Anne O'Connell Solicitors | View firm profile
In Catherine Kelly v An Post ADJ-00040021 the Complainant lodged a complaint with the Workplace Relations Commission (“WRC”) under the Employment Equality Acts (the “Acts”) claiming that she was sexually harassed by a colleague and that the Respondent failed to deal with it appropriately.
Facts: The Complainant commenced employment with the Respondent as a postal operative on 3rd April 2017 and remained in employment at the time the matter came before the WRC.
The Complainant claimed that she was inappropriately touched by a postal sorter (Mr A) on 22nd February 2022 who she said put his hand on the inside of her right thigh and moved it down towards her knee. The Complainant claimed that she pushed Mr A away and shouted at him not to put his hands on her. She said that he replied stating “what, I only did this” and then touched her again in the same way. Another colleague, Ms B, was nearby, and the Complainant told her what had happened. According to the Complainant, this was not the first time Mr A had touched her inappropriately.
The Complainant approached Mr A on 24th February and asked him to leave her alone. His position was that he had done nothing wrong. The Complainant subsequently reported the incident to her manager, Mr D, who asked her to put the details in writing, which she did. He then reported the matter to floor operations. Mr E, floor operations, took it upon himself to investigate her complaint. According to the Complainant, when she requested a copy of the Dignity at Work Policy, Mr E informed her that he did not know what that was. The Complainant also asked for a copy of the witness statements a number of times, but these were not provided to her. Mr A’s statement merely said that he had “no knowledge of the alleged incident.” In the middle of May, the Complainant was informed that the investigation was inconclusive. She had not been interviewed as part of the investigation, and only met with Mr E on 12th May when he informed her of the outcome. The Complainant eventually received a copy of the witness statements on 25th May.
The Complainant appealed the outcome of the investigation to the HR manager, Ms H. An appeal meeting was held by Ms H during which Mr E was present. He was also present when Mr A was interviewed as part of the appeal process. Ms H upheld the outcome of the initial investigation that there was insufficient evidence to confirm whether or not Mr A made physical contact with the Complainant.
Decision: Section 14A of the Acts defines “sexual harassment” broadly as follows:
“any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile or degrading, humiliating or offensive environment for the person.”
The Adjudicator, Hugh Lonsdale, did not engage in a rigorous consideration of the burden of proof and how he determined on the balance of probability that the Complainant was sexually harassed. However, he did engage extensively in a consideration of whether or not the Respondent took such steps as were reasonably practicable to address the allegation of sexual harassment and the defence under section 14A(2). He considered the investigation and appeal in detail.
- Investigation
The Adjudicator noted that Mr E did not interview anyone as part of the investigation process. He also noted that Mr E had not been appointed by the Respondent to carry out the investigation, but rather “took it upon himself to do so”. He referred to the acknowledgement by Mr E during the WRC hearing that in hindsight it would have been better to have probed Mr A more.
The Adjudicator considered the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 at length. He concluded that the investigation of the Complainant’s sexual harassment allegations:
“falls very short of what is set out in the Code of Practice and what is necessary to avail of the defence under section 14A of the Employment Equality Act.”
- Appeal
The Adjudicator also considered the appeal of the outcome of the investigation to have been deficient for a number of reasons. He noted that Mr E, who carried out the initial investigation into the Complainant’s sexual harassment complaint, was present at the appeal hearing and at the appeal meeting that Ms H held with Mr A. He was also critical of the notes from the appeal hearing with the Complainant, noting that there was “no indication the complainant was asked about the events that led to her making the complaint.” He also referred to the failure on the part of Ms H to show the CCTV footage to the Complainant and allow her the opportunity of commenting on it. In contrast, Mr A was shown the CCTV footage when she met with him. The Adjudicator observed that the notes of the meeting with Mr A demonstrated that there was no “rigorous discussion” of the events on 22nd February with him either.
The Adjudicator was not satisfied that the Complainant’s complaint had been taken sufficiently seriously or investigated appropriately in line with the Respondent’s Dignity at Work, Anti Bullying & Harassment Policy. In light of the many deficiencies he identified with the initial investigation and appeal investigation, he found that the Respondent was unable to avail of the section 14A(2) defence.
The Adjudicator upheld the Complainant’s complaint and awarded her the maximum compensation available under the Acts which in this case was €53,560 because of the number of deficiencies and the significant effects of the discrimination on the Complainant. In doing so, he referred to the Von Colson and Kamann (1984) ECR 1891 decision, noting that awards should be “effective, proportionate and dissuasive.” She also directed the Respondent to provide full training in its Dignity at Work – Anti Bullying Policy to all supervisory and management staff, to include full guidance and practical steps in how to deal with a complaint. He directed the Respondent to ensure that records be maintained of all those receiving the training, and that it be provided to all new supervisors and managers as part of their induction.
Takeaway for Employers: This case is an important reminder to employers of what is required to avoid liability where an employee is sexually harassed in the workplace. In particular, the decision highlights that it is not sufficient for an employer to merely demonstrate that it had in place appropriate policies and procedures. Employers must also be able to show that these were communicated to employees, including supervisors and managers; that appropriate training was provided; and that any investigation (and/or any related appeal) was carried out in accordance with the relevant policy/procedure and best practice. Adjudicators will scrutinise the manner in which a sexual harassment complaint was investigated, and the steps taken by an employer in responding to any such complaint.
Link: https://www.workplacerelations.ie/en/cases/2023/september/adj-00040021.html
Authors – Jenny Wakely and Anne O’Connell