Complainant

Respondent

Parties

Kathleen  Ryan

Socrates Workforce Solutions Ltd

Representatives

Lars Asumessen, BL instructed by Sean Ormonde & Co. Solicitors

Sinéad Finnerty,  Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00046417-001

27/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00046417-002

27/09/2021

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

CA-00046417-003

27/09/2021

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

CA-00048553-001

09/02/2022

The complainant was employed as a Technical Instructor with the respondent from 07/12/2019 until she resigned on 20/02/2022.  She resigned due to the loss of trust and confidence she had in the respondent to provide her with a safe place of work.  Her safety concerns arose from an incident of sexual harassment and concerns about how the respondent investigated this.  A second incident some months later reinforced these concerns.  The respondent believes that they took steps which were reasonably practicable to prevent sexual harassment and that it took appropriate action to investigate and deal with the incidents.

The complaint was paid €1,015 per week gross and worked a 16-hour week.  Her complaint was submitted to the Workplace Relations Commission on 27/09/2021.

The complainant was employed as a Technical Instructor with the respondent.  Her working week ranged from 2-3 days per week and 5 days during the summer period.  Her role involved the delivery of QQI Level 6 modules and developing support materials for those modules as well as supporting students on those courses.  The complainant gave evidence that this was her “dream job” and she derived considerable job satisfaction from this role.

On 27/04/2021 a male colleague (Mr A) entered the classroom while she was in a teaching session with ten students.  This man was not invited into the room, and he was not scheduled to work that day. He refused to leave when requested to do so by the complainant and this resulted in this man (Mr A) leering at her and following her in the room.  He eventually sat behind her at the back row of the classroom.  He refused to leave the room when requested to do so on several occasions. The complainant gave evidence that during this time she felt intimidated, undermined, and felt most uncomfortable in the classroom.  The complainant was assisting students with practical work and as she was bending over a piece of work a student was working on Mr A approached her from behind and as he moved by, put his hands on her hips, gripped her tightly and made a thrusting movement with his genitals against her.  The complainant gave evidence that she looked at his hands because of his tight grip on her and she observed his white knuckles.  She gave evidence that she saw some of his fingers stretched and clenched.  The complainant gave evidence that Mr A made very intimate contact with her from behind and he did so without her consent and in the presence of adult students. The complainant outlined how she was shocked, upset, intimidated, and embarrassed because of this unwanted encounter with Mr A.

The complainant thought that she would endeavour to sort this matter out with Mr A and she sent him a test message on 29/04/2021.  On the same day during a conversation with her manger, Mr Maher, she mentioned that she was unhappy with Mr A, and it was her intention to raise issues of concern with him.  When Mr A entered the classroom Mr Maher left.  The complainant let Mr A know how upset she found the incident on 27/04/2021.  Mr A said that he thought that might be the problem, but he did not offer any apology to the complainant.  He continued with a different conversation and the complainant felt fobbed off. 

The following day, after speaking and confiding with a friend, the complainant called her Manager, Mr Maher, and followed this up with a written account of what had happened.  She also asked Mr Maher to provide her with a copy of the CCTV from the classroom.

The complainant received word on 10/05/2021 that an investigation would be undertaken by Mr James Kearney who is a director with the respondent.  She had an interview with Mr Kearney on 11/05/2021.  About a week later she viewed the CCTV in the presence of her manager and the investigator.  There were 10 students present at the time of the incident but only 5 were asked to provide witness statements by the investigator.

The investigator decided that the investigation should now become a formal investigation and she was invited to another meeting. She provided a more detailed statement.  At a final meeting with her on 28/05/2021 she was presented with a copy of the terms of reference for the investigation, a copy of the respondent’s harassment policy.  She was then given a copy of Mr A’s statement in response to her complaint.   She made some initial comments about this statement and followed this up with an e-mail response a few days later.

A preliminary report was issued to the complainant on 09/06/2021 and she was given 5 working days to respond to its contents.  She sent the investigator an e-mail on 13/06/2021 requesting clarity in relation to the conclusions and asked why he omitted Mr A’s statement stating that he intended to sue the complainant for reporting the incident.

The investigator did not provide a response to this e-mail but sent a final investigation report to her on 14/06/2021.  This report was sent before the 5-day period had ended.  The same day the complainant sent her detailed response to the investigation report and raised issues in relation to the evidence and the health and safety of women and a request in relation to the respondent’s plan for her safe return to work.

The complainant went on certified sick leave on 15/06/2021.  The complainant sent a query to the respondent on 24/06/2021 asking why the investigation process was not properly followed.   The respondent replied that the investigation was finished.   The complainant attended a meeting with Mr Maher seeking to obtain clarification in relation to the contradictory and confusing conclusions in the investigation report.

A second “final” investigation report was then issued on 07/07/2021. This version of the report contained the complainant’s response to the initial report and the response from Mr A.  It was submitted on behalf of the complainant that the report also contained copies of e-mails from Mr A which were described as “abusive and vitriolic in nature”.  However, none of the complainant’s e-mails were included in the report.

The complainant responded to this report and objected to the ongoing abuse from Mr A contained in his written statement which was included in the report, and she again highlighted the omissions and repeated her concerns about her safety.  She received a reply (14/07/21) that the final report was complete, and that the respondent had implemented its disciplinary procedure.  The respondent did not elaborate further on this. The respondent also confirmed that they had organised Dignity and Respect training for all employees.

The complainant contacted the respondent on 17/08/2021 and requested that the issues she raised about Mr A’s sexual harassment and unprofessional misconduct are addressed so that she can return to work.  The complainant received a reply stating that the respondent considered the matter closed and there was no right of appeal outlined.  The complainant was asked to elaborate on what her concerns were in relation to returning to work.   The complainant gave evidence that Mr A’s behaviour was a major concern, and she was afraid because he had done this in a public setting, and she felt that he was more dangerous now as Mr A understood that the investigation report had exonerated him.  She wanted the respondent to do something that would help her return to work.

The complainant attended the online Dignity and Respect training on 20/08/2021.  She noticed that a new tutor was on the training and this person was engaged to deliver her training modules.  There was no communication from the respondent after this training.

The complainant contacted one of the respondent’s directors, Mr Kearney, on 03/09/2021 and requested that they seek assistance from some of the colleges that they were delivering training for to assist them with this matter so that she could return to work.   She was advised to speak with her manager, Mr Maher.  Mr Maher did not want the other colleges involved as they were customers of the respondent.  Mr Maher outlined that the colleges were informed of the incident and that the complainant should trust him to manage this matter correctly.   Following this the complainant invoked the services of the WRC mediation service.

The complainant attended a meeting with Mr Maher on 30/08/2021.  This was described as a “Welfare Meeting” [Welfare Meeting No 1].  At this meeting the complainant informed her manger that Mr A had accessed her on her LinkedIn account. His profile picture displayed an image of him wearing a gas mask which she found strange.  The complainant also informed Mr Maher that Mr A had send her multiple strange WhatsApp texts on 18/08/2021.  Mr A also phoned her, but she did answer this call.  She manged to take screen shots to capture/copy these messages prior to Mr A deleting them.  In her evidence the complainant outlined that the effect of these text messages and attempt to call her had a devastating effect on her.  She had to inform her children not to answer the door and anytime her doorbell rung she was very concerned.  The complainant said that he felt that Mr A was manipulating her, and she could not understand why he would want to contact her. The complainant stated that this was a continuation of his harassment.  The complainant gave clear testimony that this was unwanted communication from Mr A.

She confirmed that she reported the matter to the Gardaí because of the tone of these texts and the previous threats he made during the investigation.  The complainant also gave evidence at the hearing that she received support from the Rape Crisis Centre at this time.  Mr Maher at this meeting on 30/08/2021 said that this was a matter for the Gardaí to investigate.  He outlined three options to the complainant in relation to her return to work. 

These were:

(1) Teach on what was referred to as the FIT LTI Programme. This involved the complainant having to travel some distance to this location. 

(2)  Teach on what is known as the M4CPD programme.  This involved evening and weekend working and

(3) Remain in her current location.  

