Complainant

Respondent

Anonymised Parties

{A Group Manager}

{A Public House Group}

Representatives

Alan Cronan BL, Sean Ormonde & Co., Solicitors

Peter Ryan RA Consulting

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-00052180-001

10/08/2022

The Complainant was employed as Group Operations Manager from 24th May 2021 until 10th August 2022.

The Complainant complains of discrimination due to his gender as he was sexually harassed, victimised and forced to leave his role as a result of inappropriate behaviour from his manager.

The Complainant was employed as Group Manager to oversee the Group venues. As Group Operations Manager he reported to Ms. A, Ms. A reported to the owner. He was not provided with written terms and conditions of employment, nor a grievance or dignity at work procedure.

Ms. A began flirting with the Complainant in August 2021. In September this escalated, when Ms. A attempted to kiss the Complainant. He avoided it, Ms. A was not pleased and this became uncomfortable. The Complainant was taunted for one week, until the parties kissed the following week in the office. The Complainant made it clear this was the last time this would happen. However, Ms. A tried to kiss him again. The Complainant says throughout the remainder of his employment he was subjected to a constant stream of sexually inappropriate texts, photographs and videos by WhatsApp. Evidence of the messaging was provided. The Complainant made it repeatedly clear to Ms. A, he was not interested. However, despite the reasons given, and rejection of the advances the harassment continued. The Complainant ceased communications with Ms. A, including blocking her phone number and deleting her messages before reading them.

The conduct was of a sexual nature, was entirely unwanted, and had the purpose or effect of violating the Complainant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Ms. A repeatedly reacted to the rejection by subjecting the Complainant to verbal and emotional abuse, manipulation, making his working life impossible culminating in his resignation. This included berating him for refusing to meet her, blackmailing and manipulating him, accusing him of being a liar, alleging he would not have secured employment without her, encouraging him to resign, threatening to resign so she could be in a relationship with him, insulting, alleging she was suicidal and making veiled threats. These actions were adverse treatment for opposing harassment, and victimised the Complainant.

By email dated 22 July 2022, the Complainant wrote to the owner resigning due to the stress, pressure and impact on his mental health. Following his resignation, Ms. A continued to contact the Complainant apologising for her actions, demanding he keep the communications confidential and making further advances.

On 10th August 2022, the representatives of the Complainant wrote to the company, setting out their failure to communicate any anti-harassment policy, the sexual harassment, victimisation and discriminatory dismissal of the Complainant.

The Complainants representatives submit the test for harassment and sexual harassment is a subjective test without any limitations on the reasonableness of same. The conduct suffered was sexual harassment as it was unwanted verbal, non-verbal and physical conduct of a sexual nature that had the purpose or effect of violating the Complainant’s dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for him. It is irrelevant that the harasser did not intend to harass the victim or that the harasser believed their behaviour was only banter or joking. The Complainant relies on Sheffield City Council v Norouzi [2011] and An Office Worker v A Security Company DEC-E2010-002 where dirty jokes, explicit remarks and being asked out did amount to sexual harassment, and the decisions in A Complainant v A Contract Cleaning Company DEC-E-2004-068, and BH v Named Company trading as a Cab Company DEC-E2006-026.

The Company is liable for the acts of Ms. A as it is vicariously liable for the acts of its employees pursuant to S15 of the Employment Equality Acts 1998-2021.

S14 A(2) and S15 (3) of the Employment Equality Act 1998-2021 allow a defence to a claim of sexual harassment where an employer can show that it took reasonably practicable steps to prevent the employee from doing the act. Generally, the employer is required to have a harassment or dignity at work procedure in place and communicated to staff prior to a complaint being made, so that a complaint can be investigated. In addition, an employer must demonstrate that they promptly conducted a fair investigation that reached a reasonable and adequate outcome to address the conduct. The Complainant relies on the ruling in A Worker v A Hotel [2010] ELR 72. In An Employer v A Worker EDA0916, the Labour Court would not allow an employer to rely on the statutory defence where there was no policy in place at the time of the conduct, albeit the employer investigated the incident thereafter. The Complainant relies on G Piazza v The Clarion Hotel DEC-E2004-033 where a grievance procedure could not be relied on by the employer to avail of the statutory defence where the anti-harassment policy had not been communicated to employees. The Complainant submits the company failed to disseminate any anti-harassment policy and did not provide a contract of employment to the Complainant. There was no internal HR or help-line in order for the Complainant to raise his complaint.

The Complainant relies on the decision in An Employer v a Worker (Mr O) No 2 [EED0410], that the test for constructive dismissal in a discrimination claim is the “contract test” where the employee says they have an entitlement to terminate the contract of employment. The second test is “reasonableness” where the employee asserts that in the circumstances or due to the conduct of the employer, it is reasonable for him to terminate the contract without notice. The Complainant submits in applying either test, he was entitled to resign due to the manner in which he was sexually harassed and victimised, and the unreasonable behaviour in failing to have any anti-harassment policy in place.

