Complainant

Respondent

Parties

Caroline Ahearne

Regional Foods Ltd Simpsons Supermarket

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Boyce Kelly Solicitors

 C. S. Kelly & Co. Solicitors

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-00040842-001

06/11/2020

The complainant worked as a retail assistant for the respondent.  The complainant alleges that during her period of employment she was sexually harassed by a fellow employee and the respondent failed to adequately address the issue.  At the hearing evidence was given by the complainant, Ms Caroline Aherne and Ms Natalia Trejakova, a former retail assistant with the respondent. Witnesses for the respondent were;  Ms Janet Donnell, Ms Marian Andani, Ms Michelle McCormack, and Managers Ms Grainne Carlin and Ms Marie O’Loughlin.  All evidence was given under oath/affirmation and witnesses were subject to cross examination. Submissions were received from both parties and considered by me.

The complainant, Ms Caroline Ahearne, was discriminated against at work due to her gender.  She was harassed, sexually harassed and sexually assaulted by a male work colleague over an extended period of time and her employer, the respondent, did nothing to investigate it or stop it.  A colleague of the complainant reported harassment and sexual harassment of several female staff members, including the complainant,  by this the male employee to their manager in 2019.  Nothing was done and the harassment and sexual harassment continued.  The complainant made a formal complaint that she was being so harassed, that threats to kill/harm her had been made by the same co-worker but the employer never investigated it.  When the co-worker heard that a complaint had been made he threatened to kill the complainant and her family.

The Complainant has submitted a complaint under Section 77 of the Employment Equality Act, 1998 (hereinafter referred to as EEA 1998). The Complainant alleges victimisation, harassment and sexual harassment by another employee while in the employment of the Respondent such as to constitute discrimination together with discrimination on the gender ground,

Harassment and Sexual Harassment are defined by Section 14(A) 7 of the EEA 1998 which states;

" In this section—

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

(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.

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 Complainant notes that the test to be applied is a subjective one and refers to the case of Nail Zone Ltd v A Worker EDA 1023 wherein it was stated;

"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."

In the within case the Complainant was harassed and sexually harassed by another employee,  during her employment which consisted of verbal comments and assault. The Complainant will rely upon the case of A Complainant v A Contract Cleaning Company DEC-E2004-068.

The Complainant submits that the Respondent has no defence and in particular the Complainant refers to the cases of Catlan Trading v McGuinness [2017] 28 E.L.R. 137. and An Employer v A Worker EDA0916 in circumstances where there was no harassment policy in place at the time or same was never provided to the Complainant until after multiple complaints.

The Complainant also relies upon section 74(2) of the EEA 1998 which provides;

"(2) 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."

The Complainant was victimised by making a complaint of discrimination and/or having indicated she was bringing proceedings.

The Complainant seeks redress pursuant to Section 77 of the EEA 1998.

Preliminary

The Complaint by the Complainant is Statute Barred and the W.R.C. has no jurisdiction to enter into a hearing thereof pursuant to the provisions of Section 21 of the Equal Status Act, 2000 and in particular Sub-Section (2) thereof. The Complainant did not notify the Respondent in accordance with law within the time fixed by Statute for initiating the claim and is statute barred in respect thereof.

The Complainant notified the Respondent by way of Form E.S.I Notification of a Claim on the 5th October, 2020 relating to an alleged incident, or incidents, the last of which was said to have occurred on the 19th May 2020. The said claim bears the W.R.C. reference CA-00040842.

The Respondent relies on Section 21 (2) of the Equal Status Act, 2000 which provides:

"(2) Before seeking redress under this section the complainant —

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of

(i) the nature of the allegation,

(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress by referring the case to the Director,

The Claimant's claim ought to be refused as the Claimant issued proceedings in the Circuit Court on 9th July, 2021 arising from the same alleged cause of action.

Substantive issue

Is it submitted the Claimant failed to notify or call the attention of the Respondent to the alleged behaviour of a co-employee either in a timely fashion, adequately, or at all such as to afford the Respondent a reasonable opportunity of dealing with the said allegations.

The Complainant failed to avail of the opportunity to return to work after the departure from the Respondent of the co-employee complained of and has failed to mitigate her alleged losses.

The Complainant declined and refused to process a formal complaint against the co-employee concerned, despite being invited to do so, and insisted that same be dealt with informally and anonymously. In the circumstances the Complainant's complaints that the Respondent failed to investigate or take appropriate steps against the co-employee (ALL OF WHICH ARE DENIED) are mis-founded.

The Complainant's allegations of harassment and sexual harassment against the Respondent are mis-founded. The Respondent was completely unaware of any such alleged behaviour by the co-employee until the Complainant got into an argument with the co-employee about the wearing of different types of Covid protection at work, whereupon she made complaints about the co-employee arguing with her and then for the first time introduced the allegations of harassment.

It is submitted that the case of Nail Zone Limited -v- A Worker E.D.A. 1023 is of limited relevance in these proceedings. Whether the test for harassment is decided as subjective or objective is a completely different question as to whether an employer is liable in respect of any such behaviour. Further, such questions are matters which first require to be established in evidence.

The Complainant's intended reliance on the case of A Complainant -v- A Contract Cleaning Company D.E.C. — E2004-068 will be disputed. The facts of the case are radically different as an employee of a third party security company were involved and the circumstances of the investigation that were criticised in the decision bear no relation whatsoever to the circumstances of this case.

The cases of Catlan Trading -v McGuinness (2017) 28 E.L.R. 137 and An Employer -v- A Worker E.DA. 0916 do not support the allegation made in the submission, where they are cited, and the decisions in those cases arose from their particular facts, which are very different significantly from those alleged by the Complainant.

