THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2015-079

Ms C (represented by Oisin Clarke B.L., instructed by Ferry Solicitors)

v

A Multi-National Grocery retailer (represented by Eamonn McCoy, IBEC)

File Reference: EE/2012/242

Date of Issue: 31st August 2015



Keywords: sexual harassment; Section 14(2) employer defence; Section 74(2) victimisation

Claim

1.1. The case concerns a claim by Ms C that her employer, a Multi-National retailer, discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2011 in relation to her conditions of employment as she submits that she was sexually harassed in the workplace. The complainant also alleges that she has been victimised within the meaning of Section 74(2) of the Acts. It is the policy of the Equality Tribunal that decisions are anonymised in complaints of sexual harassment unless the complainant specifically requests otherwise.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 24th April 2012. On 24th October 2012, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 28th November 2014. The last piece of correspondence relating to the complaint was received on 22nd December 2014.

Cast

Ms A – fellow cashier

Ms B – Personnel Manager in complainant’s store

Ms C – complainant

Mr D- First Store Manager who investigated Ms C’s complaint

Ms E- demonstrator who made a complaint about Mr X to the Gardaí

Ms F – Cash Office Manager

Mr G- Second Store Manager

2.Summary of the Complainant’s case

2.1. The complainant commenced working for the respondent at its store in the Merrion Shopping Centre on 9th October 2003 as a General Operative. She was employed as a Cashier on the store tills before being promoted to the role of Team Leader in June 2011. The complainant points out that her contract of employment does not make any reference to Equality and Dignity at Work policies.

2.2. Ms C submits that she enjoyed her work until an incident on 8th November 2011. She was working on a till. The store was not busy so she told her colleagues that she was going to the store room to replenish the paper cups for the coffee machine. The route to the storeroom involved passing Mr X, a security guard, who was viewing the CCTV footage. Ms C is anxious to point out that she barely knew Mr X. She submits that she would have had to think for a few seconds to recall his surname. He followed her down to the storeroom (she was the only one there) nearly closed the door. She submits that, without warning, started feeling her buttocks in a massaging motion. At first she thought she was imagining it and then said to him ‘Are you trying to feel me?’ He said ‘Do you mind?’ She shouted at him ‘What do you think? Get out of here’. Ms C states that she felt physically intimidated as he was younger, bigger and heavier than her. She submits that Mr X was visibly excited by what occurred. He did leave. She returned to the cash register but was shaking. Her colleagues asked her what was wrong. She told them and one of them Ms A (a fellow cashier) said that Mr X had done something similar to her and that others had been sexually harassed by him also. Although shaken, Ms C had only an hour left to finish her shift so continued to work on the tills until it was time to go home.



2.3. Ms C was scheduled to work two days later. She approached Ms B (Personnel Manager for the store) about the incident. The complainant submits that Ms B replied sighingly: ‘Are you making a formal complaint or do you just want to talk about it?’ Ms C submits that she was upset about the unprofessional response and told Ms B that she was going to think about it. On 22nd November 2010 she informed Ms B that she wished to make a formal complaint. Ms C made a written statement [which the Equality Officer sought from the respondent]. She also informed Ms B that she had been told of other incidents of sexual harassment by Mr X against other employees. Ms B’s response to this was to ask the complainant to obtain statements from other victims! Ms C maintains that this was inappropriate but she did approach the relevant people.

2.4. Ms A provided a statement where she said Mr X had put his hand up between her legs. He attempted it a second time but she slapped him in the face. She did not make a complaint at the time of the incident as he was a married man with children. However, when something similar happened to Ms C, she felt obliged to complain. However, her complaint was not taken seriously ‘That can look like its someone helping someone’ [Mr G Store Manager stated in notes of meeting on 6th March 2012]. The complainant submits that an other victim was an employee of the pharmacy in Merrion Shopping Centre. At the time the Pharmacy worker mentioned his behaviour to the Manager of the respondent store – Mr D. He agreed to have a word with Mr X. The pharmacy employee did not wish to make a statement because as far as he was concerned the issue was dealt with. The complainant made considerable efforts to contact Ms E (who attended regularly at the story carrying out demonstrations). Ms E was so disgusted at Mr X’s behaviour that she accompanied the complainant to Ms B and outlined that she had made a complaint about Mr X to the Gardaí over obscene text messages (sexting) including images of his genitalia that he sent to her. A Garda investigation was ongoing at that time. The complainant submits that Ms B was aware of the Garda investigation but shrugged her shoulders.

