Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on settlement agreements.

In the case of Catlan Trading Limited trading as Marco Moreo and Kellie Ann McGuinness EDA175, the Labour Court had to deal with a case where the employee appealed dismissal of her claim before an Adjudication Officer where she alleged gender discrimination, harassment and sexual harassment.

The Labour Court overturned the decision and awarded €5,000 for the distress and the effects of sexual harassment which constitutes discrimination.

An extremely interesting aspect of this case was the argument relating to section 14 A (2) of the Employment Equality Act 1998.

The Court noted that the employer did not have an anti-harassment or dignity at work policy in place at the relevant time. The employer contended they were a small employer and that it was not incumbent on it to have such policies and that it took reasonable steps to deal with the issue when it became aware of the harassment. The Court pointed out when the Code of Practice S.I. 208/2012 does not impose any legal obligation in itself. It is the employer’s responsibility to ensure compliance with the Act. The Court helpfully pointed out that it is an employer’s responsibility to have in place effective measures to ensure that sexual harassment does not occur and if it does occur to ensure that adequate procedures are readily available to deal with the problem and prevent its reoccurrence. The Court pointed out that there are some groups which are specifically vulnerable to such harassment.

The Court helpfully pointed out that the Code encourages employers to follow its recommendations in a way which is appropriate to their size and structure. The Court pointed out that it does not exempt small or medium sized enterprises from its recommendations. Such enterprises are encouraged to adopt some of the practical steps to their specific needs while keeping to the general intention of the Code. The Court pointed out that an employer who has taken such steps to prevent harassment, to reverse the effects of it and to prevent its reoccurrence may avoid liability for such acts in any legal proceedings brought against them. The Court however pointed out that in the instant case while the employer did not have in place a policy or procedure at the relevant time but now had there was no policy in place at the relevant time and there was no policy in place to prevent such harassment or to inform employees of its intolerance of such inappropriate behaviour.

The Court has importantly pointed out that the defence contemplated by Section 14 A (2) of the Act cannot be availed of where an employer subsequent to harassment introduces a policy on harassment.

The Court stated:

“In order to avoid liability it is essential for the respondent to establish that it had in place, at the time at which the harassment occurred, arrangements intended to prevent and deal with the occurrence of such content. It is clear that no such arrangements were in place at the material time. Accordingly, the defence provided by Section 14 (A) (2) of the Act cannot avail the respondent and it is therefore liable for the discrimination suffered by the complainant”.

This is a very helpful determination by the Court in setting out the law on the defence under Section 14 (A) (2).

This is a case which was fully fought with extremely competent Solicitors and Counsel being Mr. David Martin of Gore Grimes Solicitors and Mr. Des Ryan BL instructed by Killeen Solicitors. The Court has very helpfully set out the arguments on both sides and the submissions made. For anybody interested in Equality Legislation and the steps employers should put in place this is a decision which is important to read.