Complainant

Respondent

Anonymised Parties

An Employee

A Cafe

Representatives

Glenn Cooper of Dundon Callanan Solicitors

John Barry of Management Support Services

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-00058334-001

17/08/2023

The Complainant was an employee of the Respondent café for a period of about 12 weeks in spring/summer 2023. The Respondent operates a chain of cafes and has a structured onboarding process for new staff learning the different parts of their role. The Complainant had limited duties in these first few weeks.

A couple of weeks after the Complainant started working for the café there was a night out which was organised by the staff and about half of which attended. The Complainant attended as did the café’s Manager Mr. X.

Mr. X and the Complainant left at the same time and Mr. X walked with the Complainant part of the way home. The Complainant alleges that Mr. X pushed her up against a wall and kissed her against her wishes. Mr. X disputes this and says that he went to kiss her on the cheek as they were parting, as is customary in his country, and he accidentally kissed her and immediately apologised for the error.

The Complainant alleges that upon her return to the store Mr. X became increasingly hostile and critical of her at work and she suffered greatly from the resulting stress. The Respondent submits that the Complainant’s performance was not sufficient, and this became apparent as her role expanded. This is not uncommon with the Respondent and another member of staff who was recruited alongside the Complainant was dismissed for their performance around this time.

The Complainant resigned on the 21st of June 2023. She later submitted a complaint under the Employment Equality Acts citing gender discrimination and sexual harassment.

The Complainant attended the hearing represented by her solicitor Mr Cooper who made detailed written and oral submissions on her behalf.

The Complainant gave evidence under affirmation with the assistance of a Polish interpreter. 

She joined the Respondent after having worked for two years in a café previously. When she joined, she was given a contract and other documents were sent to her online. She uses her phone to access the internet and does not have a computer. She accepts that she signed an electronic signature on the Respondent’s onboarding documents and she would have done this on her phone on the 4th of May 2023 which is the date on the documents. She did not read it or understand the handbook. She did not know there was a bullying and harassment policy in the handbook.

She did have an online onboarding course however this was to do with workplace tasks such as how to make a coffee the right way and the appropriate style of the uniform.

She started working on the 29th of March. She was sent to wash the dishes. She was told they have to do the simple jobs first and then given access to customers and the preparation of drinks.

Mr X was the manager of the café he was pleasant towards her at first. On the 7th of April he asked her to come out to the staff drinks. She was not sure if she would go as she was new but he encouraged her. She attended the drinks but went late. 

The went first to a pub and then on to a bar. She had around three beers and decided to go home around 1am.  She said she was leaving and Mr X said he was as well.

The left together and he told her he was going to walk her home. She said that he didn’t have to and she lived nearby but he decided to walk with her anyway. They talked a little bit and at a point he stopped, pushed her against a wall and kissed her lips. She felt really uncomfortable and pushed him off her. She asked him what was he doing and he replied that she could walk home on her own and he walked off.

She is clear it was not an accident. She believes this happened on the Friday night/ Saturday morning of Easter weekend. They were not back to work until Easter Monday. At that point he apologised. They didn’t discuss it, he just said that he was really sorry for what had happened.

The Complainant told the Duty Manager Ms A. She had heard her talking with another member of staff about Mr X and saying she didn’t trust him. She then told her about what had happened.

Mr X then began treating her differently to other staff and differently to how he had treated her before. He became critical and started saying she works too slowly. The stress was too much for her and on the 20th of April and 9th of May she took days off work for sick leave telling them she had a back issue. She felt psychologically drained because how she was treated but didn’t want to advertise this, she just said she was sick. She didn’t go to the doctor.

On the 13th of May she decided she needed to contact the regional manager Ms B. She asked for assistance from a friend and wrote an email telling her there was an issue at work and asking to meet or be referred to HR. Around this time she spoke to Ms E who was a long-standing employee of the café and had worked there about 9 years. Ms E discouraged her from pursuing the matter with Ms B and encouraged her to withdraw the email.

