Complainant

Respondent

Parties

Kelly  Green-Ward

Synergy Security Solutions Limited

Representatives

 Jade Wright, Sean Ormonde & Co. Solicitors.

 Frank Walsh, Employee Relations.

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-00056199-001

20/04/2023

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

CA-00056199-002

20/04/2023

On 22 February 2021, the Complainant commenced employment as a Security Officer with the Respondent, following a transfer of undertaking process. The Complainant worked approximately 42 hours per week, earning approximately €525 gross per week. From the end of August 2021, the Complainant was stationed at a Hospice in Dublin. While there, she worked alongside Hospice employees as well as employees of a facilities management company. This latter company was also the Respondent’s client. The Complainant alleged that her point of contact for all matters during this period was a named employee of that client (the “Client Employee”).

The Complainant alleges that a male Security Officer colleague, employed by the Respondent (the “Male Security Officer”), made discriminatory and sexual comments about and to her. Consequently, the Complainant alleges that the Respondent discriminated against her on the grounds of gender, sexual orientation and membership of the Travelling Community. She also alleges that she was harassed and sexually harassed. The Complainant submitted that her mental health deteriorated as a result. The Complainant alleges that on 20 February 2023, she was constructively dismissed as a result of the Respondent’s “inaction”. The Complainant denies all knowledge of the Respondent’s policies. The Complainant submitted her Complaint Form to the WRC on 20 April 2023.  

The Respondent denies the complaints in their entirety. The Respondent submits that the Complainant was familiar with the Respondent’s management structure and comprehensive workplace policies. The Respondent submits that the Complainant was silent in the face of the alleged sexual harassment which could constitute an acceptance or demonstrates ambivalence towards the sexual harassment. The Respondent submits that the Complainant failed to report any allegations of discrimination, sexual harassment or harassment to her Manager. Finally, the Respondent submits that once it was on notice of the Complainant’s allegations after her employment ended, it commenced an investigation, which remains ongoing.

The Complainant provided detailed written and oral submissions.

The Complainant provided, inter alia, numerous Facebook Messenger messages in support of her position. Many of these messages were undated and were not in chronological order.

The Complainant sought to rely on numerous cases in her written submissions in support of her two complaints, including: Kathleen Ryan v. Socrates Workforce Solutions Ltd., ADJ-00035281; David McDonagh v. Harmony Catering Services Limited, ADJ-00028368; An Employer v. A Worker (Mr O) (No.2), EED0410; and Allen v. Independent Newspapers (Ireland) Limited, 2002 ELR 84.

The Discrimination, Harassment and Sexual Harassment Allegations:

The Complainant submitted that in August 2021, she was stationed at the Hospice. She submitted that in September 2021, she began to experience discrimination including harassment and sexual harassment by the Male Security Officer, during the shift handover which was approximately ten minutes long. She submitted that his conduct and verbal abuse was “wholly inappropriate, unprofessional, unacceptable and offensive”. The Complainant asserted that he “regularly” made comments about her body such as that she had “big tits”.

The Complainant submitted that the Male Security Officer made “derogatory slurs and comment at every opportunity” about her identity as a Member of the Travelling Community. The Complainant submitted that “in or around” October 2021, the Male Security Officer made discriminatory remarks concerning a Hospice patient who was a Member of the Travelling Community. The Complainant submitted that the Male Security Officer often made derogatory comments about members of the Travelling Community.

The Complainant also submitted that in August 2022, the Male Security Officer was “screaming at reception” and wrote in the book “did nothing” about her. She also submitted that the Male Security Officer later made a death threat to her when he wrote on the “change sign off sheet”: “Change all 6 bottles [of oxygen]. If I catch someone not doing it right, I will kill them”.

The Complainant submitted that on 12 August 2022 she informed the Client Employee about the discriminatory remarks concerning a patient who was a Member of the Travelling Community and the August 2022 reception incident (outlined above).

The Complainant submitted that in November 2022, she had her hair cut in order to “avoid further trauma inducing attention”. The Complainant submitted that after her hair cut, the Male Security Officer “began to make discriminatory remarks and assumptions about her sexual orientation”, referring to her as a “lesbian”. She submitted that he made this comment to her and to others.

The Complainant submitted that in December 2022, she sent messages to the Client Employee, complaining about the Male Security Officer’s alleged threatening behaviour.