None of these options were appropriate to the complainant.  Mr Maher confirmed to the complainant that they stood over their report on the incident.

The complainant attended another welfare meeting on 10/11/2021.  The complainant was asked if she had considered the options outlined at the previous meeting.  The complainant confirmed that none of these options were realistic.  She asked why Mr A was not being transferred instead of her.

Following this meeting the complainant was asked to provide copies of the text messages sent to her by Mr A which she did.   The complainant that she had no contact from the respondent from 10/11/2021 until she resigned on 20/01/2022.  In her cross examination she confirmed that the WRC mediation process took place during this time.

The complainant gave evidence that she was not asked to provide a statement in relation to the text messages she received and was she was not made aware or informed of any investigation by the respondent into this matter.  The complainant in her evidence said that she felt that she was penalised for making the complaint against Mr A and the respondent was unfair to her throughout the process.  She felt that there was no safe place for her to work and she had no confidence in the respondent in making her place of work safe.  She did not submit a grievance as she was informed by her manager that she had no right of appeal.  The complainant said that this entire matter had affected her personally and professionally.  There was no closure, and she was now worse off professionally.  There remained a considerable threat from Mr A.  She was shut out of the building and Mr A was allowed on-going access and received additional teaching hours.  She was disappointed in the way the respondent dealt with this matter.

During cross examination it was put to the complainant that the CCTV time showed that the duration of the incident of sexual harassment was very short – a matter of a second.  The complainant said that the duration was not relevant and that she could not put a time on it and that it “feels like forever”. The complainant confirmed that she accepted a lift home with Mr A on the day of the incident and she said that she took the lift as she did not have a car that day and Mr A lived near her.  She was initially afraid to report the matter unless there was a witness.  A student subsequently mentioned the incident to her. She sent the text message to Mr A as she thought she might be able to sort it out with him.  When she met Mr A, he knew she was upset but she lacked the courage and strength to take it any further with him.  She raised an informal grievance initially as she wanted to have this dealt with in a low-key manner, without stress and without causing upset. 

The complainant was asked what outcome she wanted.  The complainant said that she wanted the harassment to stop, she wanted to be sure it would not happen again, and she wanted Mr A to say he should not have done it and would not do it again.

The complainant was taken through the investigation process and e-mail exchanges which took place during the investigation process.  The complainant confirmed that she asked for evidence for the report’s conclusions and an explanation regarding the omission of her e-mails and response.  The complainant felt that the abusive response from Mr A was a cause for concern and she did not see any evidence that he was told this was inappropriate and she felt that this should not have been included in the report.

The complainant was asked to outline her concerns about the alternative work which was offered to her at the meeting with Mr Maher on 30/08/2021. The complainant explained that she was teaching at Level 6 with the respondent, and they offered her a level 4 teaching role.  This was not only two grades lower, but it was a further drive away from her home.  The other roles offered involved her teaching at evenings or weekends and neither suited her family arrangements

The complainant was asked when she took on an alternative role with Intel following her resignation.  She took up the post at the end of April 2022 and left in July 2022. The complainant confirmed that she had to leave that role as Mr A and the other three respondent’s representatives stated working on a teaching contract with that employer.

It was put to the complainant that the respondent followed the correct process, organised welfare meetings, provided dignity at work training and had offered alternatives to the complainant and in these circumstances what else could they have done.  The complainant said that she was happy to go back if Mr A was not there as she considered him a danger.

Following the cross examination, it was submitted on behalf of the complainant that she was treated differently because of her gender.  There is a wealth of evidence to support this proposition.  Mr A was not suspended, and he was given full time hours.  The complainant was kept out of the workplace and the respondent attempted to demote her.  The complainant was sexually harassed, and this was confirmed in the investigation report and the intimate action was seen on the CCTV. Despite this, the respondent has made no meaningful efforts to assist the complainant return to work.

The complainant was penalised for having taken an action as set out in Section 74 of the Employment Equality Acts.  The complainant believes that Mr A should have been suspended pending the investigation and disciplinary process.  The complainant was asked to take on less favourable roles and this was a further attempt to demote, embarrass and humiliate her and in effect remove her from the workplace.   As a result of this, the complainant has lost her job which is the ultimate form of penalisation.

Legal submissions were made on behalf of the complainant.  The Employment Equality Acts make discrimination unlawful on grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race or membership of the travelling community.  This case relates to the prohibited ground of gender and claims in respect of direct discrimination, harassment, sexual harassment, victimisation and discriminatory dismissal.

The Acts define harassment in Section 14A (7) as “unwanted conduct relating to and of the discriminatory grounds” and this must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

Sexual harassment is defined by Section 14A (7) as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature” and must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Such unwanted conduct in relation to harassment or sexual harassment may consist of: “acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other materials”.

The complainant maintains that the conduct she suffered at the hands of Mr A very clearly amounted to sexual harassment as this was unwanted conduct which related to her gender and that had the purpose or effect of violating her dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for her.  It was also submitted on behalf of the complainant that the Acts refer to the “purpose” of violating a person’s dignity etc and “effect” of doing so on the victim. In that context the purpose or intention of the perpetrator is largely irrelevant, particularly in circumstances where the conduct in question is viewed by the recipient as unwanted and as having the effect of violating their dignity.  The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (SI 208 of 2012) sets out that it is up to each employee to decide what behaviour is unwelcome and from whom such behaviour is unwelcome.  In this case the complainant maintains that the conduct complained of and outlined in her evidence amounted to both sexual harassment and harassment.  Taking into account the provisions of the Act and the endorsements of the Courts and tribunals, it is irrelevant that the harasser did not intend to harass the victim or that the harasser believed their behaviour was only banter or done in a joking manner.

The Acts clearly set out that the conduct complained of must be of a sexual nature to amount to sexual harassment.  It was submitted on behalf of the complainant that the Labour Court in A Worker v A Hotel [2010} ELR 72, held that any form of offensive, humiliating or intimidating conduct on the ground of the victim’s gender amounts to sexual harassment within the meaning of the Acts.  The Code of Practice lists a non-exhaustive list of behaviours that can constitute sexual harassment including: physical conduct of a sexual nature such as touching, patting or pinching, verbal conduct of a sexual nature such as unwelcome sexual advances, propositions or pressure for sexual activity or suggestive remarks, non-verbal conduct of a sexual nature such as the display of pornographic or sexually suggestive pictures or leering, whistling, or gender-based conduct such as conduct that denigrates or ridicules or is intimidatory or physically abusive of an employee because of her sex such as derogatory or degrading abuse or insults which are gender-related.

In relation to verbal harassment, it was submitted that the case of Odion v Techniform (Waterford) Ltd DEC-E2007-018 was relevant.  In that case, the employee made a formal complaint of harassment that he had been subject to negative remarks regarding his nationality and colour.  The respondent conducted an investigation and found that no harassment had occurred.  The Equality Tribunal found that the complainant had in fact been subjected to harassment regarding his race and found that the respondent’s procedure was flawed, and the outcome was erroneous and inadequate.  In this instant case, the complainant was subject to sexual harassment.  The complainant also notes the respondent’s lack of response to such a serious matter, the way she was treated and not being permitted to enter the building on three occasions for work related matters and meetings because Mr A was present in the building.

The complainant’s representative also noted that in terms of vicarious liability, Section 15 of the Act renders an employer liable for acts of employees done in the course of employment, whether the acts are done with the employer’s knowledge or consent or not.  In this case the complainant was providing a class on the premises of the respondent and Mr A’s discriminatory treatment, harassment and sexual harassment occurred in that premises.  It was submitted that for the purposes of the Act the complainant maintains that the matters complained of can be treated as having been done by the respondent.

In relation to the burden of proof the complainant will have to prove that the conduct complained of did in fact occur.  Once this is established it is for the Adjudicator or Labour Court to determine whether subjectively, such conduct amounted to harassment or sexual harassment.  The Adjudicator or Labour Court must then consider whether the employer was vicariously responsible for the harassment and whether the employer took reasonable steps to prevent the harassment.   It is the complainant’s position that the respondent showed no interest in protecting her as an employee and a decision was made to push her out and offer her inferior roles while Mr A’s position was maintained.  The complainant maintains that the conduct of Mr A subjectively and objectively comes within the definition of sexual harassment for the purpose of the Acts.  The Respondent is liable for this conduct.

