Complainant

Respondent

Anonymised Parties

Care Worker

Costern Unlimited Company

Representatives

 Sean Ormonde & Co., Solicitors

Hugh Hegarty Managment Support Services

Act

Complaint Reference No.

Date of Receipt

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

CA-00057175-001

16/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00058544-001

28/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00058544-002

28/08/2023

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

CA-00058544-003

28/08/2023

The Complainant was employed as a health care assistant and commenced her employment on the 15th of September 2021. She was paid a gross salary of €839.52 per fortnight.

There were 2 complaint forms lodged with the Commission the first on the 16th of June 2023 alleging discrimination on the ground of sexual harassment. The date of the most recent discrimination was alleged to have occurred on the 24th of February 2023.

The second complaint form was lodged on the 28th of August 2023 and that alleged Unfair Dismissal; Penalisation for making a complaint under the Safety, Health and Welfare at Work Act and a separate claim of Penalisation made under the Employment Equality Act.

Harassment CA-00057175-001:

The Complainant alleged that she was subjected to sexual harassment by another work colleague. She alleged that she raised complaints with her supervisor about verbal and physical sexual harassment.  She also reported that this colleague was in her view attending at work when she observed him to be intoxicated.

She alleged that despite these allegations the Respondent employer continued to schedule both on the same shifts. While they were not in the same work area they would meet. This left the Complainant in a state of distress, anxiety and fear for her personal safety. The Complainant alleged that arising from the  Respondent Employer’s failures, she had no alternative but to leave her employment and this amounts to a constructive dismissal.

The Complainant stated that she worked in a unit where patients with the least advanced stages of Alzheimer’s were cared for. It is one of the largest units in the facility.

The Complainant was provided with the Company’s health and safety policy when she joined the facility.

On or about October 2022 the Complainant alleged that while at work and heading towards the (redacted) unit, the alleged perpetrator stood next to her, and she got an overpowering smell of alcohol from him. She stated that she was alarmed about this and reported her concern to her supervisor. She stated that there were several such incidents which she reported and was told evidence was required to support these allegations.

In December 2022 the work colleague was transferred to the same unit where the Complainant worked. The residents of this unit require more care. On or about the 30th of December 2022 the Complainant stated that she went to the locker room arising from her concerns that the work colleague was intoxicated and found an empty bottle of rum in the work colleague’s backpack. She took a video of what she found and sent it to her supervisor. Her supervisor told her that she shouldn’t have done that.

On or about the 2nd of January 2023 the Complainant escalated her complaint and sent an email to a manager about her concerns about a work colleague reporting to work with a strong smell of drink from him.

On or about the 24th of February 2023 the Complainant alleges that the same work colleague while assisting her with a patient, placed his hand on her rear end. She was startled and asked the colleague had he touched her inappropriately and he said he only touched her to so he could pass by and dd not touch her inappropriately. The Complainant alleged that it was a deliberate sexual act.

The Complainant texted her supervisor about this incident and was told to escalate this matter to a manager.

The Complainant was sick for a few days and on her return on the 9th of March 2023 sent a formal grievance to the manager. She stated that she was being ignored:

“in a previous email I brought forward incidents of substance abuse on duty and in the same I noted some unwelcome hugs which is how I described he incident…I want to clarify that that email reported the content of being touched without permission as well as working in the presence of someone under the influence.”

While the grievance was acknowledged, and her manager stated that it would be investigated; she was contacted 8 weeks after the grievance was sent to attend a meeting. During this time, it is alleged that no safeguards were put in place.

The Claimant attended at the meeting held on the 11th of April 2023. The investigation outcome was issued on the 5th of May 2023 and her complaint of sexual harassment was not upheld.

The Complainant appealed that decision, and the appeal did not find in her favour.

The Complainant still found herself rostered with or in close proximity to the alleged perpetrator. This placed her in an intolerable situation and was left with no alternative but to resign and on the 3rd of August gave 2 weeks’ notice after which her employment ceased.