The Complainant submitted that in January 2023, the Male Security Officer made derogatory comments about his girlfriend and used sexually descriptive language, stating that he was “gonna leave her gagging for it”. The Complainant submitted that at all times, the Male Security Officer, was fully aware that his conduct was making her extremely uncomfortable.

The Complainant further submitted that on 1 February 2023, the Male Security Officer “scream[ed]” at her when she arrived one minute late for work.

The Complainant submitted that on 1 February 2023 she informed the Client Employee about the sexual harassment via Facebook Messenger. In her messages, the Complainant outlined that the interactions with the Male Security Officer were “trigger[ing]”. The Complainant was dissatisfied with the Client Employee’s response. She submitted that the Client Employee dismissed her concerns as “locker room talk”. 

The Complainant’s Complaint and Meeting on 2 February 2023:

The Complainant submitted that the Client Employee told her to report the matter to the Respondent. The Complainant submitted that on 2 February 2023 she emailed the Operations Manager. In her email, the Complainant referred to the altercation with the Male Security Officer when she arrived late to work on 1 February 2023. In her evidence, the Complainant said that she did not refer to the sexual harassment allegations as she had not been recommended by the Client Employee to do so.

The Complainant submitted that a meeting was held later that day, on 2 February 2023, with the Operations Manager. During this meeting, the Complainant said that she discussed the “death threat” incident and the “screaming” incident dated 1 February 2023. She said that she also referred to the Male Security Officer’s comments regarding his girlfriend. The Complainant outlined that the Operations Manager stated that she would investigate her complaints.

The Respondent’s Policies:

The Complainant submitted that she did not receive any induction or training from the Respondent. She also submitted that she did not receive any company or employee handbook, outlining its policies concerning grievances, harassment and bullying or otherwise.

The Constructive Discriminatory Dismissal Allegations:

The Complainant outlined that on 19 February 2023, she had a medical episode at work. She said that the Client Employee told her to call the Respondent. She said that she got angry with the Client Employee and regrets the nature of the abusive and threatening messages that she subsequently sent to the Client Employee. The Complainant resigned the following day. The Complainant outlined that no one followed up with her to see why she was resigning.

The Complainant submitted that her mental health deteriorated in the “toxic work environment”.  She submitted that “no safeguards or procedures were put in place” by the Respondent.

Complainant - Cross-Examination:

Under cross-examination the Complainant confirmed that she had been stationed at the “Amazon” site for six months prior to being stationed at the Hospice. She confirmed that she left the “Amazon” site as she had “colleague-related stress”. She outlined that she spoke to her then Operations Manager about the move.

The Discrimination, Harassment and Sexual Harassment Allegations:

The Complainant submitted that the Male Security Officer said that her hair was nice “in a sexual way”. She said that it was his tone of voice that made it sexual. She said that she got her hair cut as a result. The Complainant submitted that she did not react in any way to any of the Male Security Officer’s comments.

The Management Structure:

The Complainant submitted that she believed that she reported to the Client Employee. She stated that the Hospice staff had told her to report to the Client Employee. She also relied on a Facebook post dated May 2021. When the Complainant was referred to messages in which she herself told the Client Employee “your [sic] the client”, the Complainant denied that she knew that the Client Employee was not her Manager. The Complainant said that the Client Employee was always “sticking her nose in our business” and that she did not know why the Client Employee would say that she would report her concerns to the Respondent, if she was not her Manager. The Complainant said that she also reported her concerns to “Robbie”, a previous Operations Manager.

The Complainant accepted that she was aware of the management structure but she said that there were new managers all of the time and that she did not know who her manager was. She submitted that she did not know the role of Ms. Iva Barber, the Operations Manager. She stated that never noticed Ms. Barber’s title of “Operations Manager” in her emails. The Complainant outlined that she met Ms. Barber approximately once a month and that she was a nice woman. She said that they discussed her work at the Hospice and her pay. She then said that she knew that Ms. Barber was a manager, she just did not think that she was her Manager.

The Complainant’s Complaint and Meeting on 2 February 2023:

Under cross-examination, the Complainant submitted that the Client Employee drafted the text of her complaint outlined in her email to the Operations Manager dated 2 February 2023. The Complainant submitted that she “copied and pasted” the draft provided by the Client Employee and sent it to the Operations Manager. She said that she did not read the email before she sent it.

The Complainant confirmed that later that day on 2 February 2023, she had a meeting with the Operations Manager about her altercation with the Male Security Officer on 1 February 2023.

