Key Learnings
This case highlights the importance of following proper procedures when investigating any allegation of sexual harassment. It is crucial to deal with claims of sexual harassment at work promptly, and any inquiry into them should ideally be conducted by a competent investigator in order to ensure natural justice and fair procedures apply. It is important for all employees and managers within an Organisation to have a strong understanding and familiarity with the dignity at work policies. Moreover, preventative measures such as the provision of training and educating staff on the meaning of dignity at work, the definitions of harassment and sexual harassment and the procedures that apply in addressing a complaint of this nature are not just required but essential.
Background
The Complainant was employed as a Telephonist/Administrator by the Respondent since 29th September 2017 and was paid a gross salary of €485.00 per week. She stated that the Respondent discriminated against her on 27 May 2021 because of an instance of sexual harassment when a male colleague placed his hands on her and attempted to pull down her trousers.
Summary of Complainant’s Case
In the course of work on 27 May 2021, the Complainant, as part of her ordinary duties, went to wrap some items and returned upstairs to her office which was an open office and was occupied by several male employees. She was leaning against the wall while holding a roll of shrink wrap in one hand and Sellotape in the other when a male colleague came up behind her and tried to pull her trousers down. This was done while the Complainant’s two hands were occupied and in front of a room full of male colleagues. The male colleague then proceeded to joke and mimic what he had just done to other female workers. None of the numerous male colleagues who witnessed this said anything or assisted the Complainant.
The Complainant stated in her evidence that the male colleague had been commenting on her appearance and weight for several months prior to this and that following the incident, she left the room. She then reported the incident to the Day Manager who didn’t tell her to go home and didn’t do anything as he told her that he had to report it to the CEO. When she went back upstairs, the male colleague was still in his seat and had not been told to leave. She subsequently spoke to the CEO by phone on 28 May 2021 and was later advised by letter dated 3 June 2021 that the matter was very “serious”, would be fully investigated and that the investigation would be completed by 10 June 2021. However, on 15 June 2021, the Respondent wrote apologising that the matter had not yet been resolved.
The Complainant stated that she was not made aware of, or provided with, any policy documents relating to discrimination, harassment or sexual harassment at work. She attended with her GP and commenced a period of sick leave on 17 June 2021 due to the assault. It wasn’t until 2 July 2021 that she was formally interviewed for her account, despite her having made the Respondent aware of the matter on 27 May 2021 and the entire incident occurring in an area covered by CCTV.
She was paid for a few weeks while she was on sick leave but stated that the Respondent then stopped paying her and she received no prior notification of this cessation of pay. When the Complainant emailed on 9 July 2021 about this, she received a reply that day asking when she would come back to work as she had been paid “for the last number of weeks in good faith”. The Complainant stated that she was not fit to go back to work and was obliged to use annual leave and then to avail of social welfare. The Complainant reported the matter to the Gardai, was attending a counsellor and remained unfit to work but despite this the Respondent continued to put pressure on her to return to work.
The Complainant was advised that the Respondent was investigating matters, and this was being conducted by their accountant. The Complainant stated that she was told this was an investigation and not a mediation. The Complainant participated in that investigation, meeting the investigator on 2 July 2021. Although the Complainant’s solicitor, was advised by the Respondent’s solicitor on 16 July 2021 that stage three of the disciplinary process would be finalised that day, he was subsequently informed on 21 July 2021 that the investigator had “finalised these proceedings”, that the male colleague had tendered his resignation and that this had been accepted.
To date, and despite requests, the Complainant has not been provided with any findings from the alleged investigation and no findings were made. She also stated that the Respondent had done nothing to address the culture in the workplace that allowed the harassment to occur and to be tolerated in the way that it was. The Complainant has never felt in a position to return to the workplace and has not at any stage resigned.
Summary of Respondent’s Case
The Respondent stated that at no time had the Complainant or any other employee made any allegation against the male colleague prior to 27 May 2021 and that such was the unique nature of the incident perpetrated by him on the day that it could not have been reasonably foreseen by the Respondent.
The Respondent also asserted that they had effective policies and procedures in the Employee Handbook which identified sexual harassment as an offence for internal grievance examination/procedures. It was also highlighted that as soon as the Complainant made them aware of the incident of 27 May 2021, a policy statement expressing a commitment to providing a working environment free of every kind of harassment, including sexual harassment, was issued to all employees, which they were required to download on their mobile phones.
