Complainant

Respondent

Anonymised Parties

A Sales Manager

A Multinational Company

Representatives

Represented by Desmond Ryan, BL, instructed by LK Shields Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00050776-001

23/05/2022

The complainant states that he commenced employment with the respondent on 1 July 2021 as an Area Sales Manager. He states that around lunchtime on that day an email was circulated to staff as a means to welcome him to the company. The complainant states that attached to the email was a questionnaire which his colleague stated was “10 questions to get to know you better”. The complainant states that the opening question was “What is your Drag Queen name?” The complainant states that he answered the question as being a new member of staff, he did not feel in a position to challenge such a question. He states that he found the question strange and inappropriate. The complainant states that in order to compensate for the anxiousness that the question had made him feel, he proceeded to answer the remaining questions in such a manner as to come across more “manly”. The complainant states that his photo was taken and together with the photo and the answers were sent out to the entire team in Ireland. The complainant states that this was a very uncomfortable experience and to be in such a position so early in his new employment was simply unforgivable.

The complainant states that he was horrified when an email containing those answers was circulated to all staff as some form of induction. The complainant felt that his sexuality was being put on show and highlighted for all to see and that it was an attempt to portray him as someone who was comfortable with his sexuality being the butt of internal jokes when in reality his sexuality should be irrelevant, private and not form any basis for an assessment of his character.

The complainant states that on 15 September 2021, during a working lunch, his colleague Mr. B seemed to be interested in getting to know him and were having a conversation during lunch. The complainant states that somehow it came up about Northern Ireland and how conservative it is and why the complainant left. During the conversation, the complainant states that Mr. B said “It must have been very difficult growing up in Northern Ireland as a gay man”, the complainant replied that it was difficult anywhere, but Northern Ireland was specifically challenging. The complainant states that he said “The most difficult thing was that his father did not take the news that he was gay very well, not well at all in fact”. The complainant said just as he said that his manager Ms. A intervened and said “Well I mean can you blame him”. His colleague Mr. B appeared to be shocked and jokingly said to Ms. A that she could not say such things and that he would pass the complainant the contact details for HR department.

The complainant states that he found this to be extremely inappropriate behaviour given his concerns that being a new employee, his sexuality may be an issue moving forward in particular with Ms. A being assigned as the complainant’s regional manager.

The complainant states that on 19 October 2021, in the carpark at their Dublin office, he was feeling unwell. His manager Ms. A said to him “You are always unwell”. Later that day in the boardroom, the complainant remarked that his eyes were red and feeling sore and were stinging him. The complainant states that in response Ms A said “Too much mascara at the weekend ? I bet you are fond of a bit of mascara at the weekend.” The complainant responded and said he did not understand and regardless that he had nothing against people who do. The complainant states that in response Ms. A said “Too gay for make-up, is that it ? Do you like those bears ?” (which the complainant states is a reference to manly gay men). The complainant states that when he complained to the company about the discriminatory treatment by Ms A, he felt he was subsequently subjected to micro management by Ms. A who was at this juncture sending a barrage of emails to the point where his colleague, Mr. B said to the complainant that he contacted Ms A and asked her to calm down as he could see that Ms A was putting way too much pressure on the complainant.

The complainant also states that Ms. A’s use of language towards him and other colleagues some of which had only commenced with the company has been anything but professional using swear words on a regular basis e.g. “fuck this” and “fuck that”, “have that done by fucking Friday”.  The complainant states that he found her treatment in this regard highly inappropriate and offensive. The complainant notes than in the outcome grievance report, Ms. C who investigated the complaint has accepted Ms. A’s account that she admits that she uses the word “feck” as opposed to “fuck”. The complainant states that on another occasion, Ms A referred to the complainant and his male colleague, Mr B as “Bitches” by saying “I am back Bitches”. The complainant states that he struggles to comprehend how a person with such a high-ranking role in a multi-national corporation could think it is in any way okay to refer to any employee as a “Bitch” but the complainant states that he felt if he was not present, Ms A would not have made the same statement and that it was another dig at his sexuality.       

The complainant states that on 26 November, he received the outcome of the grievance hearing and was shocked by its content. The complainant states that it would appear that the company assessed each complaint individually and in isolation from the other. The complainant states that in the  report it states “Where I have made findings that inappropriate language was used, I have concluded that the comments made were not with the intent to cause offence to you and that they were in no way motivated by any personal view  of your sexuality”. The complainant states that he finds it unnerving that a number of comments were admitted by Ms A and reduced to “misunderstanding” all on the complainant’s behalf. The complainant states that to apportion blame to him due to him continually misunderstanding comment after comment beggars belief and if the same were to be true then no employee would be in a position to challenge such bullying and harassment as it would be defended by simply saying that the victim has merely misunderstood the intent.

