Facts: The Complainant is employed by the Respondent in a creche. She submitted a complaint under the Employment Equality Acts (the “Acts”), claiming that she was harassed on the grounds of sexual orientation and victimised as a result of making a complaint about the harassment.
She referred to an incident in which she was “outed” unwillingly in work by a colleague who questioned her inappropriately around whether or not she had a boyfriend and about her interest in men. The Complainant claimed that this amounted to harassment which the Respondent failed to deal with adequately. She also claimed that she was subsequently victimised for making a complaint in relation to the harassment. This alleged victimisation consisted of her being moved to a different room in the creche and having her hours of work reduced.
The Adjudicator, Mr Thomas O’Driscoll, agreed to hear the case in private and to anonymise the parties in his decision due to the sensitive nature of the case.
Decision:
Harassment
Prima Facie Case
The Adjudicator noted that there was no conflict of evidence in this case either regarding the verbal interaction between Ms. A and the Complainant or that the Complainant was gay.
In considering whether or not the Complainant was harassed, the Adjudicator referred to the case of Nail Zone Ltd. v A Worker EDA1023 10 November 2010. This case is authority for the subjective nature of the test that is applied in relation to harassment. The question is whether or not the conduct in question had the effect of violating the Complainant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for her , not whether or not the conduct would have had the same effect on another person. It does not matter whether or not the effect was intended.
The Adjudicator was satisfied that it was not Ms A’s intention to “target” the Complainant because of her sexual orientation. However, he noted the level of distress that the Complainant suffered as a result of the incident and the fact that the Complainant found it very hard to “come out” to her parents and wished to keep her personal life and work life separate. He was satisfied that the Complainant had established a prima facie case of harassment on the basis of her sexual orientation.
Defence
The Adjudicator turned to consider the Respondent’s defence that it had proper bullying and harassment procedures in place which had been provided to the Complainant. He referred to the decision in A Hotel v A WorkerEDA0915 where the Labour Court held that the defence requires an employer to be able to demonstrate, not only that it had a clear anti-harassment or dignity at work policy in place, but also that this policy was “effectively communicated to all employees” and that management were trained to deal with issues of harassment and to “recognise its manifestations.”
The Adjudicator was not satisfied that the Respondent could rely on the defence, noting the following:
- The evidence from Ms A that she did not believe that her questions were offensive or could be regarded as harassment suggested “a basic lack of understanding of policies” and
- There was no evidence that training had been provided to employees to ensure that there was sufficient understanding of the relevant policies and procedures.
The Complainant referred to case law in which it was decided that being transferred from a role can constitute victimisation and that the making of a complaint does not have to be the sole or principal reason for the victimisation but only a factor. However, the Adjudicator found that the Complainant had always been a relief worker and he was satisfied by the evidence on behalf of the Respondent that she had never complained about being moved between different rooms and had in fact described this flexibility as a positive feature of her employment. The Adjudicator also referred to the evidence on behalf of the Respondent regarding the decline in business as a result of the Covid-19 pandemic, and found that the Complainant’s hours were never reduced below her contractual hours of work.
Victimisation
The Adjudicator noted that the key elements in determining whether or not the Complainant suffered victimisation were:
- Did the Complainant take action that would constitute a “protected act” under section 74(2) of the Acts? The Adjudicator was satisfied that she did by making a complaint of harassment.
- Was the Complainant then subjected to adverse treatment by the Respondent as a result of the protected act? The Adjudicator was not satisfied that the Complainant was subjected to such adverse treatment.
The Adjudicator held that the Complainant had not established a prima facie case of victimisation.
The Complainant was awarded €5,000 compensation for the harassment she had suffered. No part of the award was in respect of remuneration, it was a purely compensatory sum.
Takeaway for Employers: Section 14A(2)(a) of the Acts provides for a defence against a complaint of harassment where an employer can demonstrate that it has taken such steps as are reasonably practicable to prevent the harassment from occurring. In this case, despite the evidence on behalf of the Respondent that the Complainant had been provided with a copy of a bullying and harassment policy and that a copy of the policy was contained in the employee handbook and printed and stored in folders in each room, this was not sufficient. Employers need to be able to demonstrate that they went further than this; they need to be able to satisfy an adjudicator that the policy was “effectively communicated” to employees and that appropriate training was provided.
Authors – Anne O’Connell, Jenny Wakely and Hannah Smullen
02 May 2023