Constructive Dismissal CA-00058544-001:

The Complainant brings a second complaint alleging constructive dismissal. In her additional submission dated the 28th of August 2923 at CA-00058544-001: “I had to leave my job due the conduct of my employer or others at work”.(Constructive Dismissal)

An investigation was carried out into complaints I made about a male colleague of mine including what I considered to be complaints of sexual harassment. The same colleague regularly attended work in the nursing home under the influence of alcohol and smelling of alcohol.  I disclosed all of this to my employer who undertook an investigation of sorts.  I was told that because no other members of staff were willing to come forward, they could not uphold my complaint.  I was told in relation to my concerns about his alcohol use, that unless I could come up with evidence, they could not do anything.  Now I have to see and meet this colleague regularly, despite having said that I have safety concerns about myself and other members of staff working with him. My employer still has us working the same days and the stress and worry that this has caused, and my employers handling of it has caused has left me in a position where I cannot continue.

A third complaint alleges penalisation and the facts of that allegation concern a complaint made about the Complainant and a subsequent investigation interview that she was required to attend.

I raised complaints about safety in the nursing home and after resigning was asked to come to an 'exit interview' wherein I was told a complaint had been made against me and I was to be subject to investigation. I was completely misled as to the purpose of this meeting. Then I was told that it was going to be passed to HR. The only purpose of calling me to the meeting was to penalise me as earlier I had sent a more detailed breakdown as to my reasons for resigning, which Rita told me, she had taken very personally.

This complaint  of penalisation is also brought under the Employment Equality Act, however; not particularised.

The Complainant was requested to provide any records relating to her illness and how she attempted to mitigate any financial loss.

There is some confusion relating to the complaints before this Tribunal concerning the first submission and the hearing. The final submission details the complaints that were heard by this Tribunal, and they are detailed in a document dated the 13th of February 2024:

THE WORKPLACE RELATIONS COMMISSION

IN THE MATTER OF:

THE EMPLOYMENT EQUALITY ACT 1998

AND

THE UNFAIR DISMISSALS ACT 1977

AND

THE SAFTEY, HEALTH AND WELFARE AT WORK ACT 2005

This is also consistent with forms lodged with the Commission.

No Prima Facie case has been made out by the Complainant . There is not sufficient factual evidence where this Tribunal could find that facts have been established that give rise to an inference of discrimination.

The Respondent took the allegations of discrimination and a colleague being intoxicated as very serious allegations. They were investigated thoroughly having regard to both party’s rights to natural justice. There simply was not enough evidence to support the allegations.

If the Tribunal finds that a Prima Facie case has been made out the Respondent has a robust defence. It has clear policies detailing the requirements to comply with dignity and respect codes of behaviour and specifically states that any sexual harassment is viewed as serious misconduct that could lead to dismissal.

All employees are given a handbook that detail these policies and receive induction training where it is clearly communicated to staff the standards of behaviour expected from all staff.

The Respondent is focused on prevention and cannot be held vicariously liable for an employee’s conduct where it has carried out all reasonable steps to ensure that the workplace is free of harassment and where all employees know how to escalate any grievance.

The Complainant cannot meet the test required to show that a constructive dismissal occurred. Allowing for the two-limb test, a) unreasonable conduct and b) a breach of contract, this Employer has been entirely reasonable. No fundamental breach of a contract term has occurred. They have clear policies; employees are inducted and receive a handbook and all complaints are properly investigated. The Respondent cannot make out a case that his Employer was so unreasonable they had to resign.

The Grievance and Appeal outcomes were detailed, and the basis of their findings were based on fact, fair procedures and based on persuasive logic.

There is no basis to ground a penalisation claim  under the Safety, Health and Welfare at Work Act 2005 as the Complainant was called to an interview relating to a complaint made against her.

The Complainant makes the following allegations:

1.      Despite numerous complaints she must work with a colleague who she alleges was frequently intoxicated at work, putting her and patients at risk.