The Complainant seeks compensation for the effects of discrimination, harassment, victimisation, discriminatory dismissal and interest.

The company denies the Complainant has been discriminated against due to his gender, sexually harassed, victimised or subjected to constructive dismissal.

The Complainant was employed with the company from 2012 until 2015 as Head of Operations. He then assumed senior general management roles in hospitality businesses including his own business. This included recruitment, management and training of staff, including operations, human resources, risk, dignity and equality.

He re-joined the company in 2021 as General Manager on 14th June 2021. One year later, the Complainant resigned citing post-pandemic crises affecting the sector, his inability to get a rhythm going in any department, lack of enjoyment and mental strength. He agreed to work out his notice period. The Complainant resigned for the reasons set out, without any warning or other indication. As the most senior employee for operational business, this was a surprise in the challenging post-pandemic period. His solicitor’s letter of 10th August 2022 referring to a consensual relationship which subsequently soured was a surprise, and the owner was unaware of this.

The company does not tolerate discrimination, victimisation, harassment or sexual harassment. The organisations policies and procedures outline proscribed behaviour and complaint mechanisms that apply. The Complainant’s contract of employment from 2013 refers to the company grievance and disciplinary procedure. Examples of gross misconduct include bullying, intimidation, obscene conduct, verbal abuse, harassment and sexual harassment. The contract also links to the Employee Handbook which provides further detail on the procedures.

The Complainant was aware of and bound by the policies. As senior operations manager, he was responsible for ensuring these policies were followed, and ensuring all new employees were provided with orientation on commencement and thereafter. The culture is overseen by the proprietor to set the “tone” in the business. The Complainant was aware of this as he was admonished on one occasion by the proprietor for inappropriate language about a colleague. Despite the Complainant’s 30 years’ experience with a working knowledge of HR and equality, and responsibility for implementing policies, he sought to engage in a secretive consensual exchange with a workplace peer before the relationship soured. The company says Ms. A was not senior to the Complainant and he did not report to her. The Complainant reported directly to the owner.

The Complainant alleges he brought this issue to the attention of the owner, but his concerns were dismissed. This is untrue. The Complainant’s operational role is more important than Ms. A, as the owner is a qualified accountant and could carry out the role if necessary.

The Complainant’s letter of resignation refers to operational challenges and does not show a prima facie case for dismissal. There was no mention of any of these issues and he worked out his notice. Having worked with the owner for over ten years, the Complainant made no mention or hint of the allegations, nor did he choose to pursue a complaint or grievance under the policies as he is obligated to do so. The company relies on Mary Redmond Dismissal Law in Ireland pg340:

“Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. This duty is imperative….Where grievance procedures exist, they should be followed”.

The grievance procedures should be followed and exhausted. The company believes fault lies with the Complainant who engaged in secret and clandestine exchanges while totally disregarding policies he was paid to uphold as a senior manager.

I heard and considered the submissions and evidence of the parties and their witnesses.

The Complainant alleges he has been (i) discriminated against in terms of S6 (2) (a) of the Employment Equality Acts 1998-2021 due to his gender by being subjected to sexual harassment (ii) sexually harassed contrary to S14A of the Acts, (iii) victimised in accordance with S74 (2) of the Acts and (iv) constructively dismissed due to discriminatory treatment.

S6 of the Employment Equality Acts 1998-2015 states discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

Section 14A of the 1998-2021 Acts expressly prohibits harassment at work or in the course of a person’s employment on any one of the nine prohibited grounds of discrimination.

S14 A (1) For the purposes of this Act, where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim's employer, or

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

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

(i) such harassment has occurred, and

(ii) either—

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

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.

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

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

(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.

(3) A person's rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

Section 14 A(7) of the 1998-2021 Act provides as follows:

(a) In this section –

(i)                  References to harassment are to any form of unwanted conduct relating 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, and 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

S74 (2) of the Act provides that 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 that is unlawful under this Act or the said Act of 2000 or which was unlawful or 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 burden of proof is set out in Section 85A (1) of the 1998-2015 Acts:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant was employed by the company from 2012 until 2015 as Head of Operations, and from 2021 until 2022 as General Manager of the Group. He has over thirty years’ experience in hospitality, including running his own business and managing staff.

A contract of employment was issued to the Complainant on 1st July 2013 when he was employed by the company as Operations Manager. However, a contract of employment and employee handbook with a dignity at work/anti-harassment policy were not provided to him on re-joining the company in 2021.

The owner gave evidence one of the Complainant’s responsibilities as General Manager is to induct staff and go through the HR policies with new staff.  He says the Complainant was involved in drafting the dignity at work policy for one of the companies, and was named as the contact person in 2013. He says the Complainant was aware of the policies and the Complainant reported directly to him, not the Financial Controller (Ms. A).

