Complainant

Respondent

Anonymised Parties

A security Officer

A Security Provider

Representatives

Alan Crann BL                                                   Melissa Wynne,                                            Sean Ormonde & Co., Solicitors

Ciara Ruschitzko                                      IBEC

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-00047718-001

17/12/2021

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and direct conflict in evidence between the parties to a complaint, that an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have in the circumstances administered the said Oath as appropriate. It is noted that the giving of false statements or false evidence is an offence.

This matter comes before a sitting of the Workplace Relations Commission on foot of a complaint form which issued on the 17th of December 2021.

The Complainant was fully represented. At the outset, the Complainant was happy to swear an Oath to tell the truth. I was provided with a comprehensive submission dated the 30th of May 2022 together with the Appendices in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was subjected to sustained sexual harassment from a co-worker in the workplace, which constituted a discrimination on the part of her Employer in relation to the Complainant’s conditions of work. The Complainant further asserts that the Complainant was victimised by her Employer after she had made a complaint to the Employer about the sexual harassment. It is asserted that the adverse treatment experienced by the Complainant includes but is not limited to constructive discriminatory dismissal.

It was accepted that the Complainant was obliged to make a Prima Facie case.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

A preliminary application was made to allow that the within matter be anonymised. The hearing is conducted in Public unless the Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of special circumstances, the proceedings should be conducted in private.

The Complainant was subjected to humiliating and degrading treatment by a male colleague, and I am satisfied that the special circumstances exist which allow the decision herein to be anonymised. I note no member of the Public was present at the hearing.

The Complainant Solicitor made an observation post hearing in relation to the presentation of a letter which had been handed in after the hearing.

The Respondent had representation at this hearing. The Respondent entity’s position was represented by a number of witnesses familiar with the facts. The Respondent provided me with a written submissions dated 8th February 2023. All evidence was heard following the swearing of an Oath. The Respondent witnesses were cross examined.

The Respondent asserts that it took all the steps that were reasonably practicable to prevent the person from sexually harassing the employee and to prevent the Complainant from being treated differently in the workplace. The Respondent seeks to rely on the defence set out in Section 14(A)(2) of the Employment Equality Acts which provides that it shall be a defence for the employer in relation to a complaint for sexual harassment to show that it took reasonable steps to prevent the harassment. The Respondent claims it operates so as to prevent the employee from being treated differently in the workplace or in the course of employment, if and so far as any such treatment has occurred, to reverse the effects of it. In addition, the Respondent asserts that it takes its anti-harassment policy very seriously and has fulfilled the requirement that it has an anti-harassment policy in which management are fully trained up. The Respondent submits it has a clear-cut anti-harassment and bullying policy that was in place at the time of the Complainant’s employment.

The Respondent accepts that to avoid liability it is essential that the Respondent establish that it had in place, at the time of the sexual harassment, arrangements which were intended to prevent and deal with the occurrence of such conduct.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

It is noted that the Respondent provided me with a letter post-hearing which I had requested in the course of the evidence. This was the letter sent to the Complainant when she was out sick (in circumstances unrelated to the matters before me) and in which the Complainant was advised that she was needed to make a witness statement.

I have carefully considered the evidence adduced in the course of this hearing.

The Complainant commenced her employment with the Respondent company in and around the March of 2021. The Complainant had already worked as a Security Guard for in and around two to three years before that time. The Complainant had answered an advertisement for a position at an industrial site outside the city limits though she was aware of a head office closer to the city centre which would have been quite close to where she was then living. In any event, there was no position available in the city centre site and the Complainant was happy to be employed at the industrial site.

The Complainant was posted to a peripheral security gate at the industrial premises and would occasionally be called upon to work at the main gate which was a two-person operation.

It was at the main gate that the complainant came into contact with a Mr. K. I absolutely accept the Complainant’s evidence that Mr. K engaged in a campaign of unwanted verbal, non-verbal and physical conduct of a sexual nature. She made out her Prima Facie case. Mr. K repeatedly rubbed his hand up and down the Complainant‘s back and repeatedly told the complainant that she was beautiful. The Complainant confirmed that this was conduct which had the purpose or effect of violating her dignity and creating an intimidating, degrading, humiliating and offensive environment for her. The Complainant explained that she was afraid to raise the issue as she was only just employed with the Respondent company. The said unwanted behaviour continued unchecked for ten to twelve weeks on each of the couple of shifts a week that the complainant worked alongside Mr. K.