The complainant was entitled to fair procedures and natural justice during the course of the investigation.   Such an investigation should reach a reasonable and adequate outcome that provides recommendations to address the harassment and sexual harassment if found to have occurred and provide a strategy to prevent the same from reoccurring.  This did not happen in this case.

In relation to the relief sought it was submitted that in the case of Citybank v Ntoko EED0454 it was held that an award for the effects of discrimination must be proportionate, effective and dissuasive.  It was submitted that, in accordance, with that principle, the Adjudicator should take into account the significant size and financial capabilities of the respondent as well as the particularly serious level of harassment and sexual harassment which occurred in the complainant’s employment with the respondent.

It was also submitted on behalf of the complainant that Section 28 of the 2005 Act gives and Adjudication Officer a jurisdiction in the event that the Adjudicator finds that the Respondent did penalise the complainant, to make a determination that the respondent “pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances”. 

It is the complainant’s submission that she suffered egregious penalisation at the hands of the respondent and that this should be taken into account in determining what amount is just and equitable in this case.

In his closing submission the complainant’s representative said that the definition of sexual harassment was clear.  The complainant had provided ample evidence that she was sexually harassed and had discharged the burden of proof.  The respondent has accepted that there was some evidence of sexual harassment and there was also ample evidence to show that there was thrusting by Mr A.

The complainant was subjected to further harassment as Mr A was allowed to use the investigation process to subject the complainant to threats and abuse.  Mr A also accessed her LinkedIn account while displaying a photograph of himself wearing a gas mask. This was unsettling for the complainant.  The text messages sent by Mr A to the complainant on 18/09/2021 occurred sometime after the investigation had concluded.  The phone call from Mr A to the complainant was also a source of concern and it must be borne in mind that all these too place in circumstances where Mr A was found to have sexually harassed the complainant.

The complainant’s representative also addressed the Section 14 defence and noted that once an act of sexual harassment has occurred the respondent must have: (1) a policy in place.  The respondent had such a policy; (2) a fair and reasonable investigation of the act complained of.  The respondent in this case did not do so and (3) a fair and reasonable outcome and that reasonable action would ensure that there would be no reoccurrence of the sexual harassment.  The respondent in this case failed to do so.

It was submitted on behalf of the complainant that the investigation into her complaint of sexual harassment was irretrievably flawed.  When the second complaint was received the respondent set up some sort of investigation but nothing in fact happened.  Mr A did not leave the respondent’s employment until January 2022 and the complaint was received by the respondent in November 2021.

The outcome of the first complaint was inconsistent with the evidence and the investigator decided to sever the sexual harassment complaint into two parts. The complainant made many repeated attempts to highlight the shortcomings in the investigation process but without success.

There was no remedial outcome by the respondent.  The complainant sought a reasonable outcome for the conclusions reached but was not provided with any.  Mr A received “a light punishment for a man they didn’t want to punish”.  Mr A wanted an apology from the complainant and as the conduct from Mr A continued it is clear that the reprimand failed.  There was also no reasonable outcome to the second complaint and in all these circumstances the respondent cannot avail of a Section 14 defence.

In relation to the victimisation complaint the complainant made internal complaints, and these are protected under the 2005 Act and therefore the complainant should not be adversely treated.  The respondent failed to separate Mr A from the complainant, she was not allowed attend the premises to get documents and these acts of punishment occurred in circumstances where the complainant should have been protected.

It was submitted on behalf of the complainant that the Mr O case [EED0410] is relevant in that a fundamental term of the contract is that an employee should have a safe place of work.  This is a breach of the contract test.  Likewise, the reasonableness test can be met as the respondent failed to investigate or remediate the sexual harassment and as a result the complainant had no trust and confidence in the respondent.

The respondent operates as a Technical Training and Workforce Development organisation with experts in Coaching and Skills Mentoring, Networking and Collaboration, Positive Psychology and Team Development.  The complainant was employed as a Technical Instructor from 07/12/2019 until she resigned on 20/01/2022.

The respondent raised a preliminary issue in relation to the three claims which the complainant brought under the Employment Equality, Safety Health and Welfare at Work Act and Unfair Dismissals Act 1977, and the Protected Disclosures Act 2014.  It was submitted on behalf of the respondent that the complainant is seeking to vex the same claims under multiple pieces of legislation, in beach of the well-established doctrine of res judicata.  The respondent refers to the well settled precedent set out in Henderson V Henderson (1842) 3 Hare 100.  The respondent also submits that the complainant is precluded from pursuing both claims by virtue of S.101 (4A) of the Employment Equality Acts and S.I. No 126/2016 – Employment Equality Act 1998 (Withdrawal of Certain Claims) (Relevant Date) Regulations 2016.

It was submitted on behalf of the complainant that she is not precluded from making the claims as set out and Section 28 of the Health Safety and Welfare at Work Act.  The complainant’s representative also submitted that the Labour Court Case EDA1723 is of relevance.  In essence the complainant is not prohibited form submitting the claims, but she cannot succeed in all the cases.  The second two complaints were pleaded in the alternative.

In relation to the substantive issue the respondent submits that the facts are that the complainant was employed as a technical instructor until her resignation by text message on 27/01/2022.  On 29/04/2021 the complainant informed her line manager, Mr Maher that an incident occurred between her and Mr A.  She mentioned that she was unhappy with Mr A’s behaviour and that he was rude and unhelpful.  The complainant submitted a written statement to Mr Maher on 04/05/2021.  In this statement the complainant identified that the behaviour of her colleague caused her discomfort and he refused to leave the room when she requested him to do so.  The complainant also outlined that Mr A had made intimate contact with her from behind.  The complainant got a lift home with Mr A on the day of the incident but did not address any of the issues with him.  The complainant then contacted Mr A by text stating that she was upset about a couple of things and that she wanted to meet and clear the air. 

On receipt of the complainant’s written complaint the respondent conducted a sexual harassment investigation.  This was undertaken by Mr James Kearney who is a director with the respondent company.  The respondent absolutely refutes that Mr Kearney had a pre-existing relationship with Mr A and any implication of bias are unacceptable and unfounded.  The complainant did not raise any issue in relation to Mr Kearney during the investigation.

A meeting with the complainant took place on 11/05/2021 and with Mr A on 12/05/2021.  At a meeting with her manager, Mr Maher, on 17/05/2021 the complainant identified student witnesses, and these were subsequently interviewed as part of the investigation.

Following the meetings with the complainant, Mr A and witnesses Mr Kearney decided that a formal investigation should be undertaken.  He informed the complainant of this on 20/05/2021 and invited her to a meeting.  The complainant had initially submitted an informal complaint and during the investigation into this the respondent decided to commence a formal investigation.  The terms of reference and Harassment policy were provided to the complainant.  She had access to the policy from 02/02/2021. There were three reports issued:

1.       Provisional report dated 09/06/2021 and this gave the complainant and Mr A an opportunity to comment within 5 working days.

2.       Final report issued on 14/06/2021.

3.       Final report issued on 07/07/2021 and contained (a) additional appendices, (b) the complainant’s amended statement (c) Mr A’s response to the investigation report and (d) the complainants to the investigation report of 14/06/2021.

The outcome of the investigation was that Mr A had a case to answer in relation to his unprofessional behaviour on 27/04/2021 and that Mr A also had a case to answer in relation to his inappropriate touching of the complainant.

The respondent submits that the disciplinary action it took because of this investigation is private and confidential.  The respondent complied with the provisions of their employee handbook.

In addition to the disciplinary action, the respondent provided Dignity at Work training for all staff, including the directors.  This took place in an on-line setting on 20/08/2021.  This training was a means of encouraging and supporting the right to dignity at work. 

The respondent refutes the suggestion that they did not follow up with the complainant after this session.  She was invited to a welfare meeting on 20/09/2021 but did not attend.  Her manager also had a telephone call with her which lasted for more than one hour. During this call they discussed the complainant’s suggestion in relation to involving customers of the respondent.  Other matters discussed included the utilization of mediators.

