In Applicant v Republic of Cyprus,(1) the Industrial Relations Tribunal considered a variety of substantive and procedural issues in the context of a claim for sexual harassment and victimisation. The case illustrates the principles that tribunals apply when examining sexual harassment cases and how they are interpreted by employment courts.
The applicant was a public employee working as an inspector at the Department of Fisheries and Marine Research in Paphos. AN and Respondent 3 were employees of Respondent 1, and the applicant's superiors.
AN had been the chief inspector of fisheries and marine research at the Department of Fisheries and manager of the Department of Fisheries and Marine Research's district office in Paphos until February 1 2009. Respondent 3 was director of the Department of Fisheries and Marine Research and was based in Nicosia.
In May 2006 the applicant made a sexual harassment complaint orally against AN to Respondent 3. Further, on January 1 2007 the applicant submitted a written complaint against AN to Respondent 3. Following the complaint, a formal investigation commenced and disciplinary proceedings were initiated against AN.
AN was found guilty on disciplinary charges relating to "an act or mode that is equal to a breach of any of the duties or obligations of a public servant" under Articles 73(1)(b) and 73(2) of the Civil Service Laws of 1990 and 2006 and Articles 2 and 12(1) of the Equal Treatment of Men and Women in Employment and Vocational Training Law (205(I)/2012). As a disciplinary measure, AN was severely reprimanded and transferred to the Department of Fisheries and Marine Research's district office in Limassol from January 2 2009 for three years.
The applicant brought proceedings against the respondents, claiming damages for sexual harassment and injuries suffered to feelings and physical health due to the respondents' actions and omissions under the Equal Treatment of Men and Women in Employment and Vocational Training Law.
In her claim, the applicant stated that from January 2006 until May 2006 she had been sexually harassed by AN (despite raising the issue), and that following an oral complaint made to Respondent 3 had been subject to hostile treatment from AN and other employees working in the Paphos district office, whose performance was evaluated by AN. The applicant further claimed that:
- the actions had created a hostile working environment; and
- Respondent 3 had taken no measures to protect the applicant or resolve the situation.
The applicant therefore filed a formal written complaint with Respondent 3 against AN. Following submission of the complaint, the applicant argued that the already hostile working environment had further deteriorated and Respondent 3 had urged her to withdraw her complaint. The applicant claimed that she had faced unfair treatment in the workplace from the submission of the written complaint through to the submission of the court application.
Respondents 1 and 2 alleged that:
- the applicant had not been subject to sexual harassment under the Equal Treatment of Men and Women in Employment and Vocational Training Law; and
- the application was time barred.
Respondent 3 did not file an appearance.
The court considered the evidence and ruled that AN's behaviour between January 2006 and May 2006 constituted sexual harassment of the applicant under the Equal Treatment of Men and Women in Employment and Vocational Training Law. However, the court found that the applicant's claim was time barred and did not award compensation.
The court also examined whether Respondents 1 and 3 had breached the Equal Treatment of Men and Women in Employment and Vocational Training Law. Based on the facts that the applicant had presented, the court ruled that the applicant had suffered unfavourable treatment in the workplace and been victimised by AN and Respondent 3 due to the sexual harassment complaint.
Further, Respondent 1 had failed to prove that action had been taken to prevent the sexual harassment and the actions that led to the applicant being victimised in the workplace. Therefore, the court found Respondent 1 guilty to the same degree as AN and Respondent 3. The court noted that even if the applicant had not informed her superiors of AN's actions, Respondent 1 would still have been found guilty to the same degree as Respondents 2 and 3, as Respondent 1 had failed to adopt the required preventive measures under the Equal Treatment of Men and Women in Employment and Vocational Training Law.
The court upheld the applicant's claim for injuries to feelings and awarded her €22,000. The respondents were made jointly and severally liable for the unfair treatment award.
The court noted the general legal principles governing injuries to feelings and considered the facts of the case – in particular, the following circumstances in which the applicant had suffered discrimination due to her gender:
- the unfavourable treatment that the applicant had suffered due to filing a sexual harassment complaint (eg, insults, social exclusion, psychological intimidation, poor performance reviews, reduction of tasks and unequal treatment in relation to tasks and volume of work);
- the substantial period of harassment, which had lasted from May 2006 until September 2009;
- the hierarchical relationship between the applicant, AN and Respondent 3;
- the length of examination of the applicant's written complaint (approximately 22 months), during which no measures had been taken to protect the applicant;
- the disciplinary measures taken following the conclusion of the disciplinary process against AN and the cancellation of the applicant's appraisals in 2007 and 2008;
- the negative treatment that the applicant had experienced following the imposition of disciplinary measures on AN (ie, the continuation of unfavourable treatment, unequal distribution of work and the threat of being moved to another department); and
- the fact that the applicant had continued to work at the Department of Fisheries and the consequences of the unfavourable treatment endured.
The court focused on two important aspects when examining the case:
- whether the actions concerned fell within the definition of sexual harassment and whether the treatment that the applicant had suffered was due to the sexual harassment complaint; and
- the type of damages to which the applicant was entitled.
In order to address these questions, the court proceeded with a systematic classification of the evidence in light of the Equal Treatment of Men and Women in Employment and Vocational Training Law, the EU Directive on Equal Treatment (2006/54/EC), the EU Burden of Proof Directive (97/80/EC) and relevant case law.