Complainant

Respondent

Parties

Shannon Avril  Holland

Ability West

Complainant

Respondent

Anonymised Parties

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Representatives

Jason O' Sullivan J.O.S Solicitors

Aisling McDevitt TO ISSUE BY EMAIL TO: cases@ibec.ie

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-00038097-001

19/06/2020

The Respondent operates in the west of Ireland providing residential and respite care services to intellectually disabled children and adults. The Complainant commenced employment with the Respondent on  4/9/2017 and her employment terminated on 28/2/21. The Complainant was earning €2,300 net/month.

The Complainant referred complaints to the WRC in respect of gender discrimination, sexual harassment and victimisation and these complaints are filed and dealt with under this ADJ-00028742. An additional complaint of unfair (constructive) dismissal is filed under ADJ-00032309.  Although the complaints were dealt with together at the adjudication hearing, the decisions are filed separately under their respective ADJ reference numbers.

The Respondent stated that the complaints in relation to sexual harassment and gender discrimination were out of time. In that regard the Respondent outlined that the person/Line Manager against whom the complaints were made was placed on administrative leave on 18 December 2019 whilst the complaint to the WRC was received over six months later on 19 June 2020. The Complainant objected to this on the basis that the workplace investigation was ongoing in 2020, that the Complainant was awaiting the outcome of this investigation which she did not receive until 29 June 2020 was that it was not known to her whether or not the alleged perpetrator/Line Manager would return to the workplace. The Complainant argued there was reasonable cause to extend the time limit by the further six months permitted by Section 77 of the Employment Equality Act [1998-2022]. Having heard the submissions in relation to time, I advised the parties that I would hear the case and reserve my position pending issue of my decision.

The Respondent made an application to have the adjudication hearing held in private. This was opposed by the Complainant who stated she was not seeking to anonymise the names of the parties.  Having heard submissions on the matter, I determined that the names of the parties to the case would be public and that I would identify other persons by reference to their employment positions.

The Complainant withdrew her complaint of victimisation.

The Complainant outlined her career history with the Respondent leading to her being appointed as a senior instructor on full-time/35 hours/week. The Complainant also outlined her everyday workplace interactions with her Line Manager. She  stated that from January 2018 she encountered problems with her Line Manager including in relation to his management practices, that he appeared to be under the influence of alcohol in the workplace, was not signing protocols and that he often missed meetings, didn’t reply to emails and that she “never knew where he was”. The Complainant stated that she recalled an example of when the Line Manager was under the influence of alcohol when he crashed the Respondent’s bus and also when he wrote “sex & drugs” on a petty cash slip. The Complainant stated that her Line Manager was unprofessional, that he made crude jokes and made her feel uncomfortable. She stated that she was most seriously affected when her Line Manager began to treat in a manner which amounted to unwanted sexual harassment,  that she felt embarrassed and didn’t know what to reply. In this regard, the Complainant outlined her experiences including:

-        That she received unwanted text messages of a sexual and highly suggestive nature from the Line Manager on 19 and 20 May 2019 which included  “Y best be in a skimpy c through outfit” and “y owe me a bj….”;

-        That during a workday in the Summer of 2019, the Line Manager placed his hands on her hips from behind which action she stated was “unsolicited, unwelcome and extremely upsetting”;

-        That she received other highly inappropriate text messages from the Line Manager in 2019 which included references to “handjob”, to asking whether she wanted “some toe curling orgasmic sex” to saying “y owe me” and a text “Is that a clapping sound or hand job”.

The Complainant stated the Line Manager’s behaviour had a severe and distressing impact on her. The Complainant stated that her sleep was affected and that she suffered anxiety and stress. She attended her GP and received treatment and medication. The Complainant stated that she was also obliged to seek psychiatric treatment from a consultant psychiatrist at Galway University Hospital. The Complainant stated that she also took sick leave from work.

The Complainant stated that initially she did not report the Line Manager’s behaviour as she was afraid of the consequences. The Complainant continued to suffer stress in 2019 and availed of the Respondent’s Employee Assistance Programme (EAP). She confided in a former colleague and stated that she heard that another member of staff had a similar grievance. The Complainant stated that between July 2020 and March 2022 she  spent €2660 on private therapy sessions.