A welfare meeting took place with the complainant on 30/09/2021.  At this meeting the complainant reported that Mr A had viewed her LinkedIn profile and sent her text messages.  The complainant had reported this to the Gardaí and in that context, Mr Maher was unsure if the company could become involved if it was a matter for the Gardaí.  However, an internal investigation was subsequently launched.

The respondent’s wished to provide reasonable accommodations to the complainant as a means of facilitating her return to work and she was provided with a few options:

1.       QQI Level 4 Advanced Manufacturing in a named location teaching maths and electronics.  The complainant taught electronics and had always expressed a desire to teach maths.  The students on this course require a lot of mentoring and support and the complainant was ideally suited and skilled for this work.  The respondents would see the complainant as their top choice for this role.

2.       QQI level 6 in the same location and centre as she previously worked in.  This option would require some evening and weekend work.  The complainant delivered modules for this course to full time students.

3.       A third option was pending at that time, but the complainant was not willing to engage in a return to work.

It was submitted on behalf of the respondent that as the complainant had lodged a complaint with the Workplace Relations Commission on 27/09/2021, it was never her intention to engage with the welfare meeting or genuinely consider options to return to the workplace.  The respondents wished to accommodate the complainant and a welfare meeting was held on 10/11/2021.  The purpose of this meeting was to inquire into the health of the complainant and to provide reasonable accommodation that the complainant would be comfortable with a return to the workplace.  The respondent submits that they acted within the parameters of their Employee Handbook which states that the company:

“… is committed to providing a full and fair investigation which gives due sensitivity and respect to the rights of both the complainant and the alleged harasser.  This may involve a temporary transfer of the alleged harasser to another work area or suspension”.

The respondent refutes the proposition that there was any attempt to demote the complainant.  The alternative roles were a genuine attempt to at providing reasonable accommodation and this was the sole reason these roles were provided.

The complainant not only rejected these roles but also failed to provide any genuine alternatives or insight on what may be suitable other than the dismissal of Mr A.  The complainant’s position within the company remained until her resignation on 20/01/2021.

The respondents dispute all the allegations of penalisation.  The complainant provided sick certificates from 15 June to 31 December 2021.

A legal submission was made on behalf of the respondent.  The case of Melbury Developments v Arthur Velpetters (EDA09170 held that the probative burden of proof is as follows:

“Section 85A of the Acts provides for the allocation of probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All this is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculation or assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden on establishing the primary facts fairly and squarely on the Complainant and the language in this provision admits no exception to that evidential rule”.

It was submitted on behalf of the respondent that the complainant has not made a prima facia case of discrimination, nor has she made a prima facia case of penalisation.

The respondent had clear anti-harassment and dignity at work policies in place before the harassment occurred and this was signed for by all employees.  The complainant has not established facts based on credible evidence. 

The respondent also refers to the case of Limerick County Council v Mannering, EDA 1210 where the Court found that the respondent was permitted to rely on Section 14(a) (2) of the Act in the face of a single non-recurring act of racial harassment where an anti-harassment policy had been disseminated during training and implications for disciplinary action in the case of non-adherence up to and including dismissal. The respondent’s representative submits that the Court’s views are instructive:

“… the adequacy or otherwise of the investigation undertaken after the occurrence of the event complained of is irrelevant to the question of if the respondent had taken steps which could have prevented that event from occurring.  Rather, in cases such this, the focus should be on if the respondent had in place adequate policies and procedures intended to make all employees aware that harassment on any of the discriminatory grounds is unacceptable and will not be tolerated by the respondent”. 

It is the respondent’s submission that they took such steps as are reasonably practicable to prevent sexual harassment occurring in the workplace.

In relation to the claim of penalisation the respondent refutes these allegations.  The complainant was afforded fair procedures in line with the policies set down in the employee handbook.  The fact that Mr A was not suspended during the investigation and not disciplined in a manner acceptable to the complainant thereafter does not amount to penalisation.  It is the respondent’s position that the complainant does not have the authority to dictate to her employer what sanctions should be imposed. The respondent also submits that suspension or sanctions under sexual harassment allegations do not fall within the definition under Section 77 of the Employment Equality Act.  The fact that Mr A was not suspended does not give rise to penalisation.

The respondent meaningfully engaged with the complainant in welfare meetings as a means of establishing a way back to work for the complainant. The respondents are astounded that the complainant felt these were not a means to facilitate her return to work and meaningfully engagement with the intention of ensuring that she felt supported and safe in returning to gainful employment.   It is not correct to say that she lost her job.  Until the time of her resignation the complainant was still an employee of the respondent company and any suggestion that she had lost her job is disingenuous and completely fabricated.

In relation to the complaint under the Safety, Health and Welfare at Work Act the respondent relies on the case of Able Security Ltd and Hardjis Langsteins (DWT1319) which held that the complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded.  The complainant has failed to differentiate or provide any particularity in their submission.

The complainant has taken claims under the Employment Equality Act alleging that she was discriminated against on the grounds of Gender, Sexual harassment, Dismissal for discriminatory reasons and by the fact that she opposed discrimination.  The respondent denies all the allegations raised and submits that the law required the complainant to establish a prima facia case of discriminatory before the burden of proof shifts to the respondent.

Mr James Kearney gave evidence on behalf of the respondent.  He confirmed that he is a director of Socrates Workforce Solutions Ltd.  He is an associate lecturer.  Mr Kearney confirmed that he has no relationship with Mr A.  He did not hire him for any role, but he worked on the same programme as him.  Mr Kearney confirmed that his role was that of investigator.  The respondent is a small company, and he was the only one who did not have any dealings with Mr A or the complainant.  In relation to his prior experience, Mr Kearney outlined that he had 20 years people management experience and was previously involved in investigations.  He denied that the process was unfair and said that he tried to be always impartial and fair.  No one expressed any concern to him during the investigation.  Mr Kearney said that the process started out as informal but when he realised the extent of the complaint, he felt that it should be a formal investigation. At that point the decision was made as they had witness statements, the complainant’s statement, Mr A’s statement and had also viewed the CCTV. Mr Kearney said that the witnesses were identified jointly with the complainant.  She asked that Mr Kearney speak to some of the students, and he decided to interview 5.  In doing so he took advice from the HR company that was advising them.    Mr A was informed of the formal investigation by Mr Kearney.   Mr Kearney was asked if he reviewed the e-mail from the complainant dated 18/05/21 and he confirmed that he did, but he did not include it in the investigation report “as I put in what I thought was appropriate”.  Mr Kearney confirmed that the terms of reference were drafted for him by the HR company.  Mr Kearney also confirmed that the notes of meetings with the witnesses were a fair reflection and were complete.  In relation to the meeting on 28th May, Mr Kearney said that he was not sure if he could provide the statement from Mr A to the complainant.  He sought clarification and issued it to the complainant the following day.  Mr Kearney acknowledged that he got it wrong in issuing the report before the five-day period was up.  As this had occurred, he then decided that it was best to issue another report and include the correspondence he received form Mr A.  The only difference in the second report was that it contained Mr A’s comments.  Mr Kearney said that he did not include the e-mails from the complainant as he put in what he thought was relevant.  Mr Kearney confirmed that his conclusions were that the behaviour of Mr A was obnoxious and that he did touch the complainant.  Mr Kearney also confirmed that arising from this report disciplinary action was taken against Mr A.

Mr Kearney explained that he issued a further final report and he added appendices which contained e-mails form the complainant and Mr A.  He confirmed that he put in what he thought was relevant.  He included the response from Mr A as this was his response to the complaint.  Mr Kearney said that he did not respond to e-mails from the complainant as he had completed his report at that stage.

Mr Kearney gave evidence that he thought the investigation was fair and that their policy was robust.  He outlined that the complainant was not entitled to know what disciplinary action was taken against Mr A as this was confidential. 

Mr Kearney said that the directors had a different Dignity at Work training session from that given to other employees.  They had a more in-depth training.  Mr Kearney again confirmed that he did not have an external relationship with Mr A.

