Complainant

Respondent

Parties

Andrew Loughran

Daffodil Care Services Unlimited Company

Representatives

Ger Kennedy, SIPTU 

Barry O’Mahony, BL

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-00051896-001

27/07/2022

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

CA-00051944-001

Withdrawn

28/07/2022

The respondent is a private social care provider with four residential centres.  They provide residential and therapeutic childcare services for boys and girls between the ages of 12 and 17.  Each house has a manager and deputy manager and, typically, nine social care staff.  In April 2021, the complainant commenced employment as a social care worker and was assigned to work in a house with three young people.  In January 2022, one of the boys in the house reported to the manager that he heard the complainant and his co-worker, “MOD,” having sex while they were rostered on an overnight shift.  Following a disciplinary investigation, on March 14th 2022, the young person’s allegation was not upheld.  From here on, I will refer to the young person as “YP.” 

In April 2022, the complainant and MOD submitted a grievance regarding how the respondent’s managers conducted the investigation into YP’s allegation.  An independent investigator, Ms Sarah Daly BL, was appointed to hear their grievances.  On July 27th 2022, before Ms Daly issued her final report, the complainant submitted this complaint to the WRC.  He claims that, during the investigation into the allegation of misconduct, and, during the grievance investigation, as a heterosexual, he was treated less favourably compared to a homosexual colleague.  He also claims that he was discriminated against on the grounds of his gender and family status.  

In her report of August 9th 2022, Ms Daly upheld some aspects of the complainant’s grievances, but she did not uphold most of his complaints.  The complainant resigned in October 2022.   

Chronology Leading to the Complainant Submitting a Grievance

On Wednesday, January 26th 2022, when YP reported that two staff members were engaged in sexual activity while on duty in his house, the respondent treated the allegation as a child protection issue and reported it to Tusla.  Later that day, the regional manager informed the complainant about an allegation of a child protection nature and told him that he was being suspended from work without pay, pending an investigation.  He was removed from the roster in the house and from the staff WhatsApp group.  While the management waited for direction from Tusla, the complainant was not given any information about YP’s allegation. 

The following day, a Child Protection Notification was submitted to Tusla, and Tusla was informed that the two named employees had been suspended.  Written confirmation was provided by Tusla on Friday January 28th to the effect that the respondent could proceed with their investigation. 

The complainant and MOD were requested to attend separate disciplinary investigation meetings on February 1st 2022.  The allegations to which the complainant was required respond were:

(i)               Unprofessional conduct with a colleague in the workplace concerning an allegation of engagement in sexual behaviour while on shift;

(ii)              Gross misconduct regarding breach of their duty of care when engaged in unprofessional conduct with a colleague.

The day before the meeting, the complainant and his colleague were provided with an extract from YP’s statement to the regional manager concerning their conduct.

The complainant attended the disciplinary investigation meeting on Tuesday, February 1st, accompanied by another colleague.  The respondent’s submission notes that the nature of the investigation “necessitated the asking of questions related to sexual activity.  Questions asked regarding the complainant’s relationship with ‘MOD’ were entirely necessary… and went to the core of the credibility of the complainant.”  The complainant alleges that, at this meeting, he was subjected to a humiliating and degrading experience, with no regard for his personal dignity or integrity.

Before and after the disciplinary investigation meetings, other members of staff were interviewed and the notes of these interviews were provided to the complainant and MOD for their comments.  Arising from the meetings with the witnesses, the complainant claims that he was discriminated against in the way the witnesses were asked if they had any knowledge of a romantic or sexual relationship between him and MOD.

On February 4th 2022, the complainant wrote to the respondent, informing them that he had taken advice regarding the disciplinary procedure.  He said that he had been advised that it was unlawful to suspend him without pay.  The respondent also sought advice and, on foot of this, changed the provision in their disciplinary procedure providing that employees could be suspended without pay to facilitate a disciplinary investigation.  On April 7th, the complainant was re-imbursed for three weeks’ loss of wages.

One week after the disciplinary investigation meetings of February 1st 2022, Mr Ger Kennedy of SIPTU contacted the respondent as the representative of the complainant and MOD.  Having received the notes of the meetings of February 1st, on February 17th, Mr Kennedy wrote to the respondents severely criticising the conduct of the managers who carried out the disciplinary investigation.

Over three days in mid-February, Tusla conducted an inspection at the house where the complainant and MOD worked.  During the inspection, Tusla discovered that the complainant wasn’t qualified to work as a social care worker because most of his qualification credits were in subjects other than social care, childcare or healthcare.  The respondent was advised to identify an alternative placement for the complainant while he worked to increase his qualifications.

On March 7th 2022, accompanied by Mr Kennedy, the complainant and MOD attended separate follow-up disciplinary meetings.  This time, the meetings were recorded and a digital transcript was provided to both sides.  On March 14th, the complainant and MOD were informed that the allegations made by YP were not upheld. 

Due to the need to assign the complainant to a job that was suitable for his qualifications, on March 16th, he was offered a job as a support worker in the respondent’s disability service.  This would have required him to work at a different location, around 15 kilometres from the house that he had been working in up until January 26th.  On March 30th, the complainant submitted a grievance about this.  He did not respond to an offer to have his grievance heard informally by the director of operations.      

On April 8th 2022, the complainant and MOD reported serious allegations to Tusla against the management and also regarding the conduct of a co-worker in relation to YP.  The co-worker is a gay man, who I will refer to as “CD.”  The complainant and his colleague also reported that they had been subjected to sexual assaults by CD and that the respondent had attempted to supress their concerns.  The Gardaí and Tusla were notified and CD was suspended while Tusla carried out a screening investigation.  At this point, the respondent’s policy on suspension without pay had been changed and CD was suspended with pay.  On May 3rd, Tusla advised the respondent that the child protection concerns raised by the complainant and MOD did not meet the threshold for a specific assessment and the matter was closed.  The respondent was then in a position to carry out its own investigation into the conduct of CD in relation to the allegation of sexual assault against the complainant and MOD.

On April 13th 2022, Mr Kennedy lodged 48 grievances on behalf of the complainant and MOD. 

The complainant went on sick leave on April 14th.  On April 29th, the director of operations wrote to him and asked him to come to a meeting to discuss returning to work and taking up the alternative role in the disability service.  He was also advised that Ms Sarah Daly, BL, had been appointed to hear his grievances.  The complainant replied, saying he would be on annual leave until May 9th.  On May 6th, as he had refused to return to work, he was placed on unpaid leave.

On May 4th, Sarah Daly commenced her investigation into the grievances that had been submitted by the complainant and his colleague.  On July 11th, the complainant asked to be paid any holiday pay due to him.  On July 27th, he submitted this complaint to the WRC.  On July 29th, he was offered a role in a location nearer to his home and asked to discuss this with the director of operations.  He did not take up this offer.

On August 9th, Ms Daly issued a report in which she upheld a small number of the complainant’s grievances.   Overall, however, Ms Daly concluded that his grievances were not well founded.

The complainant appealed to the respondent’s chief executive officer against Ms Daly’s findings.  Ms Daly was asked to address the points raised by the complainant and she provided a response on September 14th 2022.  On September 30th, the chief executive officer decided that the complainant’s appeal was not upheld.

On October 3rd, the complainant resigned.  By email two days later, the chief executive officer asked him to re-consider his resignation; however, on October 18th, he confirmed his decision to resign.  He was paid four weeks’ pay in lieu of notice.

In his submission, the complainant set out the chronology of events that have been described in the previous section.  My focus in this section therefore, is to present the complainant’s response to what occurred between January 26th 2022 and when his made this complaint to the WRC on July 27th.

In January 2022, when YP made an allegation about the complainant’s conduct on the night shift, the complainant was in a long-term relationship.  With his parents, he said that he shared the care of his three foster-siblings.  Due to his treatment by the respondent, he claims that he has been discriminated against on the grounds of his sexual orientation, his gender and his family status.  He also claims that, during the course of the investigation into YP’s allegation of misconduct, he was harassed and sexually harassed.

