What is The Employer’s Defence in a Discrimination Case?

 

workplace discrimination ireland

If you are an employer faced with a discrimination based claim pursuant to the Employment Equality Acts there is a defence provided for in the legislation itself.

However, before looking at this defence let’s take a look at the position in relation to the burden of proof in relation to claims of discrimination in the workplace.

Section 85A of the Employment Equality act 1988 states:

Burden of proof.

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F153 [ Director General of the Workplace Relations Commission ] under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘ discrimination ’ includes —

( a ) indirect discrimination,

( b ) victimisation,

( c ) harassment or sexual harassment,

( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked. ]

This means the burden of proof is on the employee in the first instance to establish facts from which it can be presumed that there has been discrimination in relation to him/her. If he/she can do this then the burden of proof shifts from the employee to the employer to prove that discrimination did not occur.

The employer’s defence is set out in section 14A dealing with harassment and sexual harassment.

14A states:

Harassment and sexual harassment.

14A. — (1) For the purposes of this Act, where —

( a ) an employee (in this section referred to as ‘ the victim ’ ) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘ the workplace ’ ) or otherwise in the course of his or her employment by a person who is —

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim ’ s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

( b ) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either —

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim ’ s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1) , it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

( a ) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

( b ) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim ’ s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section ‘ employee ’ includes an individual who is —

( a ) seeking or using any service provided by an employment agency, and

( b ) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1) ,

and accordingly any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘ in relation to the victim ’ s conditions of employment ’ there were substituted ‘ contrary to section 11 ’ or, as the case may be, section 12 .

(7) ( a ) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

( b ) Without prejudice to the generality of paragraph ( a ), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. ]

This section means that harassment is defined as any form of unwanted conduct related to any of the discriminatory grounds and sexual harassment is any form of unwanted conduct of a sexual nature.

The employer’s defence is set out in 14A (2) above for it states:

it is a defence for the employer to prove that the employer took such steps as are reasonably practicable

( a ) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

( b ) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

What does this mean?

The first part of this defence is that the employer took steps to prevent harassment occurring in the first place. This has been held by the Labour Court to mean, at a minimum, the existence of policies/procedures in the workplace to prevent and deal with harassment. The most popular way for employers to ensure the necessary policy is to have a staff handbook or dignity at work policy communicated and available to all staff.

The second part of this defence is, where harassment has occurred, to take action to reverse the effect of the harassment that has occurred. This would involve a look at the actions that the employer took once it was aware of the complaint of harassment and how quickly it took steps to deal with it.

A substantial part of this response would be an investigation of the complaint(s) and the practical steps and any measures taken to deal with the employee’s complaint.

Takeaway for employers

There is two parts to the defence open to you in a discrimination/harassment type claim:

  1. What did you do beforehand to try to ensure no discrimination occurs in the workplace-for example, had you a dignity at work/anti bullying/anti harassment policy and procedure communicated to all employees
  2. ONce an allegation or complaint of harassment is made have you taken all reasonably practical steps to deal with the complaint and to reverse the effect of any harassment which has occurred.

Manager Exploits Staff for Sex and Wins Case for Unfair Dismissal

sexual harassment

Did you ever read Oliver Twist by Charles Dickens?

Dickens introduced a great number of unforgettable characters to the world in this novel about the exploitation of orphan children by ‘the Jew’, Fagin to engage in criminality and picking pockets on the streets of London in the 1830s.

In Oliver Twist you had Oliver Twist himself (“please sir, can I have some more?”), John (aka Jack) Dawkins (‘the Artful Dodger’), Nancy, the good hearted lover/prostitute of the evil Bill Sikes, and a lad called Charlie Bates.

Charlie Bates spent a lot of his time on the floor laughing uproariously at the antics of the gang and exclaiming “What a game!” in reference to the criminality and picking of pockets in which the orphaned children were forced to engage.

I thought of Charlie Bates and his stock phrase “what a game!” when I read of a recent decision of the WRC in a case involving a male manager of a store in a restaurant chain who admitted to sexually harassing female staff under his management.

To cut to the chase he offered accomodation to female staff in return for sex.

The employer, on discovering this and after engaging the services of a HR person to carry out an investigation, summarily dismissed him for gross misconduct on the grounds of repeated sexual harassment in the workplace.

The dismissed manager brought a claim to the Workplace Relations Commission (WRC) for unfair dismissal.

And guess what?

He won on the grounds of the absence of fair procedures (“procedures hopelessly flawed”), the WRC Adjudicator having found that his conduct amounted to sexual harassment and the dismissal was substantially fair.

