A Sexual Harassment Story (Ana’s Story)

Ana came to Ireland from Croatia in 2014.

She knew a small number of Croats living in Dublin and they had told her she would find work here quickly enough.

They were right and she started a job in a coffee shop in the southside of Dublin within 2 months of arriving in Dublin. She quickly settled in Dublin and shared a house with 7 other people-2 Croats, 3 Poles, and 2 Irish.

Her English was not fluent but improving and she spoke well enough to get by, get her job done, and avoid too much confusion with anyone she came into contact with in the course of her days.

She spent a few weeks just clearing tables, cleaning, checking in orders, cleaning toilets, running to the cash and carry but soon she was pressed into service serving customers.

She found it difficult at first and was afraid of making serious mistakes.

But she learned quickly and was popular with the regulars who recognised her pleasant, friendly personality and smile, and her willingness to learn.

When she came to see me for the first time she fidgeted and played with a ring she wore.

She told me about her background, her 3 brothers and family in Zagreb. She never went into great detail when speaking with me about her time in Zagreb but her face darkened noticeably and I could see she was not comfortable speaking about it.

She did tell me, though, that she was on her way to primary school in May, 1995 when rocket attacks on Zagreb killed her uncle and aunt.

When she was sexually assaulted in the workplace, however, she made an oblique reference to her childhood in Croatia.

She said, “I’ve been through a lot at home in Croatia, I’ve seen most than most people my age, but this thing in the workplace was just a humiliation; I have put up with a lot of stuff before I came to Ireland but this was too much to expect me to take”.

She said the worst part wasn’t the assault, however, it was not being believed when she complained. And the investigation that was carried out being a complete whitewash and waste of time.

She had worked in the coffee shop for 7 months or so and was getting good experience under her belt. Her problems started when the manager of the coffee shop decide to go travelling for a couple of years with her boyfriend and the two of them went to Canada for a year.

The new manager, Seamus, was friendly at first; maybe too friendly. Always grinning at her like a shark.

Soon,however, Ana began to feel uncomfortable with Seamus’s attention. He was just weird and creepy.

At first he just made a small number of jokes with sexual innuendo.

Most people would probably consider them to be just part and parcel of the workplace, banter if you like.

But the “jokes” and innuendo got worse to the point where the situation was wearing Ana down.

She felt like quitting her job rather than face these dumb, offensive remarks every day-remarks about her appearance, her private life, her boyfriend, and so on.

Ana wasn’t in the job too long, however, and was still on probation so she felt the best thing to do might be to keep her head down, not rock the boat, and hope that Seamus would lay off or get fed up and just leave her alone.

She spoke to some of the other girls about it and they told her they had to put up with the same crap. They told her they were afraid to complain because they were not Irish and he was, and they were afraid they would not be believed and, anyway, who were they to complain to?

They weren’t sure of the whole situation, the legal situation, who was to help them; it was completely new to them but they were sure that the new manager would probably have more sway and influence with the owner than they had and would be more likely to be believed.

Besides it would be easier to replace one of the support or waitressing or retail staff rather than the manager. So they felt in a vulnerable situation.

What’s more, if they complained and were not believed the atmosphere in the workplace would be even worse, and they would feel like fools.

So they just stayed quiet and hoped he would get fed up and lay off.

Ana took the same approach and did nothing about the ‘jokes’ which were getting worse and more graphic.

Unfortunately this decision, however, backfired for Ana because Seamus took encouragement from her silence and her failure to make clear that his comments were unacceptable. He was emboldened. It got worse, not better, as time went on.

It was about 11 months after starting in this workplace that the final incident happened.

She remembered it well, it was a Tuesday afternoon at 3.45 pm. She could not believe it at first.

At first she was outraged but was so surprised and shocked that she wasn’t even sure it had actually happened.

What happened was Seamus had walked behind her back into the kitchen and put his hand on her bottom and whispered “you have a fine arse, Ana”.

Ana was stunned. She did not know what to do and went to the toilets, shook with anger and wept silently.

Her mind cleared, though, and then she was sure of exactly what he had done.

The bastard had put his hand on her bottom, treated her like a piece of meat, and ignored her dignity as a person. No respect.

This had gone on too long.

