Key Learnings
This Case highlights the importance of proactively dealing with allegations of sexual harassment at work, and that any investigation into such allegations is thorough and ideally carried out by two investigators, ensuring a gender balance. The investigation in this case was criticised for citing the belief that in complaints of a sexual nature the burden of proof was the balance of possibilities but to a higher degree of probability, which was not correct. Part 7 of the Code of Practice on Sexual Harassment and Harassment at Work (Statutory Instrument 208 of 2012) provides that policies and procedures should be translated so that Employees can access and understand them. The failure of the Respondent to provide the Complainant with information and guidance that she could understand, and the failure to provide training Employees and management alike regarding the policy, counteracted any defence that the Respondent may have had that they took “reasonably practicable” steps to prevent the harassment occurring. Finally, complaints of this nature should be treated seriously, and proper weight given to the evidence established in assessing the burden of proof.
Background
This claim was taken under the Employment Equality Acts. The Complainant worked as an administrator at a golf club since September 2016. She claimed that she was exposed to consistent unwelcome comments, jokes, gestures and contact of a sexual and private nature by the General Manager that caused her offence and humiliation.
Summary of Complainant’s Case
The Complainant brought complaints that she had been subjected to harassment and sexual harassment in her workplace. Her evidence was corroborated by two co-workers. The Complainant gave evidence that she had complained about the behaviour to the General Manager himself and other staff.
The Respondent’s Bullying and Harassment Policy made reference to making a complaint to the Management committee, but the Complainant stated that she had not heard of the committee. In November 2019, following the receipt of an anonymous letter alleging sexual harassment in the office and the Complainant, along with her co-worker, submitting formal letters of complaint, the Respondent engaged an external investigator to investigate.
Out of 23 incidents reported by the Complainant, three were upheld but these were described as inappropriate behaviour and not sexual harassment. In March 2020, the Complainant appealed the findings of the report, but the appeal was dismissed in June 2020. No steps were taken against the General Manager and the Respondent requested the Complainant to return to work with the General Manager.
Summary of Respondent’s Case
The Respondent submitted that it only became aware of the complaints following the receipt of the anonymous letter, in November 2019. At this point, it acted expeditiously by appointing an independent expert who conducted a thorough investigation which fully complied with fair procedures. The investigator presented a comprehensive report which reached findings which were objectively sustainable and in compliance with the law.
The General Manager gave evidence that nothing in his interactions with the Complainant led him to believe that the relationship was uncomfortable for the Complainant. The investigator also gave evidence of her belief that there was a higher standard of proof in sexual harassment cases.
Findings
The Adjudicator considered s.14A Employment Equality Acts 1998 to 2021 (“EEA”) which defines sexual harassment as unwanted verbal, non-verbal or physical conduct which is of a sexual nature. She also noted that s.15 provides that an Employer is vicariously liable for any acts of harassment or sexual harassment, whether or not the Employer knew about them, unless they can prove that they took steps which were reasonably practicable to prevent any harassment. In accordance with the Code of Practice on Sexual Harassment and Harassment at Work, the intention of the perpetrator is irrelevant. The Adjudicator must consider the effect of the behaviour on the Employee. Finally, in accordance with s.85A, the Complainant must first prove primary facts that raise a presumption of discrimination. If the facts proven are of sufficient significance to raise such a presumption, the burden of proving that the treatment was not discriminatory shifts to the Respondent. The Adjudicator held that based on the evidence given a number of the incidents reported by the Complainant were of a sexual nature and did fall within the definition of sexual harassment. Considering the consistent and corroborating evidence of the witnesses, the Adjudicator found that the Complainant’s case was credible that she was the recipient of offensive and unwelcome comments by the General Manager. Accordingly, the Complainant had established a prima facie case of sexual harassment.
In considering whether the Respondent had a policy to prevent sexual harassment in the workplace, the Adjudicator noted that it was clear that none of the Respondent’s Employees were familiar with the bullying and harassment policy. Furthermore, none of the people to whom the Complainant raised the behaviour of the General Manager were sufficiently trained to recognise the behaviour as falling under the policy and were not aware of the steps that needed to be taken. While a Staff Handbook was given to Employees with their contract, the Respondent did not provide any explanation or training on the various policies. The Adjudicator held that this was unacceptable and concluded that the Respondent had not established a ‘reasonably practicable’ defence.
The Adjudicator also accepted the criticisms of the investigation, holding that the investigator was overly cautious and structured in her methodology and gave too little weight to the Complainant’s account.
Decision
The Adjudicator held that the investigator’s belief that in complaints of a sexual nature the burden of proof was the balance of possibilities but to a higher degree of probability was not correct. The Adjudicator awarded compensation of €25,000, taking into account the fact that the Employment Equality Act requires Employers to adopt, implement and monitor a comprehensive, effective and accessible policy on sexual harassment and harassment, which did not occur here, and the fact that the Complainant did make a complaint within the terms of the Respondent’s policy, but nobody knew what to do about it. The Adjudicator held that the comments the Complainant had to endure were on the mid-scale of such behaviour and totally unacceptable in the modern workplace.