Complainant

Respondent

Parties

Tamara  McCann

Tesco Ireland Limited

Representatives

Jim Fuery of Mandate Trade Union

Niamh Ní Cheallaigh of IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056979-001

02/06/2023

The Complainant is a part-time worker who mostly works weekends for the Respondent retailer.

She alleges that in May 2021 she was sexually harassed by a colleague. The Respondent did investigate the matter but determined the complaint was unfounded because there were no witnesses to the incident. The Complainant believes that this was not a well-reasoned finding and appealed. She provided two witnesses. One to her having reported the issue immediately after it occurred and another who alleges that she experienced similar, though less severe behavior from the accused.  The Respondent declined to interview these witnesses and still did not uphold the complaint.

The Respondent submits that they carried out a thorough investigation and were unable to obtain any independent evidence of the alleged incident. The accused colleague denied having harassed the Complainant.

The Complainant’s Union official, Mr Fuery, made written submissions, and the Complainant attended the hearing and gave evidence under affirmation.

She outlined in evidence how she had been inappropriately touched by a colleague, X, while at work in an “accidentally on purpose” way. Her evidence was that he was known for this kind of behaviour.

A second incident happened not long after. While the same colleague deliberately stood so that his crotch was at her face while she packed items.

Afterwards she discussed these incidents with a number of colleagues who told her he was known for this sort of behaviour.  She then reported it to her colleague and team leader Ms Magaret O’Connor. She referred her to the duty manager. When the Complainant spoke to him, he tried to dissuade her from doing anything formal and told her that it would be hard to prove and that she could be done for defamation she agreed to le him handle it informally.

Around this time X was promoted to team lead. The Complainant was shocked by this turn of events as he was going to be overseeing young women working for the Respondent. She decided to lodge a formal grievance with the company in July 2021. However, she went on sick leave shortly afterwards and the investigation did not get going until May 2022.  When she returned to work and the investigation resumed her relationship with her duty manager became strained and he stopped talking to her.

When the investigation began, she did ask two other women who she was aware of having been harassed in a similar manner to come forward. They were unwilling to do so, fearing retaliation or the reactions of their partners.

Her duty manager disputed her allegation that he had tried to dissuade her from complaining and stated that she hadn’t mentioned the alleged harassment to him when she says she did. X stated he didn’t remember any such interaction. The investigator found that her complaints were unfounded.

She then appealed the investigation findings.

She sought and obtained a statement from Ms O’Connor and a colleague Y who had since left the company. Ms O’Connor confirmed that the Complainant had complained to her and that she had referred her to the duty manager. Y confirmed that the Complainant had brought the matter up and had told her she had brought it to the duty manager who had tried to dissuade her from taking it further. Y also had also experienced behaviour from X which was similar to what the Complainant had experienced.

Mr Gibney who heard the appeal stated that he would not interview these two witnesses but that he was accepting the statements as “bona fide”.

Mr Gibney did not overturn the original decision but found that there needed to be some form of engagement between the Complainant and the duty manager to restore the relationship. This never occurred and the Complainant continued to feel ostracised by her duty manager.

Ms Margaret O’Connor gave evidence under affirmation.  

She is the Complainant’s team lead. She remembers clearly the Complainant coming to her and that she asked her who from management was in that day. The Complainant said X was touching her inappropriately. Ms O’Connor rang the duty manager and sent the Complainant up to him.

She confirmed that she did not witness the incident itself.

The Respondent IBEC rep, Ms Ní Cheallaigh, made written and oral submissions on behalf of the Respondent.

Ms Sharon Wallace gave evidence under affirmation regarding the investigation she conducted into the Complainant’s allegations in June 2022.

She interviewed both the Complainant and the duty manager and X. She then interviewed the Complainant again because she had some questions around the duty manager’s answers. At this point the CCTV was gone as it is not retained after 28 days.

On review of the evidence, she did not believe she could make a finding upholding the allegation. She recommended retraining for the duty manager.  

Mr Paul Gibney gave evidence under affirmation.

He conducted the appeal. He met with both the Complainant and Ms Wallace at the outset to better understand the investigation and appeal. He considered the matter in detail but took the view that the Complainant’s additional witnesses were truthful but that they hadn’t been present when the actual harassment was supposed to have taken place. While Ms Y’s statement contained issues which should have been the subject of her own complaint and that should have been made to the Respondent while she was still and employee. He had no way of investigating it after she left the business.

The Complainant told him that the duty manager had stopped talking to her and so he recommended mediation. He doesn’t know why it didn’t take place.  

The Complainant provided clear and convincing oral evidence that she was sexually harassed in the workplace by her colleague who I will refer to in this decision as X. X did not give evidence to the hearing, but I understand from the Respondent’s subsequent investigation that he rejects the claim.

Section 14A of the Employment Equality Acts (“EEA”) provides that sexual harassment is form of discrimination, as prohibited by the EEA.   

The incident was alleged to have occurred in May 2021. The Complainant’s union submitted her complaint on the 2nd of June 2023.

I have jurisdiction to consider a complaint under the Employment Equality Acts by way of Section 77 of the act. A complaint must be made to the WRC within 6 months of the contravention of the act. This time limit can be extended up to 12 months in certain circumstances.

In this case the harassment was alleged to have occurred just over 24 months before the complaint was filed. As such it is simply not within my jurisdiction to consider. The Complainant and her representative where rightly critical of the Respondent’s decision to ignore potentially important circumstantial evidence and they provided submissions regarding the case law on employer responses to sexual harassment claims. However, it is important to note that those matters only arise in the context of the defence provided to employers under Section 14A.2 of the EEA. An alleged failure to properly investigate a complaint of sexual harassment is only relevant when the complaint of sexual harassment itself is before me. It concerns a defence to a complaint rather than a complaint in of itself.

In the complaint form submitted by her union the Complainant did allege that she had been discriminated against on the basis of gender as well as harassed. She did not submit a complaint of victimisation.

Discrimination is set out in Section 6 of the act.

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

The Complainant has simply failed to make out the case as to how the appeal outcome, which was within the cognisable period, was an act of discrimination in of itself. While she is unhappy with the outcome and is critical of the Respondent’s decision not to interview a number of witnesses, she has not identified how this appeal would have been handled differently if she was not a woman nor has she identified any man who was treated differently in the context of an appeal outcome in to a complaint he had made.

In the circumstances the complaint must fail.

I find that the complaint is not well founded.