Complainant

Respondent

Parties

Catherine  Kelly

An Post

Representatives

Cillian McGovern B.L. instructed by  Crushell & Co

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-00051515-001

04/07/2022

The complainant alleges she was sexually harassed and the respondent failed to deal with her complaint in accordance with their procedures. The respondent counters that they did follow their procedures and dealt with the matter accordingly.

The complainant commenced employment with the respondent on 3 April 2017, as a postal operative, and is still employed by the respondent at a salary of €515 per week.

The complainant submits she was inappropriately touched by a postal sorter (Mr A) on 22 February 2022. She was talking to a colleague (Ms B) when Mr A came up behind her and put his hand on the inside of her right thigh and moved it down towards her knee. The complainant says she pushed him away and shouted “I warned you before not to put your hands on me like that.” Mr A responded by saying “what, I only did this” and then proceeded to do the same thing again. The complainant told her colleague what had happened and she encouraged the complainant to go forward. The complainant decided not to report the incident that day.

The complainant submits Mr A had done this before when she was sitting at a table and Mr A dropped something under the table and went to retrieve it. He then proceeded to feel the complainant’s leg. She complainant confronted Mr A the following day and he brushed it off.

On 24 February Mr A approached the complainant in work and she asked him to leave her alone. He responded by asking why and stating he hadn’t done anything wrong. She then had an argument with Mr A and told him that what he had done had been caught on camera. A fellow worker (Mr C) came over and the complainant told him what had happened. He said he would go and talk to Mr A. Mr C came back after talking to Mr A and told her he had said he only touched her in a friendly way. Mr C, as a union rep, told the complainant he would represent her. The complainant reported the incident to the floor manager, Mr D, who reported it to floor operations.

On 25 February the complainant made her statement; she gave a copy to Mr C and another copy to Mr E, floor operations.  She asked Mr E for a copy of the company’s Dignity at Work Policy and he said he had no idea what it was.

A week later Mr C said he could not represent her as he was a witness. On 2 March the complainant asked the head union representative (Mr F) to represent her and he agreed.

The following week someone else from floor operations (Mr G) suggested they could talk to Mr A unofficially. The complainant said she had tried this before, to no avail, and so did not want to speak to him unofficially again. Mr G said her problem was she had never reported the earlier incident.

On 4 March Mr E told the complainant that Ms B had given a statement saying she had not seen the incident, but she had seen the shocked look on the complainant’s face. Mr E told her the likely result of the investigation would be inconclusive. Ms B approached the complainant and told her that Mr E had pressured her to make a statement, and told her it was all on her head.

On 8 March Mr A gave a statement of his version of events and merely stated: “I have no knowledge about the alleged incident”.

The complainant asked for the witness statements a number of times but received nothing.

In the middle of May the complainant was told the investigation was inconclusive.

The complainant was never interviewed.

On 25 May the complainant finally received the statements.

The complainant made efforts to talk to someone from HR and it was not until 3 June that she spoke to Ms H from HR and they met on 9 June.

The complainant submits the investigation was unsatisfactory, she was forced to continue to work with the man who sexually assaulted her and to listen to him telling everyone that she had lied and he had been proved innocent. The complainant moved buildings to try and get away from all the gossiping.

The complainant submits the respondent did not follow their own procedures set out in their employee handbook.

The respondent submits the incident on 22 February 2022 was fully investigated under An Post  Dignity at Work Policy.

The complainant and a female colleague were in the parcel repairs area when they were approached by a male member of staff (Mr A). The complainant alleges Mr A inappropriately made contact with her and that her female colleague (Ms B) witnessed the incident. On 24 February the complainant made an oral report of the alleged incident to her manager (Mr D), who requested she document the details, dates, times and location of the alleged incident. A letter outlining the full details of the incident was submitted by the complainant and CCTV of the incident was isolated and preserved to assist in the investigation. On 22 March 2022 the respondent obtained a statement from Ms B. The allegations were put to Mr A and he made a statement dated 8 March 2022, stating he had no knowledge of the alleged incident.

