had already suffered a lot of anxiety and depression at that stage and she couldn’t see what the Respondent was going to be able to do to make her feel safe. She also confirmed that while the Respondent had funded the meal, theatre and some drinks on the evening on the summer party, the Respondent had not funded entry to the night club. Finally, and also in response to questions from the Court, the Complainant confirmed that the Respondent’s Employee Assistance Programme had been made available to her at all times and she had availed herself of it.

Evidence of Ms Sarah Buckley

The witness is the HR Manager with the Respondent. She gave evidence in relation to the Respondent’s induction programme for new joiners during the course of which, she says, all company policies are discussed and the new employees are thereafter sent a link to the policies on the Respondent’s intranet.

She was then asked about the summer party of 26 July 2018. She confirmed that a couple of staff members had been designated to organise it. The party consisted of a meal, attendance at a play and concluded with drinks in a named venue. In the witness’s view, anything that took place afterwards was not part of the event organised by the Respondent for its staff.

The witness told the Court that the Complainant’s complaint about PK’s conduct towards her on 26 July 2018 was received on 30 July 2018. The Complaint met firstly with her line manager and then with the witness.

The complaint against PK was investigated formally under the Respondent’s Dignity at Work policy. She said it was a joint investigation by both the line manager and the witness. The complaint was copied to PK who was given an opportunity to respond to it. The investigators also met with the Complainant. At this meeting, they asked the Complainant what witnesses should be interviewed. The witness’s evidence is that she named three witnesses only at this point. The investigators prepared a report with findings and proposed next steps. This was passed to both the Complainant and PK for comment.

The witness told the Court that PK was suspended on 31 July 2018 and he remained suspended for the duration of the investigation. A disciplinary meeting was held in September 2018 and resulted in a formal written warning being issued to PK. PK, she said, raised a counter-allegation against the Complainant. This necessitated a separate investigation for the course of which PK continued to work off-site.

This counter-allegation was not upheld. Once both processes were concluded, it was the witness’s clear understanding that normal working arrangements were to resume with PK returning to the office. The witness said she took time to consider what safety measures needed to be put in place in advance of this happening. She said she met PK and set out the Respondent’s expectations of him going forward and explained that the safety measures in place would include supervision of the working arrangements that applied both to him and to the Complainant. She said she also advised that she intended to check in with each of them regularly.

When the witness had a corresponding conversation with the Complainant, the Complainant expressed very strong concerns that PK was returning to the office. She told the witness that she hadn’t been expecting that.

The witness said she was surprised at the Complainant’s reaction as the Respondent had committed to keeping both the Complainant and PK apart temporarily and only for the duration of the investigations. The witness told the Court that the Complainant requested to move desk. The witness agreed to consider the request and told the Complainant to take the remainder of the day on 1 October 2018 off to rest.

The witness said she telephoned the Complainant later that day to confirm that she could move to SB’s desk and advised that she move her things the following morning before PK was due to arrive.

According to the witness, SB attended for work the following morning – 2 October 2018 – and moved to SB’s desk. However, the Complainant emailed her line manager at lunchtime to inform her that she was going home.

The line manager tried to meet with her before she left. The Complainant submitted medical certificates effective from 3 October 2018. The Respondent referred her to occupational health and tried to get her to meet with the HR Manager and the Head of Sales but the Complainant declined to attend. She communicated only via her solicitors after that. She resigned by letter dated 10 December 2018. The Respondent tried to engage with her directly to get her to reconsider but she didn’t revert.

Submission on behalf of the Complainant

Counsel for the Complainant submits that ‘the crux’ of the within case relates to how the Respondent handled the Complainant’s allegations of sexual harassment. Section 14A of the Act, he submits, mandates an employer, to whom an allegation of this nature has been referred, to conduct a ‘proper enquiry’ and to take appropriate steps to prevent any recurrence of the behaviour complained of.

In Counsel’s submission, the Respondent’s investigation was deficient in a number of respects: it is unclear who was the decision-maker; not all potential witnesses were interviewed and the Complainant was not provided with notes of the Respondent’s interview with PK. He also submits that only those elements of the Complainant’s allegations against PK that were deemed adequately corroborated by the Respondent were upheld. This, he says, is unsatisfactory in circumstances where the Respondent chose not to interview all the work colleagues who were present when PK misconducted himself vis-a-vis the Complainant. According to Counsel, there were no meaningful supports put in place for the Complainant after the event and the sanction imposed on PK was too lenient. Although the Complainant made various suggestions as to what arrangements would work for her (such as working from home or working in a separate work area away from PK) none of these were given serious consideration and even the relocation of the Complainant’s desk could not be guaranteed to be permanent.

Mr Flood, representative for the Respondent, submitted that once the nightclub stage of the evening out began, events were no longer under the control of the Respondent. Nevertheless, the Respondent took a conservative approach to dealing with the allegations raised by the Complainant and did over and above what was required of it by the legislation.

In his submission, the Respondent took reasonably practical steps to prevent sexual harassment occurring – it has a Dignity at Work and Equal Opportunities policy in place and the Complainant (along with her colleagues) had been given this during their induction.