2.      That this colleague on two occasions sexually harassed her by inappropriately hugging her and touching her inappropriately.

3.      That management failed in their duty to provide a safe place of work.

4.      That the Employer is vicariously liable for the actions of the work colleague who it is alleged engaged in sexual harassment, by failing to investigate her complaints  expeditiously and by continuing to allow her to work  alongside that colleague.

5.      That the working environment became oppressive and unsafe where she had no choice but to resign.

The original complaint form was lodged on the 16th of June 2023 and alleged:

·        Sexual harassment

The last date of harassment being 24th February 2023.

The form was amended on the 28th of August 2023 and made the following complaints:

·        Unfair dismissal on or about the 1st of August 2023

·        Penalisation for making a complaint under the Safety, Health and Welfare at Work Act.

Penalisation for making a complaint under the Employment Equality Act 1998.

CA-00057175-001 Employment Equality Complaint Sexual Harassment:

The Complainant stated at the hearing and in her submission that the following occurred:

“My colleague has touched me inappropriately on a couple of occassions. The same colleague is arriving drunk to work regularly. I have reported this in person and in writing. The first time that I made a written a complaint about his drinking, I was told that because I had no proof, he could not be accused of doing this. In February, we were working with a patient together wherein he came around the back of me and put his hand on my bum. I froze at the time and thereafter asked him if he had touched my bum. He told me he did but just so he could pass me. I was certified off sick for a period thereafter (unrelated) and when I returned, I met to discuss it with Management. We discussed it and I informed them that I don't think it is suitable or safe for him to be performing his duties as a carer with colleagues. I was assured it would be robustly investigated. In relation to the outcome, I met a HR professional who had been employed with the organisation for two weeks. She told me Rita had conducted the investigation and brought her in to look at it with fresh eyes and to deliver the outcome. She said because there was no witnesses and a colleague gave a statement to say that she wasn't comfortable and therefore couldn't uphold the complaint. She did recommend that we not work together going forward and that they never work together alone again. It was also confirmed that the colleague in question was meant to be off work at the time obtaining treatment for his alcohol issue. I also said that HR has no presence in the organisation and that they should undertake to make people aware that anything like this will not be tolerated. I availed of an appeal who repeated that he was dealing with a  disease. I feel as though initially and from the outset, policies and procedures should have been in place, there should have been someone known to us to deal with these issues and staff should have been made aware of who to bring these things to. At a minimum, when these things were first brought to managements attention whether orally or in writing, that they should be acted on.”

The Complainant gave oral testimony under oath confirming the above.

A Complainant must meet a prima facie test:

Prima Facie:

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a Claimant establishes a prima facie case of discrimination the onus shifts to the Respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58).

However Sexual Harassment can be distinguished from other grounds.

Sexual Harassment:

The Employment Equality Act 1998 as amended defines harassment at section 14 A as:

(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, 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.

I note that in Employment Equality Law 2nd ed (Bolger, Bruton and Kimber) Round Hall Press the scope of harassment is defined and also under the Act what constitutes harassment, importantly it can be a single event.

It is important to remember that the scope of harassment on a protected ground is an act which subjects a person to unwanted conduct on any of the protected discriminatory grounds, for example, sexual harassment, religious harassment or racial harassment. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds. In addition, the definition of bullying which has been accepted by the Supreme Court and High Court refers to “repeated inappropriate behaviour” and specifically excludes a single event. There is no similar requirement in the definition of harassment or sexual harassment in the Employment Equality Acts. Therefore, a single complaint of harassment or sexual harassment can breach the Acts.