The Complainant stated that during the meeting with the Operations Manager, the Client Employee was also there. The Complainant also said that the Operations Manager did not understand her “slang” when she discussed the sexual harassment. The Complainant stated that at the end of the meeting she did not think that the Operations Manager understood that she had a sexual harassment grievance.

The Constructive Discriminatory Dismissal Allegations:

The Complainant accepted that when she had her medical episode at work on 19 February 2023, she called the Respondent’s Control Team and she called the Operations Manager. She said that the Senior Operations Manager came on site. The Complainant said that she did not return to the site.

The Complainant submitted that on 20 February 2023 when she sent her resignation email, she felt that everything had failed her and that she had received no counselling. She said that these feelings built up over her time with the Respondent. She said that she called the Operations Manager early on 20 February 2023 and told her that she was resigning. She said that the Operations Manager never asked her why she was leaving. The Complainant submitted that the call was 3-4 minutes long. The Complainant said that there were no other calls that morning. The Complainant said that she never asked for a transfer to the “Amazon” site. The Complainant stated that when she said “I want out of the site” in her email timed 8.38am, she meant that she wanted to resign. The Complainant said that she was never invited to an exit interview.

The Respondent’s Policies:

The Complainant said that she was never provided with the employee handbook or the grievance procedure. She said that was not aware of the Respondent’s policies. The Complainant was referred to a letter from the Respondent dated 24 August 2021 concerning her disciplinary hearing and referencing the company handbook. In response, the Complainant said that she did not understand it.

The Complainant submitted that she rarely saw the Operations Manager while she was in the Hospice. She also denied knowledge of the “Blue Folder”. The Complainant said that the only training that she received was from another security officer and concerned oxygen bottles.

The Complainant confirmed that after her employment ended, she received a letter from the Respondent asking her to stop contacting the Client Employee and the Hospice due to the abusive nature of her communications. The Complainant confirmed that she did not reply to the Respondent’s letter regarding an investigation into her sexual harassment allegations. She said that she went to the Gardaí about the alleged sexual harassment and they told her to go the WRC.

The Respondent provided detailed written and oral submissions.

The Respondent provided, inter alia, letters and emails to the Complainant, calendar entries for trainings and social media messages, in support of its position.

The Respondent sought to rely on, inter alia, Peadar Duane v. Masonry Fixing Services Limited, UD35/2013.

The Respondent’s Management Structure and Policies:

The Respondent submitted that the Complainant was an experienced security employee and was well aware of the reporting structures and the nature of the relationship between the Respondent and its client. The Respondent referred to an undated message from the Complainant to the Client Employee which states “your [sic] the client”.

The Respondent submitted that it provided the Complainant with a full employee handbook, outlining all policies and procedures. The Respondent outlined that the Complainant’s Contract of Employment appended policies concerning: Equal Opportunities, Health and Safety; the Discipline Code; the Grievance Procedures; and Bullying and Harassment.  The Respondent submitted that the Complainant received training on 27 August 2021, 28 August 2021, 27 December 2021, 2 March 2022 and 21 November 2022. The Respondent provided calendar entries for these trainings.

The Respondent further submitted that the Complainant was the subject of a disciplinary process in July 2021, during which she was reminded of the policies and procedures outlined in the Company handbook. The Respondent provided copies of letters to the Complainant dated 29 July 2021 and 24 August 2021 which confirmed the same.

The Complainant’s Complaint, Resignation and Subsequent Correspondence:

The Respondent submitted that between August 2021 and February 2023, the Respondent has no correspondence on record regarding any complaint by the Complainant. The Respondent submitted that the Complainant never made it aware of any allegations of sexual harassment or other harassment prior to her resignation on 20 February 2023.

The Respondent submitted that the Operations Manager received the Complainant’s email dated 2 February 2023 and met with her later that day. The Respondent submitted that no reports of harassment of any kind were made at this meeting.

The Respondent submitted that at 8.38am on 20 February 2023, the Complainant emailed the Operations Manager, seeking a transfer. The Respondent submitted that there were then two telephone calls with the Complainant. The Respondent submitted that later that day at 12.23pm, the Complainant submitted her resignation with immediate effect.

The Respondent submitted that on 20 and 22 February 2023, the Respondent wrote to the Complainant to ask her to cease contacting the Client Employee. The Respondent provided details of extensive and abusive correspondence sent by the Complainant to the Client Employee which had been reported to them by the Client Employee.

