Complainant

Respondent

Anonymised Parties

A Creche Worker

A Creche

Representatives

Ms Lorna Madden BL instructed by Killian O’Mullane - Murphy English and Co Solicitors

Ms Valerie Morrison  Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043606-001

15/04/2021

The Complainant commenced work as a  relief worker with the Respondent creche in August 2019. The Complainant holds a Level 8 degree in Early Childhood studies. She worked 27.5 hours per week at the rate of €11 per hour until the time of resignation from her employment on 6 April 2021.  The Complainant’s case is that she is gay and that she was outed unwillingly  by a work colleague’s inappropriate questioning around her sexual orientation.   The Complainant submits that she was harassed and that proper steps were not taken by the Respondent to deal with it. The Complainant further claims that she was victimised for making the complaint to management when she was subsequently moved to a different room in the workplace, and her hours were reduced.

The Respondent denies each of the claims. On harassment, the Respondent submits that when a complaint of harassment was made by the Complainant an immediate investigation was pursued by the Respondent, but the Complainant did not want the matter to progress further. Regarding the complaint of victimisation, the Respondent submits that any purported change in the working arrangements of the Complainant were purely down to the needs of the business during the challenging period of the Covid-19 pandemic and were not related to any alleged  harassment  complaint made by the Complainant. The Respondent submits that the Complainant was employed as a relief worker and that her hours were never reduced below her contractual hours.

Summary of the Evidence of the Complainant:

The Complainant gave evidence under affirmation. On 21 October 2021 a work colleague, Ms A, asked the Complainant if she had a boyfriend. The Complainant answered that she had no interest in boyfriends but when pressed by Ms. A she said that she had no interest in men. Another staff member, supervisor Ms B, witnessed the conversation. She felt  pressurised by the conversation and went to the bathroom to cry. In  the afternoon Ms. A seemed to persist because she spoke about her family in another country and how happy she was. The Complainant had told nobody at work about her sexual orientation and found it very difficult to even  tell her parents about it. She contacted her mother to collect her to bring her home because she was terribly upset about what occurred.

At home she reported the incident by  text to her manager (Ms C)  whom she met the following day, 22 October 2021. The Complainant said that Ms C said to her that if she (the Complainant) did not want other members of staff to know about her sexual orientation then maybe she should have lied. The Complainant also stated that Ms C had said that Ms. A was a good person. The Complainant described how upset she was and went to her G.P. who certified her ill due to stress from 22 October to 26 October. On 26 October Ms. C proposed a group meeting to sort out her issue but the Complainant declined because she did not want confrontation.

The Complainant described that on 29 October Ms. A initiated a conversation asking why it was not acceptable. The Complainant answered  that  what she (Ms. A) had said to her was disrespectful and that she (the Complainant) needed to separate her work life from her private life. She felt uncomfortable in Ms A’s presence. In the afternoon, and in the presence of Ms B,  Ms A  accused the Complainant  of telling lies to management.

The Complainant said she signed a receipt of a  bullying and harassment policy but that a new policy appeared after the incident.

In March of 2021 Ms C did an appraisal of her which was very positive. However, she was told by Ms C that she was not being rostered for the pre-school room because other staff considered her ‘not strong enough’.

Cross-examination:

The Complainant did not give a clear answer when asked if she was prone to stress or was easily upset when it was put to her by the Respondent’s representative. The Complainant accepted that she did not raise a grievance nor complaint when she was asked to move around different locations.  Neither did she deny  that she portrayed her flexibility as a plus point when having her appraisal interview.

 Legal Argument – Harassment:

The Complainant cites Nail Zone Ltd v A Worker EDA 1023 10 November 2010 where the Labour Court defined harassment under section 14A of  the Acts as (a) unwanted and (b) that it has either the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The Court stated: “This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purposes of the Acts.”

The Complainant cites A Complainant v a Health Board DEC-E2003-055 where it was made clear that a single complaint of harassment can breach the Acts.

The Complainant cites Grant v HM Land Registry [2011] EWCA Civ 769 where the Court of Appeal commented that ‘outing’ someone against his or her wishes could constitute harassment. The Complainant  submits  that in that case it was held that there was no harassment in circumstances where the employee had made no secret of his sexual orientation.

The Complainant cites Two Complainants v a Restaurant [2013] ELR 333 where the complainants were a same sex couple who worked together in a restaurant and were subjected to comments of a sexual nature in relation to their relationship. The Equality Officer, in finding that they were both victims of harassment on grounds of their sexual orientation, expressly held that there was “a dutyon employers under the Acts to provide a workplace in which it was safe for lesbians and gay men to be open about their sexuality.”