By suspending him without pay, the complainant claims that the respondent had no consideration of how this would affect his financial and mental well-being.

From the date of his commencement in the respondent’s house in April 2021, the complainant said that he had a great relationship with the young people and an excellent attendance record.  He said that the allegations made against him had a profoundly damaging effect on his personal and professional life and caused stress for his family.

When he was suspended from work on January 26th 2022, the complainant said that he told the regional manager who had telephoned him that he was shocked and dumbfounded.  Later that day, the complainant said that his partner phoned him and told him that she had been contacted by YP on a social media site.  He said that YP told his partner that he reported him for being in a relationship at work.  The complainant said that the message was offensive to his colleague, MOD.  The following day, the complainant said that he phoned the regional manager and told her about YP’s communication with his girlfriend.  He also told her that the only way that YP could have known the identity of his girlfriend is if he was given this information by another employee, who I have referred to as “CD.”

On January 27th, the regional manager was waiting for instructions from Tusla about the next steps to be taken.  A risk assessment was drafted for staff to read when coming on duty.  The risk assessment informed the staff that two employees had been suspended and that the reason was due to an allegation of sexual misconduct.  The risk assessment did not name the complainant or his colleague, but they were removed from the roster and from the house WhatsApp group, and this made it apparent to the staff that they were the subject of the allegations.  The complainant said that it was upsetting to hear that his colleagues at work were informed about YP’s allegation, and that he and MOD had not been given any details regarding what the allegation was about.

The complainant said that arising from YP’s report, a “significant event notification” (SEN) was uploaded to the respondent’s internal computer system.  This contained sensitive information and details of the sexual misconduct allegation.  The complainant said that the SEN was accessible to all staff, but it was not provided to him at the disciplinary hearing and he did not receive a copy until it was provided by the external investigator, Ms Sarah Daly, on July 26th 2022.

The complainant contends that the information contained in the SEN is a breach of his right to confidentiality and that the failure of management to act on this contributed to the circulation of sexually based allegations about him and MOD.

On January 30th, a “complaint document” was uploaded to the respondent’s internal computer system.  This contained the allegation made by YP concerning the complainant and his colleague, with their names.  The complainant said that he received this document also from Sarah Daly on July 26th 2022.  The complainant said that he received details of the allegations on January 31st, leaving him with less than 24 hours to prepare for the disciplinary investigation meeting on February 1st.

The meeting on February 1st was chaired by the regional manager and the director of services.  The complainant claims that at the meeting, which lasted for two hours and 15 minutes, they posed “numerous sexually harassing questions” about his purported sexual relationship with MOD.  He claims that the questions were intrusive, sexually harassing, degrading, and humiliating, “within a hostile, stressful and intimidating environment.”  He said that the questions were not recorded in the notes of the meeting, which, he claims were “sanitised” to minimise liability.  He said that he was not afforded the right to confirm or deny the allegations of gross misconduct. 

In his submission, the complainant gave examples of the questions that caused him such distress:

§  Did you have a sexual relationship with “MOD?”

§  Did you have sex with MOD in Cork in a hotel?

§  If I rang the hotel in Cork and asked did you and MOD share a room, would that worry you?

§  Did you have sex with MOD in a hotel in Carlow?

§  Can you describe your relationship with MOD outside of work?

§  Did you kiss MOD outside of work?

§  Did you touch MOD’s face at HIQA training?

§  Why did you sit so close to MOD on the couch?

§  Do you hold hands with MOD?

§  Do you flirt with MOD outside of work?

§  Are you and MOD in a relationship?

§  Did you put your hand on MOD’s leg?

The complainant said that, although he committed to participating in the disciplinary meeting, he did not want to be asked intrusive questions and he asked the managers to stop.  He said that he was in such a state of fear, panic and distress that he answered the questions.  He felt that he didn’t have a chance and he was taken advantage of.  He said that this treatment continued in the gathering of witness statements.

At the disciplinary meeting, the managers brought up the finding of a condom wrapper in December 2021 in the house where the complainant worked.  The complainant said that he was asked to admit that he was on duty the night the condom was found.  The complainant said that neither he or MOD were on duty that night and that he was not on duty at all in the week the condom was found.

During the disciplinary meeting, the complainant said that it was suggested to him that YP’s allegations could be reported to the Gardaí as an issue of child abuse.  He said that this caused him huge concern because his parents are foster parents to three children.

At the disciplinary meeting, the complainant said that he was not given copies of the witness statements of staff members who had already been spoken to by the investigators, and he was not told that the managers intended to interview other employees.  He received the notes of the meetings with witnesses on February 17th.

Although the allegations were ultimately considered to be unfounded, the complainant said that the humiliation he felt remains with him.  He said that his mental health is in a state of disarray and he struggles to regulate his emotions.  The complainant claims that,

§  At the disciplinary meeting on February 1st 2022, he was sexually harassed by the two managers who “pushed me to answer” multiple sexual, intrusive, invasive and degrading questions in an “intense and hostile environment.”

§  He was sexually harassed by the sexual and leading nature of the questions put to his colleagues as part of the witness interviews.

§  He was sexually harassed because he claims that the house manager and staff “facilitated and enabled the sexually driven questions” of a colleague, “CD,” and that they did nothing to stop this behaviour.

When he was provided with copies of the statements of the staff who were interviewed as part of the investigation, the complainant became aware that, in September and December 2021, CD, other staff members and the manager of the house in which the complainant and MOD worked discussed the possibility that they were in a relationship.  It appears that, in December 2021, when the house manager discussed the finding of the condom wrapper, CD and the deputy manager mentioned the complainant and MOD.

During the interviews with staff members, the complainant claims that the managers asked them “sexually leading questions” that “provided a platform for our colleagues to respond to sexually harassing verbal questioning” directed at him and his colleague and which resulted in “sexually harassing and discriminating answers.”

On February 1st 2022, the complainant said that he tried to raise a welfare concern regarding CD contacting YP on his phone and giving him private information about employees in the house.  He said that his efforts were ignored and, for this reason, on April 8th, he and MOD reported CD’s conduct to Tusla.  The complainant said that he understands that CD was dismissed by the respondent because of his inappropriate relationship with YP.

On February 9th 2022, the director of services sent the complainant an email with the minutes of the meeting of February 1st.  The complainant claims that the minutes were “highly sanitised” and he provided his own account of what had occurred.  On February 10th, Ger Kennedy of SIPTU wrote to the managers and claimed that the version of the minutes they presented was an effort to diminish the respondent’s exposure to claims of discrimination.  On February 24th, the complainant sent the managers a revised note of his version of the minutes of the disciplinary investigation meeting that took place on February 1st.  He claims that one of the omissions from the respondent’s version of the notes is his report to the managers that CD was speaking to YP about him and his colleague.  The complainant claims that the respondent failed to act on this information.  The complainant argues that, if the managers omitted this important information from their notes of the meeting, “to what degree can we ascertain the accuracy of the transcripts…from the meeting held on the 1.2.22.”

On March 7th, when he attended a second investigation meeting, the complainant was represented by Ger Kennedy.  He claims that, for the first time, at this meeting, the allegations of sexual misconduct were finally put to him.  Although he was informed on March 10th that the allegations were not upheld, the complainant claims that this finding did not exonerate him.  On April 13th, on behalf of the complainant, Mr Kennedy lodged 48 grievances concerning his treatment by the respondent.

It is the complainant’s position that, by engaging in “this sexually harassing questioning to seek answers to get to the bottom of the allegations,” the managers invaded his personal and private life.  At the meeting on February 1st 2022, he said that he answered questions against his will, but, as the meeting progressed, he told the mangers that he was uncomfortable and he asked them to stop.  The complainant claims that,

“The failure to protect my data and the circulation of the allegations throughout the entire company that were placed against me which are of a sexual and sensitive nature has posed a huge barrier in the progression of my career as the level of damage to my name and character cannot be reversed.”