The Respondent submitted that on 6 March 2023, the Operations Manager emailed the Complainant and asked her for details regarding the alleged sexual harassment incident which the Complainant had referenced in her phone calls the previous week, so that it could be investigated. The Respondent outlined that the Complainant replied by way of short email, indicating that she had gone to the Gardaí about it and thanked her for her “false support”.

The Respondent submitted that it wrote to the Complainant again on 6 March 2023, advising her that it takes her allegations very seriously and asking her to engage and provide more detail, but she did not respond.

The Respondent outlined that on 6 September 2023, a manager was appointed to conduct an investigation. The Male Security Officer has denied the allegations in full.

Evidence – Ms. Iva Barber:

Ms. Barber outlined that she was an Operations Manager for the Respondent. She said that her role involved looking after allocated clients, sites and security employees. She outlined that she had responsibility for 28 clients and about 120-130 employees. She outlined that she helped with rosters, site visits and ensured that staff knew about their duties and procedures.

Ms. Barber outlined that in September 2022, she first went to the Hospice where she had oversight of 12 employees. She outlined that she went to the Complainant’s “station”, shook the Complainant’s hand and introduced herself. She told her that she was the Respondent’s new Operations Manager.  She outlined that the Complainant did not ask any questions. She outlined that she thought that the Complainant knew that all issues would have to be reported to her. Ms. Barber outlined that during this visit she also met with the Client Employee.

Ms. Barber referred to the “Blue Book” which contains the Respondent’s Operations Manual as well as details regarding duties, what to do in the event of sickness, who to report to and who is in charge. She stated that the “Blue Book” contains three different manuals and it has to be on site. Ms. Barber said that all employees have to read it and sign it.

Ms. Barber outlined that she had regular meetings with the Client Employee. She visited the site every few weeks. She outlined that she met with the Complainant about four times. She outlined that the Complainant was an excellent employee, that she was polite and that she was willing to work overtime. She outlined that she had a positive relationship with the Complainant and never had a problem with her.

Ms. Barber outlined that she did not know that the Complainant was privately messaging the Client Employee. She further outlined that she was certain that the Complainant knew that she was her Manager. Ms. Barber outlined that the Complainant contacted her about the roster, switching shifts, overtime, days off and medical appointments. Ms. Barber further outlined that she sent emails to staff as a whole team regarding matters such as certificates and training.

Ms. Barber outlined that on 20 February 2023, she had two phone calls with and two emails from the Complainant. When she arrived into work, she had not yet been briefed on the Complainant’s medical episode the night before. Ms. Barber outlined that she saw an email from the Complainant about moving site. She said that the Complainant then called her and asked to be moved to another site and specifically to the “Amazon” site. Ms. Barber told her that she would try to put her on a different site. Ms. Barber outlined that she needed time to find another site for her. Ms. Barber outlined that the Complainant called her back an hour later, looking for an update. Ms. Barber outlined that she sent a request to the Respondent’s Roster Team to find another site for the Complainant. Ms. Barber outlined that she understood that the Complainant wanted to move to another site due to the medical episode incident the previous night. The Complainant called her again approximately three hours later and told her that as Ms. Barber had not found her another site, she wanted to resign. Ms. Barber told her that she would require her resignation in writing.  

Ms. Barber outlined that she never heard about any sexual harassment grievance from the Client Employee. She said that she was never made aware of any discrimination or sexual harassment complaints at all. She said that the first she heard about it was after the Complainant had resigned.

Ms. Barber outlined that the meeting on 2 February 2023 concerned the Complainant’s grievance regarding her altercation with the Male Security Officer when she arrived late to work on 1 February 2023. Ms. Barber outlined that she asked the Client Employee if she would like to have the Male Security Officer removed from the site but she refused. Ms. Barber outlined that the Complainant had the opportunity to comment but did not do so. Ms. Barber stated that it was never mentioned that the Complainant was harassed. Ms. Barber confirmed that during the meeting it was stated that the Male Security Officer had said that his girlfriend “was gagging for it”. Ms. Barber outlined that this was not sexual harassment as it was not about the Complainant. She outlined that she explained to the Complainant that she needed to investigate her grievance regarding the altercation with the Male Security Officer dated 1 February 2023.