Sexual Harassment Free Standing Complaint:

At Chapter 12.22 the authors state 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:

In spite of contextualising harassment and sexual harassment as discrimination in the Directives, it is clear from the definitions of both that there is no requirement to locate a comparator to prove either harassment or sexual harassment. Indeed, it has been very significantly recognised by the High Court of England and Wales that harassment within European law is a free-standing ground of complaint, distinct from that of discrimination. Therefore, even if arguments were made that the perpetrator of the harassment would have behaved in the same manner towards a male employee as he did towards a female employee, such arguments would be irrelevant as there is no requirement to show less favourable treatment. This is tantamount to the recognition of harassment and sexual harassment being actionable per se, and broadens the circumstances in which harassment and sexual harassment can arise and establishes them as free-standing causes of action within European and Irish law. The express recognition of sexual harassment as a cause of action carries the potential to bring the hostile environment type of harassment beyond harassment on grounds of gender so as to protect female employees from degrading treatment within the workplace, such as being given the most menial of tasks

I note that the authors reference Irish Case Law as follows:

Prior to the transposition of the Directives in the UK, the treatment had to entail less favourable treatment on a protected ground in order to amount to harassment (s.1(1), Sex Discrimination Act 1975). For example, in Stewart v Cleveland Guest (Engineering) Ltd [1994] I.R.L.R. 440 (EAT), where it was held that a woman could not complain about pornographic displays at the workplace because a hypothetical man might also have complained. Similar arguments succeeded in an Irish case where discrimination due to sexual orientation was found not to constitute gender discrimination as a man would have been treated in the same way. See Brookfield Leisure Centre Ltd v A Worker [1994] E.L.R. 79.

However, in EOC v Secretary of State for Trade and Industry [2007] EWHC (Admin) 483; [2007] I.R.L.R. 327 at 332, the High Court determined that:

63. I am satisfied that:

i)S4A(i)(a) should be recast so as to eliminate the issue of causation and to facilitate the claims which may be capable of being made as referred to in paragraphs 29 and 36-7 above.

ii)S3A should be recast so as to eliminate the statutory requirement for a comparator who is not pregnant or who is not on maternity leave.

iii)S6A should be recast so as to provide that claims which are permitted by virtue of Denda and Sass should not be excluded.

64. I propose to deliver this judgment without making an order at this stage in respect of the relevant sections and/or the Regulations which led to them, but to give the Defendant the opportunity to consider the effect of my conclusions. I shall hear Counsel on the form of order.

The abstract provides a concise summary of the case made out and held.

The claimant commission applied for judicial review of the Employment Equality (Sex Discrimination) Regulations 2005 introduced by the defendant secretary of state.

The Regulations had made amendments to the Sex Discrimination Act 1975 in order to implement Directive 2002/73.

The commission argued that the amendments did not properly implement the Directive because (1) the new s.4A(1) of the Act impermissibly imported causation into the concept of harassment by the words "on the grounds of her sex"; (2) the new s.4A(1) wrongly required that the unwanted conduct had to be by reason of, or on the ground of, the complainant's sex; (3) the new s.4A(2) inappropriately imported an objective test into the definition of harassment; (4) they had failed to introduce liability on employers for discrimination by third parties; (5) they had impermissibly introduced the requirement for a comparator for the purpose of establishing discrimination on grounds of pregnancy, and that as it was not intended that there would still be a remedy for a woman complaining of discrimination by reference to pregnancy or maternity leave under s.1 of the Act in parallel with the new right under s.3A of the Act, the new section would offend against the principle of regression because it would reduce the protection previously available; (6) the new s.6A(7) excluded a claim for discrimination during compulsory maternity leave that the complainant had been deprived of a discretionary bonus and s.6A(3) and s.6A(4) placed a substantial limit on discrimination claims that could be made in respect of the additional maternity leave period.

Held

Application granted.

(1) It was the court's duty to construe statutes and regulations passed by Member States so as to render them compliant with a relevant Directive.

Prima Facie Test Met:

I am persuaded by that case law. The evidence given by the Complainant was compelling and at minimum meets the prima facie test to give rise to an inference of sexual  harassment.

