Geraldine Carr

A recent sexual harassment decision (O’Brien v Deadline Direct Ltd t/a Deadline Couriers - ADJ-00036160), where the complainant was awarded the maximum compensation amount of two years’ remuneration, serves as a cautionary reminder for employers to take action to prevent harassment and discrimination in the workplace. It further highlights the importance of investigating such allegations and concluding the process, even where the alleged perpetrator resigns.

What happened?

The complainant reported an incident of sexual harassment whereby a male colleague attempted to pull down her trousers opposite several other male colleagues while her hands were occupied. She reported the incident and was advised that it would be fully investigated. The complainant was not called to provide her account of the incident until over a month after it occurred, despite written assurances that the investigation would have been completed two weeks previously and despite there being CCTV evidence of the incident (which should have assisted a prompt investigation).

A number of weeks after the investigation meeting between the appointed investigator and the complainant, she was advised that the alleged perpetrator had resigned. An outcome of the investigation was never provided and she brought a claim under the Employment Equality Acts 1998–2021 (EEA).

What did the WRC find?

The Adjudication Officer (AO) found that the complainant established a prima facie case of discrimination. The AO then turned to determine if the respondent could avail of the defence under the EEA which provides that if a respondent employer can prove that it took such steps that are “reasonably practicable” to prevent the harassment or sexual harassment from occurring or to reverse its effect, then it will not be found guilty of discrimination for the harassment or sexual harassment perpetrated by its employee.

The respondent sought to rely on the Employee Handbook which identified sexual harassment as an offence to be handled pursuant to the internal grievance procedure. The complainant asserted that she never received this Handbook and the AO found that, in the absence of any supporting written acknowledgment or any other evidence that she was provided with a copy, it could not be satisfied that she had received it. The AO further noted that there was no evidence of a distinct policy dealing with sexual harassment complaints which, the AO asserted, should be handled differently than standard grievances because of the sensitivities involved.

The AO also pointed to the absence of sexual harassment training. Although the AO acknowledged that the respondent had issued a Dignity at Work policy to all employees after the incident, it noted that it would be of limited benefit to the complainant who was unlikely to return to work in the short or medium term. Although the policy would assist in ensuring that employees would not be subjected to such behaviour in the future, this policy could not be relied upon as a preventative measure.

The AO then turned to examine the respondent’s actions after the harassment was reported and found that the complainant had engaged in the investigation process (in the absence of any direct evidence from the investigator to the contrary who was not present at the WRC hearing) and that no investigation outcome was ever issued. The AO found that there was no justification for not producing an investigation report, even where the alleged perpetrator had resigned, and that in the absence of such a report, the “investigation did not mitigate in any way the absence of any of the respondent’s protective and preventative measures”.

The AO, in finding that the failure to implement any protective or preventative measures prior to the sexual harassment and the wholly inadequate measures taken after the incident, made an award of €50,440, an amount equivalent to two years’ remuneration.

Key takeaways for employers from this case

• Ensure that employees are provided with an Employee Handbook that contains all of the relevant and necessary policies and procedures, including but not limited to a bullying and harassment (including sexual harassment) policy, a grievance policy and a disciplinary policy. The Employee Handbook should be provided as part of the on-boarding process and a record retained of the employee’s receipt of the Handbook. Employees should be reminded of the employer’s policies and procedures on an annual basis or where any changes or updates are made to them.
• Conduct a regular review of employment policies and procedures to ensure that they are up to date and fit for purpose.
• Ensure that regular and thorough training is provided to employees. This will assist an organisation in relying on the defence that it took reasonably practicable steps to prevent any harassment taking place.
• Where an investigation is ongoing and the alleged perpetrator resigns, the investigation must still be concluded and the outcome of the investigation report must be issued.
• In this case, the complainant disputed that mediation was offered but it is worth noting that the AO viewed mediation as a “bizarre suggestion” where such a serious allegation of sexual harassment was made. Consideration should, therefore, always be given to whether the offer of mediation is appropriate in the circumstances.
• Ensure that company policies are appropriately tailored to Irish law. In this case, the grievance policy referenced the UK Advisory, Conciliation and Arbitration Services which the AO appears to have taken a dim view of.

• Geraldine Carr is a partner and Denise Moran is a senior associate at Matheson LLP.