On a potential defence for employers in section 14A of the Acts where they must prove that they took such steps as are reasonably practicable to prevent the employee from harassing a complainant,  the Complainant  cites A Hotel v A Worker EDA0915 where the Labour Court held that in order for an employer to rely on this defence; “…it requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations.”

The Complainant cites A Store v A Worker EDA163, where the Labour Court noted that, although the employer had in place a sexual harassment policy, it did not have in place adequate arrangements to ensure that it was properly understood by those managers who were responsible for its implementation. In that case the Labour Court found that the manager did not properly understand what constituted sexual harassment. It also found that that the fact that the policy was only printed in English was a difficulty, as this was not the native language of the perpetrators and there was no evidence concerning their competency in reading English. In all the circumstances and in spite of the respondent having published and circulated an anti-harassment policy, the Court refused to allow the Respondent to rely on the defence in section 14A of the Acts.

The Complainant cites Gabrielle Piazza v the Clarion Hotel DEC-E2004-003 where the Equality Officer did not consider that a serious complaint, such as an allegation of harassment should be dealt with by way of the grievance procedure.

The Complainant submits there were three incidents of harassment in this instant case namely: (1) when she was pressurised about her sexual preferences and essentially outed in the workplace by Ms. A, (2) when the Complainant raised the incident with Ms. A later that day and she refused to understand that she had done anything wrong and (3) when the Complainant complained of this incident to her manager and was told she should have lied in response to the questions. The Complainant submits that these incidents were clearly unwanted conduct which violated the Complainant’s dignity and created a degrading, humiliating and offensive environment for her.

The Complainant submits that Ms A did not understand her conduct was wrong and that questions of this nature should not be asked in the workplace. The Complainant therefore submits  that the Respondent  did not take such steps as were reasonably practicable to prevent Ms A from harassing her as she was not made to understand this basic fact.

The Complainant further submits as an uncontested  fact that the Complainant’s supervisor, Ms B, was present during the incident on 21 October 2020 and did not choose to intervene. The Complainant asserts that Ms C’s response to the Complainant when she raised the issue also undermined the effectiveness of the policy by a lack of understanding on how to implement the policy.  

Legal Argument-Victimisation:

The Complainant submits that Section 74(2) of the acts protects an employee against adverse treatment by an employer where the adverse treatment occurs as a reaction to a protected act. Section 74(2)(a) prescribes that complaints of discrimination made by an employee are protected acts as defined by the section.

The Complainant cites, amongst other cases, An Employee v A Broadcasting Company DEC-E2011-195  where the Equality Tribunalfound that in denying that the Complainant had a particular role, which role was only de facto in nature, this constituted victimisation. In the same case it was also found that transferring the Complainant to a different role was victimisation.

The Complainant cites Monaghan County Council v Mackarel EDA1213 where the Labour Court intimated that the making of a complaint must be an “influencing factor” in the decision to impose the impugned detriment although it need not be “the only or indeed the principal reason for the decision”.

The Complainant submits that her hours and role within the workplace were changed as a result of the incident on 21 October 2020 and as a result of reporting it. The Complainant submits that despite a strong performance review, it was felt that she was not strong enough to work in the Pre-School Room. The Complainant argues that the reason for this view is the complaint made by her in relation to Ms A’s behaviour and the Complainant’s subsequent unease and unhappiness at work which was as a result of the lack of action by the Respondent to remedy the matter.

The Complainant cites the case of MBCC Foods Ireland Ltd v Quilty EDA 2128 in respect of remedies sought. This was a case where the complainant was subjected to visual harassment in the form of unwanted pictures of her manager in his underwear and offensive representation of male genitalia. The Adjudication Officer found that this was in the lowest category of misbehaviour and awarded compensation of €3,000. The Labour Court on appeal, whilst accepting that what happened was not in the same category as physical assault, still considered it more seriously than had been found by the Adjudication Officer, having particular regard to the inadequate protections in place, and increased the compensation to one year’s salary of €20,000.