Employer Defence:

However, the Act also provides that an Employer can rebut any vicarious liability for the action of another party as detailed at section 14 A:

I note in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 the wide definition for whom an employer may be liable for actions of harassment:

12-74

Section 14A sets out a wide definition of the parties for whom an employer may be liable for actions of harassing or sexually harassing its employees. Section 14A(1)(a)(i) provides that it may constitute harassment or sexual harassment where the employee is subjected to such action at the place the employee is employed, during the course of his or her employment by a person who is “employed at the same place or by the same employer”. This appears to place the liability of an employer for actions of sub-contractors who happen to be working at the same site or place as the alleged harassed employee, who are persons over whom the employer would have no control. This is borne out of the decision of An Employer v A Worker,162 where the harassment was perpetrated by employees of a different contractor, but the Labour Court was still satisfied to place liability on the respondent, as it found that these perpetrators were employed in the same place as the complainant and the harassment occurred in the course of the complainant’s employment with the respondent. A related situation arose in Catlan Trading v McGuinness163 where the complainant was a sales assistant in a concession shop in a department store and was harassed and sexually harassed by an employee from another concession shop who worked alongside her. The Labour Court held that:

“it must examine whether or not the respondent took such steps as were reasonably practicable to prevent the person from harassing or sexually harassing the complainant, including Mr. L whom the Court accepts was a person with whom the respondent might reasonably expect the complainant to come into contact in the workplace or otherwise in the course of his or her employment”

However, the Act also provides that an Employer can rebut any vicarious liability for the action of another party as detailed at section 14 A:

14A.—(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.

The Complainant alleges that the most recent date of discrimination was 24th of February 2023.

In the Employer’s submission the Employer robustly defends its policy of proactively ensuring that all employees are free from harassment and that is supported by induction training, comprehensive policies that are updated and communicated to all staff.

The Employer carries the burden of proof once the Complainant has met the prima facie threshold of evidence. I have determined that her compelling oral  evidence at the hearing has met that threshold so that burden shifts to the employer.

The employer was requested to submit the policies that they rely upon.

The complainant’s contract of employment is submitted as evidence to show that it clearly references that Sexual Harassment is treated as Gross Misconduct and the Grievance Policy is also referenced. The contract is dated the 24th of February 2022.

The Respondent provided detailed records concerning the grievance and how it was processed including the appeal hearing. Detailed minutes were provided.

The first investigation held that there was not sufficient evidence to support the claims made by the Complainant and that decision was issued on the 5th of May 2023. The appeal decision upheld the original finding, and that decision was issued on the 20th of June 2023. The written grievance was dated the 9th of March 2023.

The Respondent stated that it did take steps to separate the two colleagues and allowing for the challenge of such grievances and the requirement to be fair to both parties it concluded the process as quick as possible.

The Respondent was requested to submit the relevant policies that they rely upon.

The Company submitted its TCHR 19 Harassment and Sexual Harassment Policy, it’s published date is the 18th of November 2023 and it is classed as version 1.

The Company submitted its TCHR 1`7 Dignity at Work policy with a published date of 18th of November 2023 and also classed as Version 1.

The alleged incidents are said to have occurred prior to the dates detailed on the policies and handbook submitted by the Respondent.

The Handbook submitted is version 2 published on the 15th of August 2023.

When the Complainant shifts the burden of proof an employer must show that they were proactive about preventing harassment.

The recent updated code of practice relating Harassment  completed by the IHREC dated 9th of March 2022 states that:

Defence of reasonably practicable steps: Section 14A(2) 52. Employers are legally responsible for the sexual harassment and harassment of employees by co-employees, clients, customers or other business contacts of the employer. However, it is a defence for the employer to prove that s/he took reasonably practicable steps to prevent the harassment, to prevent the victim from being treated differently in the workplace or in the course of employment, and to reverse any effects of the harassment.

53. In order to rely on this defence, employers must have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action. They must also have accessible complaints procedures. It should be noted that an employer may become aware of harassment or sexual harassment without a complaint being made (for example by way of exit interviews) and will therefore have a duty to act in the absence of a complaint. The measures taken to ensure effective implementation will be taken into account by courts and the WRC: employers will not be able to rely on an excellent policy if it is not implemented. The core elements of a policy and complaints procedure are outlined below.