Evidence of the Complainant

For most of the time that he worked in the house where YP lives, the complainant said that there were two children and two staff on duty.  Briefly, there was a third child, which required a third staff member during the day.  He said that there were no witnesses in the house when he and MOD worked on shift together.

The complainant commenced his direct evidence by referring to the telephone call to him from the regional manager on January 26th 2022.  He said that he was informed that he had been mentioned in a child protection issue and that he was suspended without pay and that a meeting would take place to investigate the issue.  The complainant said that he was dumb-founded.  He had only met the regional manager once on a Zoom call and he said that he was unsettled and distressed by the call.  He said that when he heard the reference to a child protection issue, he thought about his parents and his family.

An hour after the phone call, the complainant said that he got an email, which was copied to the director of services.  He wasn’t provided with any details of the complaint.

At 9.00am the following morning, the complainant phoned the regional manager and told her that YP had sent a private message on Instagram to his partner.  He said that the message contained some truthful and some non-truthful information.  Later that day, he was in contact with the regional manager again, who told him that she was waiting for confirmation from Tusla before proceeding with the investigation. 

The following day, January 28th 2022, the complainant said that he got a letter from the regional manager asking him to attend a disciplinary meeting on February 1st.  He said that the reference in the letter to “gross misconduct” made him think that he had been found guilty.   He said that he needed the support of this parents to manage his emotional reaction to being asked to attend a disciplinary investigation.

On January 31st, the complainant received an extract from the young person’s report to the house manager five days previously.  The extract simply states that YP reported that the complainant and his colleague “have been engaging in inappropriate intimate relations when on shift.  The complainant was upset because this report was uploaded to the organisation’s computer system which meant that staff from middle management upwards had access to it.  A copy was placed on the young person’s file which is available to social care workers and managers in the house.

While the complainant received a copy of the extract from the report of the young person, his full disclosure was not provided to the complainant until it was given to Sarah Daly, when she was investigating the complainant’s grievance in July 2022.

At the meeting on February 1st, the complainant said that the director of services explained that she would ask questions that she had prepared.  The complainant was accompanied by a colleague, but he said that he hadn’t considered that his colleague would have to take notes.  The complainant didn’t get a copy of the questions prepared by the director of services.  He said that he was very nervous at the meeting and he felt that the managers were hostile towards him, but not towards the colleague who accompanied him. 

At the meeting, the complainant said that he was asked “what was my take on the allegation?”  He told the managers that a co-worker, “CD,” told the young person about his private life.  He said that he told the managers that CD started a rumour about him and MOD and that this is how YP came to make the report about them having sex.  The director of services said that she thought that CD was a friend of the complainant’s and that he had recommended him for the job with the respondent.  The complainant said that he felt that he wasn’t being believed.  He said that he became confused when the managers both asked questions and spoke over each other and spoke over him.

The complainant said that he was never asked if he had sex with MOD at work.  He was never told what date on which YP claimed that he had sex with MOD.  He was asked if he touched her face or rubbed her leg.  He was asked about a staff night out in Cork, with MOD, CD and another employee.  He was asked if he had sex with MOD in Cork and in Carlow.  He said that the regional manager asked him if it would worry him if she phoned the hotel in Cork to find out if they shared a room.  He said that he was asked if he had a sexual relationship with MOD.

In further questions, the complainant said that he was asked if his relationship with MOD was different to his relationship with other colleagues.  He was asked by the managers if he would be worried if they spoke to his colleagues.  He was asked if he had discussed the allegations with his colleagues and he told them that he spoke to CD about a personal issue.

The complainant said that expected to have to answer questions about the workplace, but not about his private life.  He said that it seemed that the managers were trying to catch him out and he felt that he wasn’t believed.  When he spoke in defence of his character and told the managers that he was highly regarded by his peers, he claims that he was told that that wasn’t what they were here to discuss.  He said that he hasn’t recovered from having his personal life scrutinised. 

The complainant then referred to a bi-weekly team meeting on January 13th 2022 on Zoom for staff in the house where he worked.  He said that, at the meeting, the house manager informed staff that, on December 23rd 2022, a condom wrapper had been found in the house.  She told the staff that she and the regional manager would be speaking to them about it.  The complainant said that he was one of the first to be asked to attend a meeting, which he thought was informal.  He was asked if the condom wrapper was his, and he replied, “no.”  He was asked if he knew about any inappropriate relations among staff members and, again, he replied, “no.”  When he was asked if he would like to say anything else, the complainant said that he told the interviewers that he didn’t use condoms.

At the disciplinary meeting on February 1st, the issue of the condom wrapper was brought up again.  The regional manager said that she thought it was unusual at the meeting on January 13th, for the complainant to discuss his choice of contraception.  The complainant said that the meeting became aggressive and that the regional manager said, “just admit it, you were both on duty.”  The complainant said that he repeated that the condom wrapper wasn’t his.  He said that he wasn’t on duty on December 22nd, because, when he went to the house on December 21st, he was told not to go in because of an outbreak of Covid-19.  He said that he wasn’t in the building that week.

At the meeting on February 1st, the complainant said that he wasn’t aware that the managers had already taken statements from two witnesses.  On February 17th, he said that he learned that the house manager and CD had been interviewed twice before his interview on February 1st.  From their witness statements, he discovered that most of his colleagues knew about YP’s allegations before him.  He said that, by asking the witnesses leading questions, the director of services and the regional manager contributed to the spreading of rumours about him and MOD.  He said that his humiliation was compounded when he learned what his colleagues said about him.  He said that he was never given an opportunity to rebut what the witnesses said. 

When he received the note of the meeting of February 1st, the complainant said that it was not accurate and he edited it and colour-coded it to identify his corrected responses.  He said that his record was accepted “to stand side by side” with the management’s note.

The complainant described the impact on him of the allegation and the subsequent investigation.  He said that his parents were extremely worried about him and that they pleaded with him not to kill himself.

On February 17th 2022, Mr Kennedy wrote to the director of services to ask for a completely independent investigation into her conduct and that of the regional manager during the disciplinary investigation.  This was denied.  At a follow-up meeting on March 7th, the complainant was represented by Mr Kennedy.  This meeting took place over Microsoft Teams and the complainant said that, compared to how he was treated on February 1st, at this meeting, he was treated with respect.  At the meeting, he was asked if he had sex with MOD while on duty in the house where he worked.  No reference was made to his relationship with MOD outside work.   

The outcome to the disciplinary investigation was that there was insufficient evidence to prove that the complainant and MOD were having sex while on duty.  Despite this, the complainant said that he thought that “they thought I was guilty but couldn’t prove it.”  He said that he feels that he wasn’t exonerated.

When he initiated a grievance into how he was treated during the disciplinary investigation, the complainant received a copy of the full statement that the young person gave to the house manager on January 27th 2022.  He said that he also found out that two other colleagues had been interviewed, but he didn’t get a copy of their witness statements.

Concluding his direct evidence, the complainant said that the allegation destroyed his life and that he didn’t deserve what was said about him.  Every time there was a knock at his door, he thought it was the Gardaí or Tusla.  He said that he was blocked on social media and his colleagues wouldn’t take his calls.  The incident destroyed a seven-year relationship with his partner and ruined his professional life in the way it stripped him of his confidence. 

Cross-examining of the Complainant

In response to cross-examining by Mr O’Mahony on behalf of the respondent, the complainant said that he met the regional manager on just one occasion before the meeting of February 1st 2022.  Mr O’Mahony said that the regional manager’s evidence will be that she knew nothing about the circumstances of the complainant’s family and the fact that his parents are foster parents for three children.