Summary of the Evidence of Ms C – Creche Manager:

The witness gave evidence under affirmation. She  described how the Complainant was recruited as a relief staff worker, the same description that is afforded to herself and the Deputy Manager. She stated that the Complainant was not attached to any role and that she was  flexible in that she operated in a number of areas. She said that other staff also filled in as relief staff when required. The witnessed outlined that  the Respondent had a bullying and harassment policy in its Staff Handbook and that it clearly stated that sexual harassment would not be tolerated. She stated that  the Complainant  had signed a declaration on the 19 August 2019 confirming that she had read, understood, and agreed to abide by the terms of employment and other policies laid out in the Policy Book. The witness said that folders of all the Respondent’s policy documents were placed in each room of the creche, so they were readily available for examination  by employees.  

The witness was first made aware of the harassment complaint through a ‘WhatsApp’ message from the Complainant sent at 5.30pm on 21 October 2020 saying that she was ‘outed’ at work and requesting a meeting the following day. The witness  replied immediately that evening asking if the Complainant could take a phone call. The Complainant  replied that the following day was fine.  The witness  met with the Complainant  at 10am on the following day, 22 October 2020. The witness  listened to the Complainant’s  complaint and confirmed she would fully investigate the complaint. The witness denied that she told the Complainant she should have lied when she (the Complainant) was  questioned by Ms A about boyfriends and an interest in men. The supervisor in the room who witnessed the interaction between Ms A and the Complainant , told the witness she believed   it was a general conversation.

The Complainant  was out of work on certified sick leave between the 22 October 2020 and 26 October 2020.  When the Complainant  returned to work on  27 October 2020, the witness approached her but was told by the Complainant that she did not want to take the complaint any further. The Complainant declined an offer of a  meeting between herself and the relevant two employees because she felt it would be “too confrontational”.

The witness stated that she had a very positive appraisal meeting with the Complainant, where she raised no issue. In the self-filled section of the  Appraisal Form of  1 February 2021, the Complainant  described herself as a ‘relief staff member’ when referring to her role under the section entitled ‘Flexibility, Initiative & Working as part of a Team’.

The witness described how the Covid-19 pandemic reduced demand at the creche, and a re-organisation of rosters occurred. It was agreed in February 2021,  after  consultation with the Complainant, that she would move to the pre-school room of the creche.

The witness stated that the  Complainant had been a key worker for some of the children in the baby room over the period that she worked that section  of the creche. The Complainant  was only in the preschool room for 1 week, which the witness maintained, was insufficient time to be assigned as a  key worker or be involved in curriculum planning.  On the 1 March 2021, following further consultation and with the Complainant ’s  agreement, the Complainant  was allocated to the toddler room of the creche. The witness stated that the Complainant had no issues with any of the moves to different locations.

Cross-Examination

The witness accepted in cross-examination that she had believed at the time that one incident only would  not be considered as harassment. She acknowledged that if the Complainant was to pursue her complaint at the time it would have been processed  the normal grievance procedures. She accepted that in her notes of the meeting with the Complainant on 22 October that she (the witness) stated that she could not control conversations between staff members.

Summary of the Evidence of the Deputy Manager – Ms D.

The witness gave evidence under affirmation. She told  of following up with the Complainant about how she felt and whether she wished to proceed with her complaint but was told that her preference was not to pursue it. The witness stated that the Complainant never raised an objection about moving between rooms.

Summary of the Evidence of Ms. A – Work Colleague.

The witness gave evidence under affirmation. She described herself as a native of another European country. She  said that on 21 October she asked the Complainant about her weekend and whether she had a boyfriend. She did not accept that she was pressurising her nor did she think it was harassment. In cross-examination the witness demonstrated to the opposing Counsel her comprehension in English  of the Respondent’s bullying and harassment policy  and identified the relevant sections of the policy and  procedures when asked.

Legal Argument – Harassment.

The Respondent submits that the Complainant must initially  set out a prima facie case The  test for establishing a ‘prima facie’ case was set out by the Labour Court in the case of Southern Health Board v Mitchell [2001] E.L.R. 201 as follows:

‘The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicated that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment’.

 The Respondent refers to the Labour Court decision of Melbury Developments v Arthur Velpetters (EDA0917) [2010] 21 E.L.R., where the Court whilst examining the circumstances in which the probative burden of proof operates held:–

‘‘Section 85A of the Acts provides for the allocation of the 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 that 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 of establishing the primary facts fairly and squarely on the Claimant and the language of this provision admits of no exceptions to that evidential rule.’

The Respondent asserts that  the Court, in considering the primary facts adduced by the Complainant  should take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the respondent. In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

‘.the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant’.