On 15 December 2019 the Complainant submitted a formal complaint under the Respondent’s “Dignity, Respect and Equality in the Workplace” policy (DR&EW). The Respondent's DIrector of HR responded on 6 January 2020 advising that an investigation would be conducted by an independent HR Consultant and including the investigation’s Terms of Reference. The Complainant stated that her first interview was within a month on 15/1/2020. The Complainant stated that the investigation process caused her uncertainty and anxiety and she took issue with the length of time it took to complete which was much longer than the ten working days stipulated in the Respondent’s policy. She also complained of the failure to keep her appraised of developments throughout the process including the lack of feedback on the appeal stage. The Complainant stated that she never received the full written investigation report until the WRC adjudication process commenced and only received the outcome via email on 29 June 2020. The Complainant stated that until June 2020 she was not formally made aware that the Line Manager “had been let go because of sexual harassment”.

The Complainant stated that during the investigation and following the outcome of the process, she had to work alongside the Line Manager’s partner, notwithstanding that the Respondent was on notice of this interpersonal relationship and the difficulties this caused her. The Complainant stated that the Line Manager’s partner had made a number of allegations against her in the course of the investigation. The Complainant stated that she was nervous going to work, that she lived near the Line Manager’s partners house and frequently saw the Line Manager’s car outside the house. She stated this caused her to walk a different route as she “was anxious that she would be followed” by the Line Manager.

The Complainant stated that there was one group counselling session provided to employees to deal with the fallout of the investigation and that the Line Manager’s partner was present at this session which the Complainant experienced as “terrible”. The Complainant stated that this counselling session was conducted by the Respondent’s psychologist. The Complainant stated that the psychologist explained at the meeting that the Line Manager had been dismissed due to sexual harassment and that nobody knew what to say in response. She stated that she remained very quiet during this session.

The Complainant stated that there was no communication from HR following the termination of the Line Manager’s employment nor was there any attempt to ensure that she felt supported in the workplace. The Complainant stated that a friend of the Line Managers took over his management position. The Complainant stated that she did not feel she could make a further complaint and that arising from what occurred she felt there was no opportunity for career progression. The Complainant stated that she applied for different jobs in other centres in order to remove herself “from the hostile work environment” but was unsuccessful and was not given the reasons why. The Complainant stated that she became very anxious at work, that she was not sleeping and experienced a worsening depression. The Complainant stated that she told her new Line Manager that she couldn’t continue working with the former Line Manager’s partner.

In her evidence the Complainant stated that when she was appointed she received a contract of employment and a folder of policies and that she was told to go through the policies and sign off on them. She stated that she received no training on the policies, no training on sexual harassment either prior to or after her complaint nor any other support.

The Complainant was cross examined on her evidence. Under cross examination she accepted that the Respondent had a policy on sexual harassment which was available to her and that she did not progress her complaints until December 2019. The Complainant accepted that her preferred outcome was to stay working for the Respondent but not to work with the Line Manager. The Complainant accepted under cross examination that the Respondent communicated with her in relation to her complaint on 16, 17 and 18 December 2019 and on 6 January 2020.  The Complainant also accepted under cross examination that she received the transcripts of interviews and minutes of meetings in the course of the investigation process and was afforded the right of response. She also accepted that she was afforded representation throughout the investigation process. The Complainant accepted that she received preliminary findings of the investigation report on 22 April 2020 and responded on 8 May 2020. It was put to her that she was appraised of the investigation outcome at the meeting with the HR Director on 8 June 2020 and informed that her allegations of sexual harassment were upheld. The Complainant also accepted that the Covid-19 pandemic impacted on the Respondent given the nature of the service it provided. She also confirmed that she did not pursue complaints against any other employee.

