RECENT EQUALITY TRIBUNAL DECISIONS
Employment Equality Decisions Not Upheld
Award of €24,000 in Compensation for Sexual Harassment
DEC-E2015-145: Employee v Restaurant
Grounds / Issues: Harassment, Sexual harassment, Gender, Victimisation
This dispute involved a claim by Ms AB that she was discriminated against by CD restaurant on grounds of gender in terms of section 6(2) and contrary to sections 8 and 14 of the Employment Equality Acts, 1998-2011, by being harassed, sexually harassed, victimised and by dismissal due to her opposition to discrimination.
The Complainant was of Slovakian origin. She commenced work as a waitress with the Respondent in March 2012 and her employment ended in June 2013. She was a qualified Masseuse. At the interview, the owner commented on her background in massage. Very early on in her employment, the Complainant was approached by the owner saying he liked massages and asked her to perform a massage on him “for fun”. She stated that she felt vulnerable but she knew the owner was serious. She became ill from her experiences at the restaurant and understood that the Respondent’s manager, Mr EF refused to accept her medical certificate.
The Complainant commenced sick leave in June 2013 and submitted that her employment was terminated in June 2013. The Complainant presented a medical report to the Tribunal, which referred to a consultation from 18th June 2013. The report confirmed that the Complainant was having difficulties at work through reported sexual harassment. The Medical Officer certified her unfit to work due to stress and remarked on her potential recovery which he stated “may take some time”.
At the hearing, the Respondent, submitted that around 8 weeks into the employment Mr EF approached him saying that Ms AB had a business proposal to incorporate a massage business into the restaurant business. He also submitted that the Complainant made advances towards him and that he permitted the Claimant to perform a massage after hours at the restaurant but that it was a one and only” occasion. The Respondent denied dismissing or victimising the Complainant and stated that she had indicated that she wished to leave in April.
In issuing its decision the Tribunal found that:
(i) They did not have the jurisdiction to address the claim for dismissal.
(ii) The Respondent did discriminate against Ms AB through the conduct of the Employer and by not taking
reasonable and practicable steps to prevent her sexual harassment contrary to Section 14A(7) of the Acts.
(iii) The Claimant did not establish a prima facie case for Harassment, therefore this claim did not succeed.
(iv) The Claimant did not establish a prima facie case for Victimisation, therefore, this claim did not succeed.
The Tribunal noted that the Complaints employment appeared to be dominated by Mr CD and no one understood that they may have or ought to have the capacity or entitlement to question that authority. As a result the Court ordered that the Respondent pay the Complainant €23,965 (the approximate equivalent of 18 month’s salary) in compensation for the sexual harassment.
Applicable legislation and the Code of Practice on Sexual Harassment and Harassment at Work place a statutory responsibility on each Employer to protect Employees from sexual harassment. Despite the submission from the Employer in this instance as outlined in the hearing, whether or not an alleged harasser intended to harass is irrelevant in determining whether their behaviour actually constitutes harassment. As we can see in this instance, an Employer’s failure to uphold this duty of care can result in an Employee being in a position to take a legal claim against their Employer. This may include compensation being awarded for loss of earnings, damage to reputation, and compensation for the effects of the behaviour on the claimant’s health and welfare.
Employment Equality Decision Upheld
Complainant found to have been Victimised following Complaint of Sexual Harassment
DEC-E2015-160: Employee v Catering Company
Grounds/Issues: Gender, Sexual Harassment, Redundancy, Discriminatory Dismissal
This dispute concerned a claim by Ms TC that she was sexually harassed by her Manager and subsequently victimised by the Respondent Company, KC, culminating in an unfair selection for Redundancy /Discriminatory Dismissal contrary to Section 6, 8, 14 and 74 of the Equality Act.
The Complainant started work for a Contract Catering company in June, 1999 and was part of a TUPE process to the Respondent Company in December 2012. Her employment ended in September 2013 on alleged grounds of Redundancy following business restructuring of the service on the site where she was working. In February and early March 2013 the Complainant suffered three alleged incidents of unwarranted physical contact from her Manager on the site. The Complainant confronted her Manager and he acknowledged and accepted his behaviour and apologised.