2.5. After all her efforts to get other people to provide statements (which she submits that she should not have been asked to do), Ms C hoped that her complaint would be taken seriously. Ms C also expressed disappointment that Mr X was not suspended (with or without pay) while the investigation was ongoing. When she looked for updates, she submits that she was met with a bored response. She also found out that Mr X was allowed to read her statement about what had happened but she was not extended the same courtesy. On 29th November she was called into a meeting with the Store manager [Mr D] and Ms B where she was told:

‘After conducting a full investigation, I must advise you that all we can do is to put a comment on Mr X’s file to say that there have been allegations made against him but due to lack of evidence we cannot prove that he is guilty.’ [notes of meeting of 29th November 2010 – requested by Equality Officer]

No appeal of this decision was offered. The complainant was very disappointed (but submits that she was not surprised) at the cursory approach taken to her complaint of sexual harassment. She submits that she felt deflated that, in spite of the evidence to the contrary, Mr X had got away with his sexual harassment of her and other colleagues. As a result of the incident and the respondent’s subsequent handling of it, Ms C became depressed and was out of work for six weeks.

2.6. Not long after returning to work, the complainant was encouraged to apply for the position as Supervisor which she obtained. This promotion required her being responsible for the ‘money run’ to supply other tills with cash. A Security Guard normally accompanied the Supervisor on this duty. The complainant was concerned that Mr X would be accompanying her. The complainant submits that Ms B reassured her that such a scenario would be avoided and a colleague from the cash office would accompany her if Mr X was the only security guard available. The complainant submits that the real reason that Mr X would not be accompanying her is that he was refusing to work with Ms C as she had made a complaint about him. Ms C maintains that he was indulged but she submits that she was made feel as if she was the awkward one. On one occasion she asked him to come to her assistance as two drunken men were falling on top of the self-scanner. He refused to do so. She raised a grievance about this issue to Ms B but it was never investigated. In direct evidence at the hearing Ms C stated that ‘Mr X made her feel like a piece of shit. He had all the power’.

2.7. The complainant states that there were no problems with the money run for a few weeks. However, the supervisor of the cash office (Ms F) complained because her direct reports were falling behind in their core work as a result of having to accompany the complainant on the money run. On being told the reason why the complainant did not want to Mr X accompanying her, initially the Cash Office Manager was sympathetic. However, a few weeks later, the Cash Officer Manager insisted that Mr X accompany her on the money run. The complainant became very upset at this prospect. Ms F replied ‘You have to do it. I’m after complaining to Mr D [Store Manager]. Therefore Ms C had to work in close proximity with Mr X. Shortly after commencing this cash run, the complainant broke down and almost collapsed with upset. Ms F had been observing the cash run on the CCTV and came to the complainant’s assistance. Ms F ushered Mr X away and said she would finish the money run with Ms C.

2.8. The complainant contacted her union representative and a meeting with Ms B (Personnel Manager) and Ms F (cash office manager) was held. At the meeting, the complainant outlined how unsupported she felt since she made her complaint: ‘How can he get away with it and the person who done nothing is left feeling without support’ [notes of meeting on 7th November taken by Shop Steward on the respondent’s instruction]. Ms B said she would raise the issue with Mr D (Store Manager). Despite having given a comprehensive written statement in the days subsequent to her incident of sexual harassment, Ms C was asked to write it all down again. The complainant submits that she found this upsetting.