The complainant suggested that the regional manager was biased from the outset and that she believed the report of the young person.  Mr O’Mahony asked the complainant how this could be true when the allegation against the complainant and MOD was not upheld.  The complainant repeated his assertion that the regional manager believed YP.

The complainant said that he doesn’t accept that the regional manager couldn’t disclose to him the details of the report of YP because she was waiting for direction from Tusla.  He disagreed that the regional manager gave him the details of the report on January 28th 2022.  He said he was led to believe that a child protection issue had been reported.

The complainant said that he doesn’t know why the significant event notice had to be uploaded to the organisation’s computer record and shared with colleagues.  While he wasn’t identified in the notice, the fact that he was suspended meant that he was connected to the event.  He said that he was crossed off the roster and suspended without pay.  When Tusla reviewed the allegation, they didn’t consider it a safe-guarding issue and it became a conduct issue.  The complainant said that he doesn’t think he should have been suspended.

Mr O’Mahony said that it is standard practice in the organisation to be clear and transparent about allegations made by young people.  The complainant disagreed that it was necessary for the people he worked with in the house to be made aware of the allegations.

Mr O’Mahony referred to the letter of January 28th from the regional manager in which she invited the complainant to attend a disciplinary investigation on February 1st 2022.  The complainant said that the reference in the letter to “gross misconduct” indicated a bias against him.  He said that he was confused by the letter, although he didn’t contact anyone to seek clarification.  He said that he looked for clarification at the meeting on February 1st.

The complainant agreed that, on January 31st, he received an extract from YP’s report and he agreed that the extract related to his conduct. 

The complainant said that the meeting on February 1st lasted for “two hours and a bit” and that he was accompanied by a colleague.  He said that he has an issue with the failure of the management to give him copies of the statements that they took from witnesses before they met with him.  He said that he only got these statements when his union representative intervened.  He said that information in the statements was used against him at the meeting.  Mr O’Mahony pointed out that the investigator, Sarah Daly concluded that this was not the case.  The complainant said that he disagrees with Ms Daly’s findings in this regard.

Mr O’Mahony said that the managers will say that the complainant did not ask them to stop asking him questions or to end the meeting.  He said, “they’re not telling the truth.”  He said that it wasn’t appropriate to ask humiliating and degrading questions or to ask him about his personal life and if he had sex with MOD outside work.  He said “they had no right to ask me if I was in a sexual relationship” with MOD.  He disagreed that the question, “did you have sexual relations with MOD in the unit?” was asked.  He said, “This question wasn’t put to me.”  Mr O’Mahony asked the complainant if it would have made sense for him to say that he didn’t have sex with MOD in the unit.  The complainant didn’t reply.

Mr O’Mahony pointed out that, in her report, Ms Daly concluded that the questions that were asked at the meeting on February 1st were appropriate.  The complainant replied, “Ms Daly doesn’t get to decide what I find degrading or humiliating.”

Mr O’Mahony referred to the complainant’s assertion that, at the meeting on February 1st, he was held against his will.  He said that he recalls asking for a break to use the toilet and he was told “no.” 

Mr O’Mahony referred to the complainant taking issue with being asked about social activities with MOD and he suggested that it was necessary to establish if he was in a relationship with her.  The complainant replied, “I’m entitled to my privacy.”  Mr O’Mahony said that it would have been impossible to investigate YP’s allegations without asking that question; however, the complainant disagreed.

Mr O’Mahony suggested that it is not unusual for a person in his role as a social care worker to have an allegation made against them.  He said that it is unusual for someone in his position to get into such a state of distress that they would contemplate suicide.  The complainant replied that he didn’t say that he would commit suicide but that his parents were concerned that he might think about it.   He said that he didn’t seek emergency treatment for his mental health.

The complainant said that he got a new job in September 2022 and he agreed with Mr O’Mahony that he started in the new job before he resigned from his job with the respondent.

After a short break, Mr O’Mahony moved to ask the complainant questions about the investigation carried out by Ms Sarah Daly, which commenced in May 2022.  In his submission requesting an investigation, the complainant reported that he was sexually harassed by his colleague, who we have referred to as “CD.”

The complainant said that he “showed up unannounced to Tusla” and made a complainant about the respondent and CD.  He said that CD was suspended with pay.  Mr O’Mahony referred to the fact that, while the complainant was suspended without pay, he was reimbursed.  The complainant said that this “didn’t repair the damage.”  He said that, when an allegation is made, there should be internal screening before an employee is suspended.

Mr O’Mahony asked the complainant to consider certain paragraphs in Ms Daly’s report and her findings that he was treated respectfully by the regional manager during phone calls on January 26th and 27th 2022, when she informed him that YP had made an allegation of sexual misconduct.  She also apologised to the complainant when she heard that YP had contacted his partner.  Ms Daly noted that the complainant was provided with an extract of YP’s report within 48 hours of being suspended on January 26th, and she accepted that the provision of limited information on January 26th was stressful and frustrating.

The complainant disagreed with Ms Daly’s findings that the information provided to staff in the house where he worked was reasonable and that the complainant wasn’t identified in the documents.  He said that staff were aware that he and MOD were suspended.  Ms Daly also concluded that it is not normal for a disciplinary investigation to be grounded in terms of reference.  The complainant disagreed with this and said that the investigation warranted terms of reference.

Mr O’Mahony noted that Ms Daly found that the meeting on February 1st was probably convened too quickly to allow the complainant to get advice.  She also concluded that, in the letter of January 28th, he should have been advised of his right to be represented by a union official, although she noted that this is contained in the disciplinary procedure.

Ms Daly concluded that the reference to “gross misconduct” in the letter of January 28th was not an indication of bias.  The complainant disagreed.

Mr O’Mahony referred to Ms Daly’s conclusion in which she accepted that the complainant found the meeting on February 1st difficult and upsetting: “I consider that the reason for this was due to the seriousness of the allegation and the type of questions that required discussing.”  Mr O’Mahony said that “no one is suggesting that you were not offended” but he said that the basis of the complainant’s allegation regarding discrimination on the ground of sexual orientation is based on the fact that he was suspended without pay.

Ms Daly did not find that the notes of the meeting of February 1st were “sanitised” as the complainant alleged.  The complainant said that he and MOD were permitted to include an alternative note of the meeting.  Mr O’Mahony said that this does not infer that the original notes were “sanitised.”  The complainant replied that he stands by his allegation that the notes were sanitised.

Ms Daly had no issue with the meeting with two witnesses taking place before the meeting with the complainant on February 1st and she noted that nothing in these witness statements was put to the complainant at the meeting on February 1st.

Mr O’Mahony referred to the outcome from the disciplinary investigation which was issued to the complainant on March 11th 2022.  The allegation that he engaged in sexual conduct with MOD while on shift in the house was not upheld.  The complainant said, “I didn’t see it like that.”  He said that the respondent concluded that they had insufficient evidence to prove that he engaged in sexual conduct while on duty.  He said that he doesn’t think that there was any evidence.

The complainant said that he was asked to go back to work but on different terms.  The respondent’s book of documents contains a copy of an email from the regional manager dated March 14th in which she informed him about an issue that had been identified regarding his qualifications.  The complainant attended a meeting with the regional manager to discuss his return to work, but he didn’t return.  He agreed with Mr O’Mahony, that, at the meeting on March 16th, there was a discussion about how he could upgrade his qualification and return to his original job.  In his evidence, the complainant said that he had a reason not to return to work.  He had complained that his employer sexually harassed him.  He said that he thinks it was acceptable to stay at home.  Mr O’Mahony noted that Ms Daly found that he was not harassed.

On March 30th, the complainant lodged a grievance regarding the respondent’s proposal to move him to a different role until his qualifications were upgraded.