The Respondent further submits that it is  established law that the person alleging the discrimination must prove ‘but for’ the fact that the claimant falls within one of the discriminatory grounds, they would have been treated differently.

The Respondent refers to the case of A Technology Company v A Worker (EDAO714) wherein the Respondent stated, “The connection between the discriminatory ground….and the alleged discriminatory acts is not to be satisfied by way of motive or intention, but rather from objective facts that infer discrimination”.

 The Respondent submits that none of the alleged issues during the Complainant’s employment are attributable to the Complainant’s sexual orientation or constituted “less favourable treatment” and therefore, the onus of proving a ‘prima facie’ case of discrimination has not been made out by the Complainant . The law requires that the Complainant  establish a ‘prima facie’ case of discrimination before the burden of proof shifts to the Respondent and the Respondent argues  that this burden has not been discharged by the Complainant.

 Section 6 (1) of the Employment Equality Act 1998-2018 provides that discrimination shall be taken to occur where  person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).The Respondent submits that the Complainant  has failed to identify or name a relevant comparator. The  Respondent asserts that it  never treated the Complainant  less favourably than any other employee at any stage of her employment.

The Respondent denies the Complainant’s allegation (contained in the WRC Complaint form) that the most recent act of discrimination occurred on  5 March 2021.  It is submitted that based on the Complainant’s own assertion of the date of the final act of discrimination having occurred on 5 March 2021, the Complainant  is limited to include in her claim alleged acts of discrimination coming within the statutory period of six months (referred to as ‘the relevant reckonable period’), which runs from the 6 October 2020 to 5 March 2021.

The Respondent further submits that  the admissibility of alleged acts of discrimination occurring outside the relevant reckonable period must be linked to those coming withing the reckonable period of six months for them to be treated as part of a continuing act upon which the claimant can rely.  . In this respect the Respondent  refers to the case of County Cork VEC v Ann Hurley (EDA1124) which stated that “an act would be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintained and kept in force a discriminatory regime, role practice or principle which had a clear and adverse impact on the complainant”.

The Respondent  submits that the Respondent is a diverse organisation that is fully cognisant of its obligations in promoting respect and diversity in the workplace. Prior to the Complainant ’s complaint, in relation to the  incident at the creche on the 21 October 2020,  the Respondent had never received any complaint of discrimination from any employee.

 The Respondent submits that at  the time of the harassment complaint, the respondent had in place a bullying and harassment policy in its Staff Handbook The Staff Handbook clearly set out the standards of behaviour expected of its employees in the following terms under ‘Bullying and Harassment’: -

• (the Respondent)  will not tolerate in any form bullying or sexual or other harassment between any staff members/students/volunteers.

• Any staff members found to be in breach of bullying or sexual harassment policy will be subject to disciplinary action up to and including dismissal. ‘  

 The Complainant  had signed a declaration on  19  August 2019 confirming that she had read, understood, and agreed to abide by the terms of employment and other policies laid out in the Policy Book. The Respondent submits  that folders of all the Respondent’s policy documents were placed in each room of the creche, so they were readily available for review by employees.

The Respondent submits that when it offered to fully investigate the complaint, the Complainant declined and neither did she take part in a meeting offered to improve staff relationships.

The Respondent asserts  that the Complainant did not raise any issues pertaining to the investigation of her harassment complaint, at any stage, nor did she raise it in her annual appraisal form, completed by the Complainant nor did she verbally raise any concerns pertaining to the harassment complaint, at the appraisal meeting, conducted between the claimant and the manager, in the first week of March 2021.

The Respondent argues that the  complaint of harassment was dealt with sensitively and was fully investigated in accordance with the Respondent’s policies and procedures and was concluded at the Complainant’s behest.

Victimisation:

It is the Respondent’s contention that the Complainant  was not discriminated against by way of victimisation  under Section 77 of the Employment Equality Act 1977 in relation to her terms and conditions of employment.  

The Complainant  alleges that on  5 March 2021 that she received the staff roster for the following week and noticed that her status had changed to ‘relief staff’. The Respondent submits  there was no status change in relation to Complainant's position with the Respondent. The Complainant was always initially employed as a part-time nursery assistant under a relief work contract. Following the signing of the subsequent contract of employment with the Respondent in March 2020, the claimant continued to move between rooms, as required, by the business needs within the creche. The Respondent exhibited   the uncontested  Appraisal Form, completed by the Complainant  on  1 February 2021. The Complainant  described herself as a ‘relief staff member’ when referring to her role under the section entitled ‘Flexibility, Initiative & Working as part of a Team’. The Complainant stated as follows:-

‘Due to my experience as a relief staff member, I have grown to be very flexible…Under the guidance of each room leader, I work well and co-operate with each room’s team.

