I have been involved in two discrimination cases which have
been finalised in the last few weeks. The outcomes of the cases,
coincidentally, are similar and have culminated in compensation for both
employees.
The first one involved a case of sexual harassment in the
workplace and resulted in a compensation payment, tax free, of €30,000. You can
read more about that case, including the full decision of the WRC, here.
The other case, one you will not read about because it has
been settled before ever going to the Workplace Relations Commission, has been
settled for a similar sum of money. It was a discrimination case, not sexual
harassment, as defined by the Employment Equality Act 1998.
The amount of work involved for me in both cases differed wildly,
however.
The sexual harassment case involved a great deal of time and
work and involved three days at the WRC: the first day was for mediation, the
second day for the hearing, and the third day was to complete the hearing.
Evidence had to be taken from two witnesses, cross examination of at least
three witnesses, and booklets and submissions had to be prepared and submitted.
The second case, by contrast, only involved the submission
of the complaint to the Workplace Relations Commission; shortly after this the
solicitor for the employer made contact and the case was settled.
Responding to claims-professional or amateur?
I categorise responding to employment claims in two ways:
professional or amateur.
When you bring any legal case or employment claim it is
impossible to know how the other side will react.
One response is a pragmatic approach and a realistic attempt
to settle the case by the party who is in the weaker position and is at risk if
the case goes to a full hearing.
The risk, if you are the employer, involves an award of
compensation against you, legal costs of representation, time taken to prepare
for the case, and reputational damage.
The other response is to substitute cool analysis of the
facts and the law with an emotional response to ‘fight the case’ to the end.
This does not make much sense, quite frankly, but it is an easy reaction to
embrace.
And if you have the money and are fully aware of the risks
and costs, knock yourself out, if you want to. But the ‘professional’ approach,
using logic and evidence rather than emotions, might serve you better in the
long run.
Now, the professional response may be to fight the case in
all circumstances, in order to discourage claims against you generally or
copycat claims. But you should make this decision rationally after assessing
all the relevant factors rather than responding emotionally.
The employee, too, must weigh up the chance of success
versus the associated costs of representation, the probability of winning, and
the potential remedies that can be gained. (This blog post, How
to Make a Decision to Bring an Employment Claim to WRC or Not, might be
worth a read.)
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.
Background
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’.
Conclusion
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.
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).
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.
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:
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.
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.
