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Sexual Harassment Claim Fails As Court Finds That Reasonable Steps Were Taken By The Employer
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:
Authors – Tara Kelly, Jenny Wakely and Anne O’Connell
08 August 2022
- That it took such steps as were reasonably practicable to prevent the person from harassing or sexually harassing the victim; and
- That it took such steps as were reasonably practicable to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if as any such treatment has occurred, to reverse its effects.
Authors – Tara Kelly, Jenny Wakely and Anne O’Connell
08 August 2022