The Respondent submits  that this section of the staff roster (Relief staff) included the manager and the deputy manager of the crèche and contends  that the term is uses to indicate the base room, where a member of staff is moving between rooms. The Respondent submits  that the term is in no manner demeaning to the Complainant’s status and was always used at the creche for the entire duration of the Complainant’s contract of employment. The Respondent asserts that any changes to the Complainant’s  work were based on the business needs of the creche in difficult times caused by the pandemic and at all times the Complainant indicated that she had no issues and welcomed the experience of working with different age groups of children.

Harassment:

Section 14A of the Acts provides for the protection of an employee against harassment at work based on one of the nine grounds of discrimination, as follows:-

(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim's employer, or

(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person's rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim's employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section “employee” includes an individual who is—

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),

and accordingly any reference to the individual's employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim's conditions of employment” there were substituted “contrary to section 11”, or, as the case may be, section 12.

(7)

(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

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

There was no conflict of evidence in this case in respect of the content of the verbal interaction between Ms A and the Complaint, nor that the Complainant is gay. The initial matter that I have to decide upon is whether the once off incident of alleged ‘outing’ of the Complainant  , in its correct contextual setting, constitutes harassment. If it is found to be harassment, then I must consider the defence afforded to respondents at subsection (2) above that the Respondent had in place proper and effective  preventative policies.

The Labour Court in Nail Zone Ltd. V A Worker EDA 1023 10 November 2010 , which the Complainant opened, defined the test as being subjective when its stated:-

This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purposes of the Acts.”

Ms A came across as a genuine and honest witness and I find that it was not her intention to target the Complainant on the basis of her sexual orientation.  However, the Complainant gave convincing evidence of being deeply upset by the nature of the questioning, which she felt had  effectively ‘outed’ her. It is clear from the Labour Court decision  in Nail Zone Ltd that the intention of the perpetrator nor the temperament of a complainant are material factors to be considered in defining harassment. Furthermore, in the  Grant v HM Land Registry [2011] EWCA Civ 769  the UK Court of Appeal commented that ‘outing’ someone against his or her wishes could constitute harassment.  In that case it was held that there was no harassment in circumstances where the employee had made no secret of his sexual orientation. However, in this instant case  the Complainant wished for her sexual orientation to be kept confidential and she gave credible evidence of how apprehensive she was when  disclosing  her sexual orientation to her parents.

It is well established that a  once off act can constitute harassment and evidence was given that Ms A seemed to pursue the conversation later in the day, despite the efforts of the Complainant to dissuade her. I am satisfied that the Complainant established a prima facie case that she was harassed on the basis of her sexual orientation. 

The Respondent relied on the defence that it had proper bullying/harassment procedures in place and that the Complainant signed for the fact that she had read and received them in August 2019. It further submitted that there were copies of these procedures in various locations in folders readily available for staff to consult with. In A Hotel v A Worker EDA0915  the Labour Court held that in order for an employer to rely on this defence; “…it requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations.”

Ms A gave  evidence that she did not genuinely believe that  asking questions in the manner described constituted harassment nor did she believe she was being offensive. This suggests a basic lack of understanding of policies. No evidence was given by the Respondent, that outside of producing policies for staff to read, there was proper training and feedback given to ensure effective understanding of the policies and procedures. This perspective  was further endorsed in the evidence of the Manager, Ms. C, when she acknowledged that she was not aware at the time  that one incident of unacceptable behaviour could be classed as harassment under the Acts. Moreover, the manager accepted in her notes of the initial meeting with the Complainant, that she told the Complainant that she could not control the conversation of staff. This view  suggests to me an abdication of responsibility by the Respondent in its obligation  to prevent harassment, and deal with it when occurs. Furthermore, evidence was also given that the Complainant’s supervisor witnessed and  allowed  the conversation on the morning of 21 October, and subsequent conversations, to proceed  without intervention.