The Complainant made a formal complaint to the Human Resources Department. Ms. AB in the HR Dept. met with the Complainant. It is alleged that Ms. AB pleaded with the Complainant not to make a formal complaint. The Complaint confirmed that she wished to proceed with a formal complaint. A formal meeting was held with the Complainant. She was accompanied at this meeting by a SIPTU Official.
The Complainant was advised that her complaint of sexual harassment was not being upheld. The Complainant appealed this decision. The appeal was not upheld. The Complainant went on sick leave from the 22nd April and was not passed as fit for work until the 29th August. A further appeal hearing was held on the 30th August 2013 and the appeal was not upheld.
At the conclusion of the meeting on the 30th August the HR Director introduced the matter of the business restructuring that had been proposed during the Complainant’s sick leave. Details were provided in writing to the Complainant on the 10th September. This required the Complainant to interview for one of two positions that were available. She was unsuccessful at interview for these positions and was made redundant on the 27th September 2013.
At the hearing, the Respondent Company submitted that the business restructuring was a normal exercise that was to be expected following the taking over of a catering contract. The Complainant was offered the opportunity to interview for two positions or to seek redeployment. She was unsuccessful at interview and did not seek redeployment. Accordingly she was made redundant.
The Tribunal found that the Complainant had established a case of Sexual Harassment. Accordingly an award of €2,250 (approximately 12 weeks’ pay) was made as compensation in favour of the Complainant. It was also found that the Complainant had established a case of Victimisation. Accordingly an award of €1,500 (approximately 8 week’s pay) was made in compensation.
For the purposes of alleged victimisation, this occurs where dismissal or adverse treatment of an employee by his or her Employer occurs as a reaction to
In the view of the Tribunal in this instance, whilst acknowledging that any new contractor when taking over an established contract is under business pressure to make it work from a commercial point of view, which may reductions in workforce size, found that the sexual harassment claim was a contributory factor in relation to her unfair selection for redundancy, when taken in conjunction with the long period of absence, and ‘uphill climate’ the Complainant faced on her return to work and job interviews.
Award of €24,000 in Compensation for Sexual Harassment
DEC-E2015-145: Employee v Restaurant
Grounds / Issues: Harassment, Sexual harassment, Gender, Victimisation
This dispute involved a claim by Ms AB that she was discriminated against by CD restaurant on grounds of gender in terms of section 6(2) and contrary to sections 8 and 14 of the Employment Equality Acts, 1998-2011, by being harassed, sexually harassed, victimised and by dismissal due to her opposition to discrimination.
The Complainant was of Slovakian origin. She commenced work as a waitress with the Respondent in March 2012 and her employment ended in June 2013. She was a qualified Masseuse. At the interview, the owner commented on her background in massage. Very early on in her employment, the Complainant was approached by the owner saying he liked massages and asked her to perform a massage on him “for fun”. She stated that she felt vulnerable but she knew the owner was serious. She became ill from her experiences at the restaurant and understood that the Respondent’s manager, Mr EF refused to accept her medical certificate.
The Complainant commenced sick leave in June 2013 and submitted that her employment was terminated in June 2013. The Complainant presented a medical report to the Tribunal, which referred to a consultation from 18th June 2013. The report confirmed that the Complainant was having difficulties at work through reported sexual harassment. The Medical Officer certified her unfit to work due to stress and remarked on her potential recovery which he stated “may take some time”.
At the hearing, the Respondent, submitted that around 8 weeks into the employment Mr EF approached him saying that Ms AB had a business proposal to incorporate a massage business into the restaurant business. He also submitted that the Complainant made advances towards him and that he permitted the Claimant to perform a massage after hours at the restaurant but that it was a one and only” occasion. The Respondent denied dismissing or victimising the Complainant and stated that she had indicated that she wished to leave in April.
In issuing its decision the Tribunal found that:
(i) They did not have the jurisdiction to address the claim for dismissal.
(ii) The Respondent did discriminate against Ms AB through the conduct of the Employer and by not taking
reasonable and practicable steps to prevent her sexual harassment contrary to Section 14A(7) of the Acts.
(iii) The Claimant did not establish a prima facie case for Harassment, therefore this claim did not succeed.
(iv) The Claimant did not establish a prima facie case for Victimisation, therefore, this claim did not succeed.
The Tribunal noted that the Complaints employment appeared to be dominated by Mr CD and no one understood that they may have or ought to have the capacity or entitlement to question that authority. As a result the Court ordered that the Respondent pay the Complainant €23,965 (the approximate equivalent of 18 month’s salary) in compensation for the sexual harassment.
