An equality case has garnered recent public attention following many media sources reporting an employee who was subjected to verbal and physical sexual harassment by her employer being awarded two years’ salary as a result.
The case, Ms. A. – v - A retail chain (EE/2010/110), revolved around an employee, who was 17 years old when she commenced employment. It is alleged that the inappropriate behaviour and harassment began at this point as she felt victimised when she was told by the HR manager and her supervisor that she was not supposed to speak to her mother, who was also a store employee.
She further identified two supervisor employees that had started making inappropriate comments of a sexual nature shortly after she commenced employment. Examples include: “You are only letting on to be a little Virgin Mary to your mammy, we know what you really are” or “You are nothing but a little hypocrite you little Virgin Mary.”
Further inappropriate comments were made when the employee travelled to Gran Canaria with her fiancé. Further incidents of harassment were alleged during the employees leaving party with one employee acting extremely inappropriately towards her and a fellow employee. According to the employee, when this incident was reported, the initial response from the management was that because the drinks were privately organised they fell outside the Company’s responsibility. However, the employee identified a company policy which stated that even if something happened at a work related function, such as leaving drinks, any inappropriate behaviour was unacceptable.
Employer Must Protect Employees
In their decision the Tribunal concluded that the employee was sexually harassed to such an extent that she requested a transfer to another store. The Tribunal found that while the employer had policies to discourage such behaviour it is important that the employer take reasonable steps to (a) prevent harassment from occurring, and (b), where harassment has already occurred, to prevent the victim from being treated differently in the workplace. The Tribunal went on to note that “For an employer to have a well-publicised complaints procedure and to investigate any complaints are usually the first steps to achieve this aim, and very often, they are sufficient for the prevention of such conduct. In cases like the one on hand, where the respondent is a large retail business with several stores in Ireland and many more in other jurisdictions, I find that putting the onus on the complainant to work in another of its stores (given the fact that management was well aware that the complainant, unlike Mr. B., did not drive) was inappropriate and insufficient for the adequate protection of the complainant…”
Constructive Dismissal
Having found that the employer failed in their duties to protect the employee the Tribunakl then considered if she had been constructively dismissed. “In the case on hand, I am satisfied that the complainant, both in terms of the clarity of her communications and the amount of time which elapsed before she resigned, gave the respondent ample opportunity to address her concerns ... The respondent failed to do so, and therefore I am satisfied that the complainant was constructively dismissed.”
In this case the Tribunal awarded the maximum amount they could award which was two years’ salary to the employee amounting to €29,756 in compensation.
Impact for Employers
Employers should be aware that as highlighted above there is a duty of care to protect employees from incidents of harassment at work and as such they must take proactive steps to address any issues which may be raised. It is not enough to simply have policies in place, but enforcement of these is the key with regular training and information sessions to Management and Staff on how these policies should work.
It is interesting to note the constructive dismissal element of this too and how because of a lack of any action by the employer on the complaints that were raised it leads to a finding that the employee was constructively dismissed.
