Anne O'Connell Solicitors | View firm profile
Facts: This was an Appeal by the Complainant, a 19 year old female barista, against a Workplace Relations Commission (“WRC”) decision that she should be awarded €3,500 on foot of a sexual harassment claim that resulted in her feeling stressed and anxious, certified out sick and ultimately resigning her position.
A Manager employed by the Respondent had engaged with a group of the Respondent’s employees in discourse over social media on a number of occasions in December 2019. Prior to the Complainant attending the Respondent’s Christmas party that year her Manager posted a picture of himself in his boxer shorts on that group along with a comment stating ‘I’ve got my santa panties’ and ‘who takes them wins the prize’. The same manager had previously posted a video of a male employee drawing male genitalia on a flat white with a comment ‘who does this, I’ll promote him to Barista Maestro straight away with no project’, ‘we shall start practising from tomorrow’.
Due to the Complainant’s age and the manager in question’s position of authority, she was embarrassed by the communications but unsure what to do. While she was on certified sick leave in January 2020, she raised a complaint and the Respondent’s representative suggested that perhaps the Complainant could be moved while the incident was being investigated. The Complainant ultimately resigned before the investigation concluded. However, the Respondent did investigate the matter, the manager in question was disciplined by demotion and moved.
The Complainant lodged a complaint with the WRC alleging discrimination on grounds of gender, discrimination in conditions of employment and sexual harassment under section 14A of the Employment Equality Acts and the Code of Practice S.I 208/2012 as ‘Unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of men and women at work’
It was accepted by the parties that the actions of the manager did constitute sexual harassment, and none of the other claims were pursued.
The Labour Court heard evidence that the Respondent had a bullying and dignity at work policy but no specific sexual harassment policy. The Labour Court further noted that no training was given to the Respondent’s employees in order to comply with their duty of care to protect their employees from such harassment.
In the course of the investigation, the Manager had stated that he ‘didn’t want to be careful about what he sent to the group and Complainant had blown everything out of proportion.’
The Respondent argued that the complaints were not made immediately, that the Complainant and the manager in question had a good working relationship after the first incident, the communications were sent to a group, and not directly to the Complainant and was not persistent.
The Complainant argued that she was subject to sexual harassment at the upper end of the scale and that her employer had an obligation to protect her and failed to do so. She argued that the Adjudication Officer was wrong in his award as it was not dissuasive to employers.
The Labour Court commented that it was shocked that the Respondent had no policy covering sexual harassment, no training and no express prohibition on such behaviour. It confirmed the employer’s responsibility to protect its employees from such behaviour by way of both policy and training. There is an obligation on employers to ensure their employees understanding of what constitutes unacceptable behaviour.
Decision: As there was agreement that the employee’s behaviour constituted sexual harassment, the burden of proof shifted to the Respondent and it was up to the Respondent to prove that it had not failed to prevent the behaviour in the first place as was confirmed in A Hotel v. A Worker, EDA 0915
The Labour Court confirmed the finding in Ms. BH v A Named Company DEC/E2006/026 that the display of offensive pictures could be sexual harassment.
The Adjudication Officer had erred in its award and statements that the offending conduct was on the lower end of the scale. The Manager’s behaviour was of the more serious type, taking into account the Complainant’s age and lack of experience, and her manager’s position of authority. The Complainant’s appeal was upheld and her compensation was significantly increased to the equivalent of a year’s wages being €20,000. The Labour Court held that it could not award the maximum amount reserved for sexual assault and the most serious cases of harassment.
It was accepted that the behaviour could not be seen as the most serious type and the Respondent did discipline the manager and offer the Complainant alternatives. However, the employer has a duty to protect from sexual harassment in the first instance. It failed in this. It cannot rely as a Defence on actions taken to prevent a recurrence.
The Labour Court ordered that the Respondent:
- Develop a workplace anti-harassment and sexual harassment policy that complies with the relevant statutory Code of Practice;
- Develop a workplace anti-bullying policy that complies with the relevant statutory Code of Practice;
- Develop an appropriate Social Media policy;
- Take the necessary steps to ensure, using awareness raising and training as considered appropriate and necessary, that the policies are verifiably communicated to, and understood by, all employees
In assessing the compensation to be awarded to the Complainant, in accordance with s.82(1)(c), the Labour Court concluded that the award should lie somewhere between the maximum award of two years’ pay and the original award of €3,500. In assessing precisely where the award should fall within that range, the Court has regard to the observations in von Colson and Kamann (1984) ECR 1891, that awards should be effective, proportionate and dissuasive and that they should act as a disincentive against future infractions by the employer.
Taking all of the above factors into account, the Labour Court was of the view that compensation of €20,000, or approximately one year’s earnings, is appropriate in this case.
Takeaway for the Employers: An employer who believes its sexual harassment policies are simply a ‘tick box’ exercise will pay heavily for such a relaxed approach. It is essential for employers to communicate and train its staff on a regular basis to protect their employees from any unwanted behaviour at work, or even by a fellow employee outside of work.
Authors – Anne O’Connell, Nicola MacCarthy and Hannah Smullen