At its height the Respondent has produced comprehensive polices; however, they are post-dated the allegations being made by the Respondent. No training records have been produced. I have concluded that on the evidence the Respondent has not discharged that burden of proof that rests on them that they took reasonably practicable steps to prevent the harassment. I made this finding as no evidence has bee presented to show that at the alleged time of the alleged incidents the employer had comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action. No details of an induction training programme have been provided. No relevant training records have been produced and polices being relied on are post-dated the alleged incidents.

Hearsay Rule:

An issue arose during the hearing concerning what evidence this Tribunal could rely upon. This specifically related to the evidence of the Complainant that she had informally brought her complaints to her supervisor. It was argued by Mr. Hegarty for the Respondent that such evidence was hearsay. Hearsay is information received from other people which cannot be substantiated. In this case it is stated as the Complainant told her supervisor about alleged discrimination and since that supervisor was not present it could not be substantiated. However, that is not the hearsay rule. The Complainant has given sworn evidence that she told her supervisor, that evidence can be relied upon as it is her direct evidence. Her evidence that she was touched inappropriately can also be accepted in so far as it is deemed credible. However, the Tribunal in this case in the first instance must accept that a prima facie case has been made out of sexual harassment and as already stated she has.

The Employer has not provided a defence so that it could discharge the onus to show that it had have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action. They must also have accessible complaints procedures. The evidential requirement to show that it was proactive and communicated their polices is absent. The evidential requirement to show that they provided relevant training is absent.

As the Complainant has made out a prima facie case of sexual harassment and that has not been effectively rebutted by the employer, by demonstrating that it took all reasonable steps to prevent harassment, I must find that the Complainant was discriminated against.

Constructive Dismissal CA-00058544-001: This claim was not particularised our detailed and cannot succeed. I determine that the Complainant was not victimised for bringing a complaint and so determine for this specific complaint the Complainant was not discriminated against:

The Complainant left her employment on the 1st of August 2023. She had exhausted the internal grievance procedures concerning alleged harassment. I have found for her concerning her sexual harassment.

A complainant must meet what is referred to as the mirror test as referenced in  Meenan, Employment Law 2nd Ed. 2023 (Round Hall):

20-82

The company referred the tribunal to the cases of Conway v Ulster Bank136 and Beatty v Bayside Supermarket.137 Both these cases clearly established that, where there is a union/management agreement containing a grievance procedure, such a procedure should be substantially followed by employees when they consider that there is a breach of contract by their employer. In Harrold v St Michael’s House,138 the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary  dismissal and  constructive  dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary  procedures before dismissing, so too an employee should invoke the employees’ grievance  procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

The question arises should the Complainant have initiated  the grievance procedure prior to resigning?

The tests applied in a sexual harassment complaint are not the same when alleging constructive dismissal which applies an objective test.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

In Berber the Supreme Court, which relates to a wrongful dismissal claim, and is persuasive relating to this statutory claim, detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if a constructive dismissal has in fact occurred; and detailed the following 4 principles to be considered:

1.      The test is objective

2.      The test requires that the conduct of both employer and employee be considered

3.      The conduct of the parties as a whole and the accumulative effect must be looked at

4.      The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

I have found the evidence of the Complainant to be credible. The Respondent states as this was a case concerning one word against another, where there was no corroborating evidence, they could not find in favour of the Complainant. That assumption is not a valid evidential requirement. This Tribunal has found the Complainant’s evidence to be persuasive and credible.

The facts in this case show that the relevant polices to ground a defence are dated November 2023 while the Complainant resigned in August 2023 and the first complaint relating to discrimination was lodged with the Commission in June 2023.