It is the position of the Complainant that she was subjected to unwanted sexual harassment and gender discrimination in the workplace - in the nature of verbal exchanges, text messages and physical contact of a sexual nature - contrary to the Employment Equality Act [1998-2022] and SI 208/2012 – ie the Code of Practice (Harassment) Order 2012. The Complainant stated that she felt undermined, isolated, that her dignity was seriously affected, that the impact on her was profound, that her confidence was affected, she became withdrawn and suffers from anxiety. The Complainant stated that the Respondent did not take any/adequate measures to prevent or remediate what had occurred including the provision of training, supports or follow up. It was not the case that matters could be presumed to have been addressed because the Line Manager had left. The Complainant stated that she could not go through another complaints procedure and that the situation became so intolerable she considered she had no alternative but to submit her notice of resignation on 1 February 2021 effective from 28 February 2021.  The Complainant stated that when she explained that she was leaving for mental health reasons, she was asked “if they could do anything for her” and that that was the extent of the assistance offered. The Complainant stated that due to the effects of what occurred on her mental health she was no longer in employment.

The Respondent outlined the services it provides ranging from daily to residential, respite, outreach services, community supports and rehabilitative training. The Respondent stated that it was primarily funded by the HSE with an additional small amount of funding from the Department of Education. It also engaged in fundraising. The Respondent stated that it had 645 employees and 590 service users.

The Respondent outlined its Dignity, Respect and Equality in the Workplace Policy (DR&EW) which it stated was available in the staff manual and formed part of the Complainant’s terms and conditions of employment.  The Respondent stated that its policy makes clear that bullying, harassment and sexual harassment in all its forms was unacceptable and would not be tolerated.

The Respondent outlined the steps it took in response to the Complainant’s complaint against her Line Manager of 15 December 2019 the substance of which it stated could be divided into two categories – namely allegations of inappropriate conduct/performance on the part of the Line Manager and allegations of inappropriate text messages and sexual harassment. It stated that another female member of staff also raised a complaint against the Line Manager. The Respondent stated that the allegations made by the Complainant were most concerning and were treated with the utmost seriousness. The Respondent stated that its DIrector of HR offered the Complainant mediation – which she declined, obtained copies of the text messages in question and referred the Complainant to its Employee Assistance Programme.  

The Respondent stated that it appointed an independent Investigator/HR Consultant to conduct the investigation and that pending same, the Line Manager was placed on administrative leave which measure was communicated to the Complainant by letter of 18 December 2019. The Respondent referred to its letter to the Complainant of 6 January 2020 which enclosed the Terms of Reference for the investigation and informed the Complainant of her right to representation.

The Respondent outlined the various interviews conducted in the course of the investigation. The Respondent stated that both it and the Investigator regarded the investigation as a priority but that the Covid-19 pandemic caused delays and challenges. The Respondent stated that its DIrector of HR maintained contact with the Complainant throughout the period of the investigation. It stated that a preliminary investigation report was issued to the Line Manager on 22 April 2024 and that the Line Manager’s response to the preliminary report was shared with the Complainant and she responded on 8 May 2020. Thereafter a final report was issued and the Respondent stated that each finding was communicated to the Complainant “in detail” at a meeting which she attended with the Director of HR on 8 June 2020.

In respect of sexual harassment the Investigator reached the following conclusion:

“Having considered all of the evidence in this aspect of the complaint and further examined it in the context of the DR&EW policy (and the broader legal framework) it is concluded that [the Line Manager’s] actions in sending text messages of a sexual nature to Shannon in May and August 2019 amounted to sexual harassment”

The Investigator also reached some negative conclusions in respect of the complaints concerning the performance, conduct or management practices of the Line Manager. The Investigator also concluded that the Line Manager had a “strong working relationship with [a specific colleague] but the evidence indicates that it is most likely that this relationship extends beyond this…..”.

The Respondent stated that its Director of HR advised the Complainant at the meeting on 8 June 2020 that he remained available to her should she require any support or to discuss any issues. On 29 June 2020 the Respondent notified the Complainant by email that the Line Manager’s employment had been terminated following a disciplinary process and that he had a right to appeal this sanction. The Line Manager did not return to his employment with the Respondent.