In early June there was a new employee hired. The Complainant was surprised about this and said to Ms A, the duty manager, that she thinks Mr X wants her gone and that this was what that employee was hired for. Ms A agreed and later that day Mr X called her into a meeting and told her he was giving her one last chance. He referred to her sick leave as the reason she was at risk of dismissal.

She resigned on the 21st of June after having gone to her doctor who she named in the hearing. She went on sick leave at the same time. She had pain in her stomach and had headaches and muscle contractions. She felt exhausted and that her body was closing down. Stress at work caused these issues. Specifically the behaviour of Mr X towards her. He was criticising her all the time and hovering over her.

She was proscribed Xanax and other medication. She could not afford counselling. Her symptoms lasted for 3 months.

She got another job after a few weeks for 20 hours a week at minimum wage.  

The Complainant was cross examined by Mr Barry for the Respondent.

She agreed that the first week before the alleged incident she was solely responsible for cleaning tables and doing dishes. She was not assigned to deal with customers or make coffees yet. Mr X would supervise her.

When it was put to her that the night out was the Saturday night the 8th of April not the Friday night the Complainant was not sure.

She is sure Mr X invited her she doesn’t remember getting or replying to a WhatsApp from a different colleague Ms C.

She is sure the incident with Mr X was not an accident. He couldn’t have accidentally pushed her against the wall and kissed her on the lips.

She accepted his apology and was happy to move on with her job.

In the following weeks she started working in other areas of the café. There were the cash register, preparing milk for cappuccinos and learning coffee making. She believed she was getting on well. She agreed that Ms A and a Mr D were involved in her training. She found them good to work with.

They told her when Mr X was at work she worked differently and was stressed out. They did correct her at times but in an encouraging way recognising she was just learning.

She accepted that Mr D and Ms A did talk to her a number of times about her performance. Mr X told her she worked too slowly. She accepts that Ms A and Mr D probably said the same thing to her.

Mr X did tell her she had one last chance. She did not ask why as she felt she knew why, because she objected when he kissed her. She spoke to Ms A afterwards who told her she was on her side.

A different barista did tell her Mr X was speaking poorly about her. She decided to contact the Regional Manager Ms B at the suggestion of that barista. She contacted her to tell her what happened.  She responded to her to set up a call but Ms E had persuaded her to withdraw the complaints because she was a new employee.

She was frightened she was going to lose her job and thought matters might have improved if she left it as it was and that Mr X might start treating her normally. When she decided to resign a few weeks later she felt drained emotionally and didn’t want to try to engage with management or HR.

She got work soon after. She was sick for about 10 days after her resignation and then looked for a couple of weeks and was hired. Her hours are variable.

The Respondent’s representative Mr Barry made oral and written submissions on behalf of the employee.

The Respondent had 5 witnesses. 

Mr X the café’s manager who is alleged to have sexually harassed the Complainant.

Ms A a duty manager / supervisor.

Mr D the assistant manager.

Ms B the area manager.

Ms C the member of staff who organised the night out.

Ms C gave evidence under oath.

She worked in the café for 2 years as a barista. Almost all of it under Mr X. She finds him nice to work with.

She suggested drinks out on the 8th of April which was the Saturday of the Easter weekend. She proposed it to the people working that day as they would not be in on the Sunday. She sent Whatsapp messages later on. While they were in the pub the Complainant responded to ask if they were still there and she encouraged her to join them.

She organised it and she didn’t consider it a workplace function.

Ms C was cross examined by Mr Cooper for the Complainant.

She let people know about the drinks via Whatsapp group with all staff in it.

7-8 employees attended the drinks and between 15 - 16 work there.

Ms A gave evidence under affirmation.

She has worked in the café for 4 years and is in a supervisor/duty manager role. She tries to be very friendly with the new people and help them and answer questions. She tried to be supportive of the Complainant.