The Complainant's submission concerning the interpretation of Section 14A of the E.E.A 1998 is incorrect. The Section does not define harassment as discrimination, as the Complainant mistakenly submits, but provides for circumstances in which, if proved in evidence, it may arise. Equally, the issue may not arise at all. This will be a matter of evidence and proof by the Complainant before any such interpretation can arise.

The Complainant's submission is simply to recite the terms of Section 74(2) of the E.E.A. of 1998 and baldly assert that she was victimised by the Respondent by reason of making a complaint of discrimination. The Complainant's submission fails to identify any particulars or any justification for such a submission, nor has any such allegation ever been made since the inception of the Complainant's claim outside the time permitted by statute. The Respondent objects to any attempt to introduce such a claim.

Preliminary issues

Requirement for ES1 Notification.  This requirement relates to proceedings under the Equal Status Act, 2000.  This Act was initially cited by the complainant in her complaint.  However, it is clear from the complaint that the allegations are comprehended by the Employment Equality Act, 1998 which does not require an ES1 notification.

The Employment Equality Act 1998 gives me the authority to hear the case and parallel proceedings in the Circuit Court which have not been concluded do not negate this authority. The Court of Appeal, in Culkin v. Sligo County Council [2017] 2 IR 326, has held that the Employment Equality Acts did not automatically prevent an individual from pursuing both a complaint of discrimination before the Workplace Relations Commission, and a claim of personal injuries arising from the same factual circumstances.

I therefore have jurisdiction to hear the case.

Substantive issue

The complainant alleges that she was subjected to both harassment and sexual harassment by a supervisor (Mr X) in the employ of the respondent.  

Harassment and Sexual Harassment are defined by Section 14(A) 7 of the Employment Equality Act, 1998 which states;

" In this section—

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

(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.

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 non-sexual harassment complained of related to an issue which arose regarding the wearing of appropriate protective clothing during COVID.  There was nothing in the evidence provided to suggest that this alleged harassment related to the complainant’s gender or any of the discriminatory grounds defined by the Act and therefore is outside my jurisdiction to consider under the Employment Equality Act. 

The primary allegation I am to consider is that of sexual harassment and victimisation.  The complainant in evidence stated that the issue of the sexual harassment of both her and other female employees was raised on their behalf by a member of staff, Ms Marian Andarni.  In evidence Ms Andarni denied that she so represented the staff concerned. Subsequently, the complainant reported the sexual harassment herself and alleges that the respondent did not investigate the complaint and that she was victimised for raising it. After raising the matter with the respondent the employee about whom she complained made serious threats against her. Evidence of these threats was given under oath by Ms Natalie Tretjakova a fellow employee of the complainant.  The respondent does not deny that this information was passed on to the appropriate manager.

Evidence was provided by witnesses called by the respondent to the effect that;

1)      The complainant was friendly Mr X and that she gave him a lift on a number of occasions.

2)      That the complainant and Mr X regularly told adult jokes to one another, and that Mr X taught the complainant expressions of a sexual nature in Polish and that she freely took part in such discussions.

3)     That when the issue was first raised with the Manager, Ms Grainne Carlin, Ms Carlin asked the complainant if she wished to make an informal or formal complaint and that the complainant said that she wished to make an informal complaint.

4)     That the investigation was ongoing when the complainant left on sick leave and could not be completed as she did not return.

Section 23 of the Employment Equality Act states as follows;

23.—(1) If, at a place where A is employed (in this section referred to as “the workplace”), or otherwise in the course of A's employment, B sexually harasses A and either—

(a) A and B are both employed at that place or by the same employer,

(b) B is A's employer, or

(c) B is a client, customer or other business contact of A's employer and the circumstances of the harassment are such that A's employer ought reasonably to have taken steps to prevent it,

then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment

There is conflicting evidence as to whether or not the complainant gave Mr X lifts on occasion.  Whether she did or didn’t, giving someone a lift cannot reasonably be construed as assenting to anything further in terms of sexual contact.  Similarly, whether or not the complainant engaged in telling adult jokes with Mr X, or any other similar type conversations, this cannot be construed as agreement to the type of physical contact imposed on the complainant by Mr X as detailed by the complainant in her sworn evidence.

A key reason put forward by Ms Carlin for the approach adopted by the respondent, when being informed of the incidents, was that the complainant stated that she wished the matter to be dealt with as an informal complaint.  This is denied by the complainant.  Ms Carlin’s request that the complaint be put in writing would be usually indicative of a procedure associated with a formal complaint.  Furthermore, when Ms Carlin raised the matter with Mr X (informally) his reaction was first to deny and secondly to issue serious threats against the complainant.  The purpose of an informal approach is to resolve the matter.  It must have been self-evident that her approach had not resolved the matter and Ms Carlin should not thereafter have been under any illusion that the matter could be resolved informally.  The threats made by Mr X of themselves should have been investigated as potentially gross misconduct and there is no evidence that any such investigation took place.   

The text on 10 June from the complainant to Ms Carlin made it clear that she wished to have the matters investigated as a formal complaint.   In summary, therefore, in light of the serious nature of the allegations made against Mr X, and his response to the initial contact on the matter, the respondent could not and should not have dealt with or continue to deal with the matter informally. While the complainant was absent on sick leave there was no evidence presented that the respondent informed her that the matter could not be investigated until she returned. Rather the respondent informed her circa 24 July that the investigation was ongoing. The respondent therefore, failed to adequately address the complaint of sexual harassment and the complainant was therefore discriminated against in relation to her conditions of employment on the gender grounds. The complainant was victimised by respondent through the actions of Mr X in making threats against her.

The was discriminated against in relation to her conditions of employment on the gender grounds and was victimised for bringing the complaint.

I order the respondent to pay the complainant the sum of €30,000 in compensation.

Sexual harassment, failure to adequately investigate