By early April, when the complainant hadn’t returned to work, the director of services wrote to him to inform him that he would be placed on unpaid leave until he returned.  The complainant said that he didn’t trust his employer and the issue about his qualifications was another instance which caused him to not trust them.  On April 6th, the director of services sent the complainant a letter setting out his current situation regarding his job and outlining the organisation’s approach to his grievance.  The director of services informed the complainant that, as he had submitted a medical certificate stating that he was unfit for work, he would not be paid.  Responding to a question from Mr O’Mahony, the complainant agreed that the letter was a comprehensive response, but he criticised the fact that the management would not issue the correspondence to Ger Kennedy in SIPTU.

On April 13th, Mr Kennedy submitted 48 grievances for investigation in accordance with the respondent’s grievance procedure.  Mr O’Mahony noted that only three of the grievances were upheld.

The complainant agreed with Mr O’Mahony that he made complaints to Tusla about CD and his relationship with YP.  He said that Ms Daly did not investigate his allegations about the conduct of CD.  Mr O’Mahony informed the complainant that Tusla decided that the allegation did not meet the standard to be considered a child protection issue and did not conduct an investigation.  The complainant replied that he was informed that the respondent conducted an investigation and that CD was dismissed.

The complainant agreed that the director of operations wrote to him on April 29th and again on May 9th and asked him to meet him to discuss terms for him to return to work.  Although he had not returned to work, he was paid wages of €864 as a goodwill gesture.  He agreed that a letter dated July 7th from the director of operations which addressed his qualifications issue was helpful.

Mr O’Mahony reminded the complainant that, on August 9th 2022, he received the outcome from Ms Daly’s investigation.  On August 11th, he was offered an alternative position as a social care worker and he was again asked to attend a meeting to discuss his return to work.  The complainant said that he attended a meeting on August 16th at which he was asked to return, but he did not return.  He appealed against Ms Daly’s findings.  The appeal was conducted by the chief executive and based on written submissions of the complainant and Ms Daly.  On September 30th, the complainant was informed that his appeal was not upheld.

Mr O’Mahony referred to correspondence from the director of operations to the complainant on October 4th 2022.  The director of operations informed the complainant that the organisation had made a case with Tusla for acceptance of his qualifications and this had been agreed.  He was offered a role as a social care worker in a childcare setting in Wexford.  However, the complainant resigned on the same day.  He agreed with Mr O’Mahony that he had started work in another organisation before he resigned.  He also agreed that he was paid in lieu of working his notice.  He said that he doesn’t remember when he applied for the new job.

Mr O’Mahony asked the complainant if it is his position that the questions asked at the meeting of February 1st 2022 constituted conduct of a sexual nature.  The complainant replied, “yes.”  Mr O’Mahony said that, at the meeting, there was no request for sexual favours and no sexual advances were made.  The complainant replied that he was put under pressure to answer questions.

At the end of his evidence, I reminded the complainant that, on January 31st 2022, he was informed about the allegation made by the young person that he and MOD were having sex while on duty.  The complainant replied that he was never clear that the issue was not a child protection matter and it was only when he went to Tusla in April 2022 that he was told that he wasn’t under investigation for child abuse.  The complainant said that he is not disputing the fact that YP’s complaint had to be investigated, but that his complaint is about the how it was investigated, the fact that so many people were interviewed as witnesses and the reputational damage it inflicted on him.  He said that he believed he would be dismissed.  He believes that CD “coerced” the allegation from the young person.  On a positive note, he said that he is now in a new job and that it is going well.

Evidence of the Complainant’s Colleague, Ms O’Driscoll

Over two days, on June 2nd and November 1st 2023, MOD gave evidence of the investigation arising from YP’s report to the house manager on January 26th 2022.  This is a summary of her evidence, as it relates to the experience of the complainant.

MOD said that before Christmas 2021, she was asked by the manager in the house if she was aware of any inappropriate relationships between staff.  When MOD asked the manager to clarify what she was talking about, MOD said that she was asked if she was in an inappropriate relationship with a staff member.

MOD said that on January 26th 2022, she got a phone call from the regional manager.  She said that she was informed that there had been an allegation of misconduct, but she wasn’t given any information about what the misconduct was about.  She was that she was told that she was being suspended without pay.  MOD said that she received a follow-up email confirming her suspension, and then she was removed from the staff WhatsApp group and from the roster in the house.  She said that she felt left in the dark and she didn’t know what was coming next.  On January 27th, she was requested to attend a disciplinary meeting on February 1st at 1.00pm.  On January 31st, she received further correspondence setting out the nature of the allegations.  The complainant selected a colleague to attend the disciplinary meeting with her.  At 11.00am on February 1st, she got a phone call to let her know that her colleague had accompanied the complainant at his disciplinary meeting and she was advised to select someone else.  She said that she hadn’t got time to find another person to attend the meeting with her and she went ahead on her own. 

When she arrived at the hotel where the meeting was taking place, MOD said that the meeting with the complainant was still going on.  When he emerged from the meeting room, she said that he had a look of distress on his face and she said that that had an effect on her.  At the meeting, MOD said that both the mangers were taking notes and it appeared to her that there was no consistency to their line of questions.  She said that she went in blindly to the meeting and that she had no idea what she was about to face.  She said that she went to the meeting with a willingness to participate and she said that she thought that the managers would follow a fair procedure.  MOD said that the assistant director of services and the regional manager told her that they had prepared questions and that they would ask the same questions in multiple ways.

MOD referred to an online meeting in early January with the staff who worked in her house.  She said that the regional manager told the staff that a condom or a condom wrapper had been found in the house and that they would all be spoken to about it.  At the disciplinary meeting on February 1st, MOD said that she was again asked about the condom.   

MOD said that she was asked why she sat close to the complainant at a meeting.  She was asked if he visited her in her home and the suggestion was made that she didn’t have to be in a relationship to have casual sex.  The managers asked her if she would be worried if they spoke to her colleagues. 

During the meeting, MOD said that she felt uncomfortable by the questions being asked and she wanted the questioning to stop.  She said that she felt “broken down” by the questions and she didn’t feel that she could ask for a break.  She said that she was surprised by how she was treated.  She said that she trusted the assistant director of services, but she didn’t know the regional manager.

MOD accepts that YP was entitled to have his complaint investigated and she knew that the regional manager had interviewed him.  She said however, that the managers had more information than her and that she went into the meeting blind.  She claims that the managers had taken witness statements before the meeting with her and that she wasn’t told this.  She feels that YP became insignificant.

Mr Kennedy referred to an email he sent to the two managers on Tuesday, February 8th, one week after the initial disciplinary investigation meeting.  In this email, Mr Kennedy requested copies of various company policies.  He said that he never received these policies.  Mr Kennedy referred to a page from the employee handbook which refers to a policy on Equality, Workplace Bullying, Harassment and Sexual Harassment.  He said that there is no evidence that the staff or managers received training on sexual harassment.

MOD referred to an email sent by Mr Kennedy on February 10th 2022 to the managers who conducted the meeting on February 1st.  She said that she felt that the minutes of the meeting that were sent to her afterwards were not an accurate record of what occurred. 

MOD referred to the letter sent by Ger Kennedy to the regional manager on February 17th 2022, in which he asked her and the assistant director of services to withdraw from the investigation and for an independent investigation to be conducted into the way they questioned the complainant and MOD at the meetings on February 1st.  MOD also referred to the reply from the assistant director of services on February 22nd, in which she rejected Mr Kennedy’s allegation of unfairness. 

The next engagement with MOD and the respondent’s managers was on March 7th, at a meeting over MS Teams at which she was represented by Mr Kennedy.  MOD said that the approach of the managers was completely different at this meeting.  She said that, at this meeting, the allegation that she had sex with the complainant at work was put to her for the first time.  She said that, at this meeting, no questions were asked about sex outsider the workplace.