The Complainant had a lot of problems with her landlord and was under financial pressure at the time. She tried to help her and train her in. It is a very busy café and she wasn’t fast enough.

The Complainant did tell her of the incident with Mr X. She offered to help and the Complainant told her not to do anything. She later told her she was writing to Ms B the Area Manager.  Ms A was happy about this as Ms B would know what to do. The Complainant did not tell her that she had withdrawn her request to meet Ms B.

The Complainant was one of two employees hired at the same time. Neither were working out and there was a meeting to discuss who to dismiss. Mr D and Mr X wanted to dismiss both but Ms A asked to give the Complainant one more chance and just dismiss the other new hire. Mr X agreed with that.

Ms A agreed that there were performance issues and the Complainant was not fast enough and made too many mistakes and needed to improve her focus. Ms A did talk to her about these issues. The Complainant was upset as she was already under a lot of pressure with her landlord and childcare responsibilities.

Ms A was cross examined by Mr Cooper for the Complainant.

When the Complainant spoke to her in April about the incident she was upset. Ms A was shocked and didn’t know what to say but did say she would support her. The Complainant told her not to tell anyone.

She knew there was a harassment policy but did not know the detail of it. She was given a copy digitally when she started and again when she was promoted. She didn’t have any training on the policies.

She advocated for the Complainant when they wanted to dismiss her and she gave her a chance to speed up at work and tried to assist her.

The Complainant was very upset when Mr X was on shift. Ms A said this to Mr X and he said it was because he had told her that she needed to improve/speed up.

Ms A was redirected by Mr Barry. She clarified that when Mr X wasn’t there her performance was still not good enough. She never saw him act aggressively towards her.

Mr D gave evidence under affirmation.

He has worked for the company for a number of years.  He left and then came back. He was on leave when the Complainant joined. He attended the night out and was made aware of it via whatsapp.

He was involved in training up the Complainant and the other new hire. After a few weeks he believed both needed to go. They were taking too long and weren’t improving. He made that recommendation to Mr X in a meeting with him and Ms A.

He gave her feedback and she didn’t receive it well. He doesn’t know why. He felt she had a poor attitude at times.

By way of example he cited one occasion where she asked if she could go on smoke break. He looked at cameras and saw the café was busy and told her she couldn’t go. She was unhappy about this, it later became less busy and he offered to let her go but she said no at that point.

She said he was starting to treat her like Mr X. Just after that she handed in her notice and went on sick leave.

Mr D was cross examined by Mr Cooper for the Complainant.

The issue with the smoke break occurred in late April/early May. He discussed the issue with Ms A who reported the comment made by the Complainant that he was starting to treat her like Mr X was.

He did not notice the Complainant being particularly stressed.

He heard about the incident on the night out about a week or two after it occurred. Either Ms A or another barista told him. 

When he was first told he was shocked. He considered it none of his business.

He had never read the Respondent’s policies, just his contract. He got everything by email.

Mr X gave evidence under Oath with the assistance of a Portuguese translator.

He had been manager of the café for approximately two years before the Complainant joined. He was involved with recruiting her.  When someone joins the café there are five stations which they may be required to work and they get trained in in each of them. At first, they just do the kitchen and do floor both of which are straightforward.  Then they learn the till which is a little complicated and then the food products. Finally, they are trained on the coffee machine. This is also a progressive process. A new employee starts just doing shots and expands what they can do over a period of a couple of weeks.

On the 8th of April he heard a rumours that people were going out that night. He decided to join his colleagues about 7/8pm that evening.

The drinks were not in any way organised by him or the company, it was just a few work mates going out after work.

They went to a pub first then on to a bar.

At about 1.30am /2 am  he decided to go home. The Complainant said she would go at the same time. He offered to walk her home because it was very late. As they were parting he was going to say goodbye. In his country they kiss cheek when parting. He kissed her in the mouth by mistake. She was obviously uncomfortable and he apologised and left.