On or about the 14th of June 2021 the Complainant says that Mr. K took matters further when he came up behind her and pressed into her in an explicit way. This was followed up with a suggestion that they go somewhere quiet together. The Complainant was extremely upset and shaken when this incident happened. She left the workplace early and contacted her Line Manger who in this instance was a Mr. AA as her usual line Manager was out at that time. AA asked the Complainant to come and meet with him and he took her to an open-air public seating area outside the city site where he was stationed. Mr. AA gave evidence concerning this meeting and confirmed that the complainant was very upset, and they both (AA and the Complainant) recollected him saying I believe you, you wouldn’t be this upset if it wasn’t true. Mr. AA said he would be immediately taking this matter up with Mr. K and there also seemed to have been some conversation about how the Complainant might want to deal with this matter – whether to proceed formally or informally. Mr. AA said he recalled the Complainant saying that she just wanted it to stop. The Complainant appeared to want to have the matter addressed informally at this point in time. I accept that this was her decision, and she was put under no pressure either way.

Mr. AA did go out that same day and talk to Mr. K and the evidence is that Mr. K admitted to some of the behaviours such as the back rubbing and telling the Complainant she was beautiful (both of which he says he intended as comforting and uplifting) but he denied the more troubling accusations of having pressed up against her in a sexual way and suggesting that they go somewhere quiet together. It is noted that Mr. AA did not suspend Mr. K then and there and instead told him to stop the behaviour.

Mr AA contacted the Complainant by email later that same day – June 15th – and forwarded the Harassment and Bullying Policy as well as the Grievance policy. Mr. AA also provided the information for the TALK employee Assistance Programme which he encouraged the Complainant to engage with. Mr AA acknowledged that the behaviour made the Complainant feel very uncomfortable and he confirmed that the issue… raised is being taken very seriously and every effort will be made to address your concerns. Mr AA did also note that the Complainant had requested that the matter be dealt with informally.

The Complainant did not appear to want to engage with the TALK programme and did not follow up with this offer of assistance. I note that the Respondent has made the case that the TALK programme is part of the overall package of appropriate responses the company relies on as one of the suite of reasonable steps taken to prevent victims from being treated differently and to reverse the effects thereof as approved in the case of Agricultural Trust  -v-  Lynn Brien Lbour Court Determination EAA 221 .

The Complainant was a little vague on where she was for the next few days and Mr. AA believes she was out on holidays, though she believes she might have been in work and at the peripheral gate. In any event, it is clear that the complainant did not come face to face with Mr. K until the next week on the 22nd of June when Mr AA had arranged to meet both the Complainant and Mr. K for an informal meeting to go through the allegations made. I am satisfied that the Complainant wanted this meeting at this time. She was not coerced or forced into this meeting. Mr. AA described what he saw and believed was a satisfactory outcome. Mr. K it seems defended himself stating that he only ever wanted to cheer the Complainant up and that he believed he was being nice and that it wasn’t how the Complainant had felt it was and he meant no harm. Mr. AA categorically remembers the Complainant saying I believe you. I note that the Complainant does not have such a positive recollection of this meeting and felt very much pressurised into forgiving Mr. K and moving on. She felt that no particular resolution had been offered and Mr. K had not accepted the more serious allegation that he had pressed up against the Complainant in such an inappropriate way on the 14th of June.

After the meeting Mr. AA believes that the Complainant indicated that she would be comfortable moving forward. I note that the complainant did return to work and whether by some scheduling design or otherwise, she did not cross paths with Mr. K.

As time moved on, I understand that the Complainant became more and more concerned at the prospect of Mr. K and herself being scheduled together. She did not want to be in his presence and did not want to share a security hut with him. The Complainant did not express this discomfort until she herself was contacted for a follow-up by Mr AA (on the 7th of July) to see how she was and to see if she considered this matter as having been resolved. It was only at this point that the Complainant confirmed that she was still not happy and was uncomfortable with the idea of working alongside Mr. K. I am satisfied that the Complainant was told that she still had an option to bring either a workplace Grievance against Mr. K or to trigger an investigation under the Sexual Harassment Policy. The Complainant was not sure that she wanted to move to a more formal complaint process. Another two weeks passed, and I am satisfied that the Complainant did not trigger a formal procedure though she was aware that it was in her power to do so. I am satisfied that the complainant could have talked to AA at any time.

