€87,000 Award after Prolonged Investigation into Employee’s Sexual Harassment Allegation
Background
The Complainant lodged a discrimination claim in the WRC on the grounds of gender following an unsatisfactory response by the Respondent to a sexual harassment complaint.
Summary of Complainant’s Case
The Complainant worked as a pharmacist in a hospital setting and noted that the Senior Pharmacist engaged in a series of incidents that she considered to be sexual harassment. She submitted that these culminated in a situation where he showed her a picture of naked male genitalia while they were alone in the pharmacy office together.
The Complainant submitted that the harasser admitted to showing the photograph to her in writing subsequently and apologised for his behaviour. The Complainant submitted that the harasser was left working in the workplace for the intervening period of more than a year while she had to move elsewhere to continue working and had to work around her colleague. She stated that she felt ostracised as she could not take part in office meetings involving her colleague or use the dispensary facilities where he worked.
The Complainant stated noted that she sent an email to HR seeking a formal process of investigation and outlined seven separate incidents of inappropriate behaviour. She stated that the interview around her complaint took place over eight months after she made the complaint. She stated that she had to continually deal with the harasser coming into her office, even though he was told not to by HR.
Summary of Respondent’s Case
The Respondent noted that it must give the Senior Pharmacist due process and that he was entitled to natural justice and fairness. It was submitted that an investigation took place and that a report recently issued in respect of the complaint.
The Respondent submitted that safety measures were put in place to limit the interactions between the Senior Pharmacist and the Complainant. The Respondent also noted that the investigation found in favour of the Complainant and that the matter had been recently progressing through a disciplinary procedure. It was nonetheless accepted that the Respondent did not do enough to protect the Complainant.
The witness for the Respondent stated that the Complainant made a verbal complaint which was followed up with a written complaint. She offered to meet with both parties but this offer was declined by the Complainant. The Respondent noted that its HR function was in a state of flux throughout this period.
The witness stated that the Senior Pharmacist was given ten days to respond to the allegations. It was agreed that greater protective measures were needed and although the Complainant felt that the measures were punitive towards her, they were well-intentioned.
The Senior Pharmacist was advised of his rights and the two were never rostered together. She stated that she met with the Senior Pharmacist a number of times arising from his repeated breaches of the Complainant’s personal space. The Respondent confirmed that it did not give consideration to suspending the Senior Pharmacist on full pay pending the outcome of the investigation and disciplinary process.
Findings and Conclusions
The Respondent did not challenge the Complainant’s version of events and affirmed many of the details given by her including the timeline that it took to deal with matters.
When the Respondent was asked whether the Senior Pharmacist was suspended with full pay while the matter was investigated, the Respondent noted that he was not as he had to be given due process and that he was entitled to natural justice and fairness. The Adjudicator noted that this approach infringed the Complainant’s entitlement to due process and natural justice and fairness.
Up to the date of the hearing, thirteen months after reporting sexual harassment against a work colleague, no disciplinary action had been taken against the alleged offender. Nothing that had been presented during the hearing and investigation called the Complainant’s credibility into question.
Although the Respondent did initiate an investigation, the investigation took longer than a year to conclude during which time the Senior Pharmacist repeatedly breached the safeguarding measures put in place. Effectively no action was taken to remove the harasser from the Complainant’s work environment.
As the Complainant had established that a work colleague sexually harassed her, the response of a reasonable Employer would have been to place the alleged harasser on paid leave while matters were being investigated. This inaction and delay served to deny the Complainant an effective remedy for the sexual harassment she was subjected to. The Adjudicator found that the Employer did not take such steps as were reasonably practicable to safeguard the Complainant and therefore the Respondent could not avail of any defence in respect of the harassment. The complainant was therefore discriminated against on the ground of gender, contrary to the Employment Equality Act.
Decision
The Complainant was discriminated against on the ground of gender, and the Adjudicator ordered the Respondent to pay the Complainant compensation of €86,717 (equivalent to 52 weeks’ remuneration).
Recommendations
In this case, the Respondent’s ineffective and delayed response to an allegation of sexual harassment amounted to discrimination on the ground of gender resulting in a WRC order to pay compensation of nearly €87,000.
The Respondent’s inaction and delay served to deny the Complainant an effective remedy for the sexual harassment she was subjected to. As the Respondent did not take reasonably practicable steps to safeguard the Complainant, it could not avail of the Employer’s defence in respect of harassment claims.
The decision serves as a seasonal reminder of the importance of ensuring that all reasonable steps have been taken to ensure that Employees are not subject to sexual harassment during the course of their employment. Organisations should ensure to respond promptly to harassment complaints particularly in the first instance to preserve a safe working environment for the Complainant and to ensure due process for the alleged harasser.