The recent Supreme Court decision in the ‘Nano Nagle’ is
worth a closer look by both employers and employees who are concerned with what
is expected by way of ‘reasonable accommodation’ for an employee with a
This obligation on an employer to provide ‘reasonable accommodation’
to an employee is set out in section 16 of the Employment Equality Act 1998.
Section 16 of the act provides, inter alia,
F33 [ (3) ( a ) For the purposes of this Act a person who
has a disability is fully competent to undertake, and fully capable of
undertaking, any duties if the person would be so fully competent and capable
on reasonable accommodation (in this subsection referred to as ‘ appropriate
measures ’ ) being provided by the person ’ s employer.
( b ) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has a disability —
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
( c ) In determining whether the measures would impose
such a burden account shall be taken, in particular, of —
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer ’s
(iii) the possibility of obtaining public funding or
(4) In subsection (3)—
F34 [ ‘appropriate measures ’ , in relation to a person
with a disability —
( a ) means effective and practical measures, where
needed in a particular case, to adapt the employer ’ s place of business to the
( b ) without prejudice to the generality of paragraph
(a) , includes the adaptation of premises and equipment, patterns of working
time, distribution of tasks or the provision of training or integration
( c ) does not include any treatment, facility or thing
that the person might ordinarily or reasonably provide for himself or herself;
In overturning the Court of Appeal decision in the case the
Supreme Court held that there was no reason why providing reasonable accommodation
should not involve a redistribution of duties in the workplace, provided this did
not place a disproportionate burden on the employer. In making this finding the
Supreme Court held that it was not enough for the employer to merely divide up
the job between essential duties and non-essential tasks, as the Court of
Appeal had decided.
You will note from section 16 above that there is a non-exhaustive
list set out in the Employment Equality Act 1998 which includes ‘the
adaptation of premises and equipment, patterns of working time, distribution of
tasks or the provision of training or integration resources’.
This Supreme Court decision goes a step further in placing
an obligation on the employer.
It has done so by suggesting that the employer must look not
only at a redistribution of the tasks of the role but must look at a
redistribution of the essential duties and functions of the employee’s job. The
Supreme Court arrived at this finding on the basis that the Act in question obliges
the employer to consider all appropriate measures to provide reasonable accommodation
provided the cost of doing so would not be disproportionate.
The Supreme Court held, in essence, that the ‘test is one of
reasonableness and proportionality’ but there was an obligation on the employer
to explore whether public funding would be available to assist with the provision
of reasonable accommodation.
As for consulting with the employee the Court of Appeal held
that there was no obligation for employee participation in the process. The
Supreme Court on the other hand held that while there was no statutory
obligation to consult with the employee it made sense and would be sensible for
the employer to do so.
The Court also reaffirmed the long held position that the
employer was not obliged to create a different job for the affected employee.
Rap on the knuckles for the Labour Court
The Supreme Court also gave a slight rap on the knuckles to
the Labour Court by finding that it had failed in its duty to consider all
relevant evidence in the case and failed to provide reasons for its conclusions
based on the evidence and sent the case back to the Labour Court for further consideration
on specific points.
The Court also criticised the Labour Court for failing to give any reason for the level of compensation it had awarded on the grounds that fair procedures would dictate that parties are entitled to know the reasoning behind the level of an award.
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.
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).
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.
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.
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.
(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,
(b) without prejudice to the generality of paragraph (a)—
(i) such harassment has occurred, and
(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:
sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment;
Sexual harassment can be carried out by the employer, a fellow employee, or a client/customer/business contact of the employer;
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;
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.
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.