Their representative also stated that they engaged an external party to carry out an investigation but that the Complainant did not fully engage with the grievance process, namely both the mediation as well as the investigation into her complaint of sexual harassment and asserted that this constituted a breach of her contract of employment. As a result of her failure to fully invoke the Respondent’s Grievance Procedure, the Respondent stated that they were prevented from taking steps to address the matter in accordance with their legislative requirements arising from the Complainant’s refusal to do so.
Findings
This is a complaint of sexual harassment by the Complainant pursuant to the Employment Equality Act. Section 14A of the Employment Equality Act addresses sexual harassment and harassment on the discriminatory grounds and provides a defence for the employer who takes reasonably practicable steps to prevent the employee from being harassed. Specifically, where an employee has been discriminated against in the workplace because of harassment, it is a defence for an employer to show that they took reasonable and practicable steps to prevent this differential treatment or to reverse its effect.
In examining this case, the Adjudicator notes firstly the Complainant’s direct evidence of a sexual assault by the male colleague, namely his placing of his hands on her and his attempt to pull her trousers down, which the Adjudicator also witnessed on the CCTV. The Adjudicator further notes that sexual assault falls under the definition of sexual harassment, the legislation provides that where an employee is sexually harassed by another employee, which in this case was a sexual assault, this constitutes discrimination by the Respondent.
The burden of proof in the first instance is on a Complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the Complainant to show that, based on the primary facts, she was sexually harassed and discriminated against.
Given that the Complainant gave uncontradicted and wholly credible evidence of the sexual assault she was subjected to by the male colleague, as outlined above, in conjunction with the evidence seen on CCTV, also outlined above, the Adjudicator finds both that she was sexually harassed and that she has discharged the burden of proof required.
Having decided that she has established a prima facie case of discrimination, the Adjudicator must examine the way in which the Complainant’s allegation of sexual harassment by the male colleague was dealt with by the Respondent and whether they can avail of defences.
While the Respondent did not explicitly dispute that the harassment took place, it was stated in their legal submission that, that they could not reasonably “have taken steps to prevent it” given that the male colleague had never acted in this way with the Complainant or any other colleague prior to the alleged sexual assault and that the incident itself was so unique that it could not possibly have been foreseen. The Respondent also sought to avail of the defence which provides that they took “such steps as are reasonably practicable… to prevent the person from harassing or sexually harassing the victim or any class of persons which included the victim”. Specifically, it was asserted that prior to the incident, the Respondent had effective policies and procedures in the Employee Handbook which identified sexual harassment as an offence for internal grievance examination/procedures. It was also highlighted by the Respondent that, as soon as the Complainant made them aware of the assault, a Dignity at Work policy statement expressing a commitment to providing a working environment free of every kind of harassment, including sexual harassment, was issued to all employees. Their representative also stated that they engaged an external party to carry out an investigation but that the Complainant did not fully engage with the process, namely both the mediation as well as the investigation into her complaint of sexual harassment and asserted that this constituted a breach of her contract of employment.
In examining if the steps allegedly taken by the Respondent prior to 27 May 2021 were sufficient to protect the Complainant from the sexual harassment she was subjected to, the Adjudicator notes firstly the Respondent’s witness’s assertion that they had effective policies and procedures in the Employee Handbook issued to the Complainant which identified sexual harassment as an offence for internal grievance examination/procedures. The Adjudicator also notes however that the Complainant disputed she received this handbook, and find, in the absence of any supporting written acknowledgement or any other evidence that she had been provided with it, that she did not receive a copy of same. Even if the Adjudicator accepts that she was provided with a copy of the Handbook, which, as stated, the Adjudicator does not, it was also notable that the grievance policy included therein, a copy of which was provided by the Respondent at the hearing, referred to a grievance being dealt with at the Advisory, Conciliation and Arbitration Services (ACAS) which is a UK and not an Irish body. In addition, the Adjudicator noted that the handbook simply provided a grievance procedure for her to address her complaint and there was no evidence presented of a clear and distinct policy on sexual harassment having been provided to her, which defined sexual harassment, and explained how the Complainant could have processed her complaint, which is typically handled in a different manner to a standard grievance, given the sensitivities involved.