On April 13th, MOD and the complainant made the respondent aware that they felt that they were the victims of sexual harassment.  They then participated in an investigation into their grievances, chaired by the barrister, Ms Sarah Daly.  MOD said that she had no input into the selection of Ms Daly as the person to carry out the investigation.  She said that she went through a lengthy process with Ms Daly, but that she doesn’t accept the outcome.  Although she appealed against Ms Daly’s findings, MOD said that she wasn’t given an opportunity to present evidence to the appeal.

Cross-examining of Ms O’Driscoll

Mr O’Mahony asked MOD about the finding of a condom wrapper in the house where she worked in December 2021.  He asked her to consider the fact that there was no finding from the respondent’s enquiries into this matter.  MOD agreed that there was no finding, but she said that staff in the house were asked if they knew if there was a relationship in the house between employees. 

Mr O’Mahony asked MOD about the phone call from the regional manager on January 26th 2022.  MOD had said that she was told that she wasn’t entitled to know about the young person’s allegation; however, Mr O’Mahony suggested that the manager was not permitted to give her the details on that day.  MOD replied that the staff in the house knew about YP’s allegation.

Mr O’Mahony referred MOD to the letter of January 27th 2022, from the regional manager in which the manager listed the issues of gross misconduct to which MOD was required to answer.  The letter states that MOD was suspended pending an investigation into allegations of misconduct.  Mr O’Mahony pointed to the fact that MOD was suspended pending an investigation into this conduct.  MOD said that, in her opinion, she was already sanctioned.  She claims that she wasn’t given an opportunity until the meeting of March 7th 2022 to answer the allegations.  MOD said that she understands that, before it was changed, the respondent’s policy provided that an employee who is subject to a disciplinary investigation could be suspended with pay. 

MOD said that she received the details of YP’s disclosure on January 31st and she didn’t have an opportunity to prepare for the meeting on February 1st.  She said that her grievance in this regard was upheld.

Mr O’Mahony pointed out that, at the end of her investigation, Sarah Daly concluded that the respondent was correct to suspend MOD, but that it was wrong to suspend her without pay.  MOD replied that she disagrees with Ms Daly’s findings in this regard.

Mr O’Mahony referred to the fact that the investigation into MOD’s and the complainant’s allegations against CD was not upheld by Tusla.  MOD replied that CD was dismissed, although this didn’t occur on the instruction of Tusla.

MOD objects to the fact that she was suspended on foot of a significant event notice regarding YP’s report.  Her view is that, to be suspended, she should have been sent a letter by Tusla telling her that an allegation of child abuse had been made against her.

MOD disagreed that she was told on February 1st that statements would be taken from witnesses in the house.  She said that she was asked if she would be worried if other staff were interviewed.

MOD agreed that she was offered the phone number of the regional manager if she needed to contact her in advance of the meeting on February 1st.  She agreed that she spoke to the regional manager on the morning of the meeting, regarding the colleague who she had selected to represent her.  She disagreed with Mr O’Mahony that she could have asked for the meeting to be postponed.  She said that she should have been told that she could ask for a postponement.

MOD said that she takes issue with the nature of the questions asked at the meeting.  She asked, “why would they continue to ask me questions about having sex with the complainant when I replied, ‘no?’”  She said that the questions were harassing and that questions could have been asked in a way that wasn’t harassing.

MOD said that the allegation about her and the complainant emerged because CD was spreading rumours about them.  She agreed that it was necessary for an investigation to be carried out, but she said that the questions should have been appropriate and they could have been asked once.  She said that she should have been asked if she wanted to take a break during the meeting.  She feels that she was held at the meeting under duress, and against her will.

MOD said that Sarah Daly concluded that some of the questions asked at the meeting were not appropriate.  Mr O’Mahony pointed out that Ms Daly concluded that MOD was not sexually harassed at the meeting.

In her email to the respondent on February 4th, Mr O’Mahony said that MOD made no reference to inappropriate questioning.  MOD said that, by that stage, she had sought advice from SIPTU.  Mr O’Mahony asked MOD why she didn’t refer to harassment or inappropriate questions in her email of February 4th.  MOD replied that she is entitled to take her time, to try to recover and to prepare her responses.  She said that she referred to a breach of her constitutional rights.  Mr O’Mahony referred to Mr Kennedy’s email of February 8th 2022, in which he sought copies of procedures and he questioned the right of the respondent to suspend the complainant and MOD without pay.   In this email, Mr Kennedy made no reference to harassment or inappropriate questioning.  MOD said that Mr Kennedy’s email refers to unfair procedures.

Mr O’Mahony referred to the email from Mr Kennedy to the regional manager on February 10th 2022 in which he challenged the notes taken at the meetings on February 1st.  MOD said that she and the complainant put together their version of what occurred at the meetings and both versions were accepted side by side with the respondent’s notes. 

Mr O’Mahony referred to an undated letter from the regional manager and the assistant director of operations, in response to MOD’s letter of February 4th.  Mr O’Mahony suggested that, in this letter, MOD was given a response to the issues she raised on February 4th.  MOD said that the investigation into YP’s claim should have been conducted in accordance with agreed terms of reference.

Mr O’Mahony referred to the meeting on March 7th 2022 over Zoom, at which she was represented by Mr Kennedy.  MOD agreed that the meeting was recorded.  She said that the recording was shared with other staff.

Mr O’Mahony referred to the outcome of the meeting which was issued to MOD on March 14th.  The allegation of unprofessional conduct and gross misconduct arising from YP’s report that she was heard having sex with the complainant was not upheld. 

At paragraph 122 of the Sarah Daly’s report on the outcome of the grievance investigation, Ms Daly accepted that the questions that were asked at the meeting were of a personal nature and that this was uncomfortable for MOD.  In response, MOD said that there was no necessity to ask such questions and that the managers “pushed the questions too far.”

At paragraph 129 of Ms Daly’s report, she noted that MOD raised an issue with the wording of the respondent’s conclusion to the disciplinary investigation:

“…we find that the evidence is insufficient to prove an allegation on the balance of probabilities.”

 MOD replied that the language of this conclusion does not say that she and the complainant were innocent of the allegations.

For the respondent, Mr O’Mahony provided a comprehensive submission which I have summarised below.

The Disciplinary Investigation

Mr O’Mahony referred to the fact that the respondent had a policy to suspend employees without pay, pending the outcome of a disciplinary investigation.  He said that, when they got legal advice about this in March 2022, the practice ceased.  The complainant was reimbursed for the wages that he wasn’t paid during his suspension.  When CD was suspended in early April, he was suspended with pay, because the policy of suspension without pay had ceased at that stage.  The fact of his suspension without pay was not related to the complainant’s sexual orientation as a straight man and the fact of CD’s suspension with pay was not related to that fact that he is gay.

Mr O’Mahony said that, on foot of the report YP made to the house manager on January 26th 2022, the respondent was statutorily required to conduct an investigation.  A potential child protection issue had been raised and had to be taken seriously.  On January 31st, the complainant was provided with an extract of YP’s statement.  This could not be provided before the respondent received a direction from Tusla to proceed with an investigation.

The questions that the managers asked the complainant at the meeting on February 1st were related to a report of sexual activity between the complainant and a colleague.  The questions related to the complainant’s relationship with MOD were, Mr O’Mahony submitted, entirely necessary, as the answers demonstrated the credibility or otherwise of the complainant.  The questioning itself was not conduct of a sexual nature, but the questions had to be asked to allow the investigation to be conducted.  Mr O’Mahony submitted that the questions that the complainant alleges were asked at the meeting on February 1st were not asked as he alleged, or, were not asked at all and he asked me to take note of the respondent’s version of the minutes of the meeting which were included in their book of documents for the hearing.

The complainant alleged that YP’s allegation was taken as a fact, but Mr O’Mahony countered that this could not be the case when the complainant was exonerated.

Regarding the witness statements, Mr O’Mahony said that it is of no consequence when they were taken and that most of the meetings with witnesses took place after the meeting with the complainant on February 1st.