Mr E, who carried out the investigation, met with her on 12 May 2022 to advise her of the outcome of the investigation. Mr E found that the CCTV did show Mr A speaking with the complainant but did not show any inappropriate contact. Ms B had not provided any evidence to support the complainant’s allegation, she had observed the complainant’s shocked reaction, but had not witnessed the actual altercation. Mr E therefore found that based on the evidence available, there was insufficient evidence to uphold the complaint.

The complainant appealed the outcome to the HR Manager, Ms H. The appeal contained new evidence. Ms B refused to co-operate with this investigation. Also, Mr C’s recollection of a conversation he had with the complainant was completely at odds with the complainant’s version. Ms H also met with Mr A who confirmed the statement he made on 8 March 2022. He was shown the CCTV and he said nothing had happened and that he had not touched the complainant inappropriately. Mr E upheld the original outcome; that there was insufficient evidence to uphold the allegation. She also instructed Mr A not to enter the complainant’s personal space or engage with her in the future.

The respondent submits the CCTV appear to show the complainant and Mr A continuing to laugh and joke after the alleged incident, and no shock is evident from the CCTV coverage.

Section 14A of the Employment Equality Act states:

“(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, …

and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it

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

(i) such harassment has occurred, and

(ii) either —

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

(II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

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

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

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

In considering the allegation of Sexual Harassment I have to consider if the respondent “took such steps as are reasonably practicable” to deal with allegation of sexual harassment. The complainant reported the incident on 22 February 2022 to her manager Mr D and he asked her to put it in writing, which she did. This was passed to Mr E who carried out an investigation.  He obtained statements from Mr A and Ms B. He then considered these statements, together with the complainant’s statement. He also reviewed the CCTV footage He did not meet the complainant as part of his investigation until 12 May 2022 when he informed her of the outcome. The complainant had not seen the other statements at this time.

In direct evidence at the hearing Mr E confirmed he carried out the investigation on his own and did not interview anyone, he said he considered the statements were sufficient. It is also clear that he was not appointed by the respondent to carry out this investigation but took it upon himself to do so. When asked about Mr A’s statement he conceded, looking back, it would have been better to probe him more.

The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 states:

“The procedure should provide that investigation of any complaint will be handled with fairness, sensitivity and with due respect for the rights of both the complainant and the alleged perpetrator. The investigation should be, and be perceived as, independent and objective: to this end it is essential that the principles of natural justice be adhered to.

Those carrying out the investigation should not be connected with the allegation in any way. It is preferable that at least two people should investigate a complaint but it is acknowledged that this may not always be practicable. Such an investigation team should have gender balance and ideally should seek to ensure diversity across the other eight grounds. All of those on the investigation team should have received appropriate training. Every effort should be made to resolve the complaint speedily. External assistance may be necessary to deal with complaints in some circumstances so as to ensure impartiality, objectivity and fairness in an investigation.

To ensure procedural fairness both the complainant and alleged perpetrator should be informed of the following:

— what the formal procedure entails and the relevant time frame

— that both parties have the right to be accompanied and/or represented, by a representative, trade union representative, a friend or colleague

— that the complaint should be in writing and that the alleged perpetrator will be given full details in writing of the nature of the complaint including written statements and any other documentation or evidence including witness statements, interview notes or records of meetings held with the witnesses

— that the alleged perpetrator will be given time to consider the documentation and an opportunity to respond

— that confidentiality will be maintained throughout any investigation to the greatest extent consistent with the requirements of a fair investigation

— that a written record will be kept of all meetings and investigations

— that the investigation, having considered all of the evidence before it and the representations made to it, will produce a written report to both parties outlining its findings and the reasons for its final decision

— if the complaint is upheld against an employee the report will recommend whether the organisation’s disciplinary procedure should be invoked

— if the complaint is upheld against a nonemployee the report should recommend appropriate sanctions against the nonemployee or his/her employer which could extend where appropriate to:

• exclusion of the individual from premises

• suspension or termination of service

• suspension or termination of a supply

service or other contract

• the report may also, or as an alternative, recommend other actions such as training, or more effective promotion of the organisation’s policy on sexual harassment and harassment.

