News and developments
Maximum Compensation Awarded against An Post in Sexual Harassment Claim
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.
Link: https://www.workplacerelations.ie/en/cases/2023/september/adj-00040021.html Authors – Jenny Wakely and Anne O’Connell
- Investigation
- Appeal
Link: https://www.workplacerelations.ie/en/cases/2023/september/adj-00040021.html Authors – Jenny Wakely and Anne O’Connell