In cross examination, it was put to Mr Kearney that in accordance with their “Personal Harassment Policy and Procedure” there was a possibility of “a temporary transfer of the alleged harasser to another work area or suspension with contractual pay until the matter has been resolved” and he confirmed that was what the policy stated.  Mr Kearney also agreed that the written statement given by the complainant to her manager was a highly serious allegation.  Mr Kearney refuted the proposition that he had a friendship with Mr A or that he employed him in another organisation.

Mr Kearney was asked if he would agree that he was not an expert in sexual harassment and he agreed but clarified that he had taken advise from their HR company and he had investigated other cases.  Mr Kearney was asked why he did not give Mr A’s statement to the complainant, and he outlined that he was not sure about giving it but when he clarified the position, he give it to the complainant the following day.  He had regular contact with the HR company during this investigation.

Mr Kearney was asked if he have ever undertaken a sexual harassment investigation previously and he confirmed that he had not.  He also confirmed that he had no qualifications in HR or equality matters.  It was put to Mr Kearney that he was not sufficiently expert to undertake this investigation and he confirmed that he has 20 years of people management experience.  It was also put to Mr Kearney that because of the nature of his link with Mr A he could not have undertaken an objective investigation.  Mr Kearney disagreed and clarified that he works on the same programme as Mr A, but they do not work together.

Mr Kearney was asked if he was supportive of the complainant at their meeting on 11/05/2021. He said that he felt that he was sympathetic and outlined the process to be followed to the complainant.  Mr Kearney said that the complainant asked that all witnesses should be interviewed, and he interviewed the witnesses that he thought were appropriate.  He agreed that by not interviewing everyone in the classroom at the time of the incident he could potentially be excluding some witnesses.  Mr Kearney confirmed that he made the decision to change the investigation from informal to formal based on the CCTV and witness statements.

It was put to Mr Kearney that the policy clearly stated that the respondent had a responsibility to separate the alleged harasser and the complainant.  Mr Kearney said that he told Mr Maher to keep they separate.  It was also put to Mr Kearney that it was the complainant who was forced to move.  This also happened when she attended meetings – she had to attend those in another area of the building while the harasser remained in place.  Mr Kearney said that the complainant was only asked to attend meetings in another part of the building as this was a neutral area.   Mr Kearney was asked why they elected not to suspend Mr A.  Mr Kearney said that they followed their policy and procedures and having reviewed the CCTV there was “not enough for me to suspend and keeping them separate was enough and a prudent approach”.

Mr Kearney confirmed the meeting on 28/05/2021 was the first time the complainant was shown the terms of reference for the investigation.  He did not have any explanation why these were not issued at the beginning of the investigation, but he was aware that their policy was available on the portal.  Mr Kearney confirmed that he did not realise they should have been sent out at the beginning of the investigation.   Mr Kearney confirmed that he felt the terms of reference were sufficient to ensure that there were fair procedures and that there would be no victimisation of the complainant.  Mr Kearney confirmed that the complainant only got Mr A’s statement at the meeting on 28/05/2021 and she was asked to comment on it at that stage. Mr Kearney confirmed that these comments were included in the notes of the meeting.  It was put to Mr Kearney that the complainant at this meeting disagreed with the wording of “unprofessional behaviour or unhelpful” and that he did not change it.  Mr Kearney agreed that he did not change the wording. 

It was put to Mr Kearney that Mr A used the investigation process to make further threats to the complainant and these were recorded “word for word” and not edited.   Mr Kearney said that he decided to include exactly what Mr A had said.  Mr Kearney said that he could not recall that he was “editorialising” the complainant’s responses but not Mr A’s.  He put into the report what he thought was relevant.  It was put to Mr Kearney that the complainant sent him a significant response dated 30/05/2021 in relation to Mr A’s statement and none of this was included in any version of the report.  Mr Kearney confirmed that he did not include this document in the reports.

Mr Kearney was asked about his investigation report dated 09/06/2021 in which he outlined that there were two allegations against Mr A.  The first was in relation to unprofessional conduct and the second was a complaint of sexual harassment. It was put to Mr Kearney that he found no evidence of thrusting by Mr A.  Mr Kearney confirmed that that was correct.  Mr Kearney was then asked if he accepted the complainant’s evidence that there was thrusting by Mr A and he confirmed that he did and therefore may have worded his conclusions wrongly.  It was also put to Mr Kearney if he accepted that the CCTV showed Mr A's right hand on the complainant’s hip, and he confirmed that was correct.  Mr Kearney was asked if it was correct that there was no CCTV footage of Mr A’s left-hand side as there was no CCTV to capture that and Mr Kearney agreed that there was no camera on that side of the room.  It was then put to Mr Kearney that Mr A had admitted that he put both hands on the complainant’s hips and Mr Kearney agreed that he confirmed this.  It was also put to Mr Kearney that one witness said that she saw both of Mr A’s hands on the complainant’s hips and he confirmed that that was also correct. 

It was put to Mr Kearney that, in view of this evidence, his investigation findings were “irrational and unreasonable and not consistent with the evidence”.  Mr Kearney said that he would refute that proposition.  It was also put to Mr Kearney that the two findings are inconsistent with the earlier findings, i.e., sexual harassment but not thrusting and in that context, it was put to Mr Kearney that he “severed the allegation in two” by dealing with “touching” and “thrusting” as two separate matters.  Mr Kearney agreed with this suggestion by Mr Asumessen and said that was the reason behind his finding that the allegation was “partially upheld”.

It was also put to Mr Kearney that the first allegation against Mr A was not “unprofessional behaviour”. It was Mr A’s behaviour in the classroom when he silently stared and leered at the complainant thereby making her uncomfortable and his refusal to leave when requested to do so.  Mr Kearney said that based on the evidence his finding was that Mr A’s behaviour was unprofessional.   It was put to Mr Kearney that what was not investigated was the complaint of “leering and predatory behaviour” by Mr A.  Mr A was asked if he investigated this behaviour and made any finding in that regard, and he confirmed that it was not investigated.

Mr Kearney was asked if he would agree that he made a finding that one employee sexually harassed another employee in the presence of students, and he confirmed that was correct.  Mr Kearney was asked if he would consider this a very serious finding which should result in very serious action, and he agreed.

Mr Kearney was asked if he was obliged to respond to an e-mail from the complainant dated 13/06/2021 where she asked for clarification in relation to his finding that “there is no evidence that indicates that this took place”.  Mr Kearney said that he was, and he confirmed that when he reissued his report it contained the same conclusions and findings.   Mr Kearney also agreed that the report made no mention of how the findings would be acted upon.  Mr Kearney also agreed that the complainant’s e-mail of 14/06/2021 pointed out the inconsistencies in his report and that they did not make sense to her.

Mr Kearney confirmed that the complainant had submitted medical certificates from June to the date of resignation and that this leave was unpaid.  Mr Kearney said that his e-mail to the complainant dated 25/06/2021 was not intended to be dismissive but that his role as investigator was concluded and that the complainant should now discuss any concerns with her manager, Mr Maher.  Mr Kearney was asked how it would be possible for Mr Maher to clarify the findings and conclusions of the report and Mr Kearney said that he would have explained those to Mr Maher.

It was put to Mr Kearney that this matter was not sufficiently investigated.  The complainant in her e-mail of 23/06/2021 outlined that she was being treated unfairly and that Mr Kearney failed to address the issues she highlighted with the investigation.  Mr A’s five-and-a-half-page statement was included in the report and the complainant’s responses were not.  Mr A did not take any responsibility for what happened, and he should have apologised.  Mr Kearney agreed that the complainant’s responses should have been included and he also agreed that Mr A denied everything and felt that Mr A should have apologised to the complainant. 

Mr Kearney confirmed that Mr A was given a written warning because of the outcome of this investigation.  This warning was issued by Mr Comiskey.  Mr Kearney said that a written warning was issued based on the investigation conclusions.  It was suggested to Mr A that he should apologise to the complainant.  Mr Kearney confirmed that he, on behalf of the respondent, did not apologise to the complainant.