He was awarded €6,500.

As Charlie Bates might have said, “What a game!”

Lack of fair procedures

The grounds for finding that the procedures were “hopelessly flawed” included

  • The company ignored the employee’s direct evidence and relied on hearsay evidence
  • The employer failed to provide witness statements to the manager
  • The employer failed to advise him of the seriousness of the situation and the potential for dismissal
  • The employer failed to allow the manager defend himself or have representation
  • The employer failed to allow him to cross examine his accusers or challenge witness statements
  • The employer did not give him the specifics of the sexual harassment allegations against him.

However, it is reported that the company engaged the services of an external HR advisor to carry out an investigation and the manager “confirmed to the investigator that he offered accommodation to employees in order to have sex with them”.

Moreover, the manager had been involved in a relationship with one of the employees (who broke it off when she discovered he was married) and the report found he “was accused of unwelcome advances and offers of going to the cinema, restaurants or visits to the park. There were accusations of non-verbal conduct of a sexual nature including leering and making sexually suggestive gestures”.

Lessons to be learned

It’s difficult to understand, having read the facts and report of this case, what circumstances will give rise to a safe summary dismissal from an employer’s perspective. Therefore the safest bet appears to be to always afford fair procedures and natural justice no matter what the circumstances.

At the very least ensure the allegations are put to the employee in sufficient details and he has a chance to explain his version of events and side of the story.

This way might ensure you are not indulging in a Charlie Bates’ reaction of rolling around on the floor saying “What a game!” after reading about, or being involved in, an unfair dismissal.

You can read the full case here.

When It May Be Critically Important to Make a Grievance or Complaint in the Workplace

workplace grievance

Mary suffered in silence in her job for a long time-nearly 12 months, in fact. She was brave, and hard working, and stoic and just got on with it.

Her boss was a headcase, a bully with no regard for the dignity or feelings of those around him.

He wanted to get the job done, he wanted results, he wanted them now, and if you wanted to give him some cock and bull story or excuses, well ‘you know where the door is’.

At first, she joked with her husband and friends that she now worked in ‘Dante’s Inferno’. She called him ‘Lucifer’. The joke soon wore thin, however.

And eventually, Mary-or more accurately, her health-just broke down.

The first sign was her mood-it became irritable at home and she was much more inclined to snap at her husband and the kids. She was impatient and tired all the time and devoid of energy or interest in stuff outside work.

Then it insidiously crept into her bedroom and she had trouble sleeping.

At night her mind would race as she lay in bed thinking about what she had done in work that day, what she had and hadn’t achieved, what was on the calendar tomorrow, had she forgotten or overlooked anything, how long can she endure more of this crap, should she just quit and walk away.

She had worked hard for this career, did well in college, did well in her previous jobs, always performed well and had good performance reviews, and did well in this one until he-Lucifer- arrived.

At first, she thought it was just a personality or ‘style’ issue, a clash of approaches/cultures, and she was determined she would get used to him, and his moods. She would adapt. She was strong, resilient, tough. She hadn’t failed before.

Breakdown

One day in November, however, she just couldn’t face it. She was literally frozen with fear and apprehension and went to her doctor. Her GP listened patiently and sympathetically for 45 minutes while Mary poured her heart out. He told her he had no doubt- she was suffering from severe stress and anxiety as a consequence of the issues in the workplace and she needed a break immediately. He also referred her to a psychiatrist.

Six months later Mary came to see me. She was still off work and her condition had only improved very marginally. She could not see any way under the sun she could return to that job under that man and wanted to enquire about her legal options.

She told me the kids wanted their mammy back, and she could not see this happening if she returned to the same workplace. This time she felt she had to walk away. It simply wasn’t worth it.

She’d get another job. But had she any legal redress, she enquired.

The Legal Options

This type of situation is not uncommon and the most obvious options would be one or all of the following:

  1. A claim for constructive dismissal
  2. A personal injury claim
  3. A breach of contract claim

She had one major problem, however, no matter which way she approached the problem: she never complained. Not formally, not informally-she just ‘got on with it’.

To succeed with any of these claims she will have a difficult time overcoming the one fatal flaw in her case: the employer will claim ‘we never knew there was a problem, for she never complained’.

And this is a big problem for her.

No doubt, the employer should know what is going on in the workplace, and is obliged to know. But when the accusation is thrown at the employer the employer will argue that he acted reasonably and did what any employer would do in circumstances where no complaint was made: nothing.