It also appears that Mr. AA, in the meantime, had taken on board the Complainant’s express desire not to work alongside Mr. K.  I understand that Mr. AA was also aware that the Complainant had previously expressed an interest in working at the city centre site being run by the Respondent company. She had articulated an interest in being positioned in the city site. He was looking at his options.

Unfortunately, somewhere in the middle of July the Complainant had an accident and hurt her leg which forced her to stay away on certified sick leave for an extended period of time.

The Respondent took the unusual step of proceeding with its own investigation under the sexual harassment policy. My sense is that the incident was sufficiently serious that it could not be left at the discretion of the Complainant to determine whether or not it should be looked at formally. In his evidence Mr. AA said he discussed this matter his HR Business partner RF and that she directed that this matter needed to be formally investigated.

On balance, I accept that as a responsible employer, the Respondent was right to feel it had to Investigate Mr. K’s behaviour (some of which had been readily admitted to by him) one way or another. The behaviour could not go unchecked. I can understand that when RF was notified of the fact that Mr. K had readily admitted to behaviours which amounted to harassment of a sexual nature she would have to have been concerned that an employee – who should be fully trained up in the dignity at work policies – would behave in such an unacceptable way. As time was moving on, the Employer opted to press ahead with its own Investigation and not wait for the Complainant who- from the Employer’s standpoint – seemed reluctant to trigger one. The Complainant was procrastinating, and the Employer went ahead. The Employer stepped into the shoes of the victim and becomes the complainant for the purposes of any Disciplinary process thereby triggered.

The Complainant was invited to give a Statement as part of this Employer-driven Investigation. Her statement, she told me in evidence, was taken on the 21st of July. I note that a letter provided to me by the Respondent (AA) after the hearing (of the WRC proceedings) purports to invite the Complainant to attend a meeting is dated the 12th of August 2021. The dates do not therefore tally. I further note that the said letter dated the 12th of August invites the Complainant to a witness meeting on the same date as the letter was sent, which strikes me as odd.

I had not seen this letter during the course of the hearing and (leaving the issue of the dates aside) I was concerned to know to what extent the Complainant had been advised that this investigation had been triggered by the Employer and that the Complainant could therefore not expect to be kept informed as to progress and outcome. Having now had sight of the letter, I can confirm that it is not explicitly clear that the Complainant’s role would be restricted to the making of a statement and thereafter she would not be involved.

As the Complainant was out sick her Employer, quite rightly, was giving her the peace and space to recover. However, as she had heard nothing about the Investigation for some time, the Complainant contacted Mr. AA and looked for the outcome. This was by email sent to Mr. AA on the 20th of September 2021. The Complainant was very upset to be told by a replying email that the Disciplinary investigation and outcome are confidential in circumstances where they were not triggered by the Complainant but by the Employer. Mr. AA reminds the Complainant that she did not progress with a formal Grievance against Mr. K, but that Management felt nonetheless obliged to investigate the allegations under the disciplinary policy. Clearly the Complainant felt very aggrieved that she was now on the outside of whatever steps were being taken and whatever outcome was reached. As the victim of the allegation, she felt disempowered and excluded.

I have sympathy for the Complainant in this regard. All three Respondent witnesses gave evidence that the Investigation and subsequent disciplinary proceedings are entirely confidential and that that is quite simply the company policy and not to be deviated from. I can understand this is a reasonable position to take, but it must sit in harmony with the Complainant’s right to know that her Employer – having seemingly hijacked the process - has vindicated her rights. In other words, I cannot see that any harm would have been done in giving the Complainant some limited details. At the very least HR should have reached out to talk her through what was happening and why it was happening. To be treated as a bystander has had the effect of compounding the sense of humiliation and degradation which she experienced. It has been a blow to her self-esteem.

As I understand it AA did not conduct the Disciplinary meeting/sanction. He completed the Investigation and moved the matter on to the relevant HR business Partner.