The Respondent carried out a thorough investigation into the Complainant’s allegations against PK which culminated in a disciplinary sanction being imposed on him. Once the investigation and disciplinary stages had been completed, the Respondent engaged with both parties regarding PK’s return to the workplace. The Respondent’s subsequent attempts,

in Mr Flood’s submission, to engage with the Complainant were frustrated by her absence on certified sick leave and by her decision to communicate with the Respondent only via her solicitors. It also Mr Flood’s submission that the Complainant’s claim of constructive dismissal has not been established and her decision to resign her employment without first having utilised the grievance procedure in her contract of employment was unreasonable.

Furthermore, Mr Flood submits that the Complainant did not suffer any adverse treatment as a consequence of making her complaint of sexual harassment against PK. On the contrary, the Respondent tried to accommodate whatever concerns she had in the context of PK’s return to the workplace.

Discussion and Decision

It is clear from the facts recited above that the key issue to be considered in the context of this appeal – as submitted by Counsel – is the manner in which the Complainant’s allegation of sexual harassment at the hands of PK was dealt with by the Respondent and whether or not the Respondent can avail itself of the defences provided for in section 14A of the Act.

Section 14A of the Act provides both a definition of what constitutes harassment on the nine protected grounds – including gender – and provides a defence for an employer in certain circumstances. The fact that the Complainant was the target of harassment on the gender ground is admitted in this case by the Respondent. The Respondent, however, seeks to avail itself of the defence set out in section 14A(2) which provides:

“(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.”

Clearly there are two limbs to the defence set out in section 14A(2), both of which must be satisfied by a respondent who seeks to avail itself of that defence. In the first instance, a respondent must demonstrate that it took “such steps as are reasonably practicable …. to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim”.

A respondent may be able to demonstrate that it has fulfilled the requirements of paragraph (a) where it has a comprehensive anti-harassment policy (including an appropriate investigation procedure) in place, has provided appropriate training to staff and, in particular, has trained managers in relation to accepting and investigating complaints of alleged harassment.

Paragraph (b) requires a respondent to demonstrate that it has taken “reasonably practicable steps … to prevent the victim from being treated differently in the workplace … and, if and so far as any such treatment has occurred, to reverse its effects.”

This paragraph is understood to comprehend initiatives such as the provision of counselling to an employee who has experienced harassment on any of the nine grounds, a referral of the employee to an Employee Assistance Programme and the provision of refresher training on diversity and equality to all employees and managers, as appropriate. It is abundantly clear to the Court that the Respondent herein had a comprehensive Dignity at Work policy in place in respect of which all employees, including the Complainant and PK, received training in during their induction.

It is also clear to the Court that the Respondent carried out a comprehensive investigation of the allegations of sexual harassment raised by the Complainant against PK with the result that some, but not all, elements of those allegations were upheld.

The Complainant objects to the Respondent’s decision to interview only three witnesses and speculates that perhaps other elements of her allegations may have been corroborated had additional witnesses been interviewed. Ms Buckley’s sworn evidence was that the Complainant told her that those were the witnesses she wished to have interviewed as part of the investigation.

This evidence was not contested. Also, it is common case that the Complainant was offered access to, and availed herself of, the Respondents Employee Assistance Programme following the events of 26 July 2018.

Finally, Ms Buckley’s evidence demonstrated that the Respondent was very much alive to the likely impact on the Complainant of PK’s return to working in a shared office space. The Complainant was facilitated with a change of desk that removed her from the immediate vicinity of PK and she was advised of the commitments he had given to act in a professional manner towards her and of the ongoing supervision and monitoring that was to be put in place going forward.

Having regard to all of the foregoing, the Court finds that the Respondent herein is entitled to rely on the defences provided in section 14A. The Complainant’s appeal in relation to the Adjudication Officer’s findings regarding her claim of sexual harassment does not succeed.

Section 74(2) of the Act defines victimisation as follows:

“(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.”

There is no evidence before the Court to support the Complainant’s allegation that she suffered adverse treatment as a consequence of having raised her complaint of sexual harassment against PK. This aspect of the appeal is, therefore, deemed to be not well-founded and fails.

The Complainant submits that her resignation in December 2018 constitutes constructive discriminatory dismissal within the meaning of the Act.

However, in evidence and in response to a direct question from the Court she said the reason for her resignation was that her savings were becoming depleted as she was living in rented accommodation and was no longer in receipt of sick pay.

She, therefore, she said decided to resign in order to seek employment elsewhere. The Complainant’s evidence, on any interpretation, does not support the claim she is seeking to advance. Furthermore, Ms Buckley’s uncontested evidence was that the Respondent sought to engage with the Complainant following her resignation with a view to getting her to reconsider her position but that she chose not to engage in return.

Finally, the Complainant seeks to hold the Respondent responsible for PK’s attempts to engage with her via a number of social media platforms several months after she had resigned her employment.

There is no evidence before the Court that PK made those attempts in the course of his employment. Nor was there any other evidence before the Court from which established a link between the Respondent and PK’s activities from which any liability on the part of the Respondent might be established. For the aforementioned reasons, the Court also determines that this claim is not well-founded.

For the avoidance of doubt, the Court finds that none of the appeals before it – ADE/20/32; ADE/20/40 and ADE/20/41 – succeeds.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CO'R	______________________
12 July 2022	Deputy Chairman