Mary may claim that she did not get a copy of the staff handbook, or did not know how to make a complaint, or did not know what procedure to use, or did not know what the grievance procedure involved.

But this will be a problem. Since we were kids we know how to make complaint. And that complaint, at a minimum, would have helped Mary’s situation immensely.

It would have been better again if she had made a formal written complaint in accordance with the grievance or dignity at work procedure in the workplace. And if her complaint was not dealt with properly she could have followed up.

But she needed to complain. And then exhausted the internal procedures open to her. Because the problems she faces are as follows:

Constructive Dismissal

Generally, to win a claim for constructive dismissal, you must show you acted reasonably before quitting your job. This involves

  1. Telling the employer that you have an issue or problem
  2. Giving him the chance to rectify the situation
  3. Exhaust the internal procedure
  4. After this you can leave the job, bring a case for constructive dismissal, and claim that you acted reasonably by virtue of taking all the steps outlined here.

Otherwise, you face the problem of the employer saying, ‘he/she never told me there was a problem-we would have fixed it if we knew’.

Personal Injury Claim

To win a personal injury claim against your employer you need to show:

  1. You have suffered a personal injury-in Mary’s case, a psychological or psychiatric injury
  2. The employer was negligent

To prove the employer was negligent you will need to show that he did not act reasonably. This is easier to prove when you have made a complaint to the employer and he does nothing. Then you can claim he did not act reasonably, or at all.

But if you don’t make a complaint? It will be hard to prove the employer failed to act reasonably. And harder, therefore, to prove negligence and win your case.

Conclusion

I am not telling you that you should be making complaints or raising grievances in the workplace at the drop of a hat.

You are required to have a certain degree of robustness in the normal day to day activities in the workplace. There will be a certain element of rough and tumble in the normal interactions between human beings.

But if you at some point in the future want to bring a claim or legal proceedings against your employer, and you wish to prove you had no choice but to leave the job or suffered a personal injury and he is liable, you will need to show some evidence of difficulties in the workplace and your attempts to resolve the problem.

Suffering in silence is not advisable from a health or legal perspective. If you do there is a good chance that, as the old Turkish proverb goes, the dogs will bark but the caravan will move on.

Sexual Harassment in the Workplace in Ireland-a Quick and Easy Guide

sexual harassment

Have you experienced sexual harassment in the workplace?

Maybe this is a problem you have to deal with on a regular basis?

What can you do about it?

Let’s have a look.

Definition of Sexual Harassment

Firstly, let’s be clear what sexual harassment is. Sexual harassment is defined in section 8 Equality Act, 2004 as

14A.—(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section ‘employee’ includes an individual who is—

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),

and accordingly any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12.

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”.

 

There is a number of points you need to take from this definition:

  1. sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment;
  2. Sexual harassment can be carried out by the employer, a fellow employee, or a client/customer/business contact of the employer;
  3. It is a defence for the employer to show that he took steps that are reasonably practicable to prevent the harassment or reverse its effects;
  4. Sexual harassment is any form of of unwanted verbal, non-verbal or physical conduct of a sexual nature, which… has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

So, now that you are clear on what sexual harassment is and how it can occur, let’s take a look at some other vital legislation: the Employment Equality Act, 1998 (revised and updated to March, 2016).

Vicarious Liability of Employers

Section 15 Employment Equality Act, 1998 provides that the employer is vicariously liable for the actions of his employees, whether he was aware or not:

Liability of employers and principals.

15.— (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

( a) from doing that act, or

( b) from doing in the course of his or her employment acts of that description.

Burden of Proof

Section 85 A Employment Equality Act, 1998 sets out the burden of proof in employment discrimination cases:

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

 

You will see that once the victim can establish facts from which discrimination can be presumed the burden of proof shifts to the respondent/employer/harasser.

Redress

If you want to seek redress for sexual harassment you can submit a claim to the Workplace Relations Commission or the Circuit Court. The maximum award from the WRC is 2 years’ remuneration and the maximum from the Circuit Court is the maximum of its jurisdiction, which in 2018 is €75,000.

If the employee has suffered a psychological or psychiatric injury as a result of the harassment he/she may bring a personal injury claim against the employer, and as part of this negligence claim he/she would be also pleading breach of contract, breach of statutory duty, failure to provide a safe place of work in breach of health and safety obligations, etc.

The claim must be brought to the WRC within 6 months of sexual harassment incident, and, if the harassment has been continuous over a period of time, within 6 months of the last incident. This 6 months time limit can be extended to 12 months if reasonable cause for the delay can be shown.