The complainant states that given the Outcome of the Grievance Investigation, he lost trust and confidence in the respondent and its ability to adequately deal with the offensive and degrading treatment he was subjected to by his manager. The complainant states that he was let down by management in the manner in which they dealt with the complaint and the lack of support given to him. The complainant states that he felt that the company were not taking the issues seriously and was very worried for his mental health and well-being and felt he had no other option but to resign his employment and did so on 25 January 2022. The complainant claims that he was constructively discriminatorily dismissed by the respondent.

The complainant has also made a claim of victimisation. In this regard, the complainant states that despite raising a query in January 2022 in order to be furnished with the details required to receive sickness benefit and for all outstanding payments to be made, the complainant was left waiting until 10 March 2022 for same. The complainant states that despite sending numerous emails over a period of months, he met fierce resistance in obtaining the information he required, receiving outstanding payments or having his requests satisfactorily resolved. The complainant states that he received correspondence from the company in late February 2022 stating that he owed the company €2600 in respect of an overpayment which he states caused untold stress to his health and mental well-being. In this regard, the complainant claims this treatment constitutes victimisation on grounds of his sexual orientation for confronting those who had subjected him to discrimination. 

The complainant states that the discrimination and harassment that he has sustained at the respondent company has had a profound and detrimental effect on him and his health. He states that to date he has been unable to source alternative employment and has undergone numerous counselling sessions and is still being treated by his health professionals for mental health issues which he states is a result of the effects of the harassment and discrimination he was subjected to by the respondent.         

Preliminary Issue

The respondent submits that the within complaint is statute barred not having been brought within six months from the date of the alleged discriminatory treatment and as a consequence the WRC does not have jurisdiction to hear the complaint. The respondent states that Complaint Form alleging discrimination on the ground of family status was received by the WRC on 23 May 2022; therefore any act complained of must have occurred on or after 24 November 2021. The respondent states that it is evident from the complainant’s Complaint Form that he purports to complain about alleged discriminatory acts which occurred on and after 1 July 2021. The respondent contends that the time period is statute barred and therefore cannot be the subject of an actionable complaint.

The respondent maintains that thereafter, the complainant only properly sought to add a complaint of discrimination on the basis of sexual orientation by email to the WRC on 4 July 2022, a period of 7 months and 8 days after the complainant’s stated most recent discrimination of 26 November 2021. The respondent submits that the complainant does not provide any reasons in his submissions or in his application for the inclusion of this ground or for this delay and accordingly argues that the complainant’s case on the basis of sexual orientation is statute barred.

The respondent states that the complainant states in his WRC Complaint Form that the most recent date of discrimination he experienced was on 26 November 2021. The respondent contends that this was the date on which the Outcome Investigation Report was provided to the complainant. The respondent does not accept that this report comprised, or could possibly comprise, a discriminatory act such as would open the door to the complainant’s reliance on otherwise statute barred matters.

Substantive Matter

The respondent states that the complainant commenced employment with the company on 1 July 2021 as an Area Sales Manager. It states that pursuant to the complainant’s contract of employment, he was afforded full access to a range of procedures including the respondent’s Global Grievance Policy, Fair Treatment Policy and “Right to Speak” Policy. The complainant initially contacted the HR Manager for the respondent Ms. D by Teams chat on 2 November 2021 in relation to an issue he wanted to raise. The respondent asserts that later that day the complainant and Ms. D had a Teams call in which Ms. D suggested the complainant reflect on the matter and consider speaking directly to the person with whom the complainant had a concern, Ms. A. Ms. A was the Country Manager for Ireland and the complainant’s overall supervisor at the time. The complainant sent Ms A an email later that day outlining these issues.