As well as finding that the Employee Handbook was not provided to the Complainant, the Adjudicator also noted that there was no evidence of any training having been provided to employees on sexual harassment before 27 May 2021, the date of the Complainant’s sexual assault. While the Respondent highlighted that they issued a Dignity at Work policy statement to all employees after the Complainant made them aware of the sexual harassment that she experienced on 27 May 2021 and ensured that they downloaded a copy of this on their phones, the Adjudicator notes that an employer has preventative obligations and cannot rely as a defence on actions taken to prevent the recurrence of harassment after it has occurred. As the Adjudicator has found that prior to the incident of sexual harassment, the Respondent neither provided the Employee Handbook to the Complainant or had a policy on sexual harassment in place or provided any training on sexual harassment, the Adjudicator is satisfied that there were no preventative measures whatsoever taken by the Respondent prior to 27 May 2021.
In terms of the actions taken after the harassment, it was disputed by the Complainant that the Respondent carried out a comprehensive investigation into her allegation of sexual harassment. The Respondent’s legal representative stated however that the investigation process was complicated by the Complainant’s failure to engage with the Investigator, her refusal to engage in a mediation process and by the male colleague’s reluctance to provide evidence to the investigation before he had resigned from his position. The Adjudicator noted however the Complainant stated very clearly that there was never any suggestion of a mediation, which, in any event, given the allegation of a serious sexual assault was, in the Adjudicators view, a bizarre suggestion by the Respondent, and her assertion that she participated in the investigation when she met with the Investigator at his offices on 2 July 2021 and gave him her evidence. As the Investigator inexplicably left the WRC hearing early because he did not realise that “it would take so long”, there was no direct evidence presented by the Respondent to support their Representative’s assertion that the Complainant did not engage with the Investigator. The Adjudicator therefore finds that the Complainant did attend the investigators offices to give evidence as part of the investigation process on 2 July 2021 and noted the fact that this meeting took place was also supported by text messages produced by her. Moreover, the Adjudicator noted that the investigator is the Respondent’s accountant and there was no evidence presented to suggest that he had any expertise in these matters or had carried out similar investigations in the past. If he had, the Adjudicator believes that he would have produced a report with findings, relying on the evidence that the Complainant gave him in their meeting on 2 July 2021, even if the male colleague did not give evidence as part of the investigation which the Respondent’s representative used as a justification for him not making findings.
It would have been more appropriate, in the Adjudicators view, if, instead of their accountant, the Respondent had engaged a professional with considerable experience in carrying out investigations into sexual harassment given the very serious nature of the allegations presented. Given the inexperience of the investigator in such matters however, the Complainant was not furnished with an investigation report and I find, in the absence of such a report, that the alleged investigation did not mitigate in any way the absence of any of the Respondent’s protective and preventative procedures outlined above.
Having taken all of the above into account, the Adjudicator finds that the Respondent has failed to rebut the prima facie case of discrimination established by the Complainant given the failure to implement any protective or preventative measures prior to the sexual harassment and the wholly inadequate measures taken after the incident.
The Adjudicator must now consider the matter of redress. While I recognise that the Respondent implemented a new Dignity in the Workplace Policy after the incident, which will assist in ensuring their employees are no longer subjected to this type of behaviour in the future, this will be of little benefit to the Complainant as the Adjudicator considers it unlikely that she will return to the workplace in the short to medium term, if ever. Specifically, the Adjudicator noted the extreme distress and trauma that she displayed when giving her direct evidence, almost two years after the assault, as well as the apparent and understandable breakdown of her trust in the Respondent given their actions after she made her complaint. In particular, it is scarcely credible that she has still not received an outcome of the very serious complaint that she made. Such findings may have reversed some of the effects of the discriminatory treatment on her, which the Adjudicator witnessed at the hearing.
The Adjudicator decided to make the maximum award of two years’ remuneration both for the reasons outlined in the preceding paragraph and having regard to the effects of the discrimination on the Complainant, also outlined above.
Decision
The Adjudicator finds that the Complainant was discriminated against and order the Respondent to make a payment of €50,440 in compensation in respect of the discrimination.