The claim for a personal injury can be brought to the Injuries Board and then through the Civil Courts within 2 years of the injury.

Instructive sexual discrimination/harassment case, July 2018

In July, 2018 an extremely useful sexual discrimination/harassment case decision was handed down by the WRC. It involved a lesbian employee who was asked, amongst other things, why she did not want men and why she was not a normal person.

It is quite an extensive decision and you can see the various issues the WRC adjudicator will look at in arriving at a decision in this type of case.

The adjudicator also refers to other decided cases and legal text books concerning this topic.

You can read the full decision here in the case,  ADJ-00010217, involving a general store assistant and a large company.

The Zen of Withdrawing a Job Offer

withdrawing job offer

It was to be Mary’s first job, she had recently graduated, and she was devastated. The job offer was pulled.

Wojciech left a good job that he took up 7 years ago when he came to Ireland from Poland. Now he was told the job was “no longer available” and he felt embarrassed about going back to the employer he had just left. But he had a mortgage and young family to take care of, and he was distraught and anxious.

These scenarios are not all that rare.

From time to time I have received queries from employees who have had the misfortune to have had an offer of employment withdrawn. The circumstances can vary widely from a situation where an unemployed person, like Mary, is offered a job to the individual, like Wojciech, who has succumbed to promises and blandishments and left a good, secure job to take up employment somewhere else, only to have the offer withdrawn.

There is also a wide variety in relation to the timing of the job offer withdrawal. It could happen prior to acceptance of the offer by the employee to the time just prior to the commencement of employment.

Timing of withdrawal

Firstly, if the employer withdraws the offer of employment before the employee accepts the offer there is no problem for the employer, and no recourse for the employee as there is no binding contract.This assumes, however, that the withdrawal was not by virtue of a discriminatory ground (there are 9 grounds of discrimination). Learn about discrimination in the workplace here.

A discrimination based claim arising from an interview or offer of employment is possible even in circumstances where the employee is unsuccessful at interview or has been successful but the job has subsequently been withdrawn. Normally, you have to be an employee to bring an employment related claim, but not in this situation of alleged discrimination.

Secondly, the employee has accepted the offer of employment but has not yet commenced employment. Once an offer has been made and accepted the long established principles of contract law apply. That is, is there has been and offer and acceptance of tha offer and the parties intended to enter into legal relations then a binding contract is in place.

However, that contract can be terminated in accordance with the terms of the contract. This would involve giving the employee the contractual notice period of the termination.

If the contract had a probation clause, and it contains a short notice period-for example one week-the potential exposure of the employer in a breach of contract suit would be only for one week’s salary and whatever benefits the employee would have been entitled to.

This gets more expensive for the employer if the notice period was, say 3 months, for the loss to the employee of withdrawal of the offer of employment would be 3 months salary plus benefits, if any.

Another factor to be considered is any other losses or costs that the employee has incurred as a result of the job offer withdrawal. The employee could, for example, have incurred costs in moving home or making other arrangements in reliance on the new job coming through. All of these costs and claims will have to be carefully considered by the employer in settling any claim by a disgruntled, disappointed employee, as they will doubtless be claimed in any breach of contract legal proceedings.

Written offer versus oral

The terms and conditions of the employment contract will be more difficult to prove if the offer of employment was only made orally. There is no problem, however, with a perfectly valid contract being established, even in the absence of writing, on the basis of oral/verbal representations.

However, proving the various terms and conditions, such as the notice period or whether there was a probation period will be far more problematic in the absence of any written note or memorandum.

Regardless of when the offer is pulled the employer would be well advised to keep good, clear records setting out why the offer has been withdrawn and which can be called upon to refute any claim of discriminatory treatment.

How can the employer protect herself? The use of pre-conditions is one effective way.

Pre-conditions

To avoid the problem of having to withdraw an offer of employment the employer should consider the use of preconditions-that is, making the offer of employment subject to certain requirements. These could include:

  • The employee having the qualifications claimed
  • Taking up of satisfactory references
  • The employee can legally work in the jurisdiction
  • The employee has any necessary licences or memberships or accreditations, if appropriate
  • No issues arising from a restrictive covenant in a previous contract of employment

Ensure that you refer to whatever preconditions you want to impose in all correspondence to the potential employee, and that the letter of offer states clearly that the offer is subject to and conditional upon the satisfactory fulfilling of the pre-conditions.