Ms. Barber outlined that in the course of her subsequent investigation, the Male Security Officer admitted that he had shouted at the Complainant. Ms. Barber outlined that she discussed with him his notes on handovers and how to speak to colleagues and staff. She outlined that it did not proceed to a disciplinary sanction. Ms. Barber outlined that she also discussed the matter with the Senior Manager.

Cross-Examination:

Under cross-examination Ms. Barber outlined that she had no formal handover when she started in her role, as the previous Operations Manager had left before she was allocated the Hospice site. She outlined that every other employee from that site contacted her and that the Complainant knew that she was the Operations Manager. Ms. Barber said that every time they met, she told the Complainant that that she should come to her if she had any problems. Ms. Barber outlined that the Complainant often called her about rostering.

Ms. Barber accepted that she did not recall seeing the Complainant sign the “Blue Book”. She said that the “Blue Book”, with the Respondent’s name on it, was located in a drawer at the table where the Complainant sat. Ms. Barber said that another security officer would have told the Complainant about the “Blue Book” and that the Complainant would have shown it to other employees too.

Ms. Barber said that the Client Employee never told her about the messages that she had received from the Complainant. She outlined that she only became aware of the messages after the Complainant’s resignation.

Ms. Barber outlined that she did not know why the Complainant did not approach her. She outlined that the Complainant could also have raised her grievance with HR.

CA-00056199-001: Complaint regarding Discrimination, Harassment and Sexual Harassment:

The Law:

Burden of Proof:

Section 85A of the Employment Equality Act 1998-2015, as amended (the “EEA”), provides:

“(1) 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.

[…]

(4) In this section "discrimination" includes – […] (c) harassment or sexual harassment”.

Therefore, the burden of proof is on the Complainant to show that she was treated less favourably on account of her gender and/or sexual orientation and/or membership of the Travelling Community. The burden of proof is also on the Complainant to show that she was harassed and/or sexually harassed.

In Southern Health Board v. Mitchell (2001) E.L.R. 201, the Labour Court held:

“The first requirement … is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equaltreatment”.

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Harassment and Sexual Harassment:

Section 14A(7) of the EEA provides: -

“(7) (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,

(b) 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.

(c) 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 test is a subjective one and the intention of the perpetrator of the harassment or sexual harassment is largely irrelevant. It is sufficient if it has a negative effect on the victim. The conduct should be viewed from the perspective of the victim. Moreover, these provisions must also be read in conjunction with section 15 of the EEA which fixes an employer with vicarious liability under the EEA for the wrongful acts of an employee committed in the course of that employee’s employment.

As noted at paragraphs 34 and 35 of the Code of Practice on Sexual Harassment and Harassment at Work, prepared by the Irish Human Rights and Equality Commission:

“Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. […] The conduct at issue may not be specifically directed at a particular employee but nevertheless has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

Moreover, Chapter 12.22 of “Employment Equality Law” 2nd ed. (Bolger, Bruton and Kimber) states that sexual harassment is actionable per se and does not require to be specifically linked to a discriminatory ground and it does not require a comparator.

Defence:

As noted by the Labour Court in Allpro Services v. Andrzej Waszkiewicz, EDA2336:

“an employer can avoid liability for the harassment of an employee committed by another employee in the course of employment, by making out a defence provided for at Section 14A(2), if it can establish that it took reasonably practicable steps to prevent the harassment, or where harassment took place, to prevent the victim from being treated differently and to reverse its effects. The Act clearly requires an employer to take steps to prevent harassment from occurring in the first instance.”

In this case, the Labour Court also relied on A Hotel v. A Worker, EDA0915 which noted that the employer must be proactive as regards the prevention of harassment and sexual harassment and must show, at a minimum, that there was a clear anti-harassment or dignity at work policy in place, which is effectively communicated to all. Additionally, management must be trained in how to deal with incidents of harassment and to recognise it.

Findings and Conclusions:

The Allegations of Discrimination on Grounds of Gender, Sexual Orientation and Membership of the Travelling Community:

The Complainant alleged that from September 2021, during a ten-minute shift handover, the Male Security Officer “regularly” made comments about her body. She also alleged that he made “derogatory slurs and comment at every opportunity” about her identity as a Member of the Travelling Community. The Complainant alleged that “in or around” October 2021, he made discriminatory remarks concerning a Hospice patient who was a Member of the Travelling Community. She further alleged that in November 2022, the Male Security Officer “began to make discriminatory remarks and assumptions about her sexual orientation”, referring to her as a “lesbian”.

