About this case:

• Citation:
  EDA1931
• Judgment:
  External link
• Court:
  Labour Court

Finding that Waterford Institute of Technology “did not take such steps as were reasonably practicable to prevent sexual harassment and harassment based on gender” occurring in the workplace, Chairman Kevin Foley also ordered WIT to review how its policy on “Dignity at Work” is communicated to students and to review the effectiveness of its procedure for dealing with harassment complaints.

Background

Ms Louise Walsh is employed as a lecturer at Waterford Institute of Technology. In September 2014, she was assigned to teach a class of 100 students, of whom approximately 85 were male.

In October 2014, Ms Walsh notified WIT that she had been “sexually harassed by a large group of male students in her assigned class”. She said that she had been “asked explicitly, coarse sexual questions and, in addition, various disgusting and explicit comments were made about male genitalia”. She also outlined how she had been the subject of general harassment and disruption by a large number of male students. Ms Walsh was unable to identify the particular students responsible.

The course leaders confirmed that the sexual harassment had occurred but were not asked to investigate further or to monitor the situation.

The sexual harassment of Ms Walsh continued, including “inappropriate sexual references and sexual language including coarse words referring to parts of a woman’s body; references to sexual acts and comments about how the male students ‘would do her’”.

Ms Walsh informed the Head of Department and said “that the behaviour had the purpose and effect of violating her dignity and creating an intimidating and hostile working environment”.

Further harassment continued and WIT was again informed, leading to one student being spoken to and the class being split. In March 2015, Ms Walsh was again sexually harassed by a group of students stating in her hearing: “You are not going to believe what the stupid bitch is doing now” and “I am not going next fucking Thursday” – this was in reference to training being instituted by WIT in relation to “Dignity at Work” arising from the earlier complaints and grievances.

Although WIT did put in place a training programme on “Dignity at Work” for Ms Walsh’s students, Chairman Foley said there was no evidence that the programme “specifically addressed the issues of sexual harassment or harassment based on gender”, nor was the WIT equality officer asked to include a focus on these topics when designing the training programme.

Labour Court

Ms Walsh’s case came before the Labour Court by way of appeal from Adjudication Officer Decision No. DEC-E2017-077.

In her complaint, made under the Employment Equality Acts 1998–2015, Ms Walsh submitted that she was the subject of discriminatory treatment harassed on the gender ground and sexually harassed, and that she had been the subject of a series of discriminatory acts in the period from October 2014 until March 2015.

Section 14A(7)(a) of the Equality Act 2004 defines harassment and sexual harassment as “any form of unwanted conduct…and any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A(7)(b) states “such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.

WIT relied on Section 14(A)(2) of the Equality Act 2004 as a full defence against the complaint of discrimination. As such, Chairman Foley examined whether WIT took such steps as “reasonably practical to prevent sexual harassment and harassment based on gender from occurring in the workplace, and, in circumstances where such harassment has occurred, whether sufficiently robust policies and procedures are in place to deal with it when it is found to have taken place”.

Chairman Foley noted that WIT had a Dignity and Respect policy in place at the relevant time and that this policy made clear that sexual harassment was unacceptable. However, Chairman Foley said this policy was not effectively communicated to all students – as such, he found that WIT “did not take such steps as were reasonably practicable to prevent sexual harassment and harassment based on gender” occurring in the workplace.

Stating that it was “clear to the Court that at all times [Ms Walsh’s] complaint was that of sexual harassment and harassment based on her gender in the workplace”, Chairman Foley said it was also clear that WIT “at no time raised those matters explicitly with the class of students where the incidents occurred”.

Chairman Foley was also satisfied that there were, in effect, no mechanisms were in place to facilitate a response to a complaint of sexual harassment or harassment based on gender where the identity of the students allegedly responsible for these acts was unknown to the victim.

He was satisfied that WIT was liable for the sexual harassment and the harassment suffered by Ms Walsh on the grounds of her gender. Considering the principles in Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR1891 “that remedies proposed by National Law and implemented by a National Court when enforcing domestic legislation enacting the terms of a Directive should be ‘effective, proportionate and dissuasive’”, Chairman Foley ordered WIT to pay Ms Walsh €10,000 for distress and the effects of sexual harassment and harassment based on her gender.

Furthermore, he ordered WIT to “review the operation of its Dignity and Respect policy and in particular the effectiveness of arrangements in place to communicate the policy to students and, as part of those arrangements, to communicate [WIT’s] intolerance of sexual harassment and harassment based on gender”, and to “review the effectiveness of arrangements in place to respond to complaints made by teaching staff of sexual harassment and harassment based on gender by students, including where the identity of individuals involved is not known to the victim”.

• by Róise Connolly for Irish Legal News