2.9. On 23rd December 2011 the complainant reported to the cash office to do the money run as usual. However, she was directed to go to a till. A junior colleague was asked to do the money run. When the complainant enquired from the Cash Office Manager why this important aspect of her job was removed from her, Ms F replied ‘We didn’t want any hassle between you and Mr X. Today is a busy day’. Ms B agreed with Ms F. The complainant submits that made her feel punished for making a legitimate complaint of sexual harassment. She raised the issue with her Union Representative who sought an urgent meeting with Mr D. The request for the meeting was refused as ‘the store was too busy’.

2.10. In the New Year it was suggested to complainant that she move to the bakery (and therefore lose her promotion) to avoid contact with Mr X. She submits that this was making her feel as if what occurred was her fault. She submits that she is at a loss to understand how a major retailer with huge resources could not have handled this dilemma in a better way. When she enquired why he could not be moved instead, she was told that the contract of employment for a security guard was different to that of a general assistant and that he could not be forced to move. Ms C submits that she had many sleepless nights as a result of the incident and the way it was handled. She became physically ill (bronchitis) which her GP ascribed to her immune system being down due to this work-related stress.

2.11. She submits that it is clear that there were no proper procedures in place. Her initial complaint was treated with disdain. The complainant was sent to collect statements from other victims herself. Managers did not want to take responsibility for dealing with what occurred. Therefore the complainant submits that they cannot rely on the Section 14A (2) defence i.e. it is a defence for the employer if it can prove that it took reasonably practicable steps to prevent the person from sexually harassing the victim or any class of persons which includes the victim and to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment. If such treatment has occurred the employer must take reasonably practicable steps to reverse its effects.

2.12. The complainant maintains that the respondent’s approach fell far short from what is recommended in Section 4 (3) of Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 [S.I. No 78 of 2002]:



The policy should state that in particular, management should:



—provide good example by treating all in the workplace with courtesy and respect



—promote awareness of the organisation’s policy and complaints procedures



—be vigilant for signs of harassment and take action before a problem escalates



—respond sensitively to an employee who makes a complaint of harassment



—explain the procedures to be followed if a complaint of sexual harassment or harassment is made



—ensure that an employee making a complaint is not victimised for doing so



—monitor and follow up the situation after a complaint is made so that the sexual harassment or harassment does not recur.

. The complainant cited A complainant v A Contract Logistics Company[1].

3.Summary of the Respondent’s case

3.1. The respondent raises a few preliminary issues. It submits that the complainant is not allowed take this complaint as a sexual harassment case as the harassment box rather than the sexual harassment was ticked. The complainant has not named a male comparator in relation to the harassment.

3.2. The respondent submits that the November 2010 incident is out of time. They submit that the complainant should have submitted an EE1 form regarding this incident within six months of the incident. Otherwise it is out of time.

3.3. Regarding this alleged incident, the respondent investigated it as per their procedures. There were no witnesses to the incident so therefore there was no firm evidence that the incident actually happened. Mr X denied it. He stated that he slipped and grabbed her buttocks to regain his balance. Mr X submits that he apologised immediately. Regarding the other allegations of sexual harassment against him, Mr D gave direct evidence at the hearing that the pharmacy employee did not want to pursue a formal complaint against Mr X. Regarding Ms A’s complaint; there were no witnesses so they submit that they could not uphold it. Regarding Ms D’s allegation, she was not an employee of the respondent and they do not interfere in Garda investigations.

3.4. The complainant went on extended sick leave from 22nd January 2011 to 5th March 2011. However, the respondent did not hold her sick leave against her and offered her the role of Team leader. When Ms C raised concerns about being accompanied by Mr X, Ms B submits that she told her that contact with him would be minimised but not eliminated. The respondent maintains that Ms C took the promotion on this basis.

3.5. Nevertheless the respondent maintained efforts to ensure Mr X did not do the cash run with her. However, the respondent points out that Ms C sought Mr X’s help in dealing with two drunken men who fell over the self-scan till. Ms C then said that Mr X did not come to her assistance. If she was frightened of Mr X, why did she seek his help?