The Complainant in her reply to her Employer of the 21st of September points out that she was not a witness but was the injured party. The Complainant also asserts that she wasn’t taken seriously. This last allegation is not one which I would not agree with, as the Respondent felt that the allegations were of such a serious nature that they conducted the relevant process at a time when it believed the Complainant might not want to go down a formal route.

The Complainant also says in her email of 21st of September that she can no longer work in an environment that I don’t feel safe in but yet you expect me to go back and work with him.

In this same email the Complainant tenders her resignation.

Mr. AA is clearly surprised by the resignation and asks the Complainant to consider a new rostering arrangement he and her line Manager had intended discussing with her when she was certified as ready to return to work. In particular, the Complainant was being offered a role at the city site which it was generally understood was her preferred option. Whilst there may still have been some shifts to be covered at the industrial site there is no suggestion that the Complainant would or would not be expected to share a shift with Mr. K. In fact, it is not clear if Mr. K was even a consideration as the Complainant had no idea what the outcome of the disciplinary investigation was. Mr. AA states that the new arrangement can be discussed as and when the complainant is certified as fit to work. It is worth noting that by her immediate reply, the Complainant accepts this offer of work, with the new roster to be implemented as and when she was fit to return to work.

Then, three to four weeks later the Complainant (who continues to be outside the workplace) again writes to Mr. AA saying that she is resigning. In the intervening time the Complainant has come to the conclusion that she is being punished and that it does not sit well with her.

Again Mr. AA appears to be taken by surprise and replies by email saying You suggested a transfer to [the City site] and we have made arrangements to enable you to work at [the city site]. Have I misunderstood something?

It is quite clear that the Complainant was sexually harassed in the course of her Employment and contrary to Section 14(A) of the Act.

The Respondent submits (in it’s defence) that it has a clear-cut anti-harassment and bullying policy that was in place at the time of the Complainant’s employment. The Respondent has tendered evidence to demonstrate that all employees within the organisation have been thoroughly trained up in relation to this policy. Best practice consists of regular training with any updates or notifications changing or modifying the policy also being immediately communicated. On balance I am satisfied that the Manager AA behaved appropriately and solicitously from the moment that the Complainant approached him. He was sympathetic, as was appropriate, and gave the Complainant her choice of how she wanted to move forward. He kept in touch with the Complainant. In her evidence before me, the Complainant did not deny that she gave the impression that she was happy enough with the informal meeting chaired by AA. Some time later AA checked in with the Complainant to see how she was doing. It was only at this point that he became aware of the desire to perhaps go down the more formal route.

However, I do on balance think that there was a misstep on the part of the Defendant in denying the Complainant with any information concerning the Investigation and discrimination process which the company itself ultimately initiated into the matter. The Complainant was ever and always more than a mere witness. She was the victim, and her sensitivities should have been catered to. Ultimately it was this misstep or carelessness that soured the employment relationship for the Complainant. In this regard I am finding that the Respondent did not take all reasonable steps to prevent the Complainant from being treated differently in the workplace and as such treatment has occurred, to reverse the effects of it. I consider that an award of compensation is the appropriate form of redress in the circumstances of the present case.

I can find no evidence of victimisation in the sense of there being any adverse treatment of the employee by her employeras a reaction to a complaint of discrimination having been made by the employee to the employer. The proposal to bring the Complainant into the city centre site was intended to please the Complainant who had previously expressed a desire to work in said site.  Although she repeatedly stated she was fearful of having to work alongside Mr. K again there is no evidence that this would ever have happened.

Equally, I cannot find in favour of the Complainant concerning any claim of discriminatory constructive dismissal. The Complainant never returned not the workplace and never availed of the schedule the Respondent had eagerly made available to her. Resignation was not the only option open to the Complainant at that time.

Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House  -v-  Fox EED036 :

“Effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.

I must assess the appropriate award of redress having regard to the seriousness of the discrimination the effect on the Complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.

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

CA-00047718-001 – In accordance with my power under Section 82 of eh Employment Equality Acts I direct that the Respondent does pay to the Complainant the sum of €8,500.00 for the effects of the discrimination and sexual harassment. This compensation does not contain any element of remuneration and is therefore not subject to PAYE or PRSI.