Mr Kearney confirmed that he received an e-mail from the complainant on 11/07/2021 and copied to the other two directors.  In this e-mail the complainant again sought clarification in relation to why her e-mails were not included while Mr A’s were.  The complainant also said that she felt that Mr A had shown no remorse and that he used the investigation as a platform to threaten and abuse her.

Mr Kearney also confirmed that the complainant contacted him on 17/08/2021 by e-mail stating that she felt that here health and safety concerns still needed to be addressed.

It was put to Mr Kearney that the respondent in this case failed to protect the complainant, failed to promote a safe place of work, and failed to properly investigate her complaint.  In that context the respondent has broken a fundamental component of the contract of employment which clearly confirms that the complainant was constructively dismissed.  Mr Kearney said that he disagreed with the proposition.

During re-direction Mr Kearney was asked to confirm what the “H. Appendix 4” of this investigation report was and he said that he was a statement from Mr A (dated 22/05/21).  Mr Kearney also confirmed that the complainant at no stage in the investigation process raised any concerns to state that she felt the investigation was unfair.

Mr Tom Maher then gave evidence on behalf of the respondent.  He confirmed that he is also a director of the respondent.  He confirmed that Mr A worked with him in Socrates Workforce Solutions Ltd and he also knew him from a previous employment.  He does not have a friendship with Mr A on a personal level.  Mr Maher said that he became aware of the complainant’s issues on 29th April 2021.  He outlined that the complainant made him aware that she had issues with Mr A in the classroom.  She said that she needed to discuss those with Mr A.  The sequence of events was that the complainant told him about her concerns on 29 April and she rang him a day or so later to give him a more detailed account of what had occurred.  She did not want him (Mr Maher) to say anything to the other two directors or to Mr A.  She wanted him to know that it was a serious allegation.  Mr Maher told the complainant that she could contact him at any stage.  The complainant asked him to keep the CCTV of the incident and he contacted IT to arrange this.  Mr Maher said that the complainant contacted him because he was her line manager.  Mr Maher gave evidence that there would be no need for Mr A to be in the complainant’s classroom.    Mr Maher waited for the complainant to get back to him.  She did contact him to say she wanted the matter investigated and he spoke to Mr Kearney. The complainant also told him that she was worried about the class and what was going on.  He spoke to the class and told them that the matter was under investigation.  Mr Maher explained that the IT people had to come on site to recover the CCTV footage and he told the complainant that he got it and that a copy was given to Mr Kearney.  Mr Maher said that his role during the investigation was that of “Confidential Helper”.  He was also present as a note taker.   Mr Maher confirmed that the complainant copied him on all her correspondence with Mr Kearney.  In relation to the meeting, he had with the complainant on 28/06/2021, Mr Maher said that the complainant contacted him after the final report was issued as she was confused about the conclusions in the report.  He had hoped that this meeting would clarify matters for her and help her return to work.  He took notes during the meeting.  Mr Maher said that he was not able to provide a copy of the CCTV to the complainant as it needed to be redacted.  Mr Maher was asked to review copies of text messages he and the complainant exchanged on 28/06/2021.  These messages included the complainant telling him that some students were contacting her, and she did not want Mr Maher to speak with them as she did not what them to think she was complaining about them.  He was trying to arrange a meeting with the complainant, and she took issue with the meeting being held in another part of the building.  Mr Maher explained that this was done to ensure that she did not meet Mr A.  The meeting was subsequently held in the part of the building the complainant worked in.  The complainant wanted to ensure that inaccuracies were corrected and her concerns about Mr A’s response to the incident.

Mr Maher confirmed that he was responsible for doing the roster for the tutors.  Mr A was contracted for 16 hours.  Tutors are assigned for specific course modules.  Mr A usually worked 2-3 days per week, but he could have 5 days if he was rostered to take two classes.

Mr Maher confirmed that a specific tutor was not employed to take the complainant’s classes. This person was engaged to take other classes and was not a replacement for the complainant.  Mr Maher is responsible for hiring tutors.  Mr Maher clarified that to teach a level four course a tutor would need to have completed a “Train the Trainer” course and have a base degree in a level higher than the grade. 

Mr Maher also clarified that the role of Confidential Helper was to support an employee during an investigation process.  This role ended when the investigation process was complete. Mr Maher gave evidence that there were three Dignity at Work training sessions organised by an external HR company.  There were two on-line sessions for employees and an in-person session for the three directors.  Mr Kearney logged into the on-line session to welcome participants.    Attendance at these sessions was mandatory for employees.

Mr Maher confirmed that the notes he took at the meeting on 28/06/2021 were accurate.

Mr Maher was asked about the alternative roles he offered to the complainant.  He explained that they are a contracting company, and they can change schedules.  The was role offered to the complainant on the LTI Programme because she had always said that she wanted to teach maths.  There was no difference in remuneration.  The other were options offered because they consisted of a four-hour day but paid an eight-hour rate and this was beneficial for her.  The only other option was that she remained in her original setting.

Mr Maher was asked how the safety concerns of the complainant could be addressed if she resumed duty and he said that through the scheduling they could keep the complainant and Mr A apart as far as was possible.  Mr Maher said that the reason the alternative roles were offered to the complainant and not Mr A was because she was qualified to teach in those roles and Mr A was not.  The roles available are governed by the contracts they have with the educational providers.

Mr Maher confirmed that the notes of the Welfare Meeting he had with the complainant on 10/11/2021 were accurate.  The options offered to the complainant were discussed.  She also asked why Mr A could not take up the Level 4 role and Mr Maher confirmed that Mr A was not qualified to do so.

Mr Maher was asked when he was informed by the complainant about, the text messages she received from Mr A.  He confirmed that it was at the previous Welfare Meeting on 29/09/2021.  Mr Maher was not sure what his role was in relation to this matter as the complainant had referred it to the Gardaí.  Mr Maher was asked if he agreed that there was no further contact with the complainant from the meeting on 10/11/2021 until she submitted her resignation at the end of January 2022.  He said that there was engagement during the WRC mediation process.  He did suggest another Welfare Meeting in January 2022, but this did not go ahead, and he received a resignation e-mail from the complainant on 20/01/2022.  He replied to the complainant on 24/01/2022 and suggested that they should have a Welfare Meeting and to reconsider her resignation.    The complainant contacted him by e-mail on 27/01/2022 to confirm her resignation and to say that she had returned her keys and equipment.  He had no further contact with the complainant. 

On cross examination Mr Maher confirmed that Mr A worked for the respondent from January 2021. He confirmed that here were no other complaints against Mr A.  Mr Maher explained the informal complaint process outlined in the policy and clarified that the role of Confidential Helper was to listen and understand the complaint and to help the employee bring it through the investigation process.  Mr Maher also clarified that it is not the role of the Confidential Helper to put the complaint through the investigation process.  The directors discuss and appoint the investigator.

Mr Maher was asked if this complaint was serious, and he confirmed that it was.  He was also asked if there was a potential risk to vulnerable students in the light of this complaint and he confirmed that there was.  Mr Maher denied that the decision to appoint Mr Kearney was linked to any relationship he had with Mr A.  Mr Maher also agreed that at the first meeting with the complainant he was present as a note taker.  He agreed that this was a supportive meeting.  Mr Maher said that he did not change the wording of the notes of the 28/05/2021 meeting as his role was just that of note taker. Mr Maher confirmed that he was copied on e-mails from the complainant, and he confirmed that he met the complainant and discussed her concerns.

It was put to Mr Maher that the complainant sent him medical certificates from 15/06/2021 and at the same time Mr A was kept in employment while the complainant was kept out.  Mr Maher said that the work schedule of the complainant and Mr A was changed to make sure they would not meet.  It was also put to Mr Maher that complainant was the one who was forced to meet in another part of the building while Mr A continued to remain in his place of work.