He apologised again the next day and the Complainant told him he didn’t need to discuss this anymore and accepted the apology.

New staff are trained up by him and the assistant manager.

He expected her to progress quickly because she had been at a coffee shop before. But she didn’t improve as expected. He has been in the industry for a while and knew she wasn’t up to the Respondent’s standards. Her role only expanded to these new stations after the night out.

It’s a very busy shop they make on average one thousand coffees a day.

The Complainant worked well in the kitchen. When she went on till her work was not as good. She made mistakes in recording orders. This slows everything down and was happening quite often. He had to talk to her about this and speed up.

The supervisors felt she wasn’t up to standard when they discussed this in their internal meetings.

There was another staff member who joined around the same time who they let go. They decided to give the Complainant a chance to improve and she was starting to improve. He met with her and told her that she was on her last chance.

He had holidays from the 18th  May to the 3rd of June but when he came back he was asked to cover another branch from 6th of June. From then on he was only visiting the location where the Complainant worked two to three days a week and not on full shift. His contact time with the Complainant was reducing.  

He denies being aggressive to the Complainant. He was drawing her attention to the standard expected. The Complainant never apologised for her mistakes and said she would improve. He didn’t see any improvement and it was not reported that she was improving from the assistant manager or duty manager.

He didn’t know she was considering resigning. She had a lot of other problems with her landlord and personal life. He wasn’t sure what was a factor for her decision to resign. At the time of her resignation he wasn’t working with her much anymore.

Mr X was cross examined by Mr Cooper for the Complainant.

He was asked by Mr D to attend the night out and had seen that it was happening in the WhatsApp group. Approximately half the café’s staff attended.

He had five pints. He accepts that he kissed the Complainant on the lips but disputes her account. He denies pushing her against the wall.

He apologised twice. That night and at their next shift. He could see she was uncomfortable and he was very embarrassed. They were going to continue to have to work together.

As time went on, he evaluated her work performance which he did not think was sufficient. He spoke to the other managers as well. Ms A did say that the Complainant was under more stress when he was there but only told him that after he came back from leave and started to attend the café less.

She started beginning of April. He went on holidays on the 18th of May. He had about five weeks to observe her work frequently before he went on leave and was assigned to monitor other stores. He thought she’d be much faster picking up her role.

Ms B gave evidence under affirmation.

She has worked for the Respondent for eighteen years.  She is area manager overseeing six cafes.

She visits the café where the Complainant worked in two to three times a month. She would have discussions with the managers when there and generally checks in them once a week either by phone or in person. Staff performance was one of the issues they would discuss.

She never met the Complainant.

The Complainant’s performance was brought up by Mr X, Mr D and Ms A. She can’t remember if she was told the Complainant would get a final chance.

She had been emailed by the Complainant and responded. The Complainant then responded saying she had sorted it out and they didn’t need to talk.

She didn’t know why the Complainant wanted to speak to her. She knew she wasn’t performing. She didn’t contact her again and she had told her there was no issue.

When she got the Complainant’s resignation, she assumed she was stressed because she wasn’t doing a good job. She thought she had made the right decision. It’s not uncommon for people to resign suddenly and some people can’t do the job.

Ms B was cross examined by Mr Cooper for the Complainant.

She didn’t investigate the Complainant’s resignation because she knew she wasn’t performing and didn’t have any other information to go off other than she was mentally exhausted.

Mr Cooper pointed out the email stated she had an issue with her manager and was scared she would not believe her. Ms A’s view is that anyone who is not performing is getting that feedback from their manager and that they’re going to have an issue with that manager. Her assumption was that it was all to do with her lack of performance.

Sexual Harassment and the Events of the April Night Out

On either Friday the 7th of April or Saturday the 8th the Complainant and Mr X joined the rest of their colleagues on a night out and left at the same time between 1am and 2am. Mr X volunteered to walk the Complainant home.