Allowing for the effects of the harassment on the Complainant and the absence of proactive policies at the date of the resignation I find that the Complainant was in fact constructively dismissed. It was reasonable for to her assume that nothing would change and there was every likelihood of future incidents of inappropriate touching by a work colleague, with little consequence. In fact, there was no requirement to make a further grievance as it would give rise to the same outcome, with limited change and continuing anxiety that without corroboration she was helpless. I must determine on these objective grounds that the Complainant was constructively dismissed.

The Safety, Health and Welfare at Work Act 2005 00058544-002:

The Employer had every right to interview the Complainant  concerning a totally separate matter to these matters before this tribunal, where someone made a complaint about her. No evidence was presented at the hearing that could support a claim under this heading. The fact that she was asked to attend an interview to discuss a complaint is not penalisation.

Victimised for taking an action set out in Section 74 of the Employment Equality Acts CA-00058544-003: This claim was not particularised our detailed and cannot succeed. I determine that the Complainant was not victimised for bringing a complaint and so determine for this specific complaint the Complainant was not discriminated against.

Sexual Harassment CA-00057175-001:

The Employer has not provided a defence so that it could discharge the onus to show that it had have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action. They must also have accessible complaints procedures. The evidential requirement to show that it was proactive and communicated their polices is absent. The evidential requirement to show that they provided relevant training is absent.

As the Complainant has made out a prima facie case of sexual harassment and that has not been effectively rebutted by the employer, by demonstrating that it took all reasonable steps to prevent harassment, I must find that the Complainant was discriminated against.

I have determined that the Complainant was sexually harassed and therefore find that she was discriminated against for the reasons as detailed.

The Complainant was on a salary of €839.52 gross weekly wage. The complaint related to two acts where the harassment related to unwanted intimate physical touching.  The fact that it repeated means the award should increase. The fact that the working environment significantly fell short of what is set out in the code of practice as detailed is another important consideration. The Complainant is on a salary of €43,628.

I award €25,000 for the effects of discrimination that have had a very profound and damaging impact on the Complainant. I order the Respondent to pay the Complainant €25,000 in compensation for the effects of discrimination.

Constructive Dismissal CA-00058544-001:

I find that the Complainant was constructively dismissed on or about the 3rd August 2023 by WhatsApp message, when she gave notice of her intention to leave the Respondent’s employment.

I have found the evidence of the Complainant to be credible. The Respondent states as this was a case concerning one word against another, where there was no corroborating evidence, they could not find in favour of the Complainant. That assumption is not a valid evidential requirement. This Tribunal has found the Complainant’s evidence to be persuasive and credible.

The facts in this case show that the relevant polices to ground a defence are dated November 2023 while the Complainant resigned in August 2023 and the first complaint relating to discrimination was lodged with the Commission in June 2023.

Allowing for the effects of the harassment on the Complainant and the absence of proactive policies at the date of the resignation I find that the Complainant was in fact constructively dismissed. It was reasonable for to her assume that nothing would change and there was every likelihood of future incidents of inappropriate touching by a work colleague, with little consequence. In fact, there was no requirement to make a further grievance as it would give rise to the same outcome, with limited change and continuing anxiety that without corroboration she was helpless. I must determine on these objective grounds that the Complainant was constructively dismissed. I find that conduct of the Employer was unreasonable and breached their obligation to her concerning mutual trust and confidence.

The Complainant has not mitigated her loss sufficiently. This in only one factor which I must consider. While providing some evidence of her search for alternative work that has not been successful, I must have regard to an employment market that is buoyant. I also have regard to a recent Labour Court decision on factors to consider.

I note in the case of Aoife Foley v Waterford Health Park Pharmacy Ltd UD/23/108 where the court determined that:

Counsel for the Respondent submits that ‘financial loss’ for the purposes of s.7 of the Act falls to be considered under three headings: actual loss, future loss and loss of rights under protective legislation and superannuation. He submits that the Complainant’s actual loss in this case is €5,742.00 and that she cannot have any future loss in circumstances where she secured employment at a higher rate than that she had been paid by the Respondent.