Mr Maher was asked about the meeting of 28/06/2021 and the complainant’s view that he told her that he had undertaken a musculoskeletal analysis of Mr A on the CCTV.  Mr Maher confirmed that he never said that he had done such an analysis.  He had noted that the CCTV showed Mr A’s left hand was in his pocket.  Mr Maher was asked if he agreed that Mr A had said that he had both his hands on the complainant’s hips.  Mr Maher agreed that Mr A had said that, but he denied that he was trying to defend Mr A.

It was put to Mr Maher that the complainant’s concerns were not addressed or resolved during or after the investigation process.  Mr Maher did not agree, and it was his view that the each of the concerns were discussed with the complainant but there were no solutions.

Mr Maher was asked about the first welfare meeting he held with complainant on 30/09/2021.  He confirmed that the purpose of this meeting was to link with the complainant to see how she was doing and how long she may be out on sick leave and to discuss her return to work.  Mr Maher confirmed that he was made aware of the text messages sent to the complainant by Mr A on 18/09/2021.  He was asked if the complainant believed these to be harassment and Mr Maher confirmed that she did.  It was put to Mr Maher that his response was to refuse to investigate, and Mr Maher said that he went away to see what they should do.  Mr Maher confirmed that he accepted that this was a complaint of harassment and he said that he did and that they had begun an investigation.   Mr Maher also confirmed that there was no formal discussion about a safe return to work before the meeting on 30/09/2021.

Mr Maher was asked to explain the three options which he presented to the complainant.  The first was to remain where she was and to have separate rosters for the complainant and Mr A.  Mr Maher agreed that the notes of the meeting did not record this.  The other option was to move to another centre and the third was to do the evening and weekend teaching role. Mr Maher could not recall if the double payment for doing this was discussed at that meeting.

Mr Maher was asked to outline what the differences were in terms of teaching a Level 4 course in comparison to a Level 6 course.  Mr Maher said that the main difference was the qualification the person had.  It could be more of a challenge, but it was not a demotion.  All tutors work on all courses, and they did not see this option as being demeaning.  Mr Maher confirmed that these were the only options available as the options are based on the teaching contracts they have.  Mr Maher said that Mr A could not teach on this course as he was not qualified to do so.  It was put to Mr Maher that it was “a bit perverse” that the complaint had been upheld and the complainant was the one who was expected to move.  Mr Maher said that the complainant’s role was always there, and these were other options that were suggested.

Mr Maher confirmed that at the second welfare meeting on 10/11/2021 the complainant raised the issue of the test messages sent to her by Mr A on 18/09/2021.  Mr Maher said that following this meeting he spoke with their HR company, and he was advised to obtain evidence and he asked the complainant to send him a copy of her screen shots which contained the messages and the subsequently deleted screen messages. 

Mr Maher was asked if these text messages were frightening for the complainant given what had preceded this and he agreed that they were.  Mr Maher also agreed that these messages would have an impact on the complainant’s return to work.  It was put to Mr Maher that he was told about those messages on 15/09/2021 and that from that date to 20/01/2022 the complainant heard nothing about this investigation.  Mr Maher said that an investigation had begun but they did not tell the complainant that Mr A had resigned.

Mr Maher was asked by the Adjudicator who was the investigator, and he did not know. The other two directors, Mr Kearney and Mr Comiskey were likewise unable to confirm who was the investigator.  Mr Comiskey confirmed that he wrote to Mr A to invite him to an investigation meeting.

It was put to Mr Maher that it was unreasonable to expect that the complainant could return to work as the respondent failed to protect her from sexual harassment.  The respondent failed to provide any information to the complainant about the investigation from 15/11/2021 until 20/01/2022.  Mr Maher felt that the complainant had a safe place of work to return to.  Mr Maher did not agree that the respondent had breached fundamental part of the contract of employment.

The respondent’s representative made a closing submission.  The respondent had policies in place, and these were given to the complainant.  She knew the policies and the pathway to go.  The respondent did investigate the complaint and she also had access to the Confidential Helper as part of that process.  The respondent at all times attempted to do the best they could and the only outcome that would satisfy the complainant was the dismissal of Mr A.  The sanction was proportionate. 

The respondent also tried to stop any reoccurrence.  Training was organised for the respondent’s directors and separate mandatory training was arranged for all employees.

The complainant raised a further grievance at the welfare meeting and these meetings were held in order to have meaningful engagement with the complainant to enable her to return to a safe place of work.

The outcome was always not sufficient for the complainant, but the respondent done the best they could to prevent further incidents.

The grievance procedure was also available to the complainant, but she failed to use it.

The complainant submitted her complaints to the Workplace Relations Commission on

29/09/2021.  The submitted two further complaints on 09/02/2022.  These complaints relate discrimination on the ground of her gender by being sexually harassed and that she was penalised for making a complaint under the Acts.

It is clear from the facts of this case which are recited above that the issues to be considered are the way the complainant’s allegation of sexual harassment at the hands of Mr A 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 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 and victim of harassment on the gender ground is not disputed in this case by the respondent.  The respondent does seek to avail 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”.

There are two parts to the defence set out in section 14A (2), both of which must be satisfied by any respondent who seeks to avail of that defence.  Firstly, 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 included 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 and has provided appropriate training to staff and especially managers trained in relation to accepting and investigating complaints of alleged sexual 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 so far as any such treatment has occurred, to reverse its effects".

This paragraph is generally understood to include 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 for all employees and managers. 

It is not disputed in this case that the respondent had a Dignity at Work policy in place and which all employees, including the complainant, were provided with access to when the commenced employment.

It is also not disputed that the respondent carried out an investigation into the allegation of sexual harassment submitted by the complainant against Mr A and the result of which was that some elements of those allegations were upheld.

What is disputed is that this investigation failed on many levels to meet the standard required in terms of fair procedures and natural justice.  It is also disputed that the investigation failed to reach a reasonable and rational outcome.

Having reviewed the evidence and the comprehensive submissions of the parties it is absolutely unequivocal that the investigation in this case was flawed.  The fact that Mr A felt vindicated, and that the complainant was confused in relation to the inconsistent conclusions clearly demonstrates that there were many shortcomings.  These shortcomings were not addressed by the respondent issuing another version of the report on 07/07/2021 after the “Final Report” was completed on 14/06/2021.  The respondent in this case failed to discern that this was more than an incident of classroom misbehaviour.  This was, potentially, one of the most serious type of complaints that could arise  in a workplace.   The respondent failed to establish an investigation that would have had the requisite expertise.  The respondent availed of external HR advice, and it is not clear if they implemented that advice or implemented their interpretation of that advice.  In any event, this investigation was not undertaken in a manner which would have given confidence to all parties that it was thorough, fair and in line with best practice.  The respondent’s own policy states “We reserve the right to allow third parties to chair any formal meeting.  You agree to permit us to share any relevant special categories of data where it is necessary for the purposes of that hearing”.  The fact that the respondent decided to ask one of the three directors, who gave sworn evidence that this was his first time to investigate a case of sexual harassment, is clear evidence that they did not appreciate the importance of fair procedures.

It is also extraordinary that the investigator did not review or refer to the definitions of sexual harassment in their own policy or in the Act as a means of assisting the decision-making process in this investigation.   There was a lot of significance placed on what could be seen on CCTV without considering the limitations of the coverage and without fact checking the CCTV against the evidence of the complainant, the witness, and the evidence of Mr A.  I find that there is no evidence that the investigator considered the behaviour of Mr A prior to this incident.  Mr A entered the complainant’s classroom uninvited and refused to leave when asked to do so.  The complainant gave compelling and unrefuted evidence that Mr A’s behaviour was “strange” and that he was “leering” at her.  The respondent’s Personal Harassment Policy and Procedure gives clear guidance on these matters and under the heading “Examples of Sexual Harassment” states “you are free to determine what behaviour is acceptable to you and other employees should respect your standards”.  The complainant gave sworn evidence that she repeatedly told Mr A to stop and asked him to leave the classroom.  He refused and subsequently made his way to the back of the classroom where the complainant was assisting a student with some practical work and then made the touching and thrusting movement while passing behind the complainant.   

