Complainant

Respondent

Parties

Nadine  Harty

Causeway Hospitality Ltd Greenway Manor Hotel

Representatives

Alan Crann, BL

Shaun Boylan, 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-00047632-001

13/12/2021

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

CA-00048420-001

01/02/2022

The Complainant was employed as a ‘Prep Chef’ from 29th June 2021 to 1st February 2022 when she resigned her employment.  Mr M was the Executive Chef and Mr B the Head Chef.  Shortly after the commencement of her employment the Complainant was subjected to sexual harassment by a male co-worker and despite numerous complaints, they were not addressed in a substantial manner or at all, resulting in the Complainant having to resign her employment.  The said conduct consisted of inappropriate and unwarranted touching of the Complainant by Mr M, in particular grabbing her wrists, stroking her arm, grabbing her around the waist and on one occasion biting her on her shoulder.  He also whispered in her ear, blew on her neck and made totally inappropriate comments about underage girls.  The Complainant initially raised the matter informally with Mr B the Head Chef.  She also put her complaint in writing asking that the matter be sorted quietly.  In or around the end of July 2021 she made further complaints and the matter was not addressed.  As a result of the Respondent taking no action, the Complainant had no alternative but to resign her employment and she handed in her notice on 25th January 2022, her last day of work being 1st February 2022.                   It is submitted that the conduct engaged in by Mr M constituted persistent sexual harassment such that the Complainant’s employment conditions and mental health were significantly impacted.    

Noting that it is for the Claimant to prove her claims, if there is a finding that she was discriminated against, suffered harassment and or sexual harassment, the Respondent submits that it is not responsible for same and or that the Claimant was not constructively dismissed on inter alia, on the following grounds:

i.                     The Respondent took such steps as were reasonably practicable to prevent harassment or sexual harassment of the Claimant and or the class of persons including the Claimant in the terms envisaged by section 14A(2)(a) of the Employment Equality Act 1998 as amended (“the EEA”).

ii.                    The Respondent took such steps as were reasonably practicable to address and deal with the Claimants complaints when brought to light.

iii.                  The conduct complained of was not done in the course of Mr M’s employment as envisaged by the meaning of section 15 of the EEA.

iv.                 The Claimant was not dismissed from her employment.

v.                   The Claimant has failed to offer any or any adequate evidence and or grounds to justify that she was constructively dismissed.

On or about 31st of July 2021 the Claimant raised a complaint with Ms F (“the July complaint”). This set out what the Claimant described as “inappropriate advances and gestures” relating to conduct towards her by chef Mr M. In the course of the July e-mail the Complainant stated “I hope this can  all be sorted quietly”.  Ms F sent the July complaint to Mr J, director with the Respondent, who then met with the Claimant’s line manager Mr B.  Having taken seriously the Complainant’s request to deal with matters “quietly”, the purpose of this meeting was to discuss and investigate the complaint informally as per the Respondent’s policies and procedures.  At this meeting Mr J relayed to Mr B the serious nature of the situation. Mr B explained to Mr J that he was not aware of the issue and that he had not witnessed anything related to the matters concerned.  They decided to monitor the situation and keep it under review and a number of actions were agreed.

Mr B would take a pro-active role in the management of kitchen staff. Ms H’s general place of work was to be at the far end of the kitchen in the dessert area, a significant distance away from Mr M. Ensuring that Ms H and Mr M were kept under observation.  Mr J then met with Mr. M and outlined Ms H’s complaints. Mr M was taken aback by the nature of the complaints and denied matters. Notwithstanding this, Mr J clearly explained to Mr M that conduct he may have considered to have been appropriate would not be so considered by others.  He asked Mr M to stay away from the Complainant.  Further complaints were received from the Complainant and following a meeting between Mr J and Mr M the result was that Mr M left the employment.  Mr J met with the Complainant in December and told her of the departure of Mr M.  The Complainant expressed her thanks but that she had engaged a solicitor which incurred costs for her.  There followed a solicitors letter which stated wrongly that the alleged perpetrator was still in the employment, despite him having left some 6 weeks earlier.

It is argued that the Respondent did not ignore the matter and that not only were the issues not tolerated or condoned but the Complainant was aware of the actions taken by the Respondent.

It is argued that pursuant to the EEA harassment is any form of unwanted conduct arising from one of the prohibited grounds and sexual harassment is any form of unwanted conduct of a sexual nature.  For an employer to be vicariously liable there must be a nexus between the following:

there was unwanted conduct that constituted harassment or sexual harassment;

the conduct had the effect or purpose of violating the Claimant’s dignity or created a hostile, intimidating, degrading, humiliating or offensive environment;

the conduct arose by virtue of one of the protected grounds.

Both section 14(A)(2) and section 15(3) provide defences to claims of vicarious liability for harassment or sexual harassment conducted by an employee.   Subsection (2)(a) of section 14 provides a defence where an employer took such steps as were reasonably practicable:

“…to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim…”

Subsection (3) of section 15 provides a defence in similar terms where an employer took such steps as were reasonably practicable to prevent the act or acts complained of.

It is argued that the Respondent had in place policies and had trained managers including Mr M in the issues of harassment and sexual harassment.  Further, the Respondent took steps, including the removal of Mr M From his employment.