The allegation that the investigators “sanitised” the notes of the meeting of February 1st or that evidence was supressed is countered by the decision of the investigators to accept the complainant’s version of the meeting to sit alongside their record. 

The meeting of February 1st was the subject matter of comprehensive grievance investigation undertaken by a very experienced expert employment law barrister, Sarah Daly BL.  The issues raised regarding the meeting, and other matters raised in this complaint were not upheld.  The report concluded that the investigation process was adequate and did not discriminate, harasses, sexually harass, or victimise the complainant.  The report did make some criticisms of the process invoked by the respondent, but such criticism was of a minor nature, and did not impugn the disciplinary investigation.  Contrary to the complainant’s contention, he was asked,

“YP stated that he has heard you and MOD engaging in sexual intercourse when on shift, is this true?”

Mr O’Mahony submitted that the questions posed to the Complainant during the meeting were necessary and appropriate.  The allegations made by the complainant against the managers who chaired the meeting are strenuously denied and, in the investigation report of Sarah Daly were found to be without merit.

It is the respondent’s position that, at the meeting of February 1st, the complainant did not raise a concern of a child protection nature related to the conduct of CD.  If he ever had concerns, he had a responsibility to bring these to the attention of the management immediately, which he did not do.

The Employer’s Response to the Complainant’s Allegations

The respondent had a statutory duty to carry out an investigation arising from the report of YP on January 26th 2022.  The information received by the respondent was considered as a child protection issue and was treated in accordance with Tusla’s protocols for such matters.  Tusla confirmed that they were satisfied for the respondent to proceed with an investigation.  It is accepted by the respondent that the questions that were asked at the meeting on February 1st 2022 were difficult and uncomfortable for the complainant, but the investigators were obliged to conduct an investigation that they could stand over.  The outcome that there was insufficient evidence to prove the allegations demonstrates that the process was fair and of benefit to the complainant.

The complainant alleged that the respondent ignored or supressed a child welfare concern and this was repeated by the complainant and AL when they made a report to Tusla in April 2022.  The respondent strenuously denies that, during the disciplinary investigation meeting on February 1st the complainant raised a welfare concern about CD and his relationship with the young person.  It is denied that this issue was suppressed or that notes were altered.  This issue was first raised with the respondent by Tusla following the visit to their offices by the complainant and her colleague on April 8th 2022.  No record of the meeting of February 1st supports this allegation.  This allegation was not raised at the second disciplinary meeting on March 7th.   The only concern raised by the complainant during the investigation was that CD was sharing personal information about his life with YP.  It is the respondent’s position that this does not meet the criterion for a child protection report.

The complainant alleged that her right to confidentiality was breached in the way that documents were uploaded onto the respondent’s internal computer system.  The risk assessment that was drawn up to support the young person documented that he had reported that two staff members were having sex while on duty.  The employees were not identified in the document.  The young person availed of the support of two members of the team in his house to discuss what he had disclosed and how it was affecting him.

A number of employees of the house were interviewed as part of the investigation.  These employees are bound by their duty of confidentiality and there is no evidence that there was a breach of the complainant’s right to confidentiality.

Harassment

This relevant legislation for adjudication of this complaint is section 14A of the Employment Equality Act 1998 (“the 1998 Act”), a new section inserted by the Equality Act 2004, specifically addressing the issue of harassment and sexual harassment at work.  Harassment is defined at subsection (7)(a)(i) and sexual harassment is defined at subsection (7)(a)(ii):

(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.

At section 14A(1) of the 1998 Act, harassment and sexual harassment are categorised as discriminatory conduct.  While harassment may discriminate against a person on one of the nine discriminatory grounds, sexual harassment is discrimination on the single ground of gender.    

It is the complainant’s case he was sexually harassed because no one on the respondent’s management team did anything to address his allegations about the “sexually driven” conversations of his colleague, CD.  Secondly, under this heading, he also claims that the conduct of the managers at the disciplinary investigation meeting on February 1st 2022 and the intrusive line of questioning pursued by them amounts to harassment and sexual harassment.

Discrimination

Section 6(2) of the 1998 Act sets out the nine discriminatory grounds.  For our purpose in this complaint, we are concerned with three subsections:

(a) The gender ground.  The complainant claims that he was subjected to discriminatory treatment on the gender ground as a result of being exposed to sexual harassment.

(c) The family status ground.  In the way the managers conducted the disciplinary investigation meeting with him on February 1st 2022, the complainant claims that he was discriminated against on the family status ground when he felt threatened that his foster siblings could be removed from the care of his family.

(d) The sexual orientation ground.  The complainant compares himself to a homosexual colleague, “CD,” who, to facilitate an investigation into his conduct, was suspended with pay.

Victimisation

Victimisation is defined at s.74(2) of the 1998 Act as “dismissal or other adverse treatment of an employee” in response to making a complaint of discrimination or being involved in a complaint in any way such as being a witness or representing another person who makes a complaint.  It is the complainant’s contention that, as Ger Kennedy of SIPTU notified the respondent that he had been the subject of discriminatory treatment, his unpaid suspension was an act of victimisation.

The Burden of Proof - Establishing that Discrimination has Occurred

The Equality Act 2004 inserts a new section, 85A, into the 1998 Act:

85A – (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.

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred.  For the complainant to succeed in his complaint, the first hurdle he must overcome is to set out the basic facts that will lead me to assume that, because he is a heterosexual man and a brother to three foster children, he was harassed, sexually harassed and victimised and treated in a manner that was intimidating, humiliating, offensive, hostile or degrading.

Initial Findings

On November 1st 2023, at the end of the fourth day of evidence, I informed that parties that I had taken time to review their submissions and the evidence of the complainant and MOD and that I wished to set out my position on whether the facts had shown that the complainant was discriminated against.  On behalf of the respondent, Mr O’Mahony asked me to make a decision on the evidence of the complainant.  He submitted that the limit of his allegations of discrimination is that the questions asked at the disciplinary investigation hearing strayed too far.  He argued that this cannot be grounds for a complaint of discrimination.

Before concluding the proceedings on November 1st, I expressed my initial concern that the complainant had not discharged the burden of proof to show that he was discriminated against and that, on this basis, his complaints would not be upheld.  I set out my views that the issues raised by the complainant were grievances that had been fully and adequately addressed by the independent investigator, Sarah Daly, and that his complaints of discrimination were not well founded. 

In response to my initial findings, on December 18th 2023, Mr Kennedy sent me a supplemental submission.  On behalf of the respondent, Mr O’Mahony sent a reply on January 19th 2024.  I have considered all the evidence presented over four days of hearings and I have also considered the written submissions.  I will now proceed to examine the facts submitted in evidence and to set out my conclusion that the onus of proof that rests with the complainant to demonstrate that he was discriminated against has not been discharged.

Examination of the Facts

1.      Discrimination on the gender ground arising from sexual harassment due to alleged conversations about sexual matters initiated by CD.

The complainant’s evidence is that he was friends with CD for many years and that he introduced him to the respondent.  The complainant and CD were then work colleagues and were assigned to the same house, from July 2021 until January 2022, when the complainant was suspended.  The complainant raised no concerns about CD’s alleged habit of talking about sex during this six-month period.  It is my view that most reasonable people working in a social care environment with responsibility for young people would have reported a concern about sexualised conduct on the part of a colleague, or a concern that they themselves were sexually harassed by the behaviour of a colleague.  I find the complainant’s failure to report the alleged conduct of CD to be fatal to his argument that he was sexually harassed.  As he did not report any allegations of sexualised conduct on the part of CD to the management, there is no basis to his assertion that the respondent failed to address that alleged misconduct.

2.      Discrimination on the gender ground arising from harassment and sexual harassment due to the questions asked by the managers at the disciplinary meeting on February 1st 2022.