The Respondent’s Director of HR gave evidence and was cross examined. He stated that he took the Complainant’s allegations very seriously and acted with sincerity. He outlined his responses and the investigation process and explained the impact of various factors on the investigation time-line such as the Christmas vacation period of 2019, Covid-19 and the fact that there were two parallel investigations ongoing against the same Line Manager. In all the circumstances he disputed there was delay. The Director stated that he engaged with the Complainant, that his door was always open and he rejected that there was any lack of support.

The Director outlined various promoted positions the Complainant unsuccessfully applied for in 2020 however he stated that the Complainant never sought a transfer within the Respondent's operation. The DIrector outlined measures taken by the Respondent following the investigation including the termination of the Complainant’s former Line Manager, his replacement by an experienced person and the organisation of a planning day in July 2020 with a member of the Respondent’s psychology team who he stated was a skilled support contact person under the DR&EW policy. The Director stated that had there been any change following an appeal by the Line Manager this would have been relayed to the Complainant. The Director stated that had there been a further complaint by the Complainant in respect of any other employee it would have been investigated.

Under cross-examination the Director stated that the Respondent’s DR&EW policy was implemented to the best of his ability and that an appropriate approach was taken. In response to a question on whether any training was provided to the Line Manager on sexual harassment, the Director stated that he did not know – “not to [his] knowledge”, that there was “no record of training” and that with “benefit of hindsight” training should have been provided. He stated that all staff were required to familiarise themselves with the Respondent’s policy but under questioning he accepted that it was “possible [the] perpetrator didn’t familiarise himself with policy”. The Director also stated under cross examination that he had no knowledge of any training provided to other staff on sexual harassment prior to the Complainant’s complaint.

The Director was questioned and whether he was aware that the Complainant’s Line Manager had a friendly relationship with the person who replaced him and with another member of staff. In response he stated that there was no further complaint from the Complainant in relation to any other employee and that he had to exercise balance. In relation to the provision of the full investigation report to the Complainant, the Director stated that he acted on the advice of HR but that he was satisfied the outcome and findings of the report had been fully communicated to the Complainant. Under cross-examination he stated that he agreed with the findings of the investigation report and that had he been requested by the EAP he would have supported the provision of additional sessions.

In relation to the planning day with the psychologist in July 2020, he stated that this was an “attempt to unwind tension”, that he did not organise any other intervention and that training was difficult in 2020 as many employees were working remotely. Under cross examination the Director accepted that there was no structure such as a contact person put in place to support the Complainant. The Director was questioned on the Respondent’s overall management structure and he acknowledged there were deficiencies, that each of its services has its own manager but that the Respondent had moved to appoint an additional Director.

In relation to the Complainant’s notice of resignation of 1 February 2021, the HR Director stated that he replied by letter of 2 February 2021 wherein he urged the Complainant “to reflect on and reconsider [her] decision…..[and advised that]…Ability West is open to supporting you in any way we can to continuing your career across our services within Ability West.”

It is the position of the Respondent that it discharged its obligations as an employer to do what was reasonably practicable to prevent and deal with harassment in the workplace or in the course of employment. The Respondent that it’s DR&EW policy was evidence of this and that the policy demonstrated that the Respondent took reasonable and practical steps including the placing of the Line Manager on administrative leave to prevent and reverse the effects of any harassment and prevent the Complainant from being treated differently and/or discriminated against. The Respondent stated that the Complainant raised no other complaints and that the first it knew that the Complainant was feeling uncomfortable in the presence of the Line Manager’s alleged partner was when it received the Complainant’s WRC submission on 8 March 2022. The Respondent maintained that its HR Director responded to the Complainant’s complaint in a timely manner and also reached out to the Complainant at the meeting on 8 June 2020. Notwithstanding, the Complainant did not make the Respondent aware of any allegation regarding her interactions with any other employee and accordingly the Respondent “was not given any opportunity to explore investigate or remedy same”.  It stated that the complaints regarding management deficiencies related to the Line Manager only.

Preliminary Issue:

Section 77 of the Employment Equality Act [1998-2022] provides as follows in relation to the time limit for making a complaint to the WRC. A similar provision is contained in Section 41(6) of the Workplace Relations Act [2015 - 2021].

