The Workplace Relations Commission ("WRC") annual report for 2018 contains a potentially surprising statistic that, although in general the number of discrimination complaints rose that year, the number of sexual discrimination complaints fell. We do not consider this to reflect the incidence of sexual discrimination or harassment during the #MeToo era and employers must note the high financial and reputational exposure in the event of allegations.
The recently published report highlights two notable decisions relating to complaints of workplace sexual harassment: A Technical Support Agent v A Contact Centre Company1 and A Receptionist v A Car Parts Company2. These decisions clearly emphasise the need for employers to take proactive steps to protect employees from sexual harassment, including ensuring that they have a clear dignity at work policy in place, that the policy is effectively communicated to staff, and that it is adhered to if a complaint is made.
A Technical Support Agent v A Contact Centre Company
A part time technical support agent alleged sexual harassment, discrimination, victimisation, and discriminatory constructive dismissal. The Workplace Relations Commission found in her favour in respect of each of her claims and awarded her €45,000, a very significant award in light of the Complainant's salary of €11,000. This was as a result of the "seriousness of the discrimination, the effect on the Complainant and the requirement…that the sanction be 'effective, dissuasive and proportionate.'"
The WRC highlighted what is required of employers in order to have a defence to complaints of sexual harassment as follows:
1. Obligation to take such steps as are reasonably practicable to prevent sexual harassment from occurring in the first place
The employer had in place a dignity and respect at work policy which the adjudication officer found to generally conform to the provisions of the Code of Practice3. However, the employer was not able to show that this policy had been communicated to either the Complainant or the alleged harasser. The Complainant's evidence was that she had received a copy of the policy only after she made the complaint. Accordingly, the employer could not rely on the policy in place in order to defend the claim.
2. Obligation to effectively investigate
The employer carried out an investigation on receipt of the complaints of sexual harassment. However, the adjudication officer found that there were a number of "critical shortcomings and fundamental failings" in how the investigation was conducted. The employer applied its grievance policy instead of its dignity and respect at work policy and did so without plausible explanation.
3. Obligation to reverse effects of harassment
Additionally, the employer was found to have failed to put any of the most basic measures in place in order to separate the Complainant and the harasser following the conclusion of the investigation. This was despite the investigation having upheld some of the Complainant's complaints. The two employees were both still required to be seated in the same work location. Allowing the Complainant to report to another team leader was also found to be "wholly inadequate" as it was clear that the Complainant was still required to have interaction with the harasser on an ongoing basis.
A Receptionist v A Car Parts Company
In contrast to A Technical Support Agent, the adjudication officer in A Receptionist was not convinced that the Respondent had any policy or procedures in place to address complaints of sexual harassment. The adjudication officer also found that the Respondent had failed to take the Complainant's complaint seriously and had not responded appropriately. Accordingly there was no defence available to the Respondent.
The adjudication officer found that the Complainant had been sexually harassed and dismissed for discriminatory reasons and awarded the maximum applicable compensation in the amount of €46,000 given the "completely inappropriate behaviour, and the fact the complainant lost her job because of the rejection of such behaviour." The adjudication officer also ordered the Respondent to put in place a policy on harassment and have all staff fully acquaint themselves with same.
What is the message for employers?
Claims relating to sexual harassment can be taken in a variety of fora and awards can be substantial, as emphasised in these recent decisions. The decisions set out the potential consequences for employers of perceived complacency towards sexual harassment, and demonstrate the significant awards that can be made, being multiples of salary. The decision in A Receptionist also serves as a reminder that binding and enforceable awards can be made under the Employment Equality Acts regardless of length of service. There is no service requirement to bring such a claim, including for discriminatory dismissal, and awards are not linked to loss of wages, but rather to the effects of discrimination and the distress suffered by the Complainant. For further information on employer obligations, please contact Jenny Wakely or one of the Dublin Employment Team.