Complainant

Respondent

Parties

Vanessa  Corral Fernandez

Neville Hotels

Representatives

Barry O’Mahony BL

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-00048058-001

08/01/2022

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

CA-00048058-002

27/01/2022

The Complainant worked for the Respondent hotel from the 22nd of June 2021 until the 22nd of December 2021 when she was dismissed.

The Complainant submitted a complaint under the Employment Equality Acts on the 8th of January 2022 alleging she was dismissed due to racial discrimination. The narrative of this form explained that she had been dismissed because she reported and aggression that she suffered by another employee and after reporting irregularities in the health and safety and data protection procedures as well as the hotel not having policies to deal with abusive clients. 

On the 27th of January the Complainant submitted a more detailed written submission to the WRC.

This included the statement that she believed that had been discriminated against because:

 I reported to the management that the hotel had not in place a clients abusive behaviour action plan/ strategy / policy to deal with abusive behaviour and that it was needed to protect the massagists.

In this regard my emails to HR were ignored during weeks and I never was unswered after I complained a female woman insisted in exposing her body to me.

When this happened I refused to massage that woman and I was threaten by the manager ( before she left the company ) that HR would deal with me if I was not doing the job.

A hearing was held on the 8th of December 2022. Both parties attended. The Respondent was represented by their HR Manger Ms. Niamh Cox and their Regional General Manager Aidan Ryan.

During the course of the first day of hearing it became clear to me that the Complainant had also raised an argument that she had been sexually harassed. This is referred to in the narrative of her form and more clearly in the submission made shortly thereafter. This allegation related to an incident which occurred on the 9th of September 2021 in which the Complainant believed a client was exposing themselves to her on purpose.

Having heard the evidence and reviewed the file I indicated to the Respondent that I believed that the Complainant had also raised a complaint of sexual harassment, via her statement to the WRC received on the 27th of January 2022,  under the same act and within the congnisable period.

I then wrote to the Respondent and offered them the opportunity to present additional submissions or to request a resumed hearing.

They opted for the latter and a resumed hearing took place on the 9th of May 2023.

In the resumed hearing the Respondent was represented by Barry O’Mahony BL.

The Complainant made written submissions and gave evidence under affirmation.

She was dismissed quite suddenly, without notice and without any fair process having been followed. She believes that this was in retaliation to her raising complaints with the Respondent as to how she was treated by a colleague, an injury she received as a result of this and generally for speaking up in the workplace.

She also raised complaints with how the Respondent ran its affairs, the role of the receptionist within the spa and the tasks she was asked to do in her downtime.

She believes she was discriminated against because of her age, her cultural background and the place she has come from.  

The Respondent made detailed written submissions.

They dismissed the Complainant during the course of her probation following numerous colleague and client complaints. They are a large hotel with an extremely diverse staff and the Complainant was in no way discriminated against.

The Respondent applies strict anti-discrimination and anti-harassment policies. The Complainant was referred to these when she first took up her role and again after she raised an alleged incident of harassment with HR. HR even offered to involve the police and offered immediate support and to meet with the Complainant. She did not take them up on any of these offers. 

CA-00048058-002 –Jurisdiction

Harassment and sexual harassment are prohibited under Section 14A of the Employment Equality Acts. Where harassment occurs it constitutes discrimination in relation to the victim’s conditions of employment.

Section 77 of the Employment Equality Acts states that

A person who claims—

(a) to have been discriminated against or subjected to victimisation,

(b) to have been dismissed in circumstances amounting to discrimination or victimisation,

in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director General of the Workplace Relations Commission.

The question arises as whether the Complainant’s statement of complaint submitted on the 27th of January constitutes a referral of a case the WRC.

The Respondent’s position regarding the status of the sexual harassment claim is set out in their submissions ahead of the resumed hearing.

The Complainant pursued a Complaint of alleged discrimination on the basis of race, it is submitted that the Complainant was fully aware of how to lodge a Complaint to the WRC under the race heading. If follows that she could, had she wished to do so, also have lodged a complaint on the gender ground alleging sexual harassment if believed herself to be sexually harassed. It is submitted that she did not do so as she does not believe the incident at issue constituted sexual harassment, and or discrimination on the gender ground.

It is important to note that the WRC Complaint form is not a statutory form and that it is not the only manner via which a claim can be referred to the WRC. The Employment Equality Acts are complicated and the Complainant is unrepresented. I am satisfied that the statement sent to the WRC on the 27th of January contains an allegation of sexual harassment. It contains three key aspects. Firstly the suggestion of conduct of a sexual nature, that a woman had insisted on exposing herself to the Complainant.  Secondly it is alleged that this conduct was unwanted, specifically that the Complainant found this abusive. Finally the Complainant saw failings in how the Respondent had dealt with this alleged harassment. I note that this is substantially more information than would be provided to the WRC if the Complainant had just ticked sexual harassment on WRC complaint form.  

CA-00048058-002 –Sexual Harassment Claim

The Complainant provided convincing evidence of the incident which was somewhat corroborated by Respondent emails.  

She outlined that the on the day in question a female client attended for a massage. The standard procedure to be followed involved the client be left alone in the room and allowed to undress and that they should then cover themselves with a towel. The masseuse then returns to the room and knocks before entering.

The Complainant’s evidence was that she returned twice and at both times the client’s chest was exposed. On the second occasion the Complainant formed that view that this was on purpose and went to inform management. She understands that while she was gone the client then came out of the room to find her and was exposed in the hallway.