The Respondent submitted that the failure of the Complainant to pursue her complaint through the procedures could not be a fault attributed to the Respondent and in essence constituted a defence to the allegation of harassment under the Acts. The Complainant opened  Gabrielle Piazza v the Clarion Hotel DEC-E2004-003 where the Equality Officer did not consider that a serious complaint such as an allegation of harassment should be dealt with by way of the grievance procedure. It was  evident in this instant case that  the Respondent’s  manager  misunderstood the distinctiveness of the complaint of harassment and subsequently suggested that  the matter could be dealt with through the grievance procedure, or by a mediated meeting between the Complainant and the two relevant employees who were present on the day of the incident in question. It was clear to me that that management did not properly understand what constituted harassment based on sexual orientation. I am persuaded therefore that the non-participation of the Complainant  in a flawed process was understandable as the seriousness of her complaint was diminished by managements response.

I accept that the Respondent had in place a policy directed against  harassment which was contained in the employee handbook and accessible in folders for staff members to read. However, I  conclude  that the policy was not  properly or adequately applied in practice. In these circumstances I am satisfied that the Respondent did not take such steps as were reasonably practicable to prevent Ms A from harassing the Complainant on the basis of her sexual orientation and therefore cannot rely on the defence provided by section 14A(2)(a) of the Acts.

For the reasons set out above, I am satisfied that the  Complainant was harassed, and that  the harassment constituted discrimination against her by the Respondent in terms of her conditions of employment on grounds of sexual orientation

Redress:

I am satisfied that the intention of Ms. A was not to humiliate or otherwise hurt the Complainant on the day in question however it is not to say that the questions asked by Ms A might be construed as minor examples when they effectively led to the Complainant being pressurised into “outing “ herself. It is clear in this case that Ms A had not been informed fully of what constituted harassment by the Respondent and , moreover,  the non-intervention by the supervisor, who witnessed the interaction, clearly exacerbated the distress for the Complainant.  Furthermore, I cannot ignore the fact that the Respondent’s subsequent failures to properly deal  with the complaint did not protect  the Complainant.

Having regard to all the circumstances of this case,  I find that  the appropriate redress is an award of compensation. I direct the Respondent to pay the Complainant compensation in the amount of €5,000 for the effects of the discrimination that she has suffered. No part of this award is in respect of remuneration.

Victimisation:

The Complainant submitted that she was  victimised as a result of raising a complaint about the harassment. This victimisation, according to the Complainant, was  that her hours and role within the workplace were changed as a result of the incident on 21 October 2020 and her subsequent submission  of a complaint.

Victimisation is defined  under  Section 74(2) of the Acts, which  provides:

“(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.”

The key elements of victimisation provided for in section 74(2) of the Acts to be examined  in this case  are as follows: Did the  Complainant take  action of a type referred to at section 74(2) of the Acts (a protected act),  was the Complainant  was then  subjected to adverse treatment by the Respondent, and then to determine if the adverse treatment alleged was in reaction to the protected action having been taken by the Complainant.

I am satisfied that the Complainant made a complaint of discrimination by nature of harassment. I must now examine if she was subject to adverse treatment, as alleged. The Complainant gave evidence of being unhappy about being moved between locations in the creche  and having her hours reduced from February 2021. The Respondent gave cogent evidence that the Complainant was always classed as a relief worker and never complained about being moved between locations., though she was consulted before every move. Furthermore, the Respondent gave uncontested  evidence that during an appraisal  interview in early 2021,  and in an appraisal form, the Complainant at all times expressed happiness in her position as relief worker and moreover that she considered her flexibility at work to be a positive attribute. The Respondent also gave convincing evidence of a drop off in business during the  Covid pandemic  but that that the Complainant was never allocated  less hours than her  contractual hours. Having regard to all the evidence adduced in relation to the Complainant’s complaint of victimisation, I am satisfied that there is no basis upon which the movement of the Complainant as a relief worker between locations and any purported reduction in hours could be construed as linked to the  making of the complaint of harassment.  I decide therefore that the Complainant has not established a prima facie case of victimisation.    

CA-00043606 –001: Harassment on the Grounds of Sexual Orientation:

For the reasons set out above, I am satisfied that the  Complainant was harassed, and that  the harassment constituted discrimination against her by the Respondent in terms of her conditions of employment on grounds of sexual orientation. Having regard to all the circumstances of this case,  I find that  the appropriate redress is an award of compensation. I direct the Respondent to pay the Complainant compensation in the amount of €5,000 for the effects of the discrimination that she has suffered. No part of this award is in respect of remuneration.

Victimisation:

I find that the Complainant did not make out a prima facie case that she was victimised in the manner alleged, as required by section 85A of the Acts.

Employment Equality Acts 1998-2020, Sexual Orientation, Harassment, Victimisation.