The Complainant gave evidence that following his appointment as Group Operations Manager, the Financial Controller (Ms. A) became flirty. The Complainant said he raised issues regarding staffing, and rostering with both Ms. A and the owner. He reported financial issues to Ms. A.

Initially, he had two kisses with Ms. A over a three to four week period, but then he told Ms. A it had to stop. He denied there was any relationship. However, Ms. A would not stop. He found Ms. A’s subsequent behaviour passive aggressive, and her messaging was relentless. There were veiled threats that she would leave, and she would tell the owner. He said there were arguments, then texts and he found it stressful. As Ms. A was the Financial Controller he could not block her, as there was no other way of contacting him. In November or December 2021, the owner said Ms. A said she was not getting on with the Complainant. He was told by the owner he needed to find a way to get on with Ms. A as she was very important to the company.

The Complainant did not make any complaint to the owner about the harassment as he felt there would not be a positive outcome for him if he did. He was on probation and Ms. A was an employee.

I accept the Complainant’s evidence that he was initially involved with Ms. A but then rejected her advances. The Labour Court in A Worker v A Company [1990] ELR 187 found that “A sexual relationship between consenting adults does not imply that consent is unlimited as regards either time-scale or acts which may take place between the parties. Each party has a continuing right to place limitations on what acts may take place and when they may take place and a right to withdraw consent totally”.

An extensive record of text messages from Ms. A to the Complainant were submitted showing persistent sexually inappropriate messaging by Ms. A to the Complainant until August 2022. The Complainant repeatedly told Ms. A this was unwanted after an initial short flirtation. Evidence of messages from the Complainant to Ms. A stating the actions were unwanted were provided. I am fully satisfied the actions of Ms. A had the purpose or effect of violating the Complainant’s dignity and creating an intimidating, hostile, and degrading, humiliating or offensive environment for him. I find a prima facie case of discrimination has been established and the burden of proof has shifted to the Respondent.

The owner gave evidence that he recruited the Complainant and dealt with his contractual issues. The Complainant reported directly to him, which I accept. The Complainant said he had dealings with Ms. A on day to day issues as another senior member of management.

There is a full defence to a complaint of sexual harassment at S23 (5 ) of the Act if an employer can prove that it took such steps as are reasonably practicable to prevent sexual harassment in the workplace by any other employee.

At the time of the incidents, the Respondent did not have a Dignity at Work & Anti-Harassment policy in place, nor was the Complainant provided with a contract of employment when he took up employment in June 2021. The Complainant accepted in evidence he was aware he could complain about the sexual harassment of Ms. A but said he was afraid to while on probation. He also believed Ms. A as Financial Controller was important to the business.

The Labour Court in An Employer v A Hotel [2010] 21 ELR 72 said an employer is obliged to take such steps as are reasonably practicable to prevent harassment in the workplace. This requires the employer to show at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred, and the policy was effectively communicated to all employees,  involving training of staff. These procedures are essential for all organisations. The Respondents procedures were clearly deficient, in the circumstances, it is not entitled to avail of the defence under S23(5) of the Act.

I have considered the submissions of the Complainant’s representatives regarding victimisation by the Respondent and find no evidence of victimisation under the Act. The owner was totally unaware of the issues, and surprised to receive a complaint of sexual harassment after the Complainant left.

The Complainant claims he was constructively dismissed due to the breach of contract or unreasonable behaviour of the employer in failing to have any anti-harassment policy. In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of his employer.

The Complainant relies on the decision in An Employer v a Worker (Mr O) No 2 [EED0410]. He submits in applying either test, he was entitled to resign due to the manner in which he was sexually harassed.  The Complainant commenced employment on 14th June 2021 and resigned on 22nd July 2022. The harassment commenced a few months into his employment. The Complainant was aware he could complain about the actions of Ms. A. However, no attempt was made by the Complainant to bring his complaint of sexual harassment to the attention of his employer prior to resigning, even after his probation passed.

I am cognisant of the decision of the Employment Appeals Tribunal in Conway v Ulster Bank (UD474/1981) which stated:

“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. “

In the circumstances, I am not satisfied that the Complainant acted reasonably in failing to bring his complaints to the attention of his employer prior to resigning. I find the Complainant has not established a complaint of constructive discriminatory dismissal.

A prima facie case of discrimination has been shown and the probative burden has shifted to the Respondent to show that the Complainant has not been discriminated against on the grounds of his gender. The response of the Respondent is insufficient in my view to discharge the burden of proof.

I award the Complainant compensation of 45,000 euro for sexual harassment he has suffered and direct payment of this by the Respondent. 

I award the Complainant compensation of 45,000 euro for sexual harassment he has suffered and direct payment of this by the Respondent.

Sexual harassment, discrimination, constructive dismissal, victimisation