The Complainant provided numerous Facebook Messenger messages, but there is no reference to any of these discriminatory comments. The Complainant provided no other evidence to substantiate these allegations. Moreover, her oral evidence was vague. She also submitted that the Male Security Officer made the same comments about her to others too, however, no further details were provided and no witnesses were put forward. Therefore on the facts of this case, and in applying the test outlined above in Melbury Developments Ltd. v. Valpeters, I am satisfied that the Complainant has made only mere speculation or assertions unsupported by evidence.

Conclusion:

The Complainant has not established a prima face case that she was discriminated against because of her gender and/or sexual orientation and/or membership of the Travelling Community. Therefore, I find that the Complainant was not discriminated against in those regards.

The Allegations of Harassment:

The Complainant alleged that the Male Security Officer harassed her. To this end, she alleges that in August 2022, the Male Security Officer was “screaming at reception” and wrote in the book “did nothing” about her. She also submitted that the Male Security Officer later made a death threat to her when he wrote on the “change sign off sheet”: “Change all 6 bottles [of oxygen]. If I catch someone not doing it right, I will kill them.” Finally, the Complainant further alleged that on 1 February 2023, the Male Security Officer “screame[d]” at her when she arrived one minute late for work.

Conclusion:

None of these acts amount to unwanted conduct on any of the protected discriminatory grounds. In the circumstances, I find that the Complainant was not harassed in violation of the EEA.

The Allegations of Sexual Harassment:

The Complainant alleged that in January 2023, the Male Security Officer made derogatory comments about his girlfriend and used sexually descriptive language, stating that he was “gonna leave her gagging for it”. The Complainant submitted that at all times, the Male Security Officer was aware that his conduct was making her extremely uncomfortable. The Complainant provided a screenshot of a Facebook Messenger message dated 1 February 2023, to the Client Employee which corroborated this allegation. Moreover, the Operations Manager confirmed in her oral evidence that there was a reference to this comment between the Complainant and the Client Employee during the meeting on 2 February 2023. I find that this comment had the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment”. In the circumstances, I am satisfied that the Complainant was sexually harassed, in violation of the EEA.

The Respondent submitted that it has “very comprehensive policies on, inter alia, workplace relations, employee assistance programmes, bullying prevention, and grievance procedures”. The Respondent provided an excerpt of the Complainant’s contract which refers inter alia to “Bullying and Harassment”, but did not provide a copy of its Bullying and Harassment policy in these proceedings. The Respondent provided details of training dates which the Complainant attended but did not provide details as regards what the training addressed. In her oral evidence, the Operations Manager referred to a “Blue Book”, containing all of the Respondent’s policies and manuals, located in a drawer in the Complainant’s desk. However, the Operations Manager could not confirm that the Complainant had signed the “Blue Book” to confirm that she had read it. In her oral evidence, the Operations Manager outlined that she did not consider the Male Security Officer’s comment to constitute sexual harassment as it was about his girlfriend and not about the Complainant. In doing so, the Operations Manager demonstrated her lack of understanding of what constitutes sexual harassment.

I am also concerned by the Respondent’s submission that the Complainant “[r]emaining silent in the face of harassment, enduring the conduct, or not openly objecting could all constitute an acceptance, or at least demonstrating ambivalence towards the sexual harassment.” This is wholly incorrect.

Finally, I note that an investigation into the sexual harassment allegations commenced in early September 2023 and at the date of the Hearing in late October 2023, remained ongoing.

Conclusion:

On the basis of the submissions and evidence, I do not find that the Respondent’s sexual harassment policy was effectively communicated to employees or managers. Consequently, I find that the Respondent did not take such steps as were reasonably practicable to prevent the sexual harassment. Consequently, the defence under s.14A(2) of the Act has not been made out and I cannot accept that the Respondent has discharged the onus placed on it of proving that it took all reasonably practicable steps to prevent the Male Security Officer from sexually harassing the Complainant.

Having carefully considered the submissions and the evidence of both Parties, I order the Respondent pay to the Complainant the amount of €3,500 for the effects of the sexual harassment to which she was subjected.

In addition, I order the Respondent to review the operation of its harassment and sexual harassment policy and in particular the effectiveness of arrangements in place to communicate the policy to management and employees, and as part of those arrangements, to communicate the Respondent’s intolerance of harassment and sexual harassment.