3.6. Regarding not being asked to the cash run on 23rd December (the busiest day of the retail year) the respondent submits that this was not a punishment. Not long after this, the complainant went on long-term sick leave. As per their procedures, she was called to two welfare meetings on 17th February and 6th March. The new Store Manager [Mr G] had taken over. He said:

“Why I’m here is to understand what we can do to support this. For me to treat you as fair and equal you need to understand that it is fair and equal that you will both do the change run. We will try to come with some alternatives that you don’t have to do it, but I can’t promise and make a statement that it will never happen. I want you to come back to work and be happy. That’s why we are having this meeting”.

The respondent submits that this is indicative that they treated the complainant with concern and empathy. They also offered her counselling (which she did not take up as she had already gone to somebody recommended by her GP) and offered to move her to an other area.

3.7. The respondent submits that it does have a ‘Dignity of Work’ policy which refers to Employment Equality Acts and includes the definition of sexual harassment from the Acts therein. It accepts that it is not specifically mentioned in the contract of employment but it is mentioned in the Staff handbook. There is also a poster explaining what constitutes sexual harassment on the staff noticeboard.

4.Conclusions of the Equality Officer

Preliminary issues

4.1 Regarding having the harassment box ticked rather than the sexual harassment box, it is worth noting that the EE1 form is not a statutory form. The definitions for harassment and sexual harassment are very similar in the Employment Equality Acts and the defences are identical. What Ms C describes in the ‘outline in detail’ box on the EE1 is clearly a complaint of sexual harassment. Prior to submitting her complaint to the Tribunal, she characterised the incident as sexual harassment in her statement to the respondent. I am satisfied that the respondent was on notice that they were defending a sexual harassment complaint and that there was no breach of natural justice by a different box being ticked. In this I am guided by Hogan, J in an appeal to the High Court of a Labour Court determination:

Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). …In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.[2][my emphasis]

The respondent is mistaken that a comparator is required for a harassment (sexual or otherwise) case.

4.2 If I was to accept the respondent’s contention that I cannot investigate incidents prior to 24th October 2011(six months prior to lodging of the complaint with the Tribunal), I would have to ignore the Labour Court decision County Cork VEC and Ann Hurley[3] and the High Court decision County Louth VEC v The Equality Tribunal and Pearse Brannigan[4]. In the former decision the Labour Court stated that ‘occurrences outside the time limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them part of a continuum’. In Brannigan McGovern, J said:

“I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints, which are made within that expanded period, are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.

Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice”.

4.3 The first thing that the complainant says in the meeting of 7th November 2011 (notes taken by the Shop Steward at the request of the respondent): ‘going back to the complaint I made about Mr X, I’m disgusted at how it was handled…I feel I shouldn’t have been put in a position to work with him . [The respondent] should put something in place to protect me. No one spoke to Mr X about not doing the change with me until Mr G [Store Manager] spoke to him last week. The respondent should put a policy or a practice in place to prevent Mr X being anywhere near me, making me feel vulnerable & guilty. I should not be made feel like this in workplace. 10 months on, nothing has been done….I woke up at Three O Clock this morning and I was upset. That shouldn’t happen. ’.

4.4 I am satisfied that the events that occurred since the incident in November 2010 are sufficiently linked so as to make them part of a continuum. Both the Labour Court and High Court cases provide clear authority to allow me to investigate these events. The Tribunal does not welcome half-cocked complaints. It is better for the complainant, respondent and, ultimately the taxpayer, if complaints are attempted to be resolved as close to the source as possible. That is why respondents have grievance procedures. The Tribunal would always encourage a complainant to exhaust these first before lodging a complaint with the Tribunal. Had the complainant lodged a complaint immediately after the incident in November 2010, it is likely that the respondent would argue that they were not allowed sufficient time to resolve the issue. For all of these reasons, I am satisfied that I may investigate all incidents from November 2010 to those ventilated at the hearing.

Sexual harassment

4.5 Sexual harassment is defined in Section 14A (7) of the Acts as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s s dignity and creating an intimidation, hostile, degrading, humiliating or offensive environment for the person. It may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. it is a defence for the employer if it can prove that it took reasonably practicable steps to prevent the person from sexually harassing the victim or any class of persons which includes the victim and to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and where such treatment has occurred to reverse its effects.