Finally, Counsel refers the Court to the case of Bunyan v United Dominion Trust (Ireland) Limited [1982] ILRM 404 for guidance in relation to the calculation of loss under the third heading i.e. loss of statutory rights, and submits that the Court should not have regard to this head in circumstances where the Complainant had not accrued sufficiently long service with the Respondent to bring her within scope of the Redundancy Payments Act 1967.

The Court has had particular regard to the wording of section 7(1)(c)(i) whereby the Oireachtas provided that it may make an award of compensation not exceeding 104 weeks’ remuneration to an employee who has been unfairly dismissed the amount of which the Court deems to be “just and equitable having regard to all the circumstances”. A key fact in this case, and one which has been conceded by the Respondent, is that there was not a scintilla of procedural fairness in the manner in which the Complainant was dismissed from her employment.

The second element of section 7 that the Court also notes is that the meaning it attributes to financial loss is framed as ‘including’ actual loss, estimated prospective loss etc. In short, the statute does not purport to set out an exhaustive definition of “financial loss”.

Having regard to the foregoing and to the Complainant’s submissions, the Court finds that the appropriate level of compensation payable to the Complainant in this case is €14,000.00. The decision of the Adjudication Officer is therefore upheld and the appeal fails.

The obligation to mitigate is just one factor to be considered when determining compensation and not the sole factor.

`I note in Dismissal Law the following:

In Sheehan v Continental Administration Co Ltd 114 the EAT endorsed the position set out in the second edition of this work that ‘[a] claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss.’ 115 This passage was recently adopted and applied by the Workplace Relations Commission in deeming a claimant to have made insufficient effort to mitigate his loss. 116

Where the complainant has been unavailable for work and thereby has not availed of opportunities to mitigate his or her loss, compensation will normally be reduced accordingly.

In Redmond on Dismissal Law 3rd edition at:

[24.72]

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. 111 Sir John Donaldson explained the duty in AG Bracey Ltd v Iles: 112

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay.

The test to be applied is an objective one in determining if the employee acted reasonably to mitigate loss.

I also note in Dismissal Law the following:

[24.67]

When determining compensation, the WRC must take into account all the circumstances of the case, according to the Supreme Court in Carney v Balkan Tours Ltd. 106 Section 7(1) coupled with s 7(2)(d) allow the adjudication body to look at all the circumstances including the conduct of the parties prior to dismissal.

And:

The Supreme Court 107 held on a case stated from the Circuit Court that:

(1) There was no doubt that the conduct of an employee was material in determining his or her rights to redress under the 1977 Act.

(2) Under s 6 of the 1977 Act, if the dismissal resulted wholly or mainly from the conduct of the employee there would be no right to redress whether by way of reinstatement or compensation. The Court remarked: ‘Indeed one of the surprising features of the present case is that the EAT having found that the claimant “contributed substantially towards her dismissal” ... had satisfied themselves that the employee had not contributed wholly or mainly to her dismissal.’

(3) The discretion conferred upon the tribunal (or other adjudicating body) by s 7 of the 1977 Act in relation to the computation of a payment by way of compensation was very wide.

On balance I must reduce the award having regard to the failure to mitigate loss and allowing for the circumstances of this case award €15,000 for Unfair Dismissal which I deem to be “just and equitable having regard to all the circumstances”. I order the Respondent to pay the Complainant €15,000 an amount I deem to be just and equitable having regard to all the circumstances of this complaint.

In the circumstances of this case re-engagement or reinstatement are not tenable alternatives to compensation.

The Safety, Health and Welfare at Work Act 2005 CA-00058544-002:

This complaint is not well founded as no case was made out that any penalisation occurred relating to a request to attend a meeting for a very genuine reason when a complaint was made against this Complainant.

Victimised for taking an action set out in Section 74 of the Employment Equality Acts CA-00058544-003: This claim was not particularised or detailed and cannot succeed. I determine that the Complainant was not victimised for bringing a complaint and so determine for this specific complaint the Complainant was not discriminated against.

Sexual Harassment-Constructive Dismissal