She dried her tears, gathered her courage as best she could and went straight to Seamus. She told him that what he had done was completely unacceptable, that she felt humiliated and demanded an apology.

Seamus’s face reddens and his mouth tightens and a little tic develops on the left side of his mouth. He denies it completely, tells her she is nothing but a troublemaker, and nobody will believe such a stupid allegation.

Ana felt faint, confused, could not think straight.

She goes into the little store at the back of the shop that passes for a staff room, takes her bag out of her locker, puts on her coat and heads for the bus stop to go home.

Ana sits in her kitchen for 90 minutes nursing a cup of coffee.

She debates with herself about what to do: should she leave or make a formal complaint or just forget about it and tough it out or start looking for another job?

She pulls out the staff handbook from underneath her bed and discovers how she is to make a complaint.

Two days later she receives a message from the owner of the business who tells her she has appointed an external HR person to carry out an investigation.

An investigation was quickly carried out and Ana made a statement about what happened and what had happened previously. She told the investigator that it was common knowledge what Seamus was like-all he had to do was check with the other girls.

The investigator called in the other 2 girls and asked them if they ever had any difficulty with Seamus.

They told of the long running difficulties that they had experienced with him: inappropriate remarks, comments about their clothes, how they looked, their make up, told them jokes that always involved some sexual comment, and so forth.

Ana reads the letter again for the second time and she can’t believe it. She has received it by registered post and it tells her the outcome of her complaint is that the investigator from the HR company does not uphold her complaint.

The reasons given are a “conflict of evidence” and one person’s word against another’s and the absence of any witness to the alleged incident.

The letter is worded really nice and professional and it tells her the employer values her greatly and hopes she will be able to come back to work soon and are sure that her relationship with Seamus can be rebuilt “going forward”.

Ana reads it for the third time. She cannot believe it. She’s thinks she is going to be physically sick. Really throw up.

She’s not sure what to do, or what she can do.

But she knows one thing: she cannot go back into that workplace.

Ana sits in my office now. She plays with her ring, a big blue stone of a thing. She is teary and weepy and I get a small box of tissues.

She is determined about one thing: she will not let this go. She wants to take it further and tell her story. She hasn’t come from a difficult upbringing in Zagreb to Ireland to have some deviant treat her like a piece of fine meat.

We submitted her claim to the WRC without delay. It was an Employment Equality act 1998 claim that she had suffered discrimination in the workplace by reason of her gender and had been the victim of sexual harassment.

Sexual harassment is defined in Section 14A Employment Equality Act 1998 as

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.

Now, it is 8 months later and we have received the decision of the WRC adjudicator. The WRC have found that Ana’s complaint was “well founded” and she has been awarded €27,000 in compensation.

It is open to the employer to appeal this decision to the Labour Court.

But Ana doesn’t care; she has told her story to an independent adjudicator and has been believed. Not alone that but the wrong that was done to her in the workplace has been recognised by an award of compensation. It wasn’t just a trivial, inconsequential, technical wrong.

It was a serious attack on her self respect and dignity.

The money is not the important thing to Ana, but it will give her time to get on her feet again, get another job, maybe send some home to her family outside Zagreb.

(Please note “Ana” and “Seamus” are not the real names of the parties involved in this case and some facts have been changed slightly to prevent identification).

 

Discriminatory Dismissal Leads to €46,000 Compensation Award

workplace discrimination ireland

Could you afford an employment law award of €46,000 against you? Let’s face it you would be hard pressed to just take it on the chin and chalk it down to experience.

But that is what you could be facing if you are at the losing end of a WRC decision as occurred recently in a case involving a claim founded on discrimination.

An office manager in a software firm was awarded €46,000 in compensation by the WRC for her discriminatory dismissal.

The employee who brought the claim had an incurable degenerative disease (fibromyalgia) and was dismissed whilst on sick leave. This disease caused her muscle pain, fatigue, sleep and memory problems.

The €46,000 award comprised 2 parts:

  1. €23,000 in respect of the actual discriminatory dismissal and
  2. €23,000 for the failure of the employer to make reasonable accommodation in allowing the employee to continue in her job.

The award took into account the way the employer dismissed the employee: by telephone.