4.6 I am satisfied that that the respondent investigated Ms C’s complaint of sexual harassment inadequately. First of all, the actions of the managers in this case seems to indicate that they that they believe that a criminal standard of proof is required (i.e. beyond reasonable doubt) in these investigations. However, their own ‘Dignity at work’ policy states that the civil standard (on the balance of probabilities) is all that is necessary. While I appreciate that all of the managers that gave evidence at the hearing stated that they never received training in sexual harassment investigations (and this is remiss of the respondent), I fully concur with the complainant that the managers involved were abdicating responsibility in relation to investigating the complaint properly. I accept the complainant’s evidence that Ms B perceived Ms C’s complaint as an inconvenience from the beginning. It is clear that none of the managers involved were willing to grasp the nettle of thoroughly investigating the many complaints of sexual harassment against Mr X.

4.7 No adult of normal intelligence thinks that it is a wise career move to sexually harass a colleague in public. The insistence of witnesses to prove Ms C’s version of events ignores the reality of sexual harassment – that it is nearly always surreptitious. Ms C gave cogent evidence, both in the respondent’s investigation and at the hearing, that Mr X from seeing on the CCTV that there was nobody around followed Ms C to the storeroom. He had no reason to go to the storeroom. Mr X almost closed the door so there were no third-party witnesses to what occurred. The floor was flat and dry. By all accounts, he was bigger and heavier than Ms C (the respondent chose not to bring him as a witness to the hearing). Therefore, it stretches credibility beyond its limits that he slipped and the only part of her body that he could grab to prevent him falling was her buttocks. This explanation was not probed during the respondent’s investigation. To the respondent’s credit, excellent notes were taken of all the relevant meetings. The investigation meeting with Mr X on 24th November 2010starts off as follows:

“Mr D: Mr X this is investigation meeting. A staff member put allegation against you.

Mr X: Is it Ms C? I don’t believe this. I just tried to help her.”

4.7 Considering this meeting happened a fortnight after the incident and Mr D did not identify what the complaint was about, it is noteworthy that Mr X was able to identify who had made the complaint and he reacted defensively. Again, this was not probed. Neither were any enquiries made as to why he went to the storeroom in the first place and why he felt the need to leave the door only slightly ajar. I agree with the complainant that requiring her to seek other witness statements was highly inappropriate. That they were ignored does not assist the respondent’s case especially when the balance of probabilities is the proof required. It bears repeating that an employer must be able to demonstrate that it took reasonably practicable steps to prevent sexual harassment as well as steps to reverse its effects to avail of the statutory defence.

4.8 There were other flaws in the investigation. Ms C did not have an opportunity to see Mr X’s statement. No appeal was offered which is in breach of the respondent’s Dignity at Work policy. The whole investigation was weighted against Ms C.

4.9 In direct evidence, Ms F (Cash office manager) said ‘Ms C is a strong woman, I can’t understand how she is so upset over this’. First of all it was a serious incident – who would want to be followed into a small space, by someone to whom you are not attracted and who physically intimidated you, to be molested? Apart from that, the Chairman of the Labour Court has pointed out that if the impugned conduct had the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim 'whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the complainant, it constitutes harassment for the purpose of the Acts.'[5]

4.10 The respondent’s ‘Dignity at Work’ document is adequate. However, as S.I. 78 of 2002 states ‘employers will not be able to rely on an excellent policy if it has not been effectively implemented’. From the evidence adduced above, it is clear that implementation of the policy was not effective. Very little was done to prevent sexual harassment and even less was done to reverse its effects on the complainant. Therefore the respondent is not entitled to avail of the Section 14A defence.

Victimisation

4.11 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.

4.12 Had the respondent investigated Ms C’s complaint properly and taken appropriate responsive action, I have no doubt this matter would not be before the Tribunal. However, many of the subsequent actions by the respondent constitute victimisation. Mr X made it very clear that he would not work with Ms C even to the point of not coming to her assistance when two drunken men were causing an obstruction in the store. Ms C raised a grievance about this issue but it was completely ignored.