Applicable legislation and the Code of Practice on Sexual Harassment and Harassment at Work place a statutory responsibility on each Employer to protect Employees from sexual harassment. Despite the submission from the Employer in this instance as outlined in the hearing, whether or not an alleged harasser intended to harass is irrelevant in determining whether their behaviour actually constitutes harassment. As we can see in this instance, an Employer’s failure to uphold this duty of care can result in an Employee being in a position to take a legal claim against their Employer. This may include compensation being awarded for loss of earnings, damage to reputation, and compensation for the effects of the behaviour on the claimant’s health and welfare.
Employment Equality Decision Upheld
Complainant found to have been Victimised following Complaint of Sexual Harassment
DEC-E2015-160: Employee v Catering Company
Grounds/Issues: Gender, Sexual Harassment, Redundancy, Discriminatory Dismissal
This dispute concerned a claim by Ms TC that she was sexually harassed by her Manager and subsequently victimised by the Respondent Company, KC, culminating in an unfair selection for Redundancy /Discriminatory Dismissal contrary to Section 6, 8, 14 and 74 of the Equality Act.
The Complainant started work for a Contract Catering company in June, 1999 and was part of a TUPE process to the Respondent Company in December 2012. Her employment ended in September 2013 on alleged grounds of Redundancy following business restructuring of the service on the site where she was working. In February and early March 2013 the Complainant suffered three alleged incidents of unwarranted physical contact from her Manager on the site. The Complainant confronted her Manager and he acknowledged and accepted his behaviour and apologised.
The Complainant made a formal complaint to the Human Resources Department. Ms. AB in the HR Dept. met with the Complainant. It is alleged that Ms. AB pleaded with the Complainant not to make a formal complaint. The Complaint confirmed that she wished to proceed with a formal complaint. A formal meeting was held with the Complainant. She was accompanied at this meeting by a SIPTU Official.
The Complainant was advised that her complaint of sexual harassment was not being upheld. The Complainant appealed this decision. The appeal was not upheld. The Complainant went on sick leave from the 22nd April and was not passed as fit for work until the 29th August. A further appeal hearing was held on the 30th August 2013 and the appeal was not upheld.
At the conclusion of the meeting on the 30th August the HR Director introduced the matter of the business restructuring that had been proposed during the Complainant’s sick leave. Details were provided in writing to the Complainant on the 10th September. This required the Complainant to interview for one of two positions that were available. She was unsuccessful at interview for these positions and was made redundant on the 27th September 2013.
At the hearing, the Respondent Company submitted that the business restructuring was a normal exercise that was to be expected following the taking over of a catering contract. The Complainant was offered the opportunity to interview for two positions or to seek redeployment. She was unsuccessful at interview and did not seek redeployment. Accordingly she was made redundant.
The Tribunal found that the Complainant had established a case of Sexual Harassment. Accordingly an award of €2,250 (approximately 12 weeks’ pay) was made as compensation in favour of the Complainant. It was also found that the Complainant had established a case of Victimisation. Accordingly an award of €1,500 (approximately 8 week’s pay) was made in compensation.
For the purposes of alleged victimisation, this occurs where dismissal or adverse treatment of an employee by his or her Employer occurs as a reaction to
- A complaint of discrimination made by an Employee to the Employer…….
- An Employee having opposed by lawful means an act which is unlawful under this Act…..
In the view of the Tribunal in this instance, whilst acknowledging that any new contractor when taking over an established contract is under business pressure to make it work from a commercial point of view, which may reductions in workforce size, found that the sexual harassment claim was a contributory factor in relation to her unfair selection for redundancy, when taken in conjunction with the long period of absence, and ‘uphill climate’ the Complainant faced on her return to work and job interviews.
The Employment Equality Acts 1998 to 2012, outlaw discrimination in work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involving harassment and victimisation at work are also covered by the Acts.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint to The Equality Tribunal through Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so.
The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age, Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint to The Equality Tribunal through Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so.
The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age, Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our Equality and Diversity services include:
www.adarehrm.ie
- Equality and Diversity Audit and Healthcheck
- Review and Development of Policies and Procedures - Dignity at Work, Anti-Harassment and Sexual Harassment
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice.
www.adarehrm.ie