I have no doubt that the disciplinary investigation meeting was stressful and embarrassing for the complainant.  He was on notice that a young person in his care had reported that he heard him and a colleague having sex when they were on duty overnight.  To establish if there was any substance to YP’s allegations, the managers sought to establish if the complainant was in a sexual relationship with MOD.  He found this intrusive and an invasion of his privacy.  The objective of the managers who were asking the questions was to find out if the young person’s allegation was true and any reasonable person in the same circumstances as the complainant would have felt under pressure and stress.  It was logical that the questions were focused on the possibility that the complainant and MOD were in a sexual relationship which was also carried on in the workplace.

We know that sexual harassment is defined as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature.”  The complainant’s case is that the questions were unwanted “verbal conduct of a sexual nature” which had the effect of humiliating him.  It is reasonable to conclude that any employee who is the subject of a disciplinary investigation into their conduct would find themselves on the receiving end of unwanted and embarrassing questions.  The subject matter of this investigation was whether the complainant and MOD were having sex while on duty.  It would have been impossible for the managers to carry out an investigation without causing some embarrassment and humiliation for the complainant.  I am satisfied that the questions put to the complainant at the meeting on February 1st were necessary and reasonable.  The complainant’s embarrassment and humiliation are also reasonable.  While I accept that the questions were unwanted, it is my view that the pairing of “unwanted verbal conduct of a sexual nature” with “unwanted embarrassing questions about sexual activity with a work colleague” is not reasonable and that the actions of the respondent’s managers at the meeting on February 1st 2022 are not encompassed by the meaning of harassment or sexual harassment.

3.       Discrimination on the family status ground, arising from the complainant’s concern that the allegations of the respondent could have placed his parents at risk of having their foster children removed from their home.

In his evidence, the complainant said that he shares the parenting of his three foster siblings with his parents.  In this regard, he claims that he meets the definition of “a person in loco parentis” under the definition of “family status” at s.2 of the 1998 Act.  He gave no evidence regarding his role in the place of a parent.  It is my view that the only people who can claim to act “in loco parentis” of foster children are the foster parents.  The complainant is the brother of his foster siblings and the 1998 Act makes no mention of this relationship. 

If he had been dismissed for having sex with a colleague while on duty, as a person working with children in the care of the State, Tusla may have conducted their own investigation and this could have impacted on the complainant’s career prospects in the residential care sector.  I can make no comment on how Tusla might view the complainant’s relationship with his foster siblings arising from a dismissal in these circumstances.  From the perspective of a complaint of discrimination on the ground of family status, the important fact is that the disciplinary investigation was initiated not because the complainant has foster siblings, but because he was on duty on the night that YP alleged that he was having sex with MOD.  In this regard, the complainant was treated equally with MOD, who has no foster siblings.  I find that there is no basis for the complainant’s allegation that he was discriminated against on the ground of family status and his complaint in this regard is misconceived.

4.       Discrimination on the ground of sexual orientation, arising from the fact that, in January 2022, the complainant was suspended without pay, and that, later in 2022 a colleague, CD, who is gay, was suspended with pay.

The respondent’s policy of suspending employees without pay pending the outcome of a disciplinary investigation ended in March 2022, when they received advice that this was unfair.  The complainant’s wages were reimbursed and he suffered no loss of earnings, although he suffered a delay in the payment of his wages.  It is clear to me that, when CD was suspended with pay in April 2022, this was in accordance with the respondent’s amended disciplinary procedure, and was not a discriminatory act arising from the fact that the complainant identifies as heterosexual.  It is apparent to me that, anyone finding themselves the subject of a disciplinary investigation after February 2022 would have been suspended with pay.

5.      The complainant alleges that he was victimised, by being suspended without pay, and that this was in response to his union representative notifying the respondent that he had been discriminated against.

On January 26th 2022, the complainant was informed by telephone that he was suspended without pay, pending an investigation into an allegation of misconduct.  Mr Ger Kennedy of SIPTU wrote to the respondent by email on February 8th 2021.  In that email, Mr Kennedy challenged the respondent’s decision to suspend the complainant without pay.  He made no mention of discrimination.  Mr Kennedy wrote again on February 10th, and, in this email, he complained about the notes of the meeting of February 1st, which, he suggested, were intended to limit the exposure of the company to claims of discrimination on the ground of gender and family status.  This is the first mention of discrimination on behalf of the complainant, and it occurred almost two weeks after he was suspended without pay.  I understand that the complainant was restored to the payroll after approximately three weeks and that his unpaid wages were reimbursed.

Based on the facts, I am satisfied that the decision on January 26th to suspend the complainant without pay was an error which was rectified as soon as the respondent received advice about how to properly handle a disciplinary suspension.  I find no evidence to suggest that suspension without pay was in retaliation for Mr Kennedy’s suggestion on February 10th 2022, that the respondent may have a complaint of discrimination to answer. 

Consideration of the Legal Precedents

I wish to briefly address the legal precedents to which Mr Kennedy referred in his submission of December 18th 2023.

In Campbell Catering and Aderonke Rasaq[1], Ms Rasaq was dismissed for stealing bananas and the respondent was unable to produce witnesses to support its decision to terminate her employment for this reason.  In the absence of evidence to the contrary, the Labour Court concluded that her dismissal was an act of discrimination on the race ground.  In the instant case, I have concluded that it is not necessary for the respondent to present evidence, because it is my view that the complainant’s evidence is not sufficient to show that he was discriminated against. 

In his decision in Ntoko and Citibank[2], the chairman of the Labour Court, Mr Duffy, referred to a previous decision, Flexco Computer Stationary and Kevin Colter[3], where it was held that, 

“The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board [2001] ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination.  If those two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."

It is apparent from this that the shifting of the onus of proof to the respondent is conditional.  The complainant must establish the primary facts and I, as the adjudicator, must be satisfied that they are sufficient to raise an inference of discrimination.  The evidence given by the complainant demonstrated clearly that he was distressed by the disciplinary investigation that resulted from the complaint of the young person.  He also suffered financially when he was suspended without pay.  This evidence was undisputed; however, to show that he was discriminated against, the complainant must present evidence that the difficulties he experienced were rooted in the fact that he is a male and heterosexual and that he is a brother to foster siblings. 

Conclusions

The issue for me to determine is, if, on the basic facts, the complainant has shown that,

1.      He was discriminated against because the respondent failed to address an allegation that a colleague engaged in conversations about sex at work.

2.      That he was harassed and sexually harassed by the questions that were asked at the disciplinary meeting on February 1st 2022.

3.      In the initiation of a disciplinary investigation into an allegation of misconduct, this this discriminated against the complainant on the ground of his family status.

4.      In the way that he was suspended without pay in January 2022, that this treatment was because the complainant is heterosexual.

5.      That, by being suspended without pay, he was victimised for raising a complaint of discrimination.

I note the findings of the independent investigator, Ms Sarah Daly in her report of August 9th 2022.  Ms Daly identified certain unfair treatment of the complainant by the respondent.  She concluded that he should not have been suspended without pay and that this amounted to a disciplinary sanction.  She also concluded that he should have been given more time to prepare for the disciplinary investigation meeting on February 1st and that he should have been reminded that he was entitled to be represented by a union official.  Having considered all the evidence, it seems to me that, under the heading of discrimination, the complainant is attempting to revive his grievances which have been adequately ventilated.  I find that he has not satisfied the “two limbs of the test” as it was described in the Flexco case, and that the basic facts are entirely insufficient to establish that he was discriminated against.  I find that his complaints that he was harassed, sexually harassed and victimised are misconceived and without substance.

I find that the complainant has not established facts from which an inference can be drawn that he was discriminated against on the grounds of gender, sexual orientation or family status as he alleged.  For this reason, the burden of proving that discrimination did not occur does not shift to the respondent.  I decide therefore, that this complaint is not well founded.

Discrimination, harassment, sexual harassment, burden of proof