Background

The background to the case is the employee was employed since 2015 and went on certified sick leave in May 2017; in November 2017 she was dismissed by conference call. Whilst she was out sick her occupational therapist made a number of recommendations as to how she could be accommodated in the workplace including:

  • Working from home
  • More rest breaks
  • Flexible working rosters
  • A temporary reduction in working hours.

The employee was then involved in a car accident in August 2017 and she was not expected to return to work until January 2018 as she required a spinal implant procedure.

However, in November 2017 she was told by phone that she was being given one month’s notice of dismissal but would be paid in lieu of notice and her termination was, therefore, with immediate effect. The employer mentioned incapacity and “the problems her absenteeism were causing.”

In her evidence at the WRC the employee told that she was not given any warning of her potential termination nor was she given the chance to appeal the decision. The employee was on certified sick leave at the time and was taken aback at the decision which had a significant impact on her from a personal and financial perspective.

She also spoke of the pride she took in being able to work despite her difficulties and she was anxious to show that sufferers from such diseases/disabilities can do things and take part in the workplace.

The employer denied it failed to offer reasonable accommodation and stated it could not hold her position open indefinitely.

Warning for employers

This case is further evidence, if any were needed, that employers need to be very careful about how they deal with their employees, especially when it comes to terminating employment on the grounds of incapacity.

Employers are perfectly entitled to terminate an employee’s job on the grounds of incapacity but only after looking carefully at the options, obtaining updated medical evidence, warning the employee his/her job is at risk of termination, and giving them the opportunity to appeal the decision.

Otherwise, the employer runs the risk of a discrimination-based claim either on the grounds of discriminatory dismissal or straightforward discrimination or failure to make reasonable accommodation for the employee’s continued employment.

Unfair Dismissal and Discriminatory Dismissal Are Parallel Claims-You Must Choose One or the Other

discriminatory dismissal

Did you know that you cannot bring a claim for unfair dismissal and discriminatory dismissal at the same time?

They are considered to be parallel complaints and you will have to choose one or the other.

Let me clarify: section 77 of the Employment Equality Act, 1988 states

77.— F117 [ (1) A person who claims —

( a ) to have been discriminated against or subjected to victimisation,

( b ) to have been dismissed in circumstances amounting to discrimination or victimisation,

( c ) not to be receiving remuneration in accordance with an equal remuneration term, or

( d ) not to be receiving a benefit under an equality clause,

in contravention of this Act may, subject to subsections (3) to (9) , seek redress by referring the case to the F118 [ Director General of the Workplace Relations Commission ] . ]

Thus, you are claiming that you have been dismissed in circumstances amounting to discrimination or victimisation.

You can also bring a claim under the Unfair Dismissals act, 1977 but you will have to choose which of these claims you will ultimately pursue.

Why? Because Section 101(4)(a) of the Employment Equality act, 1998 states:

(4A) (a) Where an employee refers —

(i) a case or claim under section 77 , and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

(b) In this subsection —

‘ Act of 1977 ’ means the Unfair Dismissals Act 1977 ;

‘ dismissal ’ has the same meaning as it has in the Act of 1977;

‘ relevant date ’ means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation. ]

This means that the discrimination based claim under the Employment Equality act, 1988 will be deemed to be withdrawn unless, 41 days after notification from the WRC, you withdraw the claim under the Unfair Dismissals act, 1977.

Then, if you withdraw the claim under the Unfair Dismissals Act, 1977 your discrimination based claim under the Equality Act 1988 will go ahead.

If you don’t respond to the letter you receive from the WRC your claim under the Equality Act, 1988 will be deemed to be withdrawn and your unfair dismissal claim will be dealt with.

Section 101A of the Employment Equality Act, 1998 also prohibits parallel claims as follows:

101A. — Where the conduct of an employer constitutes both a contravention of Part III or IV and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003 , relief may not be granted to the employee concerned in respect of the conduct under both this Act and either of the said Acts.

Takeaway

If you bring claims to the Workplace Relations Commission sometimes your case will be straightforward, but sometimes you can easily fall into a technical or legal roadblock that may give you a nasty surprise.

You should always seek legal advice before you bring any claim as it is vital that you choose the correct cause of action. This cannot be remedied later on and I have seen some very silly, basic mistakes made by workers who ultimately make some simple but fatal mistakes and end up with nothing but heartache and disappointment.

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 1998 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.