Sworn evidence was given by Director of the Respondent Company Mr J summarised as follows:

He is the Director of the Company which has some 11 premises and 150 employees.  The Management structure comprises General Managers, Assistant Managers, Duty Managers and Head Chefs.  Ms F who received the complaints from the Complainant was Acting Manager at the time.         The Company also has policies and procedures on dignity at work and all managers are trained in this.  When the Complainant’s complaint was referred to him, Mr J met with Mr B, the Head Chef.   Mr B said he knew nothing about the issue.  In a situation where Mr M denied the allegations, and the Complainant wanted the matter to be dealt with quietly, it was decided to keep the situation under review.  When another complaint came in around November he met with Mr M and they decided at age 66 it was time for him to retire or leave the employment.   In early December Mr J met the Complainant, who told him she did not know Mr M was left the business.  She told Mr J she had incurred solicitors costs and he told her she would not be out of pocket.  At the end of the meeting, she thanked him and she was to come back to him but did not.  The next communication he received was the solicitors letter.  In cross examination, Mr J stated that there was no reason to escalate the matter to a formal investigation as Mr M had resigned.

 The issues for decision in this case are:

(1) Whether the Complainant was subject to sexual harassment and harassment pursuant to Section 14A of the Acts.

(2) Whether or not the Complainant was subjected to discriminatory treatment on the grounds of gender in her employment.

The matter of constructive dismissal has been referred to in submissions.  The Complainant’s case is that she could no longer stay in the employment in circumstances where she had been subjected to sexual harassment and her complaints had not been fully dealt with.

Burden of Proof

Section 85A of the Employment Equality Act sets out the burden of proof which applies in a claim of discrimination:

“85A. – (1)   Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

This section provides for the allocation of the probative burden which requires that the Complainant must first establish facts from which discrimination may be inferred.  It is only when a prima facie case has been established that the burden of proof that there was no infringement of the principle of equal treatment passes to the Respondent.  

Harassment and Sexual Harassment

Section 14A of the Act provides:

“14A.-(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.”

In considering whether the Complainant was subjected to harassment and sexual harassment pursuant to Section 14A of the Acts, and whether this constitutes discrimination in relation to her conditions of employment, I am required to consider two aspects of the evidence, namely:

(a) whether the Complainant has established on the balance of probability that she was sexually harassed and/or harassed in terms of the incidents she described in her evidence.  This includes an evaluation as to whether the events the Complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment and sexual harassment.

(b) if the answer to (a) is in the affirmative, did the Respondent take reasonable action to prevent the harassment and sexual harassment occurring in the workplace, such as to enable it to rely on

Section 14A (2) of the Acts 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”.

Section 14A (7) (a) (ii) of the Act defines sexual harassment as follows:

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

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

The Complainant gave evidence that she was subjected to sexual harassment from her colleague Mr M from an early stage in her employment, in or around late June 2021 until in or around late November 2021.    I have considered her evidence regarding the nature of the incidents of harassment and sexual harassment which the Complainant claims she was subjected to by Mr M during the period in question.  The evidence of the Complainant clearly showed that the inappropriate touching and physical contact and comments of a sexually explicit and suggestive nature visited upon her by Mr M had the effect of violating her dignity and creating an intimidating and degrading environment for her.  The Respondent was not in a position to dispute the actual occurrences of the alleged incidents of harassment and sexual harassment as it did not carry out a full and complete investigation.  This will be considered again when I look at the question did the Respondent take reasonable action to prevent the harassment and sexual harassment occurring in the workplace, such as to enable it to rely on Section 14A (2) of the Acts.     I have found the Complainant’s evidence to be very credible and on balance, I am satisfied that all of the incidents of harassment and sexual harassment as alleged by her did occur.  Furthermore, I am satisfied that these incidents were extremely serious in nature in terms of the impact and affect they had on her personally and her working environment. I therefore find that the Complainant has established a prima facie case that she was harassed and sexually harassed in the course of her employment. 

Section 14A (2) of the Acts provides that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent sexual harassment and harassment occurring in the workplace and in circumstances where such harassment has occurred it took action to reverse its effect.  I note that the Respondent in this case has policies and training in relation to dignity at work.  I note that following the submission of a formal complaint by the Complainant, the Respondent failed to commence a formal investigation.  The Director of the Respondent Company stated in evidence that they “kept the matter under review”, and they spoke with the alleged perpetrator and they endeavoured to keep the parties apart.   However, I am struck by the fact that no one appears to have consulted with the Complainant, who had been subjected to such serious inappropriate sexual harassment amounting to assault.  I am satisfied that the Complainant was subjected to harassment and sexual harassment in the workplace by Mr M.  Furthermore, I am satisfied that the Respondent failed to put appropriate measures in place to stop this harassment and sexual harassment from occurring or to reverse its effects in that particular circumstance.  Having regard to the foregoing, I therefore find that this harassment and sexual harassment constitutes discrimination against the Complainant and the Complainant was subjected to discriminatory treatment on the grounds of gender in her employment.  I further find that in the circumstances, it was reasonable for the Complainant to resign her employment where the treatment she had been subjected to caused such humiliation and degradation.   

Sexual harassment, discrimination on grounds of gender.