4.13 Even after hearing why Ms C did not want to do the money run with Mr X, the Cash Office Manager continued to repeatedly complain to Ms C about how this was causing her inconvenience. When Ms C was forced to do the cash run with Mr X, she collapsed with upset. Ms C gave cogent evidence that she was made feel like the accused rather than the victim. Despite being aware that Ms C was frightened of Mr X and out on unpaid sick leave as a result, the only solution that the respondent offered was that she give up her promotion and move to the bakery section. No thought was given to moving Mr X despite numerous complaints of sexual harassment by other women which the respondentchose not to investigate properly. The respondent has 149 stores in Ireland and in 2013/14 its Irish revenue was €2.97bn (including VAT). When a valued employee is out on sick leave because she does not feel safe to return to the workplace, moving Mr C to a different premises or not scheduling him to do the cash runs with Ms C are options that could have been explored.

4.14 For these reasons the complainant has raised a prima facie case of victimisation and the respondent has failed to rebut it.

4.15 In calculating redress for the complainant, I must be cognisant of a number of considerations. Ms C was an excellent worker which is why she became a Team Leader. Both Ms B and Mr D acknowledged this in the hearing. An employer has an obligation to take reasonably practicable steps to prevent sexual harassment in the workplace. There was at least one previous complaint about Mr X (admittedly informal and not by an employee) of sexual harassment. Therefore, when Ms C and Ms A made complaints they should have been taken seriously. Ms E’s complaint to the Gardaí about Mr X adds another nuance. However, I also must take into account that there was only one incident of sexual harassment involving Ms C. Nevertheless, the investigation as well as what happened subsequently fell far short of best practice. I am also guided by Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive[6]. The redress must be proportionate to Ms C’s salary (as Team Leader) and to the resources of a Multi-National Enterprise. The award must also dissuade the respondent and other employers from allowing a similar situation to occur.

5.Decision

5.1. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that

(i) the respondent did discriminate against Ms C by not taking reasonable and practicable steps to prevent her sexual harassment contrary to Section 14A(7) of the Acts and

(ii) the respondent did victimise the complainant within the meaning of Section 74 of the Acts

5.2 In accordance with Section 82 of the Act, I order the respondent pay the complainant:

(a) €22,000 (the approximate equivalent of a year’s salary) in compensation for the harassment endured and the respondent’s failure to reverse the effects. This is half of the maximum that I am allowed to award.

(b) €11,000 (the approximate equivalent of six months’ salary) for the victimisation of the complainant. This is a quarter of the maximum that I am allowed to award.

(c) pursuant to Section 82(5)(b) of the Acts, pay the complainant interest at the Courts Act rate in respect of the amounts above in respect of the period beginning on 24th April 2012 (being the date of the reference of the complaint) and ending on the date of payment.

The total award of €33,000 (plus interest) is redress for the infringement of Ms C's statutory rights and the impact on her health and wellbeing and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(d) I further order, as per Section 82(1)(e) of the Acts, that the respondent conduct a review of its policies and procedures in relation to its employment practices to ensure that they are in compliance with these Acts with particular reference to harassment on any of the nine grounds. All managers conducting investigations of harassment complaints should be trained accordingly. Unless this decision is overturned on appeal, a report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year of the date of this decision. If this is not done, the Irish Human Rights and Equality Commission may (with the consent of the complainant) apply to the Circuit Court for enforcement of this order under Section 91(4)(b) of the Acts.

______________________

Orlaith Mannion

Equality Officer

Footnotes

[1] Equality Tribunal Decision No. DEC-E2011-265

[2] Paragraph 17 & 18 Eleanor O’Higgins and University College Dublin and the Labour Court [2013 No. 21 MCA]

[3] Determination No. EDA1123

[4] Unreported, High Court, McGovern, J 24th July 2009

[5] EDA1023 Nailzone Ltd and A Worker

[6] Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation Official Journal L 204 , 26/7/2006 P. 0023 - 0036