CA-00056199-002: Complaint Regarding Constructive Discriminatory Dismissal:

Section 8 of the EEA specifically prohibits the dismissal of an employee on discriminatory grounds. The Labour Court determined in the case of An Employer v. A Worker (Mr. O) (No. 2), EED0410 that the definition of dismissal contained in Section 2(1) of the Unfair Dismissals Acts 1977 applies in cases of constructive discriminatory dismissal. Section 2(1) defines “dismissal” as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... ".

It held that the "contract" test and the "reasonableness" test were applicable tests to be used in complaints of constructive discriminatory dismissal. Both tests relate to the behaviour of the employer.

In Western Excavations Ltd v. Colin John Sharp [1978] 1 All E.R. 713 the “Contract Test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “Reasonableness Test” the same decision assesses the conduct of the employer as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The requirement to exhaust internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v. Ulster Bank Ltd., UD 474/1981, where the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Findings and Conclusions:

The Complainant worked for the Respondent since February 2021. The Operations Manager outlined that when she was appointed to her position in September 2022, she met with the Complainant and introduced herself. Over the following months she met with the Complainant approximately four times and they discussed a range of matters, from her work to her pay. The Complainant also contacted her about the roster, switching shifts, overtime, days off and medical appointments. The Complainant emailed the Operations Manager with her complaint on 2 February 2023 and met with her later that day to discuss it. Moreover, when the Complainant had her medical incident on 19 February 2023, she called the Operations Manager. She also emailed and called her regarding a possible transfer, concluding in her resignation on 20 February 2023. The Operations Manager further outlined that she sent emails to staff as a whole team regarding a variety of matters. None of this evidence was challenged.

Moreover, I note from the Facebook Messenger messages provided by the Complainant that the Client Employee told the Complainant on at least four occasions, that she should contact the Respondent about her grievances (I have provided clarification in square brackets below):

·       1 February 2023 – “Type up your email [to the Operations Manager] and I’ll help you tomorrow”

·       Undated – “Why scribble over it if it can’t be brought up to Iva [the Operations Manager]”

·       Undated – “Did you get on to Synergy [the Respondent] Kelly like I advised you?”

·       Undated – “When Iva [the Operations Manager] asked are you ok with that you should of [sic] spoke up”.

The Complainant herself indicated in her own Facebook Messenger message to the Client Employee that she was the client:

·       “Your [sic] the client so it’s up to u who u want on site”.

It is abundantly clear from the evidence that the Complainant knew that she reported to and was managed by the Operations Manager.

In her email dated 2 February 2023, the Complainant outlined her complaint concerning her interaction with the Male Security Officer on 1 February 2023 when she arrived late to work. There is no mention of any discrimination or sexual harassment in that email. Moreover, in her own evidence, the Complainant submitted that she did not think that the Operations Manager understood that she had a sexual harassment grievance at the conclusion of their meeting on 2 February 2023. Finally, the Complainant did not raise any grievance regarding discrimination and/or harassment with the Operations Manager, prior to her resignation. It is incumbent on an employee in a constructive dismissal scenario to sufficiently notify their employer of any grievance and allow the employer a reasonable opportunity to resolve it.  In the circumstances the Complainant failed to do so and failed to utilise the grievance procedure, as per Conway v. Ulster Bank Ltd., UD 474/1981. I find that the Complainant left her employment of her own volition and was not constructively dismissed. Accordingly, I find that the complaint is not well founded.

CA-00056199-001: Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998, as amended:

For the reasons outlined above, I find that the Complainant has not established a prima facie case of discrimination on the grounds of gender and/or sexual orientation and/or Membership of the Travelling Community. Therefore, I find that the Complainant was not discriminated against in those regards. For the reasons outlined above, I also find that the Complainant was not subjected to harassment.

However, for the reasons outlined above I find that the Complainant was sexually harassed. I order the Respondent to pay to the Complainant the amount of €3,500 for the effects of the sexual harassment to which she was subjected.

In addition, I order the Respondent to review the operation of its harassment and sexual harassment policy and in particular the effectiveness of arrangements in place to communicate the policy to management and employees, and as part of those arrangements, to communicate the Respondent’s intolerance of harassment and sexual harassment.

CA-00056199-002: Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998, as amended:

For the reasons outlined above, I find that this complaint is not well founded.

Employment Equality Act 1998, Discrimination, Harassment, Sexual Harassment.