This case was a Labour Court (“Court”) appeal from three decisions of the Workplace Relations Commission (“WRC”) regarding complaints under the Employment Equality Acts, 1998-2015 (the “Acts”).

The Complainant alleged that she was discriminated against on the grounds of gender and sexual orientation and that she was subjected to sexual harassment in the course of her employment. The Complainant also claimed that she was victimised for making a complaint of sexual harassment and that her eventual resignation amounted to constructive discriminatory dismissal.

Facts: The Complainant was employed by the Respondent as an Accounts Executive from September 2016 to December 2018. She told the Court that her relationship with her colleague “PK” deteriorated following two incidents. The first involved her supporting a complaint by another colleague against PK, in which she confirmed that he had behaved passive aggressively towards the colleague in a meeting at which the Complainant was present. The second incident involved an evening where the Complainant and PK were both working late. The Complainant told the Court that on this occasion PK told her that it was his mission to “turn her straight”.

Sexual Harassment

The Complainant gave evidence that she and a group of colleagues went to a nightclub after the Respondent’s summer party in July 2018 and that PK began dancing very close to her and began to push his body against hers without her consent. The Complainant raised this with HR and her line manager, and an investigation was carried out. PK was suspended for the duration of the investigation process and, following a disciplinary process, he was given a written warning. The Complainant was advised that after the suspension ended, PK would work from home, and she told the Court that she believed that this would be on a permanent basis. She did not feel comfortable working in proximity to PK.

In October 2018, the Respondent informed the Complainant that PK would be returning to the office as all “company processes” regarding the summer party incident were complete. The Complainant explained that this caused her anxiety, upset and confusion. She was informed that PK had been told of the company’s expectations regarding professional behaviour, and that PK had agreed to behave accordingly. When PK attended work the following day, the Complainant left the office as she felt unsafe. The Complainant went on certified sick leave and engaged solicitors, requesting the Respondent to direct communications through the firm. She resigned on 10th December 2018 and told the Court that she had no other option, with dwindling savings, but to seek alternative employment. She also told the Court that she had received several unwanted approaches from PK even after she resigned, on various social media platforms.

The Complainant claimed that the Respondent had failed to properly investigate her complaint of sexual harassment and had also failed to put in place appropriate measures to mitigate against the effects of the harassment.

Counsel for the Complainant referred to the requirement under section 14A of the Acts for an employer, to whom an allegation of this nature has been referred, to conduct a “proper enquiry” and to take appropriate steps to prevent any recurrence of the behaviour complained of. He identified a number of ways in which the Respondent’s investigation was deficient. He also argued that no meaningful supports had been put in place for the Complainant and that the sanction imposed on PK was too lenient.

It was argued on behalf of the Respondent that the night club events were not under its control as they took place after the workplace event. It was argued that the Respondent went over and above what was required by the Acts in addressing the complaint. The Respondent did not challenge the fact that the Complainant had been harassed, but sought to avail of the defence in section 14A(2). It was submitted that the Respondent took reasonably practicable steps to prevent sexual harassment from occurring, and that it carried out a thorough investigation into the Complainant’s allegations resulting in a disciplinary sanction being imposed on PK. The Respondent also pointed out that it had engaged with both parties in respect of PK’s return to the workplace.

Decision: The Court considered the defence provided for in section 14A(2) of the Acts, noting that in order to rely on the defence, an employer must be able to establish:

The Court found that the Respondent was entitled to rely on the defence. It referred to the Respondent’s “comprehensive” Dignity at Work policy in respect of which all employees, including the Complainant and PK, had received training during their induction. The Court also found that the Respondent had carried out a “comprehensive” investigation of the Complainant’s sexual harassment allegations, some of which were upheld. It also noted that the Complainant had been offered access to, and had availed of, the Respondent’s Employee Assistance Programme (“EAP”). The Court also noted that the Respondent had agreed to the Complainant’s request to move desks and had informed the Complainant that PK had committed to behaving in a professional manner towards her. The Respondent had also undertaken to provide supervision and monitoring.

The Court upheld the Adjudicator’s finding in respect of the Complainant’s sexual harassment complaint, along with its finding in respect of her penalisation and constructive discriminatory dismissal complaints, referring to uncontested evidence on behalf of the Respondent that the Complainant failed to engage with its request for her to reconsider her resignation.

Takeaway for Employers: Claims relating to sexual harassment can be taken in a variety of fora and awards can be significant. There is no service requirement for complaints under the Employment Equality Acts and awards are not based on loss of wages, but are instead linked to the effects of discrimination and the distress suffered by the Complainant.

This case reiterates the requirement for employers to have in place a comprehensive anti-harassment policy with a clear procedure outlining the steps for addressing complaints of harassment and sexual harassment. It is essential that employees are provided with a copy of such policies, and training should be provided to employees and managers. Employers should ensure that any complaints of harassment/sexual harassment are properly investigated and that steps are taken to reverse the effects of harassment.

Authors – Tara Kelly, Jenny Wakely and Anne O’Connell

08 August 2022