The WRC have awarded €30,000 to our client arising from a claim of sexual harassment in the workplace.
The claim was brought under the Employment Equality Act 1998 and in a comprehensive 20 page decision the WRC Adjudicator awarded her €30,000, not subject to any statutory deductions, which was the equivalent of 18 months’ wages.
The hearing was held over two days and evidence given by both complainant and employer was well tested.
The complainant alleged that she had been sexually harassed in the workplace over a period of time which culminated in an incident in which she alleged she had been pinched in the bottom.
The employer, when advised of the allegation, carried out an investigation and made certain findings and recommendations.
We argued, however, that the findings of the investigation were irrational and perverse and flew in the face of the facts and evidence of other employees.
We also argued that the response of the employer was inadequate and an offer to transfer the complainant was unfair as she had done nothing wrong.
The law surrounding sexual harassment
Several important legal aspects of this case are worth considering.
The first has to do with the burden of proof and the obligation on the complainant, in the first instance, to establish facts from which a reasonable inference of discrimination could be drawn.
Once this prima facie hurdle has been cleared by the complainant the burden of proof shifts to the employer; but it must be cleared in the first instance in all cases alleging discrimination.
The employer has a defence in section 14 A of the Employment Equality Act:
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.
Was this defence open to the employer in this instance?
We argued that this defence was not open to the employer by reason of his failure to take reasonable steps to prevent the harassment or reverse its effects.
The WRC adjudicator agreed with our arguments insofar as she found that the response of the employer was inadequate and ‘avoided the responsibility to take the right action and deal with Patrick’s behaviour’.
She also agreed that the findings of the investigation carried out to be ‘contrived and evasive’ and the appointment of an external investigator may have led to a more ‘balanced and reasonable’ outcome.
She also agreed that the evidence of the complainant was truthful and credible and the evidence of the manager ‘doesn’t stand up’; the decision to impose the ‘beyond a reasonable doubt’ standard of proof was ‘unfair’ and what was required was the imposition of the civil standard of proof of ‘on the balance of probability’.
To be clear, the standard of proof being set at ‘beyond a reasonable doubt’ is the appropriate standard in a criminal case, but not in a civil case or employment dispute/complaint investigation.
Interestingly, the WRC adjudicator also made the point that ‘sexual harassment is as much about power as about sex and the harasser’s intention was to humiliate the complainant and retrieve for himself some of the power she possessed’.
For employees it is important to know that sexual harassment in the workplace is taken extremely seriously by the Workplace Relations Commission. You must discharge the initial burden of proof to prove facts from which a reasonable inference of discrimination can be drawn. If you can do this the burden shifts to the employer.
The employer must note that having a policy in place which deals with sexual harassment and/or discrimination is not enough; the employer must go further and ensure that the policy and procedure is applied rigorously and fairly and reasonable responses happen if a finding of discrimination is arrived at.
Having a policy/procedure and going through a box ticking exercise will not be sufficient if the findings are irrational or the response is inadequate.