Award of Two Years’ Pay for Complaint of Sexual Harassment Managed Poorly

Key Learnings
This Case is a reminder to Employers to ensure that any investigation of a complaint affords all parties natural justice and fair procedures. In particular it is incumbent upon any Employer to ensure that best practice is applied, and that the procedure is aligned to the Code of Practice.

All applications of procedure should ensure the complainant and alleged perpetrator are provided opportunity to discuss and answer any complaint, are provided the option of representation, evidence in advance, records of meetings signed off, witness testimony provided to both parties to review and that all consideration is given to any decision made. Any Investigation finding should be a finding of fact, flowing from the evidence established throughout the investigation process, and should confirm what allegations are being upheld or otherwise.

The Complainant, a postal operative with the Respondent, made a complaint of sexual harassment.

Complainant’s Case
She claimed that she was inappropriately touched by a colleague on 22 February 2022. She claimed that while she was talking to another colleague, he came up behind her and put his hand on the inside of her thigh. She pushed him away stating that she had warned him before not to do that. A few days later, the Complainant reported the incident to the floor manager and made a written statement.

CCTV of the incident was obtained, and a statement was made by the colleague with whom the Complainant had been speaking at the time of the incident. The allegations were put to the alleged perpetrator who merely stated that he had no knowledge about the incident.

The incident was investigated by a person in ‘floor operations’. The Complainant was not interviewed. In May, she was told that there was insufficient evidence to uphold the complaint as the CCTV did not show any inappropriate contact and the statement from the colleague did not provide any supporting evidence, merely that she observed the Complainant’s shocked reaction.

The Complainant appealed to the HR Manager. An appeal meeting was held in June 2022 and the person who conducted the initial investigation was in attendance as a note taker. CCTV was not reviewed, and the Complainant was not asked about events that led to her making the complaint. The original outcome was upheld. The Complainant complained that the investigation was unsatisfactory, and that the Respondent did not follow their own procedures set out in their employee handbook.

Respondent’s Case
The Respondent submitted that the incident was fully investigated under the Dignity at Work Policy.

Findings & Conclusions
Section 14A Employment Equality Act 1998 (“EEA”) provides that if sexual harassment by someone other than the employer can be regarded as discrimination by the employer, the employer may rely on the defence that they took such steps as were reasonably practicable to deal with the allegation of sexual harassment. The Adjudicator considered the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 which provides that the investigation of any complaint is “handled with fairness, sensitivity and with due respect for the rights of both the complainant and the alleged perpetrator”. The investigation should adhere to the rules of procedural fairness including informing the complainant and the alleged perpetrator of the procedure, their right to be represented, and giving them full details in writing of the complaint and witness statements.

The Adjudicator held that it was clear that the investigation fell “very short” of what was set out in the Code of Practice and what was necessary to avail of the defence under s.14A. In respect of the appeal, the Adjudicator noted that the Complainant and the alleged perpetrator were interviewed but the notes of both did not indicate that there was a rigorous discussion of the incident. The separateness of the appeal from the initial investigation was compromised by the presence of the investigator at the interviews.

The Adjudicator further noted that the CCTV, because of the position of the camera, did not show if physical contact took place, but it did show the perpetrator coming in close proximity to the Complainant and pushing her. The Adjudicator held that given the Complainant’s statement and the CCTV, the complaint should have been taken seriously and investigated in accordance with the Dignity at Work, Anti Bullying and Harassment policy. There were many deficiencies in both the initial investigation and the appeal. Accordingly, the Respondent could not rely on the s.14A EEA defence.

The Adjudicator noted that it was unclear why local managers considered it appropriate to deal with such a complaint locally, with no reference to HR.

The Complainant succeeded in her complaint of sexual harassment. The Adjudicator awarded the maximum award of two years’ remuneration having regard to how poorly the policy was followed and the effects of the discrimination on the Complainant, further noting that awards should be effective, proportionate and dissuasive. This amounted to €53,560. The Adjudicator further directed that all supervisory and management staff receive full training in their Dignity at Work policy.