The respondent states that on foot of the email, Ms. A arranged a meeting between herself, the complainant and another colleague, Mr B for the purposes of discussing these concerns on 4 November 2021. At the meeting, the complainant was very upset. The respondent states that Ms. A apologised for her actions and attempted to make amends to resolve the matter with the complainant. The respondent states that the complainant was not receptive to this and said he would not come back to work and that he expected to be paid. The respondent states that the complainant raised a formal grievance on 12 November 2021 to Ms. D. In that correspondence, the complainant referenced a “homophobic” remark by Ms. A on 17 September 2021 and 19 October 2021. The respondent states that in the same grievance communication, the complainant referred to taking legal advice and to his view that he had “lost faith in the company as a whole”. The complainant further stated that “I feel I have no other choice but to take this situation to a tribunal on the basis of discrimination”. The respondent submits that these considerations are highly material in assessing whether the complaint has been brought to the WRC in time since no WRC complaint was made until 23 May 2022. The respondent states that the communication of 12 November 2021 provides irrefutable evidence that, as of that date, he was aware of the possibility of pursuing reliefs before the WRC but did not so until well outside the prescribed six month time limit.

The respondent states that a grievance investigation process was commenced on 17 November 2021 chaired by Ms. C, Regional Sales Vice President of the company. The investigation report found, inter alia, that there had been unprofessional practices which required change, but that this behaviour was not indicative of discrimination or concerted effort on the part of Ms. A or any of the respondent’s other employees to undermine or negatively impact the complainant. The report recommended mediation to assist the complainant in returning to work. The respondent states that the complainant was not satisfied with the outcome of the investigation but did not appeal it. The respondent states that the complainant resigned his employment on 25 January 2022, alleging constructive dismissal resulting from the finding of the grievance investigation. The respondent states that it very promptly asked the complainant to reconsider the resignation and advised him once again of the option available to him to appeal the grievance investigation outcome, which was declined by the complainant.

The respondent states that on foot of the complainant’s resignation, it reconciled monies owed to the complainant. The respondent found that the complainant had been overpaid sick leave entitlements during this process and engaged with the complainant regarding this overpayment. The respondent proposed offsetting this overpayment by deducting payments in relation to accrued but untaken annual leave, which was refused by the complainant.  The respondent states that it appropriately supported the complainant at all material times. It further contends that it had a meaningful and well devised set of policies in place to combat inappropriate behaviour in the workplace and that it implemented same effectively and fairly in dealing with the complaints made by the complainant.

The respondent submits that there is no basis to the complainant’s claim of constructive dismissal or victimisation.

Legal Arguments          

The respondent denies that it is vicariously liable for the alleged harassment/sexual harassment under section 15 of the Employment Equality Act 1998 – 2015 as amended. The respondent relies upon the terms of section 14A(2) and section 15(3) of the Acts, and the reasonable steps it has taken which comprise reasonably practicable attempts at preventing harassment in the workplace. The respondent states that these steps include the existence of its clear policies and the meaningful application of same, with the respondent taking all reasonable steps to ensure that precisely the type of conduct which is complained about here would not occur in the workplace.

The respondent states that the caselaw establishes clearly that the existence of an effective anti-harassment policy comprises reasonable steps within the requirements of section 15(3) of the Acts. The respondent refers to the decision of the Labour Court in the case of Catlan Trading Ltd t/a Marco Moreo v. McGuinness [2017] ELR 13, where the Labour Court emphasised that the test under the section is one of reasonable practicability and it is therefore necessary to ascertain whether a policy was in place at the time. The respondent submits that this decision demonstrates that the test is not a test which renders the employer absolutely liable for any such harassment which occurs.  The respondent submits in the within case, it operated its Grievance, Fair Treatment and Right to Speak policies consistently with the requirements of the Code of Practice (Employment Equality Act Code of Practice (Harassment) Order 2012), which were communicated to both the complainant and Ms. A.

The respondent refers to the decision by the Labour Court in A Boys Secondary School v. Two Female Teachers [AEE/01/9 January 2002] where it was stated “situations can arise in which an employer may adopt a course of action to avoid harassment of an employee but that harassment nonetheless occurs. In such cases, the employer could not be fixed with liability if the action taken, although unsuccessful, was in all the circumstances, as much as the employer could reasonably have been expected to do.” The respondent states that it relies upon the comprehensive, accessible and effective policies which it has at all material times had in place as well as the measures taken by it to put these policies into practice in its workplace. The respondent further cites the caselaw of (A Fast Food Crew Member v. A Fast Food Outlet ADJ 00008243), (A v. A Contract Cleaning Company DEC-E2004-068), (A Technical Support Agent v. A Contract Centre Company ADJ 00008084) in support of its case.