The complainant was not offered access to any employee assistance programme or counselling.  The respondent’s policy does provide for a “Confidential Helper” and in this case the person undertaking this role was one of the directors and who was also the complainant’s manager. This person also acted as note taker during the investigation.  This person was also the person who conducted the “Welfare Meetings” with the complainant on behalf of the respondent.   The complainant gave sworn evidence that she attended her GP, received counselling, and obtained support from friends and the Rape Crisis Centre.  She made the respondent aware of these supports at the welfare meetings.

I find it extraordinary that the complainant was advised by the respondent to engage the services of a solicitor to obtain a copy of the CCTV footage.  It is also extraordinary that the terms of reference were not given to the complainant prior to the commencement of the formal investigation.  It is a further cause for concern that the complainant was not issued with a copy of Mr A’s statement until such time as the respondent checked if she was entitled to receive this.  This can only be attributed to a lack of training and/or expertise by the investigator.

It is also unclear why the respondent did not subsequently address the contents of Mr A’s statement with him and failed to question why Mr A used his response to the complaint to make threats to and harass the complainant. The respondent failed to deal with this matter.

I find it remarkable that after the matter was deemed closed by the respondent the complainant was subjected to a series of text messages and a phone call from Mr A.  She had the presence of mind to take screen shots of these before Mr A deleted them.  She provided copies of these to the respondent on 15/11/2021 and these were effectively ignored by the respondent.  The evidence is that the respondent did not initially think it was a matter for them to investigate as the complainant had notified the Gardaí of her concerns. The three directors were asked by the Adjudication Officer who was the nominated investigator for this matter, and they were unable to confirm any name.  It is clearly obvious that without an investigator there is no investigation.  The complainant did not hear anything further about this matter.  It is clear from the facts of this case that the respondent did not take all reasonably practicable steps to prevent the harassment.

Having taken all these matters into account I find that:

(a)    The complainant was sexually harassed by Mr A while at her place of employment on 27/04/2021.  There can be no doubt that the conduct complained of clearly falls within the definition of harassment and sexual harassment as defined in the Acts.

(b)    The respondent failed to undertake a proper investigation of the complainant’s complaint in relation to this matter.

(c)     The respondent failed to investigate the threats and harassment by Mr A as outlined in his statement dated 14/06/2021.

(d)    The respondent failed to investigate the complainant’s complaint about the text messages received from Mr A on 18/09/2021 at 7.14pm and a subsequent phone call at 8.23pm.

The next question to be addressed is was the complainant penalised for making a complaint under the Acts.  The facts are as follows.  On receipt of the complaint, the respondent commenced an informal investigation.  This was escalated to a formal investigation.   The respondent’s policy states:

“On receipt of a formal complaint we will take action to separate you from the alleged harasser to enable an uninterrupted investigation to take place.  We are committed to providing a full and fair investigation, which gives due sensitivity and respect to the rights of both the complainant and the alleged harasser.  This may involve a temporary transfer of the alleged harasser to another work area or suspension with contractual pay until the matter has been resolved”.

The respondent in this case acted in a contradictory manner.  It deemed the matter to be so serious that a formal investigation was warranted but did not deem it necessary to place the alleged harasser on suspension with pay or move him to another area until the investigation process was complete.  Mr Maher gave evidence that he would try and roster the complainant and Mr A so that they would not meet.  The complainant made Mr Maher aware of her concerns in relation to this and the fact that she was told to attend meetings in another part of the building.  Mr A continued to work as normal while the complainant was out on unpaid certified sick leave due to the stress and trauma of this incident. It is paradoxical and worth highlighting that if the respondent had suspended Mr A he would have been entitled to his full contractual pay while the complainant who was out of work due to the stress and trauma of the incident was on unpaid sick leave from 15/06/2021 until she resigned on 20/01/2022.  It is also noteworthy that the respondent accepted all of the complainant’s medical certificates for this period and at no stage did they deem it necessary to obtain an independent medical review of the complainant.

The respondent decided that the realistic option in this case would be to move the complainant to alternative roles and provided her with proposals which would have involved staying where she was and with Mr A still in situ or redeployed to another location and teaching at a lower level or working at evenings and weekends.

The complainant also gave sworn evidence that at no stage did the respondent ever apologise to her for the harassment and sexual harassment she suffered while employed.  The complainant also noted that at no stage did the respondent require Mr A to apologise to her for subjecting her to the harassment and sexual harassment or the further harassment during the investigation and the text messages and phone call.  The respondent failed to recognise that Section 15 of the act renders an employee liable for the acts done by employees during their employment regardless of whether such acts were done with the employer’s knowledge or consent.

I have considered the evidence adduced and the submissions of the parties and I find that the respondent is vicariously responsible for the harassment and sexual harassment, and I am not satisfied that the respondent took reasonable steps to prevent the harassment.  I am fortified in this conclusion by the irrefutable evidence that Mr A harassed the complainant on two further occasions. These were not investigated or dealt with by the respondent and reinforced the complainant’s well documented concern that the respondent was not making reasonable efforts to create a safe place of work for her. 

I also note, and accept, that the complainant in all her communications with the respondent, her submissions and oral testimony at the hearing persistently and articulately outlined the effects of this incident which occurred on 27/04/2021 had on her personally and professionally.  When the number of actions which the complainant endured are taken in their entirety, I conclude that the complainant was penalised as a result of the complaints she submitted.

I must now consider the matter of redress.  The complainant’s representative opened the case of Citybank v Ntoko, EED045 where it was held that an award for compensation for the effects of discrimination must be proportionate, effective, and dissuasive.  It was submitted on behalf of the complainant that the Adjudication Officer should consider the serious level of harassment and sexual harassment which occurred in the complainant’s workplace and that compensation at the higher end of the Adjudication Officer’s jurisdiction should be considered.

I note that the complainant was on unpaid leave from 16/6/2021 until 20/01/2022.  I find that she should not have been in such a position, and I note her valiant efforts to obtain the appropriate medical, counselling, and other supports during that time.  As adduced in the evidence the effects of this harassment and sexual harassment on the complainant go well beyond any financial loss.  I note her successful efforts to obtain alternative employment which, unfortunately, she had to resign from when Mr A and the respondent’s three directors obtained a contact with her new employer.   

In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the ECJ has made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

In measuring the amount that is just and equitable I have taken account of the gravity of the infringements which it was found to have occurred.

In assessing the effects of discrimination, I accept the complainant’s evidence which I found to be consistent and credible, and I award the complainant the sum of €64,584 which is based on the complainant’s annual salary of €32,292.

The complaint is also seeking adjudication by the Workplace Relations Commission under section 28 of the Safety, Health and Welfare at Work Act, 2005.  Having considered all the evidence I conclude that the complainant has discharged the burden of proof imposed upon her in claiming penalisation under section of the Act, 2005. The facts of this case are of sufficient weight to raise the presumption of that she was penalised.  I therefore find that this complaint of penalisation contrary to the Act is well founded.   I order the respondent to pay the complainant the sum of €25,000 by way of compensation for the breach of the Act.

CA-00046417-001: Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1988.  Having considered the evidence presented to me, I find that the complainant has established a prima facia case of discrimination by way of harassment and sexual harassment based on the ground of gender.  I find that the complaint is well founded.  In accordance with my powers under section 82 of the Employment Equality Act, I hereby order the respondent to pay the complainant €64,584 by way of compensation for the breach of the Act.  I consider this amount to be just and equitable having regard to all the circumstances of this case. This award is for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI/USC code.

CA-00046417-002: Complaint seeking adjudication by the Workplace Relations Commission under section 28 of the Safety, Health and Welfare at Work Act, 2005.  Having considered all the evidence I conclude that the complainant has discharged the burden of proof imposed upon her in claiming penalisation under section of the Act, 2005.  I therefore find that the complaint of penalisation contrary to the Act is well founded.   I order the respondent to pay the complainant the sum of €25,000 by way of compensation for the breach of the Act.

CA-00046417-003:  In view of the findings above at CA-00046417-002 it is not necessary to make a separate/additional finding in relation to this complaint.

CA-00048553-001:  In view of the findings above at CA-00046417-001 it is not necessary to make a separate/additional finding in relation to this complaint.

Sexual Harassment.  Penalisation.  Investigation.