“77. A person who claims—

(a)   to have been discriminated against or subjected to victimisation……

(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(5)(b) On application by a complainant Director General of the Workplace Relations Commission……may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly”.

I note from the documentation that the HR Director’s letter of 18 December 2019 advised the Complainant that the Line Manager was being placed on administrative leave “with immediate effect”. The complaint to the WRC was received on 19 June 2020 – which clearly was after six months had elapsed from the Line Manager’s departure from the workplace. In relation to whether I should exercise my jurisdiction and extend the time limit to 12 months for reasonable cause, the Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows:

“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 in 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 in time.”

In the case of HSE and Dr Abdul Rauf [Determination No. FTD0817], the Labour Court stated that “A Complainant…..must also demonstrate that there are reasons but for which the case would have been referred in time” (emphasis added in bold).

In the present case, the Complainant has referred to the workplace investigation which she was advised was being instigated by the Respondent in its letters to her of 18 December 2019 and 6 January 2020. From the evidence and submissions I am satisfied that this workplace investigation was ongoing until June 2020. In all the circumstances, I consider the fact of the Complainant’s participation in this workplace investigation to constitute an acceptable reason to explain her delay in submitting the complaint to the WRC within the 6 months time limit. In accordance with my jurisdiction, I am therefore prepared to extend the time limit to 12 months as provided for at Section 77(5)(b) of the Act. In the circumstances, I deem the Complainant’s complaint was received on time.

Substantive Issue:

Section 14A of the Employment Equality Act [1998-2022] provides both a definition of harassment and a defence for an employer in certain circumstances.  

Section 14 A(1) deals with discrimination on the basis of sexual harassment:

“(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) …….

(iii)………..

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

(i) such harassment has occurred, and

(ii) either —

(1) 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”.

Section 14 A(2) of the Act deals with the employer’s defence and states:

(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 (14 A1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

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

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

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

“(a) 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.

(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.”

Section 85A of the Employment Equality Act [1998-2022] provides that a complainant must set out a prima facie case of discrimination – ie he/she must establish facts from which discrimination may be inferred. Where a complainant discharges this burden, the onus is then shifted to the Respondent to prove to the contrary. The Labour Court considered the extent of the evidential burden that a complainant must discharge before a prima facie case of discrimination can be made out in Southern Health Board v Mitchell [DEE011 [2001] ELR 201]. In that case it was held that the first requirement is that the complainant must establish on the balance of probabilities, the primary facts from which it may be presumed that the principle of equal treatment has not been applied to them. In Melbury Developments Ltd v Valpeters [2010] ELR 64 it was held that "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn."

In light of the foregoing, I must first consider whether or not the Complainant has established a prima facie case of sexual harassment. In this regard, I have considered all the evidence and submissions and in particular the following:

·        Copies of the text messages sent to the Complainant by her Line Manager which confirm the sexual nature of the content;

·        The uncontested evidence of the Complainant as regards the Line Manager’s conduct and its impact on her; and

·        The Complainant’s original complaint of 15 December 2019.

As a result, I am satisfied on the balance of probability, that the Complainant has established facts from which an inference of gender discrimination can be drawn. Having reached that conclusion, it is for the Respondent to prove that discrimination within the meaning of the Act did not occur and/or that  the Respondent “took such steps as are reasonably practicable” to deal with the matter. In this regard, I note that the Labour Court stated as follows in the case of Excel Recruitment Ltd & Mr Paul Dusa [Determination No.  EDA2330]

“Clearly there are two limbs to the defence set out in section 14A(2), both of which must be satisfied by a respondent who seeks to avail itself of that defence. In the first instance, a respondent must demonstrate that it took “such steps as are reasonably practicable …. to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim”. A respondent may be able to demonstrate that it has fulfilled the requirements of paragraph (a) where it has a comprehensive anti-harassment policy (including an appropriate investigation procedure) in place, has provided appropriate training to staff and, in particular, has trained managers in relation to accepting andinvestigating complaints of alleged harassment. Paragraph (b) requires a respondent to demonstrate that it has taken “reasonably practicable steps … to prevent the victim from being treated differently in the workplace … and, if and so far as any such treatment has occurred, to reverse its effects.” This paragraph is understood to comprehend initiatives such as the provision of counselling to an employee who has experienced harassment on any of the nine grounds, a referral of the employee to an Employee Assistance Programme and the provision of refresher training on diversity and equality to all employees and managers, as appropriate.”