The manager then entered the room and asked the client to cover herself. She then asked the Complainant to complete the treatment which the Complainant refused and requested that the guest be blacklisted. The manager then performed the treatment. The next day she submitted a complaint against the Complainant for her refusal

The Complainant sought to raise a complaint with HR however for some reason her initial email to them was caught by the junk filter. When it was discovered a couple of days later HR responded quite comprehensively and referred her to the Dignity at Work email. Their email stated:

‘We weren’t aware of the full context of the situation. This is a very serious matter, so please can you come talk to me on Monday and I can get more details so we can take the  appropriate action… If you feel you need to report this incident to the Guards, we will support you as your safety and wellbeing is important.’

The Respondent refers to the above response and the fact that the Complainant was furnished with a copy of the Dignity at Work policy upon taking up her role. The argue that they meet the defence outlined in 14A.2 of the act, namely:

(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.

The Respondent also refers to the Complainant role, that both women and men are normally massaged with their chest uncovered and that the client had incorrectly interpreted an instruction. They argue that this failure by itself could not constitute sexual harassment. The Respondent has made extensive legal submissions on this issue, particularly emphasising the nature of the work the Complainant was engaged in, the role of the likely intent of the client, the fact that the client and the Complainant were both of the same gender. In this context they invite me to come to the conclusion that the client’s conduct was fundamentally not sexual in nature.

I disagree with the Respondent on this issue. I am of the view that nature of the Complainant’s role and in particularly the context of partial nudity and client/worker physical contact makes her more vulnerable to potential sexual harassment, specifically because that sexual harassment could be advanced under the guise of a misunderstanding or error. In such an environment it is important that an employer relies on their workers’ judgement. The Complainant believed that the client was deliberately exposing herself to her and that this was an abusive act rather than a misunderstanding.  Having regard to the wording of Section 14A.7 that harassment is 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. I am satisfied that this act constituted sexual harassment.

It is of course open to the Respondent to demonstrate a defence under Section 14.A.2, that they took reasonable steps to prevent the harassment of their staff. This defence is not just important because it establishes a reasonableness test in deciding whether a Respondent can be held liable for harassment but also because it invites employer to take preventative measures specific to their business.

 While it important not to hold any employer to an unrealistic or impractical standard I believe the Respondent has failed to establish that they were mindful of the environment that their spa staff work in and the associated risks. In particular, I note their dignity at work policy is generic and fails to consider the specific needs and risks involved with working in a spa. The policy also appears to be focused on potential harassment from colleagues rather than clients.

The response of the Complainant’s line manager in remonstrating with and complaining against the Complainant for removing herself from the situation demonstrate that there was not appropriate training or leadership on the ground to deal with sexual harassment. While the Respondent’s HR team responded professionally and properly, this was after the fact. Generally speaking, when countering harassment the most important tier of management will be the victims line manager who is on hand to actually react to incidents and risks. An office based team offering support after the fact is no substitute for this. 

CA-00048058-002 –Redress

Section 82 subsection 1 of the Employment Equality Acts outline the redress which may be ordered by a WRC Adjudicator. They include:

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(e) an order that a person or persons specified in the order take a course of action which is so specified.

Having regard to all the circumstances, in particular the Complainant’s rate of pay, her line manager’s reaction to the issue as it arose and the deficiencies in the Respondent’s policy I believe a monetary award is merited. However, in calculating this award I also take into account the subsequent response from the HR team and the Complainant’s failure to engage with them. I am of that an award of compensation of €2000 is appropriate.

I am also of the view that I ought to direct the Respondent take a course of action in this case. That is to draft an anti-sexual harassment policy specifically for the benefit of their staff based in their spa and to provide updated training to those workers and local management on that policy. This course of action should be completed within 6 months of the date of this decision.

CA-00048058-001 – Discriminatory Dismissal.

Both the Complainant and Respondent provided significant evidence as to how the employment relationship ended.

Ultimately the evidence of both parties established that this was a probationary dismissal related to the Complainant’s failure to fit into the Respondent’s organisation. It was not connected with any of nine grounds of discrimination as set out in the Employment Equality Act.

I note that in the bundle of complaints directed at the Complainant the Respondent included the Complainant’s manager’s complaint about her refusal to perform a massage (which formed part of the above sexual harassment claim). As such it could be argued that this formed basis for her probationary termination. However I am satisfied that this was not a determinative factor. Both the Complainant and the Respondent seem to have had fundamentally different views of what her role was as a masseuse.

The Complainant appears to have viewed her role as that of a healthcare professional while the Respondent would seem to see the role as facilitating client relaxation.

In particular I note three client complaints which underscore that difference of views.

A client who attended for a massage and revealed that she was enjoying a voucher as she had recently received test results indicating possible irregular cells. The Complainant refused to carry out the massage and took it upon herself to insist that the client go and get a letter from her GP before she would carry out the massage. This client became quite upset.

A client who had had a coffee before the massage and left after the Complainant had argued with her that she ought not to have done so.

A client who ended a massage after the Complainant continued to give unsolicited health advice throughout the massage.

In the hearing the Complainant did not disagree with the substance of any of the above complaints and stated a belief that she was not just allowed act as she did but that it was her obligation as a professional.

All of these incidents point to a fundamentally different view as to what both the Complainant and Respondent thought the service they were providing was. In the circumstances I am satisfied that this difference resulted in the Complainant’s dismissal, not any act of discrimination.

CA-00048058-002  

I find that the complaint is well founded. I direct the Respondent to pay the Complainant €2000 in compensation.

I direct the Respondent to draft an anti-sexual harassment policy specifically designed for the employees assigned to their spa and to provide updated training to those employees and management on that policy. This course of action should be completed within 6 months of the date of this decision.

CA-00048058-001

I find that the complaint is not well founded.