About this case:

• Citation:
  ADJ-00015003
• Judgment:
  External link
• Court:
  Workplace Relations Commission

The woman stated that she was sexually harassed on a regular basis in front of managers of the retail store she worked in, and that her treatment worsened when she eventually complained to HR.

Adjudication Officer Marian Duffy said the management’s failure to prevent the discriminatory treatment was inexplicable, and that the amount of redress reflected the distress and indignity suffered by the woman.

Background

In November 2016, the complainant commenced work as a sales assistant with the respondent company. In May 2017, she went on maternity leave and, when she returned to work in November 2017, she was subjected to repetitive comments of a sexual nature by an assistant manager. The complainant submitted that, over the course of the next six months, she was humiliated in front of other members of staff, including other managers, who heard him and frequently laughed along with him.

The complainant submitted that the assistant manager stopped calling her by her name and called her “big tits” and, later on, “thunder tits”. She said that he “made offensive comments about her Asian partner, called her a thick b****, made sexually explicit gestures towards her, made offensive comments about her breasts, asked her to engage in lewd acts, and suggested she provide sexual favours for him in return for keeping her job”.  He also frequently threatened to kick her “up the a***” when she was packing shelves. The Commission heard that the complainant “took preventative measures” to stop the sexual harassment, such as wearing baggy clothes or pulling a shopping trolley behind her in case the assistant manager would touch or kick her as he had threatened.  

Sexual harassment complaint

The complainant said that she was told to “f*** off” when she asked the assistant manager to stop, and complained to another assistant manager about her treatment, but that nobody did anything to stop him. The complainant stated that the sexual harassment continued occurred on every day she worked with him until she made a complaint to HR in April 2018.

When she returned to work after informing HR of the harassment she suffered, the complainant said she was treated differently in the workplace, and subject to further harassment by other staff members who accused her of trying to get the assistant manager fired. She said that one of the deputy managers called her a “dirty little rat” and another made threatening comments directly to her. This resulted in stress and anxiety and raised questions about confidentiality and discretion in the company’s grievance process. In May 2018, the complainant attended her GP, who prescribed her antidepressants and advised her not to return to work. She remained off work until November 2018 when she resigned from her job.

The respondent company submitted that the store manager had dealt with the initial incidences using an informal approach as allowed by the company’s policy, and did this with the agreement of the complainant in circumstances where he did not have a formal written complaint from her. After the complainant made her statement to HR, the assistant manager was suspended pending the investigation, and members of staff were interviewed. Ultimately the complaint was upheld, and sanctions imposed involved the transfer of the assistant manager and the store manager to other stores.

Workplace Relations Commission

Adjudication Officer Duffy said that the first issue was to determine whether the respondent discriminated against and sexually harassed the complainant contrary to section 14A of the Employment Equality Acts 1998 (as amended) on the gender ground. Adjudication Officer Duffy was satisfied that the Complainant’s treatment did fall within the definition of sexual harassment under s.14A.

Adjudication Officer Duffy was also satisfied that the store manager was “well aware of the inappropriate behaviour”, having witnessed it himself, and said that it was “incomprehensible that for about four months after the manager learned about the sexual harassment that he sat on his hands and allowed it to continue”. She said it was unreasonable for the manager to believe that he required a formal written complaint before he could take the matter further and prevent the assistant manager from sexually harassing the complainant.

While accepting that the respondent had a policy for preventing bullying and harassment in the workplace, Adjudication Officer Duffy said it was not adequate to prevent the complainant’s sexual harassment and management failed to implement it. It was noted that the policy did not specify the responsibility of management to prevent sexual harassment, and the complaints procedure was not accessible or adequate for dealing with such a serious issue. As such, the statutory defence under s.14A(2)(a) & (b) did not apply.

Assessment of damages

Considering s.82 of the Employment Equality Acts 1998–2015, Adjudication Officer Duffy noted that the complainant’s pay for 104 weeks amounted to €16,000, but said this was not a case where 104 weeks adequately reflected the gravity of the matter.

Adjudication Officer Duffy said that in assessing the amount of redress, she considered the “inexplicable failure of management to prevent the discriminatory treatment”, the “serious nature” of the complainant’s treatment over a period of six months “including being physically assaulted a number of times, the distress and indignity suffered by her and the impact it had on her health requiring her to go on sick leave”. In those circumstances, she awarded the complainant €40,000.

• by Seosamh Gráinséir for Irish Legal News