The respondent states that in the instant case, it was not aware of the complainant’s complaint, nor could it reasonably have been aware, until the complainant raised a grievance in November 2021. The respondent states that it acted upon the complainant’s complaint of harassment and sexual harassment immediately upon becoming aware of the matter by carrying out a thorough investigation in relation to the complaint following which elements of the complainant’s grievance were upheld. The respondent submits that this is consistent with the dicta in Limerick City Council v. Martin Mannering EDA 1220 in which the Labour Court considered the defence provided for in section 14A(2) of the Act on a plain reading of which it was stated that the defence would  “normally succeed or fail on the adequacy of the employer’s response to any complaint made by the victim.”  The respondent maintains that it has endeavoured at all times to act sensitively and supportively in relation to the complainant, having regard to the complaints made and without prejudicing the privacy rights of other employees. The respondent states that this reflects the comments of the Labour Court in A Hospital v. A Worker DEE029 in which it stated “the appropriate response to each case must be studied by the employer who should then put in place procedures proportionate with the circumstances.”

Time limit Issue

The respondent maintains that the complaint is statute barred as it was not lodged within the 6 months timeframe. It states that the utilisation of an internal grievance procedure does not amount to “reasonable cause” for delay. It cites the decision of the Labour Court in Brothers of Charity Services Galway v. O’ Toole EDA177 in which it was stated “The Court cannot accept that deploying the respondent’s internal procedures operated to prevent the complainant from initiating the within complaints within the statutory time limit provided under the Acts…” The respondent states that it does not accept that the grievance report comprised or could possibly comprise a discriminatory act such as would “open the door” to the complainant’s reliance on otherwise statute barred matters. The respondent states that having regard to the question of the length of time of the delay, the complainant was on constructive notice of the time limit by taking legal advice and should have been aware of the need to make a claim expeditiously.

The respondent states that while the complainant has provided a full medical file which shows the complainant’s serious mental health difficulties, including documentation from around July 2022 which contains narrative from Doctors’ notes that indicate the complainant’s reports of ill health from July 2021 onward; the respondent states that the notes do not provide contemporaneous evidence of the complainant’s illness from the time between July 2021 to November 2021. The respondent contends that they only provide evidence that in July 2022, the complainant described to both his GP and to several mental health providers in the Mater Hospital that he was suffering from mental illness from July 2021 onward. The respondent states that at this time, the complainant states that he attended his GP in Northern Ireland in December 2021 and was prescribed anti-depressant medication at that time, but the complainant has not furnished any direct records from his GP that show contemporaneous evidence of this attendance and his diagnosis and prescription. The respondent submits that these records also indicate that the complainant’s GP in Ireland, which he attended in early 2022, declined to provide anti-depressant medication to the complainant. The respondent states that in addition to these reports, the complainant also advises his medical care providers that he also resumed use of drugs as well as alcohol at the beginning of 2022.

The respondent asserts that it is settled law that ill health is not in itself sufficient to establish reasonable cause. The complainant must overcome the significantly higher obstacle of establishing that this comprises a disability which both explains and justifies the delay. The respondent submits that it is totally untenable for the complainant now to contend that, at a time when he was invoking a formal grievance procedure and continuing to maintain his employment with the respondent until his resignation, that he was somehow prevented from progressing his complaint to the WRC. The respondent cites the case of A Hospital Porter v. A Hospital ADJ 00024581 in support of its arguments in this regard.                

The respondent further submits that the complainant has not provided any evidence in respect of continuing discrimination pursuant to Section 77(5) and Section 77(6A) of the Acts.

Preliminary Issue in relation to Time-Limits

The complainant lodged his complaint with the WRC on 23 May 2022. The complainant stated in the form that the most recent date of discrimination was on 26 November 2021 which was the date the Outcome Investigation Report was provided to the complainant. 

I note that while the complainant inadvertently ticked the family status box on the complaint form, in the narrative piece, the complainant had outlined the allegations with regard to discrimination on the grounds of sexual orientation. Consequently, I find that the respondent was on notice of the complaint and did not suffer and prejudice in this regard. I am cognisant of the caselaw in Brannigan v Co Louth VEC wherein it stated that the complaint form is not a statutory form.  

The respondent submits that the claim is statute barred as the complainant complains about alleged discriminatory acts which occurred on or after 1 July 2021 and therefore the complaint is out of time and cannot be the subject of an actionable claim by the complainant.

The preliminary issue to be determined is whether or not I have jurisdiction to hear the complaint. Section 41(6) Workplace Relations Act 2015 states “subject to subsection (8) an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'.

Without prejudice to the above argument “reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech, the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll.” 

“It is the Court’s view that in considering if reasonable cause exists it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context of which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Claimant at the material time.  The Claimant’s failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability that had those circumstances not been present he would have initiated the claim on time. In the context in which the expression reasonable appears in the statute it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown, the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

In the case of A Bank v A Worker EDA104, the Labour Court stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay was an “irreducible minimum requirement”.

It is clear from the authorities that the test places the onus on the complainant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  

I am cognisant that the complainant is a lay litigant. I am satisfied based on the documentation submitted by the complainant from his treating medical professionals concerning the deterioration in his mental health, an admission to hospital and follow up treatment for anxiety and depression that the complainant has established reasonable cause for the delay in submitting his claim. In the circumstances, I extend the initial six months limitation period by a further six months to 24 May 2021.  Therefore, I find I have jurisdiction to investigate the within complaint.

The Law

Section 6(1) of the Employment Equality Acts provides that:

“discrimination shall be taken to occur where—

(a) a 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) (in this Act referred to as the ‘discriminatory grounds’)”

 Section 6(2) provides:

“As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are—

…….

 (d) that they are of different sexual orientation (in this Act referred to as “the

sexual orientation ground”),

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

…..

 (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

(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.

Section 14 A (7) provides:

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

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.

 (b) 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.”

The issues for decision by me are whether

(i)               the respondent harassed the complainant contrary to section 14A of the Employment Equality Acts, 1998 as amended on the sexual orientation ground,

(ii)              the complainant was constructively dismissed and

(iii)            the complainant was subjected to victimisation under the Acts.

In reaching my decision I have taken into consideration all the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.  

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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 him or her, it is for the Respondent to prove the contrary."

 In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act 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.

It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was harassed and discriminated against on the sexual orientation ground in relation to his conditions of employment.  It is only when he has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination and harassment raised.

The Labour Court in the case of Nail Zone Ltd and A Worker Determination No. EDA1023, defined the law in relation to harassment as follows:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (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. 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 purpose of the Acts.”

The complainant has claimed that he was harassed on the sexual orientation ground in relation to his conditions of employment. I note that these events have been corroborated for a large part by the complainant’s colleague Mr. B. Based on the documentation submitted in the notes of the investigation meetings, Ms A disputed entirely the context in which the comments were made and stated that it was banter and done in a joking manner. I note the complainant’s testimony where he states that following him making a complaint about the conduct of his manager Ms A, he was subjected to micro management by Ms A wherein Mr B informed the complainant that he contacted Ms A and asked her to calm down as he could see that Ms A was putting way too much pressure on the complainant.  I find the evidence of the complainant persuasive, in that, he was a very credible witness who gave cogent compelling testimony.

Having carefully examined the evidence adduced in the within claim, I am satisfied that the complainant has established that he was subjected to offensive comments during the course of his employment which violated his dignity at work. Likewise, I am satisfied that that the offensive comments constitutes less favourable treatment of the complainant on the sexual orientation ground as a person of a different sexual orientation would not have been called such offensive names. Applying the jurisprudence of the Labour Court in Nail Zone cited above, I find the treatment falls within the definition of harassment under section 14A of the Acts.  On the basis of the foregoing, I am satisfied that the complainant has established a prima facie case of harassment contrary to section 14A of the Employment Equality Acts.

Section 14A(2)(a) of the Employment Equality Acts, 1998 provides a statutory defence for an employer to show that it took such steps as are reasonably practicable to prevent harassment form occurring in the first place and in circumstances where such harassment has occurred that it took action to reverse its effect.  

In her report regarding the Grievance Hearing Outcome, Ms C, Sales Vice President of the company who carried out the investigation states “Where I have made findings that inappropriate language was used, I have concluded that the comments made were not with the intent to cause offence to you and that they were in no way motivated by any personal view of your sexuality”.  In relation to the welcome pack for new employees at the induction training, Ms. C found that some of the questions were indeed inappropriate and agreed that the questions would be modified. Ms C also recommended mediation between the complainant and Ms A to assist the complainant in his return to the workplace.  In her report, Ms. C states that she is aware that Ms. A expressed her sincere apologies for any distress she may have inadvertently caused the complainant. Ms. C further states in her report that she will be speaking with Ms A separately to discuss the findings in respect of the investigation and to address the issue with her going forward.

After very detailed probing on my part at the hearing from the respondent regarding what sanctions were made with regard to Ms A following the outcome of the Grievance Hearing and what specific actions were taken, the respondent stated that Ms. A was issued with a final written warning but has since left the company. In my opinion based on the evidence heard, I am not satisfied that the outcomes of the Grievance hearing were either adequate or comprehensive given the nature of the offensive comments and inappropriate language used by Ms. A who was a senior member of staff and the Country Manager for Ireland responsible for a number of employees. I find it difficult to reconcile the findings of Ms. C with the fact that the respondent issued Ms A with a final written warning.

I am not satisfied that the gravity and seriousness of the harassment which occurred and the impact this treatment had on the complainant was accurately reflected in the investigation report.  I do not accept the respondent’s contention that the language directed at the complainant was “banter” and “a joke”. The test is subjective and it is clear that the complainant did not receive the comments as banter.  I am satisfied that it is a breach of trust and duty of care towards the complainant to create and tolerate such a degrading and offensive work environment.  I find that the respondent did not offer adequate supports to the complainant following his reporting of the incidents and given the nature of the offensive treatment he was subjected to.  I also find that the induction questionnaire which is given to new employees to complete with the first question being “What is your drag queen name” to be inappropriate and ill-judged and had the potential of violating an individual’s dignity and creating a hostile and intimidating environment as it did in the case of the complainant.

While the complainant has in place policies in relation to bullying and harassment, I find that it is evident that there is the lack of meaningful communication of those policies to employees.  In all of the circumstances of the within complaint, I find that the statutory defence under Section 14A(7)(2)(a) is not available to the respondent. Therefore, I find that the respondent has failed to rebut the prima facie case of harassment on the sexual orientation ground raised by the complainant. On the basis of the foregoing, I find that the complainant has established a prima facie case of harassment on the sexual orientation ground in relation to his conditions of employment.

Constructive Discriminatory Dismissal

The complainant claims that he was subjected to a constructive discriminatory dismissal on the sexual orientation ground. The complainant states that following the outcome of the investigation meeting, he felt the company were not dealing with the issue and not taking the matter seriously and felt that he had no other option but to resign his employment. Having carefully examined this matter, I find that it was open to the complainant to appeal Ms. C’s findings but he chose not to do so. I find that the complainant acted prematurely with regard to resigning his position as he had not exhausted the grievance procedures. In all of the circumstances, I find that the complainant has not demonstrated a prima facie case of constructive discriminatory dismissal and therefore this aspect of the claim fails.

Victimisation

The complainant also made a claim that he was subjected to victimisation within the meaning of Section 74 of the Acts.

Section 74(2) of the Employment Equality Act provides:

“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”.

In relation to the complainant’s complaint that he was subjected to victimisation contrary to Section 74, the complainant must establish that his treatment was a reaction to having made a complaint or taken action in any of the matters outlined above from (a) to (g). The complainant states that despite raising a query in January in order to be furnished with the details required to receive sickness benefit and for all outstanding payments to be made, he was left waiting until 10 March 2022 for same. The complainant further states that despite sending numerous emails over a period of months, he met fierce resistance in obtaining the information he required, receiving outstanding payments or having his requests satisfactorily resolved. The complainant states that he received correspondence from the company in late February 2022 stating that he owed the company €2600 in respect of an overpayment which he states caused untold stress to his health and mental well-being. Given the documentation submitted and the evidence heard at the hearing. I am satisfied that the complainant has not provided evidence to demonstrate that he was victimised by the respondent. With regard to the overpayment matter, the respondent provided written documentation which showed that there was an issue with payroll which resulted in the overpayment to the complainant and there was a delay in the communication but no malicious intent on the part of the respondent. In all of the circumstances, I find that the complainant has not demonstrated that he was victimised by the respondent in terms of section 74 of the Acts.

I find that the complainant was discriminated against by the respondent on grounds of his sexual orientation in relation to his conditions of employment and subjected to harassment contrary to section 8(1)(b) of the Acts in terms of section 14A(7) of the Act.

I find that the complainant was not subjected to a constructive discriminatory dismissal in terms of section 8 of the Act.

I find that the complainant was not subjected to victimisation in terms of section 74(2) of the Act.

In accordance with Section 82 of the Act, I order the respondent to pay the complainant €25,000 in compensation for the breach of his right to dignity at work and the distress caused to him by the harassment. The award is arrived at 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” Von Colson CJEU C14/83.

The total award is redress for the infringement of the complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

Pursuant to Section 82-(1)(c) I order the respondent to review its Policy and ensure it takes into account the provisions of S.I. No. 208 of 2012 Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.

This Policy should be effectively communicated to all staff including senior management and training should be provided to ensure familiarity with its contents, on induction, and at regular intervals thereafter. This action is to be carried out within 4 months of the date of this decision.

Harassment, sexual orientation, victimisation, conditions of employment, constructive dismissal