From my consideration of the evidence and submissions, I have come to the following conclusions:

·        The Respondent had a comprehensive “Dignity, Respect and Equality in the Workplace” policy (DR&EW) in place which I am satisfied was available to the Complainant and was specifically referenced in the Complainant’s Contract of Employment signed in 2017 in terms of there being a requirement to comply with legislation and policies;

·        The Respondent responded promptly to the Complainant’s complaint of 15 December 2019 and moved to set up an independent investigation as per the letters of 18 December 2019 and 6 January 2020;

·        The Respondent provided the Complainant access to its Employee Assistance Scheme and I accept that further sessions would have been provided if required;

·        The Respondent placed the Line Manager on administrative leave effective from 18 December 2019;

·        The investigation continued for much longer than the “not later than four weeks after receipt of written complaint” stipulated in the DR&EW policy. Whilst I accept that factors outside the control of an Investigator and a Respondent can impact on time scale – and in this instance this was during the Covid-19 pandemic – nonetheless, I consider that the investigation time scale - up to June 2020 - was excessive. Notwithstanding that the Line Manager was on administrative leave during the investigation, I accept the Complainant’s contention that the length of time negatively impacted upon her. I am also satisfied that the Complainant should have been furnished the Investigator’s final report and advised of whether or not an appeal had been lodged - though I accept the HR Director’s evidence that he did liaise with her at various stages in the course of the investigation;

·        I find that the Respondent has not demonstrated that it provided any or adequate training on the DR&EW policy to its employees and the evidence of the HR Director confirmed there was no record of any such training. Indeed the nature of the text messages would suggest the Line Manager was unaware of the Respondent’s DR&EW policy. The absence of training and a record of any such training speaks to the management structures within the Respondent and evidence was given that at the time there were “management deficiencies”.  More particularly, I am of the view that the availability of a written policy – irrespective of how comprehensive it is or how quickly it was implemented post receipt of the written complaint – was not sufficient of itself to constitute a reasonably practical step to prevent sexual harassment occurring. Whilst there can be no guarantee that sexual harassment will not occur in a workplace, training would have ensured that the Respondent’s staff –  especially its management staff -  were provided with appropriate information as to what constitutes sexual harassment, that they were informed of its impact on individuals and of the consequences of breaching policy in that regard – ie that harassment was viewed by the Respondent as gross misconduct leading to the instigation of its disciplinary procedures.  

In light of the foregoing and having considered all the evidence and submissions, I find that the Respondent is not entitled to rely on the defence set out at Section 14 A(2) of the Employment Equality Act [1998-2022] and that the Respondent has not discharged the burden of proving that discrimination on the basis of sexual harassment has not occurred.

CA-00038097-001

For the reasons given this complaint is well founded.  In assessing the compensation to be awarded to the Complainant I recognise the Respondent did have a DR&EW policy and moved promptly at the start to deal with the complaint, instigated a comprehensive investigation and swiftly placed the Line Manager on administrative leave. Notwithstanding those positive measures, I consider the length of time it took to process the complaint was excessive and negatively impacted on the Complainant, that the Complainant was left in the dark in relation to any potential appeal by the Line Manager and fundamentally, that there was an absence of training which – as I have already stated - considerably exacerbated matters.

The maximum compensation in accordance with Section 82 of the Employment Equality Act [1998-2022] is two years’ remuneration.  In the seminal case of Von Colson and Kamann (1984) ECR 1891 the European Court of Justice stated that awards should be effective, proportionate and dissuasive. In all the circumstances, I have decided to award the Complainant €27,000 which award is subject to such statutory deductions as may apply.

In addition, I direct the Respondent to provide appropriate staff training on its DR&EW policy and that a record of all such training be kept to ensure that it covers existing and new employees.

Sexual Harassment, Discrimination, Training, Investigation