— if a right of appeal exists both parties should be informed of it and the time limits and procedures involved

Both parties to a complaint should receive support (for example, counselling or other intervention as appropriate) and regular review following the investigation as the process is likely to result in tension and disharmony between the parties, co-employees, teams, etc, at least in the short-term.

It is the responsibility of the employer to provide for proper notifications regarding the investigation process and for a fair determination of the complaint. What is required in any particular instance will depend on the circumstances and/or complexity of the case and may require the adaptation of the procedures.”

It is clear that the investigation of the complaint made by the complainant falls very short of what is set out in the Code of Practice and what is necessary to avail of the defence under section 14A of the Employment Equality Act.

The complainant appealed the outcome on 1 June 2022. An appeal meeting was held by Ms H on 9 June 2022, with Mr E in attendance. Given that he had carried out the investigation it is unclear why it was thought appropriate for him to be present. At the hearing he said he was there as ‘note taker’. The notes of the meeting show that several issues were discussed, mainly answers to questions raised by the complainant. However, there is no indication the complainant was asked about the events that led to her making the complaint. Nor was the CCTV footage reviewed. It appears that Ms H was relying on the complainant’s statement.

Mr A was interviewed as part of the appeal on 23 June 2022, again Mr E was present. He was shown the CCTV footage and he said he did not touch the complainant inappropriately.

Ms H tried to include Ms B as part of the investigation but she was on sick leave and did not respond to any effort for her be interviewed or to answer questions in a written format, as part of the appeal.

On 2 August Ms H delivered her outcome of investigation letter to the complainant. She upheld the outcome of the original investigation; that there was insufficient evidence to confirm that Mr A made physical contact with you and she concluded that “the evidence accumulated in the original investigation, along with the additional statements I have secured, do not corroborate your version of events”.

The investigation carried out by Ms H did involve interviewing the complainant and Mr A, but the notes of both interviews do not indicate there was a rigorous discussion of events on 22 February. Indeed, the complainant was not shown the CCTV footage, which Mr A was. Also, the separateness of the appeal from the initial investigation was comprised by the presence of Mr E at these interviews. He had made the initial finding and was now taking part in the appeal.

 The CCTV footage was viewed at the hearing and it shows Mr A coming in close proximity to the complainant. Because of the position of the camera it does not show if physical contact took place. It does show the complainant twice pushing.

Given the complainant’s statement and the CCTV footage showing close physical proximity this was clearly a complaint that should have been taken seriously and investigated in accordance with the respondent’s Dignity at Work, Anti Bullying & Harassment Policy for An Post. As I have set out above there are many deficiencies in the initial investigation and the appeal investigation. I therefore find the respondent cannot avail of the defence set out in section 14A. This is a large organisation with the resources to ensure their policies are complied with. It is unclear why local managers deemed it appropriate to appoint themselves to deal with such a complaint locally, with virtually no reference to HR. Also, I do not understand why HR allowed the person who carried out the initial flawed investigation to participate in the appeal process.

I therefore find that the respondent fails in their defence under section 14A and the complainant succeeds in her complaint of Sexual Harassment.

For the reasons given above I find that the complainant succeeds in her complaint of sexual harassment.

In assessing the compensation to be awarded to the Complainant I recognise the respondent does have a Dignity at Work but conclude how poorly this policy was followed, both at investigation and appeal stage. I have decided to make the maximum award of two years’ remuneration both for the reasons outlined in the preceding paragraph and having regard to the effects of the discrimination on the Complainant, also outlined above, as well as the findings in Von Colson and Kamann (1984) ECR 1891 that awards should be effective, proportionate and dissuasive. The award is €53,560.

The evidence given by the respondent witnesses shows a lack of awareness of the policy and the lack of training. I, therefore, direct the respondent that all supervisory and management staff receive full training in their Dignity At Work – Anti Bullying Policy. That training must include full guidance and practical steps in how a complaint should be dealt with. A record must be kept of all those who receive this training. All new supervisors and managers must receive this training as part of their induction programme.

Sexual Harassment – inadequate investigation and appeal