The Complainant’s evidence was that Mr X walked with her for a while and then pushed her against a wall and kissed her. She pushed him off her and asked him what he was doing. The Complainant’s evidence under cross examination was that this has been quite forceful and this could not be a mistake and that Mr X had walked off when she rejected him, saying she could walk home by herself.

Mr X’s evidence was that he and the Complainant were parting ways, and he went to kiss her on the cheek which would be normal in his country, but he accidentally kissed her on the lips and they were both embarrassed and went their separate ways. He apologised to her.

Ms A’s evidence was that shortly after the night out the Complainant reported the interaction with Mr X. Mr D also gave evidence that he was aware of the incident a week or so later due to Ms A telling him and another member of staff who did not give evidence to the tribunal also telling him.  The Complainant also gave evidence that she told a further colleague and wrote an email to the regional Manager Ms B though did not specify what happened in this email.

On review of all the evidence available to me I determine that on the balance of probabilities that the incident unfolded as alleged by the Complainant and that she was pushed up against a wall and kissed by Mr X while walking home from the bar. The fact that she reported the encounter to colleagues soon after and then later contacted the area manager would generally support her version of events over that of Mr X whose account is of an obviously accidental interaction.

Section 14A subsection 7.a.ii of the act provides that 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.

Mr X’s conduct clearly falls within that definition.

Employer Liability –Course of Employment

The Respondent’s representative has submitted that the events of the night out in April 2023 fall out of the scope of this act.

Section 14A subsection 1.a states that an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is …employed at that place or by the same employer

The question therefore arises whether the night out can be considered “otherwise in the course of his or her employment”.

The Respondent’s representative has pointed out that this event was organised by a member of staff without the involvement of the company. Ms C gave evidence that this was at her initiation not Mr X whose evidence was that he was first invited to the event by the Assistant Manager Mr D. The Complainant’s evidence was that she was encouraged to attend by Mr X.

The Complainant’s solicitor has referred me to the decision of the Equality Tribunal in A Female Employee -v- A Recruitment Company DEC-E2008-015 which similarly considered a night out which was not formally organised by the company. In that case the Equality Officer found the employer liable noting:

In the present case, the manager, the complainant and other employees from the respondent company were on a social night out after work.  Indeed the complainant would not have been present had she not been employed in the respondent body.

The night out was attended exclusively by employees of the Respondent. It was organised by an employee of the Respondent through the staff WhatsApp group and the manager attended. The Complainant would not have been in attendance had she not been an employee of the Respondent. In the circumstances I am satisfied that this setting falls within the scope of Section 14A.

I note that the Respondent’s representative has put forward a common-sense argument that employers should not be put in the position of having to discourage or actively ban staff socialising for fear of liability arising. I understand this position and generally agree with it. However, I am satisfied that Section 14A  subsection 2, considered below, provides a sufficiently broad defence for employer who have taken reasonably practicable steps to prevent workplace harassment.

Employer Liability – Defence under Section 14A subsection 2.

Section 14A (2) states that: If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim….

The Respondent has referred to its handbook which was given to the Complainant in soft copy. The handbook has a clear section on sexual harassment and a procedure for reporting and investigating allegations of harassment.

After the incident on Easter weekend the Complainant spoke to Ms A who was generally supportive. She did not refer her to any sort of harassment or suggest she escalate matters. Ms A confirmed the same in evidence.

She acknowledged her electronic signature confirming she had read and understood the handbook.  This was dated the 4th of May which was six or so weeks after she joined and after the incident on Easter weekend. There was no induction or hard copy of the document given to her she did not believe it was practicable to fully read the document on her phone. It was also only provided to her in English. Her evidence was that she remained unaware of any sort of sexual harassment or dignity at work policy.

The Complainant’s evidence was that she felt penalised in work by Mr X in the weeks following the incident. On Saturday May 13th the Complainant wrote to the Area Manager, Ms B, asking to either meet with her to discuss a matter or be referred to HR. Ms B responded promptly on Monday and tried to set up a call.  The Complainant’s evidence was that she then spoke to a colleague Ms E about the incident and Mr X’s alleged conduct afterwards. Ms E was not senior to her in role but was the longest serving member of staff in that branch. The Complainant’s evidence was that Ms E discouraged her from pursuing the matter further and on the 16th she replied to Ms B saying everything was okay.

On this issue there was some confusion on the question of hearsay. The Respondent’s representative interjected on a number of occasions arguing that this evidence could not be accepted as Ms E was not there to give evidence. Ms E was still a member of staff of the Respondent and they had the opportunity to present her either at the first hearing date or in the resumed in person hearing and did not. As the Complainant’s solicitor correctly pointed out, the rule on hearsay does not prevent a witness from providing evidence as to what was said to them, it is a limitation on what those statements can themselves evidence. The Complainant was able to provide evidence that Ms E discouraged her from making a complaint about her being sexually harassed.

The Complainant’s supervisor, Ms A gave evidence that she was aware of that there was a sexual harassment policy but did not know the detail of it. She was never trained on it.

The assistant manager Mr D gave evidence that he was not aware of the policies in the handbook and had only read his contract.

Neither Ms B the Area Manager or Mr X the Manager gave any evidence that they had been trained on the policy or had done anything to promote its knowledge amongst staff or more junior management.

The Complainant’s solicitor referred me to A Hotel v. A Worker, EDA0915, where the Labour Court found that for the employer to avail of the defence under subsection 2 their anti-harassment or dignity at work policy must be effectively communicated to all and that management must be trained in how to deal with incidents of harassment and how to recognise it.

In the circumstances I agree that this defence is not available to the Respondent and they are liable for the sexual harassment of the Complainant.

The Complainant’s treatment at work after the April night out

There is a separate basis by which an employer can be found to be liable for an act of harassment under Section 14.A.1.b. This subsection relates to the employee being treated differently due to them rejecting the harassment. Liability for the harassment that occurred on the April night out has already been determined on the basis of Section 14.A.1.a.

However, the Complainant’s allegation that Mr X treated her differently due to her response to the act of harassment still needs to be considered particularly in the context of redress.

The Complainant’s evidence was that Mr X became overly critical and hostile after the act of harassment on the 8th of April. Her evidence on this point was quite general.

Mr X, Ms A, Ms B and Mr D all provided evidence which confirmed that the Complainant was in the process of being trained into her role and that this was a progressive process where the Complainant’s role expanded over a period of weeks and that as she took on more responsibility it turned out she was not up to the Respondent’s standards.

I found the evidence of Mr D and Ms A to be credible and particularly relevant to the question of whether the Complainant’s day to day performance was being legitimately criticised or whether Mr X was retaliating against her. It is also notable that another member of staff was treated in a similar way at the time and was actually dismissed whereas the Complainant was given another chance, due to Ms A advocating on her behalf.

I do not find that there was any penalisation of the Complainant for her response to Mr X’s harassment of her on the night out or that her resignation was forced by his actions.

Redress

Section 82 subsection 4 sets out my jurisdiction to make an award of compensation.

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(I) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000

The Complainant was not in receipt of remuneration at the date of the reference of the case nor was she dismissed. In the circumstances, the maximum amount that I can award under section 82(4) of the EEA is €13,000.

The Complainant was employed by the Respondent for approximately twelve weeks. I accept her evidence that she was harassed and extremely affected by the act of harassment. While I do not find that Mr X targeted her or retaliated against her I think it is reasonable to conclude that his action in harassing her damaged the working relationship and resulted in the Complainant finding his performance feedback punitive and unduly stressful.

Having regard to all the circumstances I award her €12,000 in compensation.

I find the complaint well founded and